Robinson v Secretary of State for Northern Ireland

The core question was whether the Northern Ireland Assembly retained power to elect a First Minister and Deputy First Minister after the six-week period prescribed by section 16(1) and (8) of the Northern Ireland Act 1998 had expired, and relatedly whether section 32(3) required the Secretary of State to propose an immediate extraordinary poll. The majority construed the Act purposively against the background of the Belfast Agreement, concluding that the Assembly, as a statutory but continuing constitutional body, had power to elect FM and DFM after expiry of the six-week period and that section 32(3) imposed a duty on the Secretary of State to propose a date for a poll but did not oust the Assembly's power to elect or require an immediate automatic dissolution. The majority therefore held the election of 6 November 2001 to be lawful and that the Secretary of State could propose the date for the next poll as he did. The dissenting judges concluded that the six-week time limit was intended to be definitive, that no power to elect existed after its expiry and that section 32(3) required the Secretary of State to propose an early poll; on that view the 6 November election was invalid.

This was an appeal from the Court of Appeal of Northern Ireland concerning the validity of the Northern Ireland Assembly's election, on 6 November 2001, of Mr David Trimble as First Minister and Mr Mark Durkan as Deputy First Minister. The applicant (Mr Robinson), a member of the Assembly, sought judicial review and a declaration that the election was invalid because it took place after the six-week period laid down by section 16(1) and (8) of the Northern Ireland Act 1998. At first instance Kerr J dismissed the claim and the Court of Appeal (majority) dismissed an appeal. The House of Lords heard the matter.

The proceedings required the House to determine:

• whether the Assembly, as a statutory body, had any power to elect FM and DFM after the expiry of the six-week periods in section 16(1) and (8);
• how section 32(3) (and related provisions in Part IV) should be read where the six-week period expires without a successful election, and whether the Secretary of State was obliged to propose an immediate extraordinary poll; and
• the legal effect, if any, of statements in parliamentary debates relied on under Pepper v Hart.

The majority (Lords Bingham, Hoffmann and Millett) applied a purposive construction in light of the Belfast Agreement and the Act's constitutional function. They treated the six-week provisions as mandatory duties but held that the Act assumed and implied a continuing power in the Assembly to elect FM and DFM; expiry of the six weeks triggered the Secretary of State's duty under section 32(3) to propose a date for a poll but did not automatically oust the Assembly's power to elect or require an immediate dissolution. The majority therefore held the 6 November 2001 election lawful and that the Secretary of State could propose the date subsequently confirmed by Order in Council.

The dissent (Lords Hutton and Hobhouse) accepted the mandatory character of the six-week limit but concluded that Parliament had intended the six-week limit to be definitive: absent express provision for elections after the period, the Assembly had no power to elect once it had expired and section 32 required the Secretary of State to propose an early poll. They would have allowed the appeal.

The House also discussed limits on the use of parliamentary materials under Pepper v Hart and emphasised the need to construe the statute against its constitutional and political background without treating ministerial statements as determinative.

Appeal dismissed. By a majority the House held that although section 16(1) and (8) impose mandatory duties to hold elections within six weeks, the Act must be construed purposively against the Belfast Agreement. The Assembly retained power to elect a First Minister and Deputy First Minister after expiry of the six-week period; expiry instead triggered the Secretary of State's duty under section 32(3) to propose a date for a poll but did not render a subsequent valid election ultra vires. Accordingly the 6 November 2001 election was lawful and the Secretary of State was entitled to propose the date ultimately adopted.

High Court (Kerr J) dismissed the claim (21 December 2001, unreported); Court of Appeal of Northern Ireland dismissed the appeal (21 March 2002, unreported) with Carswell LCJ dissenting; House of Lords [2002] UKHL 32 (25 July 2002).