The Department for Communities published postcode lists used to introduce universal credit in Northern Ireland. Could those lists provide the basis for referring a human rights challenge to the Supreme Court? The justices declined to accept the Attorney General’s reference. The constitutional question was whether the Department’s part in implementing the policy brought it within the devolution procedure.
The proposed devolution issue
Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 allows the Attorney General for Northern Ireland to refer to the Supreme Court a devolution issue which is not already the subject of proceedings. Under paragraph 1(b), a devolution issue includes whether a purported or proposed exercise of a function by a Northern Ireland minister or department is, or would be, invalid under section 24. Section 24 provides that such a minister or department has no power to make, confirm or approve subordinate legislation, or to do any act, so far as the legislation or act is incompatible with a right under the European Convention on Human Rights. Acts of the Secretary of State or of Westminster departments fall outside section 24, so a devolution issue depends on an act or function of a Northern Ireland minister or department.
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The Attorney General said that the Universal Credit provisions breached articles 8, 12 and 14 of the Convention and article 1 of the first protocol, and were therefore invalid under section 24. The link he proposed to a Northern Ireland department was the part played by the Department for Communities in bringing those provisions into force.
The postcode lists
By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State for Work and Pensions commenced Universal Credit provisions for claims on or after 27 September 2017 by claimants living in “No 1 relevant districts”. The order defined those districts as the postcodes specified in a list which the Department for Communities had to issue. A second commencement order used the same technique for “No 3 relevant districts” and “No 2 relevant districts”. The orders were drafted so that Universal Credit could come into effect if the Department published lists of the postcodes making up each district.
Under the statutory arrangements then in force, Westminster ministers exercised relevant regulation-making powers for Northern Ireland. The distinction mattered because section 24 of the Northern Ireland Act constrained Northern Ireland ministers and departments, whereas the commencement orders were made by the Secretary of State.
Was there an act by the Department?
The Attorney General submitted that a devolution issue arose because the Department’s lists were necessary to give effect to the commencement orders. The Department said that issuing the lists was no more than administrative support. They had not been prepared under any statutory or other power and had no independent legal force or effect. They were incorporated by reference into the commencement orders, so any legal effect came solely from the Secretary of State’s act, not the Department’s.
Lord Kerr set out the competing analyses. On one view, it would be anomalous to use the wholly ancillary provision of postcode lists as the hook for a devolution issue. On the other, the lists were indispensable: without them the commencement orders could not operate. They might have been compiled by a Westminster department, in which case their preparation would have been immune from challenge as a devolution issue. In fact, a Northern Ireland department prepared them, and their existence was integral to the reforms.
He concluded that, at a theoretical or technical level, the Department’s conduct was covered. The prohibitions in section 24 are disjunctive. They separately forbid incompatible subordinate legislation and any incompatible act, including an act that is only ancillary or incidental to legislation. Compiling the lists and providing them so as to facilitate the commencement orders was therefore an act, or the discharge of a function, within paragraph 1(b) of Schedule 10.
Why the reference was not accepted
That technical conclusion was not the end of the matter. Paragraph 2 of Schedule 10 provides that a devolution issue is not to be taken to arise in proceedings merely because of a contention which appears to the court or tribunal to be frivolous or vexatious. Lord Kerr said that it would be wrong to describe the Attorney General’s application in those terms. Two related features nevertheless made it inappropriate to accept the reference.
First, the application was not principally directed at the preparation of the lists as itself incompatible with the Convention. The alleged incompatibility depended on showing that the introduction of Universal Credit was incompatible. The substance of the complaint was the impact of the measure, not the mode of its introduction. In Attorney General for Northern Ireland’s Reference [2019] UKSC 1, the Court had held that it was not appropriate to accept a reference where precisely the same issue as the Attorney General sought to refer already arose in pending proceedings in Northern Ireland. Lord Kerr said that the Court must retain a discretion whether to deal with a devolution reference where the claimed incompatibility is to be raised in proceedings in which it occupies centre stage, rather than appearing only indirectly, as it did here. This issue was due to come before the Supreme Court on appeal from the decision of the English Court of Appeal in R (C) v Secretary of State for Work and Pensions [2019] EWCA Civ 615; [2019] 1 WLR 5687, to be heard on 20 to 22 October 2020. It would be open to the Attorney General to apply to intervene in that appeal.
Secondly, the foundation of the Attorney General’s case was that introducing Universal Credit in Northern Ireland was incompatible with the Convention, not that the means of identifying the areas for its sequential introduction was incompatible. Lord Kerr referred to the discussion in Reed and Murdoch, Human Rights Law in Scotland, 4th edition (2017), paragraph 1.148, of when an act is incompatible with a Convention right. He concluded that the compilation and provision of the postcode lists were relatively isolated from the actual introduction of Universal Credit in the areas they covered. That isolation showed why it was inappropriate to regard their preparation as an act sufficient to give rise to a devolution issue.
Verdict: The Court unanimously refused the reference. It made no ruling on the compatibility of the underlying benefit provisions with Convention rights. That substantive issue could be considered in separate proceedings.
