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Acts of Union “Shattered” Part 2: UK Supreme Court confirms Acts of Union “Suspended” by Northern Ireland Protocol

By: Brendan Rooney BL

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On 10 December, 2021, I wrote about how the High Court of Northern Ireland found in Re Allister and Ors [2021] NIQB 64 that the Northern Ireland Protocol (“the Protocol”) effectively repealed any part of the Acts of Union 1800, in particular Article VI thereof, it is in conflict with (para. 114). To recall, Northern Ireland forms part of the United Kingdom through the Acts of Union with Article VI placing the parties on an “equal footing” in relation to trade. However, the Protocol, which is incorporated into the UK constitutional order by the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal) Act 2020 (“the Withdrawal Act”), ties Northern Ireland economically to the European Union (“the EU”), insofar as it provides that Northern Ireland remains in the EU single market for goods.

In response to the judgment of the High Court, the Applicants, largely made up of Unionists, appealed to the Northern Ireland Court of Appeal ([2022] NICA 15), on the basis that the Acts of Union has legal supremacy and that a constitutional statute cannot be implicitly repealed by a subsequent Act of Parliament. The Court of Appeal delivered its judgment on 14 March, 2022. The Court noted that the Protocol was not “simple or straight forward” (para. 23) and, in commenting on the broader context of the case, noted that the issues being dealt with were “of incontestable constitutional importance” and have “generated much public debate and reaction, including public disorder” (para. 600).

Nonetheless, the Court once again dismissed all of the arguments presented by the Applicants. In relation to the Acts of Union, the Court of Appeal observed that Parliament cannot bind its successors such that a subsequent Act of Parliament is unable to amend or repeal an earlier Act (para. 205). Therefore, the Acts of Union lack supremacy over subsequently enacted legislation, and instead the Withdrawal Act takes precedence over the Acts of Union (para. 191). However, instead of agreeing with the High Court that Article VI of the Acts of Union was repealed, the Court concluded that the provision was instead modified by the Withdrawal Act (para. 242). The Court further noted that the Acts of Union “must be read subject to” the Protocol as the latter “was lawfully enacted by a sovereign parliament and applies to all previous enactments” (para. 242).

Still undeterred, the applicants launched an appeal to the UK Supreme Court ([2023] UKSC 5) which rendered its decision on 8 February, 2023. The Supreme Court first noted that the “Protocol does conflict with or has some inconsistencies with article VI of the Acts of Union” (para. 54). However, the Court took the view that the debate surrounding the “constitutional character” of the Acts of Union and the Withdrawal Act, as well as the “correct interpretative approach” to take when considering such statutes is “academic” (para. 66).

Instead, the Supreme Court emphasised the “clearly expressed will of Parliament” and the “most fundamental rule of UK constitutional law is that Parliament… is sovereign and that legislation enacted by Parliament is supreme” (para. 66). To this effect, the Court concluded Article VI of the Acts of Union is subject to the Protocol such that, while the provision is not repealed, it is modified to the extent that it is, in effect, suspended (para. 68).

The Supreme Court also rejected the arguments that the Protocol changed the constitutional status of Northern Ireland without a referendum, as required by the Northern Ireland Act 1998 (which implements the Good Friday Agreement), and that the UK Government did not have the power to change Stormont's cross community voting rules in relation to the protocol. These arguments were rejected on the basis that (i) the Northern Ireland Act only concerns the constitutional status of Northern Ireland insofar as it has the right to remain part of the UK or become part of a united Ireland (para. 84), and (ii) the UK Government was empowered by Parliament to lawfully amend the voting rules (para. 109).

With the UK Supreme Court’s ruling on the matter, the supremacy of the Protocol is no longer in question, and the provisions of the Acts of Union which conflict with it are suspended. However, although the legal points might be settled, the political turbulence of the Protocol will likely continue unless and until the EU and the UK come to an arrangement that will be palatable to the Unionists in Northern Ireland which have uniformly rejected the Protocol. As Jim Allister of the TUV, who was one of the main proponents in challenging the Protocol, stated in response to the Supreme Court ruling, "[t]he fact the Supreme Court is satisfied it was lawfully made does not in the least affect its political unacceptability, nor its dire constitutional consequences.”

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