Northern Ireland Protocol: ruling pushes divisive issue towards political resolution

The UK supreme court was clear, as were the high court and the court of appeal before it: the Northern Ireland protocol is lawful.

“The most fundamental rule of UK constitutional law is that parliament … is sovereign and that legislation enacted by parliament is supreme,” said Lord Stephens.

Christopher McCrudden, Professor of Human Rights and Equality Law at Queen’s University, Belfast, said the fact the judgment was unanimous, relatively short and delivered very speedily suggests “that they thought this was an easy case”.

“A lot of the commentary has been framed in terms of the protocol requires this, the protocol requires that, the EU requires this, the EU requires that, and the judgment is absolutely clear, this is all deriving from the Westminster parliament,” he said. “The only reason why the protocol gets into Northern Ireland law at all is not because of the EU, it’s because the British government, through the parliament, has accepted it.”

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They argued the protocol was illegal because it conflicted with the Acts of Union 1800

A legal challenge to the post-Brexit trading arrangement — taken by, among others, Traditional Unionist Voice (TUV) leader Jim Allister, former first minister and DUP leader Arlene Foster and former Brexit Party MEP Ben Habib — was on Wednesday unanimously dismissed on all three of the grounds they had sought to make.

They argued the protocol was illegal because it conflicted with the Acts of Union 1800 — which states that all parts of the UK should be on an equal footing — and because Northern Ireland’s constitutional position had been changed without a referendum, as required in the Northern Ireland Act 1998, and that the need for cross-community approval in the Assembly should not have been changed.

Essentially, the court ruled that new laws passed at Westminster supersede old ones and, regarding a referendum, a previous judgment established this requirement only applied in one specific circumstance, that of a vote on a united Ireland.

“Inconsistency isn’t the same as legal incompatibility, a later statute overrides an earlier one, so it’s as clear as that,” said Brice Dickson, emeritus Professor of Law at Queen’s University, Belfast.

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How, then, have the vanquished been, in the words of Habib, able to claim a “very, very clear victory”? He claimed on the BBC that “what we got today was complete constitutional clarity” on the Acts of Union and the Belfast Agreement.

“The reason I say it was a victory,” he said, is that “it makes it completely clear for everyone that article six [of the Acts of Union], which is effectively the economic union of Northern Ireland with the United Kingdom, has been subjugated by the protocol”.

This, said McCrudden, is “simply incorrect”. Despite the “assumption on Twitter feeds” that article six has been breached, he emphasised that the supreme court did not rule on this. “It’s simply saying that even if there is a breach of article six, it’s overwritten by parliamentary sovereignty, but we’re not deciding that it was a breach in the first place.”

The broader suggestion, he added, is that “it’s the fault of the protocol that all this is happening … but the court is making it absolutely clear it’s not the protocol, it’s the British legislation implementing the protocol”.

“So if you’ve got a problem here — and there clearly is a political problem — the problem is with the legislation that introduced the protocol into Northern Ireland law.”

The legal argument has been made and lost; now, as the negotiations between the EU and UK appear to be nearing a conclusion, unionism’s objective is to make its case as loudly as possible

Hence the response from unionism was political rather than legal, with DUP leader Jeffrey Donaldson maintaining the solution to the protocol “was never going to be found in the courts” and the legal cases “have served to highlight some of the reasons why unionists have uniformly rejected the protocol”.

For Allister, the ruling on the protocol “does not in the least affect its political unacceptability, nor its dire constitutional consequences”. If anything”, he said, it “must embolden the political campaign against” the post-Brexit arrangement.

The legal argument has been made and lost; now, as the negotiations between the EU and UK appear to be nearing a conclusion, unionism’s objective is to make its case as loudly as possible for, as Donaldson puts it, the replacement of the protocol “with arrangements that unionists can support”.

Yet regardless of the legal reality, the perception remains among unionists that their constitutional position within the UK has been eroded by the protocol; this is something all sides will have to address.