The High Court of Northern Ireland on Wednesday dismissed two applications for judicial review challenging the United Kingdom and European Union’s Withdrawal Protocol on Northern Ireland as well as the UK’s Withdrawal Acts and Regulations, holding that the matters in question were matters of high-level politics and were unsuited for Court supervision through judicial review proceedings.

The decision concerns two applications for judicial review, with the first application brought by several politicians representing “a broad range of unionist opinion in Northern Ireland” and the second application brought by a Unionist pastor. The proceedings aimed to challenge the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU) Regulations 2020, but were held to be in effect challenging the Protocol on Ireland/Northern Ireland, the European Union (Withdrawal) Act 2018 and the European Union Withdrawal Act 2020.

The applicants had argued that the Withdrawal Protocol and the 2020 Regulations were incompatible with Article VI of the Act of Union 1800, which they claimed to be a “constitutional statute,” as well as the Northern Ireland Act 1998. They further contended that the provisions of the regulations breached Protocol No. 1 to the European Convention, which guarantees the “free expression of opinion of the people in the choice of the legislature.”

Mr Justice Colton rejected the applicants’ initial arguments by stating that:

The more general words of the Act of Union 1800 written 200 plus years ago in an entirely different economic and political era could not override the clear specific will of Parliament, as expressed through the Withdrawal Agreement and Protocol, in the context of the modern constitutional arrangements for Northern Ireland. This matter must also be considered in light of the fact that every provision and clause of the Withdrawal Acts, the Protocol and associated documents were fully considered by Parliament. Parliament did so in the context of the three previous rejections of the Withdrawal Agreement which had a different arrangement for Northern Ireland. The views supported by the applicants in this case that the Protocol was contrary to the constitutional arrangements for Northern Ireland was known to the legislature. The Acts were passed by a legislature which was fully sighted of the terms and consequences of the Withdrawal Act.

He also dismissed the challenge on the grounds of human rights, holding that “the making of treaties and the conduct of foreign affairs are matters of high level politics which are entirely unsuited to supervision by a court on a judicial review application.”

The High Court’s decision is a setback to the coalition of unionist parties who fear that the Withdrawal protocol might cause damage to role of Northern Ireland in the United Kingdom. The judgment is likely to be appealed and could ultimately be heard by the UK Supreme Court.