A 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 (Northern Ireland)

An act of a Northern Ireland Minister or department may fall within section 24 of the Northern Ireland Act 1998 even though it is ancillary or incidental to subordinate legislation. A devolution issue based on Convention incompatibility nevertheless requires analysis of the precise relationship between the Convention right and the specific act challenged.

The Supreme Court retains a discretion whether to accept a reference under paragraph 34 of Schedule 10. It may refuse a reference where the alleged incompatibility concerns the substantive measure rather than the ancillary departmental act, particularly where the substantive issue will be determined in proceedings in which it occupies centre stage.

The Attorney General for Northern Ireland sought to refer a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. Commencement orders made by the Secretary of State introduced Universal Credit in areas identified by postcode lists issued by the Northern Ireland Department for Communities.

The Attorney General alleged that the Universal Credit provisions were incompatible with Convention rights and that the Department's preparation and provision of the postcode lists therefore fell within section 24 of the 1998 Act. The Department submitted that the lists provided administrative support, possessed no independent legal effect and acquired legal consequences only through the Secretary of State's orders.

The central questions were whether producing the lists constituted an act or discharge of a function capable of raising a devolution issue, and whether the court should accept the reference.

1. The application to refer the issue was refused unanimously. Lord Kerr delivered the judgment, with which Lady Hale and Lord Reed agreed.

2. Section 24 of the Northern Ireland Act 1998 applies only where an act is done or a function discharged by a Northern Ireland Minister or department. Its prohibitions are disjunctive. They cover making, confirming or approving subordinate legislation and also doing any act incompatible with Convention rights. An act may therefore fall within the section although it is ancillary or incidental to subordinate legislation. At a theoretical or technical level, compiling and providing the postcode lists constituted an act or discharge of a function within paragraph 1(b) of Schedule 10.

3. That conclusion did not establish an appropriate devolution issue. The alleged incompatibility concerned the impact of Universal Credit rather than the preparation of the postcode lists. Whether an act is incompatible with a Convention right does not turn simply on a but-for causal test or concepts of remoteness. The analysis must address the precise bearing of the right on the particular act challenged. The relative isolation of preparing the lists from the substantive introduction of Universal Credit made it inappropriate to regard that preparation as sufficient to found the proposed issue.

4. Paragraph 34 of Schedule 10 confers a discretion whether to deal with a reference. The application was not frivolous or vexatious within paragraph 2, but the substantive Convention issue would arise directly in a pending appeal from R (C) v Secretary of State for Work and Pensions [2019] EWCA Civ 615. The Attorney General could seek to intervene there. It was inappropriate to determine the same substantive issue indirectly through an ancillary departmental act when proceedings addressing the alleged incompatibility directly were available.

This was an original reference to the Supreme Court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. No lower-court decision was under appeal.