Northern Ireland Protocol is legal Supreme Court rules
A legal challenge to UK-EU trade arrangements by a group of Unionist leaders have been rejected
Last updated 8th Feb 2023
The Supreme Court has unanimously dismissed a challenge over the Northern Ireland Protocol post-Brexit trading arrangements.
Legal concerns surrounding the contentious trading arrangement was challenged at the UK's highest court by a group made up of Unionists and Brexiteers.
The original appellants, including former First Ministers Arlene Foster and the late David Trimble, had argued the arrangements were unlawful, however the challenge was rejected by a panel of five justices on Wednesday, following a hearing last year.
Announcing the court's decision, Lord Stephens said the appeal was "unanimously dismissed" on all grounds.
The protocol, which is a key aspect of the Brexit Withdrawal Agreement, was jointly designed by London and Brussels to keep Ireland's land border free-flowing following the UK's departure from the EU.
Becoming effective in 2021, the arrangements instead shifted customs and regulatory checks to the Irish Sea and created new red tape on the movement of goods between Great Britain and Northern Ireland, with trade in the region remaining subject to certain EU Single Market rules.
The appellants argued that legislation passed at Westminster to give effect to the Withdrawal Agreement conflicts with the 1800 Acts of Union that formed the United Kingdom, particularly Article 6 of that statute guaranteeing unfettered trade within the UK.
They also claimed the protocol undermines the peace process legislation which underpins Northern Ireland's power sharing settlement at Stormont - the 1998 Northern Ireland Act.
The Northern Ireland Act, which gave effect to the historic Good Friday peace agreement, guarantees that the constitutional status of the region can only be changed with the consent of its citizens via referendum.
It also includes cross-community provisions (Section 42) that ensure controversial decisions at Stormont can only be taken if they are supported by a certain proportion of both nationalist and unionist MLAs.
The Withdrawal Agreement does provide for a future Assembly vote on the continuation of the protocol; however, the UK Government has amended Stormont rules so the vote can be passed on a straight majority basis, rather than having to meet the cross-community consent thresholds.
In 2021, Belfast High Court judge Mr Justice Colton dismissed a judicial review challenge against the lawfulness of the protocol on all grounds.
His judgment was upheld by the Court of Appeal last year.
While the Appeal Court found that the protocol does conflict with the Acts of Union in respect of unfettered trade, judges ruled that the 1800 statute had been lawfully modified by Parliament.
The court also dismissed the argument that the post-Brexit trading arrangements have changed the constitutional status of Northern Ireland.
It further ruled that the Government did have the authority to disapply the cross-community voting provisions in the Stormont Assembly when it came to the vote on the future of the protocol.
The Court of Appeal later granted leave for the case to be referred to the Supreme Court.
The case involved two conjoined challenges - one taken by unionist politicians and Brexiteers including Traditional Unionist Voice (TUV) leader Jim Allister, former Brexit Party MEP Ben Habib and Baroness Kate Hoey and the other mounted by a loyalist pastor from Belfast, Clifford Peeples.
Speaking outside the Supreme Court in London, DUP Leader Sir Jeffrey Donaldson MP urged the Government to recognise why the vast majority of Unionists have rejected the Protocol.
Sir Jeffrey said,
“A solution to the Protocol was never going to be found in the courts, but the cases have served to highlight some of the reasons why unionists have uniformly rejected the Protocol. The Government must consider this judgement, their own arguments to the court and take the steps necessary to replace the Protocol with arrangements that unionists can support."
"The Protocol represents an existential threat to the future of Northern Ireland’s place within the Union. The longer the Protocol remains, the more it will harm the Union itself."
"The checks on the Irish Sea border are the symptom of the underlying problem, namely, that Northern Ireland is subject to a different set of laws imposed upon us by a foreign entity without any say or vote by any elected representative of the people of Northern Ireland. "
"Over eighteen months ago we outlined the parameters for the way forward. We set our tests and those continue to be our yardstick for measuring any deal between the EU and UK. "
"Political progress in Northern Ireland was hard won and is built on the support of unionists and nationalists. Not one unionist MLA or MP supports the Protocol. The idea that one section of our people will dominate the other and ignore the concerns of unionists is the opposite of power sharing and will never produce durable or balanced outcomes."
"There will be no solid basis for an Executive and Assembly until the Protocol is replaced with arrangements that restore NI’s place in the U.K. internal market and our constitutional arrangements are respected.”
Sinn Féin MLA Declan Kearney has welcomed today’s Supreme Court ruling on the lawfulness of the Protocol and said work must continue to deliver pragmatic and durable solutions.
“Sinn Féin welcomes today's Supreme Court judgement which rules that the Protocol is lawful and dismisses unanimously the appeal taken."
“Brexit has caused seismic political division, and those who championed it must bear responsibility for this."
“The Protocol limits the damage caused by Brexit and while imperfect it is clearly necessary. No credible alternative to it exists which can protect our economic stability. "
“This necessity was recognised by both the British Government and the EU who negotiated the Withdrawal Agreement to which the Protocol is an integral part."
“The Westminster Parliament ratified it and has given it effect in domestic law. They are bound as a matter of international law to comply in good faith with the Treaty they entered into."
“Today's Supreme Court judgement recognises and affirms this reality in law."
“Now that legal clarity has been confirmed, it is time to move forward politically and ensure that a deal between the British Government and EU to deliver pragmatic and durable Solutions is secured without delay that makes the Protocol work better for everyone.”
TUV leader Jim Allister, one of those who brought the legal challenge, said the Supreme Court verdict did not affect the "political unacceptability" of the Northern Ireland Protocol. "The essence of our legal challenge was to the lawfulness of the protocol.
"The fact the Supreme Court is satisfied it was lawfully made does not in the least affect its political unacceptability, nor its dire constitutional consequences."
"Indeed, findings of the Supreme Court greatly strengthen our case against the protocol."
"The declaration that the protocol has suspended Article 6 of the Acts of Union confirms everything we have said about it dismantling the Union. Article 6 is the bedrock of the economic union that is the United Kingdom."
He added: "If anything, the Supreme Court ruling must embolden the political campaign against the protocol, because that is now the critical arena of challenge."
"There can be no let up or discharge in the political war against the Protocol, else our place in the United Kingdom will never be restored. It is hard to see how Stormont ever returns in circumstances where Article 6 of the Acts of Union is in suspension."
SDLP Stormont leader Matthew O'Toole said the Supreme Court judgment provided "important clarity" on the lawful status of the Northern Ireland Protocol.
"I understand that the applicants will be disappointed in this ruling but would urge caution and restraint to those who have used this case with a view to undermining devolution in its entirety."
"Following this judgment, it is now critical that the EU and UK negotiating teams reach a comprehensive resolution that protects our unique access to the single market for goods while addressing the concerns around protocol implementation that have given rise to sincere objections related to trade barriers and identity issues in the unionist community."
"The people of Northern Ireland deserve government.
"That is the challenge we should all be working together to address, for patients waiting for a hospital appointment, for families waiting for cost of living support, for parents who need help with the cost of childcare."