Ireland Should Appeal UK Supreme Court Decision to ECJ
I publish, below the fold, the content of an open letter I propose to write to the Irish Minister for Foreign Affairs, Charles Flanagan T.D., and to the Attorney General, Máire Whelan SC.
In it I lay out my case that the Irish Government should appeal the decision of the UK Supreme Court that the people and Assembly of Northern Ireland need not be consulted on any decision by the UK Government to invoke Article 50 of the Lisbon Treaty.
I am not a lawyer, but believe I have made a solid case – and one which I have not seen being made by anyone else. I would be grateful for your advice and feedback on the argument, particularly from those of you with a legal background.
Should the Irish Government take my advice and succeed in its action, the effect would be to prevent the UK Government from taking Northern Ireland with it out of the EU without the consent of the people and Assembly of Northern Ireland.
This would be an application of the provisions in the Good Friday Agreement whereby the signatories agreed that the Constitutional status of Northern Ireland could not be changed without the consent of a majority of the people of Northern Ireland.
The Good Friday Agreement was created to provide parity of esteem to both the Nationalist and Unionist traditions in Northern Ireland. It protects the Unionist tradition by guaranteeing that they cannot be dragooned into a United Ireland without the consent of the majority of the people of Northern Ireland.
Equally, it protects the legitimacy of the Nationalist tradition by guaranteeing their identity and aspirations of being part of Ireland. Being part of the EU is now an integral part of being an Irish Citizen and the rights of EU citizenship are indivisible from being an Irish Citizen. Ergo, without the consent of a majority in N. Ireland to a change in its constitutional position, N. Ireland must remain both a part of the UK and the EU.
Under this scenario, the position of Britain will become analogous to that of Greenland – outside the EU and yet part an entity (in that case Denmark) which is within the EU.
Dear Minister and Attorney General,
The UK Supreme Court found on Jan 24th. that the Westminster Parliament had to approve any decision to invoke Article 50 of the Lisbon Treaty on the grounds that leaving the EU would materially effect the rights of British Citizens.
It also found that the devolved Parliaments of Scotland, Wales and N. Ireland need not be consulted on the matter. I will leave it to the Scots and Welsh to argue their case.
However, the situation of the N. Ireland Assembly is unique in that it was set up under the 1998 Good Friday Agreement (also known as the British Irish Agreement) which is an international Treaty lodged with the United Nations and guaranteed by both the governments of the UK and the Republic of Ireland.
Indeed, the Irish people went to the trouble of holding and passing a referendum changing the Constitution of the Republic of Ireland in order to give full effect to the provisions of that agreement – namely to remove Articles 2 and 3 of the Constitution which claimed jurisdiction over N. Ireland – until such time as a majority of the people of N. Ireland declared a wish to become part of a United Ireland.
In return, the Agreement guarantees parity of esteem to both the Irish and British traditions in N. Ireland and allows its people to give full expression to those identities by becoming British or Irish citizens, or both, as they see fit.
What the British supreme Court appears to have over-looked is that it is now an integral part of Irish citizenship and identity that we are Citizens of the European Union as well, deriving many rights and benefits from that citizenship as enshrined, inter alia, in the European Charier of Fundamental Rights.
It is important to note that the people of Northern Ireland who choose an Irish identity enjoy those rights as citizens giving expression to their identity within N. Ireland and the UK as it is presently constituted, and not simply as aspirants to a future United Ireland or as citizens of a foreign state resident in N. Ireland.
In so peremptorily dismissing the right of the people of N. Ireland to be consulted on such a fundamental change to their Irish citizenship, tradition and identity within N. Ireland, the UK Supreme Court is in breach of their rights, and of the rights of the N. Ireland Assembly as set up under the Good Friday agreement.
It is now incumbent on the Irish Government to appeal the decision of the UK Supreme Court to the European Court of Justice in order to vindicate its standing as joint Guarantor of the Good Friday Agreement, to vindicate the rights of those who choose an Irish identity and Citizenship within N. Ireland, and to vindicate the right of the Assembly of N. Ireland as set up under that agreement to be consulted on such a major change in their fundamental rights and freedoms.
Where is the parity of esteem of both traditions in N. Ireland, if those who adhere to an Irish identity can be so peremptorily stripped of such a large part of their identity, rights, inheritance and traditions without so much as being consulted on the matter through the Assembly set up to vindicate their rights?
Indeed, insofar as they were consulted on their views on this matter, as part of the Brexit Referendum, a majority chose to retain the European part of their identity and rights.
It should also be noted that those they elect to represent their aspirations in Westminster choose not to take their seats in that parliament, as to do so would be in contradiction of their Irish Identity. It cannot fairly be said, therefore, that any ratification of a decision to invoke Article 50 by the Westminster Parliament adequately protects their interests and rights to their Irish identity.
To conclude, the right to parity of esteem of their Irish identity as citizens in N. Ireland, enshrined and guaranteed in the Good Friday Agreement, cannot simply be unilaterally dismissed by the UK Supreme Court without reference to the people of N. Ireland, to the Irish Government as Guarantor of that agreement and to the institutions set up by it.
The Irish Government has a duty to appeal the UK Supreme Court decision to the European Court of Justice, the ultimate guarantor of the rights of its citizens in Northern Ireland.
