Jim Allister, Ben Habib, Baroness Kate Hoey, and solicitor Colin Dougan at the High Court in Belfast. (Charles McQuillan/Getty Images)

The Northern Ireland Protocol partly repeals the Act of Union

The High Court in Belfast confirms the Protocol’s constitutional vandalism. We will settle this in the Supreme Court

Artillery Row

In the Royal Courts of Justice in Belfast, the neoclassical blockhouse of 1933 which was targeted twice during the Troubles, the Judicial Review about the Northern Ireland Protocol could hardly be anything else but politically charged. I brought the Judicial Review with Baroness Hoey, Jim Allister MLA and others. We were asking whether the Government had deliberately breached the 1800 Act of Union. No small thing.

Though late, the Honourable Mr Justice Colton delivered his verdict on our application for a Judicial Review of the Protocol.

It was hardly a surprise which way he was going to fall.  He touched upon Theresa May’s original idea of the entire UK remaining in the EU’s customs union; her political difficulties and eventual ejection from office. He went on to recall the emergence of Boris Johnson as prime minister with his own, slightly edited, Withdrawal Agreement and the Northern Ireland Protocol. Although Mr Justice Colton left it unsaid, it was clear he felt enough was enough on the political debate over the Irish border. He was merely preparing us for the dismissal of our grounds for review.

This he did systematically by starting with perhaps the most important part of our case, the Act of Union 1800.

Mr Justice Colton agreed with us that the Protocol had put a border down the Irish Sea. That it had subjected Northern Ireland to a separate constitution and thereby did not just treat its people in an inherently different way but also separated it from the UK. He agreed with all this but argued that the Act of Union had not been breached. Instead, he ruled that it had been repealed, at least as far as leaving Northern Ireland behind in the EU.

This may be a neat legal trick to get the government off the hook, but the political impact of confirming the union of the United Kingdom has been broken is vast.

If there is a border in the Irish Sea with Northern Ireland subject to a separate constitution, the East/ West dimension of the Belfast Agreement has also been broken. He has confirmed, in pursuit of the faux protection of the North/ South dimension of that agreement, that the East/ West dimension has been ditched. The Protocol has, in substance, been adjudicated to have broken the Belfast Agreement – the very agreement all its supporters have sworn that it is supposed to protect.

It also stymies the government’s constitutional alchemy. The prime minister has repeatedly claimed that by moving customs checks to the Irish Sea, a “hard border” on the island of Ireland had been avoided. But he has never accepted, and still does not, that there is now a border between Northern Ireland and Great Britain. His Secretary of State for Northern Ireland, Brandon Lewis, tweeted in January “there is no Irish Sea border”. Such an assertion is now confirmed for what it is, nonsense at best, mendacious at worst.

the legalities of this dispute will be settled in the Supreme Court

The prime minister’s solemn Brexit manifesto pledge was that the country would leave the EU as one United Kingdom. As recently as two weeks ago, he said in the House of Commons, with a straight face, that the Act of Union had been protected and would not be broken. Mr Justice Colton has told him otherwise. Boris must now explain how it is he has been facing both ways on this issue for so long. He must also tell us what he will do to fix our now broken union.

In another part of his ruling the Honourable Justice stated that retrospective democratic approval of part only (much of it will never be put to a vote) of the Protocol by Stormont in 2024 will not cut across the requirement in the Northern Ireland Act 1998 or the Belfast Agreement for prior cross community consent to constitutional changes.

In this, he seems to look at the Protocol as a Mobius strip, meaning two separate things depending upon which angle you look at it. We all know the Protocol would never have been approved in advance – there is no way it would ever have achieved cross community consent.

The complainants in this judicial review will not allow the prime minister to break the union of the United Kingdom to mollify Ireland and the EU. The Protocol is the embodiment of ultimate political weakness. We will not allow him to ride roughshod over the Belfast Agreement and the majority of the people of Northern Ireland.

We do not agree with a great deal of Justice Colton’s findings, but they have at least confirmed the constitutional vandalism of the Protocol; for that we thank him.

The hearing in the High Court in Belfast was only the first step in our legal battle. We have always said the legalities of this dispute will be settled in the Supreme Court. To that end we will be appealing Justice Colton’s verdict.

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