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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
SECRETARY OF STATE FOR NORTHERN IRELAND AND OTHERS
ON 25 JULY 2002
 UKHL 32
LORD BINGHAM OF CORNHILL
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:
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  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  AC 593 cannot properly be relied upon as an aid to interpretation.