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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