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16 October 2014
A State Apart

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The Belfast Agreement, Sovereignty and the State of the Union.

The Northern Ireland Act 1998 and the Act of Union

Brigid Hadfield

Professor of Public Law, The Queen's University of Belfast.

[1998] Public Law. WINTER (c) SWEET & MAXWELL AND CONTRIBUTORS

The first article of the Union of 1800, established by the Acts of the separate Parliaments of Great Britain and of Ireland, is that the two kingdoms of Great Britain shall on January 1, 1800 "and for ever after" be united into the one United Kingdom, and the third article provides that the United Kingdom "be represented" in one and the same Parliament". Section 2 of the 1998 Act provides that "this shall have effect notwithstanding any other previous enactments". The issue now to be considered is the impact of this phrase upon the Act of Union of 1800.

The first general point to be made is that the general legislative powers of Westminster over an Act of Union should not be regarded as being automatically subsumed under the power of a sovereign legislature to repeal or amend its own Acts. The Great Britain and Ireland Acts of Union created the Parliament of the United Kingdom and it requires an "elision" in legal reasoning to argue, simply, that because Westminster is sovereign (assuming it to be so) it can repeal or amend the Acts which created it on exactly the same principles as it can repeal or amend Acts which it itself has enacted. Although this argument does not mean that the Act of Union cannot be regarded as a "previous enactment" for the purposes of s.2, it does mean that any argument concerning its repeal or amendment, expressly or a fortiori by implication, should be treated with a certain amount of legal caution. This line of reasoning has heretofore received more emphasis in Scotland (20) than in England or Northern Ireland (21) but none the less must be borne in mind concerning any arguments on possible conflict between the Act of Union and the 1998 (or any subsequent) Act.

Dealing with express and implied repeal on the general level first, the 1998 Act clearly does not expressly repeal the Acts of Union. Section 2 does not do so; and section 81 (2) and Schedule 15 which deal with repeal make no mention of either.(22) The doctrine of implied repeal in essence means that if a later Act is inconsistent with an earlier Act which it has not expressly repealed or amended, the later Act, as the later manifestation of the will of Parliament, prevails over the earlier Act. There is some authority both to suggest that the Acts of Union are not themselves subject to the doctrine of implied repeal and to suggest that they are, both dicta emanating from the same source. The Report by the Committee of Privileges (of the House of Lords) on the Petition of the Irish Peers in 1966 (23) had to consider aspects of Article 4 of the Act of Union 1800 concerning the peerage of Ireland and its entitlement to sit in the House of Lords. Under the terms of Article 4 (and other legislation incorporated into the Union) 28 Irish peers were elected for life to the House of Lords. On the death of an Irish peer, the election of his successor was held in a manner provided for by the 1800 legislation, the machinery for the election had been held in 1919, although the last Irish peer to have been so elected to the Lords did not die until 1961. In 1922, the office of Lord Chancellor of Ireland was abolished by the Irish Free State (Consequential Provisions) Act 1922 (24) and his functions, as far as Northern Ireland only was concerned, were transferred to the Lord Lieutenant, later the Governor, of Northern Ireland. The three members of the Committee of Privileges, Lords Reid and Wilberforce and Viscount Dilhorne, held unanimously that the provisions of the 1800 legislation relating to the election of the Irish representative peers ceased to be effective on the passing of the Irish Free State (Agreement) Act 1922, and the consequential provisions legislation and hence the right to elect Irish representative peers no longer existed.

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