Northern Ireland

John Manley: Law lords' ruling serves to tighten the bind on hardline unionism

Sir Jeffrey Donaldson (left), Ben Habib (back left), Baroness Kate Hoey (second right), and former first minister Dame Arlene Foster (right), outside the Supreme Court in London. Picture by Aaron Chown/PA Wire
Sir Jeffrey Donaldson (left), Ben Habib (back left), Baroness Kate Hoey (second right), and former first minister Dame Arlene Foster (right), outside the Supreme Court in London. Picture by Aaron Chown/PA Wire Sir Jeffrey Donaldson (left), Ben Habib (back left), Baroness Kate Hoey (second right), and former first minister Dame Arlene Foster (right), outside the Supreme Court in London. Picture by Aaron Chown/PA Wire

THE dogs in the street, or at least those with a cursory knowledge of constitutional law, knew beforehand the likely outcome of the Supreme Court ruling on the Northern Ireland Protocol.

You sensed the litigants themselves knew too but couldn't abandon their challenge for fear of losing face.

Like the High Court and the Court of Appeal before them, the Supreme Court's five law lords unanimously dismissed the argument that the post-Brexit trading arrangements breached the Acts of Union and the Northern Ireland Act.

The judges concluded that the Withdrawal Agreement – Boris Johnsons 'oven ready deal' that was passed by Westminster in 2020 – had overwritten previous legislation that gave guarantees about free trade within the UK. The law lords also dismissed the appellants' contention that a referendum was necessary before the protocol could alter the north's constitutional status.

"The clear intention of parliament in enacting these acts was to permit the crown to make the protocol," the judgment emphatically said.

Despite defeat in the courts after a two year process, and it being the end of the road for the legal challenge, the litigants weren't accepting that their arguments were flawed.

Jim Allister, a KC and TUV leader said that rather than undermining their case, the judgment strengthened it.

For him, the court's finding that the protocol disapplied elements of the Acts of Union "confirms everything we have said about it dismantling the union".

The law lords had effectively confirmed what the rest of us have been trying to tell unionists for the past three years – the Tories sold them down the river, while gleefully waving Union Jacks.

While the issue is now settled in legal terms, politically it remains unresolved.

Hardline unionism, looking increasingly like its marginalised loyalist forebear of the 1970s and '80s, will cherry pick the Supreme Court's judgment to suit its own ends.

Vindicated by the court in their belief that the British government can't be trusted, the opponents of power-sharing, who use opposition to the protocol as cover for intransigence, will continue to spurn potential allies and manoeuvre themselves towards the political wilderness.

As the prospects of an agreement between the EU and UK grow, the greater the pressure on the DUP to make a call.

Will Sir Jeffrey Donaldson choose the pragmatic path and sell what's on offer to his party's base, or driven by a fear of electoral humiliation, will he let the uncompromising Mr Allister lead him to a destination unknown but one that is unlikely to deliver greater unionist security?

Rather than giving the Brexit-supporting unionists the fillip they'd initially hoped for, the Supreme Court ruling merely tightens the bind.

The only remaining way out of this mess of their own making is by taking political risks and compromising – as the EU and UK appear to be doing.

Decision day is looming but does Sir Jeffrey have the courage to step into the unknown?