The legal action has been spearheaded by TUV leader and QC Jim Allister, former Labour MP Baroness Hoey, and former Brexit Party MEP Ben Habib. After news of the judicial review emerged on Saturday night, DUP leader Arlene Foster and UUP leader Steve Aiken said that they would be supporting the case.
John Larkin – who as Stormont’s Attorney General was the most senior legal adviser to Mrs Foster and Michelle O’Neill until last year – is understood to have been heavily involved in preparing the challenge and is likely to present it in court.
A solicitor’s letter sent to the government on Friday names Secretary of State Brandon Lewis – who has denied that there even is an Irish Sea border – as the respondent in the case which is being brought in Belfast High Court but is expected to end up in the Supreme Court later this year.
The letter, which has been seen by the News Letter, challenges secondary legislation made by Mr Lewis in December which gives Stormont a vote on the protocol in 2024 – but which crucially removes the cross-community voting mechanism central to the 1998 Belfast Agreement from applying to that vote, thus making it harder for unionists who oppose the protocol to win. The applicants say that is unlawful.
The case hinges on an argument that foundational constitutional law – which they say includes the Acts of Union and the Belfast (Good Friday) Agreement – can only be amended explicitly in primary legislation and not in an indirect way.
The applicants argue that the UK-EU deal breaches the 1800 Acts of Union and that even though Parliament passed the protocol in primary legislation – making it very difficult to legally overturn – that foundational constitutional law such as the Acts of Union can only be undermined if there are “clear and unambiguous words [to that effect] in an Act of Parliament”.
The applicants argue that the protocol conflicts with Article Six of the Act of Union (Ireland) Act 1800 which set out the requirement for free trade within the British Isles.
They also argue that Stormont cross-community voting is “at the core of the constitutional settlement” flowing from the Belfast Agreement and that for the vote on the protocol to remove that mechanism is unlawful.
Mr Lewis has been given until Friday to respond to the letter before proceedings are commenced
Mr Allister said he welcomed the challenge “to the iniquitous protocol and count it a privilege to have helped get this to the starting blocks. Without Ben Habib and Baroness Hoey we would not be at this point.
“I sincerely hope that all strands of unionism will join in this necessary effort and I’m encouraged by initial discussions in that regard. Anyone who cares about the integrity of the United Kingdom and Northern Ireland’s place therein will support this endeavour.
“Whereas the protocol is doing immense damage to commerce and thus our economy, it is its pernicious constitutional damage which concerns us above all. Extended ‘grace periods’, derogations and easements will do nothing to ameliorate the protocol’s fundamental assault on our constitutional position.”
However, Mr Allister stressed that the legal case “is not a substitute or alternative to sustained and effective political action against the protocol – the imperative is for both, not least because the judicial review route will be protracted.”
Baroness Hoey told the News Letter: “Now is the time to fight back against the protocol which is shredding the constitutional position of Northern Ireland. Living as I do now in NI, I have seen and heard the anger of decent law-abiding people who feel that just because they haven’t threatened violence they have been ignored.”
Mr Habib – who voted for the protocol when an MEP – said that they were acting now because it had become clear that “the Prime Minister intends to do nothing about the protocol”.
Yesterday DUP leader Arlene Foster welcomed the move and said she would be supporting it. She said: “Fundamental to the Act of Union is unfettered trade throughout the United Kingdom. At the core of the Belfast Agreement was the principle of consent yet the Northern Ireland Protocol has driven a coach and horses through both the Act of Union and the Belfast Agreement.”
UUP leader Steve Aiken said that he was adding his name to a letter to the Prime Minister to inform him of their support for the judicial review. He said: “We believe these are actions which fundamentally undermine the principle of consent as laid out in the Belfast Agreement…the party will continue to seek to explore every political and legal avenue to get the NI protocol annulled.”
However, SDLP leader Colum Eastwood that the legal action was “ill-judged and will only further entrench the febrile political environment as well as creating further uncertainty for people and businesses”.
On Saturday, Taoiseach Micheál Martin expressed disappointment at the DUP’s increasingly outspoken stance against the Irish Sea border and claimed that “after Christmas the DUP was happy to work with the protocol on a practical level, although they didn’t agree with it”.
Writing in The Irish Times on Saturday, former Ulster Unionist First Minister David Trimble said that the protocol has fundamentally undermined the 1998 Good Friday Agreement to which he was the critical unionist contributor.
He said that those such as the Irish government, nationalist politicians and US President Joe Biden “believe, by invoking the hard-won agreement that I helped negotiate 23 years ago, they can justify the indefensible attack on the rights and livelihood of all Northern Ireland citizens that the unprecedented and unreasonable protocol requirements impose on the part of the UK in which I live.
“But rather than the protocol protecting the Belfast Agreement, the fact is it is pulling it apart. I fear that tensions are once again starting to rise.”
Lord Trimble said that by making Northern Ireland subject to tens of thousands of current – and all future – EU laws relevant to its single market and customs union, there had been “a seismic and undemocratic change in the constitutional position of Northern Ireland”, one which “runs contrary to the most fundamental premise in the Belfast Agreement”.
He said that securing unionist support for the 1998 Agreement had only been possible because it made clear that “it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.
However, Lord Trimble said: “Northern Ireland is no longer fully part of the UK – it has been annexed by the EU and is subject to EU laws and an EU court without any right of dissent. I personally feel betrayed by this.”
Lord Trimble also said: “The truth is that the EU applies its trade rules more rigorously to Britain/Northern Ireland than they are applied at its own ports.
“The figures for January show that there were 36,000 point-of-entry certificates required across the entire EU, including such major ports such as Antwerp and Rotterdam.
“Amazingly, there were 5,800 required for trade just between Britain and Northern Ireland. This represents 15 per cent of the EU total even though the volume and value of this trade is much less than 1 per cent of total EU trade with non-EU countries.”
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