By Jamie Bryson
In the latest of a series of significant constitutional judgments, Mr Justice Scoffield refused to grant an application by Sinn Fein activist Sean Napier, which had sought to compel DUP Ministers (via the discharge of various statutory functions) to schedule, attend and ‘participate in’ North-South arrangements.
Mr Napier is the latest nationalist activist to present as “guardian of the Belfast Agreement”. He follows the self-appointment of Emma De Souza as the Agreement’s guardian. It is not clear which of the guardians is the most senior guardian. The whole situation appears as confused as their interpretation of the Belfast Agreement which is effectively a principle of nationalist interpretation.
In short, the guardians decree that upholding the Belfast Agreement resolves to this: every provision must be construed and interpretated in order to be compliant with nationalism’s political objectives.
It is for this reason than none of the guardians are in the least bit offended at the shredding of one of the actual core pillars of the Belfast Agreement- namely the principle of cross community consent- when it comes to the Assembly voting on the continuation (or, one hopes, demolition) of the Union-subjugating Protocol.
In the instant case, as with many others recently, the principle of nationalist interpretation has had to yield to the actual text of the Northern Ireland Act.
Mr Napier and his legal team have expressed their satisfaction at today’s ruling. That requires applying the principle of nationalist interpretation to the judgment, which plainly- if anything- is far better for unionism.
Perhaps Mr Napier and those collaborating with him on his politically motivated litigation feel the need to put on a brave face to mask the reality; their legal action has backfired in spectacular fashion. Not only has it become clear that North-South arrangements per se require the “goodwill” of unionists, and are in fact unenforceable (more so now for reasons to be developed) but the scope of the ability to remove power from Ministers to act via recourse to section 28A is now clear, and so it follows such a mechanism can be used to thwart the Union-subjugating Protocol.
Any strategic reading of the judgment- most notably paragraphs 71-73 of same- would illuminate that unionism has in any event a very clear roadmap as to how to frustrate the working of North-South arrangements, and in fact can do so without having to act unlawfully at all.
As was argued in the application to intervene in the case, and in this article, all that is required is for Executive committee mechanisms (primarily requiring significant or controversial matters to come to the Executive) to deployed.
Scoffield J accepted, inter alia, at paragraph 72:
“It would therefore be open to the respondents through decision-making in the Executive Committee – including by means of the requirement for ‘call-in’ of certain matters to be discussed and agreed at Executive level under section 20(3) and (4) of the NIA and/or the cross-community voting mechanism set out in section 28A(8)(c) of the NIA and reflected in paragraph 2.12 of the Ministerial Code – to dictate, at least to a significant degree, what could and could not be agreed by those attending the Council. The scope for court intervention in relation to the political decision-making in that forum would be extremely limited.”
This is extremely significant. It makes clear that the DUP could perfectly lawfully- via political discretion- frustrate North-South arrangements to the point of making them wholly unworkable.
There is in fact an arguable point (of which I am personally nevertheless unconvinced) that more instability can be caused by frustrating the institutions from within, rather than collapsing them. That may be true in the short term, but ultimately unionism’s main weapon is- and always was- to force a binary choice between the Belfast Agreement or the Protocol.
However, it follows from paragraph 72 that the relevant mechanisms can be deployed in virtually unlimited circumstances. As developed in paragraph 73, the operation of the mechanisms requires ‘goodwill’; it is trite to point out that ‘goodwill’ is not a legal requirement. And so, Scoffield J accepts:
“In summary, without good faith participation in the structures of the NSMC on the part of the respondents, the court cannot ensure that the Council is able to meet and do business as the statutory scheme intended.”
To take some examples; any requirements to further embed the Protocol would be significant and controversial. The continued deployment of DEARA staff implementing the Protocol is also clearly significant and controversial.
Applying the helpful roadmap set out in paragraph 72 of Scoffield J’s second judgment in Napier, those matters- set out above as examples- should clearly now be referred to the Executive Committee. If agreement can not be found, then the Minister would be deprived of authority to act pursuant to section 28A (10) of the 1998 Act.
Mr Napier achieved this in totality: the Court declared the manner of the DUP’s boycott unlawful. This is hardly surprising given the DUP Ministers instantly conceded it was unlawful. He failed to secure any mandatory order to compel attendance in North-South bodies, and helpfully instead ensured unionism has a roadmap to permanently (and lawfully) take a wrecking ball to Strand Two.
Sean Napier is the toast of Unionism tonight.