�CONSTITUTIONAL STATUTES’ AND ILLEGALITY

[5.04] The term �constitutional statute’ is used by the courts to identify those statutes that the common law regards as qualitatively different from, and superior to, other primary Acts of the Westminster Parliament.^[821] The term was first used, at least within its present meaning,^[822] to describe the European Communities Act 1972 that gives effect to EU law,^[823] although it has since also been used to describe the Human Rights Act 1998^[824] and the Northern Ireland Act 1998.^[825] In practical terms, such higher order statutes are distinguishable from other Acts on the ground that constitutional statutes are not subject to the ordinary rules of implied repeal,^[826] whereas other statutes are.

[5.05] The constitutional statutes of most importance to judicial review in Northern Ireland are the European Communities Act 1972, the Human Rights Act 1998, and the Northern Ireland Act 1998.^[830] These Acts not only impose a series of obligations on a wide range of public authorities and decision-makers; they also permit the courts to review primary Acts of the Westminster Parliament and the Northern Ireland Assembly for compatibility with EU law and the ECHR (Acts of the Assembly can be challenged on other grounds too^[831]: see [5.24]-[5.26]).

The European Communities Act 1972

[5.06] The key constitutional provisions of the European Communities Act 1972 are sections 2 and 3. Section 2(1) thus provides for the direct effect of EU law in the UK domestic system;^[835] section 2(2), as read with Schedule 2, enables Her Majesty by Order in Council and designated Ministers or departments (which may include Northern Ireland Ministers and departments^[836]) by regulation to make provision for the purpose of implementing EU law;^[837] and section 2(4) imposes an interpretive obligation whereby all past and future legislation is to be read and given effect subject to the provisions of the European Communities Act 1972.^[838] Section 3 then gives effect to the case law of the CJEU by requiring UK courts to determine all matters of EU law in accordance with that case law and, in the event that the meaning of EU law is unclear or there are questions as to its validity, by referring the matter to the CJEU in accordance with the Article 267 TFEU reference procedure.^[839]

[5.07] It has long been accepted that the combined effect of these provisions is the ascription of supremacy to EU law when it conflicts with domestic legislation, whether primary or subordinate in form and whether enacted prior or subsequent to the European Communities Act 1972.^[840] The point famously came to the fore in the Factor- tame case when the House of Lords, on having made a reference to the CJEU, granted an injunction to prevent the Secretary of State enforcing the terms of the Merchant Shipping Act 1988.^[841] While it was initially unclear how such judicial dis-application of �subsequent’ primary legislation could be reconciled with the doctrine of parliamentary sovereignty,^[842] the description of the 1972 Act as a constitutional statute that is no longer subject to the ordinary rules of implied repeal has given a greater coherence to the relationship between EU law and UK domestic law.

[5.08] The corollary of this ascription of supremacy to EU law is that all decisions taken in areas governed by EU law—whether of a public law or a private law nature— must accord with relevant provisions of the EU Treaties and related measures (typically Directives, Regulations, and Decisions^[846]), together with the case law of the CJEU. The institutional competences of the EU now include areas such as justice and home affairs,^[847] but it is in the areas associated with the internal market that EU law will be likely to be of most relevance in the domestic courts. The internal market is, at core, concerned with the free movement of capital, goods, persons, and services,^[848] although the EU has related competence in the areas of agriculture,^[849] competition,^[850] State aid,^[851] the environment,^[852] equal pay,^[853] and health and safety^[854] (among others).

[5.09] Where an argument of illegality is made with reference to EU law, the High Court must determine the matter in the light of its obligations under Article 4(3) TFEU (the so-called �loyalty’ clause).^[865] These include the obligation to interpret national law to be consistent with non-directly effective EU Directives that have not been imple­mented in domestic law (or have been implemented incorrectly);^[866] the requirement that national courts refer matters of EU law to the CJEU in the event that the national court is uncertain as to the meaning or validity of EU law;^[867] the requirement that national courts award damages to individuals for a �sufficiently serious’ breach of their EU law rights by any of the legislative, executive, or judicial branches of the State;^[868] and the requirement that national courts give effect to the general principles of EU law such as proportionality, equality, legitimate expectation, and fundamental rights standards found in, among others sources, the ECHR.^[869] This last obligation provides one example of how the grounds for judicial review can overlap with one another (see [5.03]), as a decision or other measure may be challenged as disproportionate vis-a-vis EU law and, on that basis, as ultra vires the European Communities Act 1972.^[870] This obligation is also of relevance to the idea of �spill-over’, as it is sometimes argued that general principles of EU law that are not a part of the common law should be developed by the courts in parallel domestic cases that do not involve points of EU law.^[871]

[5.10] National courts are also required to ensure that there is effective protection of EU law rights that are raised on an application for judicial review.^[872] This obligation sounds both at the interim stage in proceedings and at the end of proceedings should arguments of illegality be established.

[5.11] Mention should lastly be made of the significance of the Charter of Funda­mental Rights of the European Union (�the Charter’). The Charter was first published as a non-binding declaration of rights,^[874] but it now enjoys the status of Treaty law in accordance with Article 6 TEU. In broad terms, it contains a range of civil, political, social, and economic rights that are to be observed by the EU institutions and by the Member States �when they are implementing EU law’^[875] (these are clustered within six chapters under the headings of Freedoms; Equality; Solidarity; Citizen’s Rights; and Justice).^[876] While it was initially thought that the Charter could not be enforced in UK courts because of Protocol 30 to the Treaty of Lisbon,^[877] the CJEU has since ruled, on a reference from the Court of Appeal in England and Wales, that the Charter is enforce­able in the UK courts save, it would seem, for those Articles of it that fall under the heading of �Solidarity’.^[878] This means that the greater part of the Charter is now poten­tially relevant in any case that involves the implementation of EU law, and early rulings have suggested that the courts will adopt an expansive approach to the question of when EU law is involved in a dispute.^[879] The Charter therefore exists as �a dynamic, revolutionary and directly effective measure of EU law’^[880] that may either overlap with the ECHR on the facts of a case or offer free-standing protection of rights that are not guaranteed by that other instrument.^[881] In the event of overlap—ie where the Charter �contains rights which correspond to rights guaranteed’ by the ECHR—�the meaning and scope of those rights shall be the same as those laid down’ by the ECHR albeit that this �shall not prevent [EU] law providing more extensive protection’.^[882]

The Human Rights Act 1998

[5.12] The Human Rights Act 1998, in contrast to the European Communities Act 1972 (as interpreted by the courts), does not enable the courts to disapply Acts of the Westminster Parliament.

Primary Legislation

[5.13] Primary legislation for the purposes of the Human Rights Act 1998 is defined in section 21 to include Acts of the Westminster Parliament and prerogative Orders in Council, but not Acts of the devolved legislatures or Orders in Council made at times when the Northern Ireland Assembly or its predecessors have been suspended. Where an application for judicial review challenges the compatibility of primary legislation with the ECHR, the courts are required by section 3, �so far as it is possible to do so’, to interpret the legislation in a way that is compatible with the ECHR (the obligation applies to both primary and subordinate legislation �whenever enacted’). In deciding whether a particular piece of primary legislation attracts the section 3 interpretive enjoinder, the courts will, however, first assess whether an applicant’s ECHR rights are engaged and whether the legislation would breach those rights in the absence of a revised interpretive approach.^[896] The issue of breach may, as such, raise questions about the appropriate limits to judicial consideration of the content of a statute, as legislation will often deal with matters of social policy or with the framework for the provision of public services.^[897] Under these circumstances, the courts have noted that Parliament is primarily responsible for such legislative choices and that the courts should be slow to interfere with the choices of the democratically elected legislature.^[898] While this emphasis on restraint will be moderated according to context and the rights affected by legislation (absolute or qualified, and so on^[899]), it is consonant with traditional under­standings of the separation of powers, albeit as modified to the human rights context. The courts have therefore emphasised that Parliament will often be taken to enjoy a �discretionary area of judgment’ and that the courts may, when assessing the propor­tionality of a legislative scheme relative to an individual’s rights, �defer, on democratic grounds, to the considered opinion of the elected body... whose act... is said to be incompatible with the Convention’.^[900]

[5.14] Where the courts consider that legislation should be read in the light of section 3, this will require them to use a purposive and contextual interpretive technique.^[901] The canon of interpretation in section 3 has been described as a �strong adjuration’,^[902] and a court must try to achieve the harmonious interpretation of legislation relative to the ECHR, whether by reading words into or out of legislation,^[903] by giving existing words a meaning that is deemed more suited to their human rights context,^[904] or by departing from its own precedents^[905]—though not those of a higher court^[906]—where the previous interpretive approach would result in an incompatibility.^[907] The boundaries of this obli­gation are, however, set by what is �possible’ and this has led to some disagreement as to what may legitimately be achieved.^[908] Hence there are, on the one hand, dicta to the effect that Parliament has chosen to give the courts an enhanced interpretive role^[909] and that section 3 should thereby be used creatively so as to avoid a proliferation of declara­tions of incompatibility that would not have any legal effect on the legislation in question nor be binding on the parties to the proceedings.^[910] On the other hand, there are strong dicta to caution against �judicial interpretation’ being allowed to become �judicial legislation’ as this would defeat the purpose of the Act.^[911] The point here is simply that the Act is structured around the sovereignty of Parliament and that overac­tive interpretation could have the effect of negating legislation that Parliament has deliberated upon. From this perspective, the declaration of incompatibility would be preferred as the option better suited to the constitutional setting to the Act.

[5.15] Should the High Court or the Court of Appeal be considering whether to make a declaration of incompatibility—it is only the High Court and Court of Appeal in Northern Ireland that can do so under the Human Rights Act 19989^[912]—the court must give notice to the Crown in accordance with section 5 of the Act and the corresponding rules of court.^[913] Should a declaration be made, the issue of incompatibility becomes one for Parliament, which may choose to repeal or amend the legislation or to leave it in force.^[914] In the event that Parliament chooses to leave the legislation in force it remains sovereign and binding on those affected by it.

Subordinate Legislation

[5.16] Subordinate legislation is defined in section 21 of the Act to include (most) Orders in Council;^[915] Acts of the Northern Ireland Assembly and of the earlier Northern Ireland Parliament and Assembly; orders, rules, regulations, bye-laws, and other measures made under Acts of the Northern Ireland Assembly and its predecessors or Orders in Council applying only to Northern Ireland (most obviously those that have been made under the Northern Ireland Acts 1974 and 2000 at times of the suspension of the Northern Ireland institutions); and orders, rules, regulations, bye-laws and other measures made under primary legislation.^[916] Where proceedings give rise to the question whether subordinate legislation or a provision within it is compatible with the ECHR^[917], the courts must here too attempt, �so far as it is possible to do so’, to interpret the legislation compatibly (on the interpretive obligation see [5.14]). However, should such interpretation not be possible, it is implicit that the courts can, subject to one important exception, strike down the subordinate legislation or sever the offending provision^[918] (see too the effect of section 6: [5.18]). This thus means that Acts of the Assembly and Orders in Council that were made at times of suspension may be struck down under the Act,^[919] notwithstanding the argument that Acts of the Assembly and Orders in Council are of a constitutionally different quality from other forms of �subordinate’ legislation (see [5.25]-[5.26]).^[920] A challenge to an Act of the Assembly (or Order) or a measure made under an Act (or Order) will also give rise to a �devolution issue’ as defined in Schedule 10 to the Northern Ireland Act 1998, which contains a number of related procedural obligations (see [5.24]).^[921]

[5.17] The important exception to the power to strike down subordinate legislation is where that legislation has been �made in the exercise of a power conferred by primary legislation’ and �the primary legislation concerned prevents removal of the incompatibility’.^[922] Under these circumstances, and consistent with the emphasis of the Human Rights Act 1998 on the sovereignty of Parliament, the courts may merely make a declaration that the subordinate legislation is incompatible with the ECHR.^[923] Should the High Court or the Court of Appeal be considering whether to make such a declara­tion—it is only the High Court and Court of Appeal in Northern Ireland that can do so under the Human Rights Act 1998^[924]—the court must give notice to the Crown in accordance with section 5 of the Act and the corresponding rules of court.^[925] However, should a declaration in time be made, this will not �affect the validity, continuing opera­tion or enforcement of the provision in respect of which it is given’ and neither is it �binding on the parties to the proceedings in which it is made’.^[926] The matter instead becomes one for Parliament, which may choose to modify or repeal the legislation in accordance with section 10 of, and Schedule 2 to, the Human Rights Act 1998.

Public Authorities

[5.18] The key provision of the Human Rights Act 1998 as it applies to public authori­ties is section 6, which states: �It is unlawful for a public authority to act in a way which is incompatible with a Convention right’.^[927] �Public authorities’ for these purposes do not include �either House of Parliament or a person exercising functions in connection with proceedings in Parliament’, but they do include courts and tribunals, �core’ public authorities (local councils, statutory bodies, government departments,^[928] the police, the health service, and so on), and �any person certain of whose functions are functions of a public nature’ (so-called �mixed function’ authorities).^[929] Although the wording of the section has given rise to some difficulties in practice—there is continued uncertainty about how far it applies to privatised utilities and to some private bodies performing contracted-out government functions^[930]—it has been said that the Act has the aim of ensuring that human rights obligations have as wide a reach as possible in the modern administrative state.^[931] Individuals who satisfy the Act’s section 7 �victim’ requirement^[932] may therefore bring proceedings against a public authority where that authority has acted or proposes to act in a manner that is contrary to the ECHR (an �act’ for these purposes includes a failure to act,^[933] and subordinate legislation may also be challenged under the section, albeit subject to the section 3 interpretive obligation: see [5.14] and [5.16]). Where an argument of actual or possible illegality is made out, a court may then �grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’.^[934]

[5.19] Where the legality of a public authority’s act or failure to act is challenged in judicial review proceedings, the issue will be resolved, as per section 2 of the Human Rights Act 1998, on the basis of relevant ECHR jurisprudence (see [5.12]; although common law fundamental rights standards may also be relevant,^[935] as too may case law from other common law jurisdictions^[936]). Whether an argument of illegality can be made out will depend on judicial perception of the context of the case, in particular as is set by the nature of the rights involved. The provisions of the ECHR that are contained in Schedule 1 to the Human Rights Act 1998^[937] are often subdivided into qualified rights and absolute rights,^[938] and the judicial role on an application for judicial review can vary accordingly. For instance, where qualified rights are in issue there may be greater scope for judicial restraint as qualified rights can be subject to limitation on one or other of the grounds listed in the ECHR so long as those limitations are authorised by law, are �necessary in a democratic society’ and are proportionate (restraint will typically take form in use of the �discretionary area of judgment’ doctrine in any proportionality enquiry^[939]). However, where absolute rights are affected by a decision or other measure, the scope for judicial restraint should in theory be reduced as absolute rights—for example, the Article 3 ECHR prohibition of torture—cannot be subject to any limitation. Thus, even though there have been some references to the discretionary area of judgment doctrine in cases involving absolute rights,^[940] judicial invigilation should here be at its highest. Such cases, in the language of the common law, call for �anxious scrutiny’.^[941]

[5.20] A related point of importance about public authorities concerns the conse­quences of their failure to give express consideration to rights under the Human Rights Act 1998 during the decision-making process. Although the Northern Ireland courts had initially held that such a failure would ordinarily render a decision unlawful because the authority could not have satisfied itself that its decision was ECHR-compliant,^[942] the House of Lords later established in a number of cases involving qualified rights that a failure to have regard for human rights considerations need not have that effect.^[943] The central question on an application for judicial review is, instead, whether the final decision of the authority violates a right and, in the event that it does not, the House of Lords held that there is no anterior requirement that the process leading to the decision should have been informed by human rights considerations. However, while this might, at one level, appear to lessen the nature of the human rights burden placed upon decision-makers, a failure to consider rights during the decision-making process may still have implications for any subsequent role to be played by a reviewing court. Put shortly, in the event that a decision-maker does not give consideration to rights during the decision-making process, it may be that the court would have to subject the final decision to close scrutiny to ensure that the decision-maker has struck the appro­priate balance between all affected rights and that the decision is in that way compliant with the ECHR.^[944] On the other hand, should the decision-maker give express consid­eration to the rights of the individual in a context in which it has been given a wide discretion, the courts may consider that it would be constitutionally appropriate to demonstrate a greater degree of restraint relative to the final choice made.^[945] The courts, in other words, may again recognise that the decision at hand falls within the decision­maker’s �discretionary area of judgment’.^[946]

[5.21] It should finally be noted that public authorities have a defence to any argument of illegality under section 6 where, �(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one of more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions’.^[947] It has since been explained that, subject to the interpretive obligation in section 3 ([5.14] above),^[948] defence (a) is available where the effect of primary legislation is that the authority has no alternative other than to do what the legislation tells it to do and that the authority is, in that sense, under a duty to act in accordance with primary legislation of the sovereign Parliament (the relevant duty may be found in one provision in one statute, in several provisions in one statute, or in provisions contained in several statutes as read conjunctively; on primary legislation and the Act see [5.13]-[5.15]).^[949] Defence (b) is then likewise founded on the doctrine of parliamentary sovereignty and applies where an authority has a discretion to give effect to or enforce provisions of or made under primary legislation which cannot, as per section 3 of the Human Rights Act, be read compatibly with the ECHR (the source of the discretion may, again, be in one or more statutory provisions).^[950] Should the authority choose to exercise or not to exercise the power with the result that there is a �breach’ of an individual’s rights, there will be no illegality as the action/inaction will have given effect to primary legislation that remains valid even where it has been made the subject of a declaration of incompatibility (see [5.15]^[951]). The defence in this way allows decision-makers to give effect to Parliament’s intentions as,

if the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. The power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament.^[952]

The Northern Ireland Act 1998

[5.22] The Northern Ireland Act 1998, as amended,^[953] has been described by the courts as a �constitution for Northern Ireland, framed to create a continuing form of govern­ment against the history of the territory and the principles’ in the Belfast Agreement.^[954] The Act, among other things, thus delimits the legislative powers of the Northern Ireland Assembly;^[955] specifies how executive power in the Assembly is to be allocated (including in relation to the Department of Justice that was created in 2010 and which is headed by the Minister of Justice);^[956] constrains executive power with reference to a statutory Ministerial Code;^[957] makes provision for elections to the Assembly;^[958] creates, and delimits the powers of, the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission;^[959] and imposes equality obligations on public authorities as defined in the Act.^[960] These provisions of the Act have since given rise to a significant number of applications for judicial review, and there have been challenges to subordi­nate legislation made by government departments,^[961] to decisions of Ministers of the Executive Committee,^[962] to decisions of the Secretary of State for Northern Ireland,^[963] and to the determinations of other public authorities.^[964] While many of the cases have been decided on the basis of established judicial review principles, some have touched upon important questions about the nature of devolved power and whether the Assembly, when it is acting in its legislative capacity, is simply to be compared to any other recipient of delegated power.^[965] Some cases have likewise raised questions about how far, if at all, the Act’s �constitutional’ provisions on equality are enforceable by way of application for judicial review.^[966]

[5.23] Political difficulties between, in particular, October 2002 and May 2007 resulted in the periodic suspension of the Northern Ireland Assembly.^[967] Under suspension, Northern Ireland legislation—that is, �provision for any matter for which the 1998 Act authorises or requires provision to be made by Act of the Assembly’—was made by Order in Council under the (since repealed) Northern Ireland Act 2000.^[968] Such Orders in Council are the constitutional equivalent of Acts of the Assembly, and they too may be challenged with reference to the terms of the Northern Ireland Act 1998 (although the suspension of the Assembly meant that some legislative procedures did not need to be adhered to during suspension^[969]). Executive functions at times of suspension were, moreover, performed by Northern Ireland departments �subject to the direction and control of the Secretary of State’ for Northern Ireland (who was responsible for dis­charging the functions of the First and Deputy First Ministers),^[970] and all such executive functions were governed by the relevant constraints on executive power in the Northern Ireland Act 1998. Suspension did not, however, affect the work of NIHRC or the Equality Commission, save insofar as the Commissions perform functions in relation to the Assembly.^[971] The equality duties of public authorities also remained unaffected.

Acts of the AssemblyIOrders in Council

[5.24] The Northern Ireland Assembly has legislative competence in respect of �trans­ferred’ matters under the Northern Ireland Act 1998, which are to be distinguished from �reserved’ and �excepted’ matters.^[972] While the Assembly may legislate for trans­ferred matters (subject to a provision that safeguards the sovereignty of Parliament^[973]), it can legislate for reserved matters and excepted matters only with the consent of the Secretary of State (the excepted matters must be �ancillary to other provisions dealing... with reserved or transferred matters’).^[974] The corresponding limits to the Assembly’s legislative powers are found in section 6 of the Northern Ireland Act 1998, which states in subsection 2 that a provision of an Act will be outside the competence of the Assembly if:

(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;

(d) it is incompatible with EU law;

(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.^[975]

Where an Act of the Assembly (or an Order in Council) is challenged under section 6 and the High Court considers that the challenge is not frivolous or vexatious,^[976] the proceedings will give rise to a �devolution issue’ as defined in Schedule 10 to the Act.^[977] Under those circumstances, the High Court must give notice of the issue to the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, and the appropriate Northern Ireland Minister or department, unless the person to whom notice is to be given is a party to the proceedings.^[978]

[5.25] The key constitutional question about illegality and Acts of the Assembly or Orders in Council is whether they are to be regarded merely as a form of subordinate legislation or whether they are a form of primary legislation that demands a modified judicial approach when their validity is challenged.^[979] The leading authority on the point, by way of analogy, is now the Supreme Court’s ruling in Axa General Insurance, which concerned a challenge to the lawfulness of an Act of the Scottish Parliament.^[980] The legislation at issue was the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which enabled individuals to sue for damages where they had suffered the onset of pleural plaques as a result of their exposure to asbestos while working in Scotland’s heavy industries (the legislation thereby reversed the effects of the Rothwell ruling of the House of Lords which had held that pleural plaques did not constitute physical harm and were not actionable;^[981] parallel legislation had also been enacted by the Northern Ireland Assembly^[982]). In real terms, this meant that Axa and a number of other insurance companies would have to meet a very large number of claims against employers, and they challenged the legislation on the basis that it was a dispropor­tionate interference with their Article 1 Protocol 1 ECHR property rights and was thereby ultra vires section 29(2)(d) of the Scotland Act 1998 (the corresponding provi­sion in the Northern Ireland Act 1998 is section 6(2)(c)).^[983] Rejecting that argument, the Supreme Court noted that property rights are qualified rights under the ECHR; that the case law of the ECtHR accords States a wide margin of appreciation when limiting such rights for reasons of �the public interest’;^[984] and that judicial intervention on ECHR grounds could not be justified because it could not be said that the legislation lacked a �reasonable foundation’ or was �manifestly unreasonable’.^[985] On the related question whether the legislation could be challenged as unreasonable/irrational at common law^[986], the Supreme Court likewise held that it could not. The argument that it could be so reviewed had been advanced in addition to that centred on proportion­ality and, in dismissing the argument, the Supreme Court emphasised that the Scottish Parliament is a democratically legitimated body that commands wide-ranging powers within the framework of the Scotland Act 1998. While the Supreme Court at the same time made it clear that the Scottish Parliament is not legally sovereign in the sense that is associated with the Westminster Parliament, it was firmly of the view that the courts should exercise the fullest possible restraint when assessing the vires of Acts of the Scottish Parliament with reference to the common law. Unreasonableness, in the result, was not available as a ground for review and the Court implied that intervention on the basis of the common law would be possible only where an Act of the Scottish Parliament purports to abolish common law fundamental rights.^[987]

[5.26] It would appear from Axa that the courts can be expected to exercise restraint when reviewing Acts of the Northern Ireland Assembly under the terms of the Northern Ireland Act 1998, at least where an Act affects qualified rights and where the ECtHR would accord the State a wide margin of appreciation.^[988] Indeed, while Acts (and Orders in Council) may also be challenged with reference to the Human Rights Act 1998—where there is case law to suggest closer judicial scrutiny depending on the right(s) at issue^[989]—Axa apparently seeks to limit the scope for judicial intervention given the nature of the decision-maker at hand. This can be seen in the Supreme Court’s reference to the democratic legitimacy of the Scottish Parliament and, by extension, the Northern Ireland Assembly, which suggests that restraint will often be apposite pre­cisely because the courts will be assessing the choices of a body that is accountable to a locally defined political community^[990] (albeit that the point is perhaps less forceful where Orders in Council are challenged as these will have been made when the Northern Ireland Assembly, or any of its predecessor bodies, have been suspended).^[991] Such choices are, after all, made within the framework of a �constitutional statute’ and, while Axa notes that the devolved legislatures cannot be regarded as legally sovereign, it still identifies them as constitutionally distinct from all other recipients of delegated power. That said, the fact that the devolved legislatures are not legally sovereign may still have important implications for judicial review if Acts are challenged with first reference to the Human Rights Act 1998, as the Acts are there classified as �subordinate legislation’ and potentially subject to a range of remedies that include an order for certiorari.^[992] It is also to be noted that Supreme Court has recently held that Acts made under the Northern Ireland Act 1998 will not automatically attract different rules of statutory interpretation simply because they have been enacted under a �constitutional statute’.^[993] All will instead depend on the context within which the �devolution issue’ arises and on judicial use of principles that include the need for a �constant and predictable’ approach to statutory interpretation.^[994]

Statutory Rules

[5.27] Statutory Rules of Northern Ireland are subordinate legislation within the con­ventional meaning of that term, as they are made under Acts of the Assembly or Orders in Council at times of suspension^[995] (they may also be made under section 2(2) of the European Communities Act 1972, Acts of the former Northern Ireland Parliament, Orders in Council made under the Northern Ireland (Temporary Provisions) Act 1972, Orders in Council made under the Northern Ireland Act 1974, and Acts of the West­minster Parliament whether specific to Northern Ireland or of UK-wide application). The Rules—which may be in the form of orders, rules, schemes, regulations, or bye­laws^[996] and which are made by the authority named in the empowering legislation^[997]—must conform with any procedural requirements specified in the Act or Order^[998] and also with a range of common law constraints that apply to subordinate legislation more generally (see [5.34]-[5.40]).^[999] Statutory Rules of Northern Ireland may also be chal­lenged under section 24 of the Northern Ireland Act 1998, which provides, inter alia, that a Minister or Northern Ireland department has no power to make subordinate legislation so far as the legislation �(a) is incompatible with any of the Convention rights; (b) is incompatible with EU law; (c) discriminates against a person or class of person on the ground of religious belief or political opinion;.. or (e) in the case of legislation, modifies an enactment in breach of section 7’.^[1000] These grounds for review correspond to several of those contained in section 6 and which provide the basis for challenges to Acts of the Assembly and they are thus consonant with basic rules on the hierarchy of laws: if Acts may be enacted only within certain parameters, the point is perforce true of subordinate legislation made under those Acts.

[5.28] Where subordinate legislation is challenged under section 24 and the High Court considers that the challenge is not frivolous or vexatious,^[1001] the proceedings will give rise to a �devolution issue’ as defined in Schedule 10 to the Act.^[1002] Under those circumstances, as with challenges to Acts under section 6 of the Northern Ireland Act 1998 (see [5.24]), the High Court must give notice of the issue to the Advocate General for Northern Ireland, the Attorney-General for Northern Ireland, and the appropriate Northern Ireland Minister or department.^[1003]

Public Authorities (including Northern Ireland Ministers and Departments)

[5.29] Two provisions of the Northern Ireland Act 1998 are of particular relevance to the decisions or other measures of public authorities, which include Northern Ireland Ministers and departments but exclude the Assembly (on which see [5.24]-[5.26]). The first is section 24, which, in addition to providing for challenges to Statutory Rules (see [5.27]), states that a Minister or Northern Ireland department has no power to do any act that �(a) is incompatible with any of the Convention rights; (b) is incompatible with EU law; (c) discriminates against a person or class of person on the ground of religious belief or political opinion; (d)... aids or incites another person to discriminate against a person or class of person on that ground’ (grounds (c) and (d) do not, however, apply in relation to any act which is unlawful by virtue of the [Fair Employment and Treat­ment (Northern Ireland) Order 1998], or would be unlawful but for some exception made by virtue of [Part VIII of that Order]^[1004]). Where an act or decision is challenged under section 24 and the High Court considers that the challenge is not frivolous or vexatious,^[1005] the proceedings will give rise to a �devolution issue’ as defined in Schedule 10 to the Act.^[1006] Under those circumstances, the High Court must give notice of the issue to the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, and the appropriate Northern Ireland Minister or department.^[1007]

[5.30] The second provision is section 75, as read with Schedule 9 to the Act. Section 75(1) states:

A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity—

(a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;

(b) between men and women generally;

(c) between persons with a disability and persons without; and

(d) between persons with dependants and persons without.

Public authorities for these purposes are defined in section 75(3) to include a range of government departments, corporations, and other bodies listed in several other pieces of legislation,^[1008] a number of criminal justice agencies, and �any other person desig­nated.. by order made by the Secretary of State’. A public authority covered by the Act is obliged to make an equality scheme that will show how it proposes to fulfil the duties imposed by section 75 (fulfilment of such duties will often require prior use of Equality Impact Assessments),^[1009] and the scheme must be submitted to the Equality Commission for approval^[1010] (the Equality Commission must either approve the scheme or refer it to the Secretary of State, who must, in turn, either approve the scheme, require it to be revised, or make a scheme for the authority^[1011]). Should it be thought that an authority has thereafter failed to comply with its equality scheme, the Equality Commission may investigate a complaint �made in writing by a person who claims to have been directly affected by the failure’ or, alternatively, invoke its residual power to investigate where �it believes that a public authority’ is failing to abide by its obligations under its scheme.^[1012] In the event that the complaint or decision to investigate has been justified, the Equality Commission can seek to enforce the Act either by recommending that an authority take a particular course of action, by referring the matter to the Secretary of State, and by laying a report before the Assembly and Parliament (as appropriate).^[1013]

[5.31] The nature of section 75, in particular its link to Schedule 9, has been examined in a number of important cases. For instance, in Re Neill’s Application,^[1014] the applicant challenged the legality of the Anti-social Behaviour (Northern Ireland) Order 2004^[1015] on the ground that the Northern Ireland Office had failed to give effect to its equality scheme before deciding to lay a draft of the Order in Council before Parliament (the applicant essentially argued that the legislation had a detrimental impact upon young people and that no Equality Impact Assessment had been carried out). The central issue for the Court of Appeal was whether judicial review was available for purposes of enforcing section 75 or whether breaches of the kind at issue were to be remedied under Schedule 9. In holding that judicial review was not available on the facts, the Court concluded that the instant case had given rise to �precisely the type of situation that the procedure under Schedule 9 [was] designed to deal with... [The Equality Commis­sion] is given explicit powers to bring any failure on the part of the authority to the attention of Parliament and the Northern Ireland Assembly’.^[1016] Although the Court noted that judicial review may be available in some instances—it referred specifically to the possibility of substantive breaches of section 75 being brought before the courts—it held that the Northern Ireland Office’s breach was procedural in form and subject to the sanctions contained in Schedule 9. The Schedule thus offered an alterna­tive remedy that was essentially �political’ in form and to be distinguished from other �legal’ remedies under the Act, for instance the judicial power to award damages to individuals who are adversely affected by religious or political discrimination contrary to section 76.^{[1017] [1018]}

[5.32] Another significant case is Re JR 1’s Application,¹⁹³ wherein an eight-year-old girl challenged the legality of the use of Tasers by the PSNI. The challenge, which was unsuccessful, largely centred on the fact that the Chief Constable of the PSNI had ordered the use of Tasers on a pilot basis without first having completed an Equality Impact Assessment for the purposes of section 75. This gave rise to the argument that the Chief Constable had acted irrationally in doing so, as the decision to deploy Tasers had been taken in the absence of fuller information about their impact on children. In dealing with the initial matter whether the argued breach of section 75 was even sus­ceptible to judicial review, Morgan LCJ noted the Neill ruling of the Court Appeal and its finding that breaches of section 75 would typically be remedied through the political enforcement mechanisms contained in Schedule 9 to the Northern Ireland Act 1998. However, the Lord Chief Justice also noted that case law on comparable equality duties in England and Wales since the date of the Neill judgment had developed the law to include a â€?due regard’ duty in relation to Equality Impact Assessments (see further [5.46]).^[1019] Stating that â€?these cases inform the way in which the court should deal with the criticism’ that the Chief Constable had acted irrationally, Morgan LCJ noted that the nature of the â€?due regard’ duty is context dependent and that â€?it imposes at most a duty on a public authority to consider undertaking an impact assessment, along with other means of gathering information, and to consider whether it was appropriate to have one in relation to the function or policy at issue’.^[1020] Applying that formulation, the Chief Justice held that the Chief Constable could not be said to have acted irration­ally as he had approached the question of whether to conduct an Equality Impact Assessment in a responsive manner that had also had regard for matters of, among other things, human rights compliance and the practices of other police services. There had, in the result, been no breach of section 75 as the â€?decision to deploy Tasers on a pilot basis was well within the range of rational decisions that was available’ to the Chief Constable.^[1021]

[5.33] It should lastly be noted under this heading that public authorities are also bound to give effect to EU law and the ECHR. Where the authority is a Northern Ireland Minister or a government department the obligation is imposed specifically by section 24 of the Northern Ireland Act 1998 (see [5.29]); while the obligation in respect of other public authorities is contained in the European Communities Act 1972 and section 6 of the Human Rights Act 1998 (see [5.08] and [5.18]-[5.21] ;^[1022] although section 6 would apply to Ministers and departments too). The remaining statutory powers and duties of relevance to Northern Ireland public authorities are contained in Acts of the Assembly/Orders in Council, Acts of the Westminster Parliament, and various pieces of subordinate legislation. Changes in the nature of public power and the nature of service delivery do, however, mean that judicial review may also be avail­able to challenge the decisions of some �public’ authorities whose power of decision does not in fact have a statutory underpinning.^[1023]