Thank you for your support for our legal action in defending the Belfast Agreement from the original Protocol on Ireland/Northern Ireland. We have now formally closed the case. You may want to know the impact of the work undertaken and read an account of the use of the monies raised.

A legal case was put together by our legal team and presented to the government’s lawyers in February last year. They argued that the case was non justiciable at that time. Nevertheless, it was possible that such a time would come, so the case was kept in being. The government knew, as did others, that the case would be brought if and when it was justiciable. This was an important legal and political threat; we sustained that threat as long as we deemed it of value.

As we could not bring the legal argument into court at that time, we decided to commission an independent legal opinion by someone of real standing. This was the next best thing to a favourable judgment that we could use to advance the purpose of our case. Our solicitors, Griffin Law, commissioned a senior English silk specialising in administrative law to write an opinion on the merits of the case. A very balanced and positive assessment was written and we shared this across parliament, government and with other people of influence in London, Brussels and elsewhere.

This opinion made a positive impact and boosted the work being undertaken by Lords Bew and Trimble in their personal campaigns to educate their colleagues that the protocol undermined the Belfast Agreement. Their work included numerous meetings every week, several media appearances and the publication of some influential articles. The argument that the protocol undermined the Belfast Agreement was sustained over many months; it made a substantial contribution to removing the original protocol and replacing it with a protocol that recognised the necessity of consent from the people of Northern Ireland.

Financial account

Funds raised. £28,865.30 was raised through CrowdJustice (from pledged donations of £28,900; £34.70 of pledges were not paid up). CrowdJustice charged £1,865 in fees. The balance of £27,000.30 was paid to Griffin Law, together with £300 paid directly to them by one supporter.

Expenditure. Griffin Law’s fees were £17,274 (including VAT), based on a 50 per cent reduction in their standard fee rate. This covered their work on the original case preparation, ongoing advice related to maintaining the threat of legal action and the use of legal argument in advancing our case politically; this included commissioning the legal opinion mentioned above. The fee for the legal opinion was £6,000 (including VAT), paid via our solicitors. The total legal fees paid were £23,274.

Pro Bono legal work. In addition to the work and fees listed above, our barrister worked on a pro bono basis. His work would have cost us a further £22,200 in fees (exc. VAT) had it been undertaken on a commercial basis. The reduced rate charged by Griffin Law saved us a further £17,274.

The balance. We have issued instructions for the £4,026.30 balance of monies held by our solicitors, Griffin Law, to be returned to CrowdJustice for distribution according to their terms and conditions; these are that anyone who paid in £1,000 or more will receive back about 15 per cent of the money they contributed, being the same per cent as the unused funds are of the sum paid to the solicitors; the remainder of the unused funds will be donated to their nominated charity, Access to Justice Foundation.

ENDS

As the backstop returns to the top of the political agenda, in a new paper for Policy Exchange published on 22 July 2019 the Nobel peace prize laureate Lord Trimble warns that its existence risks destroying the Good Friday Agreement.

New PM Boris Johnson is insisting that the Northern Ireland backstop is effectively “dead” in its current form whist Ursula von der Leyen, the new President of the European Commission, is committed to defending it. This brings the backstop right to the forefront of Brexit negotiations once again.

In his paper, Trimble warns that the backstop would inflict serious damage on, and could destroy the basis of, the Good Friday Agreement. It goes against the two pillars of the peace accord: “consent” and “agreement” by changing the status of Northern Ireland and the basis of North-South co-operation by diktat. Such changes cannot occur without consent and that consent has been neither asked for nor given. The absence of ‘consent’ and ‘agreement’ ensured the failure of previous attempts to bring peace and stability in 1973, 1985 and 1995: these lessons have been forgotten or discarded by those negotiating the backstop and are at the root of the crisis surrounding it.

Given that the EU27 justifies the backstop by claiming that it protects the Good Friday Agreement in all its parts, this raises fundamental questions about the standing of the backstop — questions that the next Prime Minister will need to answer before he goes into his first talks on Brexit this summer.

https://policyexchange.org.uk/publication/the-backstop-would-wreck-the-good-friday-agreement/

Apologies for the delay in updating our supporters, but, like most other people caught up in the Brexit imbroglio, we have found our circumstances changing from day to day.

As we reported earlier, having been definitively advised that as things stood our case was not justiciable and could not be until after the signing of a Withdrawal Agreement, we opted for now to go down the political path. Because of the generosity of our supporters, for which we are most grateful, we were able to commission legal opinions. You will know that lawyers, particularly good ones, do not come cheap, but we felt the money well spent on giving our argument considerable heft. We will publish our accounts on this page very soon.

Paul Bew and David Trimble have spent great deal of time in the last few weeks making our case to Attorney-General Geoffrey Cox, the other members of the government’s negotiating team, senior members of the government, and many other key players, including senior members of the DUP and the ERG. As you may have seen from some of the updates we posted, we have successfully challenged the received view that the backstop was necessary to uphold the Belfast/Good Friday Agreement, and have brought home to MPs, to negotiators here and in Brussels and Dublin and to influential journalists that, on the contrary, it potentially undermines and threatens it.

At this point in time, no one knows whether parliament may choose an alternative option/s to the Withdrawal Agreement next week or if there will be a third vote on the Withdrawal Agreement at all. However, if the Withdrawal Agreement is voted on and passed then there will be much work to be done to achieve the replacement of the Protocol. It would need to be replaced with arrangements that are within or closely aligned with, and non-contradictory of, the text and spirit of the Belfast Agreement. A constructive contribution to that can be made by the Belfast Agreement Defence Group. We are keeping the possibility of legal action on the table and working to ensure it is ready when justiciable, viable and politically appropriate.

In the meantime, we are maintaining this CrowdJustice page, though for the moment we have ceased actively to raise funds and will be spending nothing beyond what is strictly necessary; this page is our means of maintaining contact with you, our supporters, and being accountable to you. Its continued existence is also proof of our readiness to seek a judicial review and commitment to that course of action if viable and constructive. Updates on our work will continue to be made on this page and we can be contacted through it.

Thank you again for your financial and moral support.

Paul Bew, Roderick Crawford, Ruth Dudley Edwards, David Trimble.

Lords Bew and Trimble published a paper with Policy Exchange on Monday 18 March 2019 setting out the significant shift in the UK government’s position on the Belfast Agreement in recent weeks.  Here are some extracts, and a link to the original piece at the bottom of the excerpts.

    ‘While the Withdrawal Agreement itself has not changed, the potential practical functioning and probable duration of any future backstop has been significantly changed in the course of recent negotiations.’

    ‘....most importantly, the UK Government has stepped away from the view of the role of the Good Friday Agreement that it had passively accepted from the EU/Irish negotiators. It has returned to the rather more obvious and correct view that the Agreement – the clue is in the word ‘agreement’ – is the possession of both communities in Northern Ireland: Unionist as well as Nationalist. This has opened up the possibility of a deal with the DUP.’

    ‘The UK Government is increasingly probing the implications of its commitment to this prior agreement of 1998. It is right to do so. As Ireland’s most renowned public economist, Dan O’Brien, said in the Sunday Independent on 10 March 2019, ‘It is quite clear that Dublin and Brussels did not think through the constitutional dimension of the backstop when they dramatically put it on the table sixteen months ago’. All too slowly but getting there in the end, the Government has come to see that the democratic consent of the people of Northern Ireland for any new arrangements imposed by the EU is a crucial issue. That is why the Attorney General has been discussing in Brussels the Mathews/Gibraltar ECHR case of 1999 which raised the same issue in a different context.’

    ‘The new text of March 2019 declaration states that “the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol.” There is one proviso here and that is that the UK will continue to uphold its obligations under the 1998 Good Friday Agreement to avoid a hard border between the two parts of Ireland. We can assume that the EU accepts this language because it briefed that it would not accept anything in this March statement that it could not live with. But in doing so it has de facto accepted a radically new British proposition: that the protection of the Good Friday Agreement may be entirely independent from the functioning of the Irish backstop.’

   ‘What is new here is the way in which the UK sees it is possible to uphold the Good Friday Agreement whilst dis-applying obligations under the Northern Ireland and Ireland Protocol, contained in the Withdrawal Agreement. In December last year, the UK Government insisted that the Protocol was necessary to uphold the Good Friday Agreement. In January it insisted that there was no contradiction between the Good Friday Agreement and the Protocol. In March, with the EU’s tacit acceptance, we now say there can be such a contradiction and that the UK will be justified in taking unilateral steps to deal with such an issue.’ https://policyexchange.org.uk/publication/the-irish-backstop-nothing-has-changed-it-has-actually/ 

Saturday’s Daily Telegraph (9 May 2019), reporting on Geoffrey Cox’s negotiations earlier in the week, mentioned that Cox had ‘referenced the recent legal challenge by Lord Trimble’ in his talks in Brussels. 

ConHome ran a story on Monday 11 March 2019 on Cox’s negotiations, pointing out that ‘Cox, the expert lawyer charged by the Prime Minister with finding a solution to the backstop, has ended up taking a very different view of its [the backstop’s] compatibility with the Belfast Agreement to the official line laid down by Downing Street.

‘By taking a different tack, which is to say acting like a lawyer, Cox is finally offering the sort of sceptical, expert scrutiny of the backstop that London ought to have been offering from the start. This is to be welcomed, because a detailed push-back against Dublin’s ‘maximalist’ interpretation of the UK’s obligations is the Attorney General’s best bet of securing the sort of changes Brexiteer MPs need to back the Withdrawal Agreement.’

https://www.conservativehome.com/thetorydiary/2019/03/cox-is-out-of-line-with-downing-street-on-the-backstop.html

These articles show that the arguments we advanced in the legal challenge and have since taken to the negotiators have been taken on board on the UK side and are being used in the negotiations, but that there is much more work still to be done if they are to make the impact they deserve.

Last week, BBC NI picked up our last page update: https://www.bbc.co.uk/news/uk-northern-ireland-47491914

The government replied to our letter before claim on Friday 19 February 2019. They set out two reasons why they maintain our claim is not justiciable at present. Firstly, because treaty-making powers are non-justiciable until they are legislated into domestic law and that therefore no action can be taken at this stage. Secondly, because there is no decision that can be reviewed as yet as no final decision has been taken. They make no defence upon the grounds of our claim.

In response we have undertaken two courses of action. First, we have commissioned QCs’ opinions on the defence that they have presented. The last of these arrived on Thursday 28 February 2019. There is broad agreement from counsel that the case cannot be heard in a court of law at this stage. We have asked for opinions as to when that situation might change and are awaiting responses to that question from counsel.

As they made no response to the substantive legal basis of the potential judicial review, we have commissioned a set of additional opinions to test and develop the grounds for our claim as part of our case preparation.

Because we cannot utilise legal argument in court at present, we are using these legal opinions to inform and equip the UK government in its new policy, following the Brady amendment, of negotiations negotiating with the EU to seek alterations to the Backstop.

We are also using these opinions to inform parliamentary opinion in the run up to MPs voting again on the Withdrawal Agreement and on whether to request an extension to the Article 50 negotiation or leave with no deal.

The legal question is now at the heart of the negotiations and we are well equipped as a result of our case preparation and with these new opinions to make an effective contribution to the negotiations and the opinion of parliament. 

We are alert to the potential for a judicial review in the future if the final agreement reached between the UK and the EU fails to uphold the Belfast Agreement.

On 8 February, our letter before claim was sent to the Government's lawyers.  it outlined the factual and legal points that the claim is based on, and requested a response from Government by 22 February.  The legal remedies being sought include the initiation of a British-Irish intergovernmental conference to discuss alternative arrangements to those set out in the current backstop.  The letter also stressed the claimants' hope that the British and Irish governments can work together to avoid a hard border, whatever the outcome of the Withdrawal Agreement negotiations.

Huge thanks to all of our backers for your support, we could not do this without you. The case is already bringing serious consideration of these issues to the fore, but the legal proceedings have a long way to go in a very short space of time, so please keep sharing this page and let people know how they can support the case.  

It has been reported here in the Irish Times https://www.irishtimes.com/news/ireland/irish-news/lord-trimble-formally-begins-legal-challenge-to-backstop-1.3791713

And you can read claimant Ruth Dudley Edwards giving her views in the Belfast Telegraph here https://www.belfasttelegraph.co.uk/opinion/news-analysis/ruth-dudley-edwards-lord-trimbles-challenge-will-hopefully-throw-a-legal-spanner-in-the-works-of-backstop-plan-37801149.html