UNITED KINGDOM: The Supreme Court rejected a legal challenge to the Brexit agreements made by a group of unionist politicians, including the late David Trimble and Arlene Foster, and declared that the Northern Ireland Protocol is valid.
The appeal was dismissed on all three grounds, including the allegations that the Brexit trading arrangements violated the 1800 Act of Union and the Northern Ireland Act 1998, by the five law lords who preside over the highest court in the UK.
While noting that the seven appellants had claimed that the protocol had “brought about a substantial diminution to the status of Northern Ireland within the UK,” Lord Justice Stephens decided that the protocol did not violate earlier statutes, as claimed.
A resolution to the protocol, which is opposed by his party, “was never going to be found in the courts,” according to Democratic Unionist Party leader Jeffrey Donaldson.
However, he insisted that the Brexit trading arrangements remained “an existential threat to the future of Northern Ireland’s place within the union.”
He urged the government to take the appellants’ points into consideration, saying that “the cases have served to highlight some of the reasons why unionists have uniformly rejected the protocol.”
The decision is a defeat for the DUP, which contended that the protocol, which requires Northern Ireland to adhere to EU trade laws while the rest of the UK does not, has damaged the region’s constitutional standing within the UK.
The verdict gave “important clarity” on the law at a time when the UK and the EU were negotiating a new agreement on the protocol, according to Matthew O’Toole, the leader of the SDLP in Northern Ireland’s assembly. He acknowledged that the appellants would be “disappointed” by the decision.
The judges deemed the appellants’ arguments regarding whether the 1800 Act of Union and more recent acts authorising the UK’s withdrawal from the EU were statutes of a constitutional character to be “academic” in their evaluation of the first ground of appeal.
They claimed that even if they were, the “clearly expressed will of parliament” could not be changed.
The judges’ decision on the second ground of appeal, that the protocol was incompatible with the 1998 Northern Ireland Act, was based on a 2019 Supreme Court lawsuit made by Gina Miller.
In that instance, the judges had unanimously determined that the 1998 act did not govern any change to the constitutional status of Northern Ireland other than the people’s right to choose, via referendum, whether they wished to remain in the UK in a new, united Ireland.
They rejected the claim that the 1998 Act had an “incorrect” connotation.
Thirdly, the judges rejected claims that the protocol could only be upheld by all communities. They did this by pointing out a post-Brexit clause in the 1998 Northern Ireland Act that gave the Northern Ireland assembly the opportunity to decide whether or not articles 5 to 10 of the protocol should continue to be in effect.
A group of unionist and loyalist leaders and activists, including former Labour cabinet minister Kate Hoey, Traditional Unionist Voice leader Jim Allister, former Ulster Unionist party leader Steve Aiken, former Brexit party MEP Ben Habib, and former loyalist prisoner and recent master’s in law graduate Clifford Peeples, brought the challenge in two separate cases that the judges jointly considered.
Additionally, they said that it violated the fundamental consent principle of the 1998 Belfast Good Friday Agreement.
They were unsuccessful in their legal battle in June 2021 at the Belfast High Court, when the presiding judge, Mr. Justice Colton, found that the protocol contained in the Withdrawal Agreement Act did in fact violate the Act of Union’s equal treatment guarantees.
He said that the 1800 regulations were “impliedly repealed” by later legislative measures securing the UK’s exit from the EU, something that was permissible under another “constitutional law.”
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