Jamie Bryson: Belfast court ruling shows how the Union is subjugated by the Northern Ireland Protocol

A significant judgment was issued by Mr Justice Colton in the High Court yesterday in relation to Edwin Poots’ morally and constitutionally proper decision to order a halt to Irish Sea border checks.

Notwithstanding substantive misgivings (beyond the scope of this contribution) about much of the judgment, it nevertheless does serve a useful purpose for the unionist community. There can now be no doubt as to the pernicious effect of the protocol on the Union.

The high court has held that for the purposes of the relevant protocol regulation, where it says ‘UK’, this is to be interpreted as meaning ‘GB’, with NI instead being treated as the entry point into the EU. Put simply; Northern Ireland in practice is to be treated as part of the EU rather than the UK.

The fact the government made this argument should be sufficient to demonstrate their duplicity. They did not want to face up to the political cost of expressly amending the relevant legislation, so instead they asked the court to use the somewhat elastic concept of ‘purposive interpretation’ to essentially read a meaning into the regulations which is inconsistent with the plain words.

If Northern Ireland is part of the United Kingdom, then how can the words United Kingdom be read as excluding Northern Ireland?

In addition, the High Court endorsed the submission of the government that the “United Kingdom is no longer a unitary state”, due to the protocol. The ongoing constitutional vandalism being perpetrated by this Conservative government is a matter of the utmost seriousness, and yet often appears to slip by almost unnoticed.

The court also held that the safeguards for significant and controversial decisions did not apply to the implementation of the protocol. This means that not only have the unionist community been deprived of both the principle of consent and cross community assembly procedural protections, but in addition now also the safeguards in regards executive decision making.

What is the point of the safeguards if they are simply disapplied to prevent unionists relying upon them? They are no safeguards at all, and therefore the basis upon which some unionists (but not all, many of us have always opposed the structurally imbalanced agreement) operated the Belfast Agreement rests on a fundamental deception in so far as the purported safeguards are no such thing at all, certainly not for unionists.

It is further of note that the court granted standing to an anonymous Sinn Fein activist (the granting of such anonymity was rightly challenged by the News Letter journalist Adam Kula) on the basis they presented as a “supporter of the Belfast Agreement and the rule of law”. This is an incredible liberalisation of the sufficient interest test, and it will be interesting to see whether this new standard is applied equally liberally to unionist/loyalist activists going forward.

Fundamentally, the judgment makes clear that the price of the executive is implementing the Union-subjugating protocol. Given the aforementioned issues, how could any self-respecting unionist countenance returning to Stormont?

Jamie Bryson,

Unionist activist, Co Down