James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Barroness 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 | Keegan LCJ |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] NICA 15 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2022] NICA 15
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE11726
ICOS No: 2021/18686/01
2021/015249/01
Delivered: 14/03/2022
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
(JUDICIAL REVIEW)
Between:
No. 21/18686/01
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
Appellants
and
SECRETARY OF STATE FOR NORTHERN IRELAND
Respondent
___________
No. 21/015249/01
Between:
CLIFFORD PEEPLES
Appellant
and
(1) THE PRIME MINISTER
(2) SECRETARY OF STATE FOR NORTHERN IRELAND
(3) CHANCELLOR OF THE DUCHY OF LANCASTER
Respondents
___________
Mr John Larkin QC and Ms Denise Kiley (instructed by Nelson Singleton Solicitors) for
James Allister and others
Mr Ronan Lavery QC and Mr Conan Fegan (instructed by McIvor Farrell Solicitors) for
Clifford Peeples
Mr Tony McGleenan QC with Mr Philip McAteer (instructed by the Crown Solicitor’s
Office) for the Respondents
___________
Before: Keegan LCJ, Treacy LJ and McCloskey LJ
___________
2
Glossary of terms used in this judgment
CFR Charter of Fundamental Rights of the European Union
CJEU Court of Justice of the European Union
CTA Common Travel Area
ECA 1972 European Communities Act 1972
EUWA 2018 European Union (Withdrawal) Act 2018
EU European Union
GB Great Britain
JC Withdrawal Agreement Joint Committee
JCWG Joint Consultative Working Group
NI Northern Ireland
NIA 1998 The Northern Ireland Act 1998
SOSNI The Secretary of State for Northern Ireland
TCA Trade and Co-operation Agreement
TFEU Treaty on the Functioning of the European Union
The Protocol The Ireland – Northern Ireland Protocol to the
Withdrawal Agreement
The Joint Declaration The UK Government’s Political Declaration setting out
the framework for the future relationship between the
EU and the UK, dated 19 October 2019
The Unilateral Declaration The “Declaration by Her Majesty’s Government of the
United Kingdom of Great Britain and Northern Ireland
concerning the operation of the ‘Democratic Consent
in Northern Ireland’ provision of the Protocol on
Ireland/Northern Ireland”, dated 19 October 2019.
The 1998 Agreement The Belfast/Good Friday Agreement
UK The United Kingdom of Great Britain and
Northern Ireland
WA Withdrawal Agreement
___________
KEEGAN LCJ (with whom Treacy LJ agrees)
Introduction
[1] These two cases have been heard together and remain conjoined on appeal.
The first appellants are the six named persons in the title hereof who are referred to
as “the Allister group.” The second appellant is Mr Clifford Peeples who is the sole
challenging party in the second judicial review application.
3
[2] Both appeals are from the decision of Mr Justice Colton (“the trial judge”)
delivered on 30 June 2021 wherein he dismissed the respective applications for
judicial review. The Notices of Appeal are dated 6 July 2021 and 9 July 2021. In
addition, a respondents’ notice dated 23 September 2021 raises a cross appeal.
[3] The substance of both appeals coincides in large measure and can therefore be
captured in the following core heads of challenge:
(i) Incompatibility of the Protocol and the 2020 Regulations with Article VI of the
Act of Union 1800.
(ii) Incompatibility of the Protocol with section 1(1) of the Northern Ireland Act
1998.
(iii) Unlawful elimination of the constitutional safeguard enshrined in section 42
(iv) Breach of article 3 of Protocol 1 of the European Convention on Human
Rights and article 14 of the European Convention on Human Rights.
(v) Legal invalidity of the Protocol being in conflict with Articles 10 and 50 of the
Treaty of the European Union.
[4] The respondents’ cross-appeal has three elements, namely:
(i) The court erred in finding that citizens of Northern Ireland are not on an
equal footing in relation to trade with those in Great Britain (para [62] of the
first instance judgment).
(ii) Insofar as it did so, the court erred in law in categorising each relevant
enactment as being a “constitutional” or “ordinary” statute and/or in
concluding that statutes categorised as constitutional statutes have a
hierarchical status that displaces the usual rules of construction.
(iii) The court erred in law in not dismissing the appellant’s application on the
basis that the negotiation and agreement of the Withdrawal Agreement is
non-justiciable or that any such challenge was out of time and in the absence
of an application to extend time, the court should not entertain such a
challenge.
[5] This case has proceeded on an expedited basis. This court paused the listing
initially to enquire as to the wider context of this case. The court did this as
inevitably when this appeal was first listed there were reports of further
consideration of the Protocol in the political sphere. Of course, those reports
continue and highlight the fact that this case arises in a highly political context and
that the situation is fluid. The court invited position papers on this issue and after
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...it is to be expected that practitioners will draw to the attention of the court the decision of this court in Re Allister’s Application [2022] NICA 15 at paras [567]–[600]. Disposal [42] For the reasons given: (i) The substantive appeal is dismissed, and the decision and order of Colton J a......