By Jamie Bryson
An Act of the Northern Ireland Assembly must be within its legislative competence. If it is not, it has no force or effect; it is not law. This is all set out very plainly in section 6 of the Northern Ireland Act 1998, which provides inter alia:
6 Legislative competence.
(1)A provision of an Act is not law if it is outside the legislative competence of the Assembly.
(2)A provision is outside that competence if any of the following paragraphs apply—
(a)it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;
(b)it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;
(c)it is incompatible with any of the Convention rights;
(ca)it is incompatible with Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement (rights of individuals)
(d)it is in breach of the restriction in section 6A(1);
(e)it discriminates against any person or class of person on the ground of religious belief or political opinion;
(f)it modifies an enactment in breach of section 7.
As will be seen, any provision of an Act which is not within the legislative competence of the Assembly is not law (section 6 (1)).
For present purposes, section 6 (2) (e) is the crucial provision. It prohibits the Assembly from passing any provision which “discriminates against any person or class of person on the ground of religious belief or political opinion”.
This obviously includes the theory known as positive discrimination which must, in consequence, discriminate against those being disadvantaged in favour of the elevated section of society.
The Integrated Education Bill elevates ‘integrated education’ which is specifically defined in Clause 1 (1) as follows:
.—(1) “Integrated education” means the education together, in an integrated
(a) those of different cultures and religious beliefs and of none, including
reasonable numbers of both Protestant and Roman Catholic children or
(b) those who are experiencing socio-economic deprivation and those who are
(c) those of different abilities
Therefore, it is patently obvious that in consequence of the Bill elevating integrated education for enhanced support based on the criteria of different religious beliefs, that this has the effect of discriminating against those schools of a single rather than multiplicity of religious backgrounds. Put simply; single faith Catholic or Protestant schools will be disadvantaged- based on religious belief- vis-à-vis those schools which fall under the definition of ‘integrated education’.
It is difficult to see a more obvious example of religious discrimination than an Act which will have the consequence of disadvantaging a school because it is a Catholic school, or a Protestant school, and thus discriminating on the basis of religion.
A number of those who spoke in opposition to the Bill stated that it was discrimatory. I am at a loss therefore to see why they didn’t alert the Attorney General or the presiding officer and seek consideration of the issue.
If it is correct (and I think it is) that the Bill discriminates on the basis of religion, then it offends section 6 (2) (e) of the 1998 Act and thus is outside the legislative competence of the Assembly and thus as per section 6 (1) “…is not law”.
Pursuant to section 11 of the 1998 Act, the Attorney General can- within four weeks- refer the matter to the Supreme Court for determination of the question.
Finally, it is worth pointing out the latest illogical position adopted by the UUP, who appear to be simply NI21 reincarnated.
The UUP are the guardians of the Belfast Agreement. Their unequivocal fidelity to the Agreement- no matter the damage it causes to the Union- verges on embarrassing.
However, a cornerstone of their precious Agreement is the principle embodied in Strand One (5) (d) and given effect in section 42 of the 1998 Act as the ‘Petition of Concern’. In short form, key decisions are to be made on a cross community basis.
Therefore, the petition of concern is a perfectly legitimate mechanism, enshrined within the very Agreement that the UUP are the chief evangelists for.
And yet, when it came to the Integrated Education Bill- which the UUP purport to oppose- they refuse to sign a Petition of Concern, claiming this would be an “abuse of a mechanism to protect minorities”.
This is to put it bluntly, utter nonsense. Neither Strand One (5) (d) nor section 42 of the 1998 Act says anything about “protecting minorities”, in fact the provisions relate to a ‘cross-community’ veto for key decisions, thus enshrining for the most part the two largest traditions rather than directing itself at all to minorities.
It is therefore utterly absurd to see the UUP flailing around for some justification for that which they simply cannot justify in any intellectually honest way.
If we are to take the UUP’s latest logic (shaped of course to be as palatable as possible to the hyper liber twitter arena) then suppose the Protocol vote in 2024 does- following a legal success in Protocol case- turn out to be ripe for the deployment of the Petition of Concern, then as it wouldn’t be related to “protecting minorities”, would the UUP refuse to sign it on a “matter of principle”?