Judicial Review of Irish Backstop

by Belfast Agreement Defence Group

Judicial Review of Irish Backstop

by Belfast Agreement Defence Group
Belfast Agreement Defence Group
Case Owner
We are a group of concerned individuals from Ireland, Northern Ireland and Great Britain. The lead claimant is David Trimble, former First Minister of Northern Ireland and Nobel Prize winner.
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Belfast Agreement Defence Group
Case Owner
We are a group of concerned individuals from Ireland, Northern Ireland and Great Britain. The lead claimant is David Trimble, former First Minister of Northern Ireland and Nobel Prize winner.
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Latest: July 25, 2019

'The backstop would wreck the Good Friday Agreement' - Lord Trimble

As the backstop returns to the top of the political agenda, in a new paper for Policy Exchange published on 22 July 2019 the Nobel peace prize laureate Lord Trimble warns that its existence risks d...

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A BREXIT BACKSTOP JUDICIAL REVIEW 

Who we are

Lord Trimble won the Nobel Peace Prize for his role in the negotiations that led to the Belfast 'Good Friday' Agreement.  He has come together with fellow concerned individuals Jeffrey Dudgeon and Ruth Dudley Edwards who wish to see the UK leave the EU with a withdrawal agreement that delivers certainty and stability, and also respects the Good Friday Agreement.

The case

We are seeking a judicial review of the backstop in the withdrawal agreement that the prime minister agreed in November but was rejected by Parliament in January, to make the government use the proper channels under the Good Friday Agreement to reach solutions with Ireland and the EU.

The case is the only show in town that is seeking a pathway to Brexit and a Withdrawal Agreement.  

It provides a route to a negotiated exit, meeting the democratic mandate of the vote to leave the EU and the commitments of the UK government it addresses the concerns of businesses and communities on both side of the Irish border. It would also respect and make use of the Belfast agreement in the way that it was intended, to support the totality of the relationships within the United Kingdom and Ireland.

We need £20,000 for the legal fees for the first stage of the challenge.  Please support us by donating, and sharing with friends whatever their political persuasion as we seek a constructive, bipartisan solution.  All funds will go to the legal team working on the case.

Background

The UK is set to leave the EU on 29 March 2019. As it stands at present, unless the EU agrees to re-open the Withdrawal Agreement reached by the prime minister in November to amend the Irish backstop protocol, Parliament seems unlikely to ratify it, raising the real possibility that there will be no deal.

On 29 January Parliament passed the so-called 'Brady Amendment' which accepted the terms of the Withdrawal Agreement subject to replacing the backstop with alternative arrangements.

We have put together a legal challenge to the government, for the administrative court in London that would compel it to respect the Belfast 'Good Friday' Agreement in achieving such alternative arrangements.  We need to move quickly in the window created by the passing of the Brady amendment for progress to be made before 29 March.  It is supported by Lord Trimble, who was awarded the Nobel Peace Prize for his work on the peace process in Northern Ireland.

The case is based upon six propositions:

  • one, the political consensus on ‘no hard border’ within Northern Ireland, Ireland and the United Kingdom;
  • two, the Belfast agreement could, and should, be used to achieve this, through the British-Irish intergovernmental conference, an east-west institution (bilateralism);
  • three, the attorney general has confirmed that, under the Withdrawal Agreement, Northern Ireland will be treated differently from Great Britain, remaining in the customs union and the single market for goods and horizontal measures – this to ‘endure indefinitely’;
  • four, the Republic of Ireland, as a voting member state of the EU, would be exercising governmental functions in Northern Ireland, contrary to the consent principle of the Belfast agreement;
  • five, the UK/EU negotiations of 2017-18 have reached an impasse, though the Republic of Ireland permitted the EU to use the Good Friday agreement, incorrectly, to justify the backstop);
  • six, the 432 votes against ratification of the Withdrawal Agreement by the UK Parliament on 15 January 2019, have now become the 317 votes to 301, endorsing the Withdrawal Agreement subject to ‘alternative arrangements’ to replace the backstop.

Alternative arrangements have been put forward in various proposals describing technical and legal solutions. The case is intended to persuade the UK government – either by concession or order – to seek to begin immediately a work programme with the Irish government on no hard border.

The work programme and the removal of the backstop in its current form might preserve the other elements of the agreement by 29 March. Work could then continue through the implementation period to 31 December 2020.

The UK would be out of the EU. The financial settlement would be preserved. The rights of citizens would be safeguarded. The future relations negotiations could begin. An agreed Irish border is practicable, in the right political circumstances.


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Update 6

Belfast Agreement Defence Group

July 25, 2019

'The backstop would wreck the Good Friday Agreement' - Lord Trimble

As the backstop returns to the top of the political agenda, in a new paper for Policy Exchange published on 22 July 2019 the Nobel peace prize laureate Lord Trimble warns that its existence risks destroying the Good Friday Agreement.

New PM Boris Johnson is insisting that the Northern Ireland backstop is effectively “dead” in its current form whist Ursula von der Leyen, the new President of the European Commission, is committed to defending it. This brings the backstop right to the forefront of Brexit negotiations once again.

In his paper, Trimble warns that the backstop would inflict serious damage on, and could destroy the basis of, the Good Friday Agreement. It goes against the two pillars of the peace accord: “consent” and “agreement” by changing the status of Northern Ireland and the basis of North-South co-operation by diktat. Such changes cannot occur without consent and that consent has been neither asked for nor given. The absence of ‘consent’ and ‘agreement’ ensured the failure of previous attempts to bring peace and stability in 1973, 1985 and 1995: these lessons have been forgotten or discarded by those negotiating the backstop and are at the root of the crisis surrounding it.

Given that the EU27 justifies the backstop by claiming that it protects the Good Friday Agreement in all its parts, this raises fundamental questions about the standing of the backstop — questions that the next Prime Minister will need to answer before he goes into his first talks on Brexit this summer.

https://policyexchange.org.uk/publication/the-backstop-would-wreck-the-good-friday-agreement/

Update 5

Belfast Agreement Defence Group

March 28, 2019

Where we are with the Judicial Review of the Irish Backstop

Apologies for the delay in updating our supporters, but, like most other people caught up in the Brexit imbroglio, we have found our circumstances changing from day to day.

As we reported earlier, having been definitively advised that as things stood our case was not justiciable and could not be until after the signing of a Withdrawal Agreement, we opted for now to go down the political path. Because of the generosity of our supporters, for which we are most grateful, we were able to commission legal opinions. You will know that lawyers, particularly good ones, do not come cheap, but we felt the money well spent on giving our argument considerable heft. We will publish our accounts on this page very soon.

Paul Bew and David Trimble have spent great deal of time in the last few weeks making our case to Attorney-General Geoffrey Cox, the other members of the government’s negotiating team, senior members of the government, and many other key players, including senior members of the DUP and the ERG. As you may have seen from some of the updates we posted, we have successfully challenged the received view that the backstop was necessary to uphold the Belfast/Good Friday Agreement, and have brought home to MPs, to negotiators here and in Brussels and Dublin and to influential journalists that, on the contrary, it potentially undermines and threatens it.

At this point in time, no one knows whether parliament may choose an alternative option/s to the Withdrawal Agreement next week or if there will be a third vote on the Withdrawal Agreement at all. However, if the Withdrawal Agreement is voted on and passed then there will be much work to be done to achieve the replacement of the Protocol. It would need to be replaced with arrangements that are within or closely aligned with, and non-contradictory of, the text and spirit of the Belfast Agreement. A constructive contribution to that can be made by the Belfast Agreement Defence Group. We are keeping the possibility of legal action on the table and working to ensure it is ready when justiciable, viable and politically appropriate.

In the meantime, we are maintaining this CrowdJustice page, though for the moment we have ceased actively to raise funds and will be spending nothing beyond what is strictly necessary; this page is our means of maintaining contact with you, our supporters, and being accountable to you. Its continued existence is also proof of our readiness to seek a judicial review and commitment to that course of action if viable and constructive. Updates on our work will continue to be made on this page and we can be contacted through it.

Thank you again for your financial and moral support.

Paul Bew, Roderick Crawford, Ruth Dudley Edwards, David Trimble.

Update 4

Belfast Agreement Defence Group

March 27, 2019

The Government’s Position on the Belfast Agreement and the Backstop has moved.

Lords Bew and Trimble published a paper with Policy Exchange on Monday 18 March 2019 setting out the significant shift in the UK government’s position on the Belfast Agreement in recent weeks.  Here are some extracts, and a link to the original piece at the bottom of the excerpts.

    ‘While the Withdrawal Agreement itself has not changed, the potential practical functioning and probable duration of any future backstop has been significantly changed in the course of recent negotiations.’

    ‘....most importantly, the UK Government has stepped away from the view of the role of the Good Friday Agreement that it had passively accepted from the EU/Irish negotiators. It has returned to the rather more obvious and correct view that the Agreement – the clue is in the word ‘agreement’ – is the possession of both communities in Northern Ireland: Unionist as well as Nationalist. This has opened up the possibility of a deal with the DUP.’

    ‘The UK Government is increasingly probing the implications of its commitment to this prior agreement of 1998. It is right to do so. As Ireland’s most renowned public economist, Dan O’Brien, said in the Sunday Independent on 10 March 2019, ‘It is quite clear that Dublin and Brussels did not think through the constitutional dimension of the backstop when they dramatically put it on the table sixteen months ago’. All too slowly but getting there in the end, the Government has come to see that the democratic consent of the people of Northern Ireland for any new arrangements imposed by the EU is a crucial issue. That is why the Attorney General has been discussing in Brussels the Mathews/Gibraltar ECHR case of 1999 which raised the same issue in a different context.’

    ‘The new text of March 2019 declaration states that “the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol.” There is one proviso here and that is that the UK will continue to uphold its obligations under the 1998 Good Friday Agreement to avoid a hard border between the two parts of Ireland. We can assume that the EU accepts this language because it briefed that it would not accept anything in this March statement that it could not live with. But in doing so it has de facto accepted a radically new British proposition: that the protection of the Good Friday Agreement may be entirely independent from the functioning of the Irish backstop.’

   ‘What is new here is the way in which the UK sees it is possible to uphold the Good Friday Agreement whilst dis-applying obligations under the Northern Ireland and Ireland Protocol, contained in the Withdrawal Agreement. In December last year, the UK Government insisted that the Protocol was necessary to uphold the Good Friday Agreement. In January it insisted that there was no contradiction between the Good Friday Agreement and the Protocol. In March, with the EU’s tacit acceptance, we now say there can be such a contradiction and that the UK will be justified in taking unilateral steps to deal with such an issue.’ https://policyexchange.org.uk/publication/the-irish-backstop-nothing-has-changed-it-has-actually/ 


Update 3

Belfast Agreement Defence Group

March 13, 2019

Making an Impact

Saturday’s Daily Telegraph (9 May 2019), reporting on Geoffrey Cox’s negotiations earlier in the week, mentioned that Cox had ‘referenced the recent legal challenge by Lord Trimble’ in his talks in Brussels. 

ConHome ran a story on Monday 11 March 2019 on Cox’s negotiations, pointing out that ‘Cox, the expert lawyer charged by the Prime Minister with finding a solution to the backstop, has ended up taking a very different view of its [the backstop’s] compatibility with the Belfast Agreement to the official line laid down by Downing Street.

‘By taking a different tack, which is to say acting like a lawyer, Cox is finally offering the sort of sceptical, expert scrutiny of the backstop that London ought to have been offering from the start. This is to be welcomed, because a detailed push-back against Dublin’s ‘maximalist’ interpretation of the UK’s obligations is the Attorney General’s best bet of securing the sort of changes Brexiteer MPs need to back the Withdrawal Agreement.’

https://www.conservativehome.com/thetorydiary/2019/03/cox-is-out-of-line-with-downing-street-on-the-backstop.html

These articles show that the arguments we advanced in the legal challenge and have since taken to the negotiators have been taken on board on the UK side and are being used in the negotiations, but that there is much more work still to be done if they are to make the impact they deserve.

Last week, BBC NI picked up our last page update: https://www.bbc.co.uk/news/uk-northern-ireland-47491914




Update 2

Belfast Agreement Defence Group

March 6, 2019

Government reply to our Letter Before Claim and our response

The government replied to our letter before claim on Friday 19 February 2019. They set out two reasons why they maintain our claim is not justiciable at present. Firstly, because treaty-making powers are non-justiciable until they are legislated into domestic law and that therefore no action can be taken at this stage. Secondly, because there is no decision that can be reviewed as yet as no final decision has been taken. They make no defence upon the grounds of our claim.

In response we have undertaken two courses of action. First, we have commissioned QCs’ opinions on the defence that they have presented. The last of these arrived on Thursday 28 February 2019. There is broad agreement from counsel that the case cannot be heard in a court of law at this stage. We have asked for opinions as to when that situation might change and are awaiting responses to that question from counsel.

As they made no response to the substantive legal basis of the potential judicial review, we have commissioned a set of additional opinions to test and develop the grounds for our claim as part of our case preparation.

Because we cannot utilise legal argument in court at present, we are using these legal opinions to inform and equip the UK government in its new policy, following the Brady amendment, of negotiations negotiating with the EU to seek alterations to the Backstop.

We are also using these opinions to inform parliamentary opinion in the run up to MPs voting again on the Withdrawal Agreement and on whether to request an extension to the Article 50 negotiation or leave with no deal.

The legal question is now at the heart of the negotiations and we are well equipped as a result of our case preparation and with these new opinions to make an effective contribution to the negotiations and the opinion of parliament. 

We are alert to the potential for a judicial review in the future if the final agreement reached between the UK and the EU fails to uphold the Belfast Agreement.



Update 1

Belfast Agreement Defence Group

Feb. 13, 2019

Letter Before Claim Issued

On 8 February, our letter before claim was sent to the Government's lawyers.  it outlined the factual and legal points that the claim is based on, and requested a response from Government by 22 February.  The legal remedies being sought include the initiation of a British-Irish intergovernmental conference to discuss alternative arrangements to those set out in the current backstop.  The letter also stressed the claimants' hope that the British and Irish governments can work together to avoid a hard border, whatever the outcome of the Withdrawal Agreement negotiations.

Huge thanks to all of our backers for your support, we could not do this without you. The case is already bringing serious consideration of these issues to the fore, but the legal proceedings have a long way to go in a very short space of time, so please keep sharing this page and let people know how they can support the case.  

It has been reported here in the Irish Times https://www.irishtimes.com/news/ireland/irish-news/lord-trimble-formally-begins-legal-challenge-to-backstop-1.3791713

And you can read claimant Ruth Dudley Edwards giving her views in the Belfast Telegraph here https://www.belfasttelegraph.co.uk/opinion/news-analysis/ruth-dudley-edwards-lord-trimbles-challenge-will-hopefully-throw-a-legal-spanner-in-the-works-of-backstop-plan-37801149.html

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