The legality of the post-Brexit trading arrangements had been challenged by a number of unionist politicians and Brexit supporters who say it breaches the Acts of Union and the Northern Ireland Act.
At a hearing on Wednesday morning, the court said the decision was a unanimous one.
Lord Stephens said in the ruling: “The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.
“A clear answer has been expressly provided by Parliament in relation to any conflict between the Protocol and the rights in the trade limb of article VI (of the Acts of Union 1800).”
Ground One: Dismissed as Article VI is subject to the Protocol such that any parts which conflict with the Protocol are suspended.
Ground Two: Dismissed as section 1(1) of the NIA 1998 relates only to the right to determine whether Northern Ireland remains part of the UK or joins a united Ireland.
Ground Three: Dismissed as section 7A amended the existing law such that the system created by the 2020 Regulations was lawful without the requirement of cross-community support. The 2020 Regulations were lawfully made.
DUP leader Sir Jeffrey Donaldson (left), Ben Habib (back left), Baroness Kate Hoey (second right), and former first minister Dame Arlene Foster (right), outside the UK Supreme Court in London
Arguments were considered by the UK’s highest court at a two-day hearing last year after the Court of Appeal upheld a ruling in Belfast High Court dismissing the legal challenge.
The protocol, which is a key aspect of the Brexit Withdrawal Agreement, was jointly designed by London and Brussels to keep Ireland’s land border free flowing following the UK’s departure from the EU.
Becoming effective in 2021, the arrangements instead shifted customs and regulatory checks to the Irish Sea and created new red tape on the movement of goods between Great Britain and Northern Ireland, with trade in the region remaining subject to certain EU Single Market rules.
The appellants had argued that the legislation passed at Westminster to give effect to the Withdrawal Agreement conflicts with the 1800 Acts of Union that formed the United Kingdom, particularly Article 6 of that statute guaranteeing unfettered trade within the UK.
Goods being checked at the port of Larne
The legal challenge also contends that the protocol undermines the peace process legislation underpinning Northern Ireland’s powersharing settlement at Stormont – the 1998 Northern Ireland Act.
The Court proceeds on the basis the Protocol does conflict with Article VI [54] following the findings of the lower courts [53].
First, the Protocol is incorporated into UK law by section 7A. Section 7A stipulates that all enactments are to have effect subject to section 7A. Consequently, Article VI is modified to the extent it conflicts with the Protocol via section 7A [65].
The debate about whether the Acts of Union and/or the Acts enabling the UK’s withdrawal from the EU are statutes of a constitutional character, is academic. The suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. A clear answer has been provided by Parliament in relation to any conflict between the Protocol and any other enactment. The Acts of Union and Article VI remain in place but are modified to the extent and for the period during which the Protocol applies [66].
Second, Parliament, by enacting the 2018 Act and the European Union (Withdrawal Agreement) Act 2020, authorised the making of the Protocol. The clear intention of Parliament in enacting these Acts was to permit the Crown to make the Protocol [73].
Ground Two
The Supreme Court has previously held that section 1(1) of the NIA 1998 does not regulate any change in the constitutional status of Northern Ireland other than the right to determine whether to remain part of the UK or become part of a united Ireland. There is no reason to depart from this finding. The Appellants’ submissions regarding a different meaning are incorrect [84].
Ground Three
The requirement of cross-community support is imposed by section 42 of the NIA 1998. The 2020 Regulations inserted section 56A and Schedule 6A into the NIA 1998 [104]. Schedule 6A sets out a system called a ‘consent resolution’, which allows the Northern Ireland Assembly to vote on the continued application of Articles 5 to 10 of the Protocol [104 – 105]. Schedule 6A states that section 41 of the NIA 1998 does not apply in relation to consent resolutions. The effect of this is that a ‘consent resolution’ can be passed without the requirement of cross-community support [106].
The Court acknowledged the potential force in the Appellants’ argument that cross-community support is still required for matters outside the Assembly’s legislative competence. However, all enactments are to be read subject to section 7A. Section 7A had already modified section 42 of the NIA 1998. The 2020 Regulations were compatible with section 42 of the NIA 1998 as modified. There is therefore no incompatibility between the 2020 Regulations and section 42 of the NIA 1998 [108].
Section 8C of the 2018 Act provided the power to make the 2020 Regulations. It is clear from the wording of section 8C that Parliament intended to confer the power to make regulations which amend primary legislation [109]. * References in square brackets are to paragraphs in the judgment
