On 26 June 2018, the hitherto hotly-debated European Union (Withdrawal) Bill became an Act of Parliament (“2018 Act”) after a tennis match of amendments and counter-amendments between Parliament’s two Houses. Much has been said by leading academics about the contents of the 2018 Act both during its stormy passage through Parliament and after its enactment (see for example Professors Paul Craig, Alison Young and Mark Elliott). However, there is one part of the 2018 Act which merits a detailed examination: section 10 and its implications for the Irish border.

Section 10 of the 2018 Act creates a two-fold duty for Crown Ministers: that they must not act incompatibly with the Northern Ireland Act 1998 (“NIA 1998”) and must have “due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50”. The relevant part of that report, at [47] admits, rather unsurprisingly, “North-South cooperation relies to a significant extent on a common European Union legal and policy framework. Therefore, the United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation” and at [49] declares “In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”. Section 10(2) of the 2018 Act further purports to guarantee continued North-South cooperation and prohibits the creation of any border infrastructure after exit day which did not exist prior to exit day. All of this raises two important questions: what precisely is North-South cooperation and how might it be affected by operation of the 2018 Act? For answers, we must begin with an examination of the British-Irish Treaty 1998 or Belfast Agreement (“the Treaty”).

Strand Two of the Treaty created the North-South Ministerial Council (“NSMC”), peopled with Ministers from Northern Ireland and the Republic of Ireland and tasked, inter alia, with “[taking] decisions by agreement on policies and action at an all-island and cross-border level to be implemented […]”, with specific policy areas such as tourism, travel, agriculture and the environment enumerated in the Annex to Strand Two. The NSMC implements policies through the various “implementing bodies” established by the Treaty and relevant legislation from Dublin and Westminster, all of which enshrine statutory duties for Ministers of both North and South to attend meetings of the NSMC. Far from the mere symbolism of well-choreographed media appearances, the NSMC has over the past 20 years supervised the growing interconnectedness of the two economies of Ireland, including the establishment of a single energy market, common food-safety campaigns and common management of waterways throughout the island. Thus, the continued operation of the NSMC and continued compliance with North-South cooperation as mandated by section 10 of the 2018 Act necessarily requires the maintenance of a borderless ‘Irish space’ to the extent provided in the Treaty. The maintenance of the Irish space is uncontroversial in circumstances where both the UK and Ireland are members of the Common Market and ensure the continued application of the Four Freedoms under EU law. So far, so good.

The future of the Irish space however starts to unravel when one considers the operation of the 2018 Act. The backstop solution referred to in the joint report above envisions a unilateral commitment by the UK to maintain “full alignment” with the Common Market to the extent necessary to maintain North-South cooperation and specifically the Irish space. This backstop, the subject of many a controversy, has already been replaced by the Prime Minister, whose proposals have in turn been rejected by the EU. We are thus back to the pre-joint report days with no solution on the horizon, all the while the clock continues to count down to a deadline for a future UK-EU agreement stipulated in the 2018 Act itself. The spectre of a no-deal Brexit has moreover not been put to rest. In the event of no deal being reached between the UK and the EU, specifically concerning a solution to the Irish border, the legal and constitutional consequences are (for lack of a better term) interesting to consider.

The singular purpose of the 2018 Act is to provide for the withdrawal of the UK from the EU, with the terms of that withdrawal being left to the ongoing negotiations between the UK and the EU. If these terms involve a hard Brexit, exiting the Customs Union and Common Market with no provision for a continued partnership, a customs border will be an unavoidable consequence unless the UK unilaterally maintains customs alignment with the EU, a possibility already rejected by Whitehall, as above. Any such customs border will necessarily bisect the Irish space. Take for example the Single Energy Market (“SEM”) for Ireland which went live on 1 November 2007. The memorandum of understanding for the SEM provides for inter alia a common framework for trading of wholesale electricity, licensing provisions and contractual arrangements, all of which led to reciprocal legislation in Dublin and Westminster. Moreover, the SEM has to be considered against the backdrop of the EU’s proposals towards a common energy market across the EU. In the event of a hard Brexit and divergence between energy market policies, licensing and contracting provisions in Great Britain and the EU, Northern Ireland will either follow Great Britain or the SEM within the EU but cannot follow both. This is particularly vital when considering that devolved institutions, in this case the Northern Ireland Assembly, are expressly enjoined from interfering with regulations made by UK ministers on the application of retained EU law, thus binding devolved institutions into safeguarding the UK internal market (2018 Act, section 12(6)). We must also consider that the exercise by Ministers of the extensive Henry VIII powers under the 2018 Act is itself subject to the section 10 duties, thus potentially barring the amendment of any retained EU law which dilutes North-South cooperation.

In the event that a hard Brexit frustrates both the NIA 1998 and the 2018 Act, how will such a conflict be resolved?

As long ago as 2002, the House of Lords in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 recognised the NIA 1998 as “in effect a constitution” (Lord Bingham of Cornhill at [11]). The 2018 Act is also likely to be similarly considered constitutional in nature, if for nothing else, than because it will repeal the European Communities Act 1972, which is undoubtedly constitutional (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at [62] per Laws LJ), and will as a result chart a new relationship between citizen and State by removing the existing relationship vis-à-vis EU law. In Thoburn, Laws LJ declared that a constitutional statute may only be repealed “by unambiguous words on the face of the [repealing] statute” (Thoburn [63]) thus preserving parliamentary sovereignty. In this case, the 2018 Act does not repeal the NIA 1998 in any way. However, as discussed above, it may operate to frustrate the purpose of the NIA 1998, even if by the necessary implication of implementing a hard Brexit. In Robinson at paragraph 11 of his speech, Lord Bingham held that the NIA 1998 should be interpreted “generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody”. The same can be said of the 2018 Act. Both Acts create potentially conflicting duties for devolved and non-devolved authorities: maintain the UK internal market but do not breach the cross-border provisions of the Treaty and amend retained EU law as needed (for example to implement different trade agreements) without bisecting the Irish space.

Aside from the legal issues, discharge of these duties throws up logical obstacles also. Not since the 1600s has a court come close to considering whether there is any jurisdiction to say, let alone do anything in the face of such conflict. In Bonham v College of Physicians [1609] 77 E.R. 646, Sir Edward Coke CJ declared, “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul [sic] it, and adjudge such Act to be void” [652]. Though subsequently brutally maligned as “a foolish doctrine alleged to have been laid down extra-judicially” (John V. Orth, “Did Sir Edward Coke Mean What He Said?” (1999) 16 Constitutional Commentary 33 at 37), it is perhaps worth considering Coke’s observations in these unprecedented times.

Compounding the problem is the continued lack of a functioning Northern Ireland Assembly at Stormont since 2017. As Keegan J emphatically declared in the recent ruling in Re Buick’s application for judicial review [2018] NIQB 43, “I do not consider that Parliament can have intended that […] decision making would continue in Northern Ireland in the absence of Ministers without the protection of democratic accountability”, drawing a sweeping (if unsurprising) conclusion that the devolved Northern Ireland departments cannot take “major policy decisions” in the absence of Ministers appointed from a properly functioning Assembly (Buick [42]), given that the constitutional infrastructure of Northern Ireland makes Ministerial oversight of departments mandatory (Article 4(1) of the Departments (Northern Ireland) Order 1999). The Northern Ireland Court of Appeal reserved its judgment in Buick after two days of submissions, but it is difficult to see how the central holding of Buick could be reversed, even with a nod to Lord Bingham’s “generous and purposive” approach to the NIA 1998, without effectively ignoring the democratic accountability so central to the concept of an elected, devolved administration. Without such an administration or direct rule on the horizon, neither Northern Ireland civil servants nor the Secretary of State for Northern Ireland could exercise the powers necessary to implement any kind of Brexit. We would then be left with constitutional frustration exacerbated by constitutional paralysis.

As the debate on ‘taking back control’ rages both within Westminster and without, it will likely be up to the judiciary to resolve conflicts such as the above. The consequent constitutional acrobatics will certainly give pause for thought and make for interesting (and perhaps entertaining) reading.

Anurag Deb, Paralegal at KRW LAW LLP (Belfast) and current BPTC student, University of Law

(Suggested citation: A. Deb, ‘The Unquiet Irish Border Problem: Implications in the Aftermath of the Withdrawal Act’, U.K. Const. L. Blog (5th Jul. 2018) (available at https://ukconstitutionallaw.org/))