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 (No 2)

The Attorney General for Northern Ireland referred five questions to the Supreme Court, seeking authoritative legal guidance on devolution issues under the Northern Ireland Act 1998. The questions primarily revolved around the applicability of certain sections of the Act in the absence of a functioning Northern Ireland Assembly and its Executive Committee, which had been non-operational since January 2017. The referred questions addressed whether Northern Ireland departments should adhere to the Northern Ireland Ministerial Code, the implications of certain sections of the Act on departmental authority, and the existence of specific functions when there was no agreed programme as per the Belfast Agreement. The questions were posed against the backdrop of a significant decision by the Northern Ireland Court of Appeal in the Buick case, which had implications for the functioning of Northern Ireland departments in the absence of ministers.

The primary legal issues the court had to decide included whether the referred questions qualified as "devolution issues" under the Northern Ireland Act, and if the reference mechanism could be used to address purely theoretical or academic questions of law. The intervener argued that the questions did not pertain to reserved or excepted matters and, therefore, did not qualify as devolution issues. The intervener also contended that the reference should not be entertained as it bypassed the requirement of applying for permission to appeal. The Attorney General for Northern Ireland, however, argued that the questions were indeed about reserved matters and that the reference was permissible under the Act.

The court determined that while the intervener's arguments had considerable force, they did not decisively preclude the reference from being entertained. The court opted not to decide the merits of the competing claims at that stage, as the issues could be more appropriately addressed in the context of ongoing litigation concerning a proposed electricity interconnector between Northern Ireland and Ireland. The court lifted the stay on the interconnector proceedings and suggested that the Attorney General for Northern Ireland should intervene in those proceedings to address the issues raised by the reference. The Supreme Court decided to adjourn the current reference pending the outcome of the interconnector litigation.

In conclusion, the Supreme Court decided to adjourn the reference and lift the stay on the interconnector litigation, suggesting that the Attorney General for Northern Ireland should intervene in the interconnector proceedings to address the referred questions. The court did not rule on the merits of the referred questions but indicated that they could be more suitably determined in the context of the interconnector litigation.