These linked appeals challenged the arrangements made for Northern Ireland under the UK–EU Withdrawal Agreement. The appellants argued that the Northern Ireland Protocol conflicted with the Acts of Union, altered Northern Ireland’s constitutional status without consent, and unlawfully permitted certain Assembly votes by simple majority. The Court considered the statutory scheme in force at the time of the challenges.
James Allister and other applicants brought one challenge and Clifford Peeples brought the other. They sought judicial review of decisions and legislation giving effect to the Protocol. The Supreme Court considered three questions on which permission to appeal had been granted.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Equal footing in trade and the making of the treaty
Article VI of each of the Acts of Union 1800 has two parts. The trade limb says that subjects of Great Britain and Ireland are to be on the same footing as to encouragements and bounties and, more generally, trade and navigation. The treaty limb says that, in treaties with a foreign power, subjects of Ireland are to have the same privileges and be on the same footing as subjects of Great Britain.
The appellants argued that the different trading arrangements for goods moving between Great Britain and Northern Ireland were inconsistent with article VI’s promise of equal footing. The Court could decide the appeal without finally determining the geographical reach of “Ireland” or exactly which trade advantages the article protected.
The Court held that section 7A of the European Union (Withdrawal) Act 2018, inserted by the European Union (Withdrawal Agreement) Act 2020, resolved the conflict. Section 7A requires obligations and restrictions arising under the Withdrawal Agreement to be recognised and enforced in domestic law. It then says that every enactment, whenever passed, is to be read and has effect subject to that requirement. The Acts of Union are enactments, so article VI is modified to the extent, and for the period, that the Protocol applies. That is not a repeal: article VI remains in force. Nor is the change total or permanent. The Protocol does not cover every aspect of trade, and articles 5 to 10 can cease to apply if they do not obtain democratic consent.
The appellants argued that the Acts of Union are constitutional statutes, so these rights could not be overridden without express words. Lord Stephens said that debate was academic. Even if a presumption against violating fundamental rights applied, it could not defeat Parliament’s clearly expressed will. The Crown in Parliament is sovereign, Parliament cannot bind its successors, and a later Act may modify rights in an earlier one by express words. Section 7A does that.
The appellants also argued that article VI constrained the prerogative power to conclude treaties. The Court assumed that such a constraint existed and that the Protocol conflicted with it. Parliament had nevertheless expressly authorised ratification of the particular Withdrawal Agreement, including the Protocol. On those assumptions the treaty challenge still failed.
The status of Northern Ireland
Section 1(1) of the Northern Ireland Act 1998 declares that Northern Ireland remains part of the United Kingdom and shall not cease to be so without the consent of a majority voting in a poll under Schedule 1. The appellants said this protects Northern Ireland’s status more widely. They argued that a customs border between Great Britain and Northern Ireland was a substantial diminution of that status and was unlawful because no such poll had approved it.
In R (Miller and another) v Secretary of State for Exiting the European Union, all eleven justices held that section 1 gives the people of Northern Ireland the right to decide whether to remain in the United Kingdom or become part of a united Ireland. It does not regulate any other change in constitutional status. The Supreme Court saw no reason to depart from that decision, which disposed of this ground. The modification of article VI did not conflict with section 1(1).
Simple-majority consent in the Assembly
Articles 5 to 10 of the Protocol continue only with democratic consent in Northern Ireland. Article 18, read with a unilateral declaration by the United Kingdom, obliges the United Kingdom to legislate for that process strictly in accordance with the declaration. The arrangements include a decision by a majority of Assembly members present and voting. Cross-community support leads to a longer later period, but a simple majority is a permitted basis for consent.
The 2020 Regulations provided for the Assembly to vote on continued application of specified provisions of the Protocol and disapplied the petition-of-concern procedure in section 42 of the Northern Ireland Act 1998. Such a petition would otherwise require cross-community support rather than a simple majority.
The lower courts had treated the vote as outside the Assembly’s devolved competence. Lord Stephens did not find it necessary to decide whether section 42 could apply to a vote outside that competence. Section 7A had already modified the existing law to accommodate the procedure required by the Protocol. Section 8C also gave the minister power to make the necessary provisions, including by modifying primary legislation.
The narrow-construction argument also failed. A ministerial power to modify primary legislation is exceptional and is read restrictively only if its scope is genuinely doubtful. Section 8C(2) states that regulations may make any provision that could be made by an Act of Parliament. There was no genuine doubt that Parliament had conferred power to amend primary legislation.
Verdict: The Supreme Court unanimously dismissed both appeals and answered all three questions against the appellants. Its ruling on article VI concerned the suspension of inconsistent requirements so far as necessary to give effect to the Protocol. It did not hold that the Acts of Union had been repealed.
