Statement by TUV Leader Jim Allister KC MP:-
“On 10 December the NI Assembly is invited, on direction from the Secretary of State, to approve the application to Northern Ireland of Articles 5-10 of the Protocol (Windsor Framework) for another 4 or 8 years.
“The effect of an affirmative outcome is to keep Art 6 of the Acts of Union in suspension – the Supreme Court having held that these Protocol Articles, particularly Article 5, being incompatible with the free and unfettered inter-UK trade guaranteed by Art 6 of the Acts of Union, have the effect of putting the said Art 6 into suspension.
“Thus a vote by the Assembly to approve the motion is a vote to keep Art 6 in suspension and thereby continue to infringe the constitutional status of NI.
“When the Supreme Court awarded the Protocol over the Acts of Union we did not have Section 38(4)&(5) of the EU Withdrawal Act 2020.
These state as follows:-
https://www.legislation.gov.uk/ukpga/2020/1/section/38
“The purported effect of section 38(4)&(5) is to define the constitutional status’ of NI as inclusive of the Acts of Union. It follows, that if, as the Supreme Court has held the Protocol suspends a key provision of the Acts of Union, Article 6, then, it cannot in law be ‘without prejudice’ to the constitutional status of NI, as now required by law!
“Hence, the efficacy of the ‘democratic consent’ motion is thrown into doubt. How can the Assembly be invited to approve infringement of that now set forth in legislation, namely, Section 38 of the EUWA 2020?
“In our determination to have this key issue addressed Timothy Gaston has written to the NI Attorney General in the terms below, as I have to the UK Attorney General.
Dear Attorney General,
As an Assembly Member invited to participate in the upcoming ‘democratic consent’ vote, as indicated in Article 18 of the Protocol (Windsor Framework ), I write to draw your attention to and seek your opinion on the impact of Section 38 of the European Union (Withdrawal) Agreement Act 2020 upon the efficacy of the said vote.
Section 38, as amended, provides that the Windsor Framework is “without prejudice” to “the constitutional status of Northern Ireland” (see section 38 (4)(a)). The definition of constitutional status includes the Acts of Union 1800 (see section 38 (5)(a)(ii)).
It is clear that a vote to renew Articles 5-10 of the Windsor Framework would self-evidently continue the effect of those provisions which create inconsistency with, and adverse impact on, Article 6 of the Acts of Union 1800. In Re Allister [2023] UKSC 5 this inconsistency was resolved in favourof the Windsor Framework applying section 7A of the European Union (Withdrawal) Act 2018, causing the Supreme Court to hold that in consequence Article 6 of the Acts of Union was in suspension.
However, the provisions in section 38 (4) and (5) were not part of the legal landscape at the time of the Allister case, having only been inserted by the Windsor Framework (Constitutional status of Northern Ireland) Regulations 2024. It seems obvious that the legal effect of section 38 (4) and (5) is to prevent the subjugation of Article 6 of the Acts of Union in so far as the Windsor Framework must now to be applied “without prejudice” to the Acts of Union. An interpretation of the Windsor Framework (via section 7A of the 2018 Act) which subjugates and suspends Article 6 of the Acts of Union is, surely, no longer sustainable.
Put simply, how can that which is to be applied “without prejudice” to the Acts of Union, simultaneously bring about the prejudice of subjugation and suspension of a key provision of the same Acts of Union?
On that footing, your advice is sought as to the legality and efficacy of the Article 18 consent vote. The principle of legality would be offended if the Assembly is to be asked to vote to renew Articles 5-10 of the Windsor Framework, and the effect of an affirmative outcome would be to act contrary to the law in so far as the effect of those provisions create an inconsistency with Article 6 of the Acts of Union in breach of section 38 (4) and (5) of the 2020 Act.
I look forward to hearing from you.
Yours sincerely,
Timothy Gaston MLA
Cc. NI Assembly Speaker
Lord Hermer KC
Attorney General
102 Petty France
London
SW1H 9EA
Dear Attorney General,
The Northern Ireland Assembly on 10 December 2024 is to hold a ‘democratic consent’ vote, as indicated in Article 18 of the Protocol (Windsor Framework), on whether Articles 5-10 of the Protocol (Windsor Framework) should continue to apply. This vote is in pursuit of a direction, duly issued by the Secretary of State for Northern Ireland.
I write to draw your attention to and seek your opinion on the impact of Section 38 of the European Union (Withdrawal) Agreement Act 2020 upon the efficacy of the said vote.
Section 38, as amended, provides that the Windsor Framework is “without prejudice” to “the constitutional status of Northern Ireland” (see section 38 (4)(a)). The definition of constitutional status includes the Acts of Union 1800 (see section 38 (5) (a)(ii)).
It is clear that a vote to renew Articles 5-10 of the Windsor Framework would self-evidently continue the effect of those provisions which create inconsistency with, and adverse impact on, Article 6 of the Acts of Union 1800. In Re Allister [2023] UKSC 5 this inconsistency was resolved in favour of the Windsor Framework applying section 7A of the European Union (Withdrawal) Act 2018, causing the Supreme Court to hold that in consequence Article 6 of the Acts of Union was in suspension.
However, the provisions in section 38 (4) and (5) were not part of the legal landscape at the time of the Allister case, having only been inserted by the Windsor Framework (Constitutional status of Northern Ireland) Regulations 2024. It seems obvious that the legal effect of section 38 (4) and (5) is to prevent the subjugation of Article 6 of the Acts of Union in so far as the Windsor Framework must now to be applied “without prejudice” to the Acts of Union. An interpretation of the Windsor Framework (via section 7A of the 2018 Act) which subjugates and suspends Article 6 of the Acts of Union is, surely, no longer sustainable.
Put simply, how can that which is to be applied “without prejudice” to the Acts of Union, simultaneously bring about the prejudice of subjugation and suspension of a key provision of the same Acts of Union?
On that footing, your advice is sought as to the legality and efficacy of the Article 18 consent vote. The principle of legality would be offended if the Assembly is to be asked to vote to renew Articles 5-10 of the Windsor Framework, and the effect of an affirmative outcome would be to act contrary to the law in so far as the effect of those provisions create an inconsistency with Article 6 of the Acts of Union in breach of section 38 (4) and (5) of the 2020 Act.
I look forward to hearing from you.
Yours sincerely,
Jim Allister KC MP