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Government lawyers reject claim NI protocol has ‘shattered’ union

The Northern Ireland Brexit protocol has not “shattered” the constitutional status of Northern Ireland within the UK, as some unionists have argued, a government lawyer has told a court in Belfast.

Tony McGleenan QC was opening his defence of the protocol against a legal challenge brought by a group of unionist politicians including the Traditional Unionist Voice leader, Jim Allister, the former Labour party MP Kate Hoey and the former Brexit party MEP Ben Habib.

In a landmark case, they have contested that the withdrawal agreement and act of parliament changed the constitutional status of Northern Ireland and conflicted with the Acts of Union from 1800.

McGleenan rejected those arguments. He told senior judges: “There has been no change to the constitutional status of Northern Ireland.”

He added: “The suggestion that there’s been some shattering of the union is, we say, not sustainable.”

The Northern Ireland protocol came into force on 1 January and mandates checks and controls on goods crossing from Great Britain to Northern Ireland. This is because under the Brexit compromise to avoid a border on the island of Ireland, Northern Ireland remains in the UK but is also, for trade purposes, in the EU single market, which means EU customs and standards checks still apply on goods entering the region.

Reviewing the course of the UK’s departure from the EU, McGleenan argued that the political cost of the withdrawal agreement including the section on Northern Ireland was known to the parties involved in the case, with two of them expressing strong support for it. It had been “subjected to debate for three years” and its political force was expressed by at least two of the parties involved in the case, Habib and Hoey.

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Those taking the case have argued that the protocol is unlawful because it conflicts with the Acts of Union and the Good Friday agreement of 1998. The high court rejected their first challenge this summer and they are appealing against that verdict in an expedited case.

John Larkin QC, for the appellants, said references to the debate in parliament and expressions of support or otherwise for Brexit were a “distraction” because legally all that counted were “the words of the statutes” of parliament.

On Monday judges were told the Acts of Union had legal supremacy over the protocol. Larkin told them: “The protocol could not be validly made because it is in conflict with a provision of the constitution of the United Kingdom – that is article 6 of the Acts of Union.”

On Tuesday, McGleenan challenged the claim, saying: “The argument that the Act of Union has interpretative supremacy; [that] it dominates later provisions, we say that is wrong,” he said.

He said that even if there were conflicts between the 1800 law and the protocol, they were “legally irrelevant” as section 7 (a) of the Withdrawal Act allowed for the protocol “to continue to have effect in domestic law”.

The case continues.


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