The Irish protocol.

downcow · 12-05-2021 7:26am #1

The protocol will be challenged next week in the british high courts.
I am interested in what you guys believe is an appropriate way forward if it is declared illegal, as I have a haunch it will.
Is it appropriate to continue down an illegal road or will it be time for a rethink?

Peregrinus · 12-05-2021 7:46am

downcow wrote: »

The protocol will be challenged next week in the british high courts.

Nitpick: In the High Court of Northern Ireland. It will likely find it's way eventually to the UK Supreme Court in London, but that's some way off.

downcow wrote: »

I am interested in what you guys believe is an appropriate way forward if it is declared illegal, as I have a haunch it will.

Any basis for this hunch, or is it just a feeling in your waters?

downcow wrote: »

Is it appropriate to continue down an illegal road or will it be time for a rethink?

The legal action seeks a declaration that the NI Protocol is inconsistent with the Act of Union.

That wouldn't necessarily mean it was "illegal", though. Parliament, in UK constitutional theory, is sovereign; Parliament can amend, override or repeal the Act of Union if it cares to. And Parliament has, of course, ratified the treaty of which the NI Protocol forms part, and has enacted legislation to give effect to it. I do not think the court can set that aside.

So even if the applicants get the declaration they seek, it doesn't follow that the court will declare the protocol to be "illegal". Indeed, it's not clear what relief the court can order, beyond the bare declaration.

In truth, I think the applicants are mostly interested not the legal effect if the proceedings succceed, but in the political effect. They hope that successful proceedings will increase the political pressure for the treaty to be amended, and the protocol to be replaced, with something that isn't seen to violate the Act of Union.

That would be acutely embarrassing for the British government, because of course the reason why the treaty contains the NI protocol is because they refused to ratify an earlier version of the treaty, which didn't contain the protocol and didn't violate the Act of Union. The EU were quite happy to make a treaty on those earlier terms; it was the UK that wouldn't have it, because it was an obstacle to the hard brexit that the looney wing of the Tory party insisted on.

So political pressure to renegotiate the treaty and dispense with the NI protocol so as not to violate the Act of Union translates pretty directly into political pressure on the UK government to moderate its hard brexit policy to something more consistent with the Act of Union, and then seek to renegotiate the treaty with the EU along those lines. And the present UK government will fight that tooth and nail. (I can't see the EU being thrilled either, but the question will probably not arise for them, because HMG will not ask them to renegotiate the treaty.)

It'll also embarrass the DUP. (I note that the driving force behind these proceedings is Jim Allister.) For reasons which it would probably take years of expensive psychoanalysis to uncover, the DUP strongly backed the push for hard Brexit, despite the obvious political and economic damage it would inflict on Northern Ireland and, the court may now rule, the violation of the Act of Union that it entails. The DUP are supposed to uphold the union; they will be mortified if the court rules that the policies they supported have undermined it.

So, what should happen if the court rules in favour of the applicants? What should have happened all along; the UK should pursue an implementation of Brexit which pays attention to the wishes and interests of both parts of the union. But will that happen? Most unlikely; as the Queen's speech this week shows, this is a government which doesn't like being held accountable through the courts, so they will not be disposed to accept the implications of a court ruling that their policy undermines the union. It's been clear for some years that their policy undermines both the union with Scotland and the union with Northern Ireland and that they don't give a damn about that. I wouldn't expect that to change.

downcow · 12-05-2021 7:54am

Peregrinus wrote: »

Nitpick: In the High Court of Northern Ireland. It will likely find it's way eventually to the UK Supreme Court in London, but that's some way off.

Any basis for this hunch, or is it just a feeling in your waters?

The legal action seeks a declaration that the NI Protocol is inconsistent with the Act of Union.

That wouldn't necessarily mean it was "illegal", though. Parliament, in UK constitutional theory, is sovereign; Parliament can amend, override or repeal the Act of Union. And Parliament has, of course, ratified the treaty of which the NI Protocol forms part, and has enacted legislation to give effect to it.

So even if the applicants get the declaration they seek, it doesn't follow that the court will declare the protocol to be "illegal". Indeed, it's not clear what relief the court can order, beyond the bare declaration.

In truth, I think the applicants are mostly interested not the legal effect if the proceedings succceed, but in the political effect. They hope that successful proceedings will increase the political pressure for the treaty to be amended, and the protocol to be replaced, with something that isn't seen to violate the Act of Union.

That would be acutely embarrassing for the British government, because of course the reason why the treaty contains the NI protocol is because they refused to ratify an earlier version of the treaty, which didn't contain the protocol and didn't violate the Act of Union. The EU were quite happy to make a treaty on those earlier terms; it was the UK that wouldn't have it, because it was an obstacle to the hard brexit that the looney wing of the Tory party insisted on.

So political pressure to renegotiate the treaty and dispense with the NI protocol so as not to violate the Act of Union translates pretty directly into political pressure on the UK government to moderate its hard brexit policy and make it consistent with the Act of Union. And they'll fight that tooth and nail.

It'll also embarrass the DUP. (I note that the driving force behind these proceedings is Jim Allister.) For reasons which it would probably take years of expensive psychoanalysis to uncover, they strongly backed the push for hard Brexit, despite the obvious damage it would inflict on Northern Ireland and, the court may rule, the violation of the Act of Union, which they are supposed to uphold, not undermine.

So, what should happen if the court rules in favour of the applicants? What should have happened all along; the UK should pursue an implementation of Brexit which pays attention to the wishes and interests of both parts of the union. But will that happen? Most unlikely; as the Queen's speech this week shows, this is a government which doesn't like being held accountable through the courts, so they will not be disposed to accept the implications of a court ruling that their policy undermines the union. It's been clear for some years that their policy undermines both the union with Scotland and the union with Northern Ireland and that they don't really care that it does. I wouldn't expect that to change.

Not just U.K. breaching it’s articles. Eu at it as well. Here’s the reasons below that I think the courts will rule in ni unionists favour

downcow · 12-05-2021 7:55am

In agreeing and implementing the Protocol the following has breached:

- Article 6 of the Act of Union 1800 (an act of constitutional importance) by treating Northern Ireland and its people differently to the rest of the United Kingdom;

- The Withdrawal Agreement Act 2018 (as amended), on which the Protocol is based, by not adhering to its requirement not to vary the Northern Ireland Act 1998 (another act of constitutional importance). The government had to vary that Act in order to give effect to the Protocol;

- The Belfast Agreement by changing the relationship of Northern Ireland with the rest of the United Kingdom without its people's consent;

- Article 50 of the Treaties for the European Union which provides for the withdrawal of a country from the EU. That Act makes no allowance for leaving part of a country behind, as has been Northern Ireland. The Act also prohibits the establishment of long term arrangements, such as the Protocol, within any withdrawal agreement;

- The European Convention of Human Rights by the manner in which the people of Northern Ireland have had a new arrangement foisted on them without any say.

Peregrinus · 12-05-2021 8:19am

downcow wrote: »

Not just U.K. breaching it’s articles. Eu at it as well. Here’s the reasons below that I think the courts will rule in ni unionists favour

EU is not a party to the Act of Union and is not bound by it and so can’t breach it. Plus I doubt that the legal proceedings will seek any ruling about the actions of the EU; that would give the court an excuse to throw the whole case out as being being beyond the jurisdiction of the NI courts.

downcow wrote: »

In agreeing and implementing the Protocol the following has breached:

- Article 6 of the Act of Union 1800 (an act of constitutional importance) by treating Northern Ireland and its people differently to the rest of the United Kingdom;

- The Withdrawal Agreement Act 2018 (as amended), on which the Protocol is based, by not adhering to its requirement not to vary the Northern Ireland Act 1998 (another act of constitutional importance). The government had to vary that Act in order to give effect to the Protocol;

- The Belfast Agreement by changing the relationship of Northern Ireland with the rest of the United Kingdom without its people's consent;

- Article 50 of the Treaties for the European Union which provides for the withdrawal of a country from the EU. That Act makes no allowance for leaving part of a country behind, as has been Northern Ireland. The Act also prohibits the establishment of long term arrangements, such as the Protocol, within any withdrawal agreement;

- The European Convention of Human Rights by the manner in which the people of Northern Ireland have had a new arrangement foisted on them without any say.

Some of these claims are more of a reach than others, and are included, I think, for polemical effect. The Art 50 claim is going nowhere; NI has not been “left behind” in the EU. NI law continues to implement some parts of EU law but the same is true of, e.g., Norway, and nobody suggests that Norway is therefore “in” the EU. Likewise the ECHR point is a bit awkward; Brexit itself is being foisted on the people of NI not so much without any say as against their expressed wishes. I don’t think you can challenge the NI Protocol on this basis and yet argue that Brexit was just fine and dandy.

This also goes to the argument that the Withdrawal Agreement Act violated the Belfast Agreement by changing the relationship of NI with the rest of the UK without NI consent; Brexit itself (as implemented by the Tories) changed that relationship, because Westminster acquired powers over NI which previously it had not had - those powers were exercised in Brussels. NI voted against Brexit, as you know, so if the Belfast Agreement argument is valid then it is an argument against Brexit as a whole, not just against the NI Protocol.

There is, I think, more merit in some of the other points, but they are all going to run up against the problem of parliamentary sovereignty. The Act of Union is an act of Parliament; Parliament can amend or override it. There might be some argument on the detail of regulations made by ministers - where the Withdrawal Agreement Act gives ministers a choice about how to implement the NI Protocol, then they have to choose the implementation option which is consistent with the Act of Union rather than the one that isn’t - but I think this is going to be pretty much around the margins.

You could argue that the government acted unlawfully in signing the Withdrawal Agreement in the first place, because the WA was inconsistent with the Act of Union and while Parliament can override the Act of Union the government can’t. But I think the answer to that would be that any such illegality would have been “cured” when Parliament ratified the WA, and enacted legislation to implement it.

Chips Lovell · 12-05-2021 9:32am

Good summary by Peregrinus. You'd imagine that the UK government would be far more likely to try amend the Act of Union rather than go back and seek a softer Brexit.

Dyr · 12-05-2021 9:57am

The will of the British people must be sovereign lol

Unionism has always wanted a veto on Ireland, now it wants a veto on the UK too

FrancieBrady · 12-05-2021 10:03am

The question for Unionism is, even if they win this case, what is the solution for the UK?

At the very least it puts the UK back at the drawing board with the WA in tatters.
We in the EU can but watch that and await fresh proposals and a new trade agreement.

Any comment on what might happen if it does succeed Peregrinus? Thanks for the clear and comprehensive reply BTW.

12-05-2021 10:08am

downcow wrote: »

- The Belfast Agreement by changing the relationship of Northern Ireland with the rest of the United Kingdom without its people's consent;

- The European Convention of Human Rights by the manner in which the people of Northern Ireland have had a new arrangement foisted on them without any say.

Surely if these points are found to have merit they will cut both ways - changing the relationship with Ireland would be as much a breach for nationalists as the argued change of the relationship with the UK is for Unionists.

Seth Brundle · 12-05-2021 10:11am

Deleted User wrote: »

Surely if these points are found to have merit they will cut both ways - changing the relationship with Ireland would be as much a breach for nationalists as the argued change of the relationship with the UK is for Unionists.

I assume they are not a concern for their elected representatives who are campaigning for a change

Peregrinus · 12-05-2021 10:26am

FrancieBrady wrote: »

The question for Unionism is, even if they win this case, what is the solution for the UK?

At the very least it puts the UK back at the drawing board with the WA in tatters.
We in the EU can but watch that and await fresh proposals and a new trade agreement.

Any comment on what might happen if it does succeed Peregrinus? Thanks for the clear and comprehensive reply BTW.

I don't know what relief the applicants are seeking. Are they just looking for a declaration by the court that the WA (inc NI Protocol) is inconsistent with the Act of Union? Or are they asking the the court to go further, and strike down various UK measures on the grounds that they are invalid because of this inconsistency? Without knowing the answer to this question we are floundering a bit.

But, regardless, I think it goes too far to say that, if the applicants win, "it puts the UK back at the drawing board with the WA in tatters". The WA is an internationally binding treaty. The UK courts can no more unilaterally set it aside than the UK government or the UK parliament can. No matter what the courts rule, the UK is bound by the WA unless and until any variation is agreed between the UK and the EU. And for the reasons already pointed out the UK won't want to seek a variation, and the EU won't want to agree to one.

So if the court rules that there is some legal problem, some mismatch between the provisions of UK law and the requirements of the treaty, then the first instinct of the present UK government will be to ignore or deny this and, if they can't do that, to remedy the problem by bringing UK law into line with the treaty. The UK can do that unilaterally, whereas they can't unilaterally bring the treaty into line with UK law. And they'll have an obvious preference for a solution that they do control over one that they don't.

So, if the UK government has to act, then I think the action they will take is to enact legislation to cure the defect. If that means introducing legislation to make an explicit amendment to the Act of Union, then so be it. There is no doubt that Parliament can amend the Act of Union - it has done so many times. And since Johnson has a thumping majority, and his control of the parliamentary party is pretty total, there is no danger of a government defeat.

Plus, the WA is supposed to be Johnson's great achievement, and he was elected in 2019 on a manifesto of implementing it. Embarrassing as it might be to accept that it has been implemented in a technically deficient fashion which now needs to be rectified, it would be far more embarrassing to perform a volte-face, rubbish his own achievement, repudiate his manifesto commitment and denounce the WA. Plus there would be real-world consequences for the UK of such a course that would go well beyond embarrassment.

I think what Johnson probably would do is try to use the development to his own advantage - go to the Joint Committee that supervises the implementation of the Protocol, suggest that this court judgment is potentially very destabilising and argue that its a reason why the EU needs to be more flexible in the operation of the protocol.

Peregrinus · 12-05-2021 10:55am

Deleted User wrote: »

Surely if these points are found to have merit they will cut both ways - changing the relationship with Ireland would be as much a breach for nationalists as the argued change of the relationship with the UK is for Unionists.

Politically, yes. But, legally, the two are not on all fours. The GFA says that "it would be wrong to make any change in the status of Northern Ireland [as part of the United Kingdom] save with the consent of a majority of its people". It doesn't say anything similar about the status of NI with respect to the Republic.

The main issue here is whether the relevant GFA provision means, without the consent of a majority:

(a) that no aspect of NI's constitutional position within the UK can be altered in any way whatsoever; or

(b) NI's constitutional position can't be altered in such a way that it ceases to be part of the UK; or

(c) something in between; if the change to NI's constitutional position is sufficiently significant, then it can't happen without majority consent, but lesser changes can.

If option (a) is the correct one, then Brexit itself is a violation of the GFA, since the way in which Brexit has been implement involves Westminster reclaiming for itself certain powers which were devolved.

If option (b) is correct, then neither Brexit nor the NI protocol violate the GFA, since NI is still part of the UK.

So the applicants will be hoping that the court finds that option (c) is correct. The problem here is, where to draw the line between constitutional changes that require majority consent and those that don't? There is nothing in the GFA to suggest where that line might lie, or even to hint that such a line exists. And people who rely on the GFA to object to the Protocol (but not to Brexit) tend to describe the line using very contentious, very polemical and mostly very loose language; NI has been "left behind" in the EU. They're going to have to get a lot more rigorous and realistic in their thinking if they hope to persuade the court that the GFA creates such a line between different measures that affect the relationship of NI with Westminister.

downcow · 12-05-2021 6:27pm

[Deleted User] wrote: »

Surely if these points are found to have merit they will cut both ways - changing the relationship with Ireland would be as much a breach for nationalists as the argued change of the relationship with the UK is for Unionists.

Yes absolutely a hard border on the island or in the Irish Sea is a problem

FrancieBrady · 12-05-2021 6:31pm

downcow wrote: »

Yes absolutely a hard border on the island or in the Irish Sea is a problem

2nd one isn't a problem for us.

Seems to be for Unionism here though having resulted in wrecking their own areas a bit, and the demise of two unionist party leaders. Otherwise all seems good with it.

downcow · 12-05-2021 6:35pm

FrancieBrady wrote: »

2nd one isn't a problem for us.

Seems to be for Unionism here though having resulted in wrecking their own areas a bit, and the demise of two unionist party leaders. Otherwise all seems good with it.

Who is ‘us’?

downcow · 12-05-2021 6:36pm

Peregrinus wrote: »

Politically, yes. But, legally, the two are not on all fours. The GFA says that "it would be wrong to make any change in the status of Northern Ireland [as part of the United Kingdom] save with the consent of a majority of its people". It doesn't say anything similar about the status of NI with respect to the Republic.

The main issue here is whether the relevant GFA provision means, without the consent of a majorit:

(a) that no aspect of NI's constitutional position within the EU can be altered in any way whatsoever; or

(b) NI's constitutional position can't be altered in such a way that it ceases to be part of the UK; or

(c) something in between; if the change to NI's constitutional position is sufficiently significant, then it can't happen without majority consent, but lesser changes can.

If option (a) is the correct one, then Brexit itself is a violation of the GFA, since the way in which Brexit has been implement involves Westminster reclaiming for itself certain powers which were devolved.

If option (b) is correct, then neither Brexit nor the NI protocol violate the GFA, since NI is still part of the UK.

So the applicants will be hoping that the court finds that option (c) is correct. The problem here is, where to draw the line between constitutional changes that require majority consent and those that don't? There is nothing in the GFA to suggest where that line might lie, or even to hint that such a line exists. And people who rely on the GFA to object to the Protocol (but not to Brexit) tend to describe the line using very contentious, very polemical and mostly very loose language; NI has been "left behind" in the EU. They're going to have to get a lot more rigorous and realistic in their thinking if they hope to persuade the court that the GFA creates such a line between different measures that affect the relationship of NI with Westminister.

A few very helpful posts. Excellent and informative pereguins

FrancieBrady · 12-05-2021 6:42pm

downcow wrote: »

Who is ‘us’?

The vast majority of those who are Irish and members of the EU. Many who identify as British and other nationalities as well.

Junkyard Tom · 12-05-2021 6:43pm

downcow wrote: »

Who is ‘us’?

A majority of people in Ireland, in the north, in Britain, and in the EU.

FrancieBrady · 12-05-2021 6:47pm

Has anybody got any 'actual' figures that show a major issue in the north with the Protocol...has it resulted in scarcity of anything or has it caused the collapse of business?

Not interested in anecdotes or 'my friend told me' stories. Actual data/factual accounts.

downcow · 12-05-2021 6:53pm

FrancieBrady wrote: »

Has anybody got any 'actual' figures that show a major issue in the north with the Protocol...has it resulted in scarcity of anything or has it caused the collapse of business?

Not interested in anecdotes or 'my friend told me' stories. Actual data/factual accounts.

Inconvenience and diminution of sovereignty. Data is difficult on subjective issues.

FrancieBrady · 12-05-2021 7:18pm

downcow wrote: »

Inconvenience and diminution of sovereignty. Data is difficult on subjective issues.

Brexit was always going to be 'inconvenient, it is inconvenient for us too and we didn't decide to Brexit or support it.

One would have to ask...what were you expecting?

Seth Brundle · 12-05-2021 7:21pm

downcow wrote: »

Yes absolutely a hard border on the island or in the Irish Sea is a problem

Ok so you dislike a border in the Irish sea and there will not be a hard border on the island. So for the UK to have its Brexit, what should the UK propose that us acceptable to the EU?

FrancieBrady · 12-05-2021 10:24pm

Doesn't look like the UK is too bothered what Unionists think of the Protocol.

https://twitter.com/lisaocarroll/status/1392389619430330369

FileNotFound · 12-05-2021 10:47pm

Challenging this in the courts sounds good and all but what happens then should they class it as unacceptable under whatever guise.

Current brexit deal scrapped and NI in a worse situation?

All a right Farce, hanging onto a nation that cares not 1 sh1t about the North.

briany · 12-05-2021 11:44pm

Bit of Unionist meltdown on Nolan Live tonight.

FrancieBrady · 12-05-2021 11:46pm

briany wrote: »

Bit of Unionist meltdown on Nolan Live tonight.

What happened?

Junkyard Tom · 12-05-2021 11:51pm

FrancieBrady wrote: »

What happened?

Donaldson has announced that he will make power-sharing unworkable if the NI Protocol isn't resolved.

In my view Unionism is in a position where collapsing power-sharing is a greater loss for them than Nationalists.

The conversation on the future of the north will move to ending British jurisdiction.

briany · 13-05-2021 12:00am

Junkyard Tom wrote: »

Donaldson has announced that he will make power-sharing unworkable if the NI Protocol isn't resolved.

In my view Unionism is in a position where collapsing power-sharing is a greater loss for them than Nationalists.

The conversation on the future of the north will move to ending British jurisdiction.

Do we know what would happen to the consent mechanism if Stormont collapses? Do they just skip the vote or hold it in the commons or what?

FrancieBrady · 13-05-2021 12:04am

briany wrote: »

Do we know what would happen to the consent mechanism if Stormont collapses? Do they just skip the vote or hold it in the commons or what?

If Stormont cannot be restored, Direct Rule is the next option.

Junkyard Tom · 13-05-2021 12:05am

briany wrote: »

Do we know what would happen to the consent mechanism if Stormont collapses? Do they just skip the vote or hold it in the commons or what?

I'm not sure to be honest.

Larbre34 · 13-05-2021 12:15am

It would become a constitutional debate in Westminster as to what would happen the consent, but seeing as NI is administered under executive authority of the Sec State by the Civil Service in any absence of Stormont, my opinion is that the Secretary of State would sign off on it at that time.

Jesus but official Unionism are a thick bunch.

The Irish protocol.

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