There was a time, long before Brexit-related constitutional whiplash, when matters of the constitution sometimes involved the quieter, everyday affairs of the border counties on the island of Ireland. A 1937 case involving milk produced on a Donegal farm and sent to be sold in Derry became the template for testing whether Acts of the Scottish Parliament are within the Parliament’s legislative competence. Nearly 90 years later, a judgment concerning the transmission of electricity between the counties of Tyrone, Armagh, Monaghan and Cavan (and Meath) has implications for the legislative competence of the Northern Ireland Assembly. This post explores the judgment in Minister for Infrastructure v Safe Electricity A&T [2022] NICA 61(‘Safe Electricity’).
In 2006-2007, through parallel legislative schemes endorsed by the UK Parliament and the Oireachtas, a Single Electricity Market (SEM) was established across the island of Ireland. Since then, there have been discussions around making the SEM more efficient and more integrated. A major proposal in this regard, the North-South Interconnector, would see a single 138 km-long overhead line between North and South. This interconnector has been in the planning stage, both in Dublin and at Stormont, for over a decade. Proposals have been reviewed, reworked, objected to, considered and reconsidered by authorities in both jurisdictions. Progress was significantly hampered owing to a lack of government at Stormont until 2020. In 2020, then Northern Ireland Minister for Infrastructure Nichola Mallon MLA approved the Interconnector. That was challenged and the challenge narrowly upheld by the High Court in 2021. An appeal to the Court of Appeal was allowed in October 2022. But the latter’s judgment took a bizarre turn – with potentially significant consequences for the outer boundaries of the legislative competence of the Northern Ireland Assembly.
Though Safe Electricity involved a decision on a planning application, its importance has little (if anything) to do with planning law per se. Rather, the issue rested on a threshold question: whether the Infrastructure Minister had the power to make her decision in the manner in which she made that decision. The planning law aspect of the decision was fairly straightforward and orthodox. The constitutional aspect was less so. That is my focus in this post.
The statutory context of the decision
There are four interrelated statutory provisions which underlie the Infrastructure Minister’s decision to approve the Interconnector. First, under Northern Ireland planning law, applications for developments of regional significance are made to Stormont rather than local authorities. Under the Planning Act (NI) 2011, the Department for Infrastructure is authorised to make decisions in respect of such applications. Under the Departments (NI) Order 1999, each Department is under the direction and control of its corresponding Minister ‘at all times’. Consequently, it is the Infrastructure Minister who plays the critical role in the relevant decision (a controversy around this lay at the centre of the Buick litigation, which in turn provided the impetus for the current way in which Northern Ireland is ‘governed’ – with little to no democratic oversight).
Second, devolved Ministers in Northern Ireland do not function like their counterparts in the Scottish, Welsh and UK Governments. Collective decision-making is the exception, not the norm, specifically engaged only in respect of decisions which are significant, controversial or cross-cutting (requiring decisions on the part of two or more Ministers responsible for two or more Departments). The precise detail of this is found in section 20 of the Northern Ireland Act 1998, Strand One of the Good Friday Agreement 1998 and the reforms to the original devolution settlement brought about by legislation implementing the St Andrews Agreement 2006.
Third, and importantly, the requirements around collective decision-making also feature in the Stormont Ministerial Code, which, unlike its counterparts in Great Britain, is justiciable. A Minister who acts in breach of the collective decision-making requirements is deprived of the authority to act. The Ministerial Code is amendable under a specific procedure found in section 28A of the Northern Ireland Act: collectively, and with cross-community approval by the Assembly. Importantly, sections 20 and 28A may only be amended by obtaining the Northern Ireland Secretary’s consent.
Fourth, Buick marked a seismic moment in the history of the modern devolution settlement in Northern Ireland. With no Minister at the helm of any Department, Permanent Secretaries were precluded from making decisions in their absence. Part of the reason for this was that Buick involved a cross-cutting decision (on a planning application concerning an incinerator) between two Departments – only one of which made the decision. The Executive’s response was to provide an exception from the purview of collective decision-making to some decisions, including those of the Infrastructure Minister under the Planning Act.
The issue
The Executive’s response to Buick, to diminish the scope of collective decision-making through the Executive Committee (Functions) Act (NI) 2020 (‘ECFA’), was not the problem here: the Northern Ireland Secretary had granted his consent, satisfying the only manner and form requirement for the ECFA to be valid law. But, according to the High Court in Safe Electricity, the ECFA has no impact on the Ministerial Code (it concerns only section 20, not section 28A). What’s more, the Infrastructure Minister was well aware of the need to specifically amend the Code to reflect the changes made by the ECFA (Safe Electricity [2021] NIQB 93, [87]). But, the Code not having been amended, the Minister was in breach of the unamended collective decision-making duty. In the High Court, although Mr Justice Scoffield considered this an unlawful breach, it did not deprive the Minister of the authority to act. This is a somewhat complex but important (and unusual) point.
Deprivation of authority due to breaching the Code is provided for under section 28A(10). 28A(10) deprives Ministers the authority to act if they are in breach of a collective decision-making duty ‘made under [28(5)]’. 28(5) in turn requires the Ministerial Code to include collective decision-making duties ‘by virtue of section 20(3) or (4)’. However, the ECFA subjects 20(3) and (4) to new subsections (6)-(9) of section 20 of the Northern Ireland Act, among which are the ringfenced functions of the Infrastructure Minister at 20(7)(a). The result is that because the amended section 20 had not been given effect in the Ministerial Code, there was no requirement in the Code ‘made by virtue of sections 20(3) or (4)’ which could be said to have been breached by the Infrastructure Minister, and thus she was not deprived of authority under section 28A(10). The result of Scoffield J’s decision on this issue was both faithful to the statute and factually unusual: the Infrastructure Minister was in breach of a duty which went further than its underlying statutory scheme. But she was not thereby deprived of authority, because she ‘did not “contravene” the Ministerial Code in the manner envisaged in [section 28A(10)]’ ([2021] NIQB 93, [124]).’ Importantly, the Judge made it clear that he did not consider the Minister to have been culpable in the unusual circumstances of this case.
In the Court of Appeal, things took an even more unusual turn. The Court of Appeal held that the Code had been effectively amended to reflect the changes to section 20, because under section 20(2) of the Interpretation Act 1978:
‘Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act.’ (Safe Electricity [2022] NICA 61, [37]).
Notwithstanding the lack of explicit amendment to the Code, therefore, section 28A(5) of the Northern Ireland Act 1998 – the duty to provide for collective decision-making duties – refers to those duties as amended by the ECFA (Safe Electricity [2022] NICA 61, [42]-[43]). Consequently, the Court of Appeal held that there was no breach.
The Court was bolstered in its decision by an analogy the respondent Minister drew with a different Minister’s functions. Under section 20(6) of the NIA, the Justice Minister’s ‘quasi-judicial decisions’ do not require collective authority and no amendments were made to the Ministerial Code to reflect this provision (Safe Electricity [2022] NICA 61, [14]-[15]). This, the Court held, essentially endorsed its conclusion that where section 20 had been amended as regards the collective decision-making prescriptions, the Ministerial Code could be taken to have been effectively amended even if it had not been explicitly amended under section 28A (Safe Electricity [2022] NICA 61, [45]).
A reversal of statutory interpretation?
The simplicity of the Court of Appeal’s unanimous decision might be thought of as an elegant solution to an overly complicated problem. But simplicity can obscure, especially when matters of the constitution are in play. It is therefore important to critically analyse the Court’s judgment. In what follows, I make three main points.
The first point relates to the interplay between section 20(2) of the Interpretation Act and section 28A(4) of the Northern Ireland Act (the procedure to amend the Ministerial Code). Section 20(2) of the Interpretation Act is the codification of a general rule of statutory construction. This is evident from the language of the provision itself: the inclusion of the phrase ‘unless the contrary intention appears’ is an explicit reference to the generality of the provision. By contrast, section 28A(4) is a specific provision: amendments to the Ministerial Code are not valid and do not take effect unless made in accordance with this provision. It is a rule of statutory construction for general provisions to yield to specific ones. This is a rule of considerable vintage, applicable not only to provisions within the same statute (see e.g. R v J [2004] UKHL 42, [63]) but also to different statutes, with the general provision in an earlier statute and the specific provision in a later statute (see e.g. Richards v Richards [1984] 1 AC 174, 199). Although this rule is itself general and subject to any contrary intention, the language of section 20(2) of the Interpretation Act cannot be construed as overriding any later statute enacting a specific provision.
Second, assuming the Court of Appeal was correct, section 20(2) of the Interpretation Act would allow an Act of a devolved legislature to amend the legal effect of an Act of the UK Parliament beyond what is permitted under the legislature’s enabling statute, whether expressly or by implication. The relevant provisions here are section 28A(3) and (4) – the former directing that draft amendments to the Ministerial Code be placed before the Assembly, and the latter providing for the only way for those drafts to take effect. It is uncontroversial that the Assembly may amend the content of section 28A – but only with the consent of the Northern Ireland Secretary (as above). In this case, no consent was provided to amend section 28A, because the ECFA did not touch that section. So, if the Assembly did not amend section 28A, because it could not have done so via the ECFA, and it did not amend the Ministerial Code in accordance with the procedure under section 28A, then we can safely say that the ECFA did not per se amend the content or the effect of the relevant subsections of section 28A. But the Court of Appeal’s reasoning here effectively reverses the rule of statutory construction to allow the specific statutory provisions (section 28A(3) and (4) of the Northern Ireland Act) to yield to the general provision (section 20(2) of the Interpretation Act). It follows from this reasoning that the ECFA has amended the effect of section 28A(4), by providing for an alternative way for the Ministerial Code to be ‘effectively’ amended, thus nullifying the exclusivity of 28A(4). This sort of argument may seem pedantic or esoteric, but it is the kind of outcome which the Supreme Court ruled was outwith the legislative competence of the Scottish Parliament in relation to the latter’s UNCRC Bill in 2021. I return to this point later in this post.
Finally, the Court of Appeal had previously encountered a version of this issue in a different statutory context but a similarly controversial factual one. In Hughes and McKee v Charity Commission [2020] NICA 13, the Court was confronted with the Charity Commission having delegated significant decision-making to its staff, in breach of the requirements of its enabling statute. In response to the argument that section 19 of the Interpretation Act (NI) 1954 (the Northern Ireland equivalent to the Interpretation Act 1978) provided for a general power for incorporated bodies (such as the Charity Commission) to act through their employees, Madam Justice McBride in the Chancery Division had pointed to the general character of section 19, which had to yield to the specific scheme of delegation set out in the Charity Commission’s enabling statute ([2019] NICh 6, [103]). The Court of Appeal in Hughes had affirmed McBride J’s judgment in full.
Hughes itself presents a different kind of problem as respects Safe Electricity: as with the Court of Appeal in England and Wales, the Court of Appeal in Northern Ireland has (since at least 1955) held itself to be bound by its own precedents. Though the Court in Hughes had affirmed a lower court’s judgment rather than setting out its own reasoning on the issue of general provisions yielding to specific ones, its affirmation is itself a precedent and it is surprising for the Court not to have followed it in Safe Electricity.
The trap of ministerial analogies
As to the analogy between the Infrastructure and Justice Ministers which the Court accepted, there are two main points which belie its appropriateness. First, when the Court of Appeal examined the antecedence of the ‘quasi-judicial decision’ carve-out, it stated:
Section 20 was further amended in 2010 by Article 23 of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 […] These amendments came about as a result of the devolution of policing and justice. Some transitional arrangements were made, but no amendment of the Ministerial Code was made to encompass the decision-making powers contained in section 20(6) of the NIA. ([2022] NICA 61, [15]).
Curiously, what the Court omitted to mention was that the devolution of policing and justice was achieved by way of secondary legislation which could not have amended the Ministerial Code even if it had attempted it. The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 was an Order in Council made under sections 86 and 86A of the Northern Ireland Act – neither of which authorises an Order to make changes to the Ministerial Code or to section 28A.
Second, just because the Ministerial Code was left unamended in the wake of the devolution of policing and justice, it does not follow that the unamended Code would be ineffective as respects the Justice Minister in a similar factual scenario. The fact is that the Court of Appeal in Safe Electricity was not asked to rule whether the Justice Minister taking a quasi-judicial decision without her colleagues’ collective authority would have complied with the Ministerial Code. No authority on this point exists and using it as supportive of the Court’s decision in Safe Electricity no more than begs the question of its correctness. This is especially the case where the use of the analogy implies that the Court at least tacitly held the Code to have been effectively amended through the amendment to section 20 – again, bypassing section 28A by nullifying its exclusivity in relation to the amendment of the Code.
Implications
The most surprising upshot of Safe Electricity is that the Assembly may, at least in some cases, effectively ignore the express prescriptions on its legislative competence set out by the UK Parliament. Such an implication is all the more surprising when considering the restrictive jurisprudence from the UK Supreme Court in relation to the Scottish Parliament (as noted above). This is a controversial but important point worth exploring in some detail. The Supreme Court said that the Scottish Parliament could not modify the ‘unqualified power’ of the UK Parliament to make laws for Scotland, inter alia, by allowing Scottish courts to impugn the legal effect of Westminster’s statutes or strike down subordinate legislation made under the authority of such statutes (Re UNCRC Bill and ECLSG Bill [2021] UKSC 42, [22]-[46]).
Now, the potentially far-reaching impact of the Supreme Court’s judgment has been flagged for concern by a number of scholars (see e.g. Nick Kilford). I share these concerns. But Safe Electricity would remain problematic even if the Supreme Court had ruled differently in relation to the Scottish Parliament. The UNCRC Bill did not permit the Scottish courts to declare just any Westminster statute incompatible vis-à-vis the UN Convention on the Rights of the Child – only those statutes which would be within the competence of the Scottish Parliament to modify (see clause 19(2) of the Bill). By contrast, the modification of the content of section 28A of the Northern Ireland Act without obtaining the Northern Ireland Secretary’s consent is plainly outwith the legislative competence of the Assembly in any event. This bar must also extend to the modification of the legal effect of section 28A(4) because the alternative would render it possible for the Assembly to nullify any prescriptions on its own competence simply by modifying the effect (without modifying the content) of any provision of the Northern Ireland Act. That would be nothing short of revolutionary. Consider that the ability of escaping any prescriptions on legislative competence (manner-and-form or other prescriptions) by implication has been a somewhat unique hallmark of Westminster sovereignty, at least since AV Dicey penned its most famous account. Certain legislatures in the Westminster tradition required positive action from Westminster itself before claiming the same ability. The Assembly, by contrast, is not endowed with this ability, even though the logic of Safe Electricity may suggest it.
But the concern goes beyond statutory interpretation and the complex prescriptions on the Assembly’s legislative competence. The ECFA was passed with great speed in the Assembly: subject to accelerated passage (cutting out the Committee Stage), the Bill completed all of its stages within 4 weeks, in circumstances where the attention of the Assembly was preoccupied with a deadly global pandemic. The Assembly Hansard records some Members’ confusion as to the impact of the Bill, and concerns about its scope on Executive powers. These concerns, it has to be said, were raised for the first time during the Bill’s penultimate stage in the Assembly. These points hardly recommend the ECFA as the product of sustained and vigorous democratic debate and scrutiny.
It is important to acknowledge that neither the ECFA nor the desire to remove some of the highly detailed and (importantly) legally enforceable prescriptions on the Executive’s decision-making is inherently bad or concerning. The Assembly is free to enact any laws within its legislative competence and the Executive is equally free to utilise this competence to its fullest extent. What is concerning is where rushed law is used to make decisions, which may in turn be compounded by judicial endorsement that appears, at best, novel.
More widely, and especially in relation to the analogy drawn between the Infrastructure and Justice Ministers, Safe Electricity is a reminder that the law of parsimony does not always aid the interpretation of the law. Incidentally, the 1937 case on selling milk resulted in a decision in the House of Lords which is notable for the somewhat impatient parsimony of its reasoning. Lord Atkin, faced with questions of legislative competence concerning the former Stormont Parliament, declared these questions ‘now familiar’ requiring no real elaboration (Gallagher v Lynn [1937] AC 863, 870). Nine decades later, the parsimony in the Court of Appeal’s reasoning in Safe Electricity (certainly in comparison to the reasoning of the High Court) appears just as problematic.
Anurag Deb is a PhD Candidate at the School of Law at Queen’s University Belfast.
I am grateful to Dr Se-shauna Wheatle and Dr Paul Scott for their comments on an earlier draft.
(Suggested citation: A. Deb, ‘Constitutional Amendment by Interpretive Sidewind? Minister for Infrastructure v Safe Electricity A&T’, U.K. Const. L. Blog (7th September 2023) (available at https://ukconstitutionallaw.org/))