Public Law

Sources of the Constitution Cases

Robinson v Secretary of State for Northern Ireland (2002) UKHL 32 

Key Point

• Lord Bingham’s judgment is often cited for the proposition that statutes of a constitutional character must be interpreted ‘generously and purposively’.

Facts

• Under sections 16(1) and 16(8) Northern Ireland Act 1998, an election of the First Minister (FM) and Deputy First Minister (DFM) shall be held within a period of 6 weeks with its first meeting of the NI Assembly, and if the FM and DFM are not elected within 6 weeks, under s32(3), the Secretary of State of NI shall propose a date for the poll for the election of the next Assembly.
• The Assembly met on September 23rd 2001 followed by an unsuccessful election on November 2nd 2001. A successful election was held on November 6th 2001. However, the 6 week period had already expired on November 4th 2001.
• The Appellant argued the above mentioned sections meant that the NI Secretary is bound to dissolve the NI Assembly if the FM and DFM are not elected within 6 weeks, and thus the election on November 6th should be deemed illegal and no First and Deputy First Ministers should be elected.

Held (House of Lords)

• Appeal dismissed. While Parliament had intended for the six week time limit to be adhered to, it was not its intention that the Assembly should be immediately dissolved upon a failure to elect within the time limit.

Lord Bingham

On statutory interpretation

• “The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.”: [11]
• “It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. …Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude.”: [12]

On the current facts

• “It is difficult to see why Parliament, given the purposes it was seeking to promote, should have wished to constrain local politicians and the Secretary of State within such a tight straitjacket”: [14]
• He pointed out the many problems with requiring the Assembly be dissolved after 6 weeks, which included 1. a new election must be held which will likely produce the same result; 2. it removes room for any political negotiation; 3. the Secretary of State cannot wait for a resolution to occur: [14]

Lord Hoffmann

• The purpose of the Act is “to create the favourable constitutional environment for cross-community government. This must have been foreseen as requiring the flexibility which could allow scope for political judgment in dealing with the deadlocks and crises which were bound to occur”: [30]

Commentary

In approaching this case, it is important to understand the historical context behind the NI Act 1998：

• The Bill had been drafted to implement the Good Friday Agreement and passed through Parliament in a rush, without time to address all the contingencies that could occur.
• The Act put in place a power sharing arrangement, under which the FM and DFM had to be a nationalist and unionist and both had to be approved by the unionist and nationalist caucuses of the NI Assembly.
• The purpose was thus to achieve peace through power sharing between two groups with great animosity for each other, it would thus seem counter to the purpose of Act if the Act would prevent the election of a FM and DFM when a very difficult agreement had been reached between the two groups on a mere technicality.

As such, taking in the background of the Act and understanding its purpose, the court decided to take a ‘purposive’ interpretation, rather than a literal interpretation of the Act, under which the ordinary meaning of the words would have implied that the Assembly should be dissolved after 6 weeks it had a duty to elect a FM and DFM within that period.