Loyalist activist Jamie Bryson has lost a last-ditch legal challenge to a Stormont vote on continuing post-Brexit trading arrangements for Northern Ireland.
Mr Bryson mounted an emergency appeal after losing High Court proceedings brought against Secretary of State Hilary Benn for initiating the democratic consent process to maintain the Windsor Framework.
But senior judges in Belfast again rejected claims that Mr Benn had unlawfully failed to comply with an obligation to protect Northern Ireland’s position within the UK customs territory.
In a ruling delivered just before MLAs vote on the motion, Lady Chief Justice Dame Siobhan Keegan backed government submissions that explanatory documents demonstrated proper consideration was given to the legal duty.
“It is very clearly indicated within this material that the special regard in respect of Northern Ireland’s place within the customs territory is captured,” she said.
“In agreement with the trial judge, we find no arguable case with a reasonable prospect of success on the one ground pursued by Mr Bryson, so we dismiss the appeal.”
The Windsor Framework keeps Northern Ireland inside the European Union’s single market for goods while creating an Irish Sea border requiring checks on products arriving from the rest of the United Kingdom.
Despite unionist opposition, the vote on maintaining EU trade regulations under the treaty is expected to be passed by the Assembly.
Representing himself, Mr Bryson abandoned initial attempts to stop the democratic consent motion process going ahead at Stormont.
However, he pursued an application for leave to seek a judicial review into the lawfulness of the Secretary of State’s decision.
All grounds of challenge were dismissed by a High Court judge following the first emergency hearing on Monday night.
The high-profile figure returned to the Court of Appeal today to pursue claims that Mr Benn has breached requirements contained within the UK Internal Market Act.
He argued that the Secretary of State has been completely “silent” on the issue.
“There is nothing at all about turning his mind to preserving or protecting Northern Ireland’s special place within the UK customs territory,” Mr Bryson submitted.
Tony McGleenan KC, for the government, countered that a fair reading of explanatory materials demonstrated the region has been properly recognised.
He also described the legal challenge as “constitutionally improper”.
“The real purpose of this is to cast a shadow over the legislative process that is ongoing in the Northern Ireland Assembly (and) influence the MLAs who are pondering, as we speak, what way they should vote,” he claimed.
“The court should not allow its processes to be used to call the actions of the legislative assembly into question.”
Mr Bryson maintained there was no challenge to proceedings in the Assembly or attempt to interfere with constitutional separation of powers.
“The court is being asked to determine if, in exercising his statutory duty, the Secretary of State acted lawfully. No more, no less,” he added.
“Whether that determination may ultimately have political consequences is irrelevant.”
Dismissing the appeal, the three-judge panel cited statute and an analysis of the relevant explanatory materials.
Dame Siobhan, sitting with Lord Justices McCloskey and Horner, said: “Whilst the phrase customs territory may not be expressly found in those paragraphs, it is implicitly present and it is textually part of this material.
“In agreement with the trial judge and having regard to the evidence before us, we are satisfied that there is no arguable case established for judicial review on this discreet and limited point.