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
| Jurisdiction | Northern Ireland |
| Judge | Lord Stephens,Lord Reed,Lord Hodge,Lord Lloyd-Jones,Lord Sales |
| Judgment Date | 08 February 2023 |
| Neutral Citation | [2022] NICA 15,[2023] UKSC 5 |
| Court | Court of Appeal (Northern Ireland),Supreme Court |
| Date | 24 March 2022 |
Lord Reed, President
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Supreme Court
Hilary Term
On appeal from: [2022] NICA 15
Appellants (James Hugh Allister and others)
John Larkin KC
Denise Kiley
(Instructed by Nelson Singleton)
Appellant (Clifford Peeples)
Ronan Lavery KC
Conan Fegan BL
(Instructed by McIvor Farrell Solicitors)
Respondent
Tony McGleenan KC
Philip McAteer BL
(Instructed by Crown Solicitor's Office (Belfast))
Appellants:
(1) James Hugh Allister
(2) Benyamin Naeem Habib
(3) Steve Aiken
(4) The Rt Hon Arlene Isobel Foster
(5) Baroness Catharine Hoey of Lylehill and Rathlin
(6) William David, The Rt Hon Baron Trimble of Lisnagarvey
Heard on 30 November and 1 December 2022
Lord Stephens ( with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Sales agree):
The issues in these appeals relate to the lawfulness of the Protocol on Ireland/Northern Ireland (“the Protocol”). The Protocol formed part of the Withdrawal Agreement between the United Kingdom (“the UK”) and the European Union (“the EU”) under article 50(2) of the Treaty on European Union (“TEU”) as to the arrangements for the UK's withdrawal from the EU.
Judicial review proceedings challenging the lawfulness of the Protocol were commenced in March 2021 by James Hugh Allister, Benyamin Naeem Habib, Baroness Catharine Hoey of Lylehill and Rathlin, Steve Aiken, the Rt Hon Arlene Isobel Foster, and the Rt Hon Baron Trimble of Lisnagarvey (“the first appellants”) against the Secretary of State for Northern Ireland (“the respondent”). Earlier, in February 2021, Mr Clifford Peeples (“the second appellant”) had also commenced judicial review proceedings challenging the lawfulness of the Protocol. Those proceedings were brought against the Prime Minister, the Secretary of State for Northern Ireland, and the Chancellor of the Duchy of Lancaster (“the 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 LCJ, with whom Treacy LJ agreed, delivered the lead judgment and McCloskey LJ delivered a concurring judgment.
I will refer to the “first appellants” and “the second appellant” collectively as “the appellants.” I will also refer to “the respondent” and “the respondents” collectively as “the respondents.”
The appellants applied to the Court of Appeal pursuant to section 42(2) of the Judicature (Northern Ireland) Act 1978 for leave to appeal to the Supreme Court. On 25 April 2022, the Court of Appeal granted leave to appeal. However, the leave to appeal did not encompass all the issues argued before Colton J or before the Court of Appeal and was limited to three grounds.
To explain the three grounds of appeal, it is first necessary to set out in summary form the issues raised by the appellants before the lower courts and the conclusions of those courts in relation to each of those issues. At the end of a summary in relation to each ground, I will set out the ground of appeal in relation to which the Court of Appeal gave leave to appeal to this court.
Ground one relies on article VI in each of the Acts of Union 1800 (‘the Acts of Union’) which made provision for the Union of Great Britain and Ireland. Article VI of the Act of Union ( Ireland) Act 1800 was enacted by the Irish legislature. The identical article VI in the Union with Ireland Act 1800 was enacted by the Westminster legislature. For convenience, when I refer in this judgment to article VI, I am referring to article VI in the two Acts of Union. Article VI provides:
““… [His] Majesty's subjects of Great Britain and Ireland shall from and after [1 January 1801] be entitled to the same privileges and be on the same footing, as to encouragements and bounties on the like articles, being the growth, produce or manufacture of either country respectively, and generally in respect of trade and navigation in all ports and places in the United Kingdom and its dependencies; and that in all treaties made by [His] Majesty, his heirs, and successors, with any foreign power, [His] Majesty's subjects of Ireland shall have the same privileges and be on the same footing as [His] Majesty's subjects of Great Britain” (Emphasis added).
Article VI contains two distinct limbs. The first part of article VI up to the semi colon can, for convenience, be termed “the trade limb” and the second part of article VI after the semi colon can, for convenience, be termed “the treaty limb.”
In respect of the trade limb, the appellants contended that the Protocol has resulted in His Majesty's subjects of Great Britain and Northern Ireland not being on the “same footing” in respect of trade given, for instance, that the Protocol requires the payment of a tariff in respect of goods coming from Great Britain into Northern Ireland which are at risk of being moved to the EU. Colton J accepted that the Protocol conflicts with article VI of the Acts of Union in that the Protocol has resulted in His Majesty's subjects of Great Britain and Northern Ireland not being on the “same footing” in respect of trade. Colton J held at para 62 that:
“Although the final outworkings of the Protocol in relation to trade between GB and Northern Ireland are unclear and the subject matter of ongoing discussions it cannot be said that the two jurisdictions are on “ equal footing” in relation to trade. Compliance with certain EU standards; the bureaucracy and associated costs of complying with customs documentation and checks; the payment of tariffs for goods ‘at risk’ and the unfettered access enjoyed by Northern Ireland businesses to the EU internal market conflict with the “ equal footing” described in Article VI.”
The respondents contended that even if the Protocol conflicted with the right in the trade limb of article VI for His Majesty's subjects of Great Britain and Northern Ireland to be on the “same footing” in respect of trade, that the effect of section 7A of the European Union (Withdrawal) Act 2018 (“the 2018 Act”) suspended the effect of article VI for as long as the Protocol was in existence. The respondents argued that section 7A, which was inserted into the 2018 Act by section 5 of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”), made provision for the Withdrawal Agreement, which includes the Protocol, to be given effect in domestic law and for the disapplication of inconsistent or incompatible domestic legislation where it conflicts with the Withdrawal Agreement. Section 7A in so far as relevant provides:
“(1) Subsection (2) applies to—
(a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and
(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement, as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.
(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be—
(a) recognised and available in domestic law, and
(b) enforced, allowed and followed accordingly.
(3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2).”
Colton J found at para 114 that “section 7A of the 2018 Act [overrides] article VI of the Act of Union and insofar as there is any conflict between them section 7A is to be preferred and given legal effect.”
The Court of Appeal addressed the question as to whether the Protocol has resulted in His Majesty's subjects of Great Britain and Northern Ireland not being on the “same footing” in respect of trade. Keegan LCJ raised two queries in relation to Colton J's finding that the Protocol conflicts with article VI of the Acts of Union. First, she touched on the issue, at paras 176–179, as to what is meant now by His Majesty's subjects of Ireland given the major constitutional changes which have occurred after the Acts of Union by the partition of Ireland under the Government of Ireland Act 1920 and by the creation of the Irish Free State in 1922. In that respect, Keegan LCJ referred to the majority speech of Viscount Dilhorne in the Earl of Antrim and others [1967] 1 AC 691, 719E which stated that “[when] the Free State and Northern Ireland were created, Ireland as an entity ceased to be part of the United Kingdom. It necessarily follows that there was no territory called Ireland ….”. Second, Keegan LCJ also raised the issue at para 184 as to what was meant by “encouragements and bounties”, thus raising the question as to “whether disruption to trade caused by provisions to preserve the UK internal market throughout the UK and protect the EU single market offends the same footing [provision] which relates to ‘encouragements and bounties.’” Despite those queries, Keegan LCJ, at para 186, in agreement with Colton J, accepted that the Protocol had brought about “a difference in footing between the citizens of Northern Ireland and those in the remaining part of the United Kingdom in terms of trade” so that there was “some inconsistency” between the terms of article VI and the 2018 Act which incorporated the Protocol into domestic law. However, Keegan LCJ,...
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