The UK’s highest court has unanimously dismissed a legal challenge to Brexit’s Northern Ireland Protocol.
In a Supreme Court ruling on Wednesday, five of the country’s most senior judges ruled that the controversial trading arrangement is lawful.
The court dismissed the judicial review appeal on all three grounds including the claims that the Brexit trading arrangements breached the 1800 Acts of Union and the Northern Ireland Act 1998.
The challenge, in two separate cases considered jointly by judges, was made by a group of unionist politicians, Brexiteers, and activists.
They included former Labour Cabinet minister Kate Hoey, former Ulster Unionist Party leader Steve Aiken, former Brexit Party MEP Ben Habib, and Belfast-based loyalist Clifford Peeples.
Good Friday Agreement ‘Broken’
Reacting to the news, Peeples, one of the first to bring the landmark legal challenge, told The Epoch Times the ruling had “huge implications” for the people of Northern Ireland.“There are huge implications of self determination, minority rights, and equality issues,” the former pastor said.
“What the Supreme Court has said is that those rights are all subject to the will of Parliament, which is wrong.
“They might have ticked boxes legally, but that’s most certainly wrong in the social contract that the British government has always enacted in the people of Northern Ireland.
“That fight will continue whether that fight continues through avenues in the Republic of Ireland, through their court system, or whether that fight is actually taken through the court system in Europe, is yet to be determined.
“Most certainly, this decision some may think is the end, it’s not, it’s just a precursor to the beginning.”
Speaking to the BBC in the aftermath of Wednesday’s ruling, fellow appellant Ben Habib claimed the judgement shows that the United Kingdom of Great Britain and Northern Ireland was “broken.”
“We have complete constitutional clarity and that itself is a victory for ourselves,” he said.
“We have just had the Supreme Court confirm there is an Irish Sea border and it was imposed without cross-community consent and that is what we have been arguing for.
“They may have ruled that it has legally done so but effectively the United Kingdom of Great Britain and Northern Ireland is broken, the Good Friday Agreement is broken, and that is complete constitutional clarity for us.”
DUP leader Sir Jeffery Donaldson, who also attended Wednesday’s hearing, said the case highlighted why unionists are opposed to the trading arrangements.
“The government must consider this judgment, their own arguments to the court, and take the steps necessary to replace the protocol with arrangements that unionists can support,” he said.
When asked about the Supreme Court judgement in the Commons, Northern Ireland Secretary Chris Heaton-Harris said “things need to change.”
“The situation as it currently stands is undermining the Belfast Good Friday Agreement and power-sharing,” he said on Wednesday.
“Everybody in this chamber and everybody in Northern Ireland and our interlocutors in the European Union understand that the Protocol has caused real problems and these include trade disruption and diversion, significant costs and bureaucracy for traders and areas where people in Northern Ireland have not been able to access the same range of goods.”
Clarity
Lawyers involved in the Supreme Court case on Wednesday told The Epoch Times that they were taking time to consider the judgement.Ciaran O’Hare, of Belfast law firm McIvor Farrell Solicitors, said, “This case broke new legal ground in various ways, for example, it was the first ever case in Northern Ireland whereby our Court of Appeal granted permission to appeal directly to the Supreme Court,” he said.
“It is clear that our Court of Appeal took this exceptional step due to the immense constitutional importance of this case, not just for Northern Ireland, but also the United Kingdom as a whole, Ireland, and the European Union.”
As part of the Brexit deal, the protocol creates a trade border between Northern Ireland and the rest of the UK.
The trading arrangement was agreed by the UK and EU in 2019 to ensure free movement of trade across the Irish land border after Brexit.
Becoming effective in 2021, the arrangements 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 latest Supreme Court judgement was delivered after arguments against its legality were considered at a two-day hearing last year after the Court of Appeal upheld a ruling in Belfast High Court dismissing the legal challenge.
Appellants 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.
The legal challenge also contended that the protocol undermines the peace process legislation underpinning Northern Ireland’s power sharing settlement at Stormont—the 1998 Northern Ireland Act.
The Northern Ireland Act, which gave effect to the historic Good Friday peace agreement, guarantees that the constitutional status of the region can only be changed with the consent of its citizens via referendum.
It also includes cross community provisions under Section 42 that ensure controversial decisions at Stormont can only be taken if they are supported by a certain proportion of both nationalist and unionist MLAs.
The Withdrawal Agreement does provide for a future Assembly vote on the continuation of the protocol, however the UK government has amended Stormont rules so the vote can be passed on a straight majority basis, rather than having to meet the cross community consent thresholds.
In 2021, Belfast High Court judge Mr. Justice Colton dismissed a judicial review challenge against the lawfulness of the protocol on all grounds.
His judgement was upheld by the Court of Appeal last year.
While the court found that the protocol does conflict with the Acts of Union in respect of unfettered trade, judges ruled that the 1800 statute had been lawfully modified by Parliament.
The court also dismissed the argument that the post-Brexit trading arrangements have changed the constitutional status of Northern Ireland.
