Napier (Sean) Application for Judicial Review and in the matter of decisions of the First Minister of Northern Ireland; Junior Minister Middleton of the Executive Office; The Minister for the Economy; The Minister for Education; and the Minister for the Environment, Agriculture and Rural Affairs
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 120 |
| Date | 20 December 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 120
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11718
ICOS No: 21/076610/01
Delivered: 20/12/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY SEAN NAPIER
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF THE FIRST MINISTER OF
NORTHERN IRELAND; JUNIOR MINISTER MIDDLETON OF THE
EXECUTIVE OFFICE; THE MINISTER FOR THE ECONOMY; THE MINISTER
FOR EDUCATION; AND THE MINISTER FOR THE ENVIRONMENT,
AGRICULTURE AND RURAL AFFAIRS
RULING ON APPLICATION FOR MANDATORY ORDERS
Ronan Lavery QC and Colm Fegan (instructed by McIvor Farrell, solicitors) for the
Applicant
Tony McGleenan QC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the third to fifth respondents (the Minister for the Economy; the Minister for
Education; and the Minister for Agriculture, the Environment and Rural Affairs)
___________
SCOFFIELD J
Introduction
[1] On 11 October 2021, I granted the applicant in these proceedings a declaration
in the following terms:
“The respondents’ decision to withdraw from the
North-South Ministerial Council was and is unlawful
because it frustrates, is contrary to, and is in breach of the
legal duties and responsibilities contained within Part V of
2
the Northern Ireland Act 1998 and, specifically, sections
52A and 52B.”
[2] The terms of this declaration had been agreed between the parties. I gave a
short explanatory judgment ([2021] NIQB 86 – “my earlier judgment”) setting out
the basis for the applicant’s application for judicial review and the basis on which
the declaratory relief was granted. This judgment should be read in conjunction
with my earlier judgment for ease of understanding.
[3] I also granted the applicant liberty to apply – that is to say, permission to
bring the application back before the court without the need to issue fre sh
proceedings – in the event that he wished to seek further relief from the court but in
the hope, and indeed expectation, that this would be unnecessary. Regrettably, the
respondents have failed to remedy the admitted unlawfulness to which their
(partial) boycott of the North-South Ministerial Council (NSMC) gives rise.
[4] The applicant now asks the court to grant further relief, in the form of an
order or orders of mandamus, requiring the respondents (and, for the moment,
principally the first respondent, the First Minister) to take certain actions, backed
with the threat of sanctions for contempt of court in the event of non-compliance.
This judgment addresses the issues of principle relating to the grant of such relief in
the present circumstances.
Factual background
[5] The factual background giving rise to these proceedings is set out briefly in
paragraphs [8]-[16] of my earlier judgment. The proceedings have their genesis in a
speech made by Sir Jeffrey Donaldson MP, the leader of the Democratic Unionist
Party (DUP), on 9 September 2021, in which he indicated an intention on the part of
DUP Executive Ministers to “immediately withdraw from the structures of Strand
Two of the Belfast Agreement relating to north south arrangements…”, that is to say,
the NSMC and related all-island implementation bodies.
[6] At the time of my earlier judgment, several meetings of the NSMC had not
proceeded as a result of the respondents’ withdrawal from it. In light of the
evidence put before the court and the respondents’ response to the proceedings, I
was satisfied that there was a policy on the part of DUP Ministers of not attending at
NSMC meetings and that this was calculated to thwart the operation of that Council.
As I also recorded, the respondents quickly conceded that this was unlawful.
[7] Since the grant of the declaration in these proceedings, some NSMC meetings
have proceeded and others have not. For instance, on 14 October a sectoral meeting
in relation to health and food safety was able to proceed. It was attended by
Minister Swann of the Ulster Unionist Party (UUP) as the appropriate minister,
along with Junior Minister Kearney of Sinn Féin as the accompanying minister. It
has been suggested that the DUP party position allows for Strand Two business
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