The Supreme Court in London will hear a Judicial Review of the Northern Ireland Protocol on November 30th. This will be the only chance for the UK to break loose from the EU’s remaining powers quickly, without legislation.
The Protocol is embedded in the EU Withdrawal Agreement whereby the UK left the EU at the end of 2021. It differs from the rest of the Agreement because it leaves the EU with a range of powers over legislation governing trade, and other, regulations applied in Northern Ireland.
The European Court of Justice (ECJ) rules on how these powers are applied in Northern Ireland. It was always believed – on the UK side – that these powers would be closely defined and lightly applied.
The Problems:
The UK believed that the Protocol would be interpreted in a narrowly defined way and applied sensibly with a light touch.
The EU Commission now demands that each clause of the Protocol is defined in the broadest possible way, and as rigorously applied as possible. It is supported by the ECJ, whose foundation brief is to work for an “ever-closer” Union led by the EU Commission.
The UK got some of the most damaging rules suspended, but on 15 September 2022 these relaxations lapse. If we do not comply the ECJ is threatening to impose fines and other penalties.
The EU will put its interpretation of the Protocol before the ECJ for the first time after 15th September. Their interpretation would also include a requirement for checks on goods moving from NI to GB, not something needed for the protection of the EU’s Single Market and hitherto never before raised by the EU. This would blatantly contradict the Government’s interpretation of the Protocol.
The Government is now putting forward a Bill that could in theory over-ride the most egregious parts of the Protocol, but The EU will fight this Bill in every way it can, including through EU supporters in our Parliament.
The EU will continue to try to bring in more controls over the lives of the people in Northern Ireland, and aims to create a never-ending war with the UK, of Parliamentary legislation, and local and international court cases.
Unionist Parliamentarians in Northern Ireland will not take part in its Government while foreign rule through the Protocol continues.
The Solution:
Leading Northern Irish politicians representing all strands of Unionism, including the late Lord Trimble, went to the High Court in Belfast to subject the Protocol to a Judicial Review to determine that the Protocol was in breach of the 1800 Act of Union between Great Britain and Ireland and in breach of the Belfast (Good Friday) Agreement..
The Belfast Lord Chief Justice found that the EU Withdrawal Act and its Protocol over-rode the 1800 Act. However, she referred this case to the Supreme Court in London for Judicial Review because of “its great constitutional significance”. And it is of great constitutional significance.
The 1800 Act of Union is one of the two essential founding documents of the United Kingdom. It sets out that wherever UK citizens live they have exactly the same freedoms, e.g. to trade, as all other citizens. The Protocol takes this away. It makes rules for British citizens in Northern Ireland that do not apply elsewhere in the United Kingdom.
The Judicial Review before the Supreme Court on 30th November will consider if the Protocol is a lawful piece of legislation. If it decides that the Withdrawal Act cannot override the 1800 Act of Union, the Protocol will be declared unlawful and, under international law, our government would be entitled to ditch it. The Protocol would be dead. The EU says that to drop the Protocol would be illegal in International Law. However, the Vienna Convention on Treaties states that a State cannot lawfully enter into a treaty which contradicts one of its own fundamental laws - the 1800 Act of Union is a fundamental law. Thus the death of the Protocol will be in line with International Law.
The Judicial Review would automatically succeed if the Government failed to contest it on 30th November 2022. The protocol would fall, with positive results:
- The UK would be restored as a truly united and independent nation state.
- This would not contravene international law.
- There’d be no lengthy, contentious, time consuming legislation.
- The Northern Irish Parliament would re-open.
- The EU/UK border would be that with the Republic of Ireland.
- The EU would need to decide how hard that border would be; the UK could continue its current very open policy.
And, negatively:
- The Government would be found to have acted unlawfully: but this will fade
- The EU Commission might retaliate with financial and trade restrictions. These could cut both ways. EU countries will not want to make sacrifices themselves.
- The Irish Republic would be annoyed; but UK trade is vital for it
- The USA would be annoyed; but the UK is an important ally e.g. in NATO
The best Strategic choice for the long run is by a large margin the quick, clean death of the Protocol which brings permanent gain for the Government and the UK. These must far outweigh the prospect of a relatively short-lived period of opprobrium and some short term financial and trade disruption.
We trust that our Conservative and Unionist Government will not contest this Judicial Review on 30th November.
ACTION NOW!
If you have a Conservative MP email or post them copies of this paper, with your recommendation as a Member, that they urge the PM to let the JR go ahead unopposed.
MPs’ emails are formed: [email protected]
Their address is: Name of MP, Houses of Parliament, London SW1A 0AA
If you don’t have a Conservative MP email or post this paper and your recommendation that the JR be unopposed to the Attorney General at [email protected] or post to the Attorney General’s Office, 102 Petty France, London SW1H 9EA
Write to your local paper about this issue, and what the Government should do.
Get onto Twitter and other social media talking about this Opportunity and the need to take it
Write to the Chairman of the Conservative and Unionist Party with a copy of this paper saying you want the Government NOT to oppose the JR. The relevant address is 4 Matthew Parker Street London SW1H 9HQ or go to https://www.conservatives.com/contact and use the contact form there.
