The Protocol, which was incorporated into the Brexit Withdrawal Agreement to help avoid a hard border on the island of Ireland, has left Northern Ireland tied to a range of EU customs and regulatory rules. But the Protocol, which is currently being renegotiated between Brussels and the EU, caused anger among Unionist politicians across Northern Ireland over fears it creates a border down the Irish Sea.
This is due to standards checks which are made on certain products arriving from the rest of the UK.
Because of these concerns, a joint legal challenge was launched by former Brexit Party MEP Ben along with Jim Allister, leader of the Traditional Unionist Voice party and Baroness Kate Hoey.
The Ulster politicians claimed it was unlawful because it conflicted with the 1998 Good Friday Agreement and the 1800 Acts of Union.
In Belfast’s High Court earlier this year, some of Northern Ireland’s most senior judges heard arguments from the politicians’ lawyers that the Protocol was legally “rotten to the core” and incompatible with domestic and European law.
But the politician’s case was thrown out with Mr Justice Colton rejecting their challenge on all grounds.
The judge said the Withdrawal Agreement Act, which includes legalisation for the Protocol, directly conflicted with the 1800 Acts of Union in respect of free trade.
But he stressed the relevant parts of the Acts of Union were “impliedly repealed” by the Withdrawal Agreement Act.
The Appeal Court in Belfast will now hear a challenge to the lawfulness of the Northern Ireland Protocol in October.
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Sir Jeffrey was giving evidence to the House of Lords constitution committee this morning where he told peers that the Northern Ireland Protocol had altered the constitutional state of Northern Ireland within the UK.
The Lords committee is exploring the future governance of the UK and Baroness Suttie asked the DUP leader about the impact of the protocol on the union between Northern Ireland and Great Britain.
Sir Jeffrey told the committee: “The Northern Ireland Protocol, in my opinion and in the opinion of the High Court in Belfast, alters the constitutional status of Northern Ireland within the UK.
“The most fundamental piece of law in terms of Northern Ireland’s place within the union is the Act of Union itself and recently the High Court ruled in a landmark case that the EU Withdrawal Agreement and the NI Protocol repeal key elements of article six of the Act of Union.
“Article six makes provision for free trade within the United Kingdom.
“It states clearly that there should be no barriers to trade between the constituent parts of the United Kingdom.
“For the High Court to state very clearly that the terms of the Act of Union have been altered significantly by the NI Protocol marks for us an unacceptable change in our constitutional status.
“It is also worth noting that article one of the Good Friday Agreement makes very clear that any change to the constitutional status should require the consent of the people of Northern Ireland.
“The consent of the people of Northern Ireland has not been sought for amending article six.”