The problem with ‘constitutional litigation’ in the United Kingdom

30th June 2021

There has been another ‘constitutional case’ arising out of Brexit – this time from Northern Ireland.

The full judgment is here – and in summary the court holds that the Northern Irish protocol is lawful.

In doing so the court has, among other things, held that even if the protocol was in conflict with the Act of Union, the protocol would prevail.

This required the court to compare and contrast two ‘constitutional’ statutes – the Act of Union and the Brexit withdrawal legislation.

Other ‘constitutional’ cases, such as the two Miller cases, have required the courts to balance examples of the prime ministers discretion (Article 50 notification and prorogation) with the doctrine of parliamentary supremacy.

And indeed every ‘constitutional’ case in the United Kingdom requires the courts to balance different elements of the constitution.

But what no ‘constitutional’ case in the United Kingdom does is to compare and contrast a thing against a codified constitution.

In this way it could be contended that the United Kingdom does not have true constitutional litigation – at least in the way others in the world would understand the term,

A case may have constitutional themes, and engage the elements of the state, but for the court it is just an exercise in constructing powers and rights, and in interpreting legal texts, just as with any other case.

A case may thereby be constitutionally important without being what lawyers in other jurisdictions would regard a ‘constitutional’ case.

And that is why constitutionalism in the United Kingdom is – or should be – about taking checks and balances seriously.

Because ultimately that is the essence of our constitutional arrangements.

Checks and balances are all we have got.


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4 thoughts on “The problem with ‘constitutional litigation’ in the United Kingdom”

  1. I hesitate to comment on a typo, but the ‘United Kingdoom’ of the title is an interesting place to live!

  2. I’m from NI and it’s very curious that the hardline Unionists based their case on the NIP violating the 1801 Act of Union while ignoring the elephant in the room – namely the 1920 Government of Ireland Act which set down the new constitutional status of the then SI and of NI post partition.
    Both were to be self governing each with their own Parliament and while separate entities both were part of “the whole island of Ireland which will one day be reunited” thus signalling that partition was temporary.

    To allay the fears of Protestants in NI who feared an imposed reunification from Westminster the Act specified that the status of either part could only be changed by a binding referendum called by their own Parliament and that permission from Westminster was not required.

    Constitutional experts of the day compared the new self governing status of SI and NI to that of Dominion status then recently granted to Australia and Canada.
    So the constitutional status of SI and NI in the patchwork of treaties that is the UK and based on 1801 Act of Union was very much superseded by this.

    Protestant Unionists of the time fully understood this and cognisant of the fact that Catholics made up 40% of the population of NI (1926 Census) and fearing their higher birth rate sought to make temporary partition de facto permanent by a systematic program to extirpate the Irish culture and language in NI and by taking away the civil rights of Catholics and rigging the parliamentary system to ensure a permanent Protestant government.
    The result was a decades long civil war (The Troubles) which was ended in a peace process brokered by the US and the GFA agreement passed by a huge majority in a binding referendum in NI. However the militant Unionists never accepted the GFA as it was built on the foundations of the 1920 Act and they clearly understood the PR voting system means a Catholic led government soon and they greatly fear such a government will call for reunification – this is nonsense. Neither NI nor the ROI wants or are ready for reunification and if it happens it will be a generation or two away and with NI as a self governing part of a federal Ireland.
    If the UK had stayed in the borderless EU then it likely would never have formally happened.
    The DUP supported Brexit as a way to try and force a hard border across the island and in doing so break the GFA. They have failed in that aim and are a minority opinion in NI even in the Protestant community.

    The NIP is a clunky but workable solution to preserving the unique status of NI as both in the UK and a part of Ireland (and so the EU) but the price is that of a customs border in the Irish Sea and a series of bespoke NI-ROI agreements so making NI more unique and less “British” and a more Irish and European. Hence the scorched earth policy of the DUP in trying to destroy the NIP.

  3. Is this the case that was also trying to show how the protocol was contrary to Article 50 itself as well, or is that one still pending?

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