Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland)
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.
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  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  2 AC 349, 391-392, 398-399, 407-408 and 413, and again in R v A (No. 2)  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.
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.