Northern Ireland Protocol Bill ‘reinforces’ Union, say ERG law experts

The constitutional status of Northern Ireland under the post-Brexit trading arrangements has been a key issue for unionists opposed to the Protocol.

In a case brought by a group of unionist politicians including the TUV leader Jim Allister, former Labour MP Kate Hoey and the former Brexit Party MEP Ben Habib, a court ruled that the Withdrawal Agreement Act – which includes the Protocol – is in conflict with the 1800 Acts of Union in respect of free trade between Britain and Northern Ireland.

In March this year, however, the Court of Appeal ruled that Northern Ireland’s constitutional status within the UK remains unchanged.

Despite the court’s ruling, meanwhile, unionists maintain that since the Withdrawal Act and the Protocol effectively subjugate the Acts of Union and that damage has been done to the principle of consent underpinning the Good Friday and subsequent agreements.

The UK Government’s Northern Ireland Protocol Bill, meanwhile, has been put forward in part to address some of the issues around sovereignty that had been raised by unionists.

The bill, which is due for its second reading at Westminster on Monday, has been backed by the pro-Brexit European Research Group (ERG) within the Conservative Party.

The ERG’s Legal Star Chamber – described as a “group of preeminent constitutional and European lawyers” including the chairman Sir William Cash MP, who was Shadow Attorney General and is now Chairman of the European Scrutiny Committee – has now carried out ists own analysis of the government’s Protocol bill.

Sir William Cash, in a statement to the News Letter, said the analysis shows that the bill “properly reinforces” the union between Northern Ireland and Great Britain.

“The Legal Star Chamber has come to the conclusion that it approves of the Northern Ireland Protocol Bill because it achieves the constitutional objective of re-affirming Northern Ireland as part of the constitutional territory of the United Kingdom and its sovereignty. It properly reinforces the Belfast (Good Friday) Agreement and the Union,” the MP said.

“The bill will reaffirm in substance the elements of the Articles of Union of 1800 which were held by Keegan (Lord Chief Justice) in the Allister case to have been ‘subjugated’ by the Protocol as given effect by the EU Withdrawal Agreement Act 2020.

“The Bill does not ‘tear up’ the Protocol since it will preserve its provisions in relation to ‘red channel’ goods and also allows for the protection of the EU’s single market against the movement across the Irish land border of goods on which the correct EU tariffs have not been paid or which do not comply with EU regulatory law.

“The bill, with justification, rebalances the relationship between the United Kingdom and the European Union in order to preserve the foundations of the United Kingdom’s constitutional order while still protecting the European Union’s legitimate interests.

“The bill has been made necessary by the EU’s intransigence in respect of the negotiating mandate and given the failure of the negotiations between the European Union and Her Majesty’s Government, attributable to the European Union’s unjustifiable failure to recognise that the United Kingdom has left the European Union in pursuance of a referendum, authorised by a sovereign Act of Parliament and endorsed by the General Election in December 2019.”

The DUP leader Sir Jeffrey Donaldson, whose party has blocked the normal functioning of powersharing government at Stormont in protest at the Protocol arrangements, has backed the government’s Protocol bill.

Welcoming the decision to schedule the second reading of the controversial legislation for Monday, earlier this week Sir Jeffrey said in a statement that “it is important that this bill now progresses rapidly through its legislative stages in the Commons before the summer recess”.