OPINION: Any deal open to legal challenge as Secretary of State has failed to exercise her legal duty

By Jamie Bryson

Any potential deal at Stormont could very well be open to legal challenge, given the fact that the Secretary of State is currently failing in her legal obligation to call an election.

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The Northern Ireland Act 1998 is also clear on the process for electing a First and Deputy First Minister, and as such the current elected Assembly has no power to elect a FM and DfM. This would require emergency legislation from Westminster, which is rather ironic given that the main proponents of the Belfast Agreement argue that they must protect the Belfast Agreement in all its parts.

If one sought to protect the Belfast Agreement, then surely the logical outworking of this would be to follow the procedures laid out in the enabling legislation, namely the 1998 Act. Going around the back door to elect FM and DfM would be outside the procedures of the 1998 Act.

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Further than this nationalism, and their ‘progressive’ allies, have argued that Northern Ireland has some form of hybrid British-Irish status and the ‘consent’ of the Irish Government is required for any changes within Northern Ireland. The fact that the emergency legislation could only be enacted by Westminster makes clear that the British Parliament retains complete sovereignty over Northern Ireland.

So why do we not hear those that scream the loudest about protecting the Belfast Agreement, demanding that the procedures laid out within the enabling legislation are followed?

Of course, the somewhat generous interpretation of the 1998 Act has been challenged before. In a case that culminated in a narrow 3-2 defeat in the House of Lords in 2002, Peter Robinson challenged the legality of the election of the then FM and DfM. Mr Robinson, represented by John Larkin QC, argued that the election was unlawful because the Assembly had no power to elect an FM and DfM after a period of six weeks as stipulated within the Northern Ireland Act 1998.

The relevant provisions have been since altered somewhat by the St Andrews and Stormont House agreements.

The majority in Robinson bestowed upon the Northern Ireland Act the status of a “constitutional statute”. The dissenting minority, which included Northern Ireland’s former Lord Chief Justice, Lord Hutton, strongly disagreed.

In his dissent Lord Hutton said:

“Where a statute gives power to a statutory body to perform a certain act within a specified period the normal rule is that the body has no power to perform that act outside the period, and I see nothing in the provisions of the Act pointing to a different conclusion”.

Adam Tomkins, the John Millar Professor of Public Law at the University of Glasgow, described it as an “extraordinary decision” and expressed the view that it was out of step with the subsequent devolution case law.

All of this gives rise to the potential for the scope and interpretation of the 1998 Act to be revisited, and the Secretary of State’s current failure to abide by the obligations placed upon her by the statute could very well provide that opportunity.

The calls for a reform of the petition of concern, and the acceptance by many that mandatory coalition cannot work all runs contrary to the Belfast Agreement. Therefore, if we can- even in the minds of its most ardent proponents- change the Belfast Agreement and the enabling legislation when it suits them, then how can they argue that the British Parliament do not have the power to unilaterally amend and/or repeal the 1998 Act per se?


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