Legal papers for Northern Ireland protocol case ‘held by customs’

A lawyer preparing for the case set to be heard at the Supreme Court later this month said papers sent from London were being held up in “preposterous” circumstances. Unionist politicians and a loyalist pastor are mounting separate challenges to the post-Brexit trading arrangements.

They are appealing decisions reached by courts in Belfast that the protocol, which has created a de facto customs border in the Irish Sea, is lawful. Amid widespread unionist opposition to the accord, a coalition involving TUV leader Jim Allister, Baroness Hoey and former Brexit Party MEP Ben Habib are seeking to have it declared unlawful.

With similar proceedings brought by the Belfast-based pastor Clifford Peeples, the two cases are listed for hearing on November 30 and December 1. Mr Peeples’ solicitor, Ciaran O’Hare of McIvor Farrell, claimed there may be a protocol-related reason for the hold-up in receiving documents from London.

He said: “I have been informed that these papers have been retained by customs in Belfast for almost one week. “This has caused almost a week of delay in respect of solicitors and counsel being able to peruse these papers and prepare for the Supreme Court (case) at the end of the month.”

Mr O’Hare added: “This is a preposterous situation whereby the delivery of papers from London to Belfast in relation to the protocol challenge is being delayed ostensibly because of the Northern Ireland Protocol.”

Last year the High Court in Belfast found that the Withdrawal Agreement Act, which introduced the protocol, conflicts with Article 6 of the Acts of Union 1800, drawn up to ensure equal trade footing between Britain and Ireland.However, the court ruled that the new legislation overrides older law which cannot obstruct the clear specific will of Parliament. Those findings were contested on the basis that the Acts of Union has legal supremacy, with no power for the implied repeal of a constitutional statute.

But in March the Court of Appeal again held that the protocol was lawfully enacted and must take precedence over the centuries-old legislative clause. The new trade deal was said to subjugate part of the Acts of Union, based on the sovereign will of Parliament.

Those determinations are now set to be subjected to further judicial scrutiny. Referring to the alleged hold-up in receiving documents, Mr O’Hare suggested: “This may be a brilliant example for the Supreme Court in respect of the difficulties posed by the protocol.”