Killian Flood BL

About this case:

• Citation:
  [2021] NIQB 64
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Colton

The applicants claimed that Northern Ireland had been placed on a different constitutional footing than the other parts of the United Kingdom and argued that this was impermissible. Amongst other submissions, the applicants had argued that the Act of Union 1800 and the Northern Ireland Act 1998 overrode the provisions of the Withdrawal Acts and Protocol.

Delivering judgment in the case, Mr Justice Adrian Colton rejected each of the five major submissions of the applicants.

It was held that the various Withdrawal Acts and associated legislation were validly enacted based on the will of Parliament and did not offend against the constitutional status afforded to Northern Ireland in prior Acts of Parliament. It was not for the court to engage in the supervision of foreign affairs and treaties made by the Government, the court said.

Background

The case involved two sets of judicial review proceedings. The first proceedings acted as the lead case and were taken by unionist politicians such as Jim Allister, Lord Trimble, Arlene Foster and Baroness Hoey against the Secretary of State for Northern Ireland. The second proceedings were taken by Mr Clifford Peeples. Both cases challenged the lawfulness of the Northern Ireland Protocol and claimed that it fundamentally damaged the constitutional position of Northern Ireland within the United Kingdom.

Five arguments were advanced by the applicants as to the unlawfulness of the Withdrawal Protocol and associated legislation. First, it was submitted that the Protocol and 2020 Regulations were incompatible with Article IV of the Act of Union 1800, which provided that 1) Ireland and Great Britain would be placed on the same footing in respect of trade and 2) that any future treaty with a foreign power would preserve that equal status. It was argued that the withdrawal legislation offended against these provisions.

Second, it was submitted that section 1(1) of the Northern Ireland Act 1998 prevented any constitutional change in the relationship between Northern Ireland and Great Britain under the Protocol. The section provided that the entirety of Northern Ireland remained part of the UK and would not cease to be so without the consent of a majority of people.

Third, it was submitted that Article 18 of the Protocol was incompatible with section 42 of the 1998 Act. Article 18 provided for a majority vote in Northern Ireland for democratic consent to the continued application of the Protocol, which was alleged to offend against the constitutional safeguards contained in the 1998 Act. Specifically, section 42 provided that cross-community support was necessary for matters which affected the Assembly. Further, it was alleged that the Secretary of State failed to act in a manner compatible with the 1998 Act, as required by section 10 of the 2018 Act.

Fourth, it was argued that the Protocol was incompatible with Article 3 Protocol 1 of the European Convention on Human Rights. Article 3.1 of the ECHR provided that people would have a free choice of legislature. The applicants submitted that the EU would have continued control over laws in the State without the people of Northern Ireland having so chosen.

Finally, the applicants submitted that the Protocol was invalid because it breached Articles 10 and 50 TFEU. In relation to Article 50, it was stated that this Article was limited to providing for the withdrawal of a member state and did not make any provision for the future relationship. Further, it was submitted that the continued application of EU law to Northern Ireland was incompatible with Article 10 TFEU which provided that the EU was based on representative democracy. It was stated that Northern Ireland would not have such representation in the EU and therefore the Protocol was not lawful.

High Court

The court began by noting that the operation of unique customs rules in Northern Ireland as a result of Brexit had caused significant public controversy. The so-called Irish sea border had caused difficulties which were the subject of ongoing high-level political discussions between the UK and EU.

On the first issue relating to the submissions that the Act of Union 1800 prohibited the terms of the Withdrawal Agreement, the court held that treaties were properly a matter for the prerogative power of the Executive and not ordinarily subject to judicial supervision. The court restated the findings of the UK Supreme Court in R (Miller and others) v Secretary of State for exiting the European Union [2017] UKSC 5, which emphasised that Parliament could make or unmake any law that it wished.

The court held that there was no legal precedent which ruled that the terms of the Act of Union 1800 operated to annul a subsequent piece of legislation. In fact, based on first principles, the most recent “constitutional statute” should be preferred to the older one. Accordingly, the first ground of challenge was dismissed.

The court then dealt with the second issue relating to section 1(1) of the 1998 Act. The court again considered the Miller (No. 1) case and held that the 1998 Act did nothing to alter the constitutional status of Northern Ireland. The section merely provided a right to determine whether to remain part of the UK or to join a united Ireland. As such, section 1(1) did not affect the changes under the Protocol and the second ground was dismissed.

2020 Regulations and democratic consent

The court next considered the applicant’s challenge based on section 42 of the 1998 Act and the issue of democratic consent. Counsel had stressed the “fundamental constitutional importance” of section 42 to Northern Ireland as a whole. The court noted that consent had been a critical issue in negotiations and that the 2020 Regulations amended the 1998 Act by disapplying the “petition of concern” requirement for the consent resolution to be passed.

It was held that the withdrawal from the EU was not a devolved matter within the competence of the NI Assembly, so the Protocol did not require cross-community support. It was clear from the 2020 Regulations that the role of the Secretary of State was vital to the consent vote under Article 18 of the Protocol, which further showed that it was not a devolved powers issue.

Further, the court considered whether it was appropriate for the 2020 Regulations to amend the 1998 Act, which was primary legislation. The court applied R(Public Law Projects) v Lord Chancellor (Office of the Children’s Commissioner intervening) [2015] EWCA Civ 1193 and noted that the Protocol had been implemented by the Withdrawal Act 2018. The 2018 Act provided wide powers to the Secretary of State to make provision equivalent to that of an Act of Parliament. The court held that it had been necessary for the Secretary of State to disapply section 42 of the 1998 Act in the circumstances. In sum, the 2020 Regulations were within the scope of powers for the Secretary under the 2018 Act.

Other grounds

The fourth ground related to the free choice of legislature under Article 3 of the ECHR. The court began by considering the extent to which EU law would remain the governing law in Northern Ireland. While the exact extent was unclear, it was possible that Northern Ireland could be subject to EU law in the future. A wide margin of appreciation had to be given to the UK in this context. It was noted that Northern Ireland remained a part of the UK Parliament which had ratified the various Withdrawal legislation.

Ultimately, the court held that any limitations on Article 3 ECHR could be justified within the wide margin of appreciation afforded to the UK. Northern Ireland residents could vote for two legislatures which “have the ongoing ability to influence, consent to or bring an end to existing and future EU laws arising from the safeguards and protections that have been built into the Protocol”.

Finally, on the last ground, the court stated that there was no breach of EU law in the case. The court chose not to interfere with the will of Parliament to pass the Withdrawal Agreement. The previous analysis of Article 3 ECHR was also relevant as the consent procedure provided protections to NI citizens, which was consistent with the rule of law.

Conclusion

The court also rejected each of the supplemental submissions of Mr Peeples. Both applications for judicial review were therefore rejected.