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  4. Northern Ireland Protocol lawful, Supreme Court rules

Northern Ireland Protocol lawful, Supreme Court rules

8th February 2023 | government-administration , europe | EU / international

Unionist politicians opposed to the Northern Ireland Protocol have lost an appeal to the UK Supreme Court in their judicial review proceedings challenging the lawfulness of the Protocol, which formed part of the Withdrawal Agreement between the United Kingdom and the European Union regarding the UK’s exit from the EU.

Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Stephens unanimously ruled that the legal provisions challenged by the appellants were lawfully made. 

First, the appellants argued that the Protocol was incompatible with article 6 of the Acts of Union 1800, the Acts which provided for the Union of Great Britain and Ireland, because the people of Northern Ireland were no longer “on the same footing… in respect of trade” as people in Great Britain. For example, the Protocol required payment of a charge on goods which might be moved into the EU. The Crown did not have the power to make treaties that did not comply with article 6.

Lord Stephens, with whom the other Justices agreed, said the court proceeded on the basis the Protocol did conflict with article 6, following the findings of the lower courts. However, the Protocol had been incorporated into UK law by s 7A of the European Union (Withdrawal) Act 2018, which stipulated that all enactments were to have effect subject to s 7A. Consequently, article 6 was modified to the extent it conflicted with the Protocol.

He added that the debate about whether the Acts of Union and/or the Acts enabling the UK’s withdrawal from the EU were statutes of a constitutional character, was “academic”. Rights contained in an earlier statute might be altered by express words in a later statute, and this had been clearly done. The Acts of Union and article 6 remained in place but were modified to the extent and for the period during which the Protocol applied.

The clear intention of Parliament in enacting the 2018 Act and the European Union (Withdrawal Agreement) Act 2020 was to permit the Crown to make the Protocol.

The appellants’ second argument was based on s 1(1) of the Northern Ireland Act 1998, which says that Northern Ireland remains part of the UK unless the majority of the people of Northern Ireland consent via a poll. It was argued that there could be no substantial change to the status of Northern Ireland without a poll, but the Protocol changed the status of Northern Ireland.

Lord Stephens said the court had previously held that s 1(1) did not regulate any change in the constitutional status of Northern Ireland other than the right to determine whether to remain part of the UK or become part of a united Ireland. There was no reason to depart from this finding. 

Thirdly, the appellants challenged the lawfulness of the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020, made under s 8C of the 2018 Act. These permitted the Northern Ireland Assembly to vote on the continued application of articles 5 to 10 of the Protocol without the need for cross-community support as required by s 42 of the 1998 Act. The appellants argued that s 8C did not enable the making of regulations which were incompatible with the 1998 Act.

Here the court acknowledged the potential force in the argument that cross-community support was still required for matters outside the Assembly’s legislative competence. However, all enactments were to be read subject to s 7A. This had already modified s 42 of the 1998 Act, and the 2020 Regulations were compatible with s 42 as modified. It was clear from the wording of s 8C that Parliament intended to confer the power to make regulations which amended primary legislation.

The Court unanimously dismissed the appeals on all three grounds.

Access the judgment here.

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