About this case:

• Citation:
  [2019] UKSC 1
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Kerr

Stating that it was desirable for legal questions to be determined against the background of a clear factual matrix rather than as theoretical or academic issues of law, Lord Brian Kerr of Tonaghmore adjourned the reference of five questions and said that the AGNI should apply to intervene in litigation involving the north-south interconnector which potentially raised all of the issues in the AGNI’s reference.

Background

With the NI Assembly and its Executive Committee not functioning since January 2017, many of the decisions usually taken by the ministers and the executive have either had to be deferred or they have been taken by civil servants or departments of the Civil Service.

In the NI Court of Appeal in In re Buick [2018] NICA 26, it was held that the Department for Infrastructure did not have the power to make the decision to grant planning permission for a major waste incinerator in the absence of a minister.

In this reference to the Supreme Court by the Attorney General for Northern Ireland (AGNI), it was submitted that Buick significantly impacted the functioning of NI departments in the absence of ministers, and that the judgment did not answer all the questions raised in this reference.

Since the Department for Infrastructure did not appeal the decision, the Supreme Court did not have the opportunity to consider the issues raised by the reference before now.

Following Buick, Parliament enacted the (time limited) Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. The provisions of this Act only extend until 26 March 2019, and may be extended for five months.

Therefore, the AGNI and the Advocate General for Northern Ireland argue that the Supreme Court should clarify the issues by ruling on the following questions:

1. Does section 28A(1) of Northern Ireland Act 1998 (NIA) require a NI Department in the absence of a Minister to act in accordance with the NI Ministerial Code?
2. Does section 28A(10) of the NIA deprive a NI Department of its authority to take decisions under any statute empowering or requiring it to take decisions?
3. Does the function in section 20(4)(a) of the NIA exist when there is no programme as referred to in paragraph 20 of Strand One of the Belfast Agreement?
4. Does section 20(3) of NIA, taken together with section 28A(5) of NIA, limit the power or responsibility of a NI Department to take decisions under any statute empowering or requiring it to act when there is no Executive Committee and no NI Minister is in post?
5. Does the requirement referred to in section 28A(5) of the NIA exist when there is no programme as referred to in paragraph 20 of Strand One of the Belfast Agreement?

Preliminary Hearing

The Supreme Court convened a preliminary hearing to consider whether the matters referred to by the AGNI were devolution issues.

Alternative A5 Alliance (an unincorporated association opposing the construction of a new dual carriageway in NI) applied to intervene on the preliminary issue. It submitted that the issues raised by the reference were not devolution issues because they do not satisfy two fundamental requirements under paragraph 1(d) of Schedule 10 to the NIA, namely:

1. They do not concern reserved or excepted matters
2. The referred questions “do not arise” under NIA

The AGNI and the Advocate General said the questions are about reserved matters; that they concern the meaning of provisions which fall within the class of reserved matters specified in paragraph 42(a) of Schedule 3 to NIA which provides that reserved matters include:

“Any matter with which a provision of this Act falling within the following subparagraphs solely or mainly deals: (a) In Part III, sections 19, 20, 28, 28A and 28B …”

Alternative A5 Alliance contended that section 28A was not itself a reserved matter – and that the subject must instead fall within the provision. Therefore it was submitted that there must be a matter in existence – and that the reference “poses purely theoretical questions, entirely unrelated to any factual matrix against which the conditions intrinsic to section 28A might be tested”.

Alternative A5 Alliance also argued that the AGNI should have used the referral power under Paragraph 33 of the Schedule to the NIA (where he is a party to the proceedings), and that to permit him to use the paragraph 34 referral power (where there are no proceedings in train) would be “tantamount… to allowing him to bypass the normal requirement of applying for permission to appeal” to the Supreme Court and “would constitute an abuse”.

Decision

Lord Kerr said that it was generally desirable that legal questions be determined against the background of a clear factual matrix rather than as theoretical or academic issues of law – he said that this opportunity existed in the form of litigation concerning the validity of a proposed electricity interconnector between Northern Ireland and Ireland, which potentially raises most if not all of the issues in the AGNI’s reference to the Supreme Court.

Lord Kerr also said that those proceedings would have the advantage of having the NI courts “deal with those issues by reference to the practical reality of their impact on society there, so that an insight into the outworking of the competing arguments can be obtained”.

Dismissing the AGNI’s suggestion that it was not open to him to become involved in those proceedings without the service of a devolution notice, Lord Kerr said there was nothing in Schedule 10 to exclude him from applying to intervene in the proceedings – nor was he precluded from seeking the issue of a devolution notice.

Lifting the stay on the proceedings (which had been in place pending the outcome of the present reference), and adjourning the present reference, Lord Kerr said that the AGNI should apply to intervene in those proceedings in order to canvass the issues which arise on the current proposed reference.

• by Seosamh Gráinséir for Irish Legal News