Allister (James Hugh) et al’s Application AND In the matter of the Protocol NI
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 64 |
| Date | 30 June 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 64
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL11535
ICOS No: 2021/18686/01
Delivered: 30/06/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY JAMES HUGH ALLISTER,
BENYAMIN NAEEM HABIB, STEVE AIKEN, Rt Hon ARLENE ISOBEL FOSTER,
BARONESS CATHARINE HOEY OF LYLEHILL AND RATHLIN,
WILLIAM DAVID, The Rt Hon BARON TRIMBLE OF LISNAGARVEY
and
THE SECRETARY OF STATE FOR NORTHERN IRELAND
AND IN THE MATTER
OF THE PROTOCOL IN
IRELAND/NORTHERN IRELAND (DEMOCRATIC CONSENT PROCESS)
EU EXIT REGULATIONS 2020
AND IN THE MATTER OF THE PROTOCOL IN
IRELAND/NORTHERN IRELAND TO THE AGREEMENT ON THE
WITHDRAWAL OF THE UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND FROM THE EUROPEAN UNION AND THE
EUROPEAN ATOMIC ENERGY COMMISSION
___________
Mr John Larkin QC with Ms Denise Kiley (instructed by Nelson-Singleton Solicitors) for
the Applicants
Dr Tony McGleenan QC with Mr Philip McAteer (instructed by the Crown Solicitor’s
Office) for the Respondent
___________
AND IN THE MATTER OF AN APPLICATION BY CLIFFORD PEEPLES
FOR JUDICIAL REVIEW
AND
(1) THE PRIME MINISTER
(2) THE SECRETARY OF STATE FOR NORTHERN IRELAND
(3) CHANCELLOR OF THE DUCHY OF LANCASTER
2
___________
Mr Ronan Lavery QC with Mr Conan Fegan (instructed by McIvor Farrell Solicitors) for
the applicant
Dr Tony McGleenan QC with Mr Philip McAteer (instructed by the Crown Solicitor’s
Office) for the Respondents
___________
COLTON J
Introduction
[1] The context in which these proceedings arise is complex and contentious,
both legally and politically. The European Union (“EU”) traces its origins to the
European Coal and Steel Community (“ECSC”) and the European Economic
Community (“EEC”) established, respectively, by the 1951 Treaty of Paris and the
1957 Treaty of Rome. It was set up with the aim of ending the frequent and bloody
wars between neighbours, which culminated in the Second World War. It sought to
unite European countries economically and politically in order to secure lasting
peace. On 1 January 1973 the United Kingdom (“UK”) became a member of the EEC
in accordance with the European Communities Act 1972. The Republic of Ireland
joined at the same time. In the decades that followed, the EEC expanded and
developed, eventually becoming the European Union, a political and economic
union of 28 countries.
[2] In December 2015, the UK Parliament passed the European Union
Referendum Act. The ensuing referendum on 23 June 2016 produced a majority in
favour of leaving the EU, by a margin of 52% to 48%, although in Northern Ireland
the majority voted in favour of remaining by a margin of 55.8% to 44.2%. The
following day Prime Minister David Cameron resigned. Theresa May was elected
Conservative Party leader and became Prime Minister in July 2016.
[3] Article 50 of the Treaty of the European Union (TEU) provides the mechanism
for a state to leave the Union. Sub-paragraph (1) provides that any member state
may decide to withdraw from the Union in accordance with its own constitutional
requirement.
[4] Sub-paragraph (2) provides that a member state is to notify the European
Council of its intention. On receipt of notification the Union must negotiate and
conclude an agreement with that member state.
[5] On 29 March 2017 Prime Minister May gave notification under Article 50 after
Parliament passed the European Union (Notification of Withdrawal) Act 2017.
[6] A General Election was held on 8 June 2017 after Parliament was dissolved on
3 May 2017. Prime Minister May lost her majority in the House of Commons but
3
was able to form a government pursuant to a “confidence and supply” agreement
with the Democratic Unionist Party of Northern Ireland.
[7] The European Union (Withdrawal) Act 2018 (“the 2018 Act”) came into force
on 26 June 2018. The key provision was section 1 which expressly repealed the
European Communities Act 1972. Section 13 established the regime for
Parliamentary Approval of the outcome of negotiations with the EU. Crucially,
section 13 required Parliamentary Approval of any Withdrawal Agreement reached
by the government. As per Lady Hale’s summary in R(On the Application of
Miller) v Prime Minister, Cherry and others v Advocate General for Scotland
(Miller No.2) [2019] UKSC 41, section 13 provides:
“That a Withdrawal Agreement may only be ratified if:
(a) The Minister of the Crown has laid before Parliament a
statement that political agreement has been reached, a
copy of the negotiated Withdrawal Agreement and a copy
of the Framework for the future relations;
(b) The House of Commons has approved the Withdrawal
Agreement and future framework;
(c) The House of Lords has, in effect, taken note of them both;
and
(d) An Act of Parliament has been passed which contains
provision for the implementation of the Withdrawal
Agreement.”
[8] On 26 June 2017 formal negotiations on the terms of withdrawal began
between the UK and EU. A Withdrawal Agreement was concluded on 25 November
2018. That Agreement included a Northern Ireland Protocol which envisaged the
UK remaining in the Customs Union thereby preventing the need for customs
checks on the border between Northern Ireland and the Republic of Ireland, which
would become a land border between the UK and the European Union after
withdrawal. This arrangement became known as the “Backstop” and was opposed
by the Democratic Unionist Party with whom the Prime Minister had entered into
the “confidence and supply” agreement.
[9] The Agreement was rejected three times by the House of Commons, on
15 January 2019, on 12 March 2019 and on 29 March 2019.
[10] Prime Minister May resigned as leader of the Conservative Party on 7 June
2019 and stood down as Prime Minister on 24 July when she was replaced by
Mr Boris Johnson who the Conservative Party has chosen as its leader.
To continue reading
Request your trial
5 cases
-
James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Baroness Catharine Hoey of Lylehill and Rathlin and William David, The Rt Hon. Baron Trimble of Lisnagarvey and Secretary of State for Nothern Ireland and Clifford Peeples and (1) The Prime Minister (2) Secretary of State for Northern Ireland (3) Chancellor of The Duchy of Lancaster
...respondents”). Both sets of proceedings were heard together and came before Colton J who, on 30 June 2021, dismissed both applications: [2021] NIQB 64. The first and second appellants appealed to the Court of Appeal which, on 14 March 2022, dismissed both appeals: [2022] NICA 15. Keegan LC......
-
Spuc (Society for the Protection of Unborn Children) Pro–Life LTD's Application and The Secretary of State for Northern Ireland and Northern Ireland Human Rights Commission, Equality Commission for Northern Ireland and Rosaleen McElhinney Intervening and Spuc Pro – Life LTD Application for Judicial Review and The Minister of Health for Northern Ireland
...the legal sovereignty of Parliament remains central to the UK constitution. As this court said in its judgment in Allister and others [2021] NIQB 64: “[208] In UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, [2019] AC 1022 the court considered a Bill......
-
Chuinneagain (Caoimhe Ni) Application for leave to apply for Judicial Review and in the matter of the British Nationality Act 1981
...[25] The above analysis is entirely consistent with that set out in the judgment of Colton J in Re Allister and Others’ Application [2021] NIQB 64, at paragraph [319]. Although the applicant challenges the correctness of this finding, I would only decline to follow it if persuaded that it w......
-
James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Baroness Catharine Hoey of Lylehill and Rathlin and William David, The Rt Hon. Baron Trimble of Lisnagarvey and Secretary of State for Nothern Ireland and Clifford Peeples and (1) The Prime Minister (2) Secretary of State for Northern Ireland (3) Chancellor of The Duchy of Lancaster
...respondents”). Both sets of proceedings were heard together and came before Colton J who, on 30 June 2021, dismissed both applications: [2021] NIQB 64. The first and second appellants appealed to the Court of Appeal which, on 14 March 2022, dismissed both appeals: [2022] NICA 15. Keegan LC......
Request a trial to view additional results