Legal case fails after judge finds Protocol lawful and says Brexit legislation overrides Act of Union
A High Court ruling on the lawfulness of post-Brexit arrangements has confirmed that Northern Ireland’s constitutional position within the UK has been “damaged”, unionists have said.
Mr Justice Colton rejected legal challenges against the lawfulness of the Northern Ireland Protocol at the High Court in Belfast yesterday (Wednesday).
But he did agree with the contention that the Brexit Withdrawal Act, in which the Protocol is enshrined, conflicted with the 1800 Acts of Union; although he said this was not unlawful because the Withdrawal Act effectively overrode the provisions of the 200-year old law.
Incoming DUP leader Sir Jeffrey Donaldson tweeted that the ruling is “politically significant”.
He said: “It confirms the Protocol damages our constitutional position in the UK contrary to the principle of consent & various agreements. If not resolved it will have potential consequences for the future stability of political institutions.”
Former UUP leader Steve Aiken, who was one of the applicants who brought the judicial review, said the issue is of “such magnitude” that it now needs to be appealed to a higher court.
He said: “This ruling impacts on every single part of the United Kingdom. The judgment has the potential to set a wide reaching precedent across all of our nation.
“The fact that the judge found that the Withdrawal Agreement Act, which includes the Protocol, does conflict with the 1800 Act of Union in respect of free trade between Great Britain and Northern Ireland should be a matter of grave concern for everyone.
“It has implications for all of us whether we are English, Scottish, Welsh or Northern Irish, who put the links of culture, family, business and trade first.”
TUV leader Jim Allister, another of the unionist leaders who brought the legal challenge, added: “The key finding in today’s court ruling that the Protocol has repealed a key plank of the Acts of Union is a wake-up call to every unionist.
“It is now confirmed the Protocol is dismantling the Union.”
Sinn Fein, the SDLP and the Alliance Party welcomed the court’s ruling, and said it is time to get on with making the Protocol work.
Sinn Fein’s deputy First Minister Michelle O’Neill tweeted: “The Protocol is a consequence of the hard Brexit championed by the Tories & DUP. It limits the impact of Brexit.
“There is no credible alternative. Time to get on with making it work.”
SDLP MLA Matthew O’Toole told the BBC: “Brexit has been, from beginning to end, a disaster for Northern Ireland, it was always going to be thus.
“I would rather we hadn’t got into this situation in the first place, the Protocol is a complicated answer to the complicated position that we have been put in.”
Alliance Party MP and Brexit spokesman Stephen Farry said the focus should now be on solving the practical problems posed by the Protocol.
He said: “Those who brought this judicial review should take heed of the judgment and stop attempting to paint the Protocol in constitutional terms and making it about identity.
“Instead, they would be much better joining others in focusing on pragmatic solutions to problems posed by it.”
The judicial review was launched in the name of unionists from across the UK, including former DUP leader Arlene Foster, Mr Aiken, Mr Allister, Belfast Agreement architect Lord Trimble, former Brexit Party MEP Ben Habib and Baroness Hoey.
They are now expected to mount an appeal against yesterday’s ruling.
It had been contended that the Protocol breaches Article 6 of the Act of Union by leaving Northern Ireland inside the EU’s customs union.
Tony McGleenan QC, for the Government, countered that Parliament had full legal authority to implement the terms.
Part of the case centred on the concept of implied repeal, where a later Act is assumed to take precedence over earlier conflicting legislation.
Delivering judgment, Mr Justice Colton held that the 2018 Withdrawal Act overrides Article 6 of the Act of Union.
“The more general words of the Act of Union 1800 written 200-plus years ago in an entirely different economic and political era could not override the clear specific will of Parliament, as expressed through the Withdrawal Agreement and Protocol, in the context of the modern constitutional arrangements for Northern Ireland,” he said.
Prime Minister Boris Johnson told the Commons that the Government “will of course study the ruling of the court in detail” adding that nothing “will affect the position of Northern Ireland as part of the United Kingdom, and we will make sure that we uphold that”.