THIS WESTMINSTER government is keen to talk up its opposition to separatism and claim Boris Johnson practices ‘muscular unionism’. That type of rhetoric is all very well, but why then did it admit in court last week it tried to repeal a critical part of the Act of Union?
These assertions only came to light because unionists, including Ben Habib, Arlene Foster, Jim Allister, Steve Aiken, Lord Trimble and Baroness Hoey, launched a judicial review challenging the government’s right to implement the Northern Ireland Protocol. They claim it breaches the Act of Union 1801, the Northern Ireland Act 1998 (which implemented the Belfast Agreement) and the Belfast Agreement itself.
The government’s argument centres on the doctrine of ‘implied repeal’, which determines that an act of parliament that contradicts an earlier law takes precedence. However, in previous cases, the court has found that ‘constitutional statutes’ like the Human Rights Act or the Scotland Act were exceptions to this doctrine and their provisions must be ‘expressly’ repealed. In other words, newer legislation must use specific wording to make clear that it intends to change the original law.
Article 6 of the Act of Union states that, “…in all treaties made by his Majesty, his heirs, and successors, with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges, and be on the same footing as his Majesty’s subjects of Great Britain.”
Rather than arguing that it somehow complied with this provision, the government claimed that this particular law had been repealed, to enable the Northern Ireland Protocol and the Irish Sea border to operate.
This approach to the Union is beyond reckless.
Firstly, the government has abandoned any pretence that there is one form of British citizenship that applies across the whole of the UK. It is asking the court to endorse the idea that people in Northern Ireland are second class citizens for they should no longer enjoy “the same privileges” as her Majesty’s subjects in Great Britain.
Writing in the Belfast News Letter on Saturday, the TUV leader Jim Allister put it like this: “A cornerstone of the Union is gone, according to this Conservative and Unionist government. Anyone who doubted that the Protocol dismantles the Union must face reality. It does and was intended to do so.”
It’s staggering that a so-called unionist government is attempting to deconstruct such a critical act and the case that its actions are illegal seems strong. It’s difficult to imagine how the Act of Union could be viewed as anything other than a ‘constitutional statute’. This piece of law literally created the United Kingdom of Great Britain and Ireland brought it into existence – previous legal cases suggest it must be repealed expressly.
Consider, though, what the government is prepared to risk to defend the Irish Sea arrangements that it concocted with the EU. It abandoned Northern Ireland to secure a Brexit deal. It is now trying to jettison the cherished concept of equal citizenship that underpins our nation state. And it knowingly took a hacksaw to its own internal market.
It took this approach even while separatists in Scotland, Wales and Northern Ireland worked ceaselessly to break up the country.
How will the SNP respond, one wonders, if the courts endorse the idea that politicians can dismantle the building blocks of our constitution without making their intentions clear? You would hope that a Conservative prime minister would be familiar with the idea of ‘unintended consequences’.
In Northern Ireland, we’re used to professed unionists at Westminster treating us as if we were only nominally British. Following the Brexit referendum, the government put Irish nationalists’ desire to pretend there was no land border on the island of Ireland ahead of our right to be treated as an integral part of the United Kingdom.
It doesn’t seem to have occurred to Boris Johnson or his colleagues that they could undermine the Union between England and Scotland, as well as the Union between Great Britain and Northern Ireland, by attacking fundamental parts of the country’s constitution. If one part of the United Kingdom leaves or becomes semi-detached from the rest of Britain, inevitably, it will boost separatists in the remaining regions.
The government’s attitude to the Protocol has been confused to say the least. Lord Frost is supposed to be negotiating with the EU to mitigate its effects, but, at the same time, its lawyers defend the arrangements in court. One moment we’re told that it’s crippling Northern Irish businesses, the next, Conservative MPs claim it offers opportunities for increased trade and investment.
If the unionists’ judicial review is successful, the Protocol will be deemed illegal on the basis that the Act of Union and other important statutes cannot be repealed impliedly. If it is not successful, a Conservative and Unionist government might have seriously undermined legislation that forms one of the critical building blocks of our United Kingdom.
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