Protocol challenge meets legal reality

Posted By: February 09, 2023


Distributed to Congress by Irish National Caucus

Protocol challenge meets legal reality

Irish News Editorial. Belfast. Thursday, February 8, 2023

Unionism’s Brexit delusion has faced another bruising encounter with reality, this time in the sober setting of the UK Supreme Court.

In what can only be regarded as a wholly crushing defeat, the justices ruled that the

Northern Ireland Protocol is lawful as it unanimously dismissed appeals from a group of assorted unionists and Brexiteers which included Jim Allister, Arlene Foster, and Ben Habib.

They had challenged the legality of the protocol deal between the UK and EU, which had been agreed by Boris Johnson when he was prime minister, on three grounds: that it was incompatible with the Act of Union; that it had changed the constitutional status of the north without the consent of the majority in a poll; and that the British government did not have the power to enable the assembly to vote on whether the protocol should continue without the need for cross-community support.

As the High Court and Court of Appeal had done before it, the Supreme Court dismissed the appeals on all three grounds. This was an entirely predictable outcome.

For the unionists and Brexiteers to stand any chance of winning their case they needed, among other things, to convince the court that Parliament itself had acted unlawfully when it passed legislation that amended its own earlier laws.

This was always a highly ambitious and legally adventurous approach, though it speaks of the intellectual dishonesty at the heart of the Brexit fantasy. If Brexit was -–as the DUP’s controversial London newspaper advertisement of the time of the referendum proclaimed – intended to allow the British parliament to ‘Take back control’, then it is difficult to see how its cheerleaders could complain about that same parliament asserting its will by backing the Withdrawal Agreement and the protocol that flowed from it.

As the judgment put it: “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.”

That the bloviating Mr. Johnson, who agreed to the protocol, was feted and facilitated by the DUP adds a further layer of self-inflicted tragedy to the unionist position.

Unionism must now maturely reflect on the judgment, which should mark a turning point in the campaign against the protocol, including the DUP’s Stormont boycott.

Brexit was always bad politics but any solution to its problems will be found through negotiation and compromise, not in the courts and certainly not on the streets.