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Open Letter to Attorney General and Minister for Foreign Affairs

by Frank Schnittger Sat Jan 28th, 2017 at 01:06:10 PM EST

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.

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As it is an open letter, I propose to also send it to Irish Newspapers.  However they are most unlikely to publish such a long letter with only one insignificant signatory. If you are prepared to ad your name to a list of signatories please let me know.  I would need your real name, phone number and address - they will not publish your phone number or full address, but require them for verification purposes.  Please email me privately stating you are happy to sign.

I think it would add to the significance of the list of signatories if it included citizens from various EU countries.  Your rights, too, are impacted by having some of your fellow citizens forcibly removed from the EU against their will. I might amend the letter slightly to take account of comments here and underline your right to have a say.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 28th, 2017 at 01:51:36 PM EST
Frank, I agree in full with the letter and would not mind signing it. However, I am not so sure a non Irish citizen would made that difference.

Perhaps you could stress that these actions are revoking acquired rights from European citizens.

Another idea would be to turn this letter into a petition.

You might find me At The Edge Of Time.

by Luis de Sousa (luis[dot]a[dot]de[dot]sousa[at]gmail[dot]com) on Tue Jan 31st, 2017 at 01:33:32 PM EST
[ Parent ]
Thanks yes. I hadn't had any response from EU citizens by yesterday morning, so I sent it off anyway because I was concerned there was no time to lose if the Irish Govt. were to prepare a response before the UK Parliamentary debate on A.50 debate takes place. I would love if that debate were to take place with the participants knowing that the failure to consult the N.I. Assembly was considered by the Irish Government to be a breach of the Good Friday Agreement and that it would result in the UK being dragged through an international court. Not that the Brexiteers would care much either way, but it does prepare the way for a separate agreement re: N. Ireland.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Jan 31st, 2017 at 04:27:05 PM EST
[ Parent ]
It occurs to me that UK membership of the EU was an implicit foundation of the Good Friday Agreement, because devolution, cross-border institutions and European integration would together make British sovereignty over Northern Ireland steadily less and less significant as a practical matter. Norther Ireland would give the impression of being a free-floating autonomous territory tethered to neither the UK nor the Republic.

Nationalists would be appeased because they would no longer see reminders of British rule everywhere, unless they stopped to look at the monarch's head on a coin (if the UK hadn't joined the euro yet) or stamp. Unionists, meanwhile, would be comforted by the thought that it still was part of the UK, at least technically.

by Gag Halfrunt on Sat Jan 28th, 2017 at 03:27:38 PM EST
if the UK hadn't joined the euro yet

If they had joined, all of us in the EU would probably see her head on some of the coins (see Spain, Belgium etc.)

What about postboxes in North Ireland? Do they have E II R on them? They tried to do that in Scotland, but after terrorists blew up a few of them, they removed them (she is only Elizabeth the First of Scotland....)

by gk (gk (gk quattro due due sette @gmail.com)) on Sat Jan 28th, 2017 at 03:42:54 PM EST
[ Parent ]
That is absolutely the point. Under "an ever closer union" the differences between being under British or Irish sovereignty would gradually melt away. Now they are to be exacerbated behind a hard customs and immigration control border.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 28th, 2017 at 04:19:32 PM EST
[ Parent ]
The trouble is that talking about "parity of esteem" between Unionists and Nationalists or Irish citizens "giving expression to their identity within N. Ireland" doesn't convey that point at all clearly. You need to state explicitly that the Agreement depends on N. Ireland being inside the European Union. If you simply say that EU citizenship is now part of Irish citizenship and identity, then Brexiteers will reply that Irish citizens living in N. Ireland are welcome to move to the Republic and exercise their right to be European there.
by Gag Halfrunt on Sat Jan 28th, 2017 at 04:31:06 PM EST
[ Parent ]
Point taken.
Article 50 judgment: key points from the supreme court ruling
In their summary, the judges noted that the devolution acts "were passed by parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member."

It is not only the assumptions of the UK Parliament that are relevant here, but the assumptions of the Irish People in voting for the changes in their Constitution required by the Good Friday agreement by a 94-6% margin.

The Supreme Court is acting as if there was only one party to the Good Friday Agreement:  There was not.  It was an international agreement justiciable by international courts..

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 28th, 2017 at 05:21:42 PM EST
[ Parent ]
The whole point of the Good Friday Agreement was that it recognised the right of Northern Ireland people to Irish citizenship and identity whilst living in N. Ireland.  What Brexiteers think of that frankly doesn't matter.  The ECJ's view does as it was enacted by two states subject to ECJ rulings..

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 28th, 2017 at 05:25:18 PM EST
[ Parent ]
The part of the ruling excluding the NI Assembly would appear to be contrary to paragraph 7 of Validation, Implementation, and Review.
by rifek on Mon Jan 30th, 2017 at 07:37:34 PM EST
I'm specifically referring to this:

7. If difficulties arise which require remedial action across the range of institutions, or otherwise require amendment of the British-Irish Agreement or relevant legislation, the process of review will fall to the two Governments in consultation with the parties in the Assembly. Each
Government will be responsible for action in its own jurisdiction.
by rifek on Wed Feb 1st, 2017 at 02:50:27 AM EST
[ Parent ]
The UK Supreme Court has absolutely no jurisdiction to tell the Irish Government it is up to them to amend the British-Irish Agreement if difficulties arise.  The British-Irish agreement stands as it is and is justiciable by the ICJ. If the Irish Government is unhappy with how it is being implemented that is its remedy unless the British Government offers an amendment which the Irish Government considers an improvement.  I'm suggesting that  the Irish Government insists that the status of N. I. should remain unchanged unless the people of N. Ireland say otherwise.  That means it stays in both the UK and the EU.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Feb 1st, 2017 at 10:52:15 AM EST
[ Parent ]
My point is that the UK Supreme Court ruling re the involvement of the NI Assembly is contrary to the Belfast Agreement.
by rifek on Wed Feb 1st, 2017 at 06:34:22 PM EST
[ Parent ]


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