Protocol In Peril!

I’m not sure that Mr Justice Colton intended to sink the notorious Northern Ireland Protocol when handing down his decision in Arlene Foster, Lord Trimble & ors v. Secretary of State for Northern Ireland [2021] NIQB 64 (not the full citation – the case has a very long name!).

However I suspect that His Lordship has, and may have had a hand in bringing down the British government and the hated Kabinettratsführer (a.k.a. Cabinet Secretary) Simon ‘von’ Case, as well.

Essentially this was a Unionist challenge to the hugely controversial Northern Ireland Protocol, designed to create a border down the Irish Sea. This was contrary to solemn assurances given by Number 10 to the people of Northern Ireland and the Democratic Unionist Party (DUP) in particular.

I should explain that the Unionists in Northern Ireland are broadly divided into the DUP (nice Unionists) and the Ulster Unionists (soggy Unionists).

The judgment gets off to a disastrous start, with respect, in paragraph 1, which contains the astonishing assertion that the European Economic Community (EEC) was established with the aim of “ending the frequent and bloody wars between neighbours, which culminated in the Second World War”. To use a technical legal term this is bollocks, no offense intended.

For starters there were no wars “between neighbours” in Western Europe in the 20^th century. There were only the two world wars started by Germany. That includes the First World War, the ‘war to end all wars’, which it might have done had the Allies broken Germany up in 1919 and dismantled German intelligence.

Instead the Allies let German intelligence kill more people than the entire German army had in the whole war in a genocidal biological warfare campaign (Spanish Flu) which put even Chinese Flu to shame. They also set up the League of Nations, which promptly fell under German control, and decided to let Germany start another world war, presumably on the basis that world wars are fun (they aren’t) and that two world wars were better than one.

The plans for the EEC were drawn up by the Reich Ministry for Economic Affairs between 1939 and 1941. Since Colston J. was effectively endorsing them an issue arises immediately as to the extent to which it is appropriate for a High Court judge to publicly support a policy of the Nazi German government. Of course being a High Court judge, no offense intended, the learned judge could always plead ignorance of the facts.

The claim that the EEC was designed post-war, not during it, was one of the key lies pushed by the Remain campaign in 2016. Again an issue arises as to the extent to which it is appropriate for a High Court judge to publicly endorse a controversial propaganda claim made by one side during a highly contentious referendum campaign. As it is the learned judge with respect is exposed to the allegation that he is a Rejoiner, which it turn raises a question as to his fitness for the bench.

As a judicial officer myself I was always careful not to let such political opinions as I may have held on the desirability of Britain being mercilessly crushed under the heel of the German jackboot inside the EU affect my legal judgment. Not only did I apply EU law when it was appropriate to do so, that is to say when commanded to do so by Parliament, I actually played a role in expanding the development of the law on EU citizenship by referring the case of Chen (Case C-200/02) to the European Court of Justice.

Not content with one wildly controversial claim about the EU Colston J. with respect goes on to make another, in paragraph 16. The learned judge clearly implies in that paragraph that being in the EU’s single market in some unexplained way benefits businesses in Northern Ireland. That with respect absurd and economically illiterate claim was also a key plank of the Remain campaign’s platform in 2016.

The reality of course is that whilst only a minority of businesses in Northern Ireland export to the EU every business in Northern Ireland is weighed down by unnecessary EU regulations, many of them designed for the express purpose of crippling the British economy. I should explain that EU regulations for the most part were only ever obeyed in the UK and Ireland – you try enforcing an EU directive in France or Italy!

Putting the matter as neutrally as I can, adherence to insanely high EU truck weights also means that innocent pedestrians in the whole of the UK, including Northern Ireland, are daily exposed to the menace of being mown down by European juggernauts. Some of these juggernauts of course are driven by half-smashed Polish truck drivers tanked up on vodka, no offense intended. (Every British motorist knows to get out of the way when they see a Polish-registered truck weaving drunkenly all over the road.)

EU truck weights are still being rammed down our throats on the mainland of course as part of the Cabinet Office’s reckless policy of tracking the EU with a view to rejoining. Arguably this policy is the most outrageous adopted by the Cabinet Office since the traitorous Cabinet Secretary, that criminal piece of filth, no offense intended, Sir Edward Bridges, decided to lie to Prime Minister Winston Churchill about the location of Force Z (the battleship Prince of Wales and the battlecruiser Repulse) in December 1941 in order to help the Japanese sink them.

The failure to arrest Sir Edward in May 1940 and have him detained under Regulation 18B of the Defence (General) Regulations as an enemy sympathizer was arguably Britain’s greatest single mistake in the whole of World War II. Indeed a strong case could have been made for having MI5 torture him, nicely of course, followed by a fair trial at the Old Bailey and a good hanging.

Implied repeal

Despite his hugely controversial views on Europe Colston J. actually got the law right, with respect, a sufficiently unusual development to call for comment. We do not have a written constitution in the UK, thank goodness.

Each Act of Parliament is as good as another – there are no over-arching ‘super statutes’. If the European Convention on Human Rights contained an article on dangerous dogs the Dangerous Dogs Act would impliedly repeal any earlier law incorporating it.

That is because where two statutes conflict it is the later which prevails. As the great jurist Sir William Anson (a kinsman of Admiral Lord Anson, who gave the Spaniard a good hiding in the War of Jenkin’s Ear, after which Samuel Spaniard became a bit less keen on chopping off the ears of British sea captains) explained, the power of Parliament is a present power. It cannot be projected onto future Parliaments.

The DUP’s lawyers with respect were understandably confused by the strange ruling of the Divisional Court in the great Metric Martyrs Case, where I led for the defense.

After I established that the Weights and Measures Act 1985 conflicted with community law and made selling a pound of bananas legal (the European enemy were insisting on French revolutionary measurements) the presiding judge, the late Sir John Laws came up with the novel concept, with respect, of constitutional statutes.

Had the DUP’s legal team consulted me I could have explained that the concept with respect had no legal basis. It was simply a device to get around the inconvenient fact that 12 years after Britain took the disastrous decision to enter the EEC a new British government, less committed to Europe and led by a Prime Minister who supported the Allies in World War II not the Axis, abandoned the neo-fascist policy of compulsory metrication.

The new, more liberal, policy was enacted by a statute which overruled both community law and the European Communities Act 1972. In a serious breach of protocol the Divisional Court considered a fresh point without the courtesy of notifying counsel.

Sir John knew he was dealing with a disciple of the great Dicey, who would have demolished the argument given half a chance! (Sadly Sir John was carried away by the Chinese last year as part of their Covid bio-campaign, the first Lord Justice of Appeal to be murdered by the Chicoms.)

Article 50

Since Colston J. was undoubtedly correct with respect to hold that the withdrawal legislation impliedly repealed the Act of Union with Ireland any appeal is bound to fail. A High Court decision can only be overturned on a point of law – historical errors and economic illiteracy with respect don’t count, sadly.

Put another way the learned judge’s with respect extreme political views don’t undermine his legal reasoning. (Maybe I should add that Colston J. with respect is rumored to hold some odd views about capital punishment as well.)  Naturally I shall be copying these few moderate criticisms of his judgment to His Lordship.

Where does this leave the Protocol? In the dirty, I think, given the financial inducements paid to secure both withdrawal treaties, with the happy result under international law that neither is binding. That is due to the effect of Article 50 of the Vienna Convention on International Treaty Law, which governs both treaties. (It can be excluded but wasn’t.)

Neither the British government nor the EU have denied by the way that financial inducements were offered and accepted. (Bribe is such a harsh word.) The DUP have been briefed in and are at liberty to raise the matter in the House of Commons, it being a matter entirely for them with respect.

MI5 and MI6 are also aware, although each agency has come under heavy pressure from the Cabinet Office, to which they report, to suppress the truth, although that doesn’t stop either confirming the intelligence in their possession to the DUP on a backchannel.

The Ping War

I’m pleased to report that the Good Guys have won a battle this week in the Ping War with the mad scientists ‘advising’ (in other words dictating policy to) the government. (Some of these scientists are so mad, no offense intended, that they actually believe in global warming.) The logic, if that is not too strong a word, of the algorithm in the NHS app has been altered to reduce the number of silly pings.

Very obviously after the mad scientists lost the battle to stop Freedom Day from happening they altered the algorithm to increase the number of pings and try to bring the country to its knees through starvation and disruption. (As all ya’ll will recall Admiral Doenitz pursued a similar strategy in World War II.) So far as I can tell it only took one person with a positive test in a passing train to trigger hundreds of alerts.

Vacation

I had a lovely break, thank you, and have decided to bore you with some holiday snaps. For the benefit of new readers I should explain that I am bilingual and write my column in American, as most of my readers are in the US and this is an American website.

Michael Shrimpton

Michael Shrimpton was a barrister from his call to the Bar in London in 1983 until being disbarred in 2019 over a fraudulently obtained conviction. He is a specialist in National Security and Constitutional Law, Strategic Intelligence and Counter-terrorism. He is a former Adjunct Professor of Intelligence Studies at the American Military University.

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