Brexit’s NI Protocol is lawful but conflicts with Acts of Union, judge rules

Two legal challenges against the lawfulness of Brexit’s Northern Ireland Protocol were dismissed by High Court judge Mr Justice Colton on Wednesday.

He rejected arguments that the contentious trading arrangements, which have created economic barriers between Great Britain and Northern Ireland, unlawfully breached the terms of the 1800 Acts of Union.

The judge agreed with the contention that the Brexit legislation containing the Protocol did conflict with provisions within the 1800 Acts of Union that guaranteed free trade within the UK.

However, he ruled that both were constitutional pieces of legislation and the Withdrawal Agreement Acts of 2018 and 2020, which were expressly agreed by a modern day Parliament, effectively overrode the provisions of the 200-year old law.

Justice Colton also dismissed the argument that the Protocol breaches the 1998 legislation that underpins Northern Ireland’s Good Friday Peace Agreement.

The lead judicial review case was taken by a collective of unionists and Brexiteers from across the UK, including former DUP leader Arlene Foster, former UUP leader Steve Aiken, TUV leader Jim Allister, Belfast Agreement architect Lord Trimble, former Brexit Party MEP Ben Habib and Baroness Hoey.

An adjoined case was taken by Belfast pastor Clifford Peeples.

Outside court, the applicants in the first case vowed to continue their fight, claiming the judgment had confirmed their long standing argument that Brexit had “broken” the terms of the Union.

Outside court, Mr Habib said: “The judge found against us on every ground but, crucially, what he found was the Act of Union Article 6, a fundamental part of the Act of Union 1800, no longer exists, that Northern Ireland and Great Britain have effectively been severed by the Protocol.

“It seems to have just gone through Parliament without even the Prime Minister recognising that his own act, the Northern Ireland Protocol, has actually broken the union of the United Kingdom.”

The Protocol is deeply unpopular with unionist and loyalists as it creates a trade border between Northern Ireland and Great Britain and means EU rules governing trade in goods still apply in the region.

The judge dismissed the arguments put forward by the applicants that the Protocol breaches key provisions of the 1998 Northern Ireland Act, in particular, those related to the consent mechanisms contained in the law that flowed from the historic peace deal of 23 years ago.

The judge also threw out the argument that Northern Ireland citizens’ human rights are being breached by being unable to influence the EU laws that apply in the region, by not being able to elect MEPs to the European Parliament.

He also rejected the argument that the terms of the Northern Ireland Protocol breach EU law.

A key plank of the legal case before the High Court hinged on the contention that Article 6 of the Acts of Unions, which enshrines that no part of the United Kingdom should be treating differently to the rest in respect of trade access, has been unlawfully breached by the Protocol.

The judge said there was a “conflict” with the different arrangements pertaining in Northern Ireland as a result of the Protocol and “equal footing” for trade enshrined in Article 6.

“Although the final outworking of the Protocol in relation to trade between GB and Northern Ireland aren’t clear, and are the subject matter of ongoing discussions, it cannot be said the two jurisdictions are on equal footing in relation to trade,” he said.

However, the judge said as the Acts of Union and the Brexit withdrawal legislation were both statutes of a constitutional character, his role was to rule on which one should prevail in law.

The judge said a starting point, based on fundamental legal principles, was that the most recent legislation should take precedence.

“Much constitutional water has passed under the bridge since the enactment of the Act of Union,” he said, noting that Ireland had been partitioned since that law was passed.

The judge said there was no legal precedent whereby the Acts of Union had operated to “nullify a subsequent act of Parliament”.

He said there was, however, capacity within the UK’s constitutional arrangements for the “implied repeal” of statute with the passing of latter laws.

Concluding on that issue, he said: “The Acts (2018 and 2020 Withdrawal Agreement Acts) have been approved and implemented pursuant to the express will of Parliament and any tension with Article Six of the Act of Union should be resolved in favour of the agreement acts of 2018 and 2020.”

In his lengthy ruling, judge Colton was also critical of both the Government’s and the applicants’ assessment of the problems created by the Protocol.

He said the Government’s suggestion that the arrangements were only confined to a “limited pool of technical and legal” rules was “at best an understatement”.

On the other hand, he accused lawyers for the applicants of overstating the extent of the problem and, in particular, an analogy made during the case that Northern Ireland under the Protocol was akin to the Vichy regime in Nazi-occupied France.

“Whatever their criticisms of the Protocol may be, they are not apt for comparison with a world war resulting in millions of deaths and widespread economic devastation,” he said.

The judge also questioned whether the judicial review process was the appropriate way of challenging the outcome of the Brexit deal.

“The making of treaties and the conduct of foreign affairs are matters of high politics, which are unsuited to supervision by a court under judicial review application,” he said.