A 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

 
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[2020] UKSC 2

Supreme Court

Hilary Term

[2020] UKSC 2

before

Lady Hale

Lord Reed

Lord Kerr

A 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 (Northern Ireland)

Attorney General for Northern Ireland

Christine M O'Neill

(Instructed by Office of the Attorney General for Northern Ireland)

Department for Communities

Tony McGleenan QC

Paul McLaughlin BL

Laura Curran BL

(Instructed by Departmental Solicitor's Office, Department of Finance and Personnel)

Heard on 27 November 2019

Lord Kerr

( with whom Lady Hale and Lord Reed agree)

1

This is an application by the Attorney General for Northern Ireland to refer to this court what is claimed to be a devolution issue. The reference is made under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. In material part it provides:

“. the Attorney General for Northern Ireland … may refer to the Supreme Court any devolution issue which is not the subject of proceedings.”

2

By virtue of paragraph 1(b) of Schedule 10, a devolution issue includes a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24 of the 1998 Act. And section 24, among other things, provides (in subsection 1(a)) that a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the rights under the European Convention on Human Rights (“ECHR”).

3

By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State for Work and Pensions commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as “No 1 relevant districts.” Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which, the Attorney General contends, requires action by the Northern Ireland Department for Communities, which is one of the Northern Ireland ministerial departments. The 2017 Order defines the “No 1 relevant districts” as “the postcodes specified in the table in the List of the No 1 Relevant Districts.” It is the Department for Communities which must issue such lists. The same holds true for a second order made by the Secretary of State relating to “No 3 relevant districts” and “No 2 relevant districts.” The commencement order was drafted so that Universal Credit could come into effect if the Department published a list of postcodes, which postcodes together make up the district within which the benefit will commence.

4

The basis for the Attorney's reference is his assertion that the universal credit provisions in question breach articles 8, 12 and 14 of the ECHR and article 1 of the first protocol to the ECHR and are therefore invalid per section 24 of the 1998 Act.

5

The Attorney General submits that a devolution issue arises because the provision of lists by the Department for Communities is necessary in order to give effect to the Secretary of State's commencement orders. The Department refutes this, contending that its role in issuing the relevant lists amounts to nothing more than providing administrative support to the Secretary of State. The commencement orders define the relevant territories by reference to lists of postcodes issued by the Department. The lists were not prepared, however, pursuant to any statutory or other power and do not have any independent legal force or effect, the Department says. They are incorporated by reference into the commencement orders and therefore have legal effects solely by reason of the act of the Secretary of State, not the act of the Department.

Discussion
6

Acts by the Secretary of State or by departments in Westminster do not come within the purview of section 24 of the 1998 Act. In order for a devolution issue to arise, therefore, it must be shown that an act has been carried out or a function has been discharged by a Northern Ireland Minister or a Northern Ireland department.

7

Section 1(1) of the Northern Ireland (Welfare Reform) Act 2015 stated that Her Majesty could make provision for, inter alia, social security and child support maintenance in Northern Ireland by way...

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