In our democracy recourse to the law exists to afford protection of its citizens (and the Belfast Agreement)

Jamie Bryson is editor of UnionistVoice.com and head of law and public policy research within Unionist Voice Policy Studies. Here he takes on Brian Walker’s assertion that he’s agitating but trying to protect the consent principle in the GFA.

In a recent article on Slugger, Brian Walker referred to me- in the context of the legal case brought against DAERA regarding the implementation of the Protocol- as an “agitator” and informed readers I had “incited” Edwin Poots.

In the first instance, I am hardly an “agitator” for bringing a perfectly legitimate legal case, the strength of which is demonstrated by the almost immediate concession by a Ministerial Department of the Northern Ireland Executive.

If requiring a government department to adhere to their responsibility is held to be simple “agitation”, then we live in a very strange place in Northern Ireland.

I search in vain for Mr Walker’s (or indeed Slugger’s) denunciation of Sinn Fein activist Sean Napier’s legal case in relation to North-South obligations, or for the descriptor of “agitator” being attached to that applicant in Judicial Review proceedings.

It appears that when it comes to using the law to advance political objectives, it is law for me, but not for thee in the minds of many nationalist commentators. In similar terms, I find the idea I’ve “incited” Minister Poots is rather strange.

The only encouragement provided to Minister Poots (by virtue of my legal action) has been to uphold the law, protect the Belfast Agreement and its subsequent arrangements in all its parts, and discharge international obligations?

Let me, as a counter-balance to the assertions advanced in Mr Walker’s piece set out succinctly precisely what my agitating legal action seeks to incite Minister Poots to do.

The requirements of s28A (5) of the Northern Ireland Act 1998 (‘the 1998 Act’) and associated 2.4 (v) of the Ministerial Code require, as a matter of law, that the continued and ongoing implementation of the Protocol obtains Executive approval.

It is beyond any objective dispute that the Protocol implementation reaches the rather modest threshold of “significant and controversial”. If you don’t believe me, then perhaps Mr Justice Scoffield is a better source; he describes the Protocol as a matter of “significant political contention”. (see paragraph 24)

Then the application of s28A (10) of the 1998 Act consequently follows; a Minister is deprived of power to act in relation to a significant of controversial matter in the absence of Ministerial authority. As a matter of logic (and law), there is therefore no authority to continue with checks.

I have neither heard nor read any cogent response to this proposition. There has been some misguided commentary on international obligations. Those relying on international obligations fail to appreciate that such obligations point in favour of Minister Poots, rather than against him.

The Protocol flows into domestic law via the European Union (Withdrawal) Act 2018 (‘the 2018 Act’). That is how the international obligations are transposed into domestic law.

Problematically for opponents of the legal challenge, the Protocol itself requires protecting “the Belfast Agreement, its implementation agreements and arrangements in all its parts.

In addition, s10A (1) of the 2018 Act requires that implementation of the Withdrawal Agreement must be in a manner “compliant with the terms of the Northern Ireland Act 1998”.

Accordingly, the international obligations are in fact to adhere to s28A of the 1998 Act, not to subvert it.

It follows that unionism is acting in accordance with the law, discharging obligations, protecting the Belfast Agreement “in all its parts” and faithfully adhering to the constitutional arrangements in the 1998 Act.

I am surprised the usual guardians of the Belfast Agreement aren’t welcoming the protection of its core terms.

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