Jamie Bryson: The Supreme Court did in fact said that the constitutional status of Northern Ireland had been changed by the protocol

Writing in the News Letter yesterday (The constitutional status of NI is unchanged but unionist alienation must be addressed, February 9, see link below) Lord Bew stated that the Supreme Court ruled “that the NI Protocol did not constitute a change in the constitutional status of Northern Ireland”. This is, with respect, simply wrong.

The change that the Supreme Court found had taken place (and it did find that there had been constitutional change) was not changed that attracted the protection of Section 1 of the Northern Ireland Act 1998 (known as the principle of consent). That says much about how little protection we can expect from section 1, and how much more protection we need. But to read Thursday’s decision as saying that there has been no constitutional change is to miss the point of that decision.

Lord Bew’s piece advances three core propositions; firstly, that the Supreme Court said there had been no constitutional change; secondly, that the subjugation of the Act of Union did not amount to constitutional change; and thirdly, as somewhat of a makeweight which nevertheless takes up much of the article, that the Act of Union is reduced to having only a limited status. I deal with each in turn.

The Supreme Court was, among other things, asked two questions. In summary: firstly, whether the subjugation of the Act of Union was lawful due to the doctrine of Parliamentary sovereignty; and secondly, whether the subjugation which had occurred triggered the principle of consent safeguard found in section 1 (1) of the NI Act 1998.

As to the first question, the court found that the Act of Union had been subjugated, and remains suspended whilst the Protocol remained, but that Parliament was sovereign, and this was permissible. Whilst beyond the scope of this piece, it is important to point out the case was not about whether Parliament was sovereign, but rather whether there was a limit to the sovereignty if it runs up against fundamental constitutional principles.

That confusion loomed large on BBC Evening Extra when the presenter repeatedly put it to Baroness Hoey that ‘Brexit was about Parliamentary sovereignty’ and ‘Parliament is now sovereign’. Indeed, that was one of the purposes of Brexit – ensuring our Parliament made our laws. It is trite to point out that has not been delivered in relation to NI.

Parliament is, and always should be, sovereign. But the somewhat different point is whether there is any limit upon that sovereignty. For example, could Parliament abolish Article 3 of the Act of Union (and thus itself) and instead decree we will have an authoritarian state?

If the answer is no, because Parliamentary democracy is a constitutional fundamental, then that would be to place a limit on Parliamentary sovereignty. And if such a limit exists in relation to Article 3 of the Act of Union, one may reasonably ask why Article 6 is to be afforded a lesser status?

In regard the second question, Lord Stephen’s endorsed the formulation in the Brexit legal case Miller 1 which, in so far as relevant, held “section 1 of the NIA 1998 does not regulate any change [my emphasis] in the constitutional status of Northern Ireland other than [my emphasis] the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland”.

Obviously, in so finding, the Supreme Court did not find that no constitutional change had occurred, rather it found that no change other than a final determination of sovereignty engaged the principle of consent in Section 1 of the 1998 Act.

Put simply, it is now put beyond doubt that you can change everything but the last thing in regards Northern Ireland’s place in the Union. The last thing being merely the final formal handover of sovereignty.

The first proposition I have distilled from Lord Bew’s article, is unsustainable. I cannot see where the judgment says there has been no constitutional change.

In fact, the judgment says the opposite, that there has been change (how else does one describe the subjugation of the Act of Union?), but that it is not change regulated by the principle of consent given that provision is, deceptively, now exposed something much less than unionism believed it was.

In order for Lord Bew’s proposition as to no constitutional change to be correct, it is necessary for him to overcome the finding that the Act of Union has been subjugated. If he can do not so, then he cannot make good his point.

This, with respect, leads to the somewhat muddled position of advancing a range of propositions which serve, in Lord Bew’s analysis, to limit the constitutional significance of the Act of Union.

In this there is various assertions advanced which in truth belong more the arena of academic exploration, than they do in law. Whichever road Lord Bew seeks to travel down to diminish the significance of the Act of Union, and thus the reality there has been constitutional change, none of them can however defeat a simple legal fact.

The Act of Union remains good law. All three court tiers have held that is so. Indeed, if the Act of Union did not remain law, then it wouldn’t have needed to be subjugated in order to give effect to the Protocol. Its significance as a matter of constitutional law remains undiminished. As Lord Trimble correctly stated: “the Act of Union is the Union”.

Therefore, the true position is that (i) the Act of Union remains the fundamental constitutional underpinning of the Union; (ii) the Act of Union has been subjugated by the Protocol;(iii) there has therefore been constitutional change; (iv) but the principle of consent was no safeguard against it, because in fact- contrary to the belief in 1998- it only directs itself to the final formal handover of sovereignty.

If Lord Bew was correct that the Protocol- which hands law making and judicial powers to the EU- is not constitutional change, then handing the same powers to Dublin would equally be constitutionally permissible. Reductio ad absurdum.

Jamie Bryson is NI Director of Policy for the Centre for the Union and author of NI Constitutional Law: Acts of Union and NI Protocol.

• Paul Bew: The constitutional status of NI is unchanged but unionist alienation must be addressed