26 February 2021

Judges should not be left to freestyle new constitutional doctrines


Whilst the Alex Salmond scandal is (finally) starting to steal the headlines, the row over the Northern Ireland Protocol may yet prove the more dangerous constitutional issue for the Government.

Unionist support for trying to make it work has all but collapsed. There are signs that Loyalist groups may be gearing up to launch physical attacks. And now the leaders of political unionism have all thrown their weight behind a legal challenge to the whole thing.

It is not an unserious effort. The case has been drafted by John Larkin, who until recently served as the Attorney General for Northern Ireland. But it’s extremely unlikely to succeed, and shines a light on a problematic part of our constitution: so-called ‘constitutional statutes’.

The central claim is that Brandon Lewis, the Northern Irish Secretary, behaved unlawfully when he used secondary legislation to remove the usual need for cross-community support when the Protocol comes up for a vote in Stormont in 2024.

This makes it much easier for the Unionist parties to vote it (or most of it) down if they win an overall majority – which they had until fairly recently – but essentially impossible if they don’t.

Larkin et al claim that the Belfast Agreement, which includes the cross-community provision, is a ‘constitutional statute’, and thus can only be amended by primary legislation with that specific intent. They likewise claim that the UK-EU deal breaches the Act of Union 1800, which set out the requirement for free trade within the British Isles in Article Six, and is thus invalid for the same reason.

There is something strange here. The case alleges the existence of a certain sort of ‘super statute’, but can’t definitely state whether either the Belfast Agreement or the Act of Union qualify as such. This is where it gets problematic.

Under the conventional understanding of how Parliament works, one parliament cannot bind its successors and all legislation carries the same weight. Where two pieces of legislation conflict, the more recent is taken to override as much of the older as necessary, a dynamic called ‘implied repeal’. This is a sensible system which spares legislators and draughters the need to memorise the entirely legislative back catalogue, and ensures that the actual law of the land keeps pace with political opinion.

So-called ‘constitutional statutes’ were invented – sorry, ‘discovered’ – by the judiciary. This theory holds that certain pieces of legislation carry special constitutional weight and are thus immune from the normal process of implied repeal. It first arose in the case of Thoburn vs Sunderland City Council, which some might recall as the ‘Metric Martyrs’ case.

The details of the case, whilst interesting, are less important than the process at work. 

Sir John Laws, the sitting judge who distilled this theory from the aether, based on a deeper philosophical outlook which was hostile to the traditional political constitution and envisioned a privileged role for the judiciary (“higher-order law”) in defending ‘apolitical values’. Other judges, for example Lord Hope, have endorsed the principle.

But at no point has Parliament actually legislated to the effect that constitutional statutes exist. Nor, therefore, has it ever set out a formal list of what particular pieces of legislation qualify. The special status of ‘constitutional’ seems therefore to be the gift of an individual judge in an individual case. Suffice to say, it seems a forlorn hope to expect it to be applied in support of so unfashionable a cause as eurosceptic Ulster unionism.

Therefore, whilst this legal challenge is probably the least of the Government’s troubles when it comes to Northern Ireland, it does highlight that the Government has yet some work to do when it comes to rebalancing the role of the judiciary in our constitution. The invention of a special category of super-law should not be done from the bench.

The simplest remedy would be a short bill to the effect that, simply, there is no such thing as constitutional statute and the doctrine of implied repeal applies equally to all legislation duly enacted by Parliament. Or, should the Government wish to give this theory a proper democratic imprimatur, a bill setting out a list of such statutes and the proper extent of their protections.

Further up the pipeline, the Government should also seriously consider restoring the role of the Lord Chancellor in giving proper political input into senior judicial appointments. A recent report by Policy Exchange makes the case that ministers have the right to ensure that applicants to such crucial posts subscribe to some fundamentals about how the constitution works – if only to avoid much more damaging confrontations between the political and judicial branches in the future.

The alternative is to concede to a system wherein the judiciary basically selects itself, and reserves the right to freestyle new constitutional doctrines out of whole cloth.

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Henry Hill is News Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.