Earlier this year, the UK Supreme Court gave judgment in the Allister case (In the matter of an application by James Hugh Allister and others for Judicial Review [2023] UKSC 5), in which it was argued, among other things, that the Northern Ireland Protocol (agreed between the UK and the EU as part of the arrangements for the withdrawal of the former from the latter) was incompatible with certain ‘rights of a constitutional character’ contained in Article VI of the Acts of Union 1800. That argument, along with other challenges to the lawfulness of the Protocol, failed. However, since the Protocol is assigned a form of supremacy over domestic law by the European Union (Withdrawal) Act 2018 (as amended), Allister raised a fundamental question about the extent, consistent with constitutional doctrine, to which domestic legislation can accord external legal norms such supremacy over national law.
Given that section 7A of the 2018 Act is strikingly similar to section 2(4) of the European Communities Act 1972, the question that arose in Allister was closely analogous to that which arose — but which was never fully resolved, at least at the level of constitutional theory — about domestic accommodation of the supremacy accorded to EU law (by section 2(4) of the 1972 Act) while the UK was a Member State of the EU. Indeed, the degree of alignment between section 7A of the 2018 Act and section 2(4) of 1972 Act means that, the rhetoric of ‘restoring parliamentary sovereignty’ notwithstanding, relevant parts of the Withdrawal Agreement (including the Protocol) raise precisely the same issues concerning primacy and its domestic accommodation as those raised by EU law itself during the UK’s period of membership.
The Court in Allister held that the Northern Ireland Protocol was not vulnerable to challenge on the ground of incompatibility with the Acts of Union because the 2018 legislation could be largely treated as providing a complete answer to the question, rendering matters of constitutional character ‘academic’. In doing so, the Court showed little appetite for engaging with questions of constitutional theory, preferring instead to adopt a highly pragmatic approach echoing that taken by the Appellate Committee of the House of Lords in 1990 in Factortame (No 2) [1991] 1 AC 603, in which the domestic implications of section 2(4) of the 1972 Act (and of the EU primacy doctrine to which section 2(4) gave effect) were first authoritatively acknowledged but hardly explored. In adopting such a pragmatic approach, however, the Supreme Court in Alliser failed to recognise that the meaning and legal effects of section 7A of the 2018 Act could only be satisfactorily determined and explicated by locating the statutory language within a wider constitutional framework.
In a paper that Nick Kilford and I recently completed, we critique the approach adopted by the Supreme Court in Allister. We argue that that approach is problematic in both pragmatic and theoretical terms. We also note that the tenor of relevant parts of the Allister judgment may be thought to sit in tension with jurisprudence, including at Supreme Court level, that paints a more nuanced theoretical picture, in which common law and statutory norms are accorded variable degrees of constitutional weight that inform the extent of their vulnerability to casual legislative erosion, and which bear on the statutory language necessary to modify them. Accordingly, we contend that the Court’s omission to engage with questions of theory supplies grounds for doubting the extent to which Allister (despite what certain dicta might suggest) displaces such jurisprudence, and that we should be correspondingly cautious when it comes to characterising the implications of the judgment.
A draft of our paper, which will be published in the Edinburgh Law Review, can be downloaded via SSRN: Elliott & Kilford, ‘Nothing to see here? Allister in the Supreme Court’ (Edinburgh Law Review, forthcoming).
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