Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court
| Author | Brice Dickson,Conor McCormick |
| Published date | 01 November 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12545 |
| Date | 01 November 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12545
THE
MODERN LAW REVIEW
Volume 83 November 2020 No. 6
Northern Ireland Dimensions to the First Decade
of the United Kingdom Supreme Court
Brice Dickson and Conor McCormick ∗
This article focuses on the relationship between the United Kingdom Supreme Court and
Northern Ireland over the course of a constitutionally significant period of time, namely the
first decade of the Court’s existence. It does this by exploring what difference the Court has
made to the law of Northern Ireland, what significance the cases from Northern Ireland have
had for the law in other parts of the United Kingdom, and what part has been played in the
Court’s work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by
the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has
established itself as an indispensable component of the legal system of Northern Ireland.
INTRODUCTION
This article analyses connections between the United Kingdom Supreme Court
(UKSC) and Northern Ireland during the first 10 years of the Court’s existence
(October 2009 to September 2019). It assesses what difference the Court
has made to the law of Northern Ireland,1what significance the cases from
Northern Ireland have had for the law in other parts of the United Kingdom,
∗Respectively Emeritus Professor of International and Comparative Law and Lecturer in Law at
Queen’s University Belfast. We are most grateful to Gordon Anthony, Gr ´
ainne McKeever and
Jane Rooney for their constructive comments on an earlier version of this article. We are also
grateful to the anonymous reviewers of a later draft. Their comments were most helpful to us
when revising it for publication. Responsibility for the final version is ours alone. Because we
knew that in December 2019 Lord Kerr was due to give a lecture on the impact of the UKSC
on the law of Northern Ireland, we took the liberty of sending him a draft of the article in
advance of his talk, not for his comments but for his information. His lecture can be viewed
at https://www.supremecourt.uk/watch/ten-year-anniversary/lord-kerr.html (all URLs were last
accessed on 2 May 2020).
1 Unfortunately, the literature on the law of Norther n Ireland is relatively sparse. For a general
introduction see B. Dickson, LawinNorthernIreland(Oxford: Hart Publishing, 3rd ed, 2018); for
more specialised books see for example G. Anthony, Judicial Review in Northern Ireland (Oxford:
Hart Publishing, 2nd ed, 2014) and C. Turner, L. Quinn and T. Murphy (with R. Shields),
The Law of Property in Northern Ireland (Newtownards, County Down: Colourprint Educational,
2014).
C2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1133–1167
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe orig inal workis properly cited.
Northern Ireland Dimensions to the First Decade
and what part has been played in the Court’s work by the sole Justice from
Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for
Northern Ireland (AGNI), John Larkin QC. The article begins by considering
the applications for permission to appeal from decisions in Northern Ireland. It
then reviews all 28 sets of judgments delivered by the UKSC on the Norther n
Ireland appeals it heard. The sets of judgments are categorised into three groups
– those relating directly or indirectly to the conflict in Northern Ireland,
those relating more generally to criminal law or criminal procedure, and the
remaining cases, all of which are concerned with fundamental rights and/or
procedural justice. The cases raise a plethora of controversial issues, such as
the scope of the right to life, the rules on sexual orientation and political
opinion discrimination by providers of services, and the restrictions on access to
abortion. Within each group the focus is on the rules and principles enunciated
by the Justices, the errors sometimes made by courts in Northern Ireland, the
influence of Lord Kerr and the parallels, if any, between the UKSC’s approach
in the Northern Ireland appeals and its approach in appeals from the two
jurisdictions in Great Britain. The following section examines the role played
by the AGNI, who has been active in referr ing matters to the Court and in
intervening in other cases. It is there that two remaining sets of judgments
in references from Northern Ireland are mentioned. In a short conclusion we
consider the impact of the UKSC on Northern Ireland law in light of the
foregoing analyses.
APPLICATIONS FOR PERMISSION TO APPEAL
The UKSC issues judgments in only a fraction of the cases brought before
it, which underscores the importance of the process by which it selects the
cases it wishes to hear.2Le Sueur has explained that the original precursor to
the modern procedure was introduced in 1934 ‘as a way of promoting access to
justice’, but that over the course of some minor reform in the 1960s it had
come to be ‘seen primarily as a case management tool’.3Unconvinced by the
continuing applicability of these rationales for the procedure, Le Sueur went
on to argue that ‘the process of selecting cases [is] one of the main ways by
which a top-level court defines its role in the constitutional system and sets its
agenda’.4This normative interpretation of the case selection process motivated
us to investigate whether any trends have emerged in respect of determinations
relating to Northern Ireland matters during the UKSC’s first decade.
The current procedure entails an application for ‘permission to appeal’,
which requires applicants to demonstrate that their case raises ‘an arguable
point of law of general public importance’.5Applications are normally decided
2 On the process employed by the Appellate Committee of the House of Lords prior to the
creation of the UKSC, see B. Dickson, ‘The processingof appeals in the House of Lords’ (2007)
123 LQR 571.
3 A. Le Sueur, ‘Panning for Gold: Choosing Cases for Top-Level Courts’ in A. Le Sueur (ed),
Building the UK’s New Supreme Court (Oxford: OUP, 2004) 274 (emphasis in or iginal).
4ibid.
5 UKSC Practice Direction 3, para 3.3.3, available online at https://www.supremecourt.uk/
procedures/practice-direction-03.html.
1134 C2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1133–1167
Brice Dickson and Conor McCormick
by a panel of three Justices and, while any member of the Court can now
view the full list of petitions for permission electronically if they wish to do
so, Paterson tells us that it is relatively rare for Justices to intervene in an
application if they have not been allocated to the relevant panel.6It is clear,
moreover, that applications tend to be allocated to Justices partly on the basis
of their judicial ‘specialisms’,7which means, for example, that Lady Hale or
Lord Wilson have commonly been allocated applications involving family law
while Lord Carnwath and Lord Briggs are usually called upon for applications
involving Chancery or commercial issues. It should also be noted that panels
have developed a practice of sometimes offering slightly less for mulaic reasons
for their decisions to refuse permission to appeal, although the Court’s Practice
Directions were amended in 2013 to make it clear that no precedential value
should be attached to reasons provided in this setting.8
Having analysed a range of figures published by the UKSC in its Annual
Reports,9alongside the tabular summary of permission to appeal decisions
published by the Court every month or so (which do not always exactly tally
with the former),10 we can make four statistical observations about its treatment
of applications emanating from Northern Ireland in the years 2009 to 2019.
Firstly, the number of per mission to appeal applications received by the
UKSC from Northern Ireland was disproportionate to Northern Ireland’s share
of the UK population: of the total of 2,235 applications received by the Court,
132 (six per cent) came from Northern Ireland, even though its share of the UK
population is just 2.8 per cent.11 The causes of this relatively strong appetite
6 A. Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart Publishing,
2013) 68-69.
7ibid.
8 n 5 above. This amendment may have been prompted by Knight’s 2012 critique of the Court’s
then emerging practice of providing bespoke reasons: C.J.S. Knight, ‘The Supreme Court gives
its reasons’ (2012) 128 LQR 477. The standard reason given for refusing an application for
permission to appeal is as follows: ‘Permission to appeal [is] refused because the application does
not raise a point of law of general public importance which ought to be considered at this time
bearing in mind that the case has already been the subject of judicial decision and reviewed
on appeal’. This form of words tells us nothing about why some points of law ‘ought to be
considered’ on appeal while others ought not to be, given that all the cases will already have
been the subject of judicial decision and the vast majority will already have been reviewed on
appeal.
9 The Annual Reports and Accounts for the UKSC, which are based on the reporting year
(April to March), rather than the legal year (October to September), can be accessed at
https://www.supremecourt.uk/about/planning-and-governance.html. The Report for 2018-
19 does not contain all the permission to appeal figures that can be found in the Reports from
previous years, but we were able to fill in the gaps by way of a direct request for the missing
information.
10 For example for 2017-18 the Annual Report states (ibid, 26) that 65 PTA applica-
tions were granted and 130 refused but, according to the seven tables covering that
period, 67 PTA applications were granted and 125 refused. The PTA tables are up-
loaded to the ‘Latest news’ section of the UKSC website at https://www.supremecourt.uk/
news/permission-to-appeal.html. The Court occasionally publishes supplementary information
about PTA decisions on a dedicated webpage, for example https://www.supremecourt.uk/
news/permission-to-appeal-decisions-16-february-2018.html.
11 Office for National Statistics, ‘Population Estimates for the UK, England and Wales, Scot-
land and Northern Ireland: Mid-2018’ 26 June 2019, ch 7 at https://www.ons.gov.uk/
peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/annu
almidyearpopulationestimates/mid2018.
C2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1133–1167 1135
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