Judicial Review of the Ireland/Northern Ireland Protocol – Allister (James Hugh) et al’s Application AND In the Matter of the Protocol NI[2021] NIQB 64

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Royal Courts of Justice, Belfast, incorporating the High Court (Image: Suzanne Mischyshyn, Creative Commons)
Royal Courts of Justice, Belfast, incorporating the High Court (Image: Suzanne Mischyshyn, Creative Commons)

The Ireland/Northern Ireland Protocol (‘the Protocol’) was the subject of a judicial review challenge at the High Court of Justice in Belfast. The hearing, which stretched over several days, took place in May 2021 and judgment was delivered at the end of June 2021. This blog article explains the judgment, highlighting the key arguments made and how they were resolved by the judge, Colton J.

What is judicial review?

In its simplest terms, judicial review is the ability of the public to challenge decisions made by public bodies. A decision is subject to judicial review if, for example, it is beyond the powers of the decision makers, if the procedure which led to the decision was unfair or if the decision was unreasonable. Sometimes, as is the case here, the grounds of review put forward by the Applicant will be the same as or similar to the case argued by another Applicant. In this case the decision was made to hear the cases jointly.

The Application of Allister et al

In para 44 of his judgment, Colton J noted the Applicants in effect sought to challenge the Protocol and the Withdrawal Acts, but did so by challenging the Protocol in Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020, which give effect to Article 18 of the Protocol. These regulations amend the Northern Ireland Act 1998 to include the democratic consent process in the proceedings of the Northern Ireland Assembly (‘the Assembly’); allowing the Assembly to vote on the continuation of the relevant articles of the Protocol by way of a simple majority vote.

He considered the grounds of challenge under five broad headings, as follows:

The Application of Mr Peeples

Mr Peeples’ application for judicial review was being heard on similar grounds. The cases of Allister et al and Peeples had significant points of overlap, but Peeples made a further point that was not raised as part of the Allister et al case.

Peeples argued that certain provisions of the Belfast (Good Friday) Agreement had been incorporated into domestic law, and therefore were justiciable, rather than being an aid to interpretation when it came to the Northern Ireland Act 1998 and the Withdrawal Acts. The court did not agree with this analysis, and the main focus of judicial attention was on the Allister et al arguments.

Ground 1: The Acts of Union 1800

The Acts of Union were passed simultaneously in Westminster and at the (then) Irish Parliament which had the effect of changing the union from a personal union (i.e. a monarchy with two separate parliaments) to a political one (so that the Westminster Parliament ruled both). The Applicants relied on Article VI of the Acts of Union, establishing the United Kingdom as a single customs entity, which future international agreements would treat as such. Article VI has two limbs, the first being that the subjects of Great Britain and Ireland would be ‘on the same footing’ in respect of trade; and the second the requirement that this be preserved in future international treaties.

The Applicants’ case (under this argument) was built on four propositions. First, that the Protocol is incompatible with being ‘on the same footing’ as residents of Great Britain. Secondly, the Applicants argued that the Acts of Union enjoyed ‘interpretative supremacy’ over domestic law giving effect to the Protocol, so that if the two are in conflict, the Acts of Union should prevail. Simultaneously, the second limb’s requirement that this be preserved in future treaties meant that the UK Government was prevented from agreeing the Protocol with the EU, and no domestic law can ‘cure’ that breach, meaning that ‘no provision of domestic law succeeds in giving effect to the Protocol’.

In layman’s terms, the argument was that the Protocol conflicts with the Acts of Union, and this means any domestic law which gives effect to it isn’t valid. The judge first examined whether the Protocol conflicts with the ‘same footing’ described in Article VI of the Acts of Union, which he found it did. The next question was whether the Acts of Union enjoyed interpretative supremacy over the Protocol and Withdrawal Acts.

Interpretative Supremacy

There are some rules of interpretation in law. One is that the later law will generally override the earlier, even if the later law doesn’t explicitly remove the earlier one. This is because Parliament cannot bind itself, so if Government A decides to change X legislation, it doesn’t have to repeal it, it just passes a new law. This is called ‘implied repeal’.

Some statutes are ‘constitutional’ in nature, which means they deal with fundamental rights or constitutional structures, so courts will not necessarily assume the new law was meant to repeal the constitutional statute. The court found that the Withdrawal Acts, which had given rise to the regulations, were constitutional statutes themselves. Noting that every provision and clause of the Withdrawal Acts had been considered by Parliament and also the rule that a later statute will override an earlier one, the court found that in the case of any conflict between the Acts of Union and the provisions of the Withdrawal Acts, the Withdrawal Acts have interpretative supremacy.

Ground 2 Section 1 of the Northern Ireland Act 1998

The Applicants also argued that Section 1 of the Northern Ireland Act 1998 prevents the Protocol from having effect. This section contains the following provisions:

Status of Northern Ireland

(1) It is hereby declared 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.

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

The Applicants argued that either the provision is only meant to apply to a ‘final, formal severing of the last tie that keeps Northern Ireland part of the United Kingdom’ or it protects the status of Northern Ireland under the Acts of Union, and therefore any ‘diminution’ in that status can only occur if it is approved by a referendum.

The Court referred to the Miller (No.1) case in which the Supreme Court considered this argument and ruled that section 1 of the 1998 Act refers only to a border poll. In Miller (No.1) the Court found that section 1 does not regulate any other changes in Northern Ireland’s constitutional status and therefore consent was not required to give effect to the Withdrawal Agreement. The Court in Allister et al followed this reasoning, and so judicial review on this ground was refused.

Ground 3: Section 42 of the Northern Ireland Act 1998 – the 2020 Regulations and Democratic Consent.

The 2020 Regulations, as mentioned above, gave effect to the democratic consent mechanism which determines whether Article 5-10 of the Protocol will continue to apply to Northern Ireland. Specifically, the Assembly will hold a simple majority vote on their continued application. The process for this was agreed as part of the Protocol itself, and the 2020 Regulations implement this into domestic law by amending the Northern Ireland Act 1998. Section 42 of the Northern Ireland Act 1998 deals with petitions of concern, which require cross community support for any affected matter. The 2020 Regulations amend the Northern Ireland Act 1998 to ensure that a petition of concern cannot be lodged in respect of a vote on consent to the continued operation of the relevant Articles of the Protocol.

The Applicants argued again that implied repeal could not apply here, as the Northern Ireland Act 1998 was a provision of ‘fundamental constitutional importance’. The Court found that the European Union (Withdrawal Agreement) Act 2018 had given the Secretary of State the power to implement the Protocol through regulations like this, and in doing so the Government was dealing with international relations including relations with the territories outside the United Kingdom, which are not devolved matters. It further noted that this didn’t settle the issue, the key point being that the Secretary of State had been given broad powers to implement the consent mechanism contained within the Protocol, and he had behaved within the scope of his authority and as Parliament had envisioned. Therefore, the 1998 Act could be amended by regulation and judicial review was refused on this ground.

Ground 4: Article 3 Protocol 1 of the European Convention on Human Rights

This right relates to the free elections, which are held under conditions ensuring the free expression of the opinion of the people. The Applicants argued that dynamic alignment provisions breached this right. Dynamic alignment is provided for in the Protocol; it means that when EU regulations to which NI is aligned are amended or replaced, NI will align to the new rules. The Applicants argued that, because Northern Ireland had no electoral input into the bodies that decide these rules, this aspect of the Protocol infringed Article 3 rights.

The court reviewed the democratic consent mechanism, the involvement of the Joint Committee and the Article 16 ‘safeguards’ mechanisms. It considered that there were a number of methods of involving elected representatives in the application of certain laws. It also considered that the Protocol was the outworking of a democratic process by elected representatives of the UK Government, and therefore the court should not ignore the clearly expressed will of Parliament. Accordingly, judicial review on this ground was also denied.

Ground 5: Breach of EU Law

The final ground of challenge was a conflict between the Protocol, and Articles 10 and 50 of the Treaty on European Union. The crux of the argument was that Article 50 allows a state to withdraw from the EU, but it does not make provision for future agreement and that Article 50 did not envision a situation where part of a Member State remained under EU law. The Applicants also sought to argue that the Withdrawal Agreement was in breach of Art 10 of TEU and the general principles of EU law, insofar as people living in Northern Ireland cannot vote for representatives in the European Parliament. This ground was also refused with similar reasoning as applied to Ground 4. The judge found the implementation of the Protocol, considered in the wider context of the Withdrawal Agreement Acts, was consistent with the principles of the rule of law and democracy.

What happens next?

The applicants’ case focused on the argument that the Acts of Union were fundamentally at odds with the Withdrawal Agreement and the associated Protocol; and the Acts of Union should prevail. Ultimately, the judge agreed that there was a difference, but that difference should be resolved in favour of the later acts. Mr Allister has stated that the Applicants will appeal the decision, so these issues are likely to be considered again by a higher court. At the same time, the UK and the EU are continuing to work on the implementation of the Protocol as part of the Withdrawal Agreement, with extensions to grace periods on chilled meats announced; and solutions proposed around medicines, guide dogs and the movement of animals. The Protocol is therefore facing two types of challenge, legal challenges in relation to its constitutional elements, and political challenges around day to day implementation.