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British court pronouncing on decision by British government = definitive judgement? January 27, 2017

Posted by WorldbyStorm in Uncategorized.

I really wish I felt that Newton Emerson in this piece here where he declares that the GFA/BA, and ‘the legal basis of peace’ is not ‘threatened’ because of the ruling of the UK Supreme Court was being humorous, but unfortunately I’m fairly sure he’s not.

I am certainly not as sure as he that potential breaches of the GFA/BA have been ‘comprehensively debunked’ as he suggests:

The plaintiffs claimed the constitutional status of Northern Ireland is being changed without the population’s permission, contrary to the consent principle underpinning the entire peace process.
They said the nine mentions of the EU in the agreement mean membership is “inextricably woven” into the law enacting it.
Not only should parliament have a vote, they argued, but Stormont and the other devolved executives should have a veto.

Emerson leans on the SC to suggest that:

The judge disagreed, finding that all mentions of the EU in the agreement are incidental, EU membership is not devolved so Stormont’s input is not required, and the consent principle applies specifically to leaving the UK.

But it seems illogical to argue that when the EU is directly mentioned in the text – and in a way that underpins (guarantees?) the GFA/BA, that the exit of one or other party to it from the EU doesn’t alter matters. It seems pretty fundamental – to be honest.

I’ve no particular issue with the UK Supreme Court, as such, but to hold that up as the ‘definitive’ arbiter, as he does at the conclusion of his piece, in this seems – at the least both premature and rather telling. There was another signatory to the GFA/BA, lest Emerson forget, and assuming the case goes before the Supreme Court in Dublin and differs why would that not be equally definitive? Indeed it is precisely because in all this there is no ‘definitive’ that the ambiguity that leads from that in relation to the GFA/BA is so potentially toxic.

And even Emerson must admit that:

No single party owns the agreement – especially not Sinn Féin, which abstained from the show of hands that passed it. If judging its demise cannot be left to judges alone, neither should it be left to Adams.

But is that not a clear contradiction of his own words further down the line…

Brexit is an act of appalling carelessness towards Ireland, and many people may sincerely perceive it to be hostile. But it does not breach one word of the Belfast Agreement and that is as definitive as such a judgement can ever be.

So the judges can’t judge this, nor should SF, but the judges can be definitive?

And there’s something about his introductory paragraph too:

Pro-Remain Northern Ireland has just had all its legal fears about Brexit put to rest. So why the strange lack of jubilation? There should at least be expressions of relief: “phew, the Belfast Agreement will not be breached in any way”, that sort of thing. Yet there is no sign of it. It is almost as if some people want there to be a problem.

Does he genuinely think that the GFA/BA alone comprises ‘all its legal fears about Brexit’ for those who think it an unbelievably bad idea?

Odd too reading this in the Guardian:

On Thursday afternoon, the Green party MP Caroline Lucas, backed by Labour’s Geraint Davies, said she would table an amendment to block the article 50 bill from any second reading.

“I urge Labour MPs to join me in voting against the premature triggering of article 50,” Lucas said. “Many of the things that progressive politicians hold dear are at risk. If we’re serious about opposing an extreme Brexit then we can’t just wave through article 50. Indeed the Labour party leadership should be giving MPs the chance to make their own principled choice on one of the most important decisions of the UK’s recent history.”

The amendment, which is also backed by Scottish National party and Social Democratic and Labour party MPs, says the article 50 bill should fail because it does not guarantee membership of the single market or customs union, the rights of EU citizens or environmental protection and “otherwise fails to adequately address the immense constitutional implications of withdrawal from the EU, including the future of the Good Friday agreement … fails to guarantee a ratification referendum on any withdrawal agreements negotiated with the other EU member states”.

Does Emerson think that those concerns are overstated? How is it that they’re not convinced by the supposedly ‘definitive’ judgement?


1. Aonrud ⚘ - January 27, 2017

Bit of a tangent, but is May still also moving towards leaving the ECHR? Presumably, that would be far more unambiguously problematic for the GFA.

From my layman’s reading of it, the references to the EU are at least arguably sufficiently couched in qualifiers like areas of co-operation “may” include, etc. The ECHR stuff looks a lot harder to argue with.


2. An Cathaoirleach - January 27, 2017

Newt’s analysis seems reasonably sound to me from a UK perspective. However there is a second (EU) view which must also be considered. To date, the EU has been extremely supportive of the agreement, matching language with substantial funding, without considering whether the GFA is in breach of the Treaty of Rome & subsequent treaties.

However once the UK is outside the EU, this may change. It could happen by an EU citizen resident in Ireland, unhappy with the superior rights being granted to non EU residents, purely because of where they were born or other of its provisions being referred to the Courts by the Commission.

As freedom of movement is the issue, which causes the UK the most problems, it is possible that the Courts may find that those provisions with the GFA inimical to EU law.

The move by Almac to set up an operation in Dundalk is a sign that businesses in UKNI are assuming no special status. Everything is up for review.


EWI - January 27, 2017

Newt’s analysis seems reasonably sound to me from a UK perspective.

Emerson may be convinced by a UK court deciding that the UK’s say-so is supreme over international treaties, but one cannot expect international courts to necessarily agree (especially as this is the legal system that has given us the ‘appalling vista’ line of reasoning in the past…).


3. Paddy Healy - January 27, 2017

British Supreme Court had already decided that NI EXECUTIVE NEED NOT EVEN BE CONSULTED ON TRIGGERING BREXIT!


4. dublinstreams - January 27, 2017

there that Irish crowdfunded case that is being taken by GReen party now, I presume corbyn is hoping it would win, so parliament could vote on Brexit agreement http://www.rte.ie/news/2017/0127/848153-brexit-court/


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