Brexit has changed the North’s constitutional status no matter what the courts say

Unionists and Brexiteers were last week forced to confront a basic legal maxim: it’s not what you know, but what you can prove in court.

On Wednesday, the UK’s Supreme Court effectively shut down a legal challenge to the North’s post-Brexit trading arrangements taken by a group of unionists, including former first minister Arlene Foster, and several Brexiteers.

The appellants had sought to prove that the Northern Ireland protocol agreed by London and Brussels in 2019 to ensure the free movement of goods across the Border had diminished the North’s constitutional status within the UK.

This is so self-evidently true that it’s hardly worth stating. There are now checks and controls on goods entering Northern Ireland from Britain, placing the North in an entirely different trading orbit to, say, Scotland or Wales.

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A trade-off had to be made and despite all the guff from Brexiteers about porous borders, that trade-off was a border in the Irish Sea and an altered trading status for the North.

On the purely legal grounds on which the case was fought – whether the protocol breached previous laws – the challenge, however, failed.

Appellants had maintained that the protocol unlawfully conflicted with part of the 1800 Act of Union, which says all parts of the UK must be treated equally in matters of trade.

The Act of Union (which took effect on January 1st, 1801) had more than 200 years ago dissolved the then Irish Parliament and brought Ireland under direct British rule. Brexit has dredged up the back catalogue of Anglo-Irish relations like no other modern process. Dublin and London’s relationship was strained for much of it.

Appellants also argued that the protocol changed Northern Ireland’s constitutional status without a referendum, as required by the Northern Ireland Act 1998. And that the secretary of state did not have the power to change Stormont’s cross community voting rules in relation to the protocol.

Handing down the judgment, Lord Justice Stephens noted that the appellants had contended that the protocol had “brought about a substantial diminution to the status of Northern Ireland within the UK” – seeming to give credence to that proposition – but ultimately dismissed the appeal on the grounds that the protocol did not breach previous laws, as contended.

[ Northern Ireland protocol: UK Supreme Court rejects challenge to legality ]

The mood music surrounding the challenge was low key, suggesting the appellants held little hope of winning. The case had previously been defeated in the High Court in Belfast and the Court of Appeal.

Democratic Unionist Party (DUP) leader Jeffrey Donaldson said a solution to the protocol “was never going to be found in the courts” while insisting the protocol was “an existential threat to the future of Northern Ireland’s place within the union”.

He added that “the cases have served to highlight some of the reasons why unionists have uniformly rejected the protocol”, urging the UK government to consider the arguments made by the appellants.

The upside to the North’s new trading equation is that it retains access to the EU’s single market, something investment agencies have been advertising but under the radar of politics. That is of course cold comfort to the DUP and Brexiteers.

The fact that the DUP was persuaded to dump former prime minster Theresa May and her proposal to keep the entire UK inside the EU customs union – which would have kept the North aligned with the other constituent parts of the UK – in favour of a deal that constitutionally weakens the North is merely a testament to the fact that they were played by a bigger and more skilful operator: Boris Johnson.

Either way, wrangling over the protocol is set to run. The DUP will most likely learn to live with a reformed version of it, to which the EU seem willing to agree.

Unhappiness with Brexit across the UK as a whole is potentially a bigger problem. The exact figures in polls vary, but about 60 per cent of UK citizens think leaving the EU was the wrong decision and would vote to rejoin the bloc at a second referendum.

It’s hard to understand the 40 per cent who still agree with the decision given the litany of ills that flow from it and the fact that Brexiteers have singularly failed to deliver on anything. Trade is worse, immigration is messier and the concept of “Global Britain”, like Johnson himself, is gone.

But maybe those voters don’t want a rerun of what must go down as the most polarising event in modern UK history.

The UK is now the only major industrial economy that is smaller and poorer than it was before the pandemic. As well as damaging trade, the regulatory burdens imposed by Brexit have aggravated inflation and labour shortages. Prominent British business leaders, including Richard Branson, have suggested the cost of Brexit red tape would put them off investing in the UK.

[ Alex Kane: The biggest threat to unionism is unionism itself ]

The Brexit effect stretches well beyond economics. Cambridge University, one of the most prestigious seats of learning in the UK, has seen its research funding under the EU’s Horizon programmes drop from approximately £62 million (€70 million) a year to zero since the divorce.

Deteriorating Brexit economics will, sooner or later, become a political platform. For now though, the UK must suffer the mother of all Brexit hangovers.