Pledges by Boris Johnson to prevent a border down the Irish Sea are “utterly inconsistent” with the impact of the Northern Ireland Protocol, the High Court has heard.
ounsel for a pan-unionist group claimed the Prime Minister had made conflicting declarations which cannot withstand scrutiny of the post-Brexit trading arrangements.
Opening their challenge to the legality of the new regime, it was contended that even a senior British Government official could not personally endorse the assertions of his “political masters”.
John Larkin QC said: “He’s let the Prime Minister and others speak for themselves and he makes no commentary or gloss, or does not endorse or adopt… any of these words which are sometimes internally contradictory but simply cannot withstand a candid reading of the various provisions of the protocol.
“These passages quoted from the Prime Minister are utterly inconsistent with any candid reading of Articles Four and Five of the protocol.”
The protocol, which formed part of the Brexit deal, was designed to prevent a hard land border on the island of Ireland.
But it has created an effective trade border between Great Britain and Northern Ireland.
Under the arrangements, the province remains in the EU single market for goods, with checks on produce coming in from the rest of the UK.
Amid disruption to business at Irish Sea ports since January, unionists are disputing the lawfulness of the protocol.
According to their case, it breaches both the Act of Union 1800 and the 1998 Good Friday Agreement.
Proceedings brought by TUV leader Jim Allister are being backed by outgoing DUP and UUP chiefs Arlene Foster and Steve Aiken.
Baroness Hoey, Ben Habib and Lord Trimble, one of the architects of the 1998 peace accord, have also aligned themselves to the challenge.
In a case scheduled to last for four days, Mr Justice Colton was taken through affidavits from some of those behind the action.
According to Mr Allister, the Act of Union has been “subverted”.
Mr Habib, a businessman and former politician, contended that “the Government of the United Kingdom has allowed Northern Ireland to be hived off by the EU”.
“In doing so, it has breached the obligations under the Acts of Union,” he said.
The court heard how Mr Johnson made a statement to the House of Commons, insisting there will be no border down the Irish Sea.
It was claimed, however, that he directly contradicted this by stating there will be some customs checks but no tariffs.
“That is untrue, but not an acknowledged untruth from the Prime Minister,” Mr Larkin submitted.
He also contested assertions that the protocol had “solved the problem” for Northern Ireland.
Referring to claims that it enabled free trade deals around the world, counsel submitted: “Again, not true. That’s a misreading.”
He took issue with an expressed view that the arrangements protected Northern Ireland by extracting it “whole and entire” from the EU customs union and allowing it to join the rest of the UK in setting tariffs.
As part of the Government’s defence to the challenge, an affidavit from a senior official included statements from Mr Johnson and senior cabinet colleague Michael Gove.
Mr Larkin described this as an unusual move of “simply letting his political masters speak for themselves”.
“That’s done for the very good reason, because these are things [the official] would not himself be able to say on affidavit,” he argued.
The barrister went on to challenge assertions by Mr Johnson about possible EU levies on everything from Scottish beef and Devonshire clotted cream moving to Northern Ireland.
“The protocol provides for a presumption of risk, and it appears a charitable explanation is that has not been properly understood, otherwise it would not have been possible to say this with any prospect of candour,” counsel insisted.
Loyalist pastor Clifford Peeples has also mounted a separate challenge against the Prime Minister, contending that the protocol breaches the Good Friday Agreement.
The Belfast man’s lawyers maintain that such a constitutional change cannot take place without a referendum.
The case continues.