OPINION: There is a fatal flaw at the heart of Justice Colton’s Protocol judgment

At the heart of the judgment in the challenge against the Northern Ireland Protocol lies a fundamental weakness. The Court has sought to side-step the unlawful use of the prerogative, but given its findings on the other grounds of challenge, this position is unsustainable. 

OPINION: There is a fatal flaw at the heart of Justice Colton’s Protocol judgment

By Jamie Bryson

It is an unlawful use of the prerogative power to deploy it in a manner which is contrary to primary legislation. That is an elementary proposition, re-stated at paragraph 55 of Miller (1). It is beyond dispute.

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Colton J found that the Act of Union conflicted with the Protocol. Therefore, by the Court’s own reasoning, the Protocol (as originally made within the treaty) conflicted with primary legislation (Article 6 of the Act of Union). That is also beyond dispute.

Taking these two truisms together the position is therefore that the making of the treaty exceeded the lawful limits of the prerogative power. There can be no other conclusion.

There can only thereafter be three outcomes: (1) the use of the prerogative is non-justiciable; (2) Parliament has absolved the Executive of its exceeding the limit of the prerogative power or (3) Parliament has not granted such absolution and therefore the illegality remains to be remedied.

Colton J sought to straddle both (1) and (2). In a bizarre tour-de-force of saying a lot whilst saying little, Mr Justice Colton embarked on some speculative excursion into Article 46 of the Vienna Convention, which appeared to be little more than a judicial daydream that did not flow within the judgment into any rational thought process. Later in the judgment a one sentence remark referred to the Court’s conclusion as to the reviewability (justiciability) of the prerogative. One will look in vain if trying to find this ‘conclusion’ or any proper legal basis for it within the judgment.

This confusion then appeared again in relation to the seemingly unwritten suggestion that Parliament must have absolved the Executive of their exceeding the prerogative power. The judgment does not of course say this, but it is the only possible implication. A little like the mythical ‘spirit’ of the Belfast Agreement, one has to conjure it up and interpret it.

But whatever about the clunky and seemingly irrational thought process which flowed into the written judgment, it does not confront the seminal issue of the original unlawful use of the prerogative.

So let us return to our initial truisms. The prerogative cannot lawfully be used in a manner which conflicts constraints imposed by primary legislation. The use of the prerogative, in making the treaty, conflicted the Act of Union; this was accepted by Colton J. Therefore, it is beyond dispute that the Executive exceeded the power of the prerogative.

Is this justiciable? Yes. If the prerogative power could be used in a manner in which it had no limit, then it would be incompatible with the constitutional principle of Parliamentary sovereignty. As seen by Miller (2), the Courts can review the use of the prerogative on grounds of illegality, which plainly applies when the Executive exceeds its permissible use by making a treaty which (in part) conflicts with constraints in primary legislation.

So whatever about how Colton J concluded, or, as I suggest, didn’t actually in any coherent way conclude, that the use of the prerogative power was non-justiciable, such a finding is intellectually and legally incompatible with his finding that the Protocol conflicts the Act of Union.

If we then turn to the second point Colton J straddles, namely some implied suggestion (which seems to be implicit within his findings on s7A of the 2018 Act trumping the Act of Union) that Parliament somehow absolved the Executive of its illegality.

Could Parliament absolve the Executive of the unlawful use of the prerogative by expressly saying they endorse it? In my view yes; but only by clear and express words. Not by implication.

What has happened in this judgment is that Colton J has welded together the conflict in domestic law between two constitutional statutes, with the entirely distinct ground of challenge around the original unlawful use of the prerogative power.  He has purported, it seems, to deal with the latter by leaving the answer implied within the former.

In finding that Parliament had the sufficient intent to impliedly repeal the Act of Union, it seems to me that Colton J transports into this that Parliament must also in doing so have granted the required absolution for the unlawful use of the prerogative.

It is crucial that those two propositions are understood as distinct issues; the import of Colton J’s finding is not merely that one constitutional statute impliedly repeals another constitutional statute, but moreover that this must therefore impliedly cure the illegality in the making of the treaty. In short, Colton J has not only read in Parliamentary intent in implied repeal, but layered implied intent in relation to absolving the original treaty-making illegality on top of it.

There is no basis for this finding, and no clear and express Parliamentary intent to cure the original unlawful act in making a treaty beyond the scope of prerogative powers. Parliament must be presumed to be acting within the principle of legality; it appears an incredible proposition that Parliament- by mere implication– could be taken to have remedied an unlawful exercise of the prerogative.

This is the gaping hole at the heart of Colton J’s judgment. He is hoisted with his own petard; once he found that the Act of Union conflicted by the Protocol, then it becomes necessary to confront the reality that this finding by default therefore means that the making of the treaty was beyond the lawful limits of the prerogative power. This can not be brushed aside in the manner the Court has sought to do so.

To use an analogy; if someone uses a sledgehammer to unlawfully break into a shop by a side door, then wanders around the shop, picks up some chocolate and pays for it at the till, does the shopkeeper by implication absolve the individual of criminal damage and breaking an entering because he accepted payment for the chocolate? The latter act in purchasing the chocolate is lawful, but this does not cure or absolve the individual of the original illegality.

The Court of Appeal and Supreme Court will have to confront this issue, and it seems difficult to envisage that they would take anything other than a markedly different course than that adopted by Mr Justice Colton.

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