The Northern Ireland protocol is lawful, the supreme court has ruled, rejecting a legal challenge to the Brexit arrangements by a group of unionist leaders including the former first ministers the late David Trimble and Arlene Foster.
The highest court in the UK unanimously dismissed the judicial review appeal on all three grounds including the claims that the Brexit trading arrangements breached the 1800 Act of Union, the Northern Ireland Act 1998.
The challenge, in two separate cases considered jointly by the judges, was made by a group of unionist and loyalist leaders and activists that also included the former Labour cabinet minister Kate Hoey, the Traditional Unionist Voice leader Jim Allister, former Ulster Unionist party leader Steve Aiken, along with the former Brexit party MEP Ben Habib and former loyalist prisoner and recent masters in law graduate Clifford Peeples.
They had argued that the protocol was unlawfully created because, they said, it breached the 1800 Act of Union, which guaranteed all four nations of the UK would be treated equally.
They also argued that it had breached the principle of consent at the core of the 1998 Belfast Good Friday agreement.
They lost their case in the Belfast high court in June 2021 with the presiding judge Mr Justice Colton concluding that the Withdrawal Agreement Act containing the protocol did conflict with the guarantees of equal treatment contained in the Act of Union.
However, he said the later parliamentary legislation sealing the UK’s exit from the EU “impliedly repealed” the 1800 laws, something that was possible with another “constitutional law”.
The TUV leader, Allister, had said the ruling “confirmed the protocol is dismantling the union”.
The appellants had also argued that the protocol unlawfully eliminated the constitutional safeguard enshrined in section 42 of the Northern Ireland Act 1998, which requires assembly votes to have cross-community support. Finally, the appellants alleged that there had been a breach of the European convention on human rights and EU law.