Northern Ireland devolution issues, A Reference by the Attorney General (Northern Ireland) [2020] UKSC 2

The Attorney General for Northern Ireland sought to refer a devolution issue concerning whether the Department for Communities' provision of postcode lists to implement Universal Credit breached ECHR rights. The Supreme Court refused to accept the reference, finding the act too remote from the alleged incompatibility.

Facts

The Attorney General for Northern Ireland sought to refer a devolution issue to the Supreme Court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. The reference concerned the implementation of Universal Credit in Northern Ireland through the Welfare Reform (Northern Ireland) Order 2015. The Secretary of State for Work and Pensions made commencement orders defining relevant districts by reference to lists of postcodes. These postcode lists were compiled and issued by the Northern Ireland Department for Communities.

The Attorney General contended that the universal credit provisions breached Articles 8, 12 and 14 of the ECHR and Article 1 of the First Protocol, making them invalid under section 24 of the 1998 Act. He argued that the Department’s provision of postcode lists was necessary to give effect to the commencement orders, thus constituting an act by a Northern Ireland department that could be challenged as incompatible with Convention rights.

Issues

Primary Legal Issue

Whether the preparation and provision of postcode lists by the Department for Communities constituted an ‘act’ or ‘function’ by a Northern Ireland department sufficient to give rise to a devolution issue under the Northern Ireland Act 1998.

Secondary Issue

Whether the Supreme Court should exercise its discretion to accept the reference, given that the substantive ECHR compatibility issue was to be heard in separate proceedings.

Judgment

Lord Kerr, with whom Lady Hale and Lord Reed agreed, refused to accept the Attorney General’s reference.

The Court acknowledged that on a technical level, the compilation of postcode lists could constitute an ‘act’ under section 24:

On a theoretical or technical level, therefore, the compiling of lists of postcodes and providing them as a means of facilitating the introduction of the commencement orders is an act or the discharge of a function under paragraph 1(b) of Schedule 10 to the 1998 Act.

However, the Court identified two critical reasons for refusing the reference. First, the application was not principally directed at the act of preparing postcode lists itself:

The avowed incompatibility is said to depend on its being shown that the introduction of Universal Credit is not compatible with the ECHR. The gravamen of the charge is not to the mode of introduction of the measure but to its impact.

Second, the Court noted that the same substantive issue was due to be heard on appeal from the English Court of Appeal in R (C) v Secretary of State for Work and Pensions, scheduled for October 2020.

Lord Kerr emphasised the remoteness of the postcode lists from the actual alleged ECHR incompatibility:

The relative isolation of the ‘act’ (in this case the compilation and the provision of the postcode lists) from the actual introduction of Universal Credit in the areas covered by them throws into stark relief the inappropriateness of regarding the preparation of the lists as an act sufficient to give rise to a devolution issue.

Implications

This decision clarifies the scope of devolution issues under the Northern Ireland Act 1998. It establishes that while ‘act’ has a wide construction under section 24, courts must examine whether the act is genuinely incompatible with Convention rights, not merely ancillary or incidental to another measure that may be incompatible. The judgment confirms that the Supreme Court retains discretion to refuse references where the substantive issue is better addressed in pending proceedings where the alleged incompatibility is directly at issue.

The case also illustrates the constitutional arrangements following disagreements over welfare reform among Northern Ireland political parties, where powers were concentrated in the Secretary of State to avoid devolution disputes.

Verdict: The Supreme Court refused to accept the Attorney General’s application to refer the devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998.

Source: Northern Ireland devolution issues, A Reference by the Attorney General (Northern Ireland) [2020] UKSC 2