Reference by the Attorney General for Northern Ireland of devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (No 2)

Cite as:[2019] UKSC 1
Hand-down Date:January 14, 2019
 
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Hilary Term [2019] UKSC 1

JUDGMENT

Reference by the Attorney General for Northern Ireland of devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (No 2) (Northern

Ireland) before

Lady Hale, President Lord Reed, Deputy President Lord Kerr JUDGMENT GIVEN ON 14 January 2019 Heard on 17 December 2018 Attorney General for Northern Ireland

John F Larkin QC Attorney General for Northern Ireland (Instructed by Office of the Attorney

General for Northern Ireland)

Advocate General for Northern Ireland

Tony McGleenan QC

Paul McLaughlin BL (Instructed by Crown Solicitor's Office)

Alternative A5 Alliance

Gregory Jones QC

Richard Honey BL (Instructed by C & J Black Solicitors)

LORD KERR: (with whom Lady Hale and Lord Reed agree)

Introduction

  1. The Attorney General for Northern Ireland (AGNI) has referred five questions to this court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (NIA). This paragraph operates in conjunction with paragraph 33 of the same Schedule. Paragraph 33 provides that the AGNI (among others) may require any court or tribunal to refer to the Supreme Court any devolution issue which has arisen in proceedings to which he is a party. By virtue of paragraph 5 and the equivalent provisions for proceedings in England and Wales, and in Scotland, the AGNI always receives notice of any devolution issue which arises in any proceedings, unless he is already a party to the proceedings. Under paragraph 6 and its equivalents, he can then take part as a party to the proceedings so far as they relate to the devolution issue, and can make a reference under paragraph 33. Paragraph 34 deals with the situation where the devolution issue is not the subject of proceedings, and where paragraph 33 therefore cannot apply. In that event, he may refer to this court "any devolution issue which is not the subject of proceedings."

  2. The role of the Supreme Court on a reference under paragraphs 33 and 34 of Schedule 10 to the NIA is to provide authoritative legal guidance on the questions of law which arise on the reference. It is central to the exercise of this function that the reference be made on a devolution issue. A devolution issue is defined in paragraph 1(d) of Schedule 10 as, "any question arising under this Act about excepted or reserved matters." The reference to excepted or reserved matters reflects the circumstance that there are three types of matter in the devolved settlement established by NIA - excepted, reserved or transferred. These three categories find their predecessors in the Government of Ireland Act 1920 and various items of legislation dealing with devolution in Northern Ireland which succeeded the 1920 Act.

  3. In broad outline, transferred matters are those which the Westminster Parliament has decided should be within the competence of the Northern Ireland Assembly; reserved matters are those which are not currently within that competence but the list of reserved matters may be varied by way of Order in Council, approved in draft by Parliament - section 4(2) NIA; excepted matters are those which are not within the Assembly's competence and the list of excepted matters may only be varied by primary legislation.

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  4. The questions referred by the AGNI were these:

  5. Does section 28A(1) of NIA require a Northern Ireland Department in the absence of a Minister to act in accordance with the Northern Ireland Ministerial Code?

  6. Does section 28A(10) of the Northern Ireland Act 1998 deprive a Northern Ireland Department of its authority to take decisions under any statute empowering or requiring it to take decisions?

  7. Does the function in section 20(4)(a) of the Northern Ireland Act 1998 exist when there is no programme as referred to in paragraph 20 of Strand One of the Belfast Agreement?

  8. Does section 20(3) of NIA, taken together with section 28A(5) of that Act, limit the power or responsibility of a Northern Ireland Department to take decisions under any statute empowering or requiring it to act when there is no Executive Committee and no Northern Ireland Minister is in post?

  9. Does the requirement referred to in...

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