Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 1st Edition - 2006

Constitutional Adjudication and Interpretation of the Constitution

Northern Ireland

Interpreting Constitutional Legislation in the UK

Prepared by: Marie Lynch Constitutional Adjudication – Robinson v Secretary of State for Northern Ireland : Interpreting Constitutional Legislation A distinguishing feature of the constitution in the United Kingdom 1 is that unlike most Western democracies, it does not have a singular written constitution outlining all the rights and protections afforded to the citizens within. The absence of such a mono- document delineating these rights meant that there was no concept of a higher law or a supreme law which could only be altered or amended by extraordinary methods. 2 The traditional orthodox approach in the UK was that due to Parliamentary sovereignty, all primary legislation it passes is of equal status, 3 the principles of interpretation to be applied to these Acts is that they are to be construed according to the ordinary and literal meaning of the language used.

However this conventional attitude was gradually evolving and the new assessment was finally articulated in the 2002 case of Thoburn v. Sunderland City Council. 4 Here Sir John Laws in the High Court, develops ideas about “constitutional statutes” within the UK. He recommended that we should acknowledge that there are a hierarchy of Acts of Parliament: “there exists rights which should properly be classified as constitutional or fundamental…. We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes”. Laws L.J. argued that not all law is equal in its constitutional status. For him “constitutional” statutes are unlike “ordinary” statutes in that they either “conditions the legal relationship between citizen and the State in some general, overarching manner”, or “enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” 5 In providing examples of constitutional statutes he included the Magna Carta 1297, the Bill of Rights 1689, the

1 Northern Ireland, along with England, Wales and Scotland serve to makeup the entity officially known as the United Kingdom of Great Britain and Northern Ireland. At the apex of the legal structure in the UK is the House of Lords. It is the final appeal court in both civil and criminal matters in relation to England, Wales and NI. (Scotland has its own legal system and final court – though some aspects may be dealt by the Lords) 2 In the UK, laws can be changed relatively easily; all that is required is the passing of an Act of Parliament. 3 As Dicey famously stated “neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered supreme law”, “An Introduction to the Study of the Law of the Constitution” (1959) 145. 4 Thoburn v. Sunderland City Council, [2002] 3 W.L.R. 247. 5 para.62. European Communities Act 1972, the Human Rights Act 1998, the Government of Wales Act and the Scotland Act 1998 and presumably by association (though he does not refer to it), the Northern Ireland Act. 6 One consequence, according to Laws L.J., of such a categorisation is that unlike ordinary statutes which could be impliedly repealed by a subsequent Act of Parliament, constitutional statutes cannot. 7

The concept of ‘constitutional statutes’ was given recognition in the House of Lords case originating from Northern Ireland, Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland) .8 In the Robinson case the House of Lords were asked to determine whether the election of the First Minister and Deputy First Minister for the Northern Ireland Assembly outside the time limit was valid.

The election had been questioned by Mr Peter Robinson, the deputy leader of the anti- Agreement Democratic Unionist Party (DUP), because it had taken place two days after the statutory six-week deadline. The Northern Ireland Act had stipulated that if the Assembly had failed to elect a FM and DFM within the six-week period, the Secretary of State for Northern Ireland was obliged to fix an immediate date for a general election for the Assembly. 9 It was viewed by the UK Government and those in support of the Peace

6 Growing demands for greater autonomy in the regions of Scotland, Northern Ireland and Wales led the new Labour Government in 1998 to introduce various levels of devolution to these areas. These came in the form of the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 (NIA). The latter Act came as the culmination and incorporated parts of a negotiated peace settlement (the Belfast Agreement). The Northern Ireland devolved institutions had power over issues such as agriculture, education, health and social services, environment and finance, not however over; police, security, prisons and criminal justice and no tax raising powers. 7 They can only be repealed by “unambiguous words on the face of a latter statute.” para.63. See also A. O’Neill, “Fundamental Rights and the Constitutional Supremacy of the Community Law in the United Kingdom after Devolution and the Human Rights Act” [2002] P.L. 724 at 738. For commentary on the Thorburn judgment see; M. Elliott, supra at n. 32; A. Perreau-Saussine, “A Tale of Two Supremacies, Four Greengrocers, A Fishmonger, and the Seeds of a Constitutional Court” [2002] 61 C.L.J. 499 at 528 and D. Campbell and J. Young, “The metric martyrs and the entrenchment jurisprudence of Lord Justice Laws” [2002] P.L. 399. Elliot suggests that Sir John Laws introduces a new approach where the doctrine of parliamentary sovereignty no longer insulates ordinary legislation from judicial evaluation. Instead the “constitutional statutes” along with other evidence of the prevailing fundamental values in the political and constitutional order are to be used by the judges to interpret the nature and extent of legislative authority in relation to the context and values of the contemporary constitution. 8 [2002] UKHL 32. 9 s.32(3) “If the period mentioned in s. 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.” Agreement that a general election at this critical stage would have an unsettling and disruptive effect on the peace process. Mr Robinson had contended that the Secretary of State did not have the power to allow an election a FM and DFM outside the time limit. In challenging this action, he considered that it was the duty of the courts to interpret and apply the pertinent provisions of the NIA as they are written and not to take into account extraneous and consequential factors such as the disrupting effect of a general election.

The House of Lords’ Judgment A majority of three in House of Lords held that the Ministers had been validly elected. In coming to their decision the majority in the House of Lords adopted a purposive approach to the interpretation of the NIA. In the leading judgment Lord Bingham pays regard to the purpose of the NIA which, as he states, was passed to implement the Belfast Agreement, 10 an attempt in itself to “end decades of bloodshed and centuries of antagonism.” Accordingly, due to the potentially precarious nature of the Ministers’ positions and the delicate nature of the devolved Assembly, 11 it was Lord Bingham’s opinion that if the “shared institution were to deliver the benefits which their progenitors intended, they had to have time to operate and take root.” 12 In consideration of this, and the purposes which Parliament was seeking to promote, Lord Bingham felt that it was unlikely that it would have wished to constrain local politicians and the Secretary of State within “a tight straightjacket.” 13 His Lordship concluded that the Secretary of State’s actions were valid, that if he considered that an effective election did appear imminent, he was entitled to pause in fixing a date for the next Assembly election and to wait for a reasonable period in order to establish whether the second election a FM and DFM would be successful.

10 As stated in the preamble of the Act it is: “An Act to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883.” 11 For the “staccato” history of the devolved government under the 1998 Act, see in general Lord Bingham’s judgment, para. 7. 12 para. 10. 13 para. 14. Lord Bingham was able to take a purposive approach to the interpretation of the NIA because he regarded it to be a constitutional document. 14 Giving such a status to the Act authorised the provisions at the heart of the case to be interpreted “generously and purposively bearing in mind the values which the constitutional provisions are intended to embody.” 15 Moreover, Lord Hoffmann, who concurred with Lord Bingham, was of the opinion that to view the NIA as a constitution meant that those charged with its application “ must ” interpret it against its background. 16 In the Robinson case, this was the political situation in Northern Ireland and the principles laid down in the Belfast Agreement. This material could be used as aids to construction, for in Lord Hoffmann’s opinion, the “facts and documents form part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.” 17

The Robinson case is important in that it provides House of Lords recognition of the existence of what Sir John Law had referred to as “constitutional statutes” within the UK legal system; that there is a hierarchy of legal norms of which the devolutionary statute of the 1998 NIA is one. Furthermore, to categorise an Act in this way has consequences as it permits the courts to interpret its provisions “generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody”.

When the decision of the House of Lords was released it caused quite a controversy. Not least due to the role the courts were being asked to undertake and because they were, for the most, willing to undertake it. In Robinson we see an added dimension to the traditional roles of the courts operating in the areas of statutory interpretation and judicial review, here the courts were being invited to become involved in the difficult and contentious arena of Northern Ireland politics.

14 See Lord Bingham para.11. Both Lords Millet and Hoffmann, shared Lord Bingham’s view of the NIA’s status. They too were unequivocal that the “1998 Act is a constitution for Northern Ireland.” See paras. 25 and 93 respectively. 15 ibid. 16 My emphasis, per Lord Hoffmann para.33. 17 Lord Hoffmann, ibid. Such involvement raises the problems which were acknowledged by Lord Chief Justice of Northern Ireland Sir Robert Carswell when delivering his Court of Appeal judgment in Robinson : “It is a difficult and invidious task for judges sitting in a court of law to adjudicate upon matters which have a highly charged political content, where the exercise of political judgment is at the centre of decision-making.” 18 The Lord Chief Justice clearly recognised the complexities which arise when the judiciary are required to move out from their traditional arena, as such involvement leaves them open to allegations that they take irrelevant and legalistically inappropriate factors such as the political consequences into consideration and leads to questions concerning their much prized neutrality. 19

What is also worthy of note are the opinions of the two dissenting judges in the House of Lords; Lord Hobhouse and a former Lord Chief Justice of Northern Ireland, Lord Hutton. Both took a strict literal approach to the interpretation of the NIA and were of the opinion that the Northern Ireland Assembly is “entirely a creature of the Westminster statute” and that it had no powers other than those given to it by statute. 20 Accordingly, where Parliament had made provision in the event of the failure to elect an FM and a DFM within the statutory period, “the objective of the Belfast Agreement cannot operate to alter the meaning of their words.” 21 Both judges adopted a black letter approach to judicial interpretation and were unwilling to take the statutory context and the objective of the NIA into consideration when determining the case.

In Robinson , the House of Lords has, for the time being at least, resolved any ambiguity as to the status of the NIA. They have deemed that such an Act of Parliament is a

18 [2002] NI 206, at 219. His preferred method of working was, “we have to discharge our function in the manner required of a judicial tribunal, looking only to those matters which are properly within our purview. Those matters are concerned solely with the interpretation of the governing statute, and I have sought to construe its terms in such a way as to ascertain and give effect to the intention of Parliament and eschewing all other considerations”. See further Marie Lynch, ‘Robinson v. Secretary of State for Northern Ireland: Interpreting Constitutional Legislation’ (2003) Public Law pp.640-649. 19 After the ruling on his case was delivered, the Appellant, Peter Robinson was quoted as saying that the majority of the Law Lords preferred a “dangerously elastic and politically expedient approach.” Irish News, Friday 26 July 2002. 20 See in particular Lord Hobhouse’s judgment, para. 66 21 Lord Hutton para. 61. constitutional document and by virtue this status, those charged with interpreting it must look upon the genesis of the Act and its historical antecedents to ascertain its purpose and to use this information when interpreting and applying its provisions.

The recognition of the existence of constitutional legislation, constitutional adjudication and the establishment of a hierarchy of legal norms has implications for the role of the judiciary in the UK. The recent trends and developments have seen many judges adopt a purposive approach to statutory interpretation, thereby expanding the remit of what they can take into consideration when determining the purpose of the Act. Following the judgments in Thoburn and Robinson, it is the courts, not our elected representatives, who can now determine which statutes, are to be accorded the status of a constitutional document. This is quite a significant shift of authority onto the judiciary, the constitutional implications warrant investigation. 22

Whether the judiciary in the future will be required to sit in judgment on potentially contentious issues will of course depend on whether applicants see the courts as a favourable forum in which to address their grievances. How the courts will react if and when they are required to sit in judgment on such cases will remain a source of much interest. What is clear however is the enhanced significance of the judicial role since Devolution.

More recent cases from Northern Ireland in which the of the Robinson judgment was applied

In the matter of an application by Damien McComb for Judicial Review 2003 NIQB 47 In the McComb case a wider application was witnessed, where the Agreement may be relevant to the interpretation and application not just of the NIA 1998 but also of other legislation passed under its auspices. In this case Kerr J (as he then was) disagreed with

22 For a more detailed account of the implications on judicial role see, M. Elliott, “Embracing “Constitutional” Legislation: Towards Fundamental Law?” [2003] 54 N.I.L.Q 25. the Recorder’s assertion that the Belfast Agreement was aspirational only. Citing a section of Lord Hoffman’s judgment in Robinson , he stated that though it referred to the effect that the Agreement had on the nature of the NIA 1998, it supported the conclusion that the terms of the Agreement could affect one’s approach to “the interpretation and application of statutory provisions made under its aegis”. 23

In The Matter of an Application by Peter Neil for Judicial Review 2006 NICA 5 The case related to whether or not an anti social behaviour order (ASBO) was lawful in light of equality scheme obligations under sec. 75 NIA 1998, Girvan J referred to the judgments of Lords Bingham and Hoffman in Robinson . He went on to say that the equality provisions “are part of a statute intended to be a new constitution for Northern Ireland framed against the background of the history of Northern Ireland and the principles agreed in the so-called Good Friday Agreement (Belfast Agreement). The Agreement was the product of multi-party negotiations and was intended to be a balanced and carefully nuanced constitutional arrangement”.

23 Consequently, Kerr J concluded that the fact of the applicant’s release under the Northern Ireland (Sentences) Act 1998 should have been considered by the department when making the decision as to whether he should be granted a taxi driver’s licence. His application for judicial review was granted and granted an order quashing the decision of the Recorder. See also In re McClean [2003] NIQB 31; [2004] NICA 14; [2005] UKHL 46 where, on appeal from the Court of Appeal Northern Ireland, Lords Bingham and Scott talked in terms of interpreting prisoner legislation in the spirit of the Agreement (paras 27 and 49).