The Supreme Court has comprehensively dismissed an appeal by Northern Ireland unionist lawmakers to have the U.K. region’s post-Brexit trade rules declared unconstitutional.
In an eight-minute oral judgment, the five judges of the U.K.’s ultimate constitutional arbiter found no merit in the case and fully supported earlier dismissals by the Belfast High Court and the Court of Appeal in Northern Ireland.
Wednesday’s judgment found that the Northern Ireland trade protocol — a key part of the U.K.’s Withdrawal Agreement from the European Union that keeps Northern Ireland, unlike the rest of the U.K., subject to EU goods rules — was lawful.
The unionists backing the case, among them former Northern Ireland First Minister Arlene Foster and the late Ulster Unionist leader David Trimble, had argued that the protocol was illegal on three grounds: It violated the original Act of Union that brought all of Ireland into the U.K. in 1801; it required democratic support from the Northern Ireland Assembly to proceed; and such a vote must require majority unionist support.
But the judges sided fully with the two earlier Belfast judgments.
They noted that the Act of Union had been modified many times in the past two centuries, including when Northern Ireland itself was created in 1921. It was lawful, they concluded, for the protocol agreement to modify that act once again, given parliamentary approval for the change.
They concurred with earlier judgments that the U.K.-EU treaty containing the protocol trade agreement did not require any vote from any regional U.K. body, including the Northern Ireland Assembly at Stormont, to proceed.
And they dismissed the unionists’ final contention that any Stormont vote on maintaining protocol trade arrangements must require support from a majority of its unionist members. While the U.K. regulations for rolling out the protocol stipulate that Stormont can vote in late 2024 on whether to keep the system in place, this democratic test will require support from only a simple majority of members.
Unionists are outnumbered in the Stormont chamber by Irish nationalist and middle-ground politicians who universally support the protocol, chiefly on the grounds that it avoids creating barriers to cross-border trade with the Republic of Ireland, an EU member. This means the mooted 2024 vote — which would require a functioning Assembly — would be all but certain to produce a pro-protocol outcome.
The Democratic Unionist Party is refusing to form a new cross-community government at Stormont unless the U.K. “replaces” the protocol. Negotiations between London and Brussels are reportedly close to producing a compromise breakthrough that would minimize, but retain, the need for checks on goods arriving from Britain into Northern Ireland’s ports.
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