Northern Ireland of devolution issues, Reference by the Attorney General for (Northern Ireland) [2019] UKSC 1

The Attorney General for Northern Ireland referred five questions about the functioning of Northern Ireland departments in the absence of ministers. The Supreme Court adjourned the reference, holding that the issues should be determined against a clear factual matrix in pending interconnector litigation.

Facts

The Attorney General for Northern Ireland (AGNI) referred five questions to the Supreme Court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (NIA). The reference arose against the background that the Northern Ireland Assembly and its Executive Committee had not been functioning since January 2017, meaning many decisions had been taken by civil servants or departments rather than ministers.

In In re Buick [2018] NICA 26, the Northern Ireland Court of Appeal held that the Department for Infrastructure did not have the power to grant planning permission for a major waste incinerator in the absence of a minister. No appeal was pursued. Parliament subsequently enacted the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, section 3(4) of which provided that the absence of ministers was not to prevent senior officers exercising departmental functions; but that Act was time-limited.

The five questions concerned: (1) whether section 28A(1) NIA required departments, in the absence of ministers, to act in accordance with the Ministerial Code; (2) whether section 28A(10) deprived departments of decision-making authority; (3) whether the function in section 20(4)(a) existed absent a programme under paragraph 20 of Strand One of the Belfast Agreement; (4) whether sections 20(3) and 28A(5) limited departmental decision-making without an Executive Committee or minister; and (5) whether the requirement in section 28A(5) existed without such a programme.

Alternative A5 Alliance, which had challenged a decision taken by a civil servant regarding a dual carriageway, intervened in the preliminary hearing.

Issues

The preliminary issue before the court was whether the matters referred by the AGNI were properly to be regarded as ‘devolution issues’ within paragraph 1(d) of Schedule 10 NIA, defined as “any question arising under this Act about excepted or reserved matters”, and whether the reference under paragraph 34 was an appropriate use of that power.

Arguments

AGNI and Advocate General

They argued the questions concerned reserved matters under paragraph 42(a) of Schedule 3 NIA, which includes matters with which sections 19, 20, 28, 28A and 28B solely or mainly deal. Because there were no ministers, legal uncertainty existed as to whether the Ministerial Code applied to civil servants. Clarification was said to be in the public interest. Reliance was placed on Lee v Ashers Baking Co Ltd [2018] 2 WLR 1294 to support the permissibility of a reference outside live proceedings.

Intervener (Alternative A5 Alliance)

The intervener submitted the issues did not concern reserved or excepted matters and did not “arise under” NIA. Section 28A itself was not a reserved matter; a matter had to exist, fall within the section, and be solely or mainly dealt with by it. The questions were purely theoretical and academic, divorced from any factual matrix. In any event, paragraph 1(a) of Schedule 2 removed departmental functions from the relevant categories. The intervener further argued that using paragraph 34 was an abuse, because the AGNI could have proceeded under paragraph 33 during the Buick proceedings or sought permission to appeal.

Judgment

Lord Kerr (with whom Lady Hale and Lord Reed agreed) held there was considerable force in the intervener’s arguments, but they did not have the “quality of unanswerability” required to dispose of proceedings on a preliminary issue.

The court declined to rule on the preliminary issue or the substantive questions. It emphasised that, in general, legal questions should be determined against a clear factual matrix rather than as theoretical or academic issues. Pending litigation concerning a proposed electricity interconnector between Northern Ireland and Ireland potentially raised most, if not all, of the issues in the reference, and had been stayed pending this reference.

The court held the stay was inappropriate and should be lifted. The interconnector proceedings would allow the issues to be ventilated against a clear factual backdrop and enable the Northern Ireland courts to consider the practical reality. The court rejected the AGNI’s suggestion that he could not become involved in those proceedings absent a devolution notice, holding that nothing in Schedule 10 precluded him from applying to intervene or seeking to persuade the court to issue a devolution notice.

The court also noted, without deciding, that paragraph 34 is not necessarily an open-ended facility; questions may arise about its use where proceedings existed in which paragraph 33 could have been invoked, or where other proceedings are in existence in which the issue could be referred.

The reference was adjourned, with the AGNI invited, if necessary, to apply to intervene in the interconnector proceedings.

Implications

The decision reinforces the principle that the Supreme Court’s reference jurisdiction under Schedule 10 NIA is not an appropriate vehicle for resolving abstract or academic legal questions. Where a concrete factual setting is available in live litigation, that route is to be preferred, allowing the Northern Ireland courts to consider the issues in their practical context first.

The judgment signals that the scope of paragraph 34 may be subject to future limitation, particularly where the AGNI has not used paragraph 33 in related proceedings or where live proceedings could accommodate the devolution issue. It also clarifies that the AGNI is not barred from seeking to intervene in proceedings where no devolution notice has been served.

For practitioners advising on the operation of devolved government in Northern Ireland during the absence of ministers, the substantive questions regarding sections 20, 28 and 28A NIA remain unresolved by the Supreme Court and await determination in a suitable factual context. The judgment is significant as a procedural marker about the proper use of the devolution reference mechanism.

Verdict: The reference was adjourned. The Supreme Court declined to determine the preliminary issue or the substantive questions referred, directing that the stay on related interconnector litigation in Northern Ireland be lifted so the issues could be considered against a clear factual matrix.

Source: Northern Ireland of devolution issues, Reference by the Attorney General for (Northern Ireland) [2019] UKSC 1