The operation of the Northern Ireland protocol has been likened to the Vichy regime during a court challenge to its legality.
A judicial review on the protocol, part of the Brexit deal that creates a trade border between Northern Ireland and Britain, has begun at the High Court in Belfast.
The judicial review is being taken in the name of unionists across the UK, including outgoing DUP leader Arlene Foster, outgoing UUP leader Steve Aiken, TUV leader Jim Allister and Belfast Agreement architect Lord Trimble.
Launching the challenge on Friday, attorney general of Northern Ireland John Larkin QC said the judge, Mr Justice Colton, would be asked to take a view on the legality of the protocol. He began by arguing that the protocol is incompatible with the 1800 Act of Union which created the UK.
He told the court: “It’s not about the decision way back when to make the protocol, it is asking your lordship to accept that the protocol is unlawful on a number of grounds and, therefore, it’s unlawful to try and give effect to it.
“Article 6 of the Act of Union prevented and prevents Her Majesty’s government from agreeing any treaty of provision with a foreign power or implementing any such provision which places Her Majesty’s subjects of Northern Ireland and Her Majesty’s subjects of Great Britain on a separate footing in relation to that foreign power.
“Contrary to that, the protocol, in its entirely, places Her Majesty’s subjects in
Northern Ireland on a different footing to Her Majesty’s subjects in Great Britain in relation to the European Union and the protocol.
“Article 6 of the Act of Union prevented and prevents Her Majesty’s government from agreeing any treaty provision with a foreign power implementing a domestic law and any such provision which conflicts with the obligation in that article that Her Majesty’s subjects in Northern Ireland and Great Britain should have the same privileges and should be on the same footing.”
‘Unfettered’ trade
Mr Larkin focused on separate articles of the protocol in relation to trade, taxation, the movement of goods and regulatory checks coming into Northern Ireland. He said: “The so-called unfettered access is not unfettered.
“The constitutional importance of this is enormous. Goods coming from Northern Ireland simply cannot be described in the same way as a good coming from Liverpool, or Edinburgh, or Cardiff or London. “
Northern Ireland is subject to taxation without representation.
“It can be likened to the position of the Vichy regime, which was relied on to do the bidding of the occupiers; the occupiers were free to inspect or deny things, but when push came to shove the occupiers gave an instruction and the Vichy authorities would quickly fall into line.”
The Vichy regime administered France during Nazi occupation. Mr Larkin said the protocol gave the EU the “right to command” over inspection of goods.
He continued: “Article 6 of the Act of Union imposes certain limitations to make treaties and those were ignored.
“HMG [the UK government] breached Article 6 by concluding an agreement. Parliament will be presumed to be acting with a view to legality and not giving effect to an unlawful treaty.
"If Parliament wishes to take the constitutional risk it can say... It hasn't done that. "We have a partly written constitution in the United Kingdom, and part of our written constitution are the Acts of Union and they are certainly to be taken seriously.
“Ask yourself this question: did the legislature have the opportunity to put the matter clearly? It most certainly did. Did it take that opportunity? It most certainly did not. “What is the consequence of that? The consequence is that there has been no repeal or amendment (of the Act of Union).”
The full list of applicants in the case includes Ben Habib and Baroness Hoey as well as Lord Trimble, Mrs Foster, Mr Aiken and Mr Allister.
Constitutional integrity
In a statement ahead of the hearing, the applicants said they aim to “undo the great wrong” done by the UK in the imposition of the protocol.
“It is not just trade and economic prosperity but the constitutional integrity of the United Kingdom that requires defeat of the Union-dismantling protocol,” they said.
“The purpose of this Judicial Review challenge is to undo the great wrong which was done in the imposition, without consent, of arrangements which leave Northern Ireland as a rule taker of foreign laws – over which we have no control, the United Kingdom partitioned down the Irish Sea and trade fettered disastrously with our biggest market.
“All this we believe infringes our constitutional and economic entitlements under the Acts of Union and the assurances of the Belfast Agreement, as well as our basic democratic entitlement to be governed only by laws made by those we elect.
“We are grateful to our legal team under the leadership of John Larkin QC who have marshalled compelling arguments which we look forward to being expounded over the next few days.”
They thanked those who contributed to a crowd-funding campaign for the challenge.
“We may be the named applicants but we take this action on behalf of all who care about democracy, our economy, the future of the United Kingdom and basic fairness,” they added.
The full list of applicants includes Ben Habib and Baroness Hoey as well as Lord Trimble, Ms Foster, Mr Aiken and Mr Allister.
DUP leader
Speaking on the steps outside Parliament Buildings at Stormont on Friday, newly-elected DUP leader Edwin Poots said: “I recognise the challenges ahead for our party and for our country, in particular those identified by every unionist, namely the opposition to the protocol.
“I’ve arranged to speak to the Secretary of State [Brandon Lewis] this evening and have planned my first meeting with him early next week in Belfast. I intend to be in London later next week to continue those discussions with government.”
Earlier, after being elected, Mr Poots said: “I want to say this very clearly – I will be a leader in unionism who’ll be reaching out to other leaders in unionism. I want to see unionism working together.
“The Northern Ireland Protocol is proving to be a massive challenge for us and if we are to fight this to ensure that everybody in Northern Ireland is not worse off as a consequence of the protocol, then it’s for us to do that together.
“And I want to ensure that that is the case, that we don’t have the unionist bickering that we’ve had in the past, and I will encourage all unionists to work with me to deliver an end which ensures we set the foundations in this [year] 2021 for another 100 years of Northern Ireland within the United Kingdom.”
Outgoing Ulster Unionist leader Steve Aiken has congratulated Mr Poots on being elected, but said his “fingerprints are all over the Northern Ireland Protocol”.
He said: “Edwin may try to signal his election as a new era for the DUP following Arlene’s [Foster] resignation, but no matter what way you look at it, his fingerprints are all over the Northern Ireland Protocol.
“If the new DUP leader wishes to present the image of a ‘new’ approach, he owes us all an explanation as to how his party’s squandering of their transient period of influence has resulted in the damaging position we now find ourselves in.
“Regrettably, the so-called stewardship of the Union in the DUP’s hands has been an abject failure – not just for Unionism but for all the people of Northern Ireland.” – PA