Win or lose the Supreme Court challenge to the NI Protocol, it was a valuable exercise because it flushed out with forensic clarity the real meaning and effect of the Protocol.
Even the Government’s arguments exploded the pro-EU pretence that the Protocol is a mere trading necessity of no constitutional impact.
Two singularly crucial points emerge: the Protocol has ‘disapplied’ Article 6 of the Acts of Union and part of the supposedly sovereign United Kingdom is subject to the laws of a foreign legislature.
What is the Union? As the late Lord Trimble neatly put it, the Union is the Acts of Union.
What do the Acts of Union do? Whether it is the 1707 Act affecting Scotland or the 1800 Act bringing Ireland (now just Northern Ireland) into the Union, this was perfected by creating a political and economic union. The political union lies in the creation of a single sovereign parliament for the whole of the U.K. and the economic union involves the creation of a single market and equal trading zone across the whole U.K.
These are the two interdependent limbs of the Union.
It is Article 6 which creates and sustains the economic side of the Union. It guarantees unfettered trade between and within the whole United Kingdom, with each part entitled to be on “the same footing”.
Thus when HMG has to tell the Supreme Court that the effect of the Protocol is to ‘disapply’ Article 6 of the Acts of Union, then, it is indisputable that an axe has been laid to the root of the Union. To ‘disapply’ is to set aside, to render of no effect. The distinction from ‘repeal’ is merely academic. Thus, Art 6, a linchpin of the Union, is now of no effect! That has devastating constitutional consequences, meaning the economic union is gone.
And, of course, given that the Protocol decrees and operates on the basis that GB, when sending goods to NI, is to be treated in trading terms as a ‘third’ or foreign country, then, it is clear that Northern Ireland’s Article 6 rights are liquidated. What this means in practice is that goods coming from Britain might as well be coming from Bolivia, because they are treated the same, namely, as goods coming into EU-controlled territory from outside the EU. Such ‘imports’ require customs declarations, and checking and are subject to EU customs tariffs! Yet, it is pretended Northern Ireland is still an integral part of the U.K. Sadly not.
This arises because under the Protocol NI is retained under the rules of the EU’s Single Market for goods, Customs Code and VAT regime. Wherever else Brexit may have involved ‘taking back control’, in Northern Ireland it, alas, meant the opposite.
And, because Northern Ireland is retained within the EU’s Single Market for goods etc, this part of the U.K. is then subject to all the EU laws that govern its single market for goods, its customs code and its VAT regime. This means that uniquely in the western world Northern Ireland, without the consent of its people, is subject to a foreign legislature (European Parliament) and its laws - not just its present laws, but all such future laws and changes as decreed within the EU.
It is conservatory estimated that over half of the laws that govern the economy in Northern Ireland are now made not in Belfast or London, but in a foreign jurisdiction. How is that compatible with U.K. sovereignty?
It is not. The truth of the Protocol is that it has trashed U.K. sovereignty in Northern Ireland, with the tragedy being that it was Acts passed by the UK Parliament which delivered this coup de grace. Section 7A of the EU (Withdrawal) Act 2018 establishes the ongoing supremacy of EU law and it is this provision which HMG conceded in the Supreme Court causes Art 6 of the Acts of Union to be ‘disapplied’.
The fact that the Withdrawal Agreement, as approved by Government and Parliament, cedes legislative powers over Northern Ireland to Brussels is of immense constitutional import. Hence, our argument that such, along with the setting aside of Art 6, was the constitutional change which required express consent from the people of Northern Ireland, pursuant to Section 1 of the Northern Ireland Act 1998.
His Majesty's Government argued the consent principle guaranteed in the 1998 Act applies only to what could be termed the final handover of Northern Ireland and, thus, the Union can be effectively salami sliced out of existence provided you stop short of the hauling down of the Union flag for the last time!
The Supreme Court’s ruling on this point will show whether the consent principle is in fact worth the paper it is written on. Bearing in mind it was central to the sales pitch of the Belfast Agreement, the political ramifications of an adverse ruling are obvious.
As pointed out by our senior counsel, John Larkin KC, if it is lawful to hand over lawmaking powers in respect of NI, without consent, to Brussels, then, equally it would be lawful to surrender them to Dublin! The worth and security of the consent principle ride on the ruling on this point.
Our hope, of course, is that the Supreme Court will uphold our core contentions (I) that the making of the Protocol, being in breach of Article 6 of the Acts of Union and its prohibition on treaties denying the equality of opportunity across the U.K., was itself unlawful; and (ii) that the constitutional change it perfected breached Section 1 of the Northern Ireland Act 1998 and that both the Acts of Union and the 1998 Act, being constitutional Acts, can only be repealed by express provision.
If we do not succeed, it will not be the end of the battle against the Union-dismantling Protocol, but rather will underscore the necessity to step up the political campaign against it. The legal challenge and the political opposition were complimentary parts of a twin-track approach, but one does not suppress the other.
The battle against the Protocol is not just a battle against the weakening of Northern Ireland’s rightful place within the Union, but also a battle for U.K. sovereignty and integrity. Today the focus is Northern Ireland, tomorrow it could be Scotland, but the integrity of the U.K. is the issue. Controlling your own territory through your own laws is a touchstone of sovereignty, just as is unfettered trade between and within your own territory.
The affront which the Protocol presents to U.K. sovereignty is something no unionist, irrespective of where they live in the United Kingdom, can ever come to terms with. Nor should any self-respecting government be protecting or defending it, as sadly the U.K. Government did in the Supreme Court.