Protocol legal fight to go on after judges reject unionist challenge

Senior judges in Belfast dismissed a joint-unionist challege to the protocol finding that it trumps part of the Act of Union in 1800.

It does so because the post-Brexit trade agreement with the EU is based on the sovereign will of Parliament, which voted for it.

The judges held that Northern Ireland’s constitutional status within the United Kingdom, however, remains unchanged.

Lady Chief Justice Dame Siobhan Keegan stated: “This case is very far from one where a court would even begin to contemplate whether it could intervene as the appellants suggest.”

The new trade checks on produce entering the Province from Britain has created a customs border in the Irish Sea between Britain and Northern Ireland, and keeps the Province inside the EU single market.

With widespread unionist opposition to the protocol, TUV leader Jim Allister, Baroness Hoey and former Brexit Party MEP Ben Habib took a legal challenge to have it declared unlawful.

In June last year a High Court judge found that the Withdrawal Agreement Act, which introduced the protocol, conflicts with Article 6 of the Act of Union, drawn up to ensure equal trade footing between Britain and Ireland.

However, he ruled that the new legislation overrides older law which cannot obstruct the clear specific will of Parliament.

Those findings were appealed on the basis that the Act of Union has legal supremacy, with no power for the implied repeal of a constitutional statute.

The appellants argued that a legislative prohibition on any trade disparity with Great Britain renders the protocol invalid.

But the court found that Article 6 of the Act of Union has been modified by the terms of the Withdrawal Agreement Act – without any implied repeal.

“Parliament was clearly sighted on the protocol which was the end result of a protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post-Brexit,” Dame Siobhan said.

“The terms were settled and made law after a long parliamentary process, and it cannot be seriously suggested that Parliament was unaware of the changes that may be wrought.”

With previous Acts of Parliament subject to the Withdrawal Act, she added: “This means that the terms of the protocol take precedence.”

Further grounds of challenge based on claims that the protocol is incompatible with the 1998 Northern Ireland Act and breaches the European Convention on Human Rights were also rejected.

With a separate challenge by Belfast man Clifford Peeples similarly dismissed, Dame Siobhan confirmed: “We have determined that none of the legal arguments presented by the appellants prevail.

“Accordingly, the appeal must be dismissed.”

Mr Allister, Baroness Hoey and Mr Habib intend to take their case to the UK Supreme Court in London.

Sir Jeffrey Donaldson said last night that the ruling points to a protocol that is “destroying consensus politics”.

The DUP leader said: “The judgment reminds us that the Northern Ireland Protocol led to the abandonment of consensus politics as the government and the pro-protocol parties embraced majority rule. Cross-community voting was ditched by the protocol.

“Not one single unionist MLA supports the protocol because it undermines our place in the United Kingdom and separates us from our main market.”

Speaking outside Belfast High Court, Mr Allister said: “Our two takeaways from today is confirmation that the key Article 6 of the Act of Union, which is supposed to guarantee us the same footing in terms of trade as part of the economic union that is the United Kingdom, has been subjugated by a protocol to which no one in Northern Ireland has ever been asked or ever consented to.

“The second takeaway is that the much vaunted consent principle of the Belfast Agreement is a con. It means nothing.

“It applies only to the final handover of the title deeds of Northern Ireland.”