UK Supreme Court: NI Attorney General’s application to refer ‘devolution issue’ refused

The Attorney General submitted that, by providing postcode lists to the Secretary of State, Northern Ireland’s Department for Communities was performing an “act” which could be referred to the Supreme Court under the 1998 Act, that this “act” was indispensable to the commencement of Universal Credit in Northern Ireland, and that it breached rights under the ECHR.

Refusing the application, Lord Brian Kerr of Tonaghmore said that providing postcode lists was not capable of being incompatible with the ECHR.

Commencement orders

Under the Welfare Reform (Northern Ireland) Order 2015 (Commencement No 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State for Work and Pensions commenced a number of Universal Credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as “No 1 relevant districts”.

The 2017 Order defines the “No 1 relevant districts” as “the postcodes specified in the table in the List of the No 1 Relevant Districts” and Northern Ireland’s Department for Communities must issue such postcode lists.

The 2017 Order was drafted so that Universal Credit could come into effect if the Department for Communities published the list of postcodes making up the district within which the benefit will commence.

Attorney General’s reference

Pursuant to paragraph 34 of Schedule 10 to the Northern Ireland Act 1998, the Attorney General for Northern Ireland made an application to the Supreme Court to refer what he claimed was a “devolution issue”.

Under Schedule 10 of the Northern Ireland Act 1998, a “devolution issue” includes “a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24”. Section 24 of the Northern Ireland Act 1998 provides, inter alia, that a “Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act— …is incompatible with any of the [ECHR] rights”.

The AG submitted that in issuing postcode lists, the Department for Communities was an “act” required to give effect to the Secretary of State’s commencement orders, and therefore a devolution issue, referable to the Supreme Court. He also submitted that the relevant Universal Credit provisions breached “articles 8, 12 and 14 of the ECHR and article 1 of the first protocol to the ECHR” – and were therefore invalid pursuant to section 24 of the Northern Ireland Act 1998.

Refuting the AG’s submissions, the Department for Communities contended that “its role in issuing the relevant lists amounts to nothing more than providing administrative support to the Secretary of State. The commencement orders define the relevant territories by reference to lists of postcodes issued by the Department. The lists were not prepared, however, pursuant to any statutory or other power and do not have any independent legal force or effect, the Department says. They are incorporated by reference into the commencement orders and therefore have legal effects solely by reason of the act of the Secretary of State, not the act of the Department”.

Supreme Court discussion

Delivering the unanimous judgment of the three-judge Supreme Court, Lord Kerr said that on a “theoretical or technical level… the compiling of lists of postcodes and providing them as a means of facilitating the introduction of the commencement orders is an act or the discharge of a function under paragraph 1(b) of Schedule 10 to the 1998 Act”.

Noting that under paragraph 2 of Schedule 10 to the 1998 Act, “a devolution issue shall not be taken to arise” in proceedings which appear “frivolous or vexatious”, Lord Kerr commented it would be wrong to characterise the present application as “frivolous or vexatious” but said “it would be equally wrong to lose sight of two important and correlated aspects” of the application – i.e. the application was not principally directed at the act of preparing the postcode lists as an act incompatible with the ECHR. Rather, the incompatibility with the ECHR arose with the introduction of Universal Credit itself.

As such, Lord Kerr explained  the “gravamen of the charge” was “not to the mode of introduction of the measure but to its impact”. He added that the Court “must retain a discretion whether to deal with a reference on a devolution issue where that issue is to be raised in proceedings where the actual claimed incompatibility of the measure occupies centre stage, as opposed to its appearance via a side wind as here”.

Lord Kerr said a further issue was that the “fundamental underpinning of the Attorney’s case is that the introduction of Universal Credit in Northern Ireland is incompatible with the ECHR. It is not that a means of identifying the areas where it is to be introduced sequentially was incompatible”.

Lord Kerr said the relative isolation of the “act” of compiling and providing postcode lists, from the actual introduction of Universal Credit in those areas “throws into stark relief the inappropriateness of regarding the preparation of the lists as an act sufficient to give rise to a devolution issue”.

In those circumstances, the Court refused to accept the Attorney’s application to refer the issue under paragraph 34 of Schedule 10 to the 1998 Act.