Constitutionally Invalid
Acts and decisions of the administration may be void is that they breach fundamental so-called constitutional statute. The Northern Ireland Assembly and Executive Act acts under Westminster legislation.
In addition, the Westminster parliament itself has agreed to be bound by two other systems of legislation which, by their terms, claim to override UK law. These are the European Communities Act and the Human Rights Act. The Human Rights Act is specifically incorporated as part of Northern Ireland law.
The Northern Ireland Act, the European Communities Act, and the Human Rights Act are overarching acts. Acts of the Northern Ireland Assembly may be reviewed, and actions of the Northern Ireland executive may be reviewed with reference to their compliance with the above acts. The court may challenge actions and procedures which are in breach of the above so-called constitutional state statutes even where they accorded with Northern Ireland statutes.
The European Communities Act, 1972 requires that all legislation is to be read subject to the obligations under European Union law. Northern Ireland courts, in common with all UK courts, must determine matters of EU law in accordance with its case and principles. There exists a procedure for reference of points of European Union law to the European Court of Justice. Famously, one of the first references to the European Court of Justice from the United Kingdom came from a magistrate’s court in Northern Ireland.
The UK Parliament remains supreme and that it could repeal the European Communities Act. However, under the legislation courts continue to give effect to the European Communities Act which gives supremacy to EU Law over inconsistent domestic legislation.
A consequence of the supremacy of EU law is that decisions made by public bodies must conform with European Union legislation. For the most part, European Union legislation relates to relatively uncontroversial, technical, common market-type areas. In thee last 40 years, the scope of European Union legislation has increased significantly covering environmental, consumer, health, and safety, and social policy matters.
The Northern Ireland High Court is obliged to interpret domestic laws in accordance with and so that they are consistent with EU directives and regulations. They are obliged to implement EU regulation. They may award compensation to individuals who suffer serious breaches of EU rights by the actions, by the legislation, or administrative action.
There are general principles of EU law to which regard should be had in interpreting EU law. These accord with the domestic principles reflected in administrative law and their section including equality, proportionality, legitimate expectation, and adherence to the European Convention on Human Rights standards.
EU law may be asserted in an application for judicial review of legality. Courts have an obligation to ensure that EU law is implemented and given effect.
The position under the Human Rights Act differs from that under the European Communities Act. Courts do not have the direct power to disapply treat as ineffective, a statute of the UK parliament. UK courts, however, are entitled to make declarations that Westminster Legislation is incompatible with the European Convention of Human Rights. This has no legal effect. However, parliaments will almost invariably legislate to reform any inconsistency which is which is so found.
Courts are obliged to take account of the European Commission of Human Rights in its case law in interpreting legislation generally. They are obliged to interpret provisions in a manner that is consistent with the European Convention on Human Rights. Therefore, courts should and will give effect to the Convention like many of which are procedural and will not — and will not necessarily conflict with the substantive provisions of domestic UK laws.
Westminster Legislation and orders in council must be interpreted insofar as possible to be consistent with European Convention on Human Rights. This is not intended to dislocate parliamentary sovereignty. Courts will be relatively restrained but the degree of restraint will depend on the nature of the right affected.
If the court is considering making a declaration of incompatibility, it must notify the firm and allow it to be party to the proceedings. Only the High Court and Court of Appeal in Northern Ireland may make a declaration of incompatibility. The declaration does not change the legislation.
Most Northern Ireland domestic legislation such as acts of the Northern Ireland Assembly, the earlier Northern Ireland Parliament, and orders in council are deemed subordinate legislation under the Human Rights Act. Also subordinate are orders, rules, and regulations bylaws made under this legislation.
Where proceedings arise regarding subordinate legislation and whether it is compatible with the European Convention on Human Rights, the courts must attempt as far as possible to interpret the legislation to be compatible with Convention. However, if they cannot do so, it appears that the courts may in most cases deem the subordinate legislation to be incompatible with the ECHR and struck down as invalid.
A related issue that arises in the context of an act of the Assembly or order made after 1998 is whether it is in breach of the devolved power. The special procedure as set out below applies.
The power to strike down subordinate or secondary legislation does not apply where it is made in exercise of a power confirmed by primary legislation and the primary legislation prevents the removal of the incompatibility. In this case, a declaration of incompatibility only may be made. The above procedures applicable in the case of a declaration of incompatibility with primary legislation apply.
Human Rights Act provide that it is unlawful for a public authority to act in a way incompatible with the Convention rights. In this context, public authorities rrefer to administrative bodies and not to parliament. They include courts and tribunals and other administrative bodies.
Where a person has acted or proposed to act in a manner contrary to the ECHR (including an omission) a person affected as a so-called victim of the action or mission may bring proceedings against the authority.
The common law principles on legality and procedural fairness are effectively supplemented by the principles of the Convention. As with most human rights formulations, some rights are expressed in absolute terms while others are expressed in qualified terms being, for example, subject to limitations necessary for a Democratic society.
The modern approach of the UK Supreme Court is to find decisions avoided only if they breach a human right. If the human rights considerations are not given proper consideration in the administrative process, the court may subject them to scrutiny to ensure that the appropriate balance is afforded under the Convention. However, if due consideration has been given to the rights, the court will be restrained and will not interfere unless the decision is patently wrong.
A decision will not be invalidated where, as a result of provisions of legislation, the public authority could not have acted differently or, on account of the provisions of legislation, it cannot be interpreted in a way which is compatible with the Convention, and the authority is acting to give effect to such provision. These principles refer to parliamentary sovereignty.
The Northern Ireland Act applies to both Assembly acts and orders in council made in the periods between 2000 and 2007 when the Assembly was suspended. They may be challenged in the same way under the Northern Ireland Act.
The Assembly has powers in relation to the transferred area. It may legislate in relation to reserved and accepted matters with the consent of the Secretary of State.
The Northern Ireland parliament Assembly may not legislate in relation to any matter outside of Northern Ireland, in a manner incompatible with the Convention on Human Rights, in a matter incompatible with EU law, or in a matter that discriminates against persons on the grounds of their disbelief or political opinion.
Where any proceedings give rise to a demolition issue, notice is given to the attorney general and the appropriate minister or department.
Rules, statutory schemes, and regulations, bylaws made under Westminster Legislation or Northern Ireland Legislation must comply with the Northern Ireland Act as well as the Convention and the European Communities Legislation. Where such legislation is challenged and a demolition issue arises, those must be given to the attorney general and the appropriate government, Northern Ireland minister or department.
The Northern Ireland executive and ministers have no power to do anything incompatible with the Convention, equality law, or discriminatory practices. If a decision is challenged on the above grounds and proceedings give rise to a devolution issue, the High Court must notify the attorney general and the appropriate departments.
Section 75 of the Northern Ireland Act provides an equality clause. Public authorities, in carrying out their functions relating to Northern Ireland, must have due regard to the need to promote equality of opportunity between persons of different religious beliefs, political opinions, racial groups, ages, marital statuses, sexual discrimination, men and women generally, persons with or without a disability, persons with dependants, and persons without.
A range of public authorities are obliged to make an equality scheme and submit it to the equality commission for approval. The authority must comply with the scheme, and the equality commission may approve a complaint made by a person in writing affected by a failure. Alternatively, it may act on its own initiative and investigate non-compliance. The commission may seek to make a recommendation, refer the matter to the Secretary of State, or lay a report before the Assembly.