By Jamie Bryson
In a remarkable volte face before the Court of Appeal, the Government contrived a brand new argument in regards to the conflict between the Protocol and the Acts of Union. They have now abandoned the assertion that the Acts of Union is subject to implied repeal, but instead suggest that section 7A (3) merely ‘suspends’ the Acts of Union for so long as the Protocol exists.
It is an incredible suggestion that the very legal construct which is the Union, namely the Acts of Union, can be ‘suspended’ as a requirement of the Protocol. In short, the irresistible implication is that whilst the Protocol remains- Northern Ireland’s place in the Union is suspended.
This, it is suggested, was Parliament’s intent all along. The most obvious riposte to that is to point out that if this was Parliament’s intent, the Government forgot to tell their senior counsel in the first instance case. A development of such a clever and novel legislative device slipped the mind of the Government, who have now- after extensive litigation in the first case- all of a sudden remembered that in fact they had deployed a cunning device all along.
Notwithstanding the plainly contrived and disingenuous nature of the new defence adopted by the Government, it would be remarkable (if correct). It would place the Withdrawal Act 2020 (‘the 2020 Act’) at the pinnacle of constitutional statutes. It is worth pointing out that would also include putting it above all the devolution statutes, and the Human Rights Act.
That supremacy of the 2020 Act approach would therefore require creating new law in terms of developing a doctrine of there being a hierarchy of constitutional statutes. It is worth noting that Lord Justice McCloskey, earlier in discussion before the Court of Appeal with John Larkin QC representing the appellants, expressly disavowed any notion of there being a hierarchy of constitutional statutes. That position, if retained by Lord Justice McCloskey, would appear to throw up a significant hurdle for the Government.
In order for the Government’s argument to prevail (either on implied repeal or the new suspension doctrine), they would need to establish one of the following three prepositions:
(i) that section 7A (3) of the 2020 Act contained words which amounted to expressly repealing Article VI of the Acts of Union
(ii) that section 7A (3) impliedly repealed Article VI of the Acts of Union
(iii) that section 7A (3) ‘suspends’ Article VI of the Acts of Union for so long as the Protocol persists
If we take each in turn: (i) would require an extremely broad interpretation of ‘express words’, and further would seem wholly inconsistent with reality given Parliament have never- and still do not- claim to have had any intent to repeal the Acts of Union; (ii) two would require making a constitutional statute subject to implied repeal, in defiance in the clear line of authority that constitutional statutes are immune from implied repeal. If there is to be an exception when the conflict is between two constitutional statutes, it is for the Supreme Court to develop it, not the Court of Appeal; (iii) this would require making new law, namely a doctrine of being able to ‘suspend’ constitutional statutes. It should be noted this would mean that the Human Rights Act (the sacred cow of so many campaigners) would now be subservient to the Withdrawal Agreement.
Taking up that final point, many of the Remain campaigners and Protocol cheerleaders are strong supporters of the Human Rights Act, and mistrusting of the Conservative Government. Such persons should realise the implication of the Government’s argument; they could- flowing from the Withdrawal Act or regulations made under auspices of same- suspend or ‘disapply’ the Human Rights Act. Not such an attractive proposition now, is it?
In today’s hearing Lord Justice McCloskey made a number of favorable interventions for the applicants, making clear that the principle of constitutional statutes being immune from implied repeal should be given effect.
John Larkin QC presented a detailed and comprehensive case in defence of the Acts of Union, and further emphasised that section 1 (1) of the Northern Ireland Act 1998 was understood to have protected the substance rather than merely the symbolism of the Union. In a stark example, Mr Larkin pointed out that if law-making powers could be handed to the EU, then why couldn’t such powers equally be handed to Dublin?
A purely symbolic application of the principle of consent fails to appreciate the most obvious of points. The principle of consent is not a device which exists in isolation. It must be a lock on something, and in order for the lock to be practically effective, it must be attached to something to prevent trespass. The ‘something’ is Northern Ireland’s place in the United Kingdom. That requires there to be an applicable objective standard in order to identify what in practice Northern Ireland’s place in the United Kingdom is. The only objective standard is the constitutional legal construct of the Acts of Union.
Therefore, the principle of consent must protect against any alteration of the Acts of Union, otherwise it is simply a lock which performs no practical function which can be measured by any objective standard. The Acts of Union must be taken to underpin the Belfast Agreement and principle of consent, and therefore- remaining with the lock analogy- if section 1 (1) is the lock, the Acts of Union is the door it guards against trespass.
The Protocol blows the door of the hinges, thus bypassing the apparent protections against trespass. And therein lies the core problem which simply can not be reconciled by the Government and proponents of the Protocol.
Tomorrow morning at 10:30am the case resumes with Dr McGleenan QC on behalf of the Government continuing his submissions, which will be followed by rebuttal by John Larkin QC and then Ronan Lavery QC for the respective applicants.