The governance arrangements for Northern Ireland are given authority in domestic law by the Northern Ireland Act 1998, and this is underpinned by the British-Irish Agreement, an international treaty which includes at Annex 1 the political agreement of the 1998 multi-party talks, commonly known as the Belfast Agreement.
Section 26 of the Northern Ireland Act 1998 places a duty on the Secretary of State to ensure that no decisions are made which would contravene the United Kingdom’s international obligations.
If we then use this provision as bridge to assess what international obligations could be contravened by the Betrayal Act, then we arrive at the British-Irish treaty which as aforementioned contains the political text of the Belfast Agreement.
Strand 1 (5) (d) of the political text included in the treaty states that there must be;
(d) arrangements to ensure decisions are made on a cross community basis;
(i) either parallel consent, i.e a majority of those numbers present and voting, including a majority of the unionist and nationalist designations present and voting;
(ii) or a weighted majority (60%) of members present and voting, including at least 40% of each the unionist and nationalist designations present and voting;
These safeguards, which apply automatically to certain decisions, can further be triggered by a Petition of Concern (POC), the process for which is outlined in Section 42 (1) of the Northern Ireland Act 1998.
42 (1) If 30 members petition the Assembly expressing their concern about a matter which is to be voted on by the Assembly, the vote on that matter shall require cross-community support.
It is therefore explicitly clear that the proposed mechanism in the Betrayal Act for Assembly consent would be contrary to the Northern Ireland Act 1998, which the House of Lords in Robinson held had the status of a constitutional statute, and furthermore would also be in breach of international law as it would flagrantly breach the Belfast Agreement which is attached to the British-Irish treaty.
Ironically I have long argued against the Belfast Agreement and the binding nature of the treaty, however nationalism and the Irish Government has consistently held the agreement up as a holy writ which could not be altered save for the agreement of the people of Northern Ireland, both unionist and nationalist.
This argument appeared to apply in the minds of nationalists so long as such cross-community safeguards were required to protect their interests, however the first time the opportunity presented for the cause of Irish nationalism to be advanced via overriding the Belfast Agreement with majority rule, then they were more than content to dispense with the very agreement they have told us was inalterable and had the status of a holy writ, in any event a binding international treaty.
I have not heard any Remain voices, or indeed the Irish Government or European Union, standing up for the Belfast Agreement in recent days. It appears pan-nationalism and the European Union, in connivance with the British Government, are more than content to circumvent a binding international treaty and domestic law in the form of the 98 Act in order to impose an economic United Ireland upon the unionist community in Northern Ireland against our will.
The Attorney General has stated that the provisions are compatible with the Belfast Agreement, I submit that he is wrong, and he likely knows he is wrong. The flimsy justification offered in the House of Commons was that this was not a devolved issue. This is plainly nonsense; it is a matter exclusively for the Northern Ireland Assembly.
It is unsustainable in law to argue that a decision on whether Northern Ireland is aligned to the UK or held hostage in an economic United Ireland, is not a ‘key decision’.
Ironically if the Betrayal Act were to force through a majority rule consent mechanism for the Northern Ireland Assembly, then it naturally follows that the Petition of Concern mechanism contained within Section 42 would have to be altered, or repealed, from the Northern Ireland Act 1998.
It is somewhat bizarre that those sworn to defend the Belfast Agreement would happily find themselves in a situation where they would unilaterally repeal a section of the agreement to disadvantage one section of the community and to usher in majority rule.
The decision of the British Government to use their power to agree to the Withdrawal Agreement is in my view justiciable, and therefore amenable to Judicial Review and/or injunctive relief even prior the Betrayal Act being approved by Parliament. Laying the Betrayal Act before Parliament is itself an exercise of power by a Minister of the Crown, therefore open to challenge.
As such, I will be seeking to bring a legal challenge to the validity of the deal reached by the Prime Minister. There is every chance that the principles laid down in Robinson could be re-argued before the UK Supreme Court. It is likely If any others would like to join in this action, then they are more than welcome to do so.