AND SO we now have it. It is stark and it is bittersweet, but the politically charged adjudication, by the Honourable Mr. Justice Colton (pictured), on the joint application for a Judicial Review of the Protocol has exposed the misrepresentations about the Union being told by the UK Government. Misrepresentations that have implications for Scotland too.
The ruling was bittersweet because while it rejected our case the basis on which this has been set out shows both the Prime Minister and the Secretary of State for Northern Ireland to be, at best, misleading the House of Commons. This must be a worry for everything they say about Scotland’s place in the Union – not that you will hear the SNP or Scottish Tories daring to confront this reality.
Justice Colton’s opening remarks set out the context of the laboured and tortuous process of Brexit itself: Mrs. May’s original idea of the entire UK remaining in the EU’s customs union; her political difficulties and eventual ejection from office. Then the emergence of Boris Johnson as Prime Minister with his own Withdrawal Agreement and the Northern Ireland Protocol. He was softening us up to dismiss the grounds of our objections.
This he did systematically starting with perhaps the most important part of our case, the Act of Union (Ireland) 1800.He confirmed we had rightly argued the Protocol put a border down the Irish Sea, subjected Northern Ireland to a separate constitution and thereby did not just treat its people in an inherently different way but also separated it from the UK. He agreed with all this – but – instead of then going on to agree the Act of Union had been breached, he ruled it had, to the extent required to leave Northern Ireland behind in the EU, been repealed.
Although we disagree with Article 6 of the Act of Union being repealed impliedly (by implication of another Bill being passed and superseding it) the fact that he concluded this was what in law had happened is a massive blow to the credibility of the Government’s previous statements. Although not the focus of our action It throws into doubt how much the current administration can be trusted on anything it says about a referendum not happening or the safety of Scotland’s place in the UK too. This only serves to give sustenance to the SNP cause.
It should be pointed out here that in the process of debating the Withdrawal Agreement in the Commons the Prime Minister was asked about the negative impact it would have on the Act of Union. The Government denied this would be the outcome and the scrutiny that might have been expected was sidestepped. (This thread by former MP Emma Little-Pengelley explains briefly the history). Only a few weeks ago Sir Jeffrey Donaldson MP also pressed the Prime Minister on the conflict between the Protocol and the Act of Union – and again it was denied (see the video here).
Ruling that the Act has been “impliedly” amended may have been a neat legal trick to get the government off the hook but the political impact of confirming the union of the United Kingdom has been broken is vast, as many independent observers noted yesterday.
It follows if there is a border in the Irish Sea with Northern Ireland subject to a separate constitution, the East/ West dimension of the Belfast Agreement has also been broken. Justice Colton has indirectly confirmed, in pursuit of the faux protection of the North/ South dimension of that agreement, the East/ West dimension has been ditched. The Protocol has, in substance broken the Belfast Agreement – the very agreement it was meant to protect.
Second, it puts paid to government’s constitutional alchemy. The Prime Minister has repeatedly claimed by moving customs checks to the Irish Sea, a “hard border” on the island of Ireland had been avoided. But he never accepted, and still does not, that there is now a definite border between Northern Ireland and Great Britain. Indeed, his Secretary of State for Northern Ireland, Brandon Lewis, tweeted in January “there is no Irish Sea border”. Such nonsense is now confirmed for what it is, a denial of reality.
In a Scottish context this is important, for the UK government must be clear and not resile from the reality that Scottish secession would create a border with England. There is no sea to put it in and it cannot be avoided.
The Prime Minister’s solemn Brexit manifesto pledge was the country would leave the EU as one United Kingdom. As recently as two weeks ago the Prime Minister said in the Commons the Act of Union had been protected and would not be broken. Justice Colton has told him otherwise. He must now explain how it is he has been facing both ways on this issue for so long and what he will do to fix our broken union.
My fellow complainants and I will not allow the Prime Minister to break the union of the United Kingdom in order to mollify Ireland and the EU. The Protocol is the embodiment of ultimate political weakness. We will not allow him to ride rough shod over the Belfast Agreement and the people of Northern Ireland.
We do not agree with a great deal of Justice Colton’s findings but they have nevertheless confirmed the devastating impact of the Protocol; for that we thank him.
The hearing in the High Court in Belfast was just the first step in our legal battle. We have always said the legalities of this dispute will be settled in the Supreme Court. We will appeal Justice Colton’s verdict. This issue will not go away and it is one that Scots should be keeping their eyes on.