05 Gordon [73-90]

Introduction

• Overview of a controversial aspect of Brexit: the Ireland-Northern Ireland Protocol.

• Aims to protect the Belfast Agreement (1998).

The Belfast Agreement

• Established political stability post-conflict (1969-1998).

• Endorsed by referenda in Northern Ireland and Ireland (May 1998).

• Flexible notions of citizenship and identity facilitated cooperation.

• Brexit proposed an economic border between UK and EU;

  • Protocol established the border in the Irish Sea with efforts to avoid a hard border.

The Protocol

• Focus on consent principle from the Belfast Agreement.

• Consent principle acknowledges:

  • Northern Ireland's status as part of the UK.

  • Potential for a united Ireland upon majority wish.

• Critics claim the economic border undermines the consent principle and violates the Act of Union (1800).

• Northern Ireland Court of Appeal ruled the Protocol consistent with the consent principle.

Legal Framework and Structures

The Belfast Agreement Strands

• Strand One: Internal arrangements in Northern Ireland.

• Strand Two: North/South cooperation.

• Strand Three: East-West relations between Ireland and Britain.

The Protocol and Legal Hybridity

• Northern Ireland institutions must comply with both UK and EU law.

• UK Withdrawal Act 2018 incorporated the Protocol into UK law.

• Northern Ireland Assembly can modify retained EU law, except where restricted by the UK government.

• EU law has supremacy under the Protocol, affecting legal decisions in Northern Ireland.

Court Decisions Regarding the Protocol

• Analysis of Re Allister’s Application highlights:

  • Issue of conflict between constitutional statutes: Protocol (via Withdrawal Act) vs. Act of Union.

  • Importance of consent principle.

• Court maintained that parliamentary sovereignty is intact and the Protocol does not violate constitutional status.

Economic Implications

• Protocol addresses rights, safeguards, and equality per Belfast Agreement.

• Economic border implications analyzed; democratic consent required in 2024 regarding the Protocol.

Conclusion

• Protocol reflects ongoing constitutional engineering in Northern Ireland.

• Necessity for recognizing complexities of Northern Ireland's governance.

• Possible implications for future of Irish unification discussions.