About this case:

• Citation:
  [2022] NICA 15
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

This decision involved two cases, one brought by the ‘Allister group’, and a second brought by Clifford Peeples. Both appealed the decision of Mr Justice Adrian Colton wherein he dismissed the respective applications for judicial review. The substance of both appeals had several heads of challenge, which principally argued that the Protocol breached Northern Ireland law, human rights law, and EU law.

1. Incompatibility of the Protocol and the 2020 Regulations with Article VI of the Act of Union 1800

The appellants believed that the Act of Union 1800 could not be repealed or amended, and certainly not without a referendum requesting such, under section 1 of the Northern Ireland Act 1998. Article VI of the Acts of Union reads as follows:

The effect of the Protocol was to impose additional checks on British-origin goods sent to Northern Ireland.

The argument was that there was an inconsistency between the “same footing” guarantee of Article VI and the Protocol terms, and that the earlier statute should have interpretative supremacy.

The court found that this union clause did grant citizens “the same rights in terms of trade”. However, they noted that the present day context and application of the “same footing” trade guarantee had adapted over time.

Although the court was prepared to accept the proposition that there was some inconsistency between the two statutes in relation to trade, the court also stressed that this statute was the result of a protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post-Brexit.

It could not “seriously be suggested that Parliament was unaware of the changes that may be brought”. The court dismissed this ground of appeal.

2. Incompatibility of the Protocol with section 1(1) of the Northern Ireland Act 1998

This ground argued that a customs border within the UK affected constitutional status and was unlawful as it was enacted without consent in contravention of section 1(1).

Any alteration to Northern Ireland’s relationship with the UK requires consent of the Parliament of Northern Ireland, and must be altered by a border poll, according to section 1(2). Therefore, it was argued that a referendum was required to make the changes effected through the European Union (Withdrawal) Act 2018 and the associated Protocol.

The court disagreed, and found that Northern Ireland’s withdrawal from the UK, which was the subject of section 1(1), was a separate matter from the UK’s withdrawal from the EU, which had been correctly completed through triggering Article 50.

When the NIA 1998 was enacted the whole of the UK was part of the EU and it was not contemplated that would change. Therefore, “section 1(1) of the NIA 1998 has no impact on the legality of the changes enacted by the EUWA 2018 as amended and the Protocol”, and this ground of appeal was dismissed.

3. Unlawful elimination of the constitutional safeguard enshrined in section 42 of the Northern Ireland Act 1998

The question here was whether the Secretary of State acted ultra vires in passing the 2020 regulations, and whether these regulations, which are subordinate legislation, lawfully amended the NIA 1998, which is primary legislation.

The court found against the appellants on both grounds, as the Secretary of State was lawful in making the 2020 Regulations, and these Regulations implemented the Protocol, in satisfaction of international obligations.

4. Breach of article 3 of Protocol 1 of the European Convention on Human Rights and article 14 of the European Convention on Human Rights

The appellants here argued that the ECHR had been breached (namely A3P1), because Northern Ireland citizens were to be bound by some EU laws but could not vote in the European Parliament. Further, they claimed that the difference in treatment of NI citizens amounted to discrimination pursuant to article 14 of the ECHR.

As the UK is no longer a member state of the EU, the citizens of Northern Ireland are not entitled to vote in EU elections or to have representation in the European Parliament. However, pursuant to Articles 5-10 of the Protocol, Northern Ireland continues to be subject to some EU law.

The protocol does have a “consent mechanism” which means that the people of Northern Ireland may choose to continue with the Protocol, or not, four years after the end of the transition period.

A3P1 obliges member states to provide free elections. However, the court noted that Northern Ireland citizens can still vote on UK Parliamentary elections and Assembly elections.

Ultimately, the court was not convinced that A3P1 was actually engaged in this case, as it relates to members states of the EU, which no longer includes the UK.

The discrimination argument also failed, as there is “no differential treatment among UK citizens because no one can exercise a vote other than under the terms of Article 18 of the Protocol no matter where they reside”.

5. Legal invalidity of the Protocol being in conflict with Articles 10 and 50 of the Treaty of the European Union

Finally, the appellants argued that the Protocol breached Article 10 TEU, which provides for representative democracy in the European Parliament, and Article 50 TEU which concerns withdrawal.

On the first point, the court noted that, clearly, this provision deals with the functioning of the EU, of which the UK is no longer a part. On the second point, the court noted that Article 50 had been triggered and the UK acted in accordance with its requirements.

The court noted that “the withdrawal process itself which was effected on an international plane by the EU and the UK through painstaking negotiations. This falls squarely within a class of non-justiciable matters.”

Therefore, these grounds of challenge were rejected.

Conclusion

Ultimately, the appeal, and cross appeal, were dismissed, and the decision of the trial judge affirmed.