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Brendan Hughes

Brendan Hughes: Brexit NI Protocol legal action reaches end of the road

The Supreme Court unanimously dismissed a legal challenge backed by unionists and Brexiteers against the Northern Ireland Protocol, but that didn't stop them spinning it as a win.

Despite five justices rejecting the case on all grounds, TUV leader Jim Allister argued the judgments "greatly strengthen" opposition to the Irish Sea trade arrangements.

DUP leader Sir Jeffrey Donaldson gave a milder justification for the failed court action, saying it served to "highlight" some of the reasons why unionists reject the protocol.

Read more: Brendan Hughes: Nothing to stop NI secretary stepping in on Daithi's Law

Appellants in the case argued that the protocol conflicts with the 1800 Acts of Union which formed the United Kingdom, particularly Article 6 guaranteeing unfettered trade within the UK.

But concurring with the lower courts, the Supreme Court found that while Article 6 has been "modified" by the protocol, this was done with the express will of a sovereign parliament and so therefore was lawful.

Lord Stephens said the modification of Article 6 "does not amount to a repeal of that article".

The court also dismissed arguments that the protocol undermines the 1998 Northern Ireland Act and cross-community provisions for making decisions on contentious issues at Stormont.

After the resounding legal defeat on Wednesday, Sir Jeffrey acknowledged a "solution" to the protocol "was never going to be found in the courts".

If the DUP leader believes this, some may wonder why he attended the Supreme Court to hear the judgment.

They may also question why his colleague Edwin Poots fought unsuccessfully a separate court action over the protocol at considerable public expense.

A decision by the former Agriculture Minister to order officials to halt protocol-related checks was quashed last December after a court ruled it was unlawful and taken for political reasons.

His department's failed attempt to defend the judicial review challenging his instruction racked up a legal bill of more than £57,000 - and more costs have still to be added.

The overall bill could rise even further still, as Mr Poots told the department last October before leaving office that he believed it should appeal if the court ruled against him.

Just like the instruction by Mr Poots to halt protocol checks, the Supreme Court challenge was from the beginning dismissed by critics as a stunt.

But although unionists may have lost the legal argument, they succeeded making the protocol a central political issue.

Courtroom attention helped highlight their fears that the protocol damages Northern Ireland's place in the Union.

Legal action also signalled to voters that a tough stance was being taken against the so-called Irish Sea border, even if it was ultimately a failure.

For big legal challenges against the protocol, the Supreme Court ruling is the end of the road.

While political opposition will undoubtedly continue, unionist parties must now accept the protocol is lawful.

And as much as they may object, they must accept the protocol was the will of the sovereign Parliament of the United Kingdom.

It is a consequence of years of poor decisions and missed opportunities, ranging from the folly of the DUP and others in campaigning for Brexit to backing Boris Johnson to become Prime Minister.

His "oven ready" deal sidelined unionist concerns in the pursuit of a hard EU withdrawal for Great Britain, and an electoral slogan promising to "get Brexit done" which has never been fully realised.

Focus now moves away from the courts and back to the political arena as talks intensify between the UK and European Union to resolve disputes over the protocol.

When an inevitable compromise is reached, the DUP faces the key decision of either continuing their boycott of Stormont in opposition - or spinning it as a win.

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