Brexit protocol is lawful, Supreme Court rules

Judges reject legal challenge to UK-EU trade arrangements by group of unionist leaders

      Wednesday 8th February, 2023. 

The NI protocol is lawful, the supreme court has ruled, rejecting a legal challenge to the Brexit arrangements by a group of unionist leaders including the former first ministers the late David Trimble and Arlene Foster.

The highest court in the UK unanimously dismissed the judicial review appeal on all three grounds including the claims that the Brexit trading arrangements breached the 1800 Act of Union, the NI Act 1998.

The challenge, in two separate cases considered jointly by the judges, was made by a group of unionist and loyalist leaders and activists that also included the former Labour cabinet minister Kate Hoey, the Traditional Unionist Voice leader Jim Allister, former Ulster Unionist party leader Steve Aiken, along with the former Brexit party MEP Ben Habib and former loyalist prisoner and recent masters in law graduate Clifford Peeples.

They had argued that the protocol was unlawfully created because, they said, it breached the 1800 Act of Union, which guaranteed all four nations of the UK would be treated equally.

They also argued that it had breached the principle of consent at the core of the 1998 Belfast Good Friday agreement.

They lost their case in the Belfast high court in June 2021 with the presiding judge Mr Justice Colton concluding that the Withdrawal Agreement Act containing the protocol did conflict with the guarantees of equal treatment contained in the Act of Union.

However, he said the later parliamentary legislation sealing the UK’s exit from the EU “impliedly repealed” the 1800 laws, something that was possible with another “constitutional law”.

The TUV leader, Jim (Jimbo) Allister, had said the ruling "confirmed the protocol is dismantling the union". 

The appellants had also argued that the protocol unlawfully eliminated the constitutional safeguard enshrined in section 42 of the NI Act 1998, which requires assembly votes to have cross-community support. Finally, the appellants alleged that there had been a breach of the European convention on human rights and EU law.

With many thanks to: The Guardian and Lisa O'Carroll (Brexit correspondent) @lisaocarroll for the original story. 

Follow these links to find out more on this story: Brexit NI protocol is lawful, Supreme Court rules

Guardian View on overriding the Brexit treaty: a national disgrace

                     EDITORIAL 

Boris Johnson’s plans to shred the Northern Ireland protocol have no basis in law, economics or diplomacy

                  Thu 9th Jun, 2022. 

There is no good reason for the UK to sabotage relations with its European neighbours, but doing it to score ideological points with a small faction of the prime minister’s supporters is exceptionally poor judgment. Yet that is what Boris Johnson intends to do with legislation, now said to be due for publication next week, to override the Northern Ireland protocol of the Brexit deal he signed in 2019.

The ostensible trigger is the collapse of power-sharing at Stormont, caused by the Democratic Unionist party’s refusal to form an administration with Sinn Féin. The DUP objects to the basis of the protocol – the requirement for customs checks on goods crossing the Irish Sea – and wants it rewritten. The EU offers modifications in the way that the treaty is implemented, saying checks are necessary to prevent Northern Ireland becoming an unregulated backdoor into the single market.

Mr Johnson accepted the Brussels view when he did the deal, then changed his tune. He is now equivocating between different degrees of diplomatic vandalism. Tory hardliners, represented in cabinet by Liz Truss, the foreign secretary, envisage a law that would strike the protocol down. A less extreme variant would create an override mechanism, but keep it in reserve, pending the outcome of negotiations in Brussels. The DUP prefers the more drastic option, fearing that powers in reserve would stay unused. Either version would be an affront to international law and a stain on the UK’s credentials as a practitioner of responsible statecraft. Unsurprisingly, the EU is becoming less willing to compromise.

The practical problems caused by Irish Sea customs checks are overstated. Businesses are adapting. Data published by the Office for National Statistics last week shows that Northern Ireland is the only part of the UK outside London to enjoy positive growth in the first quarter of this year. That reflects a privileged position in the single market.

In other words, the protocol is doing more economic good than harm. It is politically toxic because Mr Johnson’s duplicitous ways have made it so. A responsible prime minister would have defended the treaty to which he put his name instead of disowning it, managing unionist disappointment with realistic concessions instead of stoking sectarian anger. The Tory ultras demanding the most radical confrontation with Brussels are animated by points of Brexit theology that are tangential to the customs issue and not even a priority concern for the DUP.

Unilateral abandonment of a treaty would be reckless at the best of times. The international context makes it reprehensible. European democracies are in a moral confrontation with Russia, provoked by Vladimir Putin’s war of aggression against Ukraine. Mr Johnson has been stalwart in his support for Kyiv, and on that basis claims for himself status as a champion of the western alliance. The boast is undermined by his sabotage of continental solidarity closer to home. Micheál Martin, the Irish taoiseach, was right this week to warn his British counterpart against actions that show “disregard for essential principles of laws, which are the foundation of international relations”.

No good can come of re-enacting old Brexit battles at home or abroad. The only purpose is conflict for its own sake as a device to animate a fanatically partisan Eurosceptic spirit that Mr Johnson craves because his support elsewhere has fallen away. In so doing, the prime minister is not only prolonging his own disgrace but using it to contaminate Britain’s international reputation.

With many thanks to: The Guardian for the original publication. 

Follow these links to find out more on this story: Prime Minister Boris Johnson holds secret NI Protocol talks to appease the DUP and backbench Brexiteers

UK poised to introduce Bill dismantling the NI Protocol

We can upgrade Brexit and ease the cost of living by going back to the single market.