Protocol court case: Anti-Protocol camp presses home arguments as hearing ongoing

The case is a final attempt to keep alive the legal arguments being advanced against the Protocol by a team of unionists, who have already seen two rejections of their attempts to start a judicial review into the post-Brexit arrangements.

According to Jamie Bryson – who is sitting in court in London, following proceedings – John Larkin KC is currently outlining the “guarantee of equal footing” as set out in the Acts of Union.

More details expected soon. A judgement from the court is expected some time in 2023.

The applicants in the case are:

TUV leader Jim Allister; ex-Labour MP Kate Hoey; Brexiteer businessman Ben Habib; ex-UUP leader Steve Aiken; and ex-DUP leader Arlene Foster.

They are represented by solicitor Colin Dougan, barrister Denise Kiley, and former Attorney General of Northern Ireland John Larkin.

The applicants are making the following main arguments:

Firstly, that the Protocol is incompatible with the Acts of Union 1800 – specifically with Article VI which says subjects of Great Britain and Ireland shall be on the same footing with respect to trade.

Secondly, that the Protocol is incompatible with the Northern Ireland Act 1998 – in particular the section that says “Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of the majority of the people of Northern Ireland voting in a poll…”

And thirdly, that the constitutional safeguard in section 42 of the Northern Ireland Act 1998, requiring Assembly votes to have cross-community support, has been unlawfully undermined.

In addition, they allege that the European Convention on Human Rights and EU law had been broken too.

In a joint statement ahead of the case, Mr Allister, Ms Hoey, and Mr Habib said the Supreme Court hearing was "the culmination of the legal fight against the Union-dismantling Protocol".

They added: "It is very important to fully test these core legal issues, but, ultimately, the Protocol requires political defeat through holding tenaciously to the line: Stormont, or Protocol?

"There can be no let up in Unionist determination to remove the scourge of the Protocol from our backs."

This morning, Mr Bryson said: “The political ramifications of this case are huge. If the applicants lose, as in earlier courts, but demonstrate the Acts of Union are “subjugated” and that the Belfast Agreement doesn’t in fact guard against constitutional change, then that has enormous political consequences.

“In many ways, the nightmare scenario would be to win, but on the basis that the Protocol doesn’t breach the Acts of Union. Hard to see how that would happen. A win in which the Acts of Union trumps the Protocol, rendering it unlawful, is the aim.”

NOTE: The News Letter website briefly contained an article saying the case had been decided this morning; it hasn’t, and the hearings continue. The article – draft text about the background of the case with a sample headline – went live in error.

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