The Attorney General for Northern Ireland asked the Supreme Court to answer five questions about whether Northern Ireland departments could take decisions while ministers and the Executive were not in office. The Court did not answer them. It adjourned the reference so that the issues could, if appropriate, be argued against the facts of existing proceedings about an electricity interconnector, and said that the stay of those proceedings should be lifted.
The reference
On 14 January 2019, Lord Kerr, with whom Lady Hale and Lord Reed agreed, considered a reference by the Attorney General for Northern Ireland under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. That paragraph lets him refer to the Supreme Court a devolution issue which is not already the subject of proceedings. Paragraph 33 covers the different situation in which a devolution issue has arisen in proceedings to which he is, or can become, a party.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Both routes require a devolution issue. One question here was whether the reference concerned an excepted or reserved matter within paragraph 1(d) of Schedule 10.
The five questions
The questions concerned sections 20 and 28A of the 1998 Act. In substance, they asked whether, without ministers, an Executive Committee or an agreed programme, Northern Ireland departments were still required or limited by the Ministerial Code and by the Executive Committee’s functions.
The questions covered three practical difficulties. Did the Ministerial Code bind a department when it had no minister? Did the statutory duty to refer matters to the Executive limit departmental decisions when there was no Executive? And how could the provisions about matters outside an agreed programme operate when there was no programme?
Section 20(3) gives the Executive Committee the functions in paragraphs 19 and 20 of Strand One: discussing and agreeing cross-cutting issues, prioritising proposals, recommending a common position where necessary, and seeking each year to agree a programme with a budget linked to policies and programmes. Section 28A(5) requires the Ministerial Code to make ministers bring before the Committee any matter which section 20(3) or (4) says the Committee ought to consider.
Why the questions were referred
The Assembly and Executive Committee had not been functioning since January 2017. Decisions which ministers or the Executive might have taken had been deferred or taken by civil servants or departments. In In re Buick [2018] NICA 26, the Northern Ireland Court of Appeal held that the relevant department had no power, without a minister, to grant planning permission for a major waste incinerator. The judgment records that this was said to have significantly affected departments, and that Buick was claimed not to have answered every question now referred. The Department for Infrastructure did not seek permission to appeal, so the Supreme Court had not previously considered the issues.
Parliament then enacted the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. Section 3(4) provides that the absence of Northern Ireland ministers is not to be treated as preventing a senior officer from exercising functions of the relevant department. The Act was limited to the statutory period for forming an Executive, until 26 March 2019, although it could be extended for five months. The Attorney General and the Advocate General for Northern Ireland nevertheless asked the Court to rule, saying that clarification was in the public interest and important both to devolved government in the longer term and to restoring the Executive sooner.
Were these devolution issues?
The Court first heard argument on whether the questions were devolution issues at all. Alternative A5 Alliance intervened. It was an unincorporated association which had opposed a new dual carriageway and had challenged, by statutory review, a decision said to have been taken by a civil servant rather than a minister. The High Court had adjourned that challenge pending the reference, but the Department for Infrastructure later decided not to oppose certiorari quashing the carriageway decision. The Alliance remained as intervener.
The Alliance argued that the questions identified no concrete reserved or excepted matter arising under the Act. In its submission, a dispute about the meaning of a statutory section did not by itself satisfy that requirement.
The Attorney General and Advocate General said the questions concerned reserved matters. In particular, section 28A and the Ministerial Code refer on their face to ministers, and the absence of ministers created uncertainty about whether the Code applied to civil servants.
The Alliance also objected to the use of paragraph 34. The Attorney General’s printed case suggested that the questions broadly asked whether the provisions meant what the Court of Appeal in Buick thought they did. The Alliance said he should have used paragraph 33, or sought permission to appeal, during those proceedings, and that paragraph 34 should not be used to bypass permission. The Attorney General relied on Lee v Ashers Baking Co Ltd [2018] 2 WLR 1294, especially Lord Mance’s judgment, as allowing a reference after proceedings had ended and, all the more so, where none were involved.
Lord Kerr said there was much to be said for the view that Parliament intended references to arise in the setting of actual proceedings. Ashers was different: the Court of Appeal had wrongly treated the proceedings as finished when judgment was handed down. This Court held that they continued until disputes about the order, costs and similar matters were resolved and a final order made, so the notice there fell within paragraph 33. Paragraph 34 is not necessarily unlimited. Whether it can be used where the Attorney General did not refer or appeal in earlier proceedings, or where other proceedings exist in which paragraph 33 could be used, was left for the future.
Why the Court did not answer
The Alliance’s arguments had considerable force, but not the quality of unanswerability usually needed to dispose of proceedings on a preliminary issue. Given the course proposed, the Court said nothing further about the competing merits.
Legal questions are generally better decided against a clear factual background than as academic issues. The Court was told that litigation about a proposed electricity interconnector between Northern Ireland and Ireland, potentially raising most or all of these issues, had been stayed pending the reference. That stay was not appropriate. Those proceedings could test the arguments in a practical setting and allow the Northern Ireland courts to consider their effect there.
The Court did not accept that the Attorney General could participate only if served with a devolution notice. Nothing in Schedule 10, including paragraphs 4 to 6, prevents him from applying to intervene without one, or from asking the relevant court or tribunal to issue one.
Verdict: The Court adjourned the reference and left the five questions unanswered. It said the stay of the interconnector proceedings should be lifted and that the Attorney General should apply to intervene there if necessary.
