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.