By Ben Habib
When I called Baroness Hoey in January to discuss the possibility of a Judicial Review of the Protocol, I did so only after exhausting every political tool at my disposal to persuade the government to ditch it. Admittedly the tools were limited to media appearances and the writing of articles but there cannot be many people who have written as voraciously about its union busting implications as I have.
During the election of 2019 I remember Sophy Ridge’s eyes light up when I told her on air the Withdrawal Agreement was worse than remaining in the EU. I explained Northern Ireland would be left bereft (that was the word I used) but also the UK would remain in the lunar orbit of EU regulations, bound into a so called level playing field, with fixed fishing quotas and a whole load else besides.
The WA truly is an awful deal. But central amongst the Conservative Party’s manifesto Brexit promises was a commitment the country would leave the EU as one United Kingdom. In essence the Prime Minister promised not to adhere to the terms of his own WA. [This was a promise he intimated many times, not just privately but publicly as well, claiming the new trade deal, which was being negotiated in 2020, would iron out the flaws in the Protocol.] So when he won his thumping majority we, the Brexit Party, had little option but to support him. I did so with significant trepidation: https://brexitcentral.com/why-i-will-vote-for-the-withdrawal-agreement-in-the-european-parliament/.
Sadly the Prime Minister seemingly had no intention of honouring his Brexit promises. This became clear last year when he repeatedly failed to take the actions necessary to free Northern Ireland and rid the UK of EU interference.
Brexiteers came to dislike Mrs. May for her weak stand with the EU. Mr. Johnson is not much better. He differs mainly in being a charming speaker, prepared to say whatever is necessary to carry a crowd.
Time and time again he has said in the Commons the people of Northern Ireland are not diminished by the Protocol. In June this year he even said the union of the United Kingdom had not been broken by it – at the same time as his lawyers (successfully as it happens) were arguing in court that swathes of the Act of Union had been set aside by it. Mr. Johnson is in contempt of Parliament.
He cannot be trusted with our precious union.
So with political pressure failing, I looked at legal options. Kate suggested I speak to Jim Allister and he introduced me to the excellent John Larkin QC.
Legal action is never to be embarked on lightly. It has real life implications, is expensive and more often than not a fraught process. But John’s legal opinion on the Protocol was emphatically that it is illegal. John, for those who do not know him, is one of the UK’s leading counsels and a former Attorney General of Northern Ireland. His assessment matters.
For supporters of the Protocol, our initial loss in the High Court is all the proof they need that our Judicial Review is groundless. They are wrong. We expected to lose the first hearing. The issues being determined are of such great constitutional importance that a first instance judgement was very likely to favour the government. Though, crucially, Justice Colton did determine the Act of Union to have been largely set aside.
Our appeal of that judgment is crucial for obvious reasons, two of which are worth setting out.
First, the government is not taking decisive action to bring the ill effects of the Protocol to an end. All year the Prime Minister and Lord Frost have said they would not hesitate to invoke Article 16 to suspend it, but that is all they have done – hesitate. Left to their own devices they will never properly face up to the EU. Indeed, if Lord Frost was sincere in the demands he made in his Command Paper to reform the Protocol, the government would not resist our Judicial Review. It would accept our challenge. Doing so would immediately afford it the justification it needs to terminate the Protocol.
Second, when elected officials are in contempt of Parliament and play fast and loose with the Nation, citizens have to rely on the judiciary.
So it was deeply disappointing when the Court of Appeal decided last week to delay the hearing. They did so ostensibly because a new announcement was due to be made by the EU on 13 October. Anyone with any experience of the EU would have known the pointlessness of holding out for reasonableness from them. And sure enough, what emerged changed nothing. The EU’s offer amounted to no more than glorified grace periods with greater alignment with their regulations and interference from them.
Instead of rejecting their offer and invoking Article 16, Lord Frost has now hunkered down into what will be months of negotiations. Nothing is expected to emerge before 2022.
All the while the Judicial Review remains on hold. All the while Northern Ireland’s trade with Great Britain is being switched to trade with the EU, allowing it economically to capture the province in breach of international and domestic law.
The success of our Judicial Review is vital for the integrity of our country. Justice delayed in this context may be the end of the United Kingdom.
Ben Habib is a former Brexit party MEP and is one of the applicants in the ongoing challenge to the constitutional legality of the Union-dismantling Protocol. He is on twitter @BenHabib6