By Jamie Bryson
This morning Mr Justice Colton issued a temporary order halting the effect of Minister Poots lawful instruction to halt checks flowing from the Union-subjugating Protocol.
This raises fundamental issues, which have been a matter of contention for some time in democratic systems all across the world, in relation to how ‘activist’ it is appropriate for Judges to be, if it all.
Whilst conceding he was making no determination as to the lawfulness or otherwise of the order issued by Minister Poots, Colton J nevertheless proceeded to interfere with the order at the request of an anonymous member of Sinn Fein, and ‘suspended’ its effect for at least four weeks.
In this hearing the Department- which it was made clear operates under the control and direction of the Minister- was represented by a junior barrister, rather than being represented by the senior counsel who advised the Minister, former Attorney General John Larkin QC.
It seems hard to believe that this rather strange approach to such a serious issue would have been the approach favored by the Minister, who should be in charge. It would appear therefore that the Departmental Solicitors Office would be needing to explain why they did not instruct a senior counsel of Minister Poots choice to contest this morning’s preliminary hearing?
It is fair to point out that Colton J has a strong reputation for everyone getting a fair hearing in his Court, regardless of background, but today’s intervention- with its wholly political consequences- and some of the associated Judicial remarks, does raises some issues of concern.
It is a matter of public record that Mr Colton was a former extremely active SDLP activist and stood for election for the nationalist party. This is absolutely legitimate, and there is no suggestion that this in any way calls into question Mr Colton’s impartiality in discharge of his judicial functions.
It is trite to point out that any judges previous political background shouldn’t be in any way relevant to his/her judicial work, but when a Judge willingly wades into the political arena, then they can’t insulate themselves from the inevitable scrutiny over their own political motivations.
There will be many people deeply troubled that any unelected judge- from any background- would wade into such a contested political space and take sides.
It will further be a cause of frustration that when nationalist Ministers acted unlawfully, in relation to Tigers Bay bonfire, the judiciary (the case was not heard by Colton J) effectively in substance let them away with it. There was no such desire to enter the political arena when the consequences would have been unfavourable to nationalist Ministers.
This feeds into the growing concern across unionist and loyalist communities that all the key organs of society – media, academia, law (including the Judiciary)- have been politicised in favour of nationalism.
All that being said, this should not dishearten unionists and loyalists, rather it should serve to enrage and thus empower our community to get into these professions, to challenge partiality and partisanship and to use the law to push back against its political deployment.
We must not forsake these arenas, but rather double the efforts to rebalance them, which can only happen by equal activism by those of a unionist background.
On the footing that Colton J will remain true to his well deserved reputation for fairness and even-handedness in the discharge of his judicial functions, it would therefore be anticipated that he would act with scrupulous fairness and grant any well founded applications to intervene in the challenge to Minister Poots lawful order.
Of concern more related to the legal points is the reality that section 7A of the European Union (Withdrawal) Act 2018 and its effect is the key contention in the challenge to the lawfulness of the Ministerial order.
The effects of section 7A is presently also at the very core of the Protocol challenge brought by Jim Allister QC MLA, Baroness Kate Hoey and Ben Habib. This challenge was dismissed at first instance by Colton J.
That decision is presently awaiting judgement in the Court of Appeal, however in the meantime a raft of other judicial reviews is piling up, nearly all of which turn on the same key point as to the effect of section 7A.
The potential for chaos in the Courts is not difficult to discern. If for example in the challenge to Minister Poots’ order, section 7A is given the same interpretation by Colton J as that which he applied in the Protocol case (and how could he do anything other than apply the same theory in the absence of his Protocol ruling being overturned?), but subsequently the Court of Appeal overturns the effect of section 7A, then there is going to be a whole host of cases wrongly decided.
In circumstances whereby there is very real political consequences for all of these cases, it seems a managerial failing of the judiciary not to resolve these issues by delivering judgment in the Protocol case in the Court of Appeal and thus (if required) to allow that issue to proceed to its final destination in the Supreme Court.
The present case is indeed arguable both ways. There is no doubt about that. It is a novel point which has not yet been properly tested in any court.
The Courts should be open for citizens (with sufficient standing- and standing has become somewhat of an elastic concept when it comes to enabling of nationalist activists) to therefore bring challenges on arguable questions of law.
However, what the Court should not do is allow itself to be used as politics by other means, and that is of course precisely what has transpired in the High Court this morning.
All these issues raise concern as to the fundamental balance within the heart of our system of Government and the pillars of our democracy which includes the judiciary.
What does it say to unionists that if a democratically elected unionist makes a decision that nationalism doesn’t like, then they will simply through surrogates in the civil service undermine such a decision?
And moreover, that if civil service defiance doesn’t work, then nationalism can be reasonably secure that they can simply have the judiciary override a democratically elected Minister in line with their political agenda.
That, it seems to me, is no basis for a stable shared society.