Brexit: nothing settled

01/07/2021

Leaping out from the high court decision in Belfast yesterday, where the legality of the NI protocol had been challenged, was the phrase "implied repeal". This term has great resonance in the annals of Eurosceptic lore, as it was raised during the Thoburn v Sunderland City Council case back in February 2002.

The basic argument put by Thoburn's lawyers was that an existing statue could not be changed by a following law except deliberately, by what was known as "express repeal". In other words, if parliament intended to repeal a law, it had to specify that law by name. It could not be taken that, by virtue of inconsistencies in the laws, that repeal of the preceding law could be implied.

While the case, in the end, did not hang on this principle, Justice Laws – who heard the case – decided to outline the constitutional framework of what became known as the doctrine of implied repeal.

In so doing, he effectively invented a hierarchy of Acts of Parliament, setting out two types: "ordinary" and "constitutional" statutes. He then went on to rule that, while "ordinary" statutes could be overridden by implied repeal, "constitutional" statues were to be protected. They could only be repealed by the express intervention of parliament, with enabling legislation providing expressly for this.

Now fast forward to yesterday and we had a case for judicial review made by applicants which included the Democratic Unionist Party. Relying on the Thoburn decision, they argued that the NI Protocol, implemented by the 2018 and 2020 Withdrawal Agreement Acts, in effect breached – and thereby repealed the 1800 Acts of Union, which in itself was a constitutional statute.

Justice Colton, who heard this case, tackled the issue head on, declaring it to be a "fundamental legal principle" was that the most recent legislation should take precedence over earlier laws.

There was he said, no legal precedent whereby the Acts of Union had operated to "nullify a subsequent act of parliament". Then, accepting an argument from the government lawyer, based on a 1967 House of Lords ruling, on a case which he accepted was "not determinative", he decided that there was "clear authority" from the House of Lords of the capacity for a "constitutional statute" to be impliedly repealed.

Concluding on the issue, he declared that: "The more general words of the Act of Union 1800 written 200 plus years ago in an entirely different economic and political era could not override the clear specific will of parliament, as expressed through the Withdrawal Agreement and Protocol, in the context of the modern constitutional arrangements for Northern Ireland", he said.

And, to put the matter firmly to bed, he stated that: "This matter must also be considered in light of the fact that every provision and clause of the Withdrawal Acts, the Protocol and associated documents were fully considered by Parliament". He went on:

Parliament did so in the context of the three previous rejections of the Withdrawal Agreement which had a different arrangement for Northern Ireland. The views supported by the applicants in this case that the Protocol was contrary to the constitutional arrangements for Northern Ireland were known to the legislature. The Acts were passed by a legislature which was fully sighted of the terms and consequences of the Withdrawal Act. The Acts have been approved and implemented pursuant to the express will of Parliament and any tension with Article VI of the Act of Union should be resolved in favour of the Agreement Acts of 2018 and 2020.

One may be forgiven a somewhat raucous laugh at Colton's contention, given the circumstances in which Johnson's "oven-ready" deal was considered by the ne'er-do-wells in the Commons. To suggest that that Acts were "fully considered by parliament" is stretching credulity well beyond breaking point.

But, tucked away in all that is the use of the phrase "express will" of parliament, supporting Colton's contention that parliament that the Withdrawal Acts should take precedence over the Acts of Union. There, it seems to me that Colton is indulging in a sly piece of legerdemain. Although he accepts (implicitly) that the Acts of Union were not expressly repealed, he argues that it was the "express will" of parliament that they should be repealed – but without expressly declaring that.

In a broader debate where the term "cakeism" has been bandied about, a shorthand for the political desire to have one's cake and eat it, it seems to me that is exhibiting a classic example of the same tendency.

The effect of what he is saying is that, although parliament did not expressly repeal the Acts of Union, it was it "express will" that they should be repealed, which means that, the block on "implied repeal" doesn't apply. The inventive judge has therefore created his own corner of the law. He is making out that. although the repeal was implied, it was "expressly implied".

It seems to me that taking a legal case against the government is rather like betting on cards in a casino. It doesn't matter how good you are, in the end, the house always wins. Here, with the cards on the table, the house decides that the applicants must be denied their case.

Yet, for all that – if one is allowed to mix metaphors – the cat is well and truly out of the bag. Although Colton has legitimised the government's effective repeal of the Acts of Union, to do so he has had to concede that that Article VI of the Acts have indeed been implicitly repealed.

This Article puts the subjects of Great Britain and Ireland "on the same footing in respect of trade and navigation", as well as "saying that, in all treaties with foreign powers "the subjects of Ireland shall have the same privileges as British subjects".

On 18 June, at PMQs, the DUP's Sir Jeffrey Donaldson asked Johnson to confirm that the Withdrawal Acts had not resulted in an implied repeal of Article VI, also asking whether the prime minister would commit fully to "restoring Northern Ireland's place with the UK's internal market".

Johnson replied: "Yes, of course Mr Speaker I can give assurances on both those counts," invoking a response from Unionist politicians that "It could not be clearer; the prime minister is repudiating any idea that Art VI of the Acts of Union is impliedly repealed by the Withdrawal Act and protocol".

Thus. the judgement is music to the ears of the Unionists, to whom the Acts of Union have the status of the Holy Writ (when it suits them). This, therefore, will not be the end of the matter. Jim Allister, leader of the Traditional Unionist Voice party (TUV) – a breakaway faction from the DUP and a co-applicant in the case - has already confirmed the refusal to allow a judicial review will be appealed.

As a result, it is anticipated that this will only the first round in what could be a long-running battle going all the way to the Supreme Court. But regardless of the eventual outcome, the Unionists now have the material they need to make further political capital out of Johnson's "oven ready" deal, catching him out in yet another lie.

With this case cooking, it is perhaps fortunate, therefore, that the EU has agreed temporarily to accept a delay in the full implementation of the Protocol, suspending the ban on chilled meat preparations and thereby putting the "sausage wars" on hold.

The Commission says it has put forward a "balanced package" of measures to address some of the most pressing issues related to the implementation of the Protocol, "changing its own rules" in the process.

Vice-President Maroš Šefcovic, in emollient mode, tells us that the Commission has "spared no effort" in trying to mitigate some of the challenges that have arisen in the implementation of the Protocol.

But, he says, the concessions are a "temporary solution", subject to strict conditions. As regards the relaxation of the meat ban, products have to stay under the control of the Northern Ireland "competent authorities" when they are "channelled" into Northern Ireland.

They have to have to be accompanied by official health certificates issued by the UK competent authorities, and can only be sold to end consumers in supermarkets located in Northern Ireland. Furthermore, they must be packed and labelled accordingly.

Slipped in is also a note that the EU "underlines the importance of ensuring that Border Control Posts in Northern Ireland have the necessary infrastructure and resources to be able to perform all the controls required by the EU's Official Controls Regulation".

This is something the UK government has been long-fingering, through Stormont having delayed the expenditure required to get these posts up and running. Once completed (if ever), they will be tangible symbols of the permanent effect of the Protocol, representing a commitment to ongoing border checks between Great Britain and Northern Ireland.

A Unionist appeal would add another dimension to this, while the lacklustre Frost still seems uncertain as to where he wants to go. The events of today, therefore, have settled nothing. A rather stinky can has simply been kicked down the road.

Also published on Turbulent Times.