By Tony O’Riley-
The high court in Belfast has thrown out a legal challenge to the Northern Ireland Brexit protocol.
The ruling is a setback for the applicants including the Democratic Unionist Party and a relief for UK and EU negotiators who are planning to announce a package of new arrangements on Wednesday aimed at taking the heat out of the current dispute over Brexit checks on goods crossing the Irish Sea from Great Britain to Ireland.
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Unionist leaders launched the legal challenge in protest at the agreement – signed by Boris Johnson and the EU – creating a trade border in the Irish Sea, disrupting supplies.
However, a judge in the court in Belfast ruled that the EU Withdrawal Act overrides claims that the Protocol breaches the Acts of Union between Britain and Ireland.
The challenge was brought by leading Unionists including Arlene Foster, the former DUP leader and David Trimble, an architect of the Good Friday Agreement.
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They argued that the Protocol breaches Article 6 of the Acts of Union which created the United Kingdom of Great Britain and Ireland in 1800, by leaving Northern Ireland inside the EU’s customs union.
Mr Justice Colton refused a judicial review, rejecting the argument of the Democratic Unionist party and others that the protocol breached the 1800 Acts of Union, declaring that “much constitutional water has passed under the bridge” since then.
Delivering the judgment, Colton agreed with the applicants that the Brexit Withdrawal Act conflicted with the 1800 Acts of Union, but he ruled that the latter legislation including the protocol overrode the provisions of the 200-year old law, as they in effect repealed part of the Acts of Union.
He said while the protocol conflicts with the Acts of Union, subsequent treaties – such as the withdrawal agreement with the EU – was a prerogative power over which the courts had little oversight.
Colton rejected the contention that the post-Brexit trade arrangements breached key provisions of the 1998 Northern Ireland Act. The judge ruled the protocol did not breach articles 1 and 42 of the 1998 legislation that enshrines the terms of the Good Friday peace agreement.
He refused the judicial review ground that Northern Ireland citizens’ human rights were being breached by being unable to influence the EU laws that apply in the region, by not being able to elect MEPs to the European parliament.
The judicial review proceedings were brought by the former Democratic Unionist party leader Arlene Foster, former UUP leader Steve Aiken, Traditional Unionist Voice political leader Jim Allister, Lord Trimble, the former head of the Ulster Unionist party, and co-architect of the 1998 Belfast Good Friday agreement peace deal, the former Brexit party MEP Ben Habib and leave campaigner and former Labour MP Kate Hoey.
The high court had been asked to decide whether to allow a full-scale judicial review of the law agreed in January 2020 by the EU and the UK as part of Boris Johnson’s “oven ready” Brexit package put to voters in the 2019 general election.
During a hearing last month, legal counsel for the unionist leaders argued that the protocol was unlawful because it breached the Acts of Union and the 1998 Good Friday agreement.
Former Northern Ireland attorney general John Larkin QC had presented submissions arguing that the protocol breached article 6 of the Acts of Union which created the United Kingdom of Great Britain and Ireland in 1800, by leaving Northern Ireland inside the EU’s customs union.
He also claimed it was contrary to the Northern Ireland Act which brought the peace deal into law.
He said: “If the power to make law for Northern Ireland can be given to Brussels, it can be given just as legally to the Oireachtas [Irish parliament].”
The legal action was brought as part of formal campaign, launched by the DUP in January, to get the protocol scrapped. A government lawyer had told the High Court that the Northern Ireland Protocol is an “orthodox application of Parliamentary sovereign
The applicants were effectively “asking the court to ignore the will of Parliament expressed in primary legislation”, it was argued. The government insisted that Northern Ireland remains within the UK’s custom territory – despite the trade checks introduced – which meant there is no breach of the Acts of Union.
The verdict comes hours before the EU and the UK are expected to announce a new package of arrangements to ease the dispute over Brexit checks on goods crossing the Irish Sea, which some have called the “sausage wars”. The announcement is scheduled for 3.30pm.
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