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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 49 (21 December 2001)
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Cite as: [2001] NIQB 49
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Neutral Citation no.[2001] NIQB 49
Ref
KERF3564
Judgment: approved by the Court for handing down
Delivered:
21.12.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY PETER ROBINSON FOR JUDICIAL REVIEW
KERR J
Introduction
The applicant, Peter Robinson, is a Member of Parliament and a Member of the Legislative Assembly for Northern Ireland. At present he is the Minister for Regional Development in the Executive Committee of the Assembly. By this application he challenges the decision of the Secretary of State for Northern Ireland to propose as the date for the next election for the Assembly, 1 May 2003. Mr Robinson also challenges the validity of the election on 6 November 2001 of the Right Honourable David Trimble MP, MLA as First Minister and Mark Durkan MLA as Deputy First Minister.
Background
On 22 September 2001 the Secretary of State made the Northern Ireland Act 2000 (Restoration of Devolved Government) (No 2) Order 2001. This brought to an end a period of suspension of the Assembly and restored devolved government to Northern Ireland. The Order came into force on 23 September. By virtue of section 16 (8) of the Northern Ireland Act 1998 an election of the First Minister and the Deputy First Minister required to be held within six weeks of the date of the restoration of the Assembly. An election for the posts of First Minister and Deputy First Minister took place on 2 November 2001. Mr Trimble and Mr Durkan were the candidates. They were not elected. On 6 November a further election was held and on this occasion both Mr Trimble and Mr Durkan were successful. Later on 6 November, the Secretary of State proposed 1 May 2003 as the date on which elections to the Assembly should take place.
Statutory framework
Section 16 of the Northern Ireland Act 1998 provides: -
"16. - (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.
(4) The First Minister and the deputy First Minister-
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister
(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office-
(a) during any absence or incapacity of the holder; or
(b) during any vacancy in that office arising otherwise than under subsection (7)(a);
but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding 6 weeks
(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) 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.
(9) Standing orders may make provision with respect to the holding of elections under this section.
(10) In this Act "the pledge of office" means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4)."
The effect of the Order which came into force on 23 September 2001 was to reactivate the Assembly. The period referred to in section 16 (8) therefore expired at midnight on 2 November 2001.
Section 31 provides: -
"31. - (1) Subject to subsection (2), the date of the poll for the election of each Assembly shall be the first Thursday in May in the fourth calendar year following that in which its predecessor was elected; and the predecessor shall be dissolved at the beginning of the minimum period which ends with that date.
(2) The date of the poll for the election of the Assembly next following the Assembly elected under section 2 of the Northern Ireland (Elections) Act 1998 shall be 1st May 2003; and the Assembly elected under that section shall be dissolved at the beginning of the minimum period which ends with that date.
(3) The Secretary of State may at any time by order direct that the date of the poll for the election of the next Assembly shall, instead of being that specified in subsection (1) or (2), be a date specified in the order being a date falling not more than two months before or after the date specified in that subsection.
(4) An Assembly elected under this section or section 32 shall meet within the period of eight days beginning with the day of the poll at which it is elected.
(5) For the purposes of subsection (4), a Saturday, a Sunday, Christmas Day, Good Friday and any day which is a bank holiday in Northern Ireland shall be disregarded.
(6) In this section "minimum period" means a period determined in accordance with an order of the Secretary of State.
The present Assembly was elected under section 2 of the Northern Ireland (Elections) Act 1998 and the date for the poll for the election of the next Assembly would automatically be 1 May 2003 if section 31 (2) applied.
Section 32 provides: -
"32. - (1) If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.
(2) A resolution under subsection (1) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.
(3) 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.
(4) If the Secretary of State proposes a date under subsection (1) or (3), Her Majesty may by Order in Council-
(a) direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with section 31, be the date proposed; and
(b) provide for the Assembly to be dissolved on a date specified in the Order."
On the hearing of an earlier application by Mr Robinson for leave to apply for judicial review the Secretary of State accepted that from midnight on 3 November 2001 he had been under an obligation to propose a date for the election of the next Assembly pursuant to section 32 (3).
It is to be noted that the duty to propose a date under this provision arises if the period provided for in section 16 (8) ends without a First Minister and Deputy First Minister having been elected. An election (albeit one that did not elect a First Minister or a Deputy First Minister) had taken place on 2 November. This did not relieve the Secretary of State of his obligation under section 32 (3) because the posts of First Minister and Deputy First Minister remained vacant on the expiry date provided for in section 16 (8). The duty arising under section 32 (3) reflects the pivotal role played by the First Minister and the Deputy First Minister in the operation of the Assembly and the Executive Committee. If they are no longer in post, the Assembly cannot function other than on an interim basis. It is for that reason, no doubt, that the Secretary of State is given the task of proposing a date for the election of the new Assembly.
The duty imposed on the Secretary of State under section 32 (3) is to be contrasted with that under section 31 (3), however. In the latter provision the Secretary of State is confined to a period of two months on either side of the dates provided for in section 31 (1) and (2). No such restriction is applied by section 32 (2).
The case for the applicant
For the applicant, Mr Larkin argued that the requirement in section 16 (8) that an election of the First and Deputy First Minister take place within six weeks of either post becoming vacant was mandatory. He suggested that the obligation on the Secretary of State to propose a date for the poll for the election of the next Assembly supported that contention. In consequence, he claimed, it was not open to the Assembly to elect a First Minister and Deputy First Minister outside the period allowed by section 16 (8); moreover, after the six week period elapsed, it was incumbent on the Secretary of State to propose a "constitutionally prompt poll" and he was not entitled to have regard to the "invalid" election of the First and Deputy First Minister in deciding which date to propose.
In support of the suggested interpretation of section 16 (8) and the claimed effect of section 32 (3), Mr Larkin submitted that the court should consider statements made by Lord Dubs (then a Minister in the Northern Ireland Office) during debates in the House of Lords. On 19 October 1998, in response to a question from the Earl of Balfour, Lord Dubs said: -
"I should tell the noble Earl that the intention is that the Assembly is to elect the new First Minister and Deputy First Minister within six weeks of its first meeting or, in the case of a mid-term election, within six weeks of a vacancy. I do not think that six weeks is too short a period."
Later, replying to Lord Cope of Berkeley, the minister said: -
"The noble Lord, Lord Cope, asked what would happen if no election took place for the First or Deputy First Minister within the six week period. If the Assembly fails to make such an election within six weeks, it will be dissolved and the Secretary of State then sets the date for an extraordinary election. That is not unreasonable. Six weeks is a sufficiently long period to deal with a matter of importance to the government of Northern Ireland."
These statements, Mr Larkin suggested, betokened the intention of the government that, if the offices of First Minister and Deputy First Minister were vacant for more than six weeks, the Assembly should be dissolved and fresh elections should take place.
Finally, Mr Larkin argued that the duty imposed on the Secretary of State by section 32 (3) could only be discharged once in the lifetime of the Assembly. It cannot therefore have been intended, he claimed, that the Secretary of State should fix a "distant election date".
The respondents' reply
On behalf of the Secretary of State Mr Morgan QC referred to the preamble to the 1998 Act, which is in the following terms: -
"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[the Belfast Agreement]"
He suggested that the approach to the interpretation of individual sections of the legislation should be informed by its stated purpose of giving effect to the Belfast Agreement. Section 16 reflected paragraph 15 of Strand One of the Agreement and was designed to ensure that the provisions of paragraphs 14, 17, 18, 19 and 20 of Strand One were fulfilled.
Mr Morgan suggested that it was significant that the elapse of the periods referred to in section 16 (1) and (8) of the Act, while giving rise to a duty to act on the part of the Secretary of State under section 32 (3), did not require that the Assembly should come to an end. It was clearly contemplated that the Assembly would survive beyond that period and that Ministers would continue in office. If the Assembly continued, so also did its obligation to elect a First Minister and Deputy First Minister. Nothing in the legislation favoured the view that the Assembly should be dissolved and that Ministers be removed from office simply because an election of the First Minister and Deputy First Minister had not taken place. It was therefore open to the Secretary of State to take into account the election of Mr Trimble and Mr Durkan when deciding which date to propose.
Mr Morgan disputed the claim that the Secretary of State could only propose a date for a new election once during the life of an Assembly. He suggested that if either of the offices of the First Minister or the Deputy First Minister fell vacant and the posts were not filled by election within six weeks, the Secretary of State would be under a duty to propose a date under section 32 (3).
As to the excerpts from Hansard referred to by Mr Larkin, Mr Morgan submitted that no ambiguity as to the meaning of the relevant provisions arose; it was therefore unnecessary to have resort to these in order to deduce the intention of the legislature. In any event, Mr Morgan argued, the minister had clearly been in error in suggesting that the Assembly would be dissolved if a First Minister and Deputy First Minister were not elected within the time stipulated by section 16 (1) and (8). His answers should not be taken as a guide to the proper meaning of the relevant provisions, therefore.
For the First Minister and the Deputy First Minister Mr McCloskey QC contrasted the "notably limited" power conferred on the Secretary of State under section 31 (3) with that contained in section 32 (3). He submitted that this was indicative of Parliament's intention that he should have a wide discretion as to which date to propose for the new poll.
Mr McCloskey claimed that the requirements of section 16 (8) had been satisfied by the election held on 2 November 2001. The failure of the Assembly to elect the First Minister and the Deputy First Minister on that occasion did not relieve them of the obligation to seek to do so thereafter, however. Mr McCloskey suggested that the political realities of Northern Ireland (which would have been well known to Parliament at the time of enacting the 1998 Act) were such that it could not have been intended that if a successful election of the First and Deputy First Ministers was not achieved within the stipulated time the Assembly would collapse. There was nothing in the legislation to preclude the holding of a further election to elect them if the first election failed to achieve that outcome.
The Belfast Agreement
Paragraphs 14 to 25 of Strand One of the Belfast Agreement dealt with the executive authority of the proposed Assembly. These paragraphs provided that the First Minister and Deputy First Minister should discharge the executive authority of the Assembly with up to ten Ministers who would have departmental responsibilities. It was proposed that the Ministers would constitute the Executive Committee presided over by the First Minister and the Deputy First Minister. The duties of the First Minister and the Deputy First Minister were to include "dealing with and co-ordinating the work of the Executive Committee and the response of the Northern Ireland administration to external relationships".
It is clear that the holders of the posts of First and Deputy First Minister were considered to be fundamental to the functioning of the Executive Committee. It is equally clear that the Executive Committee was deemed to be essential to the existence of the Assembly. Since, as the Preamble to the 1998 Act makes clear, its purpose is to implement the Belfast Agreement the approach to the interpretation of the Act must be informed by the terms of the Agreement.
The excerpts from Hansard
It is well settled that recourse to statements in Parliament in order to provide guidance as to thecorrect interpretation to be placed on statutory language should only be undertaken where (a) legislation was ambiguous or obscure, or led to an absurdity; (b) the material relied on consisted of one or more statements by a minister or other promoter of the Bill together, if necessary, with such other parliamentary material as might be necessary to understand such statements and their effect; and (c) the effect of such statements was clear (see Pepper v Hart[1993] AC 593 at 631, 634, 640). In R v Secretary of State for the Environment, Transport and the Regions and another, ex parte Spath Holme Ltd [2001] 1 All ER 195, 211h to 212d, Lord Bingham of Cornhill said of these conditions: -
"In my opinion, each of these conditions is critical to the majority decision. (1) Unless the first of the conditions is strictly insisted upon, the real risk exists, feared by Lord Mackay, that the legal advisers to parties engaged in disputes on statutory construction will be required to comb through Hansard in practically every case (see [1993] AC 593 at 614, 616). This would clearly defeat the intention of Lord Bridge that such cases should be rare ([1993] AC 593 at 617), and the submission of counsel that such cases should be exceptional ([1993] AC 593 at 597). (2) It is one thing to rely on a statement by a responsible minister or promoter as to the meaning or effect of a provision in a bill thereafter accepted without amendment. It is quite another to rely on a statement made by anyone else, or even by a minister or promoter in the course of what may be lengthy and contentious parliamentary exchanges, particularly if the measure undergoes substantial amendment in the course of its passage through Parliament. (3) Unless parliamentary statements are indeed clear and unequivocal (or, as Lord Reid put it inWarner v Metropolitan Police Comr, [1969] 2 AC 256 at 279, such as 'would almost certainly settle the matter immediately one way or the other'), the court is likely to be drawn into comparing one statement with another, appraising the meaning and effect of what was said and considering what was left unsaid and why. In the course of such an exercise the court would come uncomfortably close to questioning the proceedings in Parliament contrary to art 9 of the Bill of Rights 1689 and might even violate that important constitutional prohibition."
I do not consider that the statements of Lord Dubs partake of the unequivocal quality necessary to settle the matter of the proper construction of sections 16 and 32 of the Act once and for all. Indeed, he himself expressed some misgivings as to the correctness of the statements that he had made. At one point he said: -
"I hope that I have got this right because these statements are becoming rather technical."
I would not be prepared to rely on the statements made by the Minister, therefore, as providing the infallible guidance as to the correct interpretation of the relevant provisions.
Section 16 (8)
Mr Larkin's submissions on section 16 (8) have two aspects. Firstly, he suggests that the requirement to hold an election within six weeks of the vacation of office of either the First Minister and the Deputy First Minister is mandatory. Secondly, he claims that an election outside the six week period is invalid. It is important to recognise that these are not necessarily mutually dependent. Section 16 (8) does not expressly specify that if an election is held within the period stipulated without a First Minister or Deputy First Minister being elected, no further election may be held. To succeed in his challenge the applicant must establish that a second election outside the six week period is forbidden by necessary implication from the provisions of section 16 (8) and section 32 (3).
I am not persuaded that the requirement to hold an election imposed by section 16 (8) is mandatory. There is nothing in the Belfast Agreement that requires that the election of the First Minister and Deputy First Minister be held within a stipulated time. As Mr McCloskey suggested, it is to be presumed that the political realities in Northern Ireland were known to Parliament at the time of the enactment of the 1998 Act. The Belfast Agreement was designed to achieve political progress on the basis of a broad consensus between the political parties. It is inimical to that concept to impose an inflexible time limit on one of the critical elements of the plan for government of Northern Ireland.
In this context it is relevant to consider what the statute provides by way of consequence for the failure to comply with section 16 (1) and (8). Bennion on Statutory Interpretation 3rd Edition deals with this topic at page 31 as follows:
"Where a requirement arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from the failure to implement the requirement … There is no rule of thumb in this matter. 'No universal rule can be laid down … It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed' (Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379, per Lord Campbell CJ at 380)"
The consequence of non-compliance with the time limit in section 16 (1) and (8) is that the Secretary of State will propose a date for the poll and the Assembly will lose the opportunity that would otherwise be available under section 32 (1) of the Act to pass a resolution that it should be dissolved. It appears to me that there is no reason to import the further consequence of rendering invalid the election of a First Minister and Deputy First Minister on a subsequent poll. Such a consequence is not expressly provided for and would, in my opinion, run counter to the purpose of the legislation.
The question whether time limits imposed by statute are to be regarded as mandatory or directory was discussed in Wade & Forsyth on Administrative Law, Eighth Edition at page 231: -
"It has often been held that an act may be validly done after the expiry of a statutory time limit. … Even where the time limit is designed as a safeguard of individual freedom the court may, by weighing the public interest against that of the individual, hold that the time limit is directory only, as did a divided Court of Appeal in the case of the ten-day period of notice required for applying for a disqualification notice against a company director. (Secretary of State for Trade and Industry v Langridge [1991] Ch. 402) … time limits governing electoral procedure may sometimes be exceeded with impunity, as where a list of voters was revised after the time appointed by the Act. (R v Rochester (Mayor) (1857) 7 E & B 910) In New Zealand the court understandably refused to invalidate a general election, even though the Governor-General's warrant was issued unduly late. (Simpson v A.-G. [1955] NZLR 271) These are cases where public policy clearly requires some latitude."
The New Zealand case involved section 102 (4) of the Electoral Act 1927 which required that every writ for the election of a Member of Parliament should be made returnable in forty days. The writs were in fact made returnable forty-one days after their issue. The Court of Appeal held that section 101 of the Electoral Act (which required the Governor-General to direct the Clerk of the Writs to proceed with the elections) related to the performance of a public duty and that to hold null and void acts done in neglect of that duty would work "serious general inconvenience" and would not promote the main object of the Electoral Act which was to sustain and not to destroy the House of Representatives.
By analogy the purpose of the Northern Ireland Act 1998 (to make provision for the government of Northern Ireland and to implement the Belfast Agreement) would be frustrated if the time limit contained in section 16 (8) were to be applied in a rigid, inflexible fashion. I consider that this is an example of those cases where public policy demands latitude in the application of the time limit. The challenge to the validity of the election of the First Minister and the Deputy First Minister fails, therefore.
Even if the requirement in section 16 (8) is to be regarded as mandatory, it does not automatically follow that the election held on 6 November 2001 is invalid. As Mr McCloskey pointed out, an election was held within the time limit specified in the sub-section. Technically, therefore, the section was complied with; the existence of an express consequence for the failure to comply with the requirement and the absence of any reference to the dissolution of the Assembly if the First Minister and Deputy First Minister are not elected militate against the proposition that no further election may be held even if the requirements of section 16 (1) and (8) are to regarded as mandatory. I need not decide this point, however, and I do not express any concluded opinion on it.
Section 32 (3)
I consider that the Secretary of State has been given a wide discretion by section 32 (3) in his choice of date to propose for the next election to the Assembly. It was submitted on his behalf 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. I accept that argument. Having held that the election of Mr Trimble and Mr Durkan was valid, I am satisfied that the Secretary of State was entitled to take the result of that election into account. The Secretary of State has concluded that there is a prospect of stable government for Northern Ireland and this had influenced his decision to select 1 May 2003. I consider that he was entitled to have regard to that factor.
I am satisfied that the fact that the date chosen by the Secretary of State coincides with that provided for in section 31 (2) does not render the choice invalid. As I have said, the Secretary of State enjoys a wide discretion in this matter. Moreover,a decision such as this is taken in a political context and the political considerations which inform it place it firmly in the category of soft-edged review where it is inappropriate for the courts to intervene – see Re Williamson's Application [2000] NI 294.
I do not accept that the Secretary of State may not use section 32 (3) again during the life of the Assembly. There is nothing in the wording of the provision that would warrant such a conclusion. On the contrary, the combined effect of sections 16 (8) and 32 (3) is, in my view, clear. If the offices of the First Minister and the Deputy First Minister become vacant at any time and the period mentioned in section 16 (8) ends without a First Minister and a Deputy First Minister having been elected, the Secretary of State is obliged to propose a date for the poll for the election of the next Assembly.
I have concluded, therefore, that the challenge to the Secretary of State's decision to propose I May 2003 as the date for the next election to the Assembly must also fail. The application for judicial review is dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY PETER ROBINSON FOR JUDICIAL REVIEW