This week saw a number of EU-inspired Rejoiner attempts to undermine the government’s negotiations with Brussels on remedying problems created by the Protocol. Some of this is classic stuff we’ve discussed before – scaremongering over supplies of food or medicine, for instance. Some are new EU threats of retaliation via suspending certain chapters of the Trade and Co-operation Agreement, which we have also addressed.
Threats like this, however, are dubiously legal at best. The EU’s problem is that the TCA and the Withdrawal Agreement (to which the Northern Irish Protocol is an annex) are separate treaties. As such, cross-retaliation on one for supposed breaches of obligation under another is a priori difficult.
The Peretz argument has two limbs. First, he posits that the Withdrawal Act may be a ‘constitutional statute’ and thus protected from implied repeal, which would prevent the government using powers derived from subsequent primary and secondary legislation to disapply Protocol rules. Second, if this follows, then powers derived from an invocation of Article 16 could be voided by the courts if the courts viewed the invocation to be ‘unreasonable’.
Neither of these contentions persuade from a pure legal perspective. The ‘constitutional statute’ view is a very slender reed. A ‘constitutional statute’ is a recent legal invention first recognised in Thoburn v Sunderland City Council  (paras 62–5) which was explicitly designed to give effect to the UK’s membership of the EU. It is a contentious experimental doctrine which says that certain Acts are protected from implied repeal by later legislation, which flies against long-established caselaw (Ellen Street Estates v Minister of Health ). It is a doctrine that is superfluous now that Britain has left the EU, which the courts should not feel bound to continue.*
Even if the courts are to continue recognising constitutional statutes, the bar for such recognition must be very high. In particular, it should surely reflect a relative political consensus on the Act’s status, formed over a significant period of time, which protects fundamental elements of the constitution and whose provisions are certain. For the court to rule on grounds less strict than these would be to vastly overreach into territory which properly belongs to politicians – which former Supreme Court judge Lord Sumption has warned repeatedly against.
It thus makes little sense for a court to recognise the Withdrawal Acts as constitutional statutes. Dislike it as one must, treating the European Communities Act as a constitutional statute made sense when the UK government was committed to remaining in the European Union and implementing and following EU law.
But the WAA does the exact reverse. It implements a treaty concluded with a foreign entity, and not a quasi-federation of which the UK is a member. It also explicitly recognises that the UK Parliament is sovereign, in s. 38 – suggesting no delegation of sovereignty to prevent implied repeal.
On Article 16, Peretz tries to argue that ‘it is not plausible that either party would have intended to include a provision that allowed the other party to escape its obligations by citing the inevitable consequences of those obligations.’ But that is precisely what the article is for. To put it in strictly legal terms, the intention of the parties in agreeing Article 16, on a fair reading of the treaty and the surrounding communications, was to prevent disorder and disruption in the province. Specifically, Article 16 allows either party to implement unilateral safeguarding measures if the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.
Indeed, it is not clear on Peretz’s reading what Article 16 actually could be used for – or why it was included at all. Peretz also commits a sleight of hand by referring to ‘inevitable consequences’ when in fact the disruption has occurred precisely because Brussels has not delivered on its legal obligation to apply ‘light touch’ regulation which minimises checks at ports and impacts on everyday life in Northern Ireland. Peretz’s ‘inevitable consequences’ are not therefore ‘inevitable’, or indeed foreseeable.
Nor is it clear that the government would need to show that difficulties were unexpected: Article 16, and the Assembly voting provisions in Article 18, clearly back up the common sense view that the Protocol was drafted with an eye to disapplication if serious disruption occurred. Perhaps the EU agreed these clauses in bad faith simply because it was desperate to avoid a no-deal Brexit; that doesn’t mean it should be allowed to forget that it ratified them.
More broadly, the Peretz analysis misses the important point that the Northern Irish dispute is primarily a political, not a legal issue. If the Supreme Court were to rule that Article 16 had been invoked illegally after the government had suspended certain checks and requirements which are damaging Northern Ireland’s trade and its place in the UK’s internal market, it would be effectively forcing the government to reimpose them – a politically combustible move given the province’s history. Would judges, by injudicious meddling in political affairs on behalf of a foreign organisation, be willing to provoke societal damage and even violence in a part of the United Kingdom? One would hope not.
Moreover, as Peretz acknowledges, if the court ruled that invoking Article 16 was illegal, it would be clearly trespassing on the territory of the executive by substituting its own judgement on what steps were reasonable under Article 16 for the informed view of ministers. And it would thereby invite the government – with its large Commons majority – to finish the job on curbing an over-mighty court, which has so far (with the exception of the judgment in Ziegler) been fairly cautious since the Conservatives’ election victory.
* Some measure of constitutional entrenchment is obviously common in other Common Law jurisdictions: foremost among them the United States and the former Dominions. But as a doctrine in the UK constitutional statutes are acknowledged to be a recent development even by their proponents – see McGarry and Spence in Statute Law Review 2020 pp. 379–81.