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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

(20) MacCormick v Lord Advocate (1953) S.C. 396 remains the leading authority on this point, especially per Lord President Cooper at p.412: "I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that Parliament should be free to alter the Treaty at will."

(21) In ex p. Canon Selwyn (1872) 36 J.P. 54 the petitioner, Canon Selwyn, sought to obtain a judicial decision on the validity of the Queen's Assent to the Irish Church Disestablishment Act 1869, which disestablished the Church of Ireland. The basis of his argument was that her Assent was inconsistent with her Coronation Oath and the Act of Settlement. The petitioner was unsuccessful because: "An act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgement as to the validity of an Act of Parliament." It should, however, be noted that Canon Selwyn did not argue against the 1869 Act on the ground that it conflicted with Article 5 of the Act of Union which established "for ever" the united Churches of England and Ireland.

(22) The Government of Ireland Act 1920 is mentioned not only in s.2 but also in Schedule 15. Schedule 15's reference to "the whole Act" is a little misleading, as the Northern Ireland Constitution Act 1973, s41(1) and Schedule 6, part I had already repealed almost all the Act. The separate treatment afforded by s.2 to the 1920 Act in itself could give rise to an argument that the Act of Union (not having been specifically mentioned as the 1920 Act was) could not, as an even more fundamental Act, be included by implication.

(23) H.L. 53, July 5, 1966.

(24) Second Schedule. Part II

(25) H.L. 53, July 5, 1966, at p.69.

(26) ibid., at p. 73. Emphasis supplied and the phrase is important.

(27) As mentioned above, this point will not be pursued fully here; for further references see b. Hadfield, "From the Downing Street Declaration 1969 to the Downing Street Declaration 1993" in Contemporary Issues in Irish Law and Politics, No.1 (1998), pp. 76-109, especially at pp. 82-95.

(28) See n.23, supra, at p. 66.

(29) See s.71 of the Irish Church Disestablishment Act 1869 (which disestablished the Church of Ireland, see above). It expressly addressed the issue of the other provisions of the Acts of Union: "Nothing herein contained shall affect the [Act of the Union of Great Britain and Ireland] or [the Union Act of the Irish Parliament] or anything done thereby, except in so far as related to the union of the Churches of England and Ireland, and except as expressly herein-before provided." The word "expressly" should be noted; and see also Lord Wilberforce's dictum in the text above.

(30) Emphasis provided. It is of key importance in this context that the distinction between (and the substance of the distinction between) "constitutional" and "Governmental" is clearly delineated. This, for obvious political reasons including the desire to accommodate fundamentally different opinions as to what was being done, is to be nowhere found in the Agreement, the Act or the Notes on Clauses.

(31) It is submitted that it is highly likely that, should a significant conflict between the 1998 Act or something done under it and a fundamental provision of the Treaty of Union arise, a Scottish court would be presented with the argument that s.35 cannot, under Scots constitutional law, achieve that which the Notes on Clauses (blithely) assume it can achieve in s.31. See also the Scotland Act 1998, Schedule 5, Pt. 1, para. 1(6) (if the earlier version of the Bill) and Schedule 4, para. 1 (a "belt-and-braces" provision).

(32) See part VII of the 1998 Act, which also deals with other issues, but given the significance of these bodies the heading of Part VII-Miscellaneous and General-looks like immense statutory under-statement Announced by the Government, in H.L. Second Reading, October 5, 1998, that these provisions will be moved to a position of greater prominence in the Act.

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