Has the Northern Ireland Protocol undermined the United Kingdom?
In a case at the High Court in Belfast, the Government has claimed that it changed parts of the Act of Union that gave people in Northern Ireland “the same privileges” and placed them “on the same footing” as their compatriots in Great Britain. Its lawyers say that Article 6 of the statute is incompatible with new laws that created an Irish Sea border and, by implication, that Article has been repealed.
This argument came to light thanks to a judicial review that challenges the UK Government’s right to enact the Northern Ireland Protocol. Boris Johnson’s Brexit deal with Brussels kept the province effectively within the EU’s single market for goods and subject to its customs rules, so that disruptive checks and paperwork are needed for trade between Great Britain and Northern Ireland.
A number of unionist litigants — including Lord Trimble, Baroness (Kate) Hoey, the former DUP leader Arlene Foster, TUV leader Jim Allister, the former UUP leader Steve Aiken and former Brexit Party MEP Ben Habib — claim that the Protocol breaches fundamental aspects of constitutional law and upends Northern Ireland’s peace settlement. Their lawyers point to its incompatibility with sections of the Act of Union 1801 (which created the United Kingdom of Great Britain and Ireland), the Good Friday or Belfast Agreement and the Northern Ireland Act 1998, which enshrined that agreement in law.
When a newer Act of Parliament is incompatible with earlier law, it usually takes precedence, under the doctrine of “implied repeal”. In previous cases, though, judges have found that “constitutional statutes” of the kind that underpin our system of government must be repealed “expressly”, not implicitly. In other words, a new Act must use specific wording so that Parliament’s intention to change the original statute is clear.
The Human Rights Act and the Scotland Act are among the pieces of legislation deemed to be “constitutional statutes”, so the Act of Union’s constitutional status would seem to be beyond dispute. It is, after all, the law that brought the United Kingdom into existence. Nonetheless, the Government claims that “implied repeal” rather than “express repeal” is the doctrine that applies to this mainstay of our nation state.
The Government lawyers’ case contradicts Boris Johnson’s repeated claims that he protected Northern Ireland’s place in the UK internal market when he negotiated his Brexit deal. Specifically, he insisted that he had avoided compromising the constitutional status of the province. If it is successful, the Government’s legal argument sets a disturbing precedent that could be used to undermine other building blocks of the Union.
Similarly, both the Government and the EU argued at the time the deal was agreed that they were upholding the Good Friday Agreement by implementing the Protocol. The agreement’s central tenet is the “principle of consent”, which determines that Northern Ireland will be an integral part of the UK unless and until a majority of its people decide otherwise in a “border poll”. Section 1 of the Northern Ireland Act 1998 enshrines this principle in UK law.
The unionists’ lawyers argue that the Protocol transfers important legislative powers over the province from Westminster to the EU and constitutes a change of legal status. John Larkin QC said, “If the power to make law for Northern Ireland can be given to Brussels, it can just as easily be given to the Irish parliament.” The Government’s interpretation of the principle of consent, then, is that it covers only the “…final removal of the last vestige of (UK) sovereignty” from Northern Ireland.
This case reveals how seriously the Government’s deal with the EU over the Protocol has damaged the Union, if it is not deemed illegal by the court. If Northern Ireland can be separated from the rest of the UK economically, and substantive aspects of policy-making handed over to Brussels without any pretence of accountability, then its place in the Union can be diluted with impunity and the “principle of consent” is practically worthless.
If the Protocol is allowed to stand, the Belfast Agreement and all the other safeguards that ensure that Northern Ireland must remain British until a majority wants a change in its status will effectively mean nothing. Its place in the UK will consist only of a certain amount of symbolism and a cash transfer from Westminster. And its people will hold a second-class form of British citizenship that does not entitle them to participate in national life on the same basis as those in Great Britain.
At the same time, the Government will have established the legal precedent that critical elements of the constitution can be changed by implication or by accident. This is an outcome enabled by a Prime Minister who seems repeatedly to fail to think through the possible consequences of his actions.
A Message from TheArticle
We are the only publication that’s committed to covering every angle. We have an important contribution to make, one that’s needed now more than ever, and we need your help to continue publishing throughout the pandemic. So please, make a donation.
