The UK supreme court has found the Northern Ireland Protocol to be lawful.
In a judgement ruling issued today (Wednesday, February 8), it unanimously dismissed three appeals brought about by, among others, James Hugh (Jim) Allister, Steve Aiken and Arlene Foster, on all three grounds.
The grounds of the appeal related to three aspects of the protocol, which was given legal effect by section 7A of the European (Withdrawal) Act 2018.
The first aspect was that the protocol is incompatible with Article VI of the Acts of Union 1800, which says that Great Britain and Ireland shall be on the “same footing” in respect of trade.
The appeal argued that the protocol means the people of Ireland are not on the same footing as, for example, the protocol requires payment for a charge on goods which may be moved into the EU.
The appeal also argued that the Crown does not have the power to make treaties that do not comply with Article VI.
On this matter, Lord Stephens, who gave judgement, said: “The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.”
Grounds two and three relate to the compatibility of the protocol with the Northern Ireland Act (NIA) 1998.The first argues that the protocol changed the status of Northern Ireland.
“The appellants further submit that a substantial diminution in the status of Northern Ireland had been brought about by the protocol which has created a customs border within the UK between Great Britain and Northern Ireland,” Lord Stephens said.
The third ground challenged the “lawfulness” of the protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.
All three appeals were dismissed.
Reaction
Arlene Foster has since thanked the Supreme Court for its "clarity" on Twitter.
However, she added: "It is clear that in passing the Withdrawal Act, including the protocol, that both the Act of Union and the NIA 1998 have been modified despite claims that this was not the case.
"The only way to reverse this is through a further piece of legislation - Parliament is after all supreme.
"We await the government’s response."
Jim Allister, via the Traditional Unionist Voice website, said the ruling "does not in the least affect [the protocol's] political unacceptability, nor its dire constitutional consequences".
