Morgan and others v Ministry of Justice (Northern Ireland)
[2023] UKSC 14
In the matter of an application by James Hugh Allister and others for Judicial Review (Northern Ireland)
8 February 2023
[2023] UKSC 5
Supreme Court
Imagine you have an old rulebook and a new one. The new rulebook says it overrides the old one in certain cases. The court decided the new rulebook (the laws passed after Brexit) is valid, even if it changes things from the older rulebook (old laws). The court said that's okay because the government had the power to make the changes.
Key Facts
- •Judicial review proceedings challenged the lawfulness of the Northern Ireland Protocol.
- •The Protocol formed part of the Withdrawal Agreement between the UK and the EU.
- •Proceedings were initially dismissed by Colton J and the Court of Appeal.
- •The Supreme Court considered three grounds of appeal.
- •Ground one concerned Article VI of the Acts of Union 1800.
- •Ground two concerned section 1 of the Northern Ireland Act 1998.
- •Ground three concerned the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.
Legal Principles
Parliamentary sovereignty: Parliament can modify or repeal earlier legislation, including constitutional statutes, through express words or clear implication.
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151
Acts of Union are constitutional statutes; rights within them cannot be implicitly repealed or subjugated.
Appellants' submissions
Parliament can impose restrictions on the exercise of the prerogative, but it can also later authorize actions that might otherwise violate those restrictions.
Miller No. 1 [2017] UKSC 5; [2018] AC 61
Section 1(1) of the Northern Ireland Act 1998 only regulates whether Northern Ireland remains part of the UK or becomes part of a united Ireland, not other constitutional changes.
Miller No. 1 [2017] UKSC 5; [2018] AC 61
Section 42 of the Northern Ireland Act 1998's petition of concern mechanism applies to matters voted on by the Assembly, regardless of whether they are within the Assembly's legislative competence.
Appellants' submissions
Henry VIII clauses should be interpreted restrictively if there's doubt about their scope.
McKiernon v Secretary of State for Social Security, R v Secretary of State for Social Security, Ex p Britnell [1991] 1 WLR 198, R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme [2001] 2 AC 349
The European Union (Withdrawal) Act 2018, section 7A, allows for the disapplication of inconsistent domestic legislation when it conflicts with the Withdrawal Agreement.
European Union (Withdrawal) Act 2018
Outcomes
Appeal dismissed on all grounds.
Parliament, through the 2018 and 2020 Acts, explicitly authorized the Protocol and modified conflicting provisions in earlier legislation. The court found no violation of fundamental rights or the Northern Ireland Act 1998.
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