On 14 January 2019, the Supreme Court (Lady Hale, Lord Reed and Lord Kerr) handed down judgment on a preliminary issue arising from the reference of five devolution-issue questions to the Supreme Court by the Attorney General for Northern Ireland ([2019] UKSC 1).  The Supreme Court unanimously held that the reference should be adjourned so that the issues can be considered in the High Court in Northern Ireland rather than in the Attorney General’s reference. 

In a judgment which stands alone for its detailed consideration of the scope of the powers exercisable by law officers under the devolution issue jurisdiction, the Supreme Court took the opportunity to comment on the interaction between the power to refer devolution issues which are the subject of proceedings and those which are not, as well as wider concerns relating to the devolution issue jurisdiction. The judgment provides important guidance on the powers exercisable under the devolution issue jurisdiction, not only in Northern Ireland, but also in Scotland and Wales where similar statutory regimes are in place.

Noting the “considerable force in the arguments presented on behalf of the intervener” (para 27), the Supreme Court expressed a preference for devolution-issue questions coming before the court in the context of live proceedings as opposed to abstract references from law officers, particularly where the opportunity of referring or appealing those questions to the Supreme Court in live proceedings was an option that had not been taken.  The Court said that “in general, it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic issues of law” (para 28). 

On this basis, the court referred to the on-going — but presently stayed — challenge to the North-South Interconnector in the High Court in Belfast as the most appropriate forum for the issues subject to the reference to be canvassed and accordingly adjourned the reference.

Referring to other arguments put forward by the Interveners, the court stated that there is “much to be said” for the argument that it was Parliament’s clear intention that references should be made in the context of actual proceedings (para 25); however, this point was one which was left to be “addressed in the future”.  Nevertheless, the court was prepared to accept the view put forward by the Interveners in their submissions that the power to refer questions is “not necessarily an open-ended facility” (para 26).  

Aside from having an impact on both the scope of the power to refer devolution-issue questions, and the manner in which this power will be exercised by law officers across the United Kingdom in the future, the judgment is also significant as the court said it was not appropriate to stay proceedings pending references, as had occurred in the Interconnector case (para 28).   

Gregory Jones KC and Richard Honey BL, instructed by Roger Watts (Partner, C&J Black Solicitors, Belfast) acted for the Interveners, the Alternative A5 Alliance.  They were assisted by Conor Fegan, a pupil barrister at Francis Taylor Building.

The judgment is available here.