Reference by the Attorney General for Northern Ireland of devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (No 2) (Northern Ireland)

A reference under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 should ordinarily be determined within a clear factual matrix rather than as a series of theoretical or academic questions. Where existing litigation can provide that context and permit the Northern Ireland courts to assess the practical consequences, the Supreme Court may adjourn the reference so that the issues can first be resolved in those proceedings.

The Attorney General for Northern Ireland may apply to intervene in proceedings raising a devolution issue even without having received a devolution notice. Schedule 10 does not exclude such an application.

The Attorney General for Northern Ireland referred five questions concerning the authority of Northern Ireland departments and civil servants to take decisions while there were no ministers, Executive Committee or functioning Assembly. The questions concerned sections 20 and 28A of the Northern Ireland Act 1998 and the Northern Ireland Ministerial Code.

The reference followed the decision in In re Buick [2018] NICA 26, which had held that a department lacked power to grant planning permission for a major waste incinerator without a minister. Alternative A5 Alliance intervened and contended that the questions were academic, did not concern reserved or excepted matters, and did not arise under the Act.

The Supreme Court convened a preliminary hearing to decide whether the referred matters were devolution issues. Related litigation concerning a proposed electricity interconnector was capable of raising most or all of the questions within a concrete factual setting.

1. The reference was adjourned. Lord Kerr, with whom Lady Hale and Lord Reed agreed, held that the intervener's objections had considerable force but lacked the quality of unanswerability ordinarily required to dispose of proceedings on a preliminary issue. The court therefore did not determine whether the five questions were devolution issues or resolve their substantive merits.

2. The Supreme Court's function on references under paragraphs 33 and 34 of Schedule 10 to the Northern Ireland Act 1998 is to provide authoritative legal guidance on questions arising from a devolution issue. Paragraph 1(d) defines the relevant category as a question arising under the Act about excepted or reserved matters. The referred questions raised unresolved arguments about whether that definition was satisfied.

3. Legal questions should generally be determined against a clear factual matrix rather than as theoretical or academic issues. Existing litigation about a proposed electricity interconnector could raise most or all of the referred issues. It would also permit the Northern Ireland courts to consider their practical impact and provide insight into the operation of the competing arguments.

4. Paragraph 34, which permits the Attorney General to refer a devolution issue not forming the subject of proceedings, is not necessarily an open-ended facility. A future case may need to decide whether it can be used where the Attorney General failed to invoke paragraph 33 or appeal in earlier proceedings, or where other proceedings exist in which the issue could arise. The court left that question open.

5. The court rejected the suggestion that the Attorney General could not participate in the interconnector proceedings without service of a devolution notice. Nothing in Schedule 10, including paragraphs 4 to 6, precludes an application to intervene or an attempt to persuade the court or tribunal to issue such a notice.

6. The stay of the interconnector proceedings should be lifted. If necessary, the Attorney General should apply to intervene and canvass the issues raised by the proposed reference. Meanwhile, the reference would stand adjourned.

• United Kingdom Supreme Court: At a preliminary hearing, declined to determine the substantive referred questions, directed that the present reference stand adjourned, and stated that the stay of related interconnector proceedings should be lifted.
• Northern Ireland Court of Appeal: In separate proceedings, In re Buick [2018] NICA 26 held that the relevant department lacked power, in the absence of a minister, to grant planning permission for a major waste incinerator. No application for permission to appeal was made.