MOD008561 Understanding the Northern Ireland Protocol and Judicial Review Process - Case Study

MOD008561 Constitutional And Administrative Law

Part 1

Problem with passing legislation 

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The Northern Ireland protocol is a trading arrangement that considers trading goods without customs as they followed the same European Union. It was an essential part of the trade as the trades cross the borders without any checks.  After the UK left the union the trading facilities were changed and regular checks were conducted at the border. The new system was implemented for managing the system to control the trading of food as well as milk and egg.  The reason for removing UK borders from the union is because of the negative impact of the political history of Northern Ireland. It was a feared part as the cameras may also lead to instability. EU and UK agreed in protecting Ireland's peace deals. The main issue was regarding the inspection of the documents which will be conducted between Northern Ireland and Great Britain. This will be conducted in Northern Ireland's ports. The issues are regarding Northern Ireland as the government  Boris Johnson has proposed its views in various aspects but the deal came to be known as unstable. Ireland's “government is set to override the parts that it does not like through domestic legislation”. The government has aimed to resolve the issue regarding the political as well as practical difficulties but the UK government has set its foot backwards. 

The government had a lot of conflicts regarding the protocol. The unionist parties have opposed the protocol as it is an essential part of the UK. They were in the favor of “placing an effective border across the Irish Sea undermining Northern Ireland's place”. The northern Irelands is having the largest unionist party and the DUP refused to take part in power-sharing among the government. The DUP took the second option in Mays's election as the Sinn Fein the nationalist party accepted the proposal. The new government needs to be formed with the support of the protocol. The major issues were regarding the delay in the documentation as it needs to be rectified by implementing various other methods. The issues were also regarding the traffic control due to checking. The next biggest issue was regarding the taxation of the region as it has to follow the rules of the European Union. Northern Irish businesses currently follow EU rules on state aid and VAT. This concludes that the government helps with tax breaks and supports the firms of northern Ireland which must be within the limits of the European Union. The Uk was not in favour of the process and wants to remove the process. UK needs to have “an independent body to settle disputes over the Northern Ireland Protocol, rather than the European Court of Justice”. As a result, it did not follow the need or wants of the UK and the government is making every possible pra active to make the change with or without the agreement of the Europian Government. The UK has made various changes in building the protocol in different ways such as the implementation of the green line and red line.

Breach of international law 

International law was regarding the trade relationship between the two nations for the regular transport of goods without any difficulty. “The main point of contact with Commission Vice-President Maroš Šef?ovi? on issues related to the implementation of the Withdrawal Agreement and the Trade and Cooperation Agreement”. The breach in international law is been conducted by the UK government but the obligation of the agreement is done by the UK government. The northern Ireland protocol is a lawful protocol under international law. The government is alligating the bill that it is not following international law but in some cases, it is justified which includes international law under the doctrine of necessity. The doctrine of necessity is “recognized in Article 25 of the Articles on Responsibility of States for Internationally Wrongful Acts (2001)”. The breach is in the process of implementing the protocol as it is one way of proceeding when the Government is in the reserved right to proceed under Article 16. The negotiation with the europian union is clearly difficult and the issue was not resolved. The breach has affected the market and has led to the EU single market in the transfer of goods. The breach is a “disruption and diversion of trade and significant costs and bureaucracy for business”. The issue has been faced in the law college and by the students. The breach has not only broken the trust of the investors but also the people of both countries. The corporate world has been damaged due to the damage in the trade and corporation of the Agreement due to the implementation of the protocol. Both of the nations are finding a solution for the Protocol so as to attain a practical, flexible situation for the condition. Various issues are been faced by the protocol so Northern Ireland is trying to bring the small entrepreneur into the business for making some changes in the protocol to main flexibility. The contrast between the two nations is:

• The two nation has made their way out for an effective trading process by establishing a  positive as well as stable relationship. The two nations have made an effective effort in negotiating the contracts related to trade and cooperation agreements.
• Renegotiation of the withdrawal agreements which also includes the Protocole on Northern Ireland is not the solution to the protocol.
• The only solution to the business aspects is a joint solution for the two nations. This will help the business development of both nations as well as develop the economy of both nations. 

The EU customs union was built for companies to trade in harmonies that help in trading different goods for the safety of the citizens, animals, and the environment. European countries have built customs authorities for the good import of goods by applying no tariffs within the nations. 

UK Parliament passes such legislation

The UK government can pass the legislation but this will create many conflicts in the business aspects in the European nations. According to article 12, it can be affirmed that the European Union has the right to present when the Britain government conducts such a practice due to protocol.  The relationship between the two nations is not aspectable for decades as this has led to a loss in the trade process. The UK wants many changes in the protocol which includes checking goods in northern port that comes from Britain. Good once checked can be released to the Republic of Ireland. The UK has new plans regarding the protocol that consists of goods are to be split into two lanes which include the Green line and Red line. The Green lane goods are not to be checked which has the destination in Northern Ireland. On the other hand, Redline checks are carried out in the trading process which is time taking as well as documentation testing and verifying also create traffic jams. Brexit trade in Northern Ireland is affected and it is noticed by the  Irelands Irish Foreign Minister Simon. According to article 12 of trade law, the trade is facing various losses as the UK is having suitable advantages in the proposal. “UK government sets out issues caused by the Protocol and outlines solutions so that Northern Ireland can move forward while protecting UK and EU markets”. Northern Ireland has been refused by the minority of elected politicians to form an executive reaching a high bar of imminent peril and constituting a grave.

Part 2 

Judicial review

Judicial review is a power of the court that helps in examining the activities conducted by the administrative arms of government, legislative, and executive. The court asserts fundamental rights and reviews the lawfulness and action or decision is made according to action made by individuals or the public body. the judicial review aims to review the decision that has been made rather than making a new decision on the current jurisdiction. This is done according to the process followed by the court to find the right methods have been followed for reviewing the case. The conclusion is done by the court so that after the decision the public also has the same result if they follow the same lawful aspects. The court reviews the case by keeping various aspects in concern as it will have to maintain equal rights for the protocol. John smith needs to use various aspects for applying the case to the courts. John needs to collect effective evidence for putting the case in a stronger process. John has to have a look at the positive side of the rights and the terms and conditions of the protocol. The laws and international contracts must be reviewed while moving toward judicial review. In the Judistdriction review, every individual would be given a chance to place their perspective in front of the judiciary. This process helps in analyzing the protocol whether it is conducted in a proper manner or wrong decision or step has been taken by the professional. It will not only satisfaction to the applying person due to conviction but also give a correct decision regarding the petition. John Smith will be satisfied with the review process and it may be that John Smith may be right and so further changes can be done according to the process. 

Process for applying for judicial review

John smith can apply to the (UTIAC) “Upper Tribunal Immigration and Asylum Chamber” for judicial review that will help in challenging the conduct of lawfulness or lawfulness of a decision. The public body includes various government offices or the home office first tribunals or local councils. John needs to consult the judiciary body to know the lawfulness of the process which is to be put to judicial review. As John is pointing out the contract as an unlawful act then he needs to take advice from the professionals. The profession will lead with proper guidance for the conduction of the review system. John needs to appeal against the decision and review the application to the UTIAC and needs to apply to the administrative court.

John needs to take advice from a legal representative for getting help in the case as well as administration. Legal aid should also be\ known so as to save the legal cost regarding the case or appeal.  UTIAC1 form needs to be filled with proper care and it must be sent to the regional office that is near the house of John. In the application form, John must attach the fee regarding the document as well as a list of regional offices must be placed along with the attachments. The additional material includes copies of any relevant materials applicants need to attach evidence that will verify the truth of the statement. John needs to send two copies of paginated and indexed papers with documents according to rule 28 of the tribunals. These documents as well as practice directions must be delivered with the application. The Tribunal will consider the question in the first hearing without any permission. John must send the application to the tribunals and must ensure that the tribunals are received within three months from the date of the challenge. John needs to apply in time if he fails to do so then he will have to explain the reason for failing to apply in time. The judge will consider whether the application will be considered or not. 

The fee is the essential part of the judicial review and it is termed the initial or first stage of UTIAC1. The application fee for the initial phase is £154. If the proceeding is further transferred or the case is succeeded the next fee or the final implemented fee is £770. If this fee is considered then it is considered permission granted. The fees can be paid in various way which includes sending a cheque, postal order, and banker's draft made payable to HMCTS. Payments can be done in a court or at the counter of the office and the last part of the payment is paid through a legal representative. John needs to have a different process for applying application on an urgent basis that includes “reviewing the day they are received by tribunals”. An urgent basis circumstance includes serious decisions regarding the work process. A copy of the several processes needs to be sent to various respondents. On receiving the claims the tribunals will send the confirmation. Tribunals will provide sealed copies of the application. This concludes that the tribunals have looked after the application and have enclosed it in the envelope after signing the official seal.   

“Within 9 calendar days of the date on the correspondence, you must send or hand the sealed copies of the application to all respondents in the case”. This is an urgent process as the case will be stuck out and the claim will be ended. In this process, the respondents are known as public bodies who are the challengers in the unlawful act. The challenges include bodies which may be the home office, First Tier Tribunal, and local council. Within the same 9 days, John needs to send the same statement of service and a copy of the application. On completing the steps John needs to send the tribunals to the respondents within 21 days. The judge decides whether the case should be reviewed for the hearing and then the fees need to be paid using the UTIAC12.

Likelihood of the Administrative Court allowing the review

An administrative court review has been made by the government for reviewing the case in an effective and peaceful manner for both parties. “It is not intended to address the substance of administrative law, or public law more generally and reference should be made to the many academic and practitioner texts on the subject”. The rules are made in such a way that will be following civil procedure rules. The new rules “practice Directions accompanying Part 54 of the CPR have been amended with effect from 31 May 202”1. Acquaints of the advice of the litigants must be linked with the practice of direction and CPR. The guidelines do not include the force of law but it is essential for all those who are facing difficulties in various regions or sectors.  The facility must be provided by the court as it gives a particular decision regarding the issues. The court measures the decision of the agency as it provides a measurable decision by providing proper support regarding the issue faced by the individuals. 

The three main guidelines regarding judicial review are procedural unfairness, illegality, and irrationality. The decision maker has an important role in the decision-making as the decision maker can overcome the “ground of illegality”.  This can be concluded as parliaments provide less discretion than expected. “A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper”. This might be concluded that the decision-maker is supposed to be biased and impartial. This takes place due to the chance provided for the decision-making or representing someone before deciding whether the case will fail or whatsoever is the result. “A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it”. This is a tough barrier to be crossed and rare for the court to grant the review on a particular basis. The decision can overturn in case of public authority has played a role that is incompatible with the “human rights ACT 1998. A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong”. 

A court cannot overturn legislation passed by the parliament in the judicial review process. This is because the constitution of the UK is a sovereign parliament. On the normal ground, the court can overturn secondary legislation as made by the ministers.  During the Brexit transition time, the court will disapply the legislation that does not rely on "incompatible with European Union law”.

The act can be changed or even repealed

The changes can not be done though they can be interpreted as the court allows interpretation, this varies along civil-law countries and common-law. The interpretation must be typically transformed which must be generalized as well as fill the gaps.  This is used to convey the situations by the lawmaker at the time of first drafting. The “Conservative manifesto says that the government would “update” administrative law to ensure a “proper balance” between individual rights, national security, and effective government”. The manifesto concludes that judicial reviews need not abuse or conduct the policy as well as create needless delays.

This act can be changed or repealed by following various processes of case appeal as this can consider collecting of two-thirds majority through a voting process. This can allow this act to get the transformation in a significant way and the repealing process can be completed through this. In addition, the absence of provisions and inextension in the application process can provide support in repealing the act. Various amendments already occurred in many countries' acts and this considered the voting process and amendment formalities to repeal the act. This repealing process can require a proper vision of transformation and according to the value and requirements of transformation, the repealing process can be completed. In addition, considering suggestions from other adjacent acts can provide effective support to complete the act's repealing process. These are the ways that can be implemented for the interpretation or change and this can be implemented for John's benefit.

Reference list 

(Office of Justice Programs) <https://www.ojp.gov/> accessed December 12, 2022 

“Administrative Court Judicial Review Guide 2022” (Courts and Tribunals JudiciaryNovember 23, 2022) <https://www.judiciary.uk/courts-and-tribunals/high-court/administrative-court/administrative-court-judicial-review-guide-2022/> accessed December 12, 2022 

“Apply for a Judicial Review in an Immigration or Asylum Case” (GOV.UK) <https://www.gov.uk/guidance/apply-for-a-judicial-review-in-an-immigration-or-asylum-case> accessed December 12, 2022 

“Apply for a Judicial Review in an Immigration or Asylum Case” (GOV.UK) <https://www.gov.uk/guidance/apply-for-a-judicial-review-in-an-immigration-or-asylum-case> accessed December 12, 2022 

“Customs” (European Union) <https://european-union.europa.eu/priorities-and-actions/actions-topic/customs_en> accessed December 12, 2022 

“Four Reasons Why the UK's Northern Ireland Protocol Bill Is a Mistake” (Centre for European Reform) <https://www.cer.eu/insights/four-reasons-why-uk-nireland-protocol-bill-mistake> accessed December 12, 2022 

“Four Reasons Why the UK's Northern Ireland Protocol Bill Is a Mistake” (Centre for European Reform) <https://www.cer.eu/insights/four-reasons-why-uk-nireland-protocol-bill-mistake> accessed December 12, 2022 

“Is Judicial Review ‘Abused to Conduct Politics by Another Means’?” (The Institute for GovernmentOctober 5, 2020) <https://www.instituteforgovernment.org.uk/blog/judicial-review-abused-conduct-politics-another-means> accessed December 12, 2022 

“Law in Focus: 'Does the Northern Ireland Protocol Bill Breach” (Faculty of LawJune 17, 2022) <https://www.law.cam.ac.uk/press/news/2022/06/law-focus-does-northern-ireland-protocol-bill-breach-international-law-mark> accessed December 12, 2022 

Edgington T, “Brexit: What Is the Northern Ireland Protocol?” (BBC NewsOctober 27, 2022) <https://www.bbc.com/news/explainers-53724381> accessed December 12, 2022 

Service HMC& T, “Administrative Court Judicial Review Guide” (GOV.UKOctober 3, 2022) <https://www.gov.uk/government/publications/administrative-court-judicial-review-guide> accessed December 12, 2022 

Service HMC& T, “Administrative Court Judicial Review Guide” (GOV.UKOctober 3, 2022) <https://www.gov.uk/government/publications/administrative-court-judicial-review-guide> accessed December 12, 2022