Anurag Deb, PhD student, Queen’s University Belfast School of Law

Photo credit: Dom0803, via Wikicommons

Introduction

It’s a common observation in UK constitutional law that complex issues rarely have simple solutions. Instead, they often result in multiple, overlapping interpretations. This is certainly the case with the recent Allister and others v Prime Minister and others [2022] NICA 15 ruling from the Northern Ireland Court of Appeal (NICA). It’s worth noting that this case is headed to the UK Supreme Court on appeal, ensuring further analysis and discussion.

Facts

The Allister case challenges the legality of the Protocol on Ireland/Northern Ireland, which is part of the UK-EU Withdrawal Agreement. The claimants argue that the Protocol violates several legal instruments, including the Acts of Union 1800, the Northern Ireland Act 1998, the European Convention on Human Rights, and EU law itself.

Several detailed analyses of this case, including its background and implications, are available. In essence, the claimants argue that the Protocol unfairly differentiates between Northern Ireland and Great Britain, undermines the consent mechanisms within the Northern Ireland Act, creates a democratic deficit for Northern Ireland residents, and exceeds the EU’s legal authority. Both the High Court and the NICA dismissed all five grounds of the challenge. However, the courts differed in their interpretation of Article VI of the Acts of Union, which addresses the “same footing” principle between Great Britain and Northern Ireland. This is where the legal waters become particularly murky.

What happened to Article VI?

In the High Court, the judge sidestepped the question of whether Article VI was repealed, obsolete, or superseded. He focused instead on the fact that the UK Parliament had enacted the European Union (Withdrawal Agreement) Act 2020, thereby making the Protocol part of domestic law. This Act, he argued, took precedence over Article VI due to the principle of parliamentary sovereignty, which holds that a more recent act of Parliament overrides earlier legislation.

The NICA, however, offered two different perspectives. The majority view, expressed by the Lady Chief Justice, was that the 2020 Act had “subjugated” Article VI. Lord Justice McCloskey, in his concurrent judgment, argued that Article VI had been “modified” in its effect. Both were clear that Article VI had not been repealed – either explicitly or implicitly.

This is where the interpretations become particularly complex. Both the Act of Union and the 2020 Act are considered “constitutional” statutes, which hold a special status. A prevailing theory suggests that in a conflict between two constitutional statutes, the more recent one can implicitly repeal the older one. This appears to be the line of reasoning followed by the High Court.

The NICA, however, rejected any notion of repeal regarding Article VI, opting instead for the “subjugation/modification” paradigm. This approach, however, raises further questions. The UK Supreme Court, in a previous case, defined “modification” in a way that suggests implied repeal is possible even when a statute remains in force. This raises questions about the NICA’s interpretation and how it aligns with the Supreme Court’s understanding.

History and logic

The Acts of Union are the foundational statutes that led to the creation of the modern UK Parliament. This raises a fundamental question: can the current UK Parliament undo or override the very laws that brought it into being? A previous legal case in Scotland expressed doubt about the absolute sovereignty of the UK Parliament in this context, highlighting the potential for legal contradictions.

The central issue in the Allister case lies in reconciling legal arguments with political realities. This is especially challenging with constitutional law, where clarity, consistency, and coherence are essential for a functioning state.

Implications

The Protocol is not merely an academic debate; it has ignited social and political tensions in Northern Ireland. The Allister case unfolds against a backdrop of political instability and public fatigue. While courts cannot resolve political issues, the upcoming Supreme Court decision is highly anticipated. It promises to further illuminate complex issues of constitutional law while navigating the choppy waters of Brexit’s legacy.