INTRODUCTION
This is a short article about public law in Northern Ireland and, in particular, those features of public law that can be described as “unique” to the Northern Ireland jurisdiction. Although the law of Northern Ireland shares much in common with principle and practice elsewhere in the UK (see generally Dickson, Reference Dickson2011), public law – here taken to refer to constitutional and administrative law – has some notable differences. This is true, most obviously, at the level of the Northern Ireland constitution where much of law and governance continues to be defined by the Belfast Agreement of 1998. However, beyond such “macro” constitutional differences are other points of departure, notably in relation to legal citation and the use of authorities. These follow from the fact that much statute law for Northern Ireland is made using discrete legislative procedures, whether at the Northern Ireland Assembly or (historically) at Westminster. Also relevant is the fact that Northern Ireland has its own court system, which is headed by a Court of Appeal that is subject to appeal to the UK Supreme Court.
The article begins with a section on the nature of the Northern Ireland constitution and the values from the Belfast Agreement that define it. It next provides a brief narrative on the sources of Northern Ireland law and how and when, citation patterns may differ from those used elsewhere in the UK. The final section offers general comments on the process of primary law-making in the Northern Ireland Assembly, a matter that raises some interesting points about the nature of the UK devolution settlement.
THE NORTHERN IRELAND CONSTITUTION
The first point to be made about the Northern Ireland constitution is a formal one, namely that it does not have a constitution that is legally separate from that of the UK as a whole (see section 1 of the Northern Ireland Act 1998). That said, it has always been true, in a more general sense, that Northern Ireland has existed at one remove from the other jurisdictions in the UK and that this has been seen in the structures for its governance. Initially, those structures were contained in the Government of Ireland Act 1920 that established a devolved Northern Ireland Parliament at a time when Scotland and Wales were governed exclusively from Westminster and Whitehall. The Northern Ireland Parliament had delimited powers to legislate for, among other things, the “peace, order and good government … of Northern Ireland” see Hadfield, Reference Hadfield1989, p 63ff). Moreover, when direct rule was introduced in the 1970s in response to Northern Ireland's escalating conflict, legislation for the jurisdiction came to be made at Westminster primarily by way of Orders in Council rather than full Acts of the Westminster Parliament. While this gave rise to concerns about a lack of Parliamentary oversight of Northern Ireland legislation – Northern Ireland Orders in Council are a form of subordinate legislation and subject to less rigorous scrutiny – it reflected the fact that suspension of the Northern Ireland institutions was intended to be temporary. In fact, only relatively few matters were legislated for by way of Acts of the Westminster Parliament and these tended to be concerned with more controversial aspects of the conflict (e.g., the Northern Ireland [Emergency] Provisions Act 1978, since repealed).
Of course, Northern Ireland's contemporary governance structures have their origins in the Belfast Agreement 1998, as given legal form in, primarily, the Northern Ireland Act 1998. That Agreement, which is to be read in the light of St Andrews and Hillsborough Agreements of 2006 and 2010 respectively, provides for an elaborate system of governance centred upon principles that include power-sharing, equality, respect for human rights, non-violence, and legality (see Harvey ed Reference Harvey2001). While it might be said to be unremarkable that such principles should define any democratic system of government, their explicit recognition in the Belfast Agreement marked Northern Ireland's transition from a contested political existence to one founded upon highly nuanced conceptions of democracy and sovereignty. Indeed, the significance of that shift was to be alluded to in the seminal Robinson ruling of the House of Lords, when Lord Hoffmann said that the Belfast Agreement “was the product of multi-party negotiations to devise constitutional arrangements for a fresh start in Northern Ireland … The 1998 Act is a constitution for Northern Ireland, framed to create a continuing form of government against the history of the territory and the principles agreed in Belfast” (see Robinson v Secretary of State for Northern Ireland [2002] NI 390, 402, para 25). Lord Bingham similarly noted that the constitutional nature of the Northern Ireland Act 1998 meant that its key provisions should be “interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody” [2002] NI 390, 398, para 11.
The corresponding competencies of the Northern Ireland institutions are limited both by their need to observe the Belfast Agreement's founding principles as well as the statutory boundaries of their executive and legislative powers (see Anthony, Reference Anthony2008, pp. 142–145). The executive's observance of the founding principles is achieved partly through a mandatory, consociational system of government that ties Ministers to a Code of Conduct that is cognisable in the courts (Northern Ireland Act 1998, Part III; and Re Solinas' Application [2009] NIQB 43). Ministerial power thereafter is also constrained by a provision that prevents Ministers or their departments from acting contrary to a range of norms that include non-discrimination on grounds of religious and political belief, EU law, and those Articles of the European Convention on Human Rights that have effect under the Human Rights Act 1998 (sections 24 & 98 of the Northern Ireland Act 1998). The Assembly's legislative power is likewise limited with reference to non-discrimination, EU law, and the ECHR, and also a distinction between “transferred”, “reserved”, and “excepted” matters (sections 4 & 6 of, and Schedules 2 & 3 to, the Northern Ireland Act 1998). This three-way distinction corresponds with areas of competence that have been given to the Assembly (“transferred”); those that may be transferred to the Assembly at some time in the future (“reserved”); and those that will likely always remain with the Westminster Parliament, at least for so long as Northern Ireland remains a part of the UK (“excepted”). While the Northern Ireland Assembly can thus legislate freely in relation to transferred matters such as agriculture, education, the environment (subject to the demands of EU law, the ECHR, etc), section 8 of the Northern Ireland Act 1998 provides that it can legislate on reserved matters only with the consent of the Secretary of State for Northern Ireland. The consent of the Secretary of State is also required where Assembly legislation deals with an excepted matter and is ancillary to other legislation that has already been enacted or which is before the Assembly in the form of a Bill.
One area of competence which was previously reserved but has since been transferred to the Assembly is policing and criminal justice. This was the most significant result of the Hillsborough Agreement 2010 that was noted above, and it signified, in real terms, the moment when all of the main political parties finally agreed to work together within the framework established by the Belfast Agreement. Although the institutions had functioned prior to the Hillsborough Agreement, they had very much a stop-start existence that was caused by political distrust on questions that included support for the Police Service of Northern Ireland and the rule of law. This had led, in turn, to long periods of the suspension of the institutions, when Northern Ireland law had again been made by way of Orders in Council under the Northern Ireland Act 2000 (now repealed). However, such distrust was to be addressed in a sequence of events starting with the St Andrews Agreement 2006 and culminating with the Hillsborough Agreement 2010, and the requisite legal and political steps were soon taken to facilitate the devolution of what had historically been a highly divisive policy area. Legislative competence in a wide-range of matters related to policing and criminal justice was thus devolved to the Assembly in 2010 and a new Ministry of Justice was created within the Executive Committee (see Anthony, Reference Anthony2011).
Mention should lastly be made, under this heading, of an important “external” dimension to the Northern Ireland constitution. Although it has already been noted above that Northern Ireland is, formally speaking, a constituent part of the UK, the Belfast Agreement contained a North/South dimension on political relations on the island of Ireland. This was regarded as a key part of the constitutional architecture of the Agreement precisely because Irish nationalism pursues unification of the island within sovereign all-Ireland structures. In recognising the legitimacy of that aspiration, the Agreement provided for, among other things, a North/South Ministerial Council to facilitate cross-border co-operation on matters of mutual interest (the Council was established in 1999). However, to the extent that this met nationalist demands in relation to all-Ireland structures, unionist demands were also accommodated through the creation of a British-Irish Council (albeit that this Council is essentially a discussion forum). The legitimacy of the unionist position was also recognised by amendment of Articles 2 & 3 of the Irish Constitution 1937, which had originally laid claim to the territory of Northern Ireland but which now accept, post-Belfast Agreement, that unification can occur only with the consent of the majority of people in Northern Ireland.
SOURCES OF LAW
Turning to the sources of law in Northern Ireland, there are three main points that can be made. The first is that many of the sources of law are common to the UK and thereby take effect in Northern Ireland subject to the UK constitution and, in court, rules of precedent that place the Supreme Court at the apex of the judicial system. This is true, most obviously, of the common law, as Northern Ireland is a common law jurisdiction that follows House of Lords/Supreme Court rulings on, for instance, points of tort law, contract law, and administrative law (the foundational legislation for the higher courts in Northern Ireland is the Judicature [Northern Ireland] Act 1978; decisions of the High Court and Court of Appeal in England and Wales are persuasive precedents). Moreover, there are a number of shared sources beyond the common law that include EU law, the ECHR, and international law more generally. These sources can be relied upon where the Westminster Parliament has enacted legislation to give domestic effect to them – international relations are for the most part an “excepted” matter – and it is axiomatic that EU law and the ECHR have effect under the terms of the European Communities Act 1972/European Union Act 2011 and the Human Rights Act 1998 respectively. Absent, such legislation and unincorporated international treaties, cannot be directly relied upon in the courts, although they may exert some influence in proceedings where the courts consider them to be of analogical value. Customary international law can also act as a source of law, as can international norms of best practice in criminal justice that have been identified in guidance issued by the Attorney-General for Northern Ireland (viz, under section 8 of the Justice [Northern Ireland] Act 2004).
The second point concerns the reporting of decisions of the Northern Ireland courts. Although the Northern Ireland courts are bound by the rulings of the House of Lords/Supreme Court, the separateness of the Northern Ireland jurisdiction means that there are many decisions of the local courts which also enjoy a precedent value. The most important of these will be chosen for publication in dedicated law reports, namely the Northern Ireland reports (see, e.g., Robinson, above) and/or the Northern Ireland Judgments Bulletin (cited as, e.g., [2012] NIJB 1). However, should a Northern Ireland case be heard on appeal before the Supreme Court, the corresponding ruling may be reported not only in the Northern Ireland reports but also the Appeal Cases (e.g., Re McCaughey's Application for Judicial Review [2011] UKSC 20; [2012] 1 AC 725). Otherwise, the fuller body of the Northern Ireland decisions can be found through electronic databases such as Lexis and (to a lesser extent) Westlaw, as well as through BAILII (http://www.bailii.org/) and the web-site of the Northern Ireland Courts and Tribunals Service (http://www.courtsni.gov.uk/en-GB/pages/default.aspx).
The third point concerns statute law as a source of law. Here, there are a number of historical and contemporary factors that have resulted in Northern Ireland legislation taking many different forms. For instance, Ireland's historical position within the United Kingdom means that there are Acts of the Westminster Parliament in force which pre-date the creation of Northern Ireland (e.g., the Offences Against the Person Act 1861); and there is also legislation in force which was made by the Northern Ireland Parliament established under the Government of Ireland Act 1920 (e.g., the Coroners Act [Northern Ireland] 1959). In addition, there is a large body of statute law that was made at times of direct rule, both pre and post-Belfast Agreement, which typically takes the form of Orders in Council (e.g., the Employment Rights [Northern Ireland] Order 1996 – and note that Orders in Council contain articles that are cited as “article” 1 and so on). Of course, under current arrangements, the Northern Ireland Assembly is able to legislate in relation to “transferred” matters, where its Acts can be identified by the position of the words “Northern Ireland” immediately before the year in question (e.g., the Autism Act [Northern Ireland] 2011). This is different to Acts of the Westminster Parliament that are specific to Northern Ireland, as they place the words “Northern Ireland” before the word “Act” (e.g., the Police [Northern Ireland] Act 2000). Subordinate legislation for the jurisdiction can then be made under any of Acts of the Northern Ireland Assembly, Acts of its predecessor Parliament, or Orders in Council, in which instance the subordinate legislation will be in the form of “Statutory Rules” that are abbreviated as “SR” (e.g., the Plant Health [Amendment No 2] Order [Northern Ireland] 2012, SR 2012/241). Subordinate legislation for the jurisdiction that is made under Acts of the Westminster Parliament will be in the form of “Statutory Instruments” that are abbreviated as “SI” (e.g., the Public Contracts Regulations 2006, SI 2006/5).
ENACTING LAW IN THE NORTHERN IRELAND ASSEMBLY
The remaining issue to be considered is the process of enacting law – Acts – in the Northern Ireland Assembly. As has already been outlined above, the Assembly has competence in relation to transferred matters, which include agriculture, education, the environment, and justice (see http://www.niassembly.gov.uk/). When legislating, the Assembly is of course constrained by the need to observe the distinction between transferred, reserved and excepted matters, and it must also observe its obligations in relation to non-discrimination, EU law, and the ECHR. Should legislation be challenged for the reason that the Assembly has failed to observe one or more these limits on it powers, this will give rise a “devolution issue” whereby the courts must decide whether the legislation is ultra vires the Northern Ireland Act 1998.
Inevitably, the law-making process is very detailed – the Assembly's web-site identifies up to 11 stages – and there would be little merit in trying to summarise those in this context of this short article. Rather, it is to be noted that the various stages would seem to work in a highly effective manner as there have not, as yet, been any successful challenges to Acts of the Assembly. This, in turn, posits a rigorous process of scrutiny of draft legislation, where the Advocate-General and the Attorney-General for Northern Ireland play an important role in reading draft legislation as it comes towards the end of the overall legislative process (see, too, the role of the Presiding Officer under section 10 of the Act). According to section 11 of the Northern Ireland Act 1998, both Law Officers have a role in ensuring that Bills are within the competence of the Assembly, whether in relation to the transferred/reserved/excepted distinction or any of the other limits on the powers of the Assembly. In the event that either Officer considers that a Bill may be outside the Assembly's powers, he or she is empowered to refer the matter to the Supreme Court for a ruling on its legality.
Two further comments should be made, both of which relate to the role that the Northern Ireland courts can be expected to play in the event that an Act of the Assembly is challenged (i.e. post-scrutiny and any possibility of a section 11 reference to the Supreme Court). The first concerns the approach that is prescribed by the Northern Ireland Act 1998. Here, section 83 imposes an interpretative obligation whereby the courts must try to read an Act of the Assembly or a provision within it in a way that brings the legislation within the Assembly's competence. This means that the courts should seek to preserve an Act of the Assembly where possible, and that an Act or a provision within it will be struck-down only where its words cannot be read consistently with the powers of Assembly. In that event, the legislation can be quashed, albeit that the Northern Ireland Act 1998 also allows the relevant court to, among other things, suspend the effect of its ruling pending legislative correction of the Act in question.
The second comment concerns the implications of the seminal Axa ruling of the Supreme Court (Axa General Insurance Ltd, Petitioners, [2011] UKSC 46; [2012] 1 AC 868). Although this was a decision about a legislative choice of the Scottish Parliament namely to enact a compensation scheme for workers who had developed pleural plaques after being exposed to asbestos in the work-place it makes clear that there will be cases in which the courts can be expected to exercise restraint in the face of the legislative choices of the Northern Ireland Assembly. The particular challenge in Axa had been brought by insurance companies who challenged the Damages (Asbestos-related Conditions) (Scotland) Act 2009 for the reason that it constituted a disproportionate interference with their qualified rights to property under Article 1 Protocol 1 ECHR (parallel legislation had also been enacted in Northern Ireland in 2011). Rejecting the challenge, the Supreme Court emphasised that the choice in question had been taken for reasons of public interest and that the Scottish legislature, by virtue of its democratic underpinnings, enjoyed a considerable degree of latitude on the matter. While the Supreme Court did not, at the same time, attribute sovereign qualities to the Scottish Parliament, it noted that it had a democratic legitimacy that demanded judicial restraint in relation to the choice at hand. There was therefore no reason for the Court to second-guess the preference of the Scottish Parliament, and it can safely be assumed that similar reasoning will guide the courts in any future challenge to a public interest choice of the Northern Ireland Assembly (at least when the choice is concerned with qualified rights such as property, privacy, and so on).
CONCLUSION
This article has provided an introduction to the uniqueness of public law in Northern Ireland. In doing so, it has sought to highlight some of the macro-constitutional issues that set it apart, as well as more mundane matters of legal citation that are particular to the jurisdiction. Although these differences do not render public law in Northern Ireland wholly distinct from that in the rest of the UK – Axa suggests parallels between the Northern Ireland Assembly and the Scottish Parliament – they correspond with the fact that Northern Ireland has historically had distinct structures for its governance. They also reveal some of the ways in which Northern Ireland's contested legal and political history continues to define its contemporary law and practice.
