Nothing To See Here? Allister in the Supreme Court
(2023) 27(3) Edinburgh Law Review (Forthcoming)
9 Pages Posted: 5 Jul 2023 Last revised: 7 Jul 2023
Date Written: June 30, 2023
In the Allister case, 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. 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. That question is 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 of EU law while the UK was a Member State of the EU. 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 questions of constitutional character ‘academic’. Accordingly, it failed to recognise that the meaning and legal effects of that Act could only be satisfactorily determined by locating the statutory language within a wider constitutional framework. This paper critiques the approach adopted by the Court, arguing that it is problematic in both pragmatic and theoretical terms. It is also contended that the Court’s omission to engage with questions of theory supplies grounds for doubting the extent to which the Allister judgment (despite what certain dicta might suggest) displaces jurisprudence 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.
Keywords: constitutional law, UK constitution, statutory interpretation, constitutional statutes, Brexit
JEL Classification: K00, K1, K10, K19, K3, K30, K39, K4, K40, K49
Suggested Citation: Suggested Citation