Preliminary analysis of Supreme Court judgment in Allister et al challenge to the Protocol
The Northern Ireland department of the Centre for the Union has published a preliminary briefing paper in relation to this morning’s Supreme Court judgment in Allister et al  UKSC 5.
A more detailed paper from the Centre for the Union will follow in the coming days.
The Supreme Court has held that the Acts of Union 1800, the fundamental constitutional underpinning of the United Kingdom, has been subjugated and suspended by the NI Protocol, which has complete supremacy in domestic law via the conduit of pipe of section 7A of the European Union (Withdrawal) Act 2018.
This exposes the significant constitutional damage inflicted by the Protocol, which whilst it may have been ‘legal’ in an expansive view of Parliamentary sovereignty, that is an entirely different question as to whether it was truly constitutional, or moral. The Supreme Court dealt only with the legality of the alteration of the constitutional change, rather than its constitutional propriety or merits.
It is an interesting point that if Parliament can ‘lawfully’- in exercise of Parliamentary sovereignty- subjugate Article VI of the Acts of Union, then could Parliament - for example- abolish Article III of the Acts of Union, and thus itself?
If the answer is no because Article III (which creates Parliament) is a constitutional fundamental, then upon what basis has Article VI been afforded a lesser status?
It is of note that the Prime Minister at the time of the Withdrawal Act, Boris Johnson, told Parliament that they had not interfered with the Acts of Union. The Supreme Court disagrees: whether knowingly or otherwise, the Government in agreeing the treaty and Parliament in enacting it, did undermine the fundamental constitutional basis of the United Kingdom of Great Britain and Northern Ireland, by virtue of the subjugation of the Acts of Union.
The Supreme Court has been clear that the Acts of Union remains on the statute books, but in regards Northern Ireland the fundamental rights enshrined therein (specifically Article VI) do not apply for so long as the Protocol persists. It is difficult to envisage a more fundamental constitutional change.
In addition, it was held that section 1 (1) of the NI Act 1998 (the principle of consent) is purely territorial and does not act as a safeguard against any constitutional change other than the final surrender of sovereignty over Northern Ireland. Put simply, you can change everything but the last thing in relation to Northern Ireland’s place in the Union, the last thing being merely the final formal handover of sovereignty.
This has fundamental and far-reaching consequences for power sharing in Northern Ireland. Those within unionism who supported the 1998 Agreement did so on the basis of arguing the Agreement enshrined the principle of consent, which would guard against any diminution of Northern Ireland’s place in the Union. The Supreme Court has confirmed that the principle of consent is no such safeguard. It is trite to point out that if law-making and judicial powers can be handed to the EU in relation to NI without unionism being able to rely upon the principle of consent as a safeguard, then so too could such powers be handed to Dublin.
That is an untenable position, and given the core foundation upon which pro Agreement unionism rested has been exposed as constitutional quicksand, it is difficult to envisage any intellectually credible argument upon which pro Agreement unionism can now be based.
In a further exposure of how the Protocol has dismantled the supposedly ‘sacred’ fundamental principles of power-sharing, cross-community consent for ‘key decisions’ to be voted on by the Assembly (Strand One (5) (d) of the Belfast Agreement given effect via section 42 of the NI Act 1998) was disapplied by the Protocol.
The court has held that this express disapplication was not even necessary, because the Protocol - via section 7A of the Withdrawal Act- had already had the effect of disapplying this supposedly fundamental pillar of power-sharing in order to ensure unionism could not rely upon it in opposition to the Protocol which subjugates Northern Ireland’s place in the Union.
This, alongside the exposure of the principle of consent as being largely worthless, raises fundamental and far-reaching consequences about whether there is any basis upon which unionism could ever again operate power sharing within the framework of such a corrosive and fundamentally imbalanced Agreement.