The fatal misunderstanding of Unionism’s Protocol implementation case
By Jamie Bryson
In the Belfast Telegraph 29 January edition, Sam McBride published a long-read, following on from his extensive article three weeks previous, in relation to the challenge to the ongoing implementation of the Protocol.
The article was typically detailed and impeccably researched. Moreover, it gave expression accurately and fairly to the competing sides of the ongoing debate. It was a vital contribution to a very significant issue, which has thus far failed to attract the wider attention it should.
However, in my view there was one cardinal error in the article. In addressing the section 28A of the Northern Ireland Act 1998 (‘the 1998 Act’) issue, Mr McBride fell into error by failing to appreciate the subtly of the point which has crystalised following recent court judgments.
I should say, Mr McBride has provided a far more detailed and comprehensive analysis of what is a highly technical area of law than any journalist in the UK thus far. Far be it therefore from this article being a criticism of Mr McBride’s work, it is instead a challenging contribution to the ongoing debate.
It is, as the article states, beyond doubt that the Protocol has always been significant and controversial, therefore on a prima facie basis, it seems obvious, with the benefit of hindsight, that it always needed Executive approval pursuant to section 28A.
The issue is not that simple. In advance of the NIHRC and Napier cases, the default presumption was this: if you think of section 28A as a pipe through which significant, controversial and cross cutting decisions must flow. The presumption was that the implementation of legal obligations by-passed the section 28A ‘pipe’. That is not to say the issue was ever considered in any great detail, because it was not.
It was on the erroneous footing above that the Attorney General provided her advice. And remember; in addition, that advice related to a unilateral effort to halt checks by Minister Poots, rather than deploying the section 28A point to require Executive approval. In short, the point at that stage was back to front.
Then in October 2021, Colton J issued a decision in the NIHRC case. In this at paragraph 68, he grappled for the first time with the general question as to whether a legal obligation to do X (in the NIHRC case bringing forward abortion services), still required adherence to the fundamental obligations in section 28A of the 1998 Act before doing X.
Colton J proceeded on the basis that it was an accurate statement of the law to say that the fundamental obligations within the 1998 Act persist, notwithstanding any other obligations.
Following that, an idea was conceived that the DUP could lawfully frustrate North-South bodies by using section 28A to refer the discharge of North-South obligations for Executive approval, because given the trashing of East-West, the continued implementation of North-South arrangements was plainly significant and controversial.
Accordingly, an application by UVPS was made to intervene in the case brought by Sinn Fein activist Sean Napier, on the grounds set out above. This application was refused by Scoffield J, and the DUP did not adopt the relevant arguments in the Napier case.
However, when it came to the judgment in Napier (2) Scoffield J nevertheless impliedly dealt with the arguments from the application to intervene at paragraphs 38, 71-73 of the judgment. It appeared to be a pretty strong judicial hint that indeed section 28A could be used in such a circumstance.
It was only after this judgment that the idea which has brought the implementation to a head really crystalised, and thus sparked the UVPS legal challenge to DAERA on the failure to secure Executive approval for Protocol implementation.
And thus far, there has been no real answer to the substantive point advanced in our case, and conceded by DAERA. It is this; section 28A is a key provision in a constitutional statute, it cannot be subject to implied repeal and there is no fetter on its operation or effect. Therefore, any domestic or international obligations on devolved departments must yield to section 28A and go up the ‘pipe’ to receive authority, or else the relevant Department has no lawful power to implement them (see section 28A (10)).
There has been much made of the existence of an Executive ‘minute’ that was initially championed by Sinn Fein and Alliance, but it seems they quickly realised three issues:
the minute was insufficient authority to authorise anything, and in any event its effect (even if it had any) could be neutralised by simply sending it back up the section 28A pipe with three differing interpretations of it, and asking for a positive Executive affirmation for the correct one, and in the absence of same there is no authority to rely on any interpretation
(ii) by claiming that the Protocol implementation already had Executive authority, they by implication had conceded that such authority was required
(iii) if the Executive had simply handed over Protocol implementation to Minister Poots, then he has a wide discretion in how that is implemented. In short, he can do what he wishes with his resources, such as only checking that which is clearly destined for the Republic of Ireland.
In any event, even if Minister Poots had misunderstood the law in 2020, or 2021, that is no authority for continuing with illegality now that the legal issues have crystalised.
It seems therefore the key battleground is in fact in relation to efforts by officials to stage a constitutional coup. Tomorrow, that issue that will be addressed in detail on this site.