By Kevin Meaghar (for Irish Border Poll)
Third time’s a charm? Not if you’re trying to have the Northern Ireland Protocol struck down in the British courts.
Having already lost their case in the High Court and Court of Appeal, we can be permitted a measure of schadenfreude at the host of unionist luminaries who rolled the dice a third time only to have the Supreme Court return a unanimous verdict that the protocol is entirely legal and proper.
it is hard to overestimate just what a crushing defeat this judgment is for Unionism generally – but particularly for the appellants: Kate Hoey, Jim Allister, Ben Habib, Steve Aiken and Arlene Foster.
The ruling from Britain’s highest court has scuppered their contrived but intellectually hollow argument that the protocol undermines the Acts of Union which, inter alia, guarantees free trade across the UK. Parliament has voted to bring it into existence, the judges agreed, and Parliament is sovereign.
The other main gripe, that the protocol altered Northern Ireland’s constitutional status by ignoring the principle of consent, was given similar treatment. This only applies to a referendum on Irish unity – not to every other issue that unionists don’t like.
It means that every institution of the British state has now backed the protocol. A clean sweep across government, House of Commons, the Lords, the Monarch, the High Court and now the Supreme Court. There is nowhere else for unionist ultras to take their hard luck tale.
In an instant, the justices have reduced their argument to ash, disintegrating faster than a 12th July bonfire. Their hubris in bringing this case – and pushing it this far when it had already been defeated in the High Court – has now led to nemesis.
They have inadvertently codified that Northern Ireland is not an integral part of the United Kingdom. The ruling means that the protocol is here to stay and that there will be a border in the Irish Sea for goods coming from Britain.
While still a conditional part of the UK’s single market, Northern Ireland is now fastened into the EU’s regulatory orbit. As such, it means the British government will force the Northern Ireland Executive to erect checkpoints at the ports – or do it itself if they are not willing – to police the border-in-the-Irish-Sea.
Politically, it is now easier for British ministers to conclude their negotiations with the European Commission, using its essential legality of the protocol to push back against Tory hardliners in the European Research Group who are as deluded as the DUP over these matters.
It also means something else in Northern Ireland’s zero-sum politics. For Unionists, this legal action was a unforced error. A cocky, pernickety, too-clever-by-half tactic that has backfired. For United Irelanders, this is a fillip; a day when the ratchet turned another notch and Northern Ireland became even less viable.
This is a wholesale defeat for unionists. Their worst setback since the Anglo-Irish Agreement 40 years ago. Just like then, they cannot rely on a Conservative government to defend their version of the Union.
Rishi Sunak will undoubtedly have his work cut out selling a deal that revises rather than removes the protocol in coming weeks, but at least he will not have to defend its legality.
For that we have Hoey, Habib, Foster, Allister and the rest to thank.