Unionist Northern Ireland Protocol legal challenge over post-Brexit trading to go to Supreme Court

The protocol has placed a border down the Irish Sea which means checks on goods crossing into NI.

A unionist legal challenge to the Northern Ireland Protocol can proceed directly to the UK’s highest court, senior judges in Belfast have announced. The group of politicians were granted leave to appeal a ruling that that post-Brexit trading arrangement is lawful at the Supreme Court. Three legal points of public importance were identified for consideration in the ongoing campaign being mounted by TUV leader Jim Allister and other representatives. Lady Chief Justice Dame Siobhan Keegan confirmed: “We have considered the papers, and in the circumstances of this case we are going to grant leave to appeal to the Supreme Court.” Implemented at the start of 2021 to prevent a hard Irish border, the protocol means Northern Ireland remains in the EU single market for goods.

The new trade checks on produce entering the region from Britain has created a de facto customs border in the Irish Sea. Amid widespread unionist opposition to the accord, a coalition - which also includes Baroness Hoey and former Brexit Party MEP Ben Habib - have been seeking to have it declared unlawful. A separate challenge is also being mounted by loyalist pastor Clifford Peeples.

Last year, the High Court in Belfast found that the Withdrawal Agreement Act, which introduced the protocol, conflicts with Article 6 of the Acts of Union 1800, drawn up to ensure equal trade footing between Britain and Ireland.

However, the court ruled that the new legislation overrides older law which cannot obstruct the clear specific will of Parliament.

Those findings were contested on the basis that the Acts of Union has legal supremacy, with no power for the implied repeal of a constitutional statute. But in March this year the Court of Appeal again held that the protocol was held to be lawfully enacted and must take precedence over the centuries-old legislative clause. The new trade deal was said to subjugate part of the Acts of Union, based on the sovereign will of Parliament. However, it will now be subjected to further scrutiny by justices at the Supreme Court in London. Dame Siobhan confirmed permission is being granted for both appeals to proceed, with three legal questions identified for consideration:

  • Did the Court of Appeal err in law by concluding that (a) Article 6 of the Acts of Union did not prevent the UK Government from effecting the Withdrawal Agreement and (b) that the European Union Withdrawal Act 2018 lawfully modifies Article 6?

  • Did the Court of Appeal err in law by failing to conclude that the modification of Article 6 constitutes a change in the constitutional status of Northern Ireland, in conflict with the Northern Ireland Act 1998?

  • Did the Court of Appeal err in law by concluding that the Protocol lawfully disapplied section 42 of the Northern Ireland Act 1998?

"There are three areas that we are raising in the order we are issuing,” the Lady Chief Justice said. Outside court a solicitor for Mr Peeples stressed that it is rare to be granted leave to go directly to the Supreme Court without having to petition for a hearing. Ciaran O’Hare, of McIvor Farrell, said: “It is clear that the 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.”