[2020] UKSC 2 UKSC 2018/0030
A Reference by the Attorney General for Northern Ireland of devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998
By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State 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.”
Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which requires action by the Northern Ireland Department for Communities (part of the Northern Ireland Executive). 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.” It is the Department for Communities which must issue such lists. The same is true of a second order made by the Secretary of State relating to “No. 3 relevant districts” and “No. 2 relevant districts.”
The Attorney General considers that the universal credit provisions in question breach Article 1 Protocol 1, Articles 8, 14 and 12 of the European Convention on Human Rights and are therefore invalid per s. 24 of the Northern Ireland Act 1998. The Attorney General submits that a devolution issue arises because it is the Department for Communities’ issuing of lists that is necessary to give effect to the Secretary of State’s commencement orders.
The Department for Communities contends 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. 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. Accordingly, no devolution issue is raised by the reference. Any alleged breach of the Convention could not therefore arise from the publication of the lists but from the parent orders made by the Secretary of State. The Department therefore submits that its role in issuing the lists does not have sufficient effects to constitute an “act”. The publication of the lists does not therefore lie outside the competence of the Department per s. 24(1)(a) of the Northern Ireland Act 1998.
The issues are:
(1) Whether the Reference raises a devolution issue (per Schedule 10, paragraph 1 of the Northern Ireland Act 1998);
(2) Specifically:
a. does the Department for Communities’ issuing of lists that give effect to orders made by the Secretary of State commencing universal credit provisions in Northern Ireland constitute an “act” under s. 24(1) of the Northern Ireland Act 1998?
b. does the Reference raise a question of whether the Department has failed to comply with a Convention right under s. 24(1)(a)?
The Supreme Court unanimously refuses to accept the Attorney General’s application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act.
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