Northern Ireland Protocol to go to Supreme Court

Unionists that have legally appealed to find the Northern Ireland Protocol unlawful have been given the go-ahead to escalate their appeal to the Supreme court. Lady Chief Justice Dame Siobhan Keegan confirmed the leave was granted, but a date in the Supreme Court has not yet been set.

The appeal was won by a group of politicians, TUV leader Jim Allister, Baroness Kate Hoey, and former Brexit Party MEP Ben Habib included with other representatives.

What is the Northern Ireland Protocol?


The Northern Ireland Protocol is the solution for Brexit customs clearances in Ireland whilst removing the need for a hard border between the Republic of Ireland – which is in the European Union – and Northern Ireland – which is in the United Kingdom’s customs territory as the per the Acts of UnionThis makes Northern Ireland and the Republic of Ireland part of 2 different customs territories. 

However, putting a hard border between the Republic of Ireland and Northern Ireland is not an option. This is due to the political status of Northern Ireland and the Good Friday Agreement (a treaty signed to end over 30 years of violent conflict). 

The agreement formed a new government in Northern Ireland managed by the Republic of Ireland, Northern Ireland, and the United Kingdom. There is concern that a hard border between the Republic of Ireland and Northern Ireland could cause instability between the 2 nations.

The outcome is that Northern Ireland requires free movement with the Republic of Ireland and mainland United Kingdom, but the Republic of Ireland requires a hard border with the United Kingdom. The NI Protocol creates a customs border between Northern Ireland and the United Kingdom, but allows movement of goods from Northern Ireland to mainland United Kingdom without additional checks.

Goods moving from mainland United Kingdom to Northern Ireland must conform to the EU’s customs requirements. As a result, this has put unfair pressure on businesses on both sides of the border. The former Brexit minister, David Frost, , and Brexit Minister Liz Truss have attempted to propose solutions for this issue to the EU but there has been no resolution.

Why is the Northern Ireland Protocol unlawful?

Last year, the High Court in Belfast found that the Withdrawal Agreement Act, which introduced the protocol, conflicts with Article 6 of the Acts of Union 1800, drawn up to ensure equal trade footing between Britain and Ireland. However, it was decided that this was overruled by the Government with the new legislation, and so it did not escalate any further. The decision was appealed on the basis that the Acts of Union should hold supreme.

Now that the appeal is allowed to the Supreme Court, 3 questions are being raised for consideration:

– Did the Court of Appeal err in law by concluding that (a) Article 6 of the Acts of Union did not prevent the UK Government from effecting the Withdrawal Agreement and (b) that the European Union Withdrawal Act 2018 lawfully modifies Article 6?

– Did the Court of Appeal err in law by failing to conclude that the modification of Article 6 constitutes a change in the constitutional status of Northern Ireland, in conflict with the Northern Ireland Act 1998?

– Did the Court of Appeal err in law by concluding that the Protocol lawfully disapplied section 42 of the Northern Ireland Act 1998?

Need advice on importing or exporting through Northern Ireland?

Whether the Supreme Court finds the Northern Ireland Protocol unlawful or not, it will remain a grey area for customs clearance. If you are thinking of trading through the area, contact one of our team for assistance.


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