Elections in UK Law

The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.

I think that section 16(8) operates in a similar but in one respect significantly different way. Like sections 16(2) and (3) it does not implicitly confer a power to elect the First Minister and deputy First Minister; it assumes the existence of such a power the source of which lies elsewhere.

For example, FRS 102, the Financial Reporting Standard applicable in the UK, defines “expenses” as “decreases in economic benefits during the reporting period in the form of outflows or depletions of assets or incurrences of liabilities that result in decreases in equity, other than those relating to distributions to equity investors.”

An example discussed in oral argument which provides a good means of testing these conclusions is a case involving spending for referendum purposes on travel and accommodation. Suppose that during a referendum campaign volunteers affiliated with a particular campaign organisation (which is a permitted participant) travel from London to Birmingham by rail to attend a public meeting and stay in a hotel overnight.

Subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts — see Civil Service Unions case cited above, at pp 397–398. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.

In our view, this important provision, which arose out of the Belfast Agreement, gave the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland. It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the United Kingdom from the European Union.

In our judgment, it is clear that the introduction of a Bill into Parliament forms part of the proceedings within Parliament. To order the defendants to introduce a Bill into Parliament would therefore be to order them to do an act within Parliament in their capacity as Members of Parliament and would plainly be to trespass impermissibly on the province of Parliament.