Colin Murray, Law Professor, University of Newcastle
Photo credit: ChrisVTG photography, via Wikicommons media
In October 2019, the UK government, led by Boris Johnson, reached a Withdrawal Agreement with the EU. This agreement encompassed a Northern Ireland Protocol iteration based on closely aligned rules governing goods between Northern Ireland and the EU. Notably, no comparable provisions addressed goods regulations for Great Britain. In January 2020, Westminster passed legislation to enact this agreement. At this juncture, with the Trade and Cooperation Agreement still under negotiation, the UK government could have pursued a high-alignment agreement with the EU, especially for plant and animal products governed by extensive Sanitary and Phytosanitary (SPS) regulations. Instead, they opted for an agreement prioritizing the avoidance of tariffs and quotas. This decision, however, created substantial regulatory obstacles for trade in goods, including trade between Great Britain and Northern Ireland, as soon as the Brexit transition/implementation phase ended.
Anticipating this critical juncture, the government negotiated grace periods of several months to allow businesses to adjust to the new regulations. Predictably, this led to significant disruptions with potentially serious consequences for Northern Ireland’s small and vulnerable economy. The UK government had two options: collaborate further with the EU through the Withdrawal Agreement’s technical mechanisms, especially the Specialised Committee on the Protocol, to minimize the Protocol’s impacts, or engage in confrontation and attempt to modify its terms. The subsequent two years witnessed a significant focus on the latter approach with limited engagement in the former. The UK government’s frequently cited justification was their delayed recognition of Unionist opposition to the Protocol’s provisions in Northern Ireland.
Unionist anxieties regarding the Protocol stem from the belief that it differentiates Northern Ireland from Great Britain regarding goods, thereby undermining its position within the United Kingdom. This argument unfolds in several ways: that certain sections of the Act of Union are affected by the Protocol’s implementation, that it lacks cross-community consent, violating the 1998 Belfast/Good Friday Agreement, and that Northern Ireland is subject to EU laws over which it has no influence. These grievances were collectively presented in the Allister litigation. Though dismissed by the High Court and Court of Appeal, the challenge persisted with hopes of a different outcome from the Supreme Court. This has placed the UK government in a contradictory position, wielding Unionist concerns as the foundation for their efforts to renegotiate the Protocol’s implementation while simultaneously opposing them in court.
The legal challenge always carried significant risks. While constitutional worries about the Protocol might resonate with Unionist voters, seeking a court’s final decision on such matters can leave politicians exposed. The UK Supreme Court’s rejection of the Allister challenge carries weight, as it will be invoked whenever Unionists attempt to challenge the Protocol’s consistency with Northern Ireland’s position within the UK.
The Supreme Court responded with a notably passive stance. It refrained from engaging in a comprehensive debate about the UK’s constitutional framework across multiple judgments or convening a special enlarged panel for the hearing, a step that might have been anticipated given the magnitude of the issues. This judgment lacks the weight of cases like Jackson or Miller. Instead, Lord Stephens, the Court’s judge from Northern Ireland, delivered a judgment, simply endorsed by the other four justices, that essentially reaffirmed the Northern Ireland Court of Appeal’s decision. The fact that interpreting statutes with constitutional implications could be reduced to a single statement (at [66]) highlights the fraught nature of discussions surrounding Brexit and Northern Ireland:
“The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.”
This clearly indicates the Court’s deliberate avoidance of such debates in this context. While the lower courts’ judgments provided valuable insights into understanding Northern Ireland’s legal landscape after Brexit, Lord Stephens swiftly addresses the clash between constitutional statutes (also at [66]):
“Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.”
Therefore, as long as the Protocol is in effect, Parliament’s intent is for Article VI of the Act of Union to function differently. This signifies a retreat, even if not explicitly stated, from the potential of the “constitutional statutes” doctrine as outlined in cases like Thoburn. Parliament is not obligated to explicitly acknowledge that new legislation will impact constitutionally significant statutes and can do so in broad terms as long as the effect is clear. Notably, no one, including the appellants, can reasonably argue that the Northern Ireland Protocol’s consequences were unforeseen, particularly since they actively campaigned against it during the 2020 Act’s enactment. The current Supreme Court remains resistant to any legal doctrine perceived as a constraint on Parliament’s will. Dicey, a prominent constitutional theorist, would likely be pleased.
Borrowing the appellants’ terminology, Lord Stephens concludes (at [68]) that “the subjugation of article VI is not complete but rather article VI is modified in part. Furthermore, the subjugation is not for all time as the Protocol is not final or rigid so that those parts which are modified are in effect suspended.” However, it’s crucial to understand that the Court is emphasizing that this outcome was not the result of malicious external influence but rather an agreement willingly reached by the UK government and ratified by Westminster. Parliament’s involvement in this process was paramount in this interpretation.
The Allister litigation was essentially a futile endeavor, as the Supreme Court was unlikely to declare the Act of Union substantively entrenched given the principle of parliamentary sovereignty within the UK Constitution. The Court’s ruling provides it with considerable flexibility considering the Protocol’s precarious position. If the current Parliament chooses to enact the Northern Ireland Protocol Bill and fails to fully uphold the UK’s commitments under the Withdrawal Agreement, the Court suggests it would not intervene. Nonetheless, the judgment acknowledges the possibility of modifying the Protocol’s implementation through ongoing discussions between the UK government and the EU and that such an outcome does not constitute a constitutional crisis.
The judgment’s remaining elements are even more concise. Lord Stephens reiterates paragraph 135 of Miller, emphasizing that the principle of consent under the 1998 Agreement pertains to Northern Ireland’s status within the UK and has no “wider meaning” (at [84]). Regarding the changes to procedures in the Northern Ireland Assembly and the absence of a cross-community consent vote on continuing the Protocol’s trade provisions, the judgment offers no in-depth examination of the limits of cross-community consent under the 1998 Agreement. The Supreme Court considered the power granted by section 5 of the European Union (Withdrawal Agreement) Act 2020 sufficient to implement these arrangements (at [108]).
Despite the considerable attention given to the Allister case, the Northern Ireland High Court’s ruling in Rooney is potentially more significant. In this case, the Court deemed unlawful the attempts by the DUP’s Minister for Agriculture, Edwin Poots, to block the implementation of new checks on goods moving from Great Britain to Northern Ireland, as required by the Official Controls Regulation (incorporated into the Protocol because Northern Ireland became the EU Single Market’s entry point for goods).
The Court found that the Minister and his department within the Northern Ireland Executive were legally obligated under section 7A of the European Union (Withdrawal) Act 2018 to enforce the Protocol’s mandated checks on goods. As Justice Colton succinctly stated (at [179]): “the UK is not to be treated as a unitary state for the purposes of OCR checks coming from GB into NI. This textual analysis is entirely consistent with the purpose, intention and objective of the Protocol itself.” This decision stems from the Allister case, drawing heavily on the reasoning of the Northern Ireland Court of Appeal, which the Supreme Court upheld. It reflects the reality of parliamentary sovereignty as acknowledged in Allister: Parliament’s acceptance of special arrangements for Northern Ireland can supersede the UK’s internal market, a point clearly established in 2020.
Following the Rooney judgment, the UK government introduced regulations authorizing the infrastructure needed to meet the OCR requirements, offering a chance to foster trust during the ongoing Protocol negotiations. A deal seems to be on the horizon for mitigating the Protocol’s provisions. Leaked details suggest a differentiated approach for checking goods destined for Northern Ireland from Great Britain (as opposed to those moving on to Ireland and the broader EU Single Market), allowing modifications to goods regulations in Great Britain without increasing trade barriers across the Irish Sea. It remains debatable whether essentially the same outcome could have been achieved through the Withdrawal Agreement’s Committee procedures. Instead, the tense approach that has defined the entire Brexit process has continued into the dispute over the Protocol’s implementation, severely impacting power-sharing viability in Northern Ireland. One might think there is an appetite for such difficulties. Despite the emphasis on strategic maneuvering, this progress only occurred after the UK fulfilled its data-sharing obligations on goods crossing the Irish Sea, a logical prerequisite for a more risk-based approach to managing the Protocol’s trade aspects. Other courts are left to navigate Northern Ireland’s new arrangements in ways that the Allister ruling only vaguely suggests.
However, this might be where the Allister decision’s true significance lies. After two years of amplifying Unionist concerns about the Protocol’s impact on the 1998 Agreement to strengthen its position against the EU, the UK government can now leverage the conveniently timed judgment to counter any Unionist anxieties regarding the deal. In the coming weeks, we will likely hear declarations that the Protocol is, and always has been, perfectly aligned with the constitutional framework. This will leave the impression that Conservative ministers exploited the Allister litigants for their own gain. Of course, this is unlikely to facilitate the restoration of power-sharing in the near future, a significant casualty of this approach to EU-UK relations. Shortly before the ruling, the Northern Ireland Office discreetly announced that the Secretary of State would not call new Assembly elections and that the existing form of quasi-Direct Rule would continue. Whether or not the people of Northern Ireland desire the unique misery of dysfunctional governance, it appears they are left with it for the foreseeable future.