The mechanism is a device worked out between the bloc and the UK with the intention of preventing a hard border between Northern Ireland and the Irish Republic. However, critics say it has instead resulted in a border down the Irish Sea, which the North still subject to many rules and regulations laid down by Brussels.
The legal threat has been issued by former MEP Ben Habib, Baroness Hoey – previously former Labour MP Kate Hoey – and Jim Allister QC, a member of the Northern Ireland Assembly.
In a video uploaded to Unlocked_UK, of which he is the chairman, Mr Habib confirmed the plan to push for a judicial review.
He explained: ”We have done so because that protocol undermines the Act of Union 1800.
“We have done so because it undermines the Belfast Agreement has been foisted on the people of Northern Ireland, without cross-community consent.
“And we have done so, because Brandon Lewis sought in December 2020 to change the Northern Ireland act 1998 using a statutory instrument, removing the requirement for community consent in Northern Ireland and transposing the consent processes of the Withdrawal Agreement into that Act.
“That was a wholly unlawful thing to do.”
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Mr Habib said it had become clear that, notwithstanding what he called the hardship suffered by the people of Northern Ireland as a result of the border down the Irish Sea, “the Prime Minister intends to do nothing about the protocol”.
He explained: “Even after the European Union belied their repeated narrative that there cannot be a border down the island of Ireland when they invoked article 16 on January 29, in an attempt to prevent life saving vaccines from coming across to the United Kingdom, through Ireland, even after that, the Prime Minister did not take action.”
In fact, in Parliament four days later, Mr Johnson had confirmed his understanding of the Good Friday Agreement that there cannot be a border on the island of Ireland, Mr Habib pointed out.
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He added: “Well he’s totally wrong, the Good Friday Agreement contemplates a border on the island of Ireland.
“But Baroness Hoey, Jim Allister and myself, and a whole host of other people, by the way, have reached the end of our tether.
“This is a Prime Minister who is driving a coach and horses through the union of the United Kingdom.
“The steps he has taken with the protocol and his refusal to change direction is going to break up the union.
“We have therefore threatened legal action, and unless immediate steps are taken to put the protocol right, we will be instituting a judicial review in the next few days.
“And we’re relying on the British court to do the right thing by the union of the United Kingdom.”
Writing in the Irish Times yesterday, former DUP leader and Northern Ireland First Minister David Trimble, who played a leading role in negotiating the landmark 1998 Good Friday Agreement, said: “As someone who loves my country, and made real personal and political sacrifices to bring peace and normality to it, I implore my own government, the Irish Government and the EU to stop playing fast and loose with the hard-won arrangements in the Belfast Agreement.
“My primary objection to the protocol is that it changes fundamentally the constitutional relationship between Northern Ireland and the rest of the UK.
“The laws that will apply to the economy, the environment, agriculture, workers rights, and regulations covering everything from building standards to use of weedkillers, no longer will be made at our parliament in Westminster or the local Assembly in Belfast.
“They will instead be determined by a foreign authority in Brussels.”