In the matter of an application by James Hugh Allister and others for Judicial Review (Northern Ireland)

Where Parliament expressly provides that every enactment is to be read subject to obligations arising under an international agreement, earlier constitutional legislation is modified to the extent and for the duration of any inconsistency. Parliamentary sovereignty prevents an interpretative presumption concerning fundamental rights from overriding Parliament’s clearly expressed will.

A statutory guarantee concerning Northern Ireland’s constitutional status governs only whether it remains within the United Kingdom or joins a united Ireland. It does not require popular consent for other constitutional changes. Delegated legislation may amend primary legislation where the enabling provision clearly confers that power. The presumption favouring a restrictive construction of a Henry VIII power applies only where genuine doubt exists about its scope.

The appellants brought two judicial review claims challenging the lawfulness of the Protocol on Ireland/Northern Ireland. Colton J dismissed both applications in [2021] NIQB 64. The Court of Appeal dismissed the appeals in [2022] NICA 15 but granted permission on three questions.

The questions were whether section 7A of the European Union (Withdrawal) Act 2018 lawfully modified article VI of the Acts of Union 1800; whether that modification changed Northern Ireland’s constitutional status contrary to section 1 of the Northern Ireland Act 1998; and whether the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 lawfully excluded the petition-of-concern procedure from votes on continued application of articles 5 to 10 of the Protocol.

1. All appeals dismissed unanimously. Lord Stephens gave the judgment, with which Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Sales agreed.

2. Section 7A of the European Union (Withdrawal) Act 2018 expressly requires every enactment, whenever passed or made, to be read and to have effect subject to the rights, obligations and restrictions arising under the Withdrawal Agreement. On the unchallenged premise that the Protocol was inconsistent with the trade limb of article VI of the Acts of Union 1800, article VI was modified to the extent and for the period during which the Protocol applied. It remained on the statute book and was not repealed. Questions about the constitutional character of the statutes or the fundamental nature of the relevant rights were academic because an interpretative presumption cannot override Parliament’s clearly expressed will: paras 64–69.

3. Assuming that article VI restricted the prerogative power to make an inconsistent treaty, Parliament could authorise that power’s later exercise. The long title and substantive provisions of the European Union (Withdrawal Agreement) Act 2020 showed Parliament’s clear intention to authorise the making of the Withdrawal Agreement, including the Protocol, before it was signed and ratified: paras 70–78.

4. Section 1 of the Northern Ireland Act 1998 gives the people of Northern Ireland the right to decide whether Northern Ireland remains part of the United Kingdom or becomes part of a united Ireland. It does not regulate other changes in constitutional status. The unanimous ruling in Miller No 1, [2017] UKSC 5, was dispositive: paras 81–85.

5. Article 18 of the Protocol, read with the United Kingdom’s unilateral declaration, created an obligation to legislate for a democratic-consent process permitting a decision by a simple majority of Assembly members present and voting. Section 7A therefore already modified section 42 of the Northern Ireland Act 1998 for that purpose. The 2020 Regulations were compatible with the 1998 Act as modified and were within section 8C: paras 107–108.

6. The Henry VIII challenge also failed. A restrictive approach to delegated powers modifying primary legislation is appropriate only where genuine doubt exists about the enabling provision. Section 8C(2) expressly permitted regulations to make any provision that an Act of Parliament could make, including modification of primary legislation: para 109.

1. United Kingdom Supreme Court: Dismissed all grounds of appeal from [2022] NICA 15.
2. Court of Appeal in Northern Ireland: Dismissed both appeals in [2022] NICA 15 and granted permission to appeal on three questions.
3. High Court of Justice in Northern Ireland: Colton J dismissed both applications for judicial review in [2021] NIQB 64.