Anurag Deb

Anyone who is from Ireland, or who has witnessed a real (as opposed to an idiomatic) Irish goodbye, will know that it typically takes around 20-30 minutes from announcing one’s intention to leave, to the act of leaving, with much earnest conversation in between. It may be jarring to those unaccustomed to its endearing eccentricities. So it is the case with Allister and Peeples’ applications for judicial review, a judgment handed down on 8 February 2023, which serves as a potent reminder that the UK has yet to fully say goodbye to Brexit.

In this judgment, the matter being scrutinised was the Northern Ireland Protocol and questions surrounding its constitutionality within the famously uncodified UK constitution. Critically, the UK Supreme Court appears to have poured cold water on the idea that certain Acts of the UK Parliament have a constitutional character (the constitutional statutes doctrine). It is my suggestion, however, that the doctrine has not entirely been consigned to history. In what follows, I explore the doctrine, the Supreme Court judgment and the implications of this judgment on the future of the doctrine.

Constitutional statutes

Allister and Peeples was a controversial case. At its heart was a frontal attack on the Northern Ireland Protocol, the part of the UK-EU Withdrawal Agreement which mandated the continued application of EU law on goods and customs arrangements to Northern Ireland. This was ostensibly done to protect the Good Friday Agreement — which ended a little over three decades of sectarian violence and bloodshed and ushered in a new (and fraught) era of peace.

Opponents of the Protocol, however, point to its most important consequence: the creation of a customs and regulatory border between Northern Ireland and Great Britain, as antithetical to the idea of the United Kingdom of Great Britain and Northern Ireland. Specifically, opponents say that the Protocol violates the Acts of Union 1800, which were separate statutes enacted by the (then) Parliaments of Ireland and Great Britain, uniting these islands into one political entity. Of course, a large part of this entity attained independence in the first half of the 20th century — Ireland, born the Irish Free State in 1922, changed to a republic in 1948. But Northern Ireland has remained fully a part of the UK — that is, according to some, until the advent of the Protocol.

The Acts of Union declare that subjects of both Ireland and Great Britain shall be ‘on the same footing’ as respects economic opportunities, which conflict with the divergent customs and regulatory regimes on either side of the Irish Sea following the entry into force of the Protocol. The applicants in Allister and Peeples argued that this conflict had to be resolved in favour of the Acts of Union, as these were constitutional statutes. Of course, the UK Parliament does not explicitly label any of its statutes ‘constitutional’ — Parliament’s constitutive and ordinary legislative capacities overlap exactly, so that there is no statute subject to manner-and-form amendment conditions unlike, for example, the Knesset and some of the Basic Laws of Israel.

However, in the Thoburn case, the England and Wales High Court developed the idea that certain statutes (for example the now-repealed European Communities Act 1972 or the Human Rights Act 1998) had a ‘constitutional’ character, so that they could not be repealed except either through express repealing words or by words so specific as to make repeal ‘irresistible’ (Thoburn, [63]).

The Supreme Court judgment

The Allister and Peeples applicants said that the Acts of Union were constitutional in character, and so the EU Withdrawal Agreement Act 2020, which incorporated the Protocol into domestic law, could not repeal the ‘same footing’ requirement impliedly. Instead, the Protocol had to be given effect subject to this ‘same footing’ requirement in the Acts of Union, since there was nothing in the 2020 Act which expressly or specifically repealed this requirement (Allister, [58]).

The Supreme Court pointed to section 5 of the 2020 Act, which inserted a new section 7A into the EU Withdrawal Act 2018. This new section did three important things. First, it directly incorporated the entire UK-EU Withdrawal Agreement, including the Protocol, into UK law. Second, it allows any rights, powers, liabilities, obligations and restrictions which may progressively arise under the Withdrawal Agreement to be directly available in UK law. Third, and perhaps most crucially, it subjects every enactment to these rights, powers, liabilities, obligations and restrictions. Section 7A thus clearly subjects the Acts of Union to the provisions of the Withdrawal Agreement. In conclusion, the Supreme Court said:

The debate as to whether article VI [the ‘same footing’ requirement] 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 ([66]).

The implications for constitutional statutes

The Supreme Court’s language has been interpreted by some commentators to mean that the constitutional statutes doctrine has effectively been consigned to history. Colin Murray considers this a roll-back from Thoburn. David Allen Green goes further and suggests that the doctrine ‘seems to have been put back in its judicial box’.

I suggest that the doctrine is still as healthy as it had been in Thoburn for essentially three reasons. First, Allister and Peeples is arguably consistent with Thoburn. Section 7A expressly subjects the Acts of Union to the Withdrawal Agreement — words which may lead to the irresistible conclusion that the ‘same footing’ requirement had been repealed (although the Supreme Court held that no repeal had occurred, see [67]).

Second, the doctrine as set out in Thoburn has already been endorsed in a number of Supreme Court judgments — including HS2 and Miller 1, the latter relied upon by the Supreme Court in Allister and Peeples. It is important to remember that Allister and Peeples was handed down by a panel of five Justices, whereas the endorsement of Thoburn in HS2 had the support of seven Justices and in Miller 1, eight Justices. The Allister and Peeples panel could not by itself categorically reject the doctrine even if it had wanted to.

Third, and perhaps most importantly, Thoburn may have marked the birth of the doctrine but it drew on a much older and much deeper tradition. In Thoburn, Lord Justice Laws grounded his idea of constitutional statutes on the recognition, at common law, of certain rights deemed constitutional or fundamental, and the need to protect statutes which embody these rights (Thoburn, [62]). This has parallels with the principle of legality, in cases such as ex parte Pierson and ex parte Simms, which states that Parliament must squarely (and politically) confront the consequences for legislating in breach of fundamental rights, by enacting express words which breach such rights. These points fall within conceptions of the rule of law. According to A V Dicey, who wrote the most famous account of the UK constitution, the rule of law and the sovereignty of the Crown in Parliament are the twin pillars of this constitution.

What next?

The Supreme Court’s judgment was never going to have an impact on the ongoing political impasse and non-existent government in Northern Ireland — as candidly acknowledged by the Democratic Unionist Party which leads the opposition to the Protocol. The deadline to form a government at Stormont will now be extended to January 2024, even as the UK and the EU are apparently moving forward in their attempts to come to an agreement over the Protocol.

Meanwhile, it is unlikely that Allister and Peeples marks the last gasp for the doctrine of constitutional statutes in a judicial setting. The reasoning of the Court is remarkably short when compared to the voluminous judgments of the High Court and more so the Court of Appeal. This may speak more to the general merit in the appeal rather than specifically the Supreme Court’s attitude to constitutional statutes.

In any event, even though those who signal the end of the doctrine of constitutional statutes do so persuasively, I look forward to many more earnest discussions, both judicial and academic, about the scope and application of the doctrine in the UK constitution. After all, Allister and Peeples originated in Northern Ireland — and we take our time with our goodbyes.

• Anurag Deb is a PhD candidate at Queen’s University Belfast School of Law. This article first appeared in the Verfassungsblog.