Robinson v Secretary of State for Northern Ireland

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT
Judgment Date25 Jul 2002
Neutral Citation[2002] UKHL 32

[2002] UKHL 32

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hutton

Lord Hobhouse of Wood-borough

Lord Millett

Robinson
(Appellant)
and
Secretary of State for Northern Ireland

And Others

(Respondents)(Northern Ireland)
LORD BINGHAM OF CORNHILL

My Lords,

1

The issue in this appeal is whether the election by the Northern Ireland Assembly of a First Minister and Deputy First Minister on 6 November 2001, more than six weeks after the restoration of devolved government in Northern Ireland on 23 September 2001, was legally valid.

2

For half a century Northern Ireland enjoyed devolved government under the Government of Ireland Act 1920. Under that Act elections were held and governments formed on straightforward majoritarian principles. Since, throughout the period, supporters of one (unionist) party were numerically superior, that party dominated the government with the effective exclusion of minority (in particular, nationalist) parties from any share in the exercise of power. In 1972 (for reasons which the House need not examine in this appeal) devolved government was suspended. After some trials and much tribulation, agreement on the future government of Northern Ireland was eventually reached at multi-party talks. The effect of this agreement (known as the Belfast Agreement) was set out in a command paper (Cm 3883) presented to Parliament in April 1998. The object of the Belfast Agreement was to achieve "reconciliation, tolerance and mutual trust" and "the protection and vindication of the human rights of all" (Declaration of Support, para 2). The parties committed themselves to "partnership, equality and mutual respect" (ibid, para 3). They also pledged themselves in good faith to work to ensure the success of the arrangements to be established under the Agreement (ibid, para 5). A new Assembly, operating where appropriate on a cross-community basis, was to be the prime source of authority in respect of all devolved responsibilities (Strand One, para 4).

3

The Northern Ireland Act 1998 was enacted to implement the Belfast Agreement, as the long title to the Act and section 3(1) make clear. The purpose of the Act (so far as relevant to this appeal) is to provide for the restoration of devolved government in Northern Ireland but on a basis significantly different from that provided under the 1920 Act. There is to be a new Northern Ireland Assembly. There are also to be a First Minister and Deputy First Minister ("FM" and "DFM"). And there are to be up to ten Ministers, acting as the political heads of Northern Ireland departments. But in respect of each of these key elements the Act provides mechanisms to prevent the exercise of power by either of the two main communities, unionist and nationalist, to the exclusion of the other. Thus members of the Assembly are to be elected on a single transferable vote (section 34(2)), to ensure proportionate representation of differing political opinions. Ministerial offices are to be allocated according to a formula set out in section 18, the object of which is to relate the number of offices held and the choice of offices to the number of seats held in the Assembly. Similar safeguards are contained in the provisions of section 16 governing the important offices of FM and DFM which, since they lie at the heart of this appeal, should be cited in full:

"(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the deputy First Minister.

(2) Each candidate for either office must stand for election jointly with a candidate for the other office.

(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

(4) The First Minister and the deputy First Minister -

(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and

(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.

(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office -

(a) during any absence or incapacity of the holder; or

(b) during any vacancy in that office arising otherwise than under subsection (7)(a);

but a person shall not have power to act by virtue of

paragraph (a) for a continuous period exceeding 6 weeks.

(6) The First Minister or the deputy First Minister -

(a) may at any time resign by notice in writing to the Presiding Officer; and

(b) shall cease to hold office if he ceases to be a member of the Assembly otherwise than by virtue of a dissolution.

(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other -

(a) shall also cease to hold office at that time; but

(b) may continue to exercise the functions of his office until the election required by subsection (8).

(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.

(9) Standing orders may make provision with respect to the holding of elections under this section.

(10) In this Act 'the pledge of office' means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4)."

4

The key role of the FM and DFM was recognised by Kerr J who gave judgment in this case at first instance ( 21 December 2001, unreported, p 11), and also by all three members of the Court of Appeal of Northern Ireland ( 21 March 2002, unreported; see the judgments of Carswell LCJ, p 13; Nicholson LJ, p 4; and McCollum LJ, p 6). The FM and DFM were seen as the directing members of the new executive (see the Belfast Agreement, Strand One, paras 17-20). The unusual requirement that the FM and DFM be elected jointly, and that their election be conditional on obtaining majority support from both designated unionists and from designated nationalists voting in the election, is not hard to understand. It was plainly envisaged that if both candidates belonged to one party or group of parties, there would be no or no adequate support from members belonging to the opposing party or group of parties. So the joint candidates had to command an adequate level of support from both sides, a requirement which may perhaps have been intended to encourage the nomination of candidates holding moderate rather than extreme political views.

5

While those who drafted and enacted the 1998 Act no doubt hoped that the ambitions expressed in the Belfast Agreement would be fulfilled and achieved, it seems unlikely that the transition to harmonious cross-community government was expected to be wholly free of difficulty. Two parties which had participated in the earlier stages of the negotiations leading to the Belfast Agreement had withdrawn some months before the Agreement had been reached. There was an enduring legacy of animosity and distrust to overcome. Thus difficulty in securing election of a FM and DFM was to be apprehended. There might (so far as permitted by standing orders) be procedural challenges and filibusters. There might be applications for judicial review. There might simply be a failure or refusal to agree on joint candidates. So it seems likely that the references to six weeks in section 16(1) and (8) of the 1998 Act were inserted (by amendment of the Bill as initially presented to the House of Commons) in order to enable the situation to be resolved if the election of a FM and DFM were to lead to deadlock or stalemate.

6

But section 16 leaves an important question unanswered: what was to happen if the six week period expired and no FM and DFM had been elected? The nearest the Act comes to answering this question is in section 32, which provides:

"(1) If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(2) A resolution under subsection (1) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.

(3) If the period mentioned in 16( 1) or (8) ends without a First Minister and a deputy First Minister having been elected, the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(4) If the Secretary of State proposes a date under sub-section ( 1) or (3), Her Majesty may by Order in Council -

(a) direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with section 31, be the date proposed; and

(b) provide for the Assembly to be dissolved on a date specified in the Order."

This section must be read in the light of the preceding section, section 31, which is in these terms:

"(1) Subject to subsection (2), the date of the poll for the election of each Assembly shall be the first Thursday in May in the fourth calendar year following that in which its predecessor was elected; and the predecessor shall be dissolved at the beginning of the minimum period which ends with that date.

(2) The date of the poll for the election of the Assembly next following the Assembly elected under section 2 of the Northern Ireland (Elections) Act 1998 shall be 1st May 2003; and the Assembly elected under that section shall be dissolved at...

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