Pan unionist legal challenge to NI protocol on hold as changes expected

A pan-unionist legal challenge to the Northern Ireland Protocol has been put on hold amid claims of a potential “change” in the UK government’s position.

Monday, 11th October 2021, 4:10 pm
Updated Monday, 11th October 2021, 5:56 pm
PACEMAKER BELFAST 30/06/2021 TUV MLA Jim Allister (left) leaves Belfast High Court

The bid to overturn a previous ruling that the post-Brexit trading arrangements are lawful was due to get underway at the Court of Appeal in Belfast today.

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

But with the EU set to table new proposals for reforming the Protocol, senior judges questioned whether the appeal should proceed when further political negotiations are expected.

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During preliminary exchanges counsel for the unionists disclosed that one of his clients had just been in direct contact with a representative on the government’s side.

John Larkin QC informed the court: “There was an indication that there was some change that would be communicated. More than that wasn’t said.”

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 region 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 being challenged 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.

Earlier this year 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But it held that the new legislation overrode and effectively repealed relevant provisions within centuries-old law.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.

An appeal against those findings was listed for a two-day hearing.

Based on the anticipated political developments, however, Lady Chief Justice Dame Siobhan Keegan sought counsel’s opinion on proceeding at this stage.

“We don’t want to waste time if things change,” she pointed out.

Mr Larkin initially indicated he was ready to open the appeal.

“There is a limited state of knowledge on the part of my clients, Her Majesty’s Government knows much more about what they want in respect of the negotiations than we do,” he said.

Tony McGleenan QC, for the UK Government, pointed out the appeal is being taken against the Prime Minister, Secretary of State for Northern Ireland, and the Chancellor of the Duchy of Lancaster.

He noted that Brexit Minister Lord Frost is involved in the negotiation process.

“I recognise and acknowledge that there are noises about changes in respect of (how the Protocol is operating),” Mr McGleenan told the court.

“I have no instructions about it, and I have no insight.”

Following a short adjournment Mr Larkin then provided brief details of the contact with one of the appellants, stressing that it had not reached counsel for the government.

Postponing the case to next week for a further review, Dame Siobhan pledged that the appeal will be heard as soon as possible.

She told the parties: “I can assure you we will find time for the hearing immediately after Halloween.”

A related challenge to the Protocol is being taken by loyalist pastor Clifford Peeples.

Outside court the Belfast man’s solicitor, Ciaran O’Hare of McIvor Farrell, confirmed: “Because the political timetable for the next few days on the UK and EU plane is forecast to be significant, the proceedings have been postponed for a short while to allow the parties to evaluate any legal ramifications arising.”