Sarah Kay, human rights lawyer
Brexit has negatively impacted Northern Ireland, as was anticipated. Five years after the Brexit referendum, the High Court in Belfast issued a significant political decision regarding a legal challenge to the Northern Ireland Protocol. This challenge mirrors the Miller 1 case concerning Brexit’s constitutionality. Northern Ireland’s fragile political landscape, exacerbated by Brexit, has exposed existing systemic issues.
The legal challenge was brought forward by two main parties: Clifford Peeples, who opposed the Irish Sea border, and unionist members, including former First Minister Arlene Foster, who argued that the Protocol weakens Northern Ireland’s ties with Great Britain. Some arguments presented were illogical and inaccurate, such as comparing the European Union to an occupying force and claiming Brexit was not debated in Parliament. This analysis will focus on two key points of contention.
Acts of Union 1800
The legal challenge highlighted the Acts of Union, questioning if the Protocol supersedes them. This challenge centered on Northern Ireland’s constitutional status. The court relied on established legal precedents and the nature of constitutional law. Objections to Articles 6 and 10 of the Acts of Union were related to trade imbalances favoring the EU market over Great Britain. It is important to note that the Protocol’s implementation is ongoing, leaving some aspects unclear. However, the court determined that the Protocol itself doesn’t create tariffs but allows for them if goods are diverted to the EU.
The case also considered the hierarchy of constitutional statutes, drawing heavily on the Miller 1 case. Parliamentary sovereignty was emphasized, as Parliament approved the Withdrawal Agreement and its associated protocols. The court argued that the “forever” element of the Acts of Union doesn’t account for historical changes like the Irish Free State’s establishment in 1922. The Acts of Union must acknowledge the partition of Ireland, especially given the approaching centennial of this event.
Good Friday Agreement and fundamental rights
Since the 2016 referendum, concerns about Brexit’s impact on the Good Friday Agreement (GFA) have persisted. The European Union has consistently emphasized its commitment to the Northern Irish peace process, leading to the need for the Protocol. Both sides in this case argued they were safeguarding the GFA. The argument surrounding Article 3 of Protocol No. 1 to the European Convention on Human Rights (A3P1) raised questions about EU law application in Northern Ireland without direct representation in the European Parliament.
The hearing saw several unhelpful comparisons, including likening the situation to US colonial history and the phrase “no taxation without representation.” It was argued that the Protocol would diminish voting rights. The court determined that Northern Ireland’s representation in Parliament, along with the UK’s involvement in EU negotiations, addressed these concerns. While the “democratic deficit” argument was acknowledged, it was deemed a political matter potentially requiring further legal review.
The court concluded that Northern Ireland’s constitutional status remained unchanged without a referendum, which is provided for in the GFA under the principle of consent. The GFA is not incorporated into domestic law. The court also noted that the arguments generally opposed arrangements made under the Withdrawal Agreement, not the Protocol itself. This is often misunderstood; the Protocol protects the GFA without incorporating it into domestic law. It acts as a safeguard between the Withdrawal Agreement and the GFA. This case might be seen as a substitute for addressing the Withdrawal Agreement directly. Negotiations and political processes, not judicial review, are the appropriate avenues for resolving grievances.
Judicial review was refused on all grounds presented to the Court
This case holds significance beyond constitutional law as it delves into issues of identity. In a region marked by division and conflict, the decision unsurprisingly sparked attacks on the judge, the barristers, and fueled misinterpretations of the Protocol.
Protests and unrest in response to the DUP’s interpretation of the Protocol have escalated tensions, leading to threats of violence and instability. The Protocol aims to mitigate the negative effects of a hard Brexit on Northern Ireland. However, there are two main points of contention surrounding it. First, there’s a misunderstanding that the issues stem from Brexit, not the Protocol. The DUP, having supported Theresa May’s government, now faces criticism for opposing the consequences of her policies. Second, the issue touches upon Northern Ireland’s identity as part of the United Kingdom. The potential for a reunified Ireland is perceived as a threat by unionists. The Protocol safeguards the Good Friday Agreement from Brexit, respecting the principle of consent. Article 2 guarantees no reduction in rights. It’s worth noting the DUP initially opposed the Good Friday Agreement in 1998. The consequences of that decision are now becoming clear.
Photo credit: via [Wikimedia Commons](By en:User:Dom0803 - en:Image:DSCF6636.JPG, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=1068039)