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Last update: 19-08-2004
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Legal order - Northern Ireland

 

TABLE OF CONTENTS

Sources of National Law Sources of National Law
Process of Adoption of Legislation Process of Adoption of Legislation
a) Primary Legislation a)
b) Secondary Legislation b)
Conflict of Laws Conflict of Laws
International Sources of Law International Sources of Law
European Community Law European Community Law
Human Rights Act 1998 Human Rights Act 1998

 

Sources of National Law

There are two main sources of national law in Northern Ireland:

  1. Legislation
  2. Law created by the Courts (sometimes referred to as “case law” or “common law”)
Legislation

Legislation includes:

  1. Acts or statutes that are referred to as ‘primary legislation’. These may be Acts of the Parliament at Westminster (in London), the Northern Ireland Parliament (1921-1972) or the Northern Ireland Assembly (2000-2002). Due to the constitutional history of Northern Ireland, much legislation is contained in ‘Orders in Council’, which technically are secondary legislation but are used as primary legislation.
  2. Secondary or subordinate legislation and variously referred to as orders, rules, regulations and schemes. Secondary legislation is made under the authority of an Act and is used to state the law in more detail.

The UK does not have a written constitution and therefore, unlike in most other countries, the courts cannot refuse to apply primary legislation on the grounds that it is “unconstitutional”. The courts cannot change the words used in legislation although they may have to interpret their meaning. Parliament is supreme and only a later Parliament can repeal the Acts of a previous Parliament. This is referred to as the doctrine of “Parliamentary Sovereignty”. The only qualification to the doctrine of Parliamentary Sovereignty is that the UK’s membership of the European Union means that if UK law conflicts with European Community law, the latter takes priority (see below).

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The organisation of the legislative system in Northern Ireland is linked to its history. From the Act of Union in 1800 (which joined Great Britain with Ireland to form the United Kingdom) until 1921, the only legislative body for Ireland was the Parliament at Westminster. Following the partition of Ireland in 1921, separate legal systems were established for the North and the South and each was given its own Parliament and courts. Pursuant to the Government of Ireland Act 1920, the Parliament of Northern Ireland was able to enact legislation except in relation to “excepted” and “reserved” matters that could only be dealt with at Westminster. Excepted matters were those that were of imperial or national concern, for example, the armed forces, external trade and weights & measures ; reserved matters were those that were to be the remit of the proposed Council of Ireland (which in fact was never created) including postal services and some taxes.

From 1932, the Parliament of Northern Ireland was located at Stormont (near Belfast). Devolution of powers in Northern Ireland to the Stormont Parliament continued until March 1972 when it was suspended following several years of civil unrest and “direct rule” by Westminister was introduced. The Stormont Parliament was later abolished.

A new Northern Ireland Assembly was established as part of the Belfast or Good Friday Agreement (10 April 1998). The powers of this Assembly were enshrined in law by the Northern Ireland Act 1998. Power was formally devolved to the new Assembly in December 1999. The Northern Ireland Assembly is not permitted to pass laws on certain “excepted” or “reserved” matters but all other matters are deemed to be “transferred”. Here excepted matters are those of national importance and include international relations, defence, national security and immigration ; reserved matters are matters that may be transferred to the Assembly at a later date and include the post office, criminal justice, administration of the courts, units of measurement and external trade. The Assembly was suspended as of 14 October 2002 due to political difficulties.

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Statutes of the Stormont Parliament between 1921-1972 were distinguished from English statutes with similar titles by adding “Northern Ireland” after the word Act. Whenever the Westminster Parliament wished to enact a law concerning an “excepted” matter it used a public general Act (the name for acts affecting the whole public). Acts confined to Northern Ireland have “Northern Ireland” in the main part of the title or within brackets before the word Act. For “reserved” matters the Order in Council procedure was used (see below).

During the period of direct rule the main way in which legislation confined to Northern Ireland was enacted for “transferred” matters (that is Matters the Stormont Parliament would have legislated on if it had not been abolished) was by adopting the Order in Council procedure provided for in the Northern Ireland Act 1974 (see below). A public general Act was only used if the Government wished to ensure a full parliamentary debate.

Following the devolution of powers to the Northern Ireland Assembly in 1999, the Order in Council procedure under the Northern Ireland Act 1974 was abolished. However because the range of “reserved” matters was greater in the 1998 Act than in the 1973 Act, the 1998 Act maintained the power to make Orders in Council for Northern Ireland. When the Northern Ireland Assembly is suspended – as at present – the power to make Orders in Council is revived by virtue of the Northern Ireland Act 2000.

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Process of Adoption of Legislation

a) Primary Legislation

Before proposed legislation is introduced in Parliament (or the Assembly in Northern Ireland) it is normally subject to consultation. Bills are drafted by the Office of Parliamentary Counsel. However bills, or provisions of bills, extending exclusively to Northern Ireland are drafted by the Legislative Draftsmen for Northern Ireland.

Passage of a Bill through Parliament typically takes weeks or months. A Bill is normally introduced into the House of Commons (although it may be introduced into the House of Lords) where it is dealt with in five stages:

  1. First Reading, when the Bill is formally introduced;
  2. Second Reading, when there is a general debate on the Bill’s general principles;
  3. Committee;
  4. Report and
  5. Third Reading.

It is at the Committee and Report stages that detailed amendments are considered. The Bill is then sent to the House of Lords where similar stages are gone through. If any amendments are suggested, these must be returned to the House of Commons to be considered. The House of Lords can only delay a Bill by a year.

The enactment of legislation by the Northern Ireland Assembly goes through a similar process:

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  1. First Reading, when the Bill is formally introduced;
  2. Second Reading, when there is a debate on the Bill’s general principles;
  3. Committee;
  4. Consideration, when Members can vote on the details including proposed amendments;
  5. Further Consideration; and
  6. Final Stage.

Finally, all Bills require Royal Assent to be given by the Queen. By convention, She may no longer refuse to give assent.

b) Secondary Legislation

All secondary legislation is derived from primary legislation. The parent Act will give power to a rule-making authority to issue detailed laws. The rule-making authority is usually a Government department but the Privy Council (senior Government ministers) makes Orders in Council.

The most important pieces of secondary legislation must be laid in draft form for approval by both Houses of Parliament (or in Northern Ireland, the Northern Ireland Assembly) before being presented to the Queen for her formal assent. This process is called the “affirmative resolution procedure” because legislation does not have effect unless it is approved.

An alternative means of creating secondary legislation is the “negative resolution procedure” whereby the legislation takes effect unless a motion is passed in either House (or the Northern Ireland Assembly) specifically annulling it within 40 days (or 10 days in Northern Ireland).

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Less important secondary legislation may be required to be laid before Parliament (or the Northern Ireland Assembly) but is not subject to any Parliamentary procedure.

Judge-made Law

Law is created by judges in the following situations:

  1. where statute law is silent in relation to the point in issue; and
  2. where statute law is ambiguous.

When a court has made a ruling on a particular point of law, that ruling must be applied whenever lower courts are dealing with the same point in subsequent cases. The rule is said to have become a “precedent” or “binding legal authority”. The highest court in the Northern Ireland legal system is the House of Lords and its decisions in Northern Ireland cases are binding on all Northern Ireland courts. The House of Lords treats its former decisions as binding on itself but will depart from an earlier decision when it appears proper to do so.

Decisions of the Court of Appeal of Northern Ireland are binding on the High Court and the Crown Court and their decisions are binding on county courts. Magistrates’ courts, the lowest courts, are bound by all other courts.

The Northern Ireland Court of Appeal (like the Court of Appeal in England) can only depart from its earlier decisions if

  1. two decisions conflict;
  2. the earlier decision is inconsistent with a later decision of the House of Lords;
  3. the earlier decision was made without proper consideration of earlier law (per incuriam).

The High Court will abide by its own previous decisions unless persuaded they are wrong.

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An earlier decision of a court is only binding in relation to the ratio decidendi ie. the main principle stated in the decision. Anything said by the court which does not concern the main principle is obiter dictum and is not binding. Earlier decisions are often distinguished on the basis of the facts.

Conflict of Laws

In the (rare) event that legislation conflicts with the law laid down by courts, the former prevails. If legislation conflicts with earlier legislation, then the later in time prevails. In most cases the later legislation expressly repeals the earlier legislation but if it does not then the doctrine of “implied repeal” is applicable.

International Sources of Law

The courts take the view that international law established as a matter of custom forms part of the national law. However if a statute conflicts with customary international law, then the statute must be applied by reason of the doctrine of Parliamentary Sovereignty. The risk of conflict is mitigated by the general rule that, so far as possible, statutes should be interpreted so as to be compatible with international law.

When the Government of the United Kingdom signs (or ratifies) international agreements (treaties, conventions or covenants) it does so on behalf of the people of Northern Ireland as well as the people of Great Britain. However special legislation is usually required to ensure that the provisions of an international agreement are enforceable in the national courts. Even if such legislation is not enacted, the international agreement is nevertheless binding on the Government and failure to enact legislation to incorporate the provisions of the agreement into national law may place the UK in breach of international law.

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European Community Law

When the United Kingdom joined the European Community on 1 January 1973, the Treaty of Rome 1957 was incorporated into UK law by virtue of the European Communities Act 1972. Subsequent treaties amending the Treaty of Rome have also been incorporated. Domestic law has effect subject to European Community law. All courts in the United Kingdom can refuse to apply an Act of Parliament if the judges consider that it conflicts with EC law. An example of a case where the Northern Ireland Court of Appeal disapplied provisions of legislation because of their inconsistency with European Community law is Perceval-Price v Department of Economic Development [2000] NI 141.

Human Rights Act 1998

The Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law. The Act makes the ECHR enforceable in all courts in the United Kingdom. So far as possible the courts must interpret and apply national law in a way that is compatible with the ECHR. The courts can make a declaration that primary legislation is incompatible with the ECHR but this does not render the Act invalid, rather it is for Parliament to enact corrective legislation. However secondary legislation (including Orders in Council) that is held to be incompatible can be disapplied. The Northern Ireland Act 1998 expressly prohibited the Northern Ireland Assembly from making legislation that is incompatible with the Convention.

Further information

« Legal order - General information | United Kingdom - General information »

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Last update: 19-08-2004

 
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