Acts of Union “Shattered” by Northern Ireland Protocol

Irish practitioners might recall the Acts of Union 1800 (often mistakenly referred to as the Act of Union 1801) as being the key piece of legislation that led to Ireland joining the United Kingdom. Although the now Republic of Ireland withdrew from the UK in 1922 to become the Irish Free State under the Anglo-Irish Treaty (signed this week 100 years ago), Northern Ireland decided to opt-out from the Free State. The Acts of Union, while now only applying to a much smaller segment of Ireland, thus survived to die another day.

That day may have been nearly a century after the creation of the Irish Free State with the signing of the EU-UK Withdrawal Agreement which contains the infamous Northern Ireland Protocol. The Protocol ties Northern Ireland economically to the EU, and by extension to the Republic of Ireland, insofar as it provides that Northern Ireland remains in the EU single market for goods. When the rest of the UK left the single market, a de facto customs border arose between Northern Ireland and the Kingdom with which it is united.

The Acts of Union are relevant because Article VI is designed to place the parties on an equal footing in relation to trade. Earlier this year, the High Court of Northern Ireland in Re Allister and Ors. [2021] NIQB 64 found that the Protocol is in “conflict with the ‘equal footing’ described in Article VI” (para. 62). But the Court ruled at para. 110 that:

“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.”

It was held that the newer Protocol, duly incorporated into the constitutional framework of the UK, effectively repealed Article 6 of the Acts of Union (para. 114).

However, the judgment was appealed to the Court of Appeal on the basis that the Acts of Union has legal supremacy and that a constitutional statute cannot be implicitly repealed by a subsequent Act of Parliament. In the oral hearing last week, counsel for the UK Government refuted the claim that the Acts of Union had such “interpretative supremacy” to the effect that it can dominate later legislation. It was instead argued that the express will of Parliament means that it is the Northern Ireland Protocol which lawfully “subjugates” the Acts of Union. It was submitted, moreover, that it was not necessary that Article VI be held to be "impliedly repealed" (which the Appellants say would be unlawful), but rather that it could simply be interpreted subject to the international treaty obligations of the Protocol—where the two come into conflict, the Protocol would prevail while still leaving Article VI intact.

The Court of Appeal is to give its judgment in the coming weeks or months to determine whether the Northern Ireland Protocol does indeed repeal Article VI of the Acts of Union. Should the Appellants succeed, observers will receive a clear answer. In circumstances where the above-outlined arguments of the UK Government are preferred, and much like the customs border that has erupted between Northern Ireland and Great Britain, the shattering of the Acts of Union may end up being de facto, if not de jure.