Protocol case will be decided by Supreme Court but political problem persists

Court’s view on diminished status of Acts of Union will deepen sense of frustration

The Northern Ireland protocol is lawful. So says Belfast’s Court of Appeal, which on Monday backed the High Court’s decision to dismiss a challenge to the protocol by prominent unionists and Brexiteers who argued it conflicted with the 1998 Belfast Agreement and the 1800 Acts of Union.

In this respect, little had changed; the Court of Appeal simply reinforced a judgement of June 2021, prompting Sinn Féin and SDLP statements welcoming the ruling and urging the DUP and Traditional Unionist Voice (TUV) to move on rather than, as the SDLP’s Matthew O’Toole put it, continue to “flail over the consequences of the rock-hard Brexit they championed”.

Yet a good deal has changed in the North in those nine or so months. The resignation of the DUP’s First Minister as part of his party’s protest against the protocol means Northern Ireland no longer has a functioning Executive, and the Assembly election has significantly raised the political stakes.

Monday’s judgement demonstrated why opposition to the protocol goes to the core of unionism. It is not only a matter of the head, but of the heart; not solely about trade, or economics, or whether the chilled meats in their local Tesco come from Birmingham or Ballymena, but about a defining identity which feels under threat as frustrations are ignored.

“It is as existential as it gets,” said one TUV member.

The case against the protocol was fought on a foundation stone of that identity, the 1800 Acts of Union, as well as the 1998 Belfast Agreement.

The “two key points” arising from the judgement, said the TUV leader Jim Allister on Twitter, were the admission that the relevant part of the Acts of Union had been “subjugated” by the protocol and consent under the Agreement “is a con as [IT]only applies to the final handover of NI”.

“Well that’s the end of the Belfast /GFA [Good Friday Agreement]. Pro Union people can no longer rely on it for protection of their rights as British citizens,” said the former Labour MP Kate Hoey. “All cross border agreements must end and no Executive/ Assembly until Protocol is ditched.”

Under this narrative, the fact that the legal challenge was dismissed on all five grounds simply reinforces the sense that unionism stands alone; beset by enemies apparently on all sides. Most hurtful of all is that it has been betrayed by its supposed defender, the UK government.

This is the frustration and anger which finds its expression far from a Belfast courtroom, in anti-protocol rallies on Friday nights in Crossgar or Markethill.

The case will now go to the Supreme Court but the reality remains that one of the consequences of Brexit has been the alienation of a section of society in Northern Ireland. How to reconcile them will be a challenge for all.