Category: Island of Ireland

The bare “necessity” – how the legal position of the United Kingdom on the Northern Irish Protocol Bill makes no sense

13th June 2022

The government of the United Kingdom published this evening the Northern Irish Protocol Bill.

This Bill is so the government can breach (or “not perform”) its obligations under the Northern Irish Protocol.

The government has also published not the legal advice in support of the Bill, but their legal position.

But it is not even a legal position.

It is a lack of a legal position.

As a legal justification placed into the public domain this is even weaker than taking a lockdown journey to Barnard Castle to test one’s eyesight.

The government is legally even weaker than many legal commentators thought.

We were expecting some clever whizz-bang argument, desperate but perhaps just about plausible.

But we have got this instead.

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Let us look why this is so weak to the point of non-existent.

The government’s “position” is as follows.

Step one – the government sets out what it sees as “necessity”.

“The doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, which successive UK governments have regarded as generally reflective of customary international law. By way of summary, the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”

Step two – the government sets out that “necessity” means it has “no other way” than to put forward this legislation:

“… the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where the Government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed. There is, therefore, clear evidence of a state of necessity to which the Government must respond to.”

Step three – the government ties the two steps together to assert that “in light of the state of necessity” the “non-performance” (ie breaching) of its obligations under the Northern Irish Protocol would be justified under international law:

“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the nonperformance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”

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Ah, the bare legal doctrine of necessity.

The general issue with “necessity” at law is that any of us can at any time assert that it is “necessary” to breach an obligation.

This means that, in legal practice, “necessity” is made very difficult, if not impossible, to rely on as a defence for breaking any obligation.

In the domestic law of England and Wales, for example, every law student is introduced to the singular facts of the 1884 case of R v Dudley and Stephens to show how limited the defence of necessity is to a criminal charge.

And now, in 2022, “necessity” is being invoked in respect of a different type of shipwreck: the government’s post-Brexit policy.

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In international law, the principle of “necessity” is similarly limited in its scope.

Here is Lord Anderson QC, whose tweets should be read carefully:

 

Anderson links to a digest of the applicable law which sets out the four conditions that all have to be met together:

– the State’s act is to safeguard an essential interest against a peril;

– the peril shall be grave and imminent;

– the course of action followed shall be the only way available; and

– no other essential interest shall be seriously impaired as a result of the breach.

The digest also states that the excuse is unavailable where the State has (substantially) contributed to the situation of necessity.

These are high hurdles to meet.

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But there is more.

The parties to the Northern Irish Protocol – the United Kingdom and the European Union – have already expressly agreed a scheme for dealing with any problems under the protocol.

This mechanism is set out in Article 16:

And this annex to Article 16:

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The United Kingdom and the European Union contemplated the possibility of problems and agreed a way of dealing with them, which would enable parts of the protocol if – ahem – necessary to be temporarily disapplied.

It makes no sense – whatsoever – for the government to race to seeking to rely on the principle of “necessity” under international law for breaching the protocol without triggering the Article 16 process first.

As one tweeter said:

There is no answer to this point – and there can be no answer to this point:

There are no possible circumstances where the United Kingdom can resort to the the principle of “necessity” under international law without going through the Article 16 process first.

And the government – despite many threats – has not triggered the Article 16 process.

The “position” published today even admits the government believes that the Article 16 were met:

“In July 2021, however, the Government assessed in the Command Paper that, as a result of both diversion of trade and serious societal and economic difficulties occasioned by the Protocol, the conditions for the exercise of the rights provided for under Article 16 of the Protocol were already met.”

But the government then did nothing under Article 16 on that basis.

For the government to not trigger Article 16 instead of resorting to the the principle of “necessity” under international law is beyond rational comprehension.

Wookies coming from Endor makes more sense.

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And there is even more.

So “necessary” is this proposal that the legislation will take at least months, if not a year to pass into statute.

Such a leisurely timeline does not indicate urgency – and it does not show that the problem is “grave and imminent”.

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Putting what is said today together with this blog’s recent posts (here and here) on the strange way that the government is claiming to have legal cover for this proposal, it seems that the First Treasury Counsel was asked to accept as an assumption that it was “necessary” for the United Kingdom to break its international obligations.

The so-called Treasury Devil then questioned that assumption, and he was correct to do so.

This “legal position” does not provide any legal cover.

It makes no sense, even on its own terms.

It is a contrivance.

As my University of Birmingham colleague Dr Adrian Hunt avers:

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The reality is that the problems which the government mention were entirely foreseeable when they negotiated and signed the protocol, and were indeed foreseen.

The government then just wanted to “get Brexit done” – everything else was detail.

And the problems which have arisen are the main reason the protocol included Article 16.

So not only were the problems foreseen, a solution was also envisaged.

It is difficult to conceive of a weaker basis for the government of the United Kingdom to assert “necessity” as a breach of international obligations.

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Taking the Devil’s name in vain: how the government may be deliberately misleading members of parliament about the legality of its Northern Irish Protocol proposals – a follow-on from yesterday’s post

10th June 2022

Yesterday’s post was very popular.

It was not published until the evening, and it already has had over 20,000 hits.

And it has been promoted by a former Irish ambassador to the United Kingdom and the European Union, one of Ireland’s leading journalists, and a Conservative former Lord Chancellor – as well as by the reporters and member of parliament whose work I used for the post.

Thank you to all of you who read and shared the post, and a special thank you to those of you whose support means I can free up time to put together posts like that (which in that instance took three days).

Here is a follow-up to the post which has come out from the subsequent discussion.

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It would appear that one function of the Eadie ‘advice‘ is so ministers can try to convince unsure backbenchers.

This possibility has been put forward by the Conservative former Lord Chancellor I mentioned, David Gauke:

Gauke here links to his recent New Statesman piece – which you should read – where the relevant sentence is:

“The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects).” 

This is significant in two ways.

First, the government is now reduced to lying to its own backbenchers.

And second, if this is correct then it also means that government backbenchers simply do not trust the Attorney General to be getting the law right, and want the comfort of a further opinion.

If so, this shows the further fall in the credibility of the Attorney General.

You will recall that during the Brexit debates, the then Attorney General Geoffrey Cox – a successful barrister – took a leading role in seeking to convince backbenchers about the legality of the then proposed deal:

That legal advice was later published.

We now know that this advice was not enough to convince enough backbenchers to support then Prime Minister Theresa May’s deal.

But the point is that members of parliament did not then question the credibility of the Attorney General in being the source of legal advice, just that they did not like the import of what he and May were saying.

The current Attorney General has had less of an opportunity to develop a career in private practice and so is a far more junior lawyer than Cox.

And although she is understood to have commissioned advice from public international lawyers (lawyers who specialise in treaties and other international agreements), the fact that she is advising that the proposals are legal carries little or no weight with government members of parliament.

So, if Gauke is correct, there has been a decline – perhaps a collapse – in how seriously the office of Attorney General is regarded politically.

And so members of parliament are having to be assured that the Treasury Devil is also on side:

This may explain the possible compromise I mentioned yesterday, where Eadie was asked to give an advice based on assumptions that the advice commissioned by the Attorney General was correct.

The backbenchers would then presumably not be told about the assumptions.

The Devil’s name would be being taken in vain.

And so the leak of the actual advice, which showed Eadie’s doubts about the validity of the Attorney-General’s advice, undermined this underhanded ploy.

The cover was blown from the legal cover.

It would therefore appear that the government was seeking to mislead its very own backbenchers over the legality of the proposals for the Northern Irish Protocol.

That is an extraordinary situation for the government to be getting into, and it does not bode well for the legal robustness of what is being proposed.

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Dominic Raab says “fiddling with the rules when you don’t like the result is a bad look” – but that is what this government does again and again

7th June 2022

Dominic Raab, the Lord High Chancellor and Deputy Prime Minister, was on the media this morning after yesterday’s calamitous confidence vote.

A vote which – politically – was the worst possible political outcome for the current Prime Minister, though the possible constitutional (as distinct from political) crisis of which I warned was averted.

Raab was asked about whether the party rules could be changed so as to allow a further such vote within the next year.

His reply, with a straight face, was:

This lack of political self-awareness is priceless.

For changing – or seeking to change – the rules because of unwanted outcomes is what this government does again and again.

And again.

Indeed, looking from the outside, it is the nearest this government has got to an organising principle.

If there is such a thing as ‘Johnsonism’  it is a description of this ongoing push to remove the checks and balances, and to change or neuter the rules and processes, that stop this government from doing whatever it likes.

In Raab’s own department – the Ministry of Justice – there is a constant move towards changing judicial review rules and human rights law because of a (perceived) dislike of what judges are deciding.

Indeed, this is the very point of Raab’s rather pathetic proposal for a so-called “Bill of Rights”.

There are other examples from this government:

https://twitter.com/MarinaPurkiss/status/1534070376359251968

https://twitter.com/LLocock/status/1534089725027426304

And, of course, there is Brexit itself.

The politics of the Northern Irish Protocol is, at bottom, about how the current government wishes to resile from the agreement that it had negotiated and signed.

The current prime minister Boris Johnson and his ministers do not want to be held to the rules that came from lengthy negotiation and compromises.

To echo Raab, they do not like the result.

And so they want to fiddle around with those rules – an Internal Market Bill here, a threat to trigger Article 16 there, an Attorney General’s advice in the middle.

Constant fiddling – and just because they do not like the result.

Once you realise that this is what this government does – not least because it cannot think of doing anything more substantial – you see this in almost every area of policy.

But there is one thing that the Lord High Chancellor is correct about.

It is not a good look.

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The only ultimate solution to the problem of the Northern Irish Protocol may be a united Ireland

20th May 2022

Sensible conservative-unionists – and, no, that is not necessarily a contradiction-in-terms – used to abide by the maxim that politics was ‘the art of the possible’.

And one thing that the European Union did was make certain things possible, which otherwise were not possible.

With Gibraltar and Spain, for example, the border issue became less of an issue.

And with the island of Ireland, the border issue too became less of an issue.

Because both Ireland and the United Kingdom were both members of the European Union – and thereby both members of the internal market and customs union – a hard border, with infrastructure and bureaucracy, was unnecessary.

This created the conditions that made the Good Friday Agreement possible – though, of course, there were many other factors.

But now Brexit has come along, there is a problem.

There has to be a border somewhere where one entity is inside a pan-European internal market and customs union and the other entity is not.

Had Brexit not been so extreme – with the United Kingdom staying inside the internal market and/or the customs union (which is the position with some other non-EU states) – then the Irish border issue would be less of a problem.

But the Brexit which Theresa May insisted on, with the United Kingdom outside the internal market and customs union, meant there was going to be a problem.

May eventually realised this – and so she supported the ill-fated ‘backstop’ arrangement, which meant that – if there was no post-Brexit trade agreement – the cross-border arrangements of European Union membership would continue as a default.

But May’s proposal was rejected heavily by the House of Commons (including by ‘remain’ Members of Parliament).

That left one other option – the border in the Irish Sea, which was supported by the new Prime Minister Boris Johnson, and enshrined (ahem) in the Northern Irish Protocol.

And, as this blog has set out many times, Johnson here changed the policy, negotiated the Protocol, signed the withdrawal agreement containing the Protocol, fought a general election so as to get a mandate for the Protocol, and rushed the relevant legislation through parliament.

Johnson could have not done more, as Prime Minister, to have brought the Protocol into existence and to pass it into law.

But.

The Protocol is a solution to one problem but not to another.

It is a solution to the political problem of late 2019 where Brexit needed to be ‘done’ – and the Protocol was the only possible way to do so avoiding a hard border on the island of Ireland.

But it is not a solution to the deeper problem of how Brexit is compatible with the on-going existence of the union that is the United Kingdom of Great Britain and Northern Ireland.

Either one has Brexit (at least without continuing membership of the internal market and the customs union) or one has that union, but one cannot easily have both.

This is not to say that a united Ireland is likely – there are many solutions to political problems that never are adopted.

It may be that the problem continues, and continues, and is never resolved.

But a united Ireland is the only ultimate solution to there not being a border somewhere in respect of the north of Ireland.

Of course, special arrangements would need to be made for the non-nationalists in Northern Ireland – and one would hope that those protections serve that community better than the (lack of) protections for the nationalists in the north of Ireland after 1922.

Having watched Brexit from the beginning, I am still bewildered why supposed unionists did not see this problem coming – and indeed strongly campaigned for Brexit.

The European Union provided a means by which Northern Ireland could have continued in the United Kingdom, regardless of demographic changes and the gradual fall in unionist support.

But some forgot that politics was the art of the possible, and they pursued the politics of the impossible instead.

 

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Compliance not confrontation: a possibly significant rhetorical shift in the Foreign Secretary’s statement today on the Northern Irish Protocol

17th May 2022

As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.

The question is what can constitute compliance.

From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.

‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.

The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.

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Compliance is usually a better overall legal strategy than confrontation.

And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.

Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:

“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.

“Our preference remains a negotiated solution with the EU.

“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement.  […]

“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”

In other words, the government is to ‘comply’ with international law – though no doubt in a very specific and limited way.

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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.

The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.

It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.

That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:

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As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.

What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.

Of course: this is all sophistry and illusion.

The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.

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Yet such a rhetorical shift is possibly significant.

For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.

And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.

Smudgery and fudgery, perhaps.

And somewhere in Whitehall, a foreign office lawyer nods their head wisely.

It is all about what ‘compliance’ means, you see.

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Four truths about the Northern Irish Protocol

16th May 2022

Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.

First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.

Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.

He and his government owns the protocol.

Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.

As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.

All because a thing can be triggered, it doesn’t make it weapon.

But.

There are other truths which those hostile to or critical of Brexit may not so easily want to admit.

For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.

This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:

Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.

Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.

And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.

In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.

Just because there are rules, they do not need a maximalist interpretation.

And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.

Overall majorities are not enough.

Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?

(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)

But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.

You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.

So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.

But it is also a problem that needs to be considered flexibly and sensitively.

As this blog has said many times, not all problems have solutions.

Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.

It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.

The attitude of this government is a problem that can be solved – and as soon as possible.

 

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What Theresa May got right (but also very wrong) about Brexit – a look at her striking intervention in the Queen’s Speech debate

11th May 2022

Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.

Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.

Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.

Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.

(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)

But.

May got one thing right.

And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.

She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.

That proposal failed to pass the House of Commons – indeed, those versions of the  withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.

The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.

As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.

Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.

Parliament was denied any real opportunity to scrutinise the measure.

And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’

They are not clapping and cheering now.

For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.

At the time, this seemed a price Brexit supporters were willing to pay.

But now they do not want to pay it.

They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.

Cakes, eating, and so on.

And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:

She said:

“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”

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Had May had her way, however, there would have been alternative problems.

This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.

And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.

Some problems do not have solutions.

And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.

It may be satisfying, but it is not sufficient.

And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.

This was pointed out yesterday by a unionist politician who had been opposed to Brexit:

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When May took office she insisted Brexit would mean Brexit.

She insisted that the United Kingdom would leave the European Union customs union and single market.

Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).

So she may have been right in her answer to the unionist politician yesterday.

But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.

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A balancing exercise in action – Chris Mullin defeats a disclosure request in respect of the Birmingham pub bombings

23rd March 2022

I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.

There is a powerful public interest in that crime being properly investigated and those guilty being convicted.

Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.

There was a powerful public interest in that miscarriage of justice being exposed and corrected.

And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.

What happens when two powerful public interests such as the above collide?

That was the issue before the recorder of London at the Old Bailey.

On one hand, those police officers investigating the bombings want access to materials held by Mullin.

You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.

But that does not necessarily mean the police should get it.

The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.

Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.

And so the public interest in exposing that miscarriage of justice would have been defeated.

In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.

And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.

It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.

Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.

It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.

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The Northern Irish protocol is both legal and constitutional – the significance of today’s appeal decision

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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No UK political leaders of any party seem to be taking Northern Ireland seriously

30th November 2021

Yesterday the opposition Labour party had a reshuffle of its shadow cabinet.

This would not usually be anything of note for this blog, as it is the stuff of politics rather than of policy and law.

But there was one change that caught the eye.

The shadow Northern Irish secretary Louise Haigh was switched to the transport brief.

This was, to say the least, a shame.

Haigh had developed expertise and insights into the post-Brexit problems for Northern Ireland and the border dividing the island of Ireland.

She made a particular point of visiting Northern Ireland and Ireland regularly, so as to listen and understand the issues surrounding the Northern Irish Agreement.

She also had not only read the Good Friday Agreement (unlike some ministers), but she also understood it.

There was no better opposition politician to be in place while during reckless, erratic antics of Brexit minister David Frost and his constant threats to trigger Article 16 for no good reason.

And now, all that is lost, and the opposition front bench has to start again.

Haigh, of course, will no doubt do well on transport policy – especially as a northern member of parliament affected by this government’s reversals on rail infrastructure.

But something has been lost, and the necessary impression is that the Labour leader Keir Starmer, like the government front bench, does not take the Northern Irish issue that seriously.

As Dr Laura McAtackney avers:

These are all the shadow Northern Irish secretaries since the Brexit referendum:

And these are all the Northern Irish secretaries:

The turnover of Northern Irish secretaries and shadow Northern Irish secretaries has not only been at a time of Brexit and post-Brexit uncertainty but also when for about half the period since the referendum there has been no devolved assembly in Northern Ireland.

Could the main two political parties show any less interest in Northern Ireland?

If and when there is a border poll, and if and when there is a majority in the poll for a united Ireland, British political leaders will only have themselves to blame.

And indeed by any such a poll in just a few years, at the current rate we probably will have had another three or four Northern Irish secretaries and shadow Northern Irish secretaries.

The consequences of Brexit on Northern Ireland and the issue of the Irish border should be taken with the utmost seriousness by the leaders of the main British political parties – and they, of course, will protest that they do.

But rapid turnover of both Northern Irish secretaries and shadow Northern Irish secretaries shows otherwise.

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