Today's landmark court ruling on Northern Ireland Protocol, simplified: The what, why, and who of unionism's rejected legal battle

In short, the judgement of the Supreme Court today ends almost two years of wrangles over the complex lattice of laws which overlay one another to make up today’s legal status quo.

But despite the rejection of their case, unionists have taken heart from the fact that the Supreme Court has affirmed that part of the Acts of Union are in fact “suspended”, in effect.

••• WHO TOOK THE CASE? •••

Those driving the case (the applicants) were:

• James ‘Jim’ Hugh Allister, leader of the TUV;

• Brexiteer property tycoon Benyamin ‘Ben’ Naeem Habib;

• UUP MLA Steve Aiken;

• The ex-DUP leader Rt Hon Arlene Isobel Foster (now a baroness);

• Ex-Labour MP Baroness Catharine Hoey of Lylehill and Rathlin;

• And late former UUP First Minister David Trimble (formally William David, The Rt Hon Baron Trimble of Lisnagarvey).

The five judges ruling on the matter were:

• Robert John Reed – Lord Reed – President of the Supreme Court since January 2020• Lord Hodge, deputy president• Lord Lloyd-Jones• Lord Sales• And Lord Stephens.

••• WHEN DID PROCEEDINGS BEGIN? •••

It all began back in March 2021, when the judicial review proceedings were first brought.

In essence, a judicial review is a request for judges to look closely at a particular act to determine if it is legal.

The group of six unionists brought their case before the High Court in Belfast, but it was dismissed.

However, in the process of rejecting the case, the judge (Mr Justice Colton) found that the Protocol did conflict with the Act of Union – something unionists took as a vindication as they sought to appeal his decision.

The six applicants then went to the Court of Appeal in Belfast, but in March 2022 their case was dismissed again.

The final option was to bring the case to the highest court in the land – the Supreme Court in London.

Now this court too has rejected their case.

••• A THREE-PRONGED ATTACK •••

There were three central beams to the unionist group's case.

• Ground One:

This argued that the Protocol was incompatible with Article VI of the Acts of Union - the law which formally joined together Great Britain and Ireland into one kingdom in 1800.

Article VI of that act spelled out that "subjects of Great Britain and Ireland shall… be on the same footing… in respect of trade”.

Justice Stephens said said yesterday that Article VI had not been repealed but rather had been "modified".

The court said the Protocol over-rides Article VI - or to use its exact term, it partly "subjugates" it, so that it is "in effect suspended".

• Ground Two:

The group argued that the Protocol was incompatible with the Northern Ireland Act 1998, the law which gave force to the Good Friday Agreement.

Section 1(1) of the act states that Northern Ireland remains part of the UK unless the majority of the people of Northern Ireland consent to leave in a referendum.

The group argued there is meant to be no substantial change to the status of Northern Ireland without such a vote - and yet that's what the Protocol has wrought.

But the Supreme Court has now ruled that the 1998 Agreement "does not regulate any change in the constitutional status of Northern Ireland other than the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland".

Loyalist activist Jamie Bryson, among others, now say that what this means in real terms is that the 1998 Agreement's "principle of consent does NOT protect NI’s status in the Union other than the final formal handover of sovereignty... the whole basis of pro Agreement unionism exploded!"

• Ground Three:

The group argued that a set of rules which set out how the NI Assembly would give its ongoing approval to the operation of the Protocol were unlawful.

The set of rules (officially called the 'Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020') meant that any votes on the matter in Stormont would stand on the basis of a simple majority, instead of relying on the weighted majority inherent in the Northern Ireland Act 1998 – a system often called "cross-community consent".

However, the Supreme Court judges confirmed that the 2020 regulations, favouring a simple majority vote, had indeed been "lawfully made".

This was because the European Union (Withdrawal) Act 2018 was deemed to have amended section 42 of the Northern Ireland Act 1998, which deals with cross-community consent votes.

As such, "there was no incompatibility" between the 1998 act and the 2020 regulations.

The first time that a vote on the issue could be held in the Assembly under the Protocol would be the end of 2024.

More on this:

• Protocol court challenge fails: TUV leader says 'political war must go on' after key plank of Good Friday Agreement exposed as 'useless'