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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Robinson, Re Application for Judicial Review [2001] NIQB 42 (08 November 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/42.html
Cite as: [2001] NIQB 42
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Neutral Citation no.[2001] NIQB 42
Ref:
KERF3525
Judgment: approved by the Court for handing down
Delivered:
08.11.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY PETER ROBINSON
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
KERR J
This is an application by Peter Robinson MP, MLA for leave to apply for judicial review of the decision of the Secretary of State for Northern Ireland in relation to the exercise of his powers under section 32 (3) of the Northern Ireland Act 1998.
At the outset it is necessary to emphasise that in an application for leave to apply for judicial review an applicant need only establish that he enjoys an arguable case or, as it has sometimes been put, a case that is worthy of further investigation. The grant of leave is in no way a forecast of the likely outcome of the substantive application. Despite having repeated this formula in various ways many times, the experience of the courts has been that there remains a popular misconception as to the significance and effect of the grant of leave to apply for judicial review. It should be clearly understood that the grant of leave signifies no more – and no less – than the court's conclusion that an applicant has raised an argument that warrants further examination.
It should also be clearly understood that the grant of leave (unless accompanied by an order for interim relief) does not affect the validity or effect of the decision under challenge. That decision remains of full force and effect unless and until it has been quashed after a full substantive inter partes hearing. I shall return to that theme presently.
The applicant's case is advanced on two grounds, each alternative to the other. It is first suggested that the Secretary of State has not carried out the function provided for by section 32 (3). Alternatively, if he has exercised that power, it is claimed that he has done so unlawfully.
Section 16 of the Northern Ireland Act 1998 provides: -
"16. First Minister and deputy First Minister
(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the deputy First Minister.
(2) Each candidate for either office must stand for election jointly with a candidate for the other office.
(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.
…
(6) The First Minister or the deputy First Minister—
(a) may at any time resign by notice in writing to the Presiding Officer; and
(b) shall cease to hold office if he ceases to be a member of the Assembly otherwise than by virtue of a dissolution.
(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—
(a) shall also cease to hold office at that time; but
(b) may continue to exercise the functions of his office until the election required by subsection (8).
(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time."
If an election of a First Minister or deputy First Minister does not take place within the period of six weeks from the first meeting of the Assembly or the vacation of office of either of the Ministers, section 32 (3) becomes operative. It provides: -
"If the period mentioned in section 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. "
In an earlier application for leave to apply for judicial review it was accepted by the Secretary of State that since the posts of First Minister and deputy First Minister were vacant for more than six weeks he was under a duty to propose a date for the poll for the election of the next Assembly. In a press release issued on 6 November 2001 the Secretary of State was quoted as saying: -
"Having this afternoon consulted all parties, I see no reason for the next Assembly elections to be any earlier than 1 May 2003, the date which has already been set by Parliament in the Northern Ireland Act 1998"
On behalf of the applicant, Mr Larkin has suggested that this statement is "pregnant with ambiguity". Moreover, he claims that inquiries made as to its meaning raise the unmistakable impression that the Secretary of State has not in fact proposed a date for the poll because he believes that he has been relieved of the need to do so by the election of Mr Trimble as First Minister and Mr Durkan as deputy First Minister. The applicant has described these inquiries in the following paragraphs of his affidavit: -
"5. I sought clarification from the Northern Ireland Office duty officer by telephone during the early evening of 6 November 2001. In a prompt telephone response received by me about 7.00 pm I was informed by a Mr Tony Cavanagh … thus: 'given that the date is contained in the statute the Secretary of State does not therefore have to propose a date."
6. … I asked my special adviser to check the position again with Mr Cavanagh. My special adviser telephoned Mr Cavanagh and asked him: 'Is it the Secretary of State's position that because the date is set in statute that he does not require to propose a date? To this question Mr Cavanagh's answer was 'yes'.
7. In a later telephone call to my special adviser Mr Cavanagh said that he was giving the Secretary of State's 'opinion' and that we have to wait until tomorrow for a 'legal opinion'."
On behalf of the Secretary of State Mr Maguire has accepted that the statements attributed to Mr Cavanagh are at odds with the Secretary of State's acceptance that he was under an obligation to propose a date for the election of the next Assembly. He emphasised, however, that the Secretary of State had indeed proposed a date for the next election.
At this stage, as I have said, the applicant need only show that there is an arguable case. In the absence of evidence to the contrary, the exchange between Mr Robinson, his special adviser and Mr Cavanagh raises an arguable case that the Secretary of State has failed to carry out the function required of him under section 32 (3). It should be made clear, however, that, at present, the legal advisers of the Secretary of State have not been able to identify the duty officer concerned in order to obtain his account of the statements attributed to him. Moreover, and more importantly, if, notwithstanding whatever may have been said by Mr Cavanagh, the Secretary of State has in fact proposed a date for the holding of an election to the Assembly, there will be no basis for the applicant's first ground of claim. It must be clearly understood, therefore, that if Mr Maguire is correct that the Secretary of State has discharged his duty under section 32 (3) the first ground of challenge will fail.
The second ground of challenge proceeds on the basis that the Secretary of State has in fact made the proposal but that he has done so illegally. Mr Larkin argued that the structure of the legislation is such that the Secretary of State is obliged to choose a date other than that provided for in section 31 of the Act. He referred to the marginal note for section 32 which is "extraordinary elections". He suggested that this indicated that the date to be chosen by the Secretary of State had to be different from that which was specified in section 31. Mr Larkin also relied on Article 3 of the First Protocol to the European Convention on Human Rights. It provides: -
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
Mr Larkin submitted that, in light of section 32 (3) a reasonable interval in the present situation must be a significantly shorter period than that proposed by the Secretary of State.
On behalf of the Secretary of State Mr Maguire argued that the Secretary of State enjoyed a discretion as to the date to be chosen under section 32 (3). He submitted that it was open to him to take into account political developments and to reflect those in the proposal that he makes under section 32. If the political situation warranted it, the Secretary of State was free to choose a date that coincided with that under section 31 Mr Maguire suggested. At present there was a prospect of stable government for Northern Ireland and this factor had prompted the decision to select 1 May 2003. Mr Maguire also argued that the selection of that date did not violate Article 3 of the First Protocol. The interval between now and the date chosen was entirely reasonable in the context of the current political situation, he claimed.
I consider that there is considerable force in the submissions of Mr Maguire. There is nothing in the text of section 32 which expressly requires that the Secretary of State choose a different date from that provided for in section 31. Section 32 (3) appears to give the Secretary of State a wide discretion as to the date that he should choose. Moreover, the choice of date is clearly a political decision. The courts have consistently recognised in cases such as Re Williamson that a soft-edged review is appropriate where the decision challenged is political in nature.
I entertain considerable reservations about the viability of the applicant's case. In relation to the first argument, it would be highly surprising if the Secretary of State had resiled from an unequivocal statement made to this court that he would make a proposal for an election date. As regards the second, it appears to me that there is good reason that the discretion of the Secretary of State should be a wide one. The political considerations that may inform the exercise of that discretion are potentially limitless. The need for ample opportunity for choice is obvious.
Despite the misgivings that I have about the applicant's case, I do not consider that it is possible to say that the propositions on which it depends are unarguable. I will therefore grant leave to apply for judicial review.
As I have said, however, that ruling does not affect the current validity of the Secretary of State's decision. It merely permits the applicant to proceed with his challenge. Until that challenge has been heard there is no reason that the business of the Assembly should not continue.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY PETER ROBINSON
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW