The UK Supreme Court (the “UKSC”) has unanimously dismissed an appeal in proceedings challenging the lawfulness of the Northern Ireland Protocol (the “NI Protocol”). The UKSC has set out its rationale in a judgment published on 8 February 2023.
The appeal was part of judicial review proceedings concerning the NI Protocol. Mr Clifford Peeples commenced proceedings in February 2021. Six persons, including the Rt. Hon Arlene Foster, former First Minister of Northern Ireland also brought proceedings a month later (together, the “Appellants”). Both sets of proceedings were heard in the Courts together. The Appellants challenged the lawfulness of the Respondents’ (the Secretary of State for Northern Ireland, the Prime Minister, and the Chancellor of the Duchy of Lancaster) decisions in respect of the NI Protocol.
The proceedings were first heard by the High Court of Justice in Northern Ireland and then appealed, ultimately to the Supreme Court, on three grounds.
The three grounds concerned the:
Compatibility of the NI Protocol with the Acts of Union (1800), specifically Article VI: the Acts allow for the Union of Great Britain and Northern Ireland and Article VI addresses trade and treaties between Great Britain and Ireland. The Appellants argued that the NI Protocol meant that NI and Great Britain were not ‘on the same footing’ in terms of trade. The Appellants also argued that the NI Protocol was made contrary to the statutory restriction on the power to make a treaty under Article VI.
Status of Northern Ireland: further to section 1(1) of the Northern Ireland Act 1998 (the “NIA 1998”), Northern Ireland is to remain part of the UK until such times as the majority of the people of Northern Ireland consent otherwise via a poll. The Appellants argued that, absent a poll, it is not possible for a substantive change to be made to the country’s status. However, the NI Protocol changed the status of Northern Ireland and this was unlawful because a poll was not used.
Cross-community vote procedure and the lawfulness of the Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 (“2020 Regulations”): section 8(C) of the NIA 1998 granted the power to make the 2020 Regulations. The 2020 Regulations, in turn, allowed the NI Assembly to vote on the continued application of Articles 5 to 10 of the NI Protocol without the need for cross-community support (required by section 42 of the NIA 1998). The Appellants argued that s.8(C) did not facilitate the creation of regulations that are incompatible with the NIA 1998.
The UKSC dismissed the appeals on all of the grounds.
The UKSC’s findings can be summarised as follows (the numbering corresponds with the above grounds):
The UKSC proceeded on the basis that the NI Protocol does not conflict with Article VI. Section 7A of the European (Withdrawal) Act 2018 incorporates the NI Protocol into UK law. As a result, Article VI is modified to the extent it conflicts with the Protocol. Also, Parliament, in enacting the 2018 Act and the European Union (Withdrawal Agreement) Act 2020, authorised the making of the Protocol.
The UKSC pointed to the fact that it has previously held that s. 1(1) of the NIA 1998 does not govern any change in the constitutional status of Northern Ireland other than the right to decide whether to remain part of the UK or become part of a united Ireland. The UKSC did not identify a reason to depart from this position.
Cross-community support is not required to pass a ‘consent resolution’ (by virtue of Schedule 6A of the 2020 Regulations). The UKSC also confirmed that there is no conflict between the 2020 Regulations and s.4 of the NIA 1998.
This decision is a reminder of the disparity of trade arrangements between that in Northern Ireland, and that in the rest of the UK. For example, and as highlighted in the Appellants’ submissions, the NI Protocol requires the payment of a tariff in respect of goods entering NI from Great Britain that are at risk of being moved into the European Union. Companies operating in Northern Ireland must navigate the terms of the NI Protocol and it appears unlikely that the Courts will intervene in the current arrangement. It is yet to be seen whether ongoing talks between the UK government and the EU may result in revisions to the NI Protocol.
This article was co-authored by Amy Broddle, a solicitor in the firm’s Dispute Resolution team.
In the matter of an application by James Hugh Allister and others for Judicial Review (Appellants) (Northern Ireland)