The judgment of the UK Supreme Court , in re Allister, delivered on 8 February 2023 (UK Supreme Court, case 2022/0093) by Lord Stephens, with the four other judges concurring, upheld the judgment delivered in March 2022 of the Northern Ireland Court of Appeal in re Allister and, among other things, held that the Withdrawal Agreement and its Protocol is legal, binding and not unconstitutional.

It pointed out at paragraph 66 that: “The most fundamental rule of UK constitutional law is that parliament, or more precisely the Crown in parliament, is sovereign and that legislation enacted by parliament is supreme.”

The Northern Ireland Court of Appeal had decided that the Withdrawal Agreement, as transposed into UK domestic law, “… prevails over any previous historic UK primary constitutional legislation, especially the Act of Union 1800.”

Equal footing

Article VI of the act of 1800 guarantees that all subjects in the UK in trade matters would be on an equal footing. The Withdrawal Agreement and Protocol subjugated that guarantee for those in the Northern Ireland part of the UK, whereby a sea border was created, thereby imposing unequal trading terms, such as checks and tariffs within its internal market for the duration of the Protocol to 31 December 2024 or its possible lifespan extension for a further four to eight years by the democratic consent process, as provided by section 18(1) of the Protocol.

The Supreme Court (at paragraphs 93-95) stated: “The length of the subsequent period depends on whether the decision reached in a given period was on the basis of a majority of members of the Northern Ireland Assembly, present and voting, or on whether the decision reached in any given period had cross-community support.”

Article 18(6) defines ‘cross-community support’ as being: “(a) a majority of those members of the Legislative Assembly present and voting, including a majority of the Unionist and Nationalist designations present and voting; or (b) a weighted majority (60%) of members of the Legislative Assembly present and voting, including at least 40% of each of the Nationalist and Unionist designations present and voting.”

The Supreme Court judgment (at paragraph 33) reminded us that: “On 23 June 2016, a referendum was held in the UK and Gibraltar on whether the UK should remain a member of the EU (pursuant to the European Union Referendum Act 2015). More than 33.5 million people, some 72% of registered voters, voted in the referendum and 52% of those who voted, voted to leave the EU.”

Breach-of-duty remedy

Article 260 (1) of the Treaty on the Functioning of the European Union requires a member state to implement steps to remedy any breach by it of its duties under the EU treaties or to face proceedings by the commission (or by any other member state, per article 259) that the CJEU impose a lump-sum fine or penalty.

A breach includes failure to take such implementing steps following a determination of a breach by the CJEU or, disorderly delayed implementation of such duties, or the taking of unilateral measures.

In his Opinion, delivered on 8 December 2022, Advocate General Anthony Collins sets out how such fines are to be quantified by the CJEU for the purpose of its forthcoming decision on how much the UK is to be fined for its delay in taking steps to rectify its breach (already earlier determined by the CJEU) of a specific EU regulation on the use of fuels for pleasure crafts.

This will be a useful guide for the apparent multiple breaches by the UK yet to be determined, including non-fulfilment of its agreed duties under the Withdrawal Agreement and Northern Ireland Protocol, and its unilateral measures, without prior consultation with, and consent of the EU, such as the Northern Ireland Protocol Bill (now languishing in the House of Lords and facing some 92 amendments), the Retained EU Law Bill to scrap around 1,400 laws of EU origin, and the Elections Act – to name some of the more obvious ones.

These matters are the subject of my second article for the March 2023 issue of the Gazette (see: ‘We shall fight them on the breaches’), following on from my first article on Brexit (see: ‘Protocoligorically correct’, Aug/Sept 2022, p24).

Windsor Framework

The Windsor Framework, as announced on 27 February 2023 in a press release by Prime Minister Rishi Sunak (pictured, left), and agreed by him with EU Commission President Ursula von der Leyen (pictured, right) states, among other things:

“The new Stormont Brake means the democratically elected Northern Ireland Assembly can oppose new EU goods rules that would have significant and lasting effects on everyday lives in Northern Ireland. They will do so on the same basis as the ‘petition-of-concern’ mechanism in the Belfast (Good Friday) Agreement, needing the support of 30 members from at least two parties. The ‘Stormont Brake’ has been introduced by fundamentally rewriting the treaty and goes significantly further than the ‘all-or-nothing vote’ under the old Protocol every four years at most.

Putting on the brakes

“The agreement rewrites the treaty text with a new ‘Stormont Brake’ that means the UK can veto new EU goods laws if they are not supported by both communities in Northern Ireland:

• Over 1,700 of EU law have been removed, and with it ECJ interpretation and oversight in areas like VAT, medicines, and food safety – so the UK Government can decide and UK courts can interpret. The minimal set of EU rules – less than 3% – apply to preserve the privileged, unrestricted access for Northern Ireland businesses to the whole of the EU Single Market and avoid a hard border on the island of Ireland,
• To give businesses and individuals time to prepare, the implementation of the agreement will be phased in, with some of the new arrangements for goods, agri-food, pets and plant movements introduced later this year, and the remainder in 2024. In the meantime, the current temporary standstill arrangements will continue to apply,
• The UK Government will no longer proceed with the Northern Ireland Protocol Bill, as the UK and EU have come to a negotiated agreement. Similarly, the agreement will mean the EU withdrawing all of the legal actions it has launched against the UK.”

The ‘Stormont Brake’ can only be invoked if there is an assembly and, even then, only in “exceptional” circumstances – and provided it is requested by 30 MLAs from “both” sides of the community “from at least two parties”.

The ‘Stormont Brake’ trigger is not yet cocked and needs to be kept unbroken, not unilaterally implemented, until its legal conditions are clarified. It is part of the ‘framework’. Does it constitute a binding agreement? Must it be first ratified by all parties? It is presented as being conditional on there being a convened assembly, proof that the contested new EU laws “would have significant and lasting effects on everyday lives in Northern Ireland”, that “exceptional” grounds for it exist, and that 30 MLAs from “both” Northern Ireland communities object.

If the framework is ratified by its parties, its provisions are to be “phased in … this year and the remainder in 2024”, according to Mr Sunak’s press release of 27 February 2023.

Duncan Grehan is a solicitor and member of the Law Society’s EU and International Affairs Committee