Friday, 2 July 2021

Challenge to Northern Ireland Protocol dismissed by the High Court of Northern Ireland

" ... comparing Northern Ireland to a colony or the Vichy government in France under the Nazi regime during the Second World War are wide of the mark and unhelpful" - Mr Justice Colton.

The Brexit negotiations were a long and tortuous road but resulted in the UK leaving the EU on 31 January 2020. A transition period followed up to 31 December 2020. The UK left under the terms of a Withdrawal Agreement (WA) dated 17 October 2019.  

Article 182 of the WA provides that an integral part of the Agreement is the Ireland / Northern Ireland Protocol. (NIP). 

In March 2021, an application for judicial review

was commenced in the High Court of Northern Ireland. The true target of the application was the withdrawal agreement itself including the Protocol although the actual application was framed as a challenge to the "consent process regulations." 

Those regulations were made by the Secretary of State for Northern Ireland (Brandon Lewis MP) on 9 December 2020 and came into force on 10 December 2020 - see The Protocol on Ireland / Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020. The Regulations implemented in domestic law the mechanism for obtaining democratic consent to the continued application of Articles 5 to 10 of the Protocol.  

On 30 June 2021 Mr Justice Colton handed down judgment - [2021] NIQB 64. A summary of the judgment has been made available with the caveat that the summary and judgment should be read together and not in isolation.

The judge found that it could NOT be said that Northern Ireland and Great Britain were on an "equal footing" regarding trade but, in a detailed and careful judgment, he went on to reject all the grounds on which the applicants had tried to claim judicial review.

It remains to be seen whether there is an appeal.  

Mr Justice Colton has of course ruled on the law as he found it. Outside of the legal system - "on the ground" so to speak - the Protocol is resulting in trading difficulties across the Irish Sea as well as considerable concern relating to peace within Northern Ireland.

According to a Queen's University publication - Testing the Temperature - "after six months of implementation, the overall assessment of the economic and political impact of the Protocol among NI voters is predominantly negative."

Brexit has taken place and the Protocol has avoided a hard border being in place between Northern Ireland and Ireland. The avoidance of such a border was seen as vital in protecting the peace settlement achieved in 1998 after many years of sectarian violence. Nonetheless, the difficulties arising from the Protocol are in themselves capable of unsettling the peace, unless changes are made - see RTE News 3 July 2021 and see the article by Tony Connelly published by RTE News 26 June 2021.

2 July 2021

Additional links:

EU-UK relations: solutions found to help implementation of the Protocol on Ireland and Northern Ireland – The European Sting - Critical News & Insights on European Politics, Economy, Foreign Affairs, Business & Technology - europeansting.com

The Guardian - 3 July 2021 - Irish taoiseach urges No 10 to march EU generosity over NI protocol

UK Parliament - Northern Ireland Committee - Brexit and the Northern Ireland Protocol

15 July 2021 - House of Commons Library - The Northern Ireland Protocol

Legal notes:

The following links may assist with reading the judgment.

1] Act of Union 1800 came into force on 1 January 1801. (The nation - known as Ireland and often, but innacurately, referred to as the Republic of Ireland - dates from 18 April 1949 - Ireland Act 1949).. 

2] Devolution came to Northern Ireland with the Northern Ireland Act 1998.  Section 1 of this Act provides that "Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1." 

3] The Northern Ireland Act was amended by The Protocol on Ireland / Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 which implemented in domestic law the mechanism for obtaining democratic consent to the continued application of Articles 5 to 10 of the NIP.  

The mechanism is set out at Article 18 (Democratic consent in Northern Ireland) of the Protocol and in the UK Government’s unilateral declaration of 17 October 2019.  These "consent regulations" were made on 9 December 2020 and came into force on 10 December 2020. The consent regulations inserted section 56A and Schedule 6A into the Northern Ireland Act 1998.

4] The UK left the EU under the terms of a Withdrawal Agreement dated 17 October 2019.  Article 182 of the WA provides that an integral part of the Agreement is the Ireland / Northern Ireland Protocol. (NIP). 

During EU membership, Northern Ireland enjoyed the same trading arrangements with the EU as both the rest of the UK and also Ireland. The NIP was designed to avoid a land border between Northern Ireland and Ireland but has caused considerable trading problems across the Irish Sea between Great Britain (i.e. England, Wales and Scotland) and Northern Ireland.  Public attitudes to the protocol are considered in an interesting publication by Queen's University Belfast - Testing the Temperature.

5] The European Union (Withdrawal) Act 2018 was essentially concerned with the legal consequences of Brexit including the repeal of the European Communities Act 1972.

6] The European Union (Withdrawal Agreement) Act 2020 was concerned with the actual implementation into UK domestic law of the Withdrawal Agreement. 

7] The European Union (Future Relationship) Act 2020 is concerned with implementation of the Trade and Cooperation Agreement (and other agreements) reached with the EU in December 2020 - earlier posts

8] European Convention on Human Rights - Protocol 1 Article 3

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