On Monday 17 December 2018, the Supreme Court (Baroness Hale, Lord Kerr and Lord Reed) will hear argument on a preliminary question arising from the reference of five purported devolution-issue questions by the Attorney General for Northern Ireland. The reference arises from the ongoing political stalemate in Northern Ireland, which has now been without a functioning government since January 2017.
On 9 August 2018, the Attorney General for Northern Ireland referred five purported devolution-issue questions to the Supreme Court. These questions collectively concern the functions of Northern Ireland Departments in the absence of Ministers in Northern Ireland — in particular, the questions relate to limitations imposed on the functions of Departments by the ministerial code, the programme for government and the requirement to refer specified matters to the Executive Committee for discussion and agreement.
The Alternative A5 Alliance was given permission to intervene by the Supreme Court in light of the impact which the outcome of the reference would have had on then on-going litigation before the Northern Ireland High Court. They are the only party before the court arguing an alternative case to that presented by the Attorney General and the Advocate General.
The Supreme Court has raised a preliminary issue of whether the questions referred by the Attorney General are “devolution issues” within the meaning of the Northern Ireland Act 1998.
Both the Attorney General and the Advocate General submit that they are, on the basis that they concern the interpretation of certain “reserved” provisions of the Northern Ireland Act 1998 and that, accordingly, the Supreme Court should determine the substantive issues.
The Alternative A5 Alliance submit both that they are not “devolution issues” as they do not relate to “reserved” matters; and that, in any event, the Attorney General did not have the power to refer the questions to the court. Accordingly, they invite the court to decline to determine the reference.
The determination of the preliminary issue is likely to have significant implications for the “devolution issue” jurisdiction and the power of the Attorney General to refer questions to the Supreme Court under this jurisdiction.
Gregory Jones QC and Richard Honey act for the interveners in the case, the Alternative A5 Alliance, instructed by Roger Watts (Partner) of C & J Black Solicitors, Belfast. They are assisted by Conor Fegan, a pupil barrister at FTB.
Further information on the Supreme Court case can be found at: https://www.supremecourt.uk/cases/uksc-2018-0167.html
Gregory Jones QC and Richard Honey, instructed by Roger Watts, were recently successful in the High Court in Belfast for the Alternative A5 Alliance in quashing the statutory orders for the c £1 billion A5 dual carriageway scheme for a second time. This was reported at: https://www.bbc.co.uk/news/uk-northern-ireland-46223550 and https://www.belfasttelegraph.co.uk/news/northern-ireland/stormont-drops-challenge-over-a5-derry-to-tyrone-road-project-due-to-lack-of-minister-37531619.html .