Ursula von der Leyen, President of the European Commission, arrives to sign a post-Brexit deal on Northern Ireland (Photo by Mark Kerrison/In Pictures via Getty Images)
Artillery Row

The Northern Ireland Protocol would be illegal in many countries

What makes the United Kingdom different?

I was invited to be interviewed by a distinguished broadcaster in Slovenia on the operation of the Windsor Framework to the Northern Ireland Protocol. I ought to clarify that I am going to keep calling it the Northern Ireland Protocol, because that is its name in law. “Windsor framework” is meaningless words, as law. 

As I was addressing the people of Slovenia, I thought I would take a look at their constitution. This part leapt out:

Article 4

Slovenia is a territorially unified and indivisible state.

That means that, as a matter of law, the whole of the territory of Slovenia must be treated the same and no part treated differently. I then read this:

Article 3

Slovenia is a state of all its citizens and is founded on the permanent and inalienable right of the Slovene nation to self-determination.

Which means Slovenia must govern all of itself, itself. Now that Article was modified in 2003 to allow for EU Membership – otherwise EU Membership would be illegal in Slovenia. Article 4 has never been modified, however.

The Northern Ireland Protocol, if our politicians incorporate it and make it law here, will mean that EU Law applies to some of the UK — but not all of it. EU Courts control some of the UK — but not all of it. That part of the territory of the UK, Northern Ireland, will be run by a Joint Committee of the UK and EU. That would be unlawful in Slovenia, and the Slovenian Constitutional Court would, in my view, strike it down.

The Northern Ireland Protocol with its minor changes, which the UK government is trying to sell, is illegal in Slovenia. Why?

You have to understand a bit about the history of constitutions here. Great world events have caused great constitutional change. The American and French revolutions caused some. World War 2 caused some. The collapse of communism and the USSR caused some more.

Slovenia has this type of constitution because, as Churchill said, “From Stettin in the Baltic, to Trieste in the Adriatic, an iron curtain has descended across the continent”, and Slovenia lies just to the right of Trieste. Constitutions tend to record part of your national history. Ours has real issues with international law and tyrants, because it is effectively an 800 year story of defanging a tyrant and moving power to democracy.

Slovenia has a history of having its borders messed with. So it has a specific protection for them. We don’t have a similar principle, because to defang that tyrant (that is the King), we had to take his power away, and we put it in Parliament. 

That is why, when our Supreme Court found that the Northern Ireland Protocol is technically lawful here, it said, “the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute.” Our court recognised Northern Ireland and its citizens are treated differently in law and in trade than the rest of us under the Protocol. Rights that the rest of the UK has can be removed for those in Northern Ireland. That is lawful here.

The Slovenian case made me wonder where else it might not be lawful to do this. The short answer is, probably any state with a recent history of occupation in the 20th century.

Why is unequal treatment of our citizens allowed here?

Another good way of determining who could not legally agree to the Northern Ireland Protocol is to look at that mechanism discussed above  — who can use their Constitutional Court to strike down a treaty or to disapply international law?

The answer is, a lot of them. The EU can and does. I have written on the EU Rule of Law Crisis — which involves every EU Member that has (but may not spot all who can): Romania, the Baltic States, Poland and Hungary. The biggest beast is Germany. It got little attention, but Germany recently struck down the Unitary Patent Court Agreement, saying it was unconstitutional. 

Germany won’t think twice about doing it. So much so, that an article by law academics in the German Law Journal thinks Germany risks ending EU integration. 

You may be asking, why can’t we do the same? Why is unequal treatment of our citizens allowed here? Why are we unique in letting outside entities govern bits of our land? It goes back to constitutions and why they exist. Ours does not trust any King or his judges. They might have signed us all up for serfdom, is the view. Our constitution believes that Parliament and MPs will keep us safe. Will they?

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