Challenge to ruling set for Appeal Court next month

A pan-unionist legal bid to have the Northern Ireland Protocol declared unlawful is set to go ahead next month.

Friday, 22nd October 2021, 8:12 am
TUV leader Jim Allister (left), former MEP Ben Habib and former Labour MP Baroness Hoey outside the High Court after the original ruling in June

Judges in the Court of Appeal relisted the challenge to the post-Brexit trading arrangements for a two-day hearing in November – but stressed they must be kept informed of any relevant political developments.

Lady Chief Justice Dame Siobhan Keegan told both sides yesterday: “This is an evolving situation, if there are other matters we remind you of the duty of candour.”

TUV leader Jim Allister and former DUP and UUP chiefs Arelene Foster and Lord Trimble are among those involved in the case.

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They are seeking to overturn a previous judicial determination that the protocol is legitimate.

Earlier this month the appeal was put on hold amid indications of a potential change in the UK government’s position. Amid new EU proposals for reforming the protocol, proceedings were adjourned at that stage due to the anticipated political negotiations.

In court yesterday, however, it was confirmed that the parties still want the appeal to be heard.

Implemented as part of the Brexit Withdrawal Act, the protocol created a trade border in the Irish Sea between Great Britain and Northern Ireland.

With the Province remaining in the EU single market for goods, it has led to disruption to business at Irish Sea ports since January.

The lawfulness of those arrangements is disputed by a coalition which also includes Baroness Hoey and former Brexit Party MEP Ben Habib.

Part of the case involves claims that the protocol breaches both the Acts of Union 1800 and the 1998 Good Friday Agreement.

Arguments centred on the concept of implied repeal, where more recent legislation takes precedence over older law.

In June the High Court ruled that the Withdrawal Agreement Act, which introduced the protocol, does conflict with the Acts of Union.

But it held that the new legislation overrode and effectively repealed relevant provisions within centuries-old law. Written more than 200 years ago in an entirely different economic and political era, the Acts of Union cannot override the clear specific will of Parliament, the court decided.

Those findings will now be challenged when the Court of Appeal sits for a full hearing on November 29.

Before rising Dame Siobhan emphasised to the legal representatives: “If there are any other advances happening in the wider world in relation to the issues (ensure) that the court is appraised.

“You will understand we are keen to have as much information as possible.

“I’m not sure I need to say much more, hopefully that’s clear enough.”