14th March 2022
One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.
Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.
But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.
We do not yet have the full judgment, though we have this detailed summary.
The case was about the legality of the Northern Irish Protocol.
At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.
One ground was that the protocol was contrary to the Act of Union 1800.
Here part of the court’s summary reads as follows:
“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.
“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”
This is important.
Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.
But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.
And as such it would be wrong for a court to gainsay parliament.
In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.
And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.
The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.
The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.
And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.
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“And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail…”
Quite right too – but, here’s the rub.
The Court has made the right decision – absolutely.
The tragedy , the bigger the geo-strategic tragedy is that a political act, international treaty ( or contract, for that in legal simplicity is what the NIP is in reality) has been foisted on voters without their consent.
If this was the commercial world a court would look at the contract (aka treaty)
and see the NIP for what it really is – a bad contract – the reality and I’ve not seen anyone demur from this is that the NIP puts the EU single market as a priority over the the UK single market – this was always going to lead to friction without full voter ( inc pig ignorant unionist voters).
Bad laws like bad treaties rarely last long.
The NIP is very unlikely to last in its current form in my view.
The Court of Appeal in NI did its job – the fact that it made a judgement on the wrong job is more worrying.
The NIP is indeed suboptimal. But it is the best patch-up job in the circumstances of Brexit. Or do you have a better way of squaring the circle that would have satisfied both Ireland and the UK if only they had thought of it? (and yes, the EU was negotiating on Ireland’s behalf but entirely in accordance with Ireland’s wishes within the EU legal framework).
The best outcome would have been for Brexit itself to be declared unconstitutional as an attack on the Good Friday Agreement. After all, being such an attack is why the DUP – unwavering opponents of the GFA – supported Brexit.
But hey, Parliament is sovereign, right? Parliament enabled Brexit and Parliament enabled the NIP.
But hey, ……bad treaties don’t survive just like bad contracts.
It really doesn’t matter what I or you think. If the voters of NI don’t want it – it will be a new or modified treaty.
But NI voters DO want it. A majority of NI voters are in favour of the NIP:
https://www.qub.ac.uk/sites/post-brexit-governance-ni/ProjectPublications/OpinionPolling/TestingTheTemperature4-I/
A majority of Unionist voters is not in favour. However it is highly unlikely that any solution could be found by Unionists that would command the support of Nationalists. If no proposal has cross party support in divided NI, the world still has to move on.
The GFA was working fine. The UK screwed it up. You Brexit, you fix it. There is a delicious irony that the Unionists’ Baldrick-like clever plan to undermine the GFA and shaft the Nationalists has rebounded on them. Couldn’t happen to a nicer bunch.
“ The tragedy [is that] the NIP … has been foisted on voters without their consent.”
What are you arguing here? It wasn’t foisted on U.K. voters without their consent (unless you mean informed consent, which is another matter). A general election gave overwhelming support to the government that negotiated it.
It was foisted on N. Ireland voters without their consent, of course, as the decision making was in Westminster. But that’s, again, a can of worms.
NI voted Remain in the Referendum, so you could better argue that Brexit was foisted on them.
As always, the NIP is not the problem. It is a solution to a problem, that problem being Brexit -– or at the very least the way the Brexit process drove a horse and car through parliamentary process and devolved government.
“(….) has been foisted on voters without their consent”
No. Nonsense.
It has not been foisted on you. You knew what you were voting for when you voted for Brexit. Weren’t you?
“(…) the fact that it made a judgement on the wrong job (…)”
No. Nonsense.
There is no such thing as a judgement on the wrong job.
Again, for once, take responsibility for what you voted for.
It has (and will continue to have) consequences.
I’m sorry you, Phil and Maurice and other English Outsiders are not getting the Brexit you voted for.
Without going too far off topic, the EU weaponised the GFA granted, I’ll give you that.
It doesn’t make it right – bad treaties just don’t survive – I genuinely doubt this one will either in its current form.
Without going too far off topic, I think you should not “give me” things I did not suggest. If you want to cling to another Brexiteers’ myth (The EU weaponising the GFA.), be my guest.
Myths is all you got, in that respect.
Appreciating DAG’s sobre and serious points about constitutional law issues — but who could not enjoy the NI court trolling IDS and his ilk on Parliamentary assent here? Little Nell/heart of stone comes to mind. Yes, yes, DAG deals with this in a more proper way.
On the one hand it’s nice to have a summary. On the other hand it feels inefficient to create a separate 8 page summary, rather than just releasing the whole judgement. Is this typical?
“the court did not receive any oral argument on this point” appears several times. This seems odd, why would someone argue several things ‘in paper’ (or whatever the correct term is), but not in person?
Changing tack, “the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process”” I think this is what is called a legal fiction. And because it is binding according to the courts, it seems to me that Boris and the Conservative party must own the results of Brexit.
“it could not be suggested that Parliament was unaware of the changes that may be wrought” yet this is precisely what the DUP and various Brexiteers have been claiming since at least last summer.
It’s a very minor point but it strikes me as strange that among all the relatively arcane language in the court’s summary, e.g “clearly sighted, protracted, transparent, debated, informed and fully democratic” &c. they then use “Brexit,” which seems like a slang term, rather than saying “Withdrawal from the EEC” or something more technical or judicial-sounding.
It’s good to know someone is watching, I had almost forgotten about this. The DUP sustained May throughout her tenure in office over Brexit, voted for Johnson’s deal and all the time it was against, their and their supporters constitutional interests as they perceive them. Perhaps they should have voted to remain in the EU and then none of this and whatever else follows from that decision would have happened. If I was a supporter, I would be a tad annoyed at their ignorance and incompetence. But hindsight is a wonderful thing. Politicians particularly extremely partisan ones often try to convince electorates that they can have their cake and eat it as well, which of course is logically impossible, have your cake: Join NATO and the EU even though a very, very powerful neighbour and adversary says it won’t allow it. Enshrine it in your constitution so it becomes a national legally binding ambition – what could possibly, possibly go wrong?
Gone are the days when a judge in full-bottom wig might be expected to interrupt counsel by asking, “Tele-vision? What is tele-vision?”
“A linguistic abomination, m’lud, granted, but also a means of transmitting moving images to receiving devices, somewhat in the manner of radio programmes.”
Indeed, it is a barbarous hybrid, like bigamy, genocide, heterosexual, metadata, and petroleum. (I am tempted to arrange those words into a sentence.)
But in the manner of “radio programmes”?! You should be referring to “the wireless”, surely.