April 14. 2024. 6:01

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UK top court throws out challenge to NI protocol

The UK Supreme Court has ruled that the controversial Northern Ireland protocol, a trading arrangement negotiated during Brexit talks, does not breach the UK’s own Acts of Union following a legal challenge brought by the community’s unionist politicians.

In a ruling on Wednesday (8 February), the UK’s top court agreed that the Protocol does conflict with the Acts of Union but found that this was superseded by the Withdrawal Agreement which was approved by UK lawmakers in December 2019.

“The clear intention of Parliament in enacting these Acts was to permit the Crown to make the protocol,” the Supreme Court ruled.

Agreed by Boris Johnson’s government as part of the Brexit deal, the protocol creates a trade border between Northern Ireland and the rest of the UK, including customs checks on goods crossing the Irish Sea.

That has prompted politicians from the pro-British unionist community in Northern Ireland to contend that it breaks the UK’s own Acts of Union, dating from 1800, which says all parts of the UK must be treated equally in matters of trade, and the 1998 Northern Ireland Act by changing its constitutional status without a referendum.

Northern Ireland voted by a 53-47% margin in favour of staying in the EU at the 2016 referendum where the UK as a whole decided to leave the bloc.

The court ruling is not surprising, and the case had previously been rejected by the High Court and the Court of Appeal. However, it underscores the political sensitivity of the protocol on which EU and UK officials have been locked in talks to ease its functioning for more than a year

Sir Jeffrey Donaldson, the leader of the Democratic Unionist Party, and one of the plaintiffs in the case, said the legal challenge “had highlighted why unionists are opposed to the trading arrangements”.

“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,” he added.

For his part, Matthew O’Toole, who leads the Social Democrat and Labour party’s lawmakers in the Northern Ireland assembly, said the judgement provides “important clarity”.

DUP ministers in Northern Ireland’s devolved government attempted last year to scrap the customs checks, a move which was declared illegal by the UK courts.

The Supreme Court ruling comes amid growing speculation that the EU and UK are on the brink of agreeing a new compromise on the protocol that would ease the bureaucratic burdens and disruption to the UK’s own internal trade caused by the protocol.

Irish broadcaster RTÉ has reported that the EU had accepted that goods destined to stay in Northern Ireland should be treated differently to those moving south into the single market, a keen bone of contention throughout the talks and a major cause of concern for businesses in Northern Ireland.