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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

Section 35 should be compared with the Northern Ireland Act 1998, section 2 of which, as has already been mentioned, makes no explicit reference to the Acts of Union, only to "previous enactments". Section 1 (with Schedule 1) of the Northern Ireland Act deals with the status of Northern Ireland and the mechanisms under which it might become a part of a united Ireland. As such section 1 expressly relates to the potential severance of the whole Union, and it will be dealt with separately below. For the rest, one has to consider whether section 2 permits implied (partial) repeal of (parts of) the Union legislation. The Northern Ireland Office's Notes on Clauses for s.2 makes no mention whatsoever of the Acts of Union. The concluding paragraph, however, reads:

. . . this Clause . . . makes clear that the current Bill has effect notwithstanding any other previous enactments in order to underline that the Bill sets out to be a new start as respects the constitutional and Governmental arrangements of Northern Ireland. (30)

The Scotland Act 1998, in section 35, expressly mentions the Acts of Union in order (as per the Notes on Clauses) "to send the clearest signal" that in the case of conflict between the Anglo-Scottish Acts of Union and the 1998 Act the latter is to prevail.(31) The Northern Ireland Acts 1998 makes no mention whatsoever of the Anglo-Irish Acts of Union. Are they then subject to the doctrine of implied repeal? It may, on the one hand, be argued, on the principle expressio unius est exclusio alterius that the express reference to the Acts of Union in section 35 of the 1998 Act means that their omission from section 2 of the Northern Ireland Act was deliberate and that they are not thus covered by the phrase "previous enactments". On the other hand, it may be argued that the constitutional histories of Scotland and Northern Ireland are sufficiently different and the provisions of the two 1998 Acts are sufficiently different that the maxim expressio unius has no application in this context. If it were to be argued in court, for example, that the provisions in the Northern Ireland Act 1998 on the North-South Ministerial Council, the British-Irish Inter-governmental Conference or the cross-border implementation bodies (32) were in some way contrary to the Act of Union, (33) it is highly likely that a judge would rely on the following factors: the express sections in the 1998 Act dealing with these bodies as read with s.2, the dictum of Viscount Dilhorne (and, it may be, of Lord Reid) in the 1966 Irish Peers' Petition and the fact that the Belfast Agreement (outlining in general terms the powers of these bodies) was put to the people of Northern Ireland in a referendum on May 22, 1998 and 71 per cent of those voting voted in favour of the Agreement. (34) This last point is of considerable importance. Not only did the holding of the referendum honour the promise given both by the Conservative and also by the Labour Government during the political negotiations on the future of Northern Ireland that there would be a "triple lock" concerning the acceptability of the outcome, (35) it also effectively addressed the specific argument, put forward particularly by unionists, that institutional changes which in their view diminished or diluted the Union should receive the consent of the people of Northern Ireland. The consent to the changes to be wrought by the Northern Ireland Act (36) has now been given, albeit in response to an overall package dealing with both constitutional and governmental issues, on the one hand; and on the other hand issues such as rights and equality of opportunity , decommissioning, security, policing and justice and the release of prisoners. These issues too were clearly before the electorate of Northern Ireland when the elections took place to the Northern Ireland Assembly on June 25, 1998 under the terms of the Northern Ireland (Elections) Act 1998.(37) This involvement of the electorate, therefore, could be invoked to bolster arguments in favour of the doctrine of implied repeal-popular sovereignty, or the sovereignty of the people, thus reinforcing the traditional arguments on the sovereignty of the Westminster Parliament.

All these factors, however, must be placed in the context of the provisions of section 1 of the Northern Ireland Act which clearly provides for a procedure under which the Union may ultimately be severed-and section 1 is a provision which, at the least, would delight those of a Scottish nationalist persuasion if an equivalent had been included in the Scotland Act 1998.

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