Legal challenge over vote to extend post-Brexit trade deals dismissed

A legal challenge to a Stormont vote on extending post-Brexit trade deals for Northern Ireland has been rejected, and the Assembly debate will continue as planned on Tuesday.

Ruling on Monday after an emergency hearing at the High Court in Belfast, Mr Justice McAlinden rejected loyalist activist Jamie Bryson’s application for permission for a full judicial review hearing against Northern Ireland Secretary Hilary Benn.

The judge said Mr Bryson, who identified himself as a personal litigator, had “very ably argued” his case with “perseverance and strength” and had raised certain questions of law which caused him “some concern”.

However, he ruled against him on all three grounds of challenge against Mr Benn.

Mr Bryson had initially asked the court to grant interim relief in his challenge to prevent Tuesday’s democratic consent motion from being heard in the Assembly, pending the hearing of a full judicial review.

However, he abandoned this element of his application for leave during proceedings on Monday, after the judge made it clear he would be “very reluctant” to do anything which would “encroach on the domains” of a democratically elected Assembly.

Mr Bryson had challenged Mr Benn’s decision to initiate the democratic consent process required by the UK-EU Windsor Framework Agreement to extend trade deals applicable to Northern Ireland.

Previously announced voting intentions from the main parties suggest Stormont MPs will vote to keep the measures in place for another four years when they meet to debate the motion on Tuesday.

After the ruling, Mr Bryson told the court he intended to appeal to the Court of Appeal. No hearings are expected to take place later Monday.

In seeking permission, the activist’s argument rested on three main arguments.

The first was the claim that Mr Benn had not made sufficient effort to ensure that Stormont leaders undertook a public consultation exercise in Northern Ireland before the consent vote.

The second was that the Secretary of State would not have demonstrated that he had paid particular attention to protecting Northern Ireland’s place in the UK customs territory by calling the vote.

The third reason centered on legislative changes introduced by the previous UK government earlier this year, as part of its Safeguarding the Union deal to restore power sharing at Stormont.

He claimed that if the amendments achieved their aim of safeguarding Northern Ireland’s place within the UK, then it would be illegal to renew and extend post-Brexit trade deals which have created barriers economic relations between the region and the rest of the United Kingdom. .

In 2023, the UK Supreme Court unanimously ruled that trade deals with Northern Ireland were legal.

The appellants in this case argued that the legislation passed at Westminster to give effect to the Brexit withdrawal agreement was in conflict with the 1800 Acts of Union which formed the United Kingdom, in particular article six of this law guaranteeing free trade within the United Kingdom.

The Supreme Court held that although section six of the Acts of Union had been “amended” by the arrangements, this had been done with the express will of a sovereign parliament and was therefore lawful.

Mr Bryson argued that amendments to the Withdrawal Agreement earlier this year, as part of the Government’s proposed Union safeguards to convince the DUP to return to power sharing, purported to reaffirm and strengthen the constitutional status of Northern Ireland in the light of the Supreme Court. judgement.

He told the court it was “absolutely clear” that there was an “inconsistency” between the different legal provisions.

“This inconsistency must be resolved – there is an arguable case,” he told the judge.

However, Dr Tony McGleenan KC, representing the Government, described Mr Bryson’s argument as “desperate” and “not even tenable”.

He said all three parts of the case had “no chance of success and served no purpose.”

He added: “This is a political argument disguised as a point of constitutional law and the court should see it for what it is. »

After standing to consider the arguments, Judge McAlinden issued his ruling shortly after 7 p.m.

The judge dismissed the application on the first ground relating to lack of consultation, emphasizing that such an exercise did not constitute a “mandatory” obligation for Mr Benn.

On the second ground, he said there were “very clear” indications that the Secretary of State had paid particular attention to customs territory matters.

Finally, Justice McAlinden concluded that there was no inconsistency between the recent legislative changes and the position expressed in the Supreme Court judgment.

“I don’t think such an inconsistency exists,” he said.

He said the amendments were simply a “reaffirmation” of the position as set out in the Supreme Court judgment and served only to confirm that the replacement of the Northern Ireland Protocol with the Windsor Framework had not not altered the constitutional fact that section six of the laws of Northern Ireland. The Union had been legally “changed” by post-Brexit trade deals.

“It doesn’t do anything extra,” he said.

The framework, and its predecessor the NI Protocol, require customs checks and formalities for goods moving from Great Britain to Northern Ireland.

Under these arrangements, designed to ensure no hardening of the Irish land border after Brexit, Northern Ireland continues to follow many EU trade and customs rules.

This has proved highly controversial, with unionists claiming the system threatens Northern Ireland’s place in the UK.

Supporters of these arrangements say they help protect the region from the negative economic consequences of Brexit.

A dispute over the so-called Irish Sea border led to the collapse of the Northern Ireland Assembly in 2022, when the DUP removed then-Prime Minister Paul Givan from the coalition executive.

The standoff lasted two years and ended in January when the government published its EU safeguard measures.

Under the terms of the framework, a Stormont vote must take place on articles five to 10 of the Windsor framework, which underpin the EU trade laws in force in Northern Ireland, before they expire.

The vote must take place before December 17.

According to figures in the Assembly, MPs are expected to support maintaining the measures for another four years, although trade unionists are likely to oppose them.

DUP leader Gavin Robinson has already made clear his party will vote against continuing to operate the Windsor framework.

Unlike other votes on controversial issues at Stormont, the motion does not require support from multiple communities to pass.

If it is passed by a simple majority, the system is extended for four years. In this case, the government is required to carry out an independent review of the functioning of the framework.

If it obtains the support of all the communities, that is to say a majority of trade unionists and a majority of nationalists, then it is extended for eight years.

The chances of him gaining such cross-community support are very unlikely.