Unionist challenge to Northern Ireland protocol gets Supreme Court listing in London

The protocol row deepened this week as the EU declared it is resuming legal action against the UK government.

A unionist legal challenge to the Northern Ireland protocol has been listed for hearing at the Supreme Court in London.

Justices have allocated two days in November and December to hear arguments in the ongoing legal campaign mounted by a group of politicians, along with separate proceedings brought by a loyalist pastor.

They are appealing decisions reached by courts in Belfast that the post-Brexit trading arrangement is lawful.

The challenge comes as the EU declared it would resume legal action against the UK government in retaliation over Boris Johnson’s plans to unilaterally scrap parts of Northern Ireland’s Brexit deal.

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 involving TUV leader Jim Allister, Baroness Hoey and former Brexit Party MEP Ben Habib has sought to have it declared unlawful.

A similar case was mounted by the Belfast-based 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.

Leave to appeal was granted in both cases, with three legal points of general public importance.

The three points 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?

Mr Peeples’ solicitor revealed that he has been notified that the cases have been listed for hearing on November 30 and December 1 “on an expedited basis”.

Ciaran O’Hare, of McIvor Farrell,said: “These proceedings are more important than ever before and are of immense constitutional importance not just for Northern Ireland, but also the United Kingdom as a whole, Ireland and the European Union.”

He added: "My client hopes that his Supreme Court case will bring about clarity in relation to the legal position with regards to the NI Protocol.

“He hopes that the Supreme Court declares that the Protocol breaches the Northern Act Ireland 1998 and the Good Friday Agreement, and that it conflicts with the Acts of Union, which is of course the legal foundation of the United Kingdom.”

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