NI Protocol conflicts with the Act of Union – but is not unlawful, Belfast High Court rules in blow to unionist leaders

In a momentous constitutional ruling, Mr Justice Colton found that the protocol – which creates the Irish Sea border – conflicts with the 1800 Act of Union, but that legislation enacting the protocol in Parliament has repealed part of the Act of Union.

The judicial review was spearheaded by TUV leader and QC Jim Allister, former Labour MP Baroness Hoey, and former Brexit Party MEP Ben Habib.

They were joined as applicants by former First Ministers Lord Trimble and Arlene Foster, and former UUP leader Steve Aiken.

John Larkin – who as Stormont’s Attorney General was the most senior legal adviser to Mrs Foster and Michelle O’Neill until last year – represented the applicants in court.

Regardless of today’s outcome, whichever side lost was expected to appeal the judgment firstly to the Northern Ireland Court of Appeal and then to the Supreme Court.

The judge said that “political and constitutional tumult” had followed the vote for Brexit and that the case before him involved a “complex and contentious” situation.

A second case before Mr Justice Colton was taken by former loyalist terrorist Clifford Peeples, but the court decided that the political case was the lead judicial review.

Mr Justice Colton partially accepted one of the arguments from the applicants, finding that said that since the protocol came into force “it cannot be said the two jurisdictions [GB and NI] are on an equal footing with regard to trade”.

He said that conflicts with the Act of Union. However, he went on to say that parliamentary sovereignty meant that that this was not unlawful.

The government argued that if there was a conflict between the legislation passed as a result of the Brexit deal and the Act of Union, then the conflicting portion of the Act of Union had been impliedly repealed.

The case hinged on an argument that foundational constitutional law – which the applicants said included the Acts of Union and the Belfast (Good Friday) Agreement – can only be amended explicitly in primary legislation and not in an indirect way.

The applicants argued that the UK-EU deal breaches the 1800 Act of Union and that even though Parliament passed the protocol in primary legislation – making it very difficult to legally overturn – that foundational constitutional law such as the Acts of Union can only be undermined if there are “clear and unambiguous words [to that effect] in an Act of Parliament”.

The applicants argued that the protocol conflicts with Article Six of the Act of Union (Ireland) Act 1800 which set out the requirement for free trade within the British Isles.

They also argued that Stormont cross-community voting is “at the core of the constitutional settlement” flowing from the Belfast Agreement and that for the vote on the protocol to remove that mechanism is unlawful.

But in response, a lawyer for the Government told the High Court that the protocol is an “orthodox application of Parliamentary sovereignty”.

Tony McGleenan QC said the applicants were effectively “asking the court to ignore the will of Parliament expressed in primary legislation”.

Mr McGleenan argued that Northern Ireland remains within the UK’s custom territory so there is no breach of the Acts of Union.

Mr Justice Colton found that other lawful modern acts of parliament conflicted with the Act of Union and said there was no precedent for the 1800 act annulling modern legislation.

He said that the modern legislation, which gives the clear view of parliament, has supremacy over the Act of Union.

The judge said that both the Act of Union and the Withdrawal Act were constitutional statutes.

He said: “The Withdrawal Agreement is a detailed specific and complex agreement making provision for the withdrawal of the United Kingdom from the European Union, the repeal of the 1972 EC Act and the details for the implementation of the Agreement.

“These specific details are in marked contrast to the general provisions of Article VI [of the Act of Union] and give further weight to the proposition that in recognising the principle of the supremacy of primary legislation and the importance of ‘constitutional’ statutes that section 7A [of the Withdrawal Act] should be given effect.

“These bespoke provisions are further support for giving them interpretative supremacy over the Act of 1800...the more general words of the Act of Union 1800 written 200 plus years ago in an entirely different economic and political era could not override the clear specific will of Parliament, as expressed through the Withdrawal Agreement and Protocol, in the context of the modern constitutional arrangements for Northern Ireland.”

Mr Justice Colton went on: “This matter must also be considered in light of the fact that every provision and clause of the Withdrawal Acts, the protocol and associated documents were fully considered by Parliament. Parliament did so in the context of the three previous rejections of the Withdrawal Agreement which had a different arrangement for Northern Ireland.

“The views supported by the applicants in this case that the protocol was contrary to the constitutional arrangements for Northern Ireland were known to the legislature.

“The Acts were passed by a legislature which was fully sighted of the terms and consequences of the Withdrawal Act.

“The Acts have been approved and implemented pursuant to the express will of Parliament and any tension with Article VI of the Act of Union should be resolved in favour of the Agreement Acts of 2018 and 2020.”

Mr Justice Colton went on to reject every other argument from the applicants – that the protocol breaches the European Convention on Human Rights, the Belfast Agreement, and EU law.

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