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16 October 2014
A State Apart

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The Good Friday Agreement

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

The Northern Ireland Act 1998 and the Act of Union

A key quotation, however, may be provided from each one of their Lordships' opinions on implied repeal, for they reveal a difference of opinion of significance to the impact of the 1998 Act on the Act of Union 1800. Viscount Dilhorne said "... that part of the Union with Ireland Act which provided for the election of Irish peers to the House of Lords must be regarded as having become spent or obsolete or impliedly repealed in 1922".(25) By contrast, Lord Wilberforce said:

In Strict law, there may be no difference in status, or as regards the liability to be repealed, as between one Act of Parliament and another, but I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal or obsolescence-all the more so when these effects are claimed to result from later legislation which could have brought them about by specific enactment.(26)

As Lord Wilberforce's opening and closing sentiments there indicated, he did seem prepared to concede the possibility of express repeal of the Union legislation. The reason he employed to argue against the application of the doctrine of implied repeal-the constitutional significance of the Union-remains a factor of considerable importance and will be considered further below in the context of consent. For those who argue that the Union itself can be damaged not solely by formal severance or repeal but also by it diminution through, for example, the creation of cross-border institutions with executive powers. (27) Lord Reid's dictum is of particular significance:

A statutory provision becomes obsolete if the state of things on which its existence depended has ceased to existed so that its object is no longer attainable. Or putting it another way, a statutory provision is virtually or impliedly repealed if a later enactment brings to an end a state of things the continuance of which is essential for its operation.(28)

The "state of things" on which the existence of Article 1 of the Union depends could, in the context of the Belfast Agreement and the Northern Ireland Act 1998, be regarded as being affected by the North-South Ministerial Council, the cross-border implantation bodies and the British-Irish Intergovernmental Conference. Although the creation of new bodies vis-a-vis Northern Ireland should not be entirely equated with the impact of the abolition of the office of Lord Chancellor of Ireland upon the election of Irish peers to the Lords, both sets of changes relate to altering relationships between (to use the 1998 Agreement's terminology) the United Kingdom and Ireland.

In spite of all this legal theorising, however, the fact remains that successive Westminster Governments have continuously been of the opinion that the Westminster Parliament is free to legislate, expressly at least, contrary to the Acts of Union.(29) The latest illustration of this is section 35 of the Scotland Act 1998 which provides that: "The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act". The Scottish Office's Notes on Clauses to section 35 effectively beg the whole question of the sui generis nature of the Anglo-Scottish Acts of Union. There it is stated that:

This clause . . . is of some significance in that it seeks to ensure that nothing in the Bill, or done under the Bill, could be challenged on the grounds that it is contrary to the Acts of Union. There is an ongoing debate as to what effect the Acts of Union have on the doctrine of the sovereignty of Parliament and, in particular, on Parliament's competence Union . . . It is thought that arguments may be presented as to whether certain provisions in the Bill are in breach of particular Articles of the Acts of Union . . . This clause [35] is intended to make it clear that it is Parliament's intention that the provisions in this Bill, and provisions made under it, should be given effect notwithstanding anything in the Acts of Union. This sends the clearest signal that, in so far as there may be any inconsistencies, the provisions in the bill are to take priority.

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