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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robinson v Secretary of State for Northern Ireland & Ors [2002] UKHL 32 (25 July 2002)
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Cite as: [2002] NI 390, [2002] UKHL 32

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Judgments - Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland)

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Hoffmann Lord Hutton Lord Hobhouse of Wood-borough Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

    ROBINSON

    (APPELLANT)
v
    SECRETARY OF STATE FOR NORTHERN IRELAND AND OTHERS

    (RESPONDENTS)

(NORTHERN IRELAND)

ON 25 JULY 2002

[2002] UKHL 32

LORD BINGHAM OF CORNHILL

My Lords,

1. The issue in this appeal is whether the election by the Northern Ireland Assembly of a First Minister and Deputy First Minister on 6 November 2001, more than six weeks after the restoration of devolved government in Northern Ireland on 23 September 2001, was legally valid.

2. For half a century Northern Ireland enjoyed devolved government under the Government of Ireland Act 1920. Under that Act elections were held and governments formed on straightforward majoritarian principles. Since, throughout the period, supporters of one (unionist) party were numerically superior, that party dominated the government with the effective exclusion of minority (in particular, nationalist) parties from any share in the exercise of power. In 1972 (for reasons which the House need not examine in this appeal) devolved government was suspended. After some trials and much tribulation, agreement on the future government of Northern Ireland was eventually reached at multi-party talks. The effect of this agreement (known as the Belfast Agreement) was set out in a command paper (Cm 3883) presented to Parliament in April 1998. The object of the Belfast Agreement was to achieve "reconciliation, tolerance and mutual trust" and "the protection and vindication of the human rights of all" (Declaration of Support, para 2). The parties committed themselves to "partnership, equality and mutual respect" (ibid, para 3). They also pledged themselves in good faith to work to ensure the success of the arrangements to be established under the Agreement (ibid, para 5). A new Assembly, operating where appropriate on a cross-community basis, was to be the prime source of authority in respect of all devolved responsibilities (Strand One, para 4).

3. The Northern Ireland Act 1998 was enacted to implement the Belfast Agreement, as the long title to the Act and section 3(1) make clear. The purpose of the Act (so far as relevant to this appeal) is to provide for the restoration of devolved government in Northern Ireland but on a basis significantly different from that provided under the 1920 Act. There is to be a new Northern Ireland Assembly. There are also to be a First Minister and Deputy First Minister ("FM" and "DFM"). And there are to be up to ten Ministers, acting as the political heads of Northern Ireland departments. But in respect of each of these key elements the Act provides mechanisms to prevent the exercise of power by either of the two main communities, unionist and nationalist, to the exclusion of the other. Thus members of the Assembly are to be elected on a single transferable vote (section 34(2)), to ensure proportionate representation of differing political opinions. Ministerial offices are to be allocated according to a formula set out in section 18, the object of which is to relate the number of offices held and the choice of offices to the number of seats held in the Assembly. Similar safeguards are contained in the provisions of section 16 governing the important offices of FM and DFM which, since they lie at the heart of this appeal, should be cited in full:

4. The key role of the FM and DFM was recognised by Kerr J who gave judgment in this case at first instance (21 December 2001, unreported, p 11), and also by all three members of the Court of Appeal of Northern Ireland (21 March 2002, unreported; see the judgments of Carswell LCJ, p 13; Nicholson LJ, p 4; and McCollum LJ, p 6). The FM and DFM were seen as the directing members of the new executive (see the Belfast Agreement, Strand One, paras 17-20). The unusual requirement that the FM and DFM be elected jointly, and that their election be conditional on obtaining majority support from both designated unionists and from designated nationalists voting in the election, is not hard to understand. It was plainly envisaged that if both candidates belonged to one party or group of parties, there would be no or no adequate support from members belonging to the opposing party or group of parties. So the joint candidates had to command an adequate level of support from both sides, a requirement which may perhaps have been intended to encourage the nomination of candidates holding moderate rather than extreme political views.

5. While those who drafted and enacted the 1998 Act no doubt hoped that the ambitions expressed in the Belfast Agreement would be fulfilled and achieved, it seems unlikely that the transition to harmonious cross-community government was expected to be wholly free of difficulty. Two parties which had participated in the earlier stages of the negotiations leading to the Belfast Agreement had withdrawn some months before the Agreement had been reached. There was an enduring legacy of animosity and distrust to overcome. Thus difficulty in securing election of a FM and DFM was to be apprehended. There might (so far as permitted by standing orders) be procedural challenges and filibusters. There might be applications for judicial review. There might simply be a failure or refusal to agree on joint candidates. So it seems likely that the references to six weeks in section 16(1) and (8) of the 1998 Act were inserted (by amendment of the Bill as initially presented to the House of Commons) in order to enable the situation to be resolved if the election of a FM and DFM were to lead to deadlock or stalemate.

6. But section 16 leaves an important question unanswered: what was to happen if the six week period expired and no FM and DFM had been elected? The nearest the Act comes to answering this question is in section 32, which provides:

This section must be read in the light of the preceding section, section 31, which is in these terms:

(4)

7. The history of transition to devolved government under the 1998 Act has proved somewhat staccato. Elections to the new Assembly were duly held under the Northern Ireland (Elections) Act 1998 and a FM and DFM were duly elected by the Assembly. But it proved necessary, for reasons not germane to this appeal, to suspend the operation of devolved government in Northern Ireland. This was achieved by the Northern Ireland Act 2000 and the Northern Ireland Act 2000 (Commencement) Order 2000 (SI 396/2000) and became effective on 12 February 2000. Devolved government was restored on 30 May 2000 by the Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2000 (SI 1445/2000), again suspended on 11 August 2001 by the Northern Ireland Act 2000 (Suspension of Devolved Government) Order 2001 (SI 2884/2001), again restored on 12 August 2001 by the Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2001 (SI 2895/2001), again suspended on 22 September 2001 by the Northern Ireland Act 2000 (Suspension of Devolved Government) (No 2) Order 2001 (SI 3230/2001) and finally restored on 23 September 2001 by the Northern Ireland Act 2000 (Restoration of Devolved Government) (No 2) Order 2001 (SI 3231/2001). On 1 July 2001, however, before the last four of the statutory instruments referred to, the FM previously elected by the Assembly had resigned. By virtue of section 16(7) of the 1998 Act the effect of his resignation was that the elected DFM also ceased to hold office. Thus when devolved government was restored on 23 September 2001 the offices of FM and DFM were vacant and section 16(8) applied, requiring the Assembly to hold an election to fill the vacancies within a period of six weeks beginning with that date. The six week period expired at midnight on Sunday 4 November 2001.

8. On Friday 2 November 2001 the Assembly held an election to fill the offices of FM and DFM, but the candidates (Mr David Trimble and Mr Mark Durkan) did not receive the measure of cross-community support required by section 16(3) of the 1998 Act, with the result that they were not elected. This failure led to discussions involving the Secretary of State and others, to which the Secretary of State referred in a statement which he issued on the evening of Saturday 3 November. In this he said:

A further election was not in the event held on Monday 5 November (because, as I understand, of legal proceedings brought against the Secretary of State), but on Tuesday 6 November an election was held at which, following the re-designation as unionists of a number of members of the Assembly who had previously been neither designated unionists nor designated nationalists, the candidates did receive the measure of cross-community support required by section 16(3) of the 1998 Act and were elected. Thus the question arises whether such election, made outside the six week period provided in section 16(8) is valid. Later on 6 November 2001 the Secretary of State announced that

Effect was in due course given to this proposal by the Northern Ireland (Date of Next Assembly Poll) Order 2001 (SI 3959/2001).

9. In an argument of notable ability on behalf of the appellant, Mr John Larkin QC submitted that the Assembly had no power to elect an FM and DFM after the expiry of the six week period laid down in section 16(8). The Assembly is a creature of statute. It has such powers as the 1998 Act confers on it and no others. The clear duty of a new Assembly under section 16(1) is to elect a FM and DFM from among its members within a period of six weeks beginning with its first meeting. The equally clear and admitted duty of the Assembly under section 16(8) when the offices of FM and DFM become vacant at any time is to hold an election to fill the vacancies within a period of six weeks beginning with that time. At the end of the six-week period, in either event, the duty expires. No provision of the Act confers a power to elect a FM and DFM after the expiry of that period. But section 32(3) makes clear what is to happen if an election is not held or candidates commanding the required measure of support are not elected within the six-week period. The Secretary of State shall propose a date for the poll for the election of the next Assembly. It is plainly contemplated that an early poll will be proposed and directed, in order that the deadlock in the Assembly can be resolved democratically by appeal to the people. The procedure laid down in section 32(3) mirrors that in section 32(1) where the Assembly has resolved that it should be dissolved, a situation in which an early appeal to the people must have been contemplated. The Secretary of State could not properly exercise his admitted duty under section 32(3) by proposing as the date of the poll for election of the next Assembly the date, 18 months ahead, on which the poll was already fixed by section 31(2) of the Act, but his action in purporting to do so compounded his initial error of supposing that the Assembly could make a valid election once the six-week period had expired. It was the duty of the courts to interpret and apply the 1998 Act and not to reach a decision driven by the supposed undesirability of the outcome contended for by the appellant. This is an argument of undoubted cogency, as the dissenting judgment of the Lord Chief Justice and the opinions of my noble and learned friends Lord Hutton and Lord Hobhouse of Woodborough make clear. But I cannot for my part accept it, for essentially the reasons given by Kerr J at first instance and by the majority of the Court of Appeal, which were deployed before the House by the Attorney General (Lord Goldsmith QC) for the Secretary of State and Mr McCloskey QC for Mr Trimble and Mr Durkan.

10. The 1998 Act, as already noted, was passed to implement the Belfast Agreement, which was itself reached, after much travail, in an attempt to end decades of bloodshed and centuries of antagonism. The solution was seen to lie in participation by the unionist and nationalist communities in shared political institutions, without precluding (see section 1 of the Act) a popular decision at some time in the future on the ultimate political status of Northern Ireland. If these shared institutions were to deliver the benefits which their progenitors intended, they had to have time to operate and take root.

11. The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. Mr Larkin submitted that the resolution of political problems by resort to the vote of the people in a free election lies at the heart of any democracy and that this democratic principle is one embodied in this constitution. He is of course correct. Sections 32(1) and (3) expressly contemplate such elections as a means of resolving political impasses. But elections held with undue frequency are not necessarily productive. While elections may produce solutions they can also deepen divisions. Nor is the democratic ideal the only constitutional ideal which this constitution should be understood to embody. It is in general desirable that the government should be carried on, that there be no governmental vacuum. And this constitution is also seeking to promote the values referred to in the preceding paragraph.

12. It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude.

13. All these general considerations have a bearing, in my opinion, on the statutory provisions at the heart of this case. The parties are agreed that section 16(8) imposes a duty on the Assembly. The parties are also agreed that such duty is mandatory, although further agreeing that the old dichotomy between mandatory and directory provisions is not a helpful analytical tool. A more helpful approach is that articulated by Lord Slynn of Hadley in Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1296 where he said:

In the present case the answer to the first of those questions is plain. Parliament did intend the Assembly to comply with the six-week time limit laid down in section 16(8). That is why it conferred power on the Secretary of State to intervene if, at the end of that period, no FM and DFM had been elected. It is the answer to the second question which fundamentally divides the parties.

14. Had it been Parliament's intention that on a failure to elect within six weeks as required by section 16(1) and (8) the Secretary of State should forthwith put arrangements in train to dissolve the Assembly and initiate an early poll for a new Assembly, this could very easily and simply have been stated. But this is not what section 32(3) says and such a provision

(1) would have been surprising, particularly in the context of section 16(1), since little more than seven weeks would have elapsed since the last poll (section 31(4)) and there could be no assurance that a further poll would procure a different result;

(2) would have precluded the possibility of negotiation and compromise to find a political solution to an essentially political problem, contrary (as I would suggest) to British political tradition; and

(3) would have deprived the Secretary of State, acting as the non-partisan guardian of this constitutional settlement, of any opportunity to wait, even briefly, for a solution to the problem to emerge.

It is difficult to see why Parliament, given the purposes it was seeking to promote, should have wished to constrain local politicians and the Secretary of State within such a tight straitjacket.

15. It is plain from the wording of section 32(3), as the Secretary of State has accepted from the outset, that on expiry of six weeks without an effective election he became subject to a duty to propose a date for the poll for the election of the next Assembly. Parliament thereby expressed its intention that in this eventuality the Secretary of State should have not only a power but a duty to bring matters to a head. There was to be no protracted stalemate, no persisting vacuum in the conduct of the devolved government. But Parliament imposed no temporal limitation either on the making of the proposal or on the date proposed. If there appeared to be no prospect of an imminent and effective election under section 16(8), or if the Assembly resolved under section 32(1) that it be dissolved forthwith, the Secretary of State would no doubt be expected to propose a very early date for a poll. If, on the other hand, the Assembly resolved on dissolution at a future date earlier than its normal terminal date, the Secretary of State might no doubt be expected to propose a date further in the future. And if an effective election under section 16(8) appeared to be imminent, one would expect the Secretary of State to pause in order that the political process might take effect and, if it did, to propose a date in the future which would take account of that effective election.

16. This of course assumes that the Assembly had power to elect a FM and DFM after expiry of the six week period, an issue on which the parties were sharply divided. The Act itself neither provides that the Assembly has such power nor that it has not. In the Bill originally introduced in Parliament the subclauses which became section 16(1) and (8) simply provided:

Thus there was a general power in the Assembly, unconstrained by time, to make the elections. The six-week constraint was introduced, understandably enough, to preclude the possibility of indefinite deadlock. But I can see no reason why, in introducing that time limit, it should have been intended to constrain the Assembly's power to elect otherwise than by subjecting it to the Secretary of State's power and duty to intervene.

17. Reference was made in argument to answers given by Lord Dubs, a junior minister in the Northern Ireland Office, in the course of debates in the House of Lords, to which the Lord Chief Justice in his dissenting judgment attached some considerable weight. There is, as it seems to me, only one answer of significance, given on 19 October 1998 (HL Deb col 1229) when Lord Dubs said:

On its face that statement gives the appellant some help. It must however be read in context. An opposition speaker had criticised the six week restriction as ineffective because there was no sanction for failing to comply with it. Lord Dubs replied pointing out that there was a sanction in the Secretary of State's power to intervene. In this he was quite correct. In suggesting that the Assembly "will be dissolved" he was not however explaining the language of the Act, nor was he accurately stating its effect, and he was not considering (because the question had not been raised) what the position would be if, at the end of the six-week period, there had been no effective election but such an election was reasonably expected within a matter of days. It is not surprising that a minister, called upon at very short notice to answer a number of unexpected points, failed to speak with the precision expected of a parliamentary draftsman. This is in my opinion a very good illustration of the sort of case in which the limited departure permitted by the House in Pepper v Hart [1993] AC 593 cannot properly be relied upon as an aid to interpretation.

18. For these reasons, which are essentially those given by Kerr J and the majority in the Court of Appeal, and also the reasons given by my noble and learned friends Lord Hoffmann and Lord Millett, I conclude that the Assembly had power to make a valid election even though the six-week period prescribed under section 16(8) had expired, that the election of Mr Trimble and Mr Durkan on 6 November 2001 was lawful and that in the unusual circumstances of this case the Secretary of State was entitled to propose as the date for the poll for the election of the next Assembly a date already fixed by section 31(2) of the 1998 Act.

19. I would accordingly dismiss this appeal.

LORD HOFFMANN

My Lords,

20. The question in this appeal is whether the Northern Ireland Assembly had power to elect Mr David Trimble and Mr Mark Durkan as First Minister and Deputy First Minister of Northern Ireland on 6 November 2001. That was two days after the period of six weeks prescribed by section 16(8) of the Northern Ireland Act 1998 for such an election. The appellant Mr Robinson, a Democratic Unionist member of the Assembly, says that the power to elect had expired and the elections were therefore invalid. The respondent ministers and the Secretary of State for Northern Ireland say that the six week period did not affect the power to elect. Its expiry without an election had only the one consequence specifically laid down in the Act, namely that the Secretary of State became obliged pursuant to section 32(3) to propose a date for the poll for the election of a new Assembly. This proposal would in turn confer a power upon Her Majesty in Council to dissolve the Assembly and hold a new election upon the date proposed: section 32(4). But until dissolved, the Assembly continued in being and could still elect a First and Deputy First Minister.

21. The 1998 Act does not say, in so many words, that the Assembly has power to elect the First and Deputy First Minister. It leaves this to be inferred from the provisions of section 16(1) and (8), which provide that the Assembly shall elect them from among its members within a period of six weeks beginning with its first meeting or the occurrence of a vacancy, as the case may be.

22. There are two ways in which one might infer the existence of such a power. One is to say that section 16(1) and (8) impose duties upon the Assembly. They have a statutory obligation to elect and this necessarily connotes a power to perform the duty. It makes no sense to say that the Assembly is under a duty to elect unless the election will result in the Ministers being validly elected. But for this purpose, all that can be inferred is a power co-extensive with the duty. One cannot infer from a duty to elect within six weeks that there must be a power to elect after six weeks. If there is such a power, it must be found somewhere else. And as there is no statutory source for the power other than section 16(1) and (8), there can be no such power. The Assembly and the Ministers are entirely creatures of statute. So the power to elect the Ministers must be found somewhere in the statutory language. If it is not a necessary inference from sections 16(1) and (8), it does not exist. That is how the appellant invites your Lordships to look at the matter.

23. The respondents say that it is rather artificial to speak of sections 16(1) and (8) imposing duties upon the Assembly. It is true that they say that the Assembly "shall...elect" or that an election "shall be held". But no one will go to prison if the Assembly fails within the six week period to produce the necessary majorities to elect the Ministers. Nor is it conceivable that a court would order the Assembly to do so. If sections 16(1) and (8) and section 32(3) are read together, it becomes apparent that describing the Assembly as being under a duty could give a misleading impression. It would be more accurate to say that the Assembly's failure to elect within six weeks is an event which triggers a duty on the part of the Secretary of State to propose an election date.

24. On this reading of the statute, one is not simply deriving a co-extensive power from the existence of a duty. It is rather that section 16(1) and (8) and section 32(3) assume as background the existence of a power to elect. Section 16(1) also prescribes the class of candidates (members of the Assembly) and section 32(3) provides for what is to happen if there is no election within six weeks. Because they obviously assume the existence of such a power, the three sections requires one to be implied. But the process of implication is different from that of deriving a power directly from the imposition of a duty. An inference from a background assumption may be in more general terms. The statute simply assumes that there is a power to elect. A general power in these terms would not be inconsistent with a provision that the Secretary of State should propose a date for a new election if the power has not been exercised within six weeks. So there is no reason why it should not continue for as long as the Assembly remains in being and there is a vacancy.

25. In choosing between these two approaches to construction, it is necessary to have regard to the background to the 1998 Act. It was passed to give effect to the Belfast Agreement concluded on Good Friday 1998. This agreement was the product of multi-party negotiations to devise constitutional arrangements for a fresh start in Northern Ireland. A key element in the agreement was the concept of decisions being made with cross-community support, that is, by representatives of majorities of both the unionist and nationalist communities. The 1998 Act is a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in Belfast.

26. The agreement provided that the Assembly was to be "the prime source of authority" in respect of devolved responsibilities and would exercise "full legislative and executive authority". The executive authority would be discharged on behalf of the Assembly by a First Minister and a Deputy First Minister jointly elected with cross-community support. Other ministerial posts would be allocated to parties according to their representation in the Assembly, but the ministers would constitute an Executive Committee presided over by the First and Deputy First Minister.

27. Section 16 of the 1998 Act gives effect to the agreement by providing in section 16(3) that the First and Deputy First Minister should always be elected jointly and that they should not be elected without three majorities in the Assembly: a majority of the members voting, a majority of the Nationalists voting and a majority of the Unionists voting. It was obviously going to be a matter of delicate negotiation to secure, first, a joint ticket of two candidates willing to be yoked together and secondly, the three required majorities. But the positions occupied by the First and Deputy First Ministers made their election essential to enable devolved government to be carried on.

28. The question of what would happen if the Assembly became deadlocked over the election of the First and Deputy First Ministers seems to have been raised for the first time during the passage of the bill through Parliament. As a result, the remedy adopted (by amendments introduced at committee stage in the House of Lords) was the six week time limit and the provisions for new elections in section 32. The idea seems to have been to induce a willingness to compromise on the part of members of the Assembly by the prospect of having to fight a new election. There is an obvious analogy with the power of a British Prime Minister to concentrate the minds of unco-operative members of his party by threatening to call an election.

29. A new election is however not something to be lightly undertaken, as some Prime Ministers who have called premature elections have discovered to their cost. So, in choosing between the two constructions of section 16 which have been put forward, I think it is reasonable to ask which result is more consistent with a desire to implement the Belfast Agreement: a situation in which an immediate election becomes mandatory as soon as the six week period has passed or one in which the Secretary of State retains a discretion, for the exercise of which he is politically answerable, to take advantage of developments in the Assembly which enable a First and Deputy First Minister to be elected and to carry on the government of Northern Ireland.

30. In my opinion the rigidity of the first alternative is contrary to the Agreement's most fundamental purpose, namely to create the most favourable constitutional environment for cross-community government. This must have been foreseen as requiring the flexibility which could allow scope for political judgment in dealing with the deadlocks and crises which were bound to occur.

31. In addition, the existence of a discretion seems to me confirmed by the structure of section 32, which carries through the analogy with dissolution under the British constitution. The Secretary of State must "propose" a date for a poll but Her Majesty "may" by Order in Council fix the date of the poll on that date and dissolve the Assembly on a suitable earlier date. At one level, this reflects the British constitutional theory that a dissolution is the prerogative of the Sovereign. It would not be in accordance with constitutional practice to provide that Her Majesty must dissolve the Assembly. (The question of whether she could in any circumstances exercise a personal choice in the exercise of this prerogative in respect of the United Kingdom Parliament is occasionally a matter for speculation.) But the use of the analogy in respect of the Northern Ireland Assembly introduces an intermediate level at which the discretion is real. It is for the Secretary of State to advise Her Majesty to make the Order in Council and there is nothing in the Act which obliges the Secretary of State, even after proposing a date, to give such advice. Such a discretion is inconsistent with a scheme under which an immediate election becomes mandatory after the six weeks has expired. Even on the appellants' construction, there is no means by which the holding of such an election can be compelled. There would be a deadlock under which the Secretary of State could not be compelled to hold an election but the Assembly, even if able to do so, could not validly elect a First and Deputy First Minister.

32. For these reasons I consider that the construction advanced by the respondents and adopted by the majority in the Court of Appeal was correct. The Assembly retained a power to elect after the expiry of the six week period and the Secretary of State, in fixing a date pursuant to section 32(3), was entitled to take into account the fact that the Assembly had already succeeded in electing a First and Deputy Furst Minister, or (if that had been the case) that it appeared likely to be able to do so within a reasonable time.

33. Mr Larkin QC, in the course of his admirable argument for the appellant, politely but firmly reminded your Lordships that your function was to construe and apply the language of Parliament and not merely to choose what might appear on political grounds to be the most convenient solution. It is not for this House, in its judicial capacity, to say that new elections in Northern Ireland would be politically inexpedient. Mr Larkin cited Herbert Wechsler's famous Holmes Lecture, Towards Neutral Principles of Constitutional Law ((1959) 73 Harvard LR 1). My Lords, I unreservedly accept those principles. A judicial decision must, as Professor Wechsler said (at p. 19) rest on "reasons that in their generality and their neutrality transcend any immediate result that is involved." But I think that the construction which I favour satisfies those requirements. The long title of the Act is "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...". According to established principles of interpretation, the Act must be construed against the background of the political situation in Northern Ireland and the principles laid down by the Belfast Agreement for a new start. These facts and documents form part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.

34. Mr Larkin said that the respondents' position was undemocratic: it denied the electorate of Northern Ireland the right to elect a new Assembly which was granted to them by the Act. But that of course begs the question, which is whether the Act requires an immediate election or not. On the construction which I have adopted, the question of when the election should be held will be a matter for the Secretary of State and will be informed by his political judgment as to the likelihood of the Assembly being able to elect the Ministers. But that does not mean that your Lordships are making a political decision. Your Lordships are not expressing any views on whether holding an election immediately after 6 November 2001 would have been politically expedient or not. That was a matter for the Secretary of State.

35. The appellant also relied, as supporting his construction, on certain remarks made by Lord Dubs during the committee stage of the bill in the House of Lords. I could simply say that nothing that was said in the debate addressed the question presently before your Lordships and that it did not therefore satisfy the requirements of admissibility laid down in Pepper v Hart [1993] AC 593. One might leave it at that. But the ministerial remarks relied upon had certain features which, at any rate in my experience, are typical of the kind of material put forward under Pepper v Hart and some general observations might therefore be appropriate.

36. Lord Dubs moved the grouped amendments which introduced the six weeks time limits late in the afternoon of 19 October 1998. There was a brief discussion about whether six weeks was too long, too short or about right. Lord Cope of Berkeley was inclined to think it was too short. He also asked, pertinently, what the sanction was for failure to elect within six weeks. Lord Dubs said:

37. He went on to say that the Government did not want to fix a period shorter than six weeks "if failure to do so in the appointed time would trigger a new election for the Assembly."

38. These are the remarks principally relied upon as showing that Parliament intended that the expiry of six weeks should trigger an immediate election. It seems to me, however, that although the answers given by Lord Dubs were a perfectly adequate and concise explanation of the effect of the clause and the Government's reasons for choosing a six week period, neither he nor the other noble Lords who took part in the debate gave any thought to the question of whether the Assembly would retain a power to elect after the expiry of that period. That question was never raised.

39. The passages in Hansard relied upon in this case are in my experience fairly typical of the material tendered in reliance upon the principle in Pepper v Hart. It is now nearly ten years since the case was decided and, as the difference of opinion in that case turned mainly upon predictions of the practical consequences of allowing such material to be used, your Lordships have the advantage of experience in assessing the results. Lord Mackay of Clashfern thought that it would increase the expense of litigation without contributing very much of value to the quality of decision-making. The majority thought that it would occasionally assist in deciding what Parliament intended and, if strictly confined by conditions, would not add greatly to the expense.

40. Speaking for myself, I think that Lord Mackay has turned out to be the better prophet. References to Hansard are now fairly frequently included in argument and beneath those references there must lie a large spoil heap of material which has been mined in the course of research without yielding anything worthy even of a submission. In R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 391-392, 398-399, 407-408 and 413, and again in R v A (No. 2) [2002] 1 AC 45, 79 attempts were made by several of your Lordships to reduce the flow by insisting that the conditions for admissibility must be strictly complied with. I am not sure that it is sufficiently understood that it will very rare indeed for an Act of Parliament to be construed by the courts as meaning something different from what it would be understood to mean by a member of the public who was aware of all the material forming the background to its enactment but who was not privy to what had been said by individual members (including Ministers) during the debates in one or other House of Parliament. And if such a situation should arise, the House may have to consider the conceptual and constitutional difficulties which are discussed by my noble and learned friend Lord Steyn in his Hart Lecture ((2001) 21 Oxford Journal of Legal Studies 59) and were not in my view fully answered in Pepper v Hart.

41. My Lords, I would dismiss the appeal.

LORD HUTTON

My Lords,

42. Section 16(1) of the Northern Ireland Act 1998 provides:

Section 16(8) provides:

43. Prior to 1 July 2001 Mr David Trimble MP, MLA, was the First Minister, but he resigned from that office on 1 July 2001. Under section 16(7)(a) the effect of Mr Trimble's resignation was that in addition to the office of First Minister becoming vacant the deputy First Minister also ceased to hold office, the sub-section providing:

44. By the Northern Ireland Act 2000 (Suspension of Devolved Government) (No. 2) Order 2001 made by the Secretary of State for Northern Ireland and coming into force on 22 September 2001 devolved government in Northern Ireland was suspended with the consequence that under section 1 of the Northern Ireland Act 2000 the Northern Ireland Assembly was suspended. By the Northern Ireland Act 2000 (Restoration of Devolved Government) (No. 2) Order 2001 made by the Secretary of State for Northern Ireland and coming into force on 23 September 2001 devolved government in Northern Ireland was restored. By reason of sections 3(4) and 3(5) of the Northern Ireland Act 2000 the restoration of devolved government in Northern Ireland had the effect that the offices of First Minister and deputy First Minister were deemed to have been vacated on the date of restoration. Accordingly section 16(8) required an election to be held to fill the vacancies in the offices of First Minister and deputy First Minister within six weeks from 23 September 2001, a period which expired at midnight on 4 November 2001.

45. On 2 November 2001 an unsuccessful attempt was made by the Northern Ireland Assembly to elect the First Minister and deputy First Minister, but the attempt was unsuccessful because the candidates, who were Mr Trimble (a unionist) and Mr Mark Durkan MLA (a nationalist), did not receive the necessary cross-community support required by section 16(3) of the Northern Ireland Act 1998 for such an election to be made. Accordingly after 2 November 2001 the offices of First Minister and deputy First Minister continued to be vacant until after the expiration of the period of six weeks referred to in section 16(8).

46. Section 32 of the Northern Ireland Act 1998 provides:

On 5 November 2001 the Secretary of State for Northern Ireland accepted through his counsel in the High Court in Belfast that from the time of the expiry of the period of six weeks referred to in section 16(8) of the 1998 Act he was under a duty pursuant to section 32(3) to propose a date for the poll for the election of the next Northern Ireland Assembly.

47. On 6 November 2001 the Northern Ireland Assembly held a further election for the offices of First Minister and deputy First Minister. On this occasion, following the re-designation as unionists of a number of members of the Assembly who had previously been designated neither unionists nor nationalists, the two candidates, Mr Trimble and Mr Durkan, did receive the required number of votes and were elected as First Minister and deputy First Minister respectively and have acted in that capacity since that date. It is the validity of that election which is at issue in the present proceedings.

48. Section 31 of the 1998 Act provides:

….

On 6 November 2001 after the election of Mr Trimble and Mr Durkan the Secretary of State for Northern Ireland made a statement in the course of which he said that he saw no reason for the next Assembly election to be any earlier than 1 May 2003, the date which had already been set by Parliament in the 1998 Act. In part of the statement he said:

49. Mr Peter Robinson MP, MLA, who is a member of the Northern Ireland Assembly representing the Democratic Unionist Party and who is the Minister for Regional Development in the Executive Committee of the Northern Ireland Assembly, brought an application for judicial review in the High Court in which the principal relief claimed by him was a declaration that Mr Trimble and Mr Durkan had not been validly elected to the offices of First Minister and deputy First Minister respectively. In the High Court Kerr J dismissed Mr Robinson's application for judicial review and his appeal to the Court of Appeal (Carswell LCJ, Nicholson LJ and McCollum LJ) was dismissed with Carswell LCJ dissenting.

50. On 21 November 2001 a legal adviser wrote to the clerk of the Privy Council on behalf of the Secretary of State enclosing a draft Order in Council and the Northern Ireland (Date of Next Assembly Poll) Order 2001 was made on 11 December 2001. It provides:

51. The principal argument advanced on behalf of the appellant is that section 16(8) requires the election to fill the vacant offices of First Minister and deputy First Minister to take place within the specified period of six weeks, and if the offices are not filled by election within that period section 32(3) imposes a duty on the Secretary of State to propose a date for the poll for the election of the next Assembly, and it is implicit in that duty that he must propose an early poll. The appellant submits that it is clear from the express provisions of the 1998 Act that an election of a First Minister and a deputy First Minister after the expiration of the period of six weeks specified in section 16(8) is invalid and void.

52. The principal argument advanced on behalf of the respondents is that the long title to the 1998 Act makes clear that the purpose of the Act is to implement the agreement contained in the Belfast Agreement and that accordingly the provisions of the Act should be construed to give effect to the objectives of the Agreement. The Agreement commences with the declaration:

A fundamental and vital strand of the Agreement is that there should be cross-community, ie unionist and nationalist, involvement in the devolved government in Northern Ireland. Thus in Strand 1 of the Agreement under the heading "Democratic Institutions In Northern Ireland" there are the following provisions:

….

53. Therefore the respondents submit that the provisions of the 1998 Act should be interpreted so as to uphold cross-community devolved government (the Assembly's commitment to such government being demonstrated by the election on 6 November 2001 of Mr Trimble and Mr Durkan as First Minister and deputy First Minister) and to enable such cross-community government to continue. The respondents further submit that if the appellant's argument is correct the Secretary of State would be obliged to propose an early date for a poll which might result in the election of members of the Assembly who would not co-operate to provide the necessary majority of nationalists and the necessary majority of unionists to elect a First Minister and a deputy First Minister and to enable cross-community government to continue. The respondents also submit that when the Assembly succeeded in electing a First Minister and a deputy First Minister within 48 hours of the expiration of the six weeks' period, Parliament could not have intended that that election should be treated as a nullity and that an early poll for a new Assembly should take place with the risk that the new Assembly would be unable to co-operate to provide cross-community government in Northern Ireland.

54. My Lords, despite the attractiveness of the respondents' argument based on the purpose of the Belfast Agreement, I have come to the conclusion that the appeal should succeed. The Northern Ireland Assembly is a body created by a Westminster statute and it has no powers other than those given to it by statute. Section 16(1) and section 16(8) expressly require that the election of the First Minister and deputy First Minster shall take place within a period of six weeks beginning either with the first meeting of the Assembly or, if the offices become vacant at any time, within a period of six weeks beginning with the time of the vacancy. Therefore once the period of six weeks has expired the Assembly has no express power under the Act to elect the First Minister and deputy First Minister. Does the Assembly then have an implied power to elect a First Minister and deputy First Minister outside the six weeks' period? Where a statute gives power to a statutory body to perform a certain act within a specified period the normal rule is that the body has no power to perform that act outside the period, and I see nothing in the provisions of the Act pointing to a different conclusion. I do not think that a consideration of the authorities on the distinction between mandatory and directory provisions is of any direct assistance in this case, but to the extent that those authorities are of any relevance I consider that the statement of Millett LJ in Petch v Gurney [1994] 3 All ER 731, 738b-f assists the appellant:

Barker v Palmer

55. In my opinion the provisions of section 32 demonstrate that Parliament did not intend that the Assembly should have a power to elect a First Minister and a deputy First Minister outside the six weeks' period and those provisions constitute a strong impediment to the implication of such a power. It is relevant to observe that the provision in section 32(1) and the provision in section 32(3) are not contained in separate sections of the Act but are contained in the same section, and both subsections end with the same words "the Secretary of State shall propose a date for the poll for the election of the next Assembly". Moreover in section 32(4) the proposal of a date on the Assembly failing to elect within the six weeks' period and the proposal of a date on the Assembly passing a resolution for dissolution are linked together and the subsection states "If the Secretary of State proposes a date under subsection 1 or 3" an Order in Council may direct that the date of the poll shall be the date proposed by the Secretary of State. Therefore I consider that the meaning to be given to section 32(1) casts light on the meaning to be given to section 32(3).

56. The submission made on behalf of the respondents is that if the Assembly fails to elect a First Minister and deputy First Minister within the six weeks' period specified in section 16(8) the Secretary of State is under no duty under section 32(3) to fix an early date for a poll but is entitled to delay fixing a date and to wait for a reasonable period to see if at some time after the expiration of the six weeks' period the Assembly does succeed in electing a First Minister and deputy First Minister, in which event there will be no need for an early poll and he can fix a date for a poll as the same date as that specified in section 31(1) or section 31(2) for an election to take place at the end of the four year term of an Assembly (which is what the Secretary of State has done in the present case).

57. If that argument is correct then I consider that the same construction must be given to section 32(1), and Mr McCloskey QC for Mr Trimble and Mr Durkan accepted this when it was put to him in the course of his submissions. But in my opinion under section 32(1) it is clear that if the Assembly passes a resolution that it should be dissolved the Secretary of State would have no discretion to delay proposing an early date for a poll in the hope that the Assembly might resolve the differences which had caused it to pass the resolution for dissolution. I consider that similarly where the Assembly has failed to elect a First Minister and deputy First Minister within the period of six weeks specified by section 16, the Secretary of State has no power under section 32(3) to delay proposing a date in the hope that if the Assembly is given more time it may succeed in making the election, and he has no such power even if he has strong grounds for believing at the time of the expiration of the six weeks' period that in the near future there may be cross-party support to make an election of a unionist and nationalist First Minister and deputy First Minister. In my opinion section 32(1) and section 32(3) are not dealing with different situations so as to permit the duty of the Secretary of State to be interpreted differently under the two subsections.

58. I further consider that if the respondents' argument be correct it would result in unusual consequences which were never intended by Parliament. If the Assembly does not elect a First Minister and deputy First Minister within the six weeks' period and the Secretary of State then proposes a date for the poll and an Order in Council fixes that date, on the respondents' argument the Assembly could elect a First Minister and deputy First Minister the day before its dissolution. I do not think that Parliament intended the Assembly to have such a power.

59. In my opinion the wording of section 32(3) read in conjunction with the other subsections of section 32 makes it clear that Parliament intended that if there was not a successful election within the six weeks' period, the Secretary of State would fix an early date for the poll. What has happened in this case, where the Secretary of State has fixed the date as being the date when a poll would have taken place under section 31 on the normal expiration of the life of the Assembly, appears to be a procedure which is contrived and artificial, particularly as the side note to section 32 refers to "Extraordinary elections" but the Secretary of State has proposed the date on which an ordinary election for the Assembly would take place under section 31. Moreover on the respondents' argument if the Assembly failed under section 16(1) to elect a First Minister and deputy First Minister within six weeks of its first meeting, the Secretary of State would be entitled in some circumstances to propose a date more than three years beyond the expiration of the six weeks' period. I do not think that Parliament intended that section 32(3) could operate in that way and that the Secretary of State should have such a power.

60. I do not consider that constitutional practice in relation to the United Kingdom Parliament at Westminster assists in the interpretation of section 32. Lester and Oliver on Constitutional Law and Human Rights state at paragraph 209:

But the Assembly is entirely a creation of statute and Parliament has laid down the procedure to be followed where the Assembly resolves that it should be dissolved or fails to elect a First Minister and deputy First Minister within the stipulated period of six weeks. For the reasons which I have given I consider that the duty imposed upon the Secretary of State under section 32(1) and section 32(3) is to propose an early date for a poll, and once the Secretary of State has proposed a date for a poll there could, in my opinion, be no question of the Secretary of State then failing to advise Her Majesty to make an Order in Council that the date of the poll should be the date which he has proposed and that the Assembly should be dissolved on a date before that date.

61. In considering the extent to which the purpose of the 1998 Act to implement the Belfast Agreement can affect the interpretation of section 16 and section 32 I think it is necessary to bear in mind that the Belfast Agreement was drafted in a spirit of hope that the cross-community institutions of government which it proposed would succeed. Whilst the Agreement contains a final section containing provisions for review by the British and Irish Governments in consultation with the parties in the Assembly if difficulties arise across the range of institutions, the Agreement contains no express provision stating what would happen if cross-community government was not established or did not continue. But Parliament had to provide for this contingency and it did so by the provisions of section 16(1), 16(8) and section 32. Parliament has laid down a procedure to be followed in the event of the Assembly resolving that it should be dissolved or failing to elect a First Minister or deputy First Minister within the specified period of six weeks, and whilst those sections continue in force unamended I consider that the objective of the Belfast Agreement cannot operate to alter the meaning of their words.

62. I would add, in conclusion, that although on its face the statement of Lord Dubs in the House of Lords on 19 October 1998 (HL Deb col 1229) gives the appellant some support, I agree with the opinions of my noble and learned friends Lord Bingham and Lord Hoffmann that the statement is not of sufficient precision to be relied upon as an aid to interpretation under the rules laid down in Pepper v Hart [1993] AC 593.

63. I would allow this appeal for the reasons which I have given.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

64. The question of statutory construction raised by this appeal has given rise to differences of opinion both in your Lordships' House and in the Court of Appeal in Northern Ireland. Agreeing as I do with the conclusions of the Lord Chief Justice and my noble and learned friend Lord Hutton, I will shortly add in my own words my reasons for that agreement. I am indebted to my noble and learned friend Lord Bingham of Cornhill for having set out the relevant statutory provisions and for referring to the time-table of the events which have led up to the commencement of this action by Mr Robinson.

65. I do not consider that the resolution of this dispute has in any way been assisted by the references to the parliamentary progress of the bill which became the Northern Ireland Act 1998 nor by what was said at various stages of that progress. I would wholeheartedly adopt what has been said by my noble and learned friend Lord Hoffmann in this connection. The task of construing legislation is not assisted by the too ready reference to what has been said during debates without having regard to the very limited authority for the use of such material given by Pepper v Hart [1993] AC 593 and the clear limits laid down in that decision. It is fundamental to our constitution and the proper ascertainment of the law as enacted by Parliament that the law should be found in the text of the statute, not in the unenacted statements or answers of ministers or individual parliamentarians. This requirement is simply an a fortiori application of the rules for the proper recognition of what are and are not sources of law and the construction of written instruments.

66. The central point in the present case is the question of the holding of extraordinary elections for the Assembly under s.32 of the Northern Ireland Act 1998 (the 1998 Act). The Assembly is entirely a creature of the Westminster statute. It is an organ of devolved government within a quasi-federal structure. As agreed in the Belfast Agreement, it is both an executive and a legislative body and is to be elected upon a basis which reflects and incorporates the range of different communities which make up the political electorate of the Province. The Belfast Agreement itself did not specify how often elections to the Assembly were to be held nor what specific criteria were to be applied to determine the life of any given Assembly. The current Assembly is indeed the continuation of one elected pursuant to s.2 of the Northern Ireland (Elections) Act 1998 before the 1998 Act had been enacted and come into force: s.31. It is also a feature of the statutory scheme in existence since early 2000 that the Westminster Parliament enacted the Northern Ireland Act 2000 (the 2000 Act) which suspended the Assembly and gave the Secretary of State a wide power thereafter by statutory instrument to reactivate and re-suspend the Assembly. As recorded in Lord Bingham's opinion, these powers had already been exercised twice during the period since Mr Trimble had resigned on 1 July 2001, thereby extending the 6 week limit to a not ungenerous 18 weeks; it was no doubt the broader political cost which the exercise of those powers involved and their impact upon the operation of the Belfast Agreement which led to the decision not to exercise them again in November 2001.

67. Despite what might at first sight appear, this case is not about a vacuum in the executive power of the Assembly. The executive powers of the Assembly are exercised on its behalf by ministers and the 1998 Act includes provisions which enable the ministers to continue to fulfil this function. Similar provision is made in respect of the First Minister and his Deputy; there are also provisions for alternates. No point was made in argument or on the evidence before the House that the question relevant to the present appeal should be guided by any consideration of the need for the devolved government to perform its executive functions.

68. Part IV of the 1998 Act deals with the election of Assemblies. The first Assembly (the 'continuation' assembly, see above) is to be dissolved a minimum period before 1st May 2003, the prescribed date for the first ordinary election under the 1998 Act: s.31(2). But s.32 makes provision, under the side-heading "extraordinary elections", for the dissolution of the Assembly and the holding of a fresh Assembly election in two stated circumstances. The first is "if the Assembly passes a resolution that it should be dissolved": s.32(1). S.32(2) requires a two thirds majority for such a resolution. The other is "if the period mentioned in s.16(1) or (8) ends without a First Minister and a deputy First Minister having been elected": s.32(3). In either of these two situations, it is a necessary implication that the Assembly shall then be dissolved and an extraordinary Assembly election held; otherwise the expressed will of the Assembly and the provisions of s.32 will be frustrated. The mechanism for prescribing the actual dates for such dissolution and the holding of the poll is left to the Secretary of State and the formality of an Order in Council. Subsections (1) and (3) use the words "shall propose a date for the poll for the election of the next Assembly" and subsection (4) authorises an Order in Council to give effect to that proposal and prescribe a date of dissolution in variation of s.31. No distinction is made between s.32(1) and (3).

69. On Monday 5th November, when he was before the High Court of Justice in Northern Ireland defending Mr Robinson's first judicial review proceedings, the period prescribed under s.16(8) (and extended by the use of the 2000 Act) having expired, the Secretary of State conceded that he was under an obligation to propose a date for an extraordinary poll under s.32(3). He was clearly right to make this concession and he did not seek to resile from it in the present proceedings. The concession recognises that the prescribed period is substantive and its expiry triggers the duty. It also recognises that s.32(3) (and subsection (1)) do impose a substantive duty upon the Secretary of State to implement the necessary procedures for holding an extraordinary Assembly election. The nub of the complaint of Mr Robinson is that the Secretary of State has not performed this obligation.

70. What has happened instead is that the Secretary of State has apparently concluded that it would have adversely affected the stability of the devolved government to have held an extraordinary Assembly election in late 2001 or even early 2002 which it appears to be accepted would constitute the normal and reasonable time-span for the holding an Assembly election. That the duty should be performed gains powerful support from Strand One of the Belfast Agreement which is based upon requirements of inclusive democracy commanding cross-community support. The two triggering events specified in s.32 follow the same logic, one positive and the other negative. Both are clearly stated and neither of them contemplates or accommodates provisional or tentative attitudes. The negative condition, in (3), incorporates a time-limit which it is conceded sufficed to trigger the duty to hold the extraordinary poll. The legal position is clear and straightforward: the duty attached at midnight on the Sunday.

71. The argument of the Secretary of State is that the further vote of the re-designated members of the Assembly on the Tuesday released him from what would otherwise have been his duty: he was now at liberty to propose a polling date, and present an Order in Council, for 1st May 2003, which was the date prescribed by s.31(2) for the next ordinary Assembly election absent any intervening extraordinary election. This was patently a non-exercise of the duty to hold an extraordinary election under s.32. He did not perform that duty. The question therefore is: did he have a legal excuse for his failure?

72. The Secretary of State argues that the vote on the Tuesday negatived the effect of the previous expiry of the extended six week time-limit. This is the argument which I cannot accept. S.32(3) is not so drafted. It is time specific. The concession made on the Monday and adhered to thereafter also accepts that interpretation. The context of subsection (3) in s.32 also bears this out. S.32 is a provision for extraordinary elections. Subsections (1) and (2) enable the Assembly by a two thirds majority to decide upon its own dissolution. No distinction is made between this and allowing the six weeks to expire without having elected a new First Minister and deputy by the appropriate combination of votes. The argument is clearly contrary to the provisions of the statute and the necessary implication of the concession which the Secretary of State has made.

73. Those who take a contrary view say that the statute does not say what is to happen if the Assembly does not elect a new First Minister and deputy in accordance with the requirements of s.16 and then reason that there is nothing to stop the Assembly from electing them outside the six week period. This shows that the question has been misunderstood. The Act does say what is to happen if the six week period is allowed to expire. The Assembly is to be dissolved and an extraordinary Assembly election is to be held.

74. Another argument deployed in favour of the Secretary of State is to say that the Belfast Agreement supports the view that the Assembly should not be dissolved if it would be expedient, in the interests of stability, not to do so. Thus, it is said, even after the expiry of the six weeks the process of negotiation should continue and alignments or candidates looked for which will enable a vote complying with s.16(3) but not s.16(8) to be obtained. Parliamentary elections, it is said, are not lightly to be undertaken; in the United Kingdom the unwritten constitution allows a wide discretion to the Executive in choosing the timing of elections (but even then subject to an over-riding statutory limit). These arguments do not sufficiently recognise that the Northern Ireland Assembly is a statutory body governed by specific statutory provisions. The six week period is part of that structure. It is not acceptable to say that a longer period might have been better; in fact, in the present case, it was some 18 weeks, three times as long as the specified period. If the members of the Assembly had not performed their duty within that period, s.32 says what is to follow. The Tuesday vote in the Assembly is simply legally irrelevant. As regards the inferences to be drawn from the Belfast Agreement, Strand One incorporates an important safeguard that key decisions should be taken on a cross-community basis, specifically including the election of the First Minister and the deputy (paragraph 5(d)). The designation of the members of the Assembly is to be registered at its first meeting (paragraph 6) and there is nothing in the Belfast Agreement that contemplates any re-designations to enable a particular result to be achieved. The Secretary of State's refusal to perform the duty to hold an extraordinary Assembly election must be political in character since it is bound to be seen to favour one political party or another; it thus fails to reflect the inclusive aspirations of the Belfast Agreement for the democratic institutions of Northern Ireland. Similarly inconsistent is to treat the Secretary of State as having a reserved power to refuse to give effect to the requirements of s.32 and the decisions of the Assembly which have knowingly triggered the provisions for holding an extraordinary Assembly election.

75. I therefore would allow the appeal. I would uphold the duty to act under s.32 of the 1998 Act. As I have said, I consider that the validity of the vote held on Tuesday 6th November 2001 to be irrelevant. But, if, contrary to my view, it is relevant, it follows from what I have said about the scheme of Parts III and IV of the 1988 Act that I would construe s.16 as conferring a power which is coterminous with the performance of the duties which go with it. An election of a First Minister and deputy, if it is to be constitutional, must be carried out in accordance with the terms of s.16. This would be the ordinary construction of such a statutory provision. The statutory context supports this conclusion and does not support the opposite reading.

LORD MILLETT

My Lords,

76. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hoffmann, with which I am in full agreement. In view of the constitutional importance of the questions your Lordships have to decide, I propose to express in my own words my reasons for agreeing with them that the appeal should be dismissed.

77. Section 16(8) of the Northern Ireland Act 1998 ("the Act") provides

"Where the offices of 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."

78. The requirement to hold an election within the six weeks is not discretionary but obligatory. This is the effect of the word "shall": see R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354, 358 per Lord Woolf:

"The requirement is never intended to be optional if a word such as "shall" or "must" is used."

The principal question to be decided on this appeal is whether the requirement that the election be held within six weeks means that the vacancies cannot validly be filled by an election held after the expiry of that period.

79. If the period of six weeks ends without a First Minister and deputy First Minister having been elected then section 32(3) provides that the Secretary of State shall propose a date for the election of a new Assembly. In the ordinary way this will lead to the dissolution of the existing Assembly on a date fixed by Order in Council.

80. This gives rise to a secondary question whether, in proposing the date for the election of the new Assembly, the Secretary of State has a broad discretion allowing him to propose a date however far ahead so long only as it is not later than the date on which the existing Assembly would come to the end of its natural life; or whether it is a narrow discretion which allows him to take account of considerations of administrative convenience for the holding of an election in the immediate future but little else.

81. The two questions are interdependent, for the width of the Secretary of State's discretion in proposing the date for the election of the new Assembly depends on whether it is possible to fill the vacancy by an election after the six week period has expired. If it is not, then his discretion is necessarily narrow; if it is, then it is much less restricted. Thus the answer to either question supplies the answer to the other.

82. Most of the argument both here and below has been taken up with the question whether the requirement to hold the election within the six week period is "mandatory" or "directory". This is a shorthand way of referring to a question which arises whenever Parliament imposes a requirement that something 'shall' be done (meaning that it 'must' be done) without stating what are to be the consequences if it is not done. The requirement is said to be "mandatory" if failure to comply with it invalidates what follows; it is said to be "directory" when failure to comply does not do so. This is a curious and distracting use of language. It is curious, because as I have already explained the question is not whether the requirement must be complied with; it is distracting, because it distracts attention from the real question, which is what are the consequences of non-compliance. It also leads to the mistaken idea that the use of the word "shall" itself provides an indication of the answer. But it does not answer the question; it raises it. It means only that the requirement must be complied with; it does not indicate the consequences of non-compliance.

83. Failure to comply with a condition as to time normally invalidates anything which is made conditional on compliance with it: see Barker v Palmer (1881) 8 QBD 9, 10; Petch v Gurney [1994] 3 All ER 731 CA. Doing an act late is not the same as doing it in time. Accordingly, unless there is provision for the time to be extended, a time limit cannot be relaxed without being dispensed with altogether; and it usually cannot be dispensed with altogether without depriving the statutory requirement of all effect.

84. But this is not the question in the present case. Section 16(8) has been complied with. An election to fill the vacancies was duly held within the six week period, but it was unsuccessful. Section 32(3) caters for two situations; where no election is held within the time limited, and where an election is held within time but is unsuccessful. The consequence in either case is expressly spelt out in the section; the Secretary of State is obliged to propose a date for the election of a new Assembly. It is not necessary to treat either section 16(1) or 16(8) as invalidating an election held after the expiry of the six week period in order to give some effect to the time limits there laid down.

85. In my opinion, therefore, the question is not whether the failure to fill the vacancies in the offices of First Minister and deputy First Minister within the time allowed invalidates an election held after that time has expired. The present case raises the more fundamental and logically anterior question whether the Assembly has any power to hold any such election in the first place.

86. The appellant submits correctly that the Assembly is a creature of statute. It has only those powers which are conferred upon it expressly or by necessary implication by the Act. It has no express power to hold elections for the office of First Minister and deputy First Minister. Any power to do so must be implied. Such a power is, of course, implicit in sections 16(1) and 16(8); a requirement to hold an election within six weeks necessarily imports a power to do so.

87. Wherever Parliament imposes a duty, it must be taken to have conferred a power to perform that duty. But ordinarily at least the power is coterminous with the duty. So, the argument runs, by requiring the Assembly to hold an election within the period of six weeks Parliament must be taken to have conferred a power to hold it within that period. But there is no other source of the power. Once the period has expired within which alone the Assembly has power to hold an election to fill the vacancies, an election to choose a new Assembly becomes both necessary and urgent, and the Secretary of State is obliged to exercise his discretion to propose a date for the holding of the necessary Assembly election within a narrow time frame.

88. This is a formidable argument. It is logically derived from the statutory language to which it gives full effect, and it produces a rational and coherent scheme. But I do not think that it is correct. I prefer to start with the secondary question, which concerns the width of the discretion given to the Secretary of State to propose a date for the election of a new Assembly, in order to see whether it indicates a different answer.

89. As all the judges below have acknowledged, the roles of the First Minister and deputy First Minister are crucial to the proper functioning of democratic government in Northern Ireland. This was recognised by the Belfast Agreement, which the Act sought to implement. The Assembly was to be the prime source of authority in respect of devolved matters; and the First Minister and deputy First Minister, elected with cross-community support from among the members of the Assembly, were to be the directing members of the new executive. That is why the Assembly is given only six weeks to elect them. And it is why, if it fails to do so within six weeks, the Assembly can be regarded as having failed and the Secretary of State is required to take steps for the election of a new Assembly. The thinking is that if the Assembly cannot agree upon the election of a First Minister and deputy First Minister within six weeks, there had better be a new Assembly which can.

90. But the failure to elect a First Minister and deputy First Minister within the time limited does not result in the immediate and automatic dissolution of the Assembly. It continues in existence for the time being until a date fixed by Order in Council on the recommendation of the Secretary of State. It is his duty to propose the date for the election of the new Assembly. No doubt he must act promptly, but he must be allowed a little time for consultations to take place, not only as to the appropriate dates for the dissolution of the existing Assembly and the holding of the election of a new one, but also as to the carrying on of government in the meantime.

91. When, following such consultations, he proposes a date for the holding of the election, he is bound to take account of anything which has happened since the six week period expired. If in the short time which has elapsed since then the Assembly has succeeded in electing a First Minister and deputy First Minister, it cannot sensibly be regarded as having failed; the need to obtain a new Assembly as a matter of urgency in order to resolve the impasse will have disappeared. It would subvert the purpose of the Act if the Secretary of State were obliged to take steps to dissolve an Assembly which had succeeded in electing a First Minister and deputy First Minister in order to obtain a new Assembly which might not be able to do so.

92. This, of course, pre-supposes that the Assembly has power to elect a First Minister and deputy First Minister notwithstanding the expiry of the time limited by sections 16(1) and 16(8). But it does suggest that Parliament is unlikely to have intended that the Assembly should lack such a power; that would be inconsistent with the purpose of the Act to secure stable government based on cross-community support.

93. In my opinion the fallacy in the appellant's argument is that it seeks to derive the Assembly's power to elect a First Minister and deputy First Minister exclusively by implication from the terms of sections 16(1) and 16(8) alone. I think that it is derived from the structure of the constitutional arrangements made by the Act and the provisions of Part III of the Act as a whole. The basic requirement is that the First Minister and deputy First Minister are to be elected by the Assembly from among its members. This requirement, which is contained in section 16(1), is not repeated in section 16(8), but it underlies the whole of the section, and is fundamental to the structure of democratic government in Northern Ireland. Section 16(2) and (3) subject the power of election to unusual conditions which were thought necessary in order to command wide popular support for the executive in the special circumstances of Northern Ireland. Section 16(2)requires each candidate for either office to stand jointly with a candidate for the other office; section 16(3) provides that the successful candidates shall not be elected without the requisite cross-community support.

94. I think that section 16(8) operates in a similar but in one respect significantly different way. Like sections 16(2) and (3) it does not implicitly confer a power to elect the First Minister and deputy First Minister; it assumes the existence of such a power the source of which lies elsewhere. It superimposes on that power a requirement that an election (not, it should be observed, the election) be held within the six week period, and provides for what is to happen if the vacancies are not filled within that time. But what it conspicuously does not do is provide that the vacancies can be filled only within the time limited or by an election held within that time. In other words, it does not expressly make the election conditional on its being held within the time allowed. In this respect section 16(8) is to be contrasted with sections 16(2) and (3), which make the election of the First Minister and deputy First Minister conditional upon their standing jointly and receiving the requisite cross-community support.

95. I have not overlooked the fact that section 16(1) is worded differently. It provides that the Assembly:

"shall, within a period of six weeks beginning with its first meeting, elect ... the First Minister and the deputy First Minister."

But this cannot be taken literally. Parliament can require an election to be held within a stated period and provide for the consequences if such an election is unsuccessful; but it cannot command it to be successful. I would construe section 16(1) as I have construed section 16(8).

96. In my opinion the Assembly has power at any time to fill the offices of First Minister and deputy First Minister by election from among its members provided only that the requirements of section 16(2) and (3) are complied with. Sections 16(1) and 16(8) require the Assembly to hold elections to fill the vacancies within the relevant periods of six weeks, but they do not preclude it from filling the vacancies by an election held after the expiry of that time. The only constraint upon the Assembly is that it should act speedily, for it must certainly act before it is dissolved and probably before the Secretary of State proposes the date of dissolution.

97. .... I would accordingly dismiss the appeal. In doing so, however, I would wish to associate myself with the remarks which my noble and learned friend Lord Hoffmann has made in regard to the utility, both generally and in this particular case, of referring to the debates in Parliament during the passage of the Act.

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