DEVOLUTION: NORTHERN IRELAND

This post has been contributed by Hilaire Barnett, Public law tutor for the Undergraduate Laws Programme.

Devolution to Northern Ireland took place against the background of a history of sectarian violence between the two major communities of Northern Ireland: the unionist majority favouring the continued union with the rest of the UK and the republican minority favouring the reunion of the North with the Republic of Ireland.   Reflecting the need to avoid further sectarian conflict, devolution to Northern Ireland was formulated around the requirement that representatives of the two major communities cooperate in a power-sharing executive body.

Under the Northern Ireland Act 1998, section 16,[1] if the First Minister or Deputy First Minister resigns (or otherwise ceases to hold office), the other Minister must also resign.  On 10 January 2017, Martin McGuinness — the leader of Sinn Fein and Deputy First Minister  — resigned over the handling of a renewable energy scheme by the First Minister, Arlene Foster of the Democratic Unionist Party.  Mr McGuinness’s resignation prompted the calling of a fresh election.  The results of the election showed an increase in support for Sinn Fein (the republican party) which won 27 seats, and a decrease in support for the Democratic Unionist Party which secured 28 seats, the remaining 35 (of 90) seats being taken by the smaller parties (Alliance Party, 8; Social Democratic and Labour Party, 12; Ulster Unionists 10 seats; others 5).   The Irish Government, Westminster Government and the political parties in Northern Ireland now have three weeks in which to appoint a new Executive.

Should no agreement be reached, section 32 of the Northern Ireland Act 1998[2] requires the Secretary of State to call a further election.   As a last resort, direct rule from Westminster may once again be imposed.

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HUMAN RIGHTS

In R (Hicks) v Commissioner of Police for the Metropolis [2017] UKSC 9; [2017] 2 WLR 824, the Supreme Court considered the interpretation of Article 5 of the European Convention on Human Rights — the right to liberty —  in the course of which the Court reiterated its approach to the jurisprudence of the European Court of Human Rights and reaffirmed the importance of proportionality.

At issue was whether the police had the power to arrest and detain a person in order to prevent an anticipated breach of the peace, without bringing that person before a court.  The claimants had been arrested and detained prior to a Royal Wedding, on the grounds that their detention was necessary to prevent a breach of the peace.  They were each detained for between 2 1/2 and 5 1/2 hours, then released without charge, without having been taken before a Magistrates’ Court.  The claimants sought judicial review against the Commissioner of Police on the grounds that their detention breached Article 5.

The material part of Article 5 in relation to the facts of this case was 5.I(c):

No one shall be deprived of his liberty save in the following cases and in accordance        with a procedure prescribed by law: …….

(c) the lawful arrest or detention of a person effected for the purpose of bringing            him before the competent legal authority…..

Article 5, however, is silent as to whether it is lawful to arrest a person for preventative purposes, and to then release that person without taking him or her to court.

The Supreme Court reviewed the authorities from both domestic law and Strasbourg.  Particularly apposite was Ostendorf v Germany (2013) 34 BHRC 738.  In Ostendorf the Court of Human Rights was divided.  The majority held that 5.I(c) was incapable of authorising purely preventative detention, even where there were good grounds to believe an offence to be imminent and that the person had to be suspected of having already committed an offence.  The minority, conversely, held that arrest and detention was justified under 5.I(c) where the police reasonably considered it necessary to prevent an offence being committed.

Lord Toulson stated that in this case there was ‘nothing arbitrary about the decisions to arrest, detain and release the appellants.  The decisions were taken in good faith and were proportionate to the situation’ (at paragraph 31).  Moreover, were the police not to have this power, their ability to carry out the difficult task of maintaining public order and safety would be severely hampered.  The difficulty was how such a preventative power could be accommodated  within Article 5.  On this, the Supreme Court — recognising that the ‘Strasbourg case law on the point is not clear and settled’ (see paragraph 32) — took the view that the minority in Ostendorf was correct and followed its decision, stating that while the Court ‘must take into account the Strasbourg case law, in the final analysis it has a judicial choice to make’.

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The European Union (Notification of Withdrawal) Bill 2016 – 17 has completed all it parliamentary stages and awaits the Royal Assent.  The Act authorises the Government to give notice under Article 50 TEU of Britain’s intention to withdraw from the European Union.  It is expected to do so before the end of March 2017.

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[1] As inserted by the Northern Ireland (St Andrews Agreement) Act 2006, s. 8(1).

[2] As amended by the Northern Ireland (St Andrews Agreement) Act 2006.