Jim Allister: Legal challenge flushed out real meaning of Northern Ireland Protocol

Even the Government’s arguments exploded the pretence that the Protocol is a mere trading necessity with no constitutional impact.

Two crucial points emerge: the protocol has ‘disapplied’ Article 6 of the Acts of Union and part of the supposedly sovereign UK is subject to the laws of a foreign legislature.

What is the Union? As the late Lord Trimble neatly put it, the Union is the Acts of Union.

Whether it is the 1707 Act affecting Scotland or the 1800 Act bringing Ireland (now just Northern Ireland) into the Union, this was perfected by creating a political and an economic union. The political union lies in the creation of a single sovereign parliament and the economic union involves the creation of a single market and equal trading zone across the whole UK.

These are the two interdependent limbs of the Union.

It is Article 6 which creates and sustains the economic Union. It guarantees unfettered trade between and within the whole UK, with each part entitled to be on “the same footing”.

Thus when HMG tells the Supreme Court that the effect of the Protocol is to ‘disapply’ Article 6 of the Acts of Union, then, it is indisputable that an axe has been laid to the root of the Union. To ‘disapply’ is to set aside, to render of no effect. Thus, Art 6, a linchpin of the Union, is now of no effect! That has devastating constitutional consequences, meaning the economic union is gone.

And given that the protocol decrees and operates on the basis that GB is to be treated in trading terms as a ‘third’ or foreign country, then, it is clear that NI’s Article 6 rights are liquidated. Now goods coming from Britain might as well be coming from Bolivia, because they are treated the same, namely, as goods coming into EU-controlled territory from outside the EU. Such ‘imports’ require customs declarations, checking and are subject to EU custom tariffs! Yet, it is pretended Northern Ireland is still an integral part of the UK. Sadly not.

This arises because the protocol retains NI under the rules of EU’s Single Market for goods, Customs Code and VAT regime. Wherever else Brexit may have involved “taking back control”, in Northern Ireland it, alas, meant the opposite.

And, because NI is retained within the EU’s Single Market for goods etc, we are then subject to all the EU laws that govern its single market for goods, its customs code and its VAT regime. This means that uniquely in the western world NI, without the consent of its people, is subject to a foreign legislature (European Parliament) and its laws - not just its present laws, but all such future laws and changes as decreed within the EU.

It is conservatively estimated that over half of the laws that govern the economy in NI are now made not in Belfast or London, but in a foreign jurisdiction. How is that compatible with UK sovereignty?

It is not. The truth of the protocol is that it has trashed UK sovereignty in NI, with the tragedy being that it was Acts passed by the UK Parliament which delivered this coup de grace. Section 7A of the EU (Withdrawal) Act 2018 establishes the ongoing supremacy of EU law and it is this provision which HMG conceded in the Supreme Court causes Art 6 of the Acts of Union to be “disapplied”.

The fact that the Withdrawal Agreement, as approved by Government and Parliament, cedes legislative powers over Northern Ireland to Brussels is of immense constitutional import. Hence, our argument that such, along with the setting aside of Art 6, was constitutional change which required express consent from the people of NI, pursuant to Section 1 of the Northern Ireland Act 1998.

HMG argued the consent principle guaranteed in the 1998 Act applies only to what could be termed the final handover of NI and, thus, the Union can be effectively salami sliced out of existence provided you stop short of the hauling down of the Union flag for the last time!

The Supreme Court’s ruling will show whether the consent principle is in fact worth the paper it is written on. Bearing in mind it was central to the sales pitch of the Belfast Agreement, the political ramifications of an adverse ruling are obvious.

As pointed out by our senior counsel, John Larkin KC, if it is lawful to hand over lawmaking powers in respect of NI, without consent, to Brussels, then, equally it would be lawful to surrender them to Dublin! The worth and security of the consent principle rides on the ruling on this point.

Our hope, of course, is that the Supreme Court will uphold our core contentions (i) that the making of the Protocol, being in breach of Article 6 and its prohibition on treaties denying equality of opportunity across the UK, was itself unlawful; and (ii) that the constitutional change it perfected breached Section 1 of the Northern Ireland Act 1998 and that both the Acts of Union and the 1998 Act, being constitutional Acts, can only be repealed by express provision.

If we do not succeed, it will not be the end of the battle against the Union-dismantling Protocol, but rather will underscore the necessity to step up the political campaign against it. The legal challenge and the political opposition were complimentary parts of a twin track approach, but one does not suppress the other.

Controlling your own territory through your own laws is a touchstone of sovereignty, just as is unfettered trade between and within your own territory.

The affront which the protocol presents to UK sovereignty is something no unionist can ever come to terms with. Nor should any self-respecting government be protecting or defending it, as sadly the UK government did in the Supreme Court.

Jim Allister is the leader of the TUV.