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2021-07-01

Yesterday's regular Brexit Watch Tea Time email briefing highlights the news that Ben Habib, Baroness Hoey Jim Allister and others had their application for judicial review of the Northern Ireland Protocol rejected by the Belfast High Court.

"In a momentous constitutional ruling, Mr Justice Colton found that the protocol – which creates the Irish Sea border – conflicts with the 1800 Act of Union, but that legislation enacting the protocol in Parliament has repealed part of the Act of Union"

The plaintiffs had argued that the constitutional Act of Union of 1800 and the Good Friday Agreement were both breached by imposition of the Protocol, since constitutional change normally requires explicit amendment of constitutional legislation.

Judge Colston disagreed, ruling that by passing the EU Withdrawal Agreement the UK Parliament had implicitly changed the constitutional settlement.

Whilst this seems to fly in the face of all precedent (not to mention many assurances given in the UK Parliament), this particular hearing was likely irrelevant, since whichever party lost the case the next step would be to appeal, so the road is now clear to take that next step.

One obvious problem for the current ruling is that under the Belfast Agreement, constitutional change explicitly requires the formal agreement of the people of Northern Ireland, which was not sought, since the government "thinking" at the time was that the NI Protocol would not conflict with the constitutional settlement.

Some might be forgiven for thinking that the government position as supported by the High Court is equivalent to both having one's fudge and eating it.

Still, perhaps this particular aspect of requiring the agreement of the people was also implicitly revoked by an uncomprehending UK Parliament, soothed by the government's lullaby of unquestionable assurances as in its desperation to be seen to "get Brexit done" it passed the EU Withdrawal Agreement?

Read the Belfast Newsletter report here.