No, this is not a paper on covid rule-breaking by UK ministers.  Instead it analyses the judgment of 20^th December 2021 in Re Napier, on what happens when Northern Ireland ministers refuse to comply with their legal duties.  The particular duty was the duty to participate in meetings of the North-South Ministerial Council (the NSMC).    Given that the Democratic Unionist Party ministers had already been found to be acting unlawfully by failing to participate, what would happen when the case came back before the court, and the court was asked to order them to stop acting unlawfully?

Facts

Part V of the Northern Ireland Act 1998 sets out various duties of the First Minister and deputy First Minister (of Northern Ireland) in relation to meetings of the NSMC.  The NSMC essentially provides a venue for discussion of matters where the government of Northern Ireland and the government of Ireland may fruitfully co-operate on matters of joint concern.  North-South relations are one strand of the complex web of arrangements set out in the Good Friday Agreement and developed in subsequent agreements, all aimed at bringing peace, justice, and workable government to Northern Ireland.

The Democratic Unionist Party (the party of the current First Minister) has taken the decision to boycott most of the NSMC meetings.  This has been done as part of its campaign against the Northern Ireland Protocol.  This boycott was ruled unlawful by the High Court in Belfast on 11 October 2021 in Re Napier [2021] NIQB 86.  Scoffield J made the following declaration

The respondents’ decision to withdraw from the North-South Ministerial Council was and is unlawful because it frustrates, is contrary to, and is in breach of the legal duties and responsibilities contained within Part V of the Northern Ireland Act 1998 and, specifically, sections 52A and 52B.

Despite this declaratory judgment, the respondents (the DUP ministers in the Northern Ireland Executive) continued to boycott the NSMC meetings.  Therefore, the original applicant brought a further action for judicial review seeking an order compelling the DUP ministers to participate in NSMC meetings.

Decision

Scoffield J (who gave the original judgment in Re Napier) heard the case and gave judgment on 20 December 2021.  He followed the original judgment, which held that the First Minister was under a duty to conscientiously facilitate and participate in NSMC meetings.  Furthermore, refusal to do so was unlawful. 

However, Scoffield J rejected the request to grant a mandatory order compelling the First Minister to participate in NSMC meetings.  He gave four reasons for this.  The third reason is of general import in determining the proper boundaries between courts and the executive.  He stated that to make a mandatory order would stray too much into the political sphere.

There is often a fine, but important, distinction to be drawn between cases on the one hand where a court is asked to decide a political question (which it cannot) and cases on the other hand where a court is merely asked to perform its appropriate constitutional role of ruling on the legality of actions on the part of political actors, albeit in a context of political controversy.

[para 69]

In Scoffield’s judgment, to declare the First Minister to be acting unlawfully was on the correct side of this line.  To order the First Minister to participate in meetings would be on the wrong side of this line.

Analysis

I see four points arising out of this case.

The first and most obvious point is the shocking disregard for the law displayed by DUP ministers.  A High Court judge has previously ruled that their course of conduct is unlawful.  This is not an entirely unknown event. Ministers will occasionally get the law wrong, and a court will occasionally make a finding against them.  The only legitimate response is either to appeal against the judgment, or to accept the judgment and change that course of conduct.  Rather than do either of these, the ministers continued to act in an unlawful way, in full knowledge that it was unlawful.

At the risk of stating the obvious, breaking the law is wrong.  Breaking the law when you are a government minister is wrong.  Flagrantly continuing to break it after a court case going against you is wrong.  The Pledge of Office for Northern Ireland Ministers includes the following promises:

• to uphold the rule of law based as it is on the fundamental principles of fairness, impartiality, and democratic accountability, including support for policing and the courts
• to support the rule of law unequivocally in word and deed and to support all efforts to uphold it

It is hard to find any fault with Scoffield’s description [para 80] of the ministers as acting in “abject breach of their solemn pledge”.

The second point is the unwillingness of the courts to enter into the political sphere, or to give a judgment which could be seen as playing politics.  Notwithstanding the clear condemnation that the court made of this unlawful behaviour, the court was extremely reticent to make a mandatory order against the ministers.  There is no doubt that the court meticulously directed itself by way of the authorities on this point.  It said it was

ensuring that the court remains within the proper constitutional bounds of its own role, namely, to enforce the law but generally to leave the substance of decision-making to the body to whom that has been entrusted by Parliament

[para 60]

This approach is very much in contra-distinction to the current narrative of the UK government that judges are too quick to get involved in politics.  This is the narrative which justifies restricting judicial review in the Judicial Review and Courts Bill.  In its manifesto the government spoke of ensuring judicial review is “not abused to conduct politics by another means or to create needless delays”.  But in this case, the High Court in Belfast has refused to get drawn into politics, even when there has been a clear breach of the law.

The third point is the most challenging one, and one for which I do not have an answer.  It is the question with which I opened – what are the courts to do if the government will not obey the law?  If I as an individual break the law, the process and the outcome is clear. I will have the opportunity to argue my case in court, and if I am wrong, the court will find against me.  If I persist, I will face some sort of judicial sanction, which will start with orders and will end up in contempt of court proceedings in the face of my continued refusal.  But when the government itself is in breach, this starts to break down.  The expectation is that the government has sufficient integrity (or its flip-side, shame) that it will obey the law when it is told it is acting outside the law.  This is why when legislation is drafted imposing a duty upon a minister, it is rare to also set out a sanction if the minister refuses to comply.  The working assumption is that it is sufficient to simply tell the minister what the law is, safe in the knowledge that the minister will comply with that law.

But things start to unravel when ministers do not do this, when they decide that they can act outside the law.  To do so hugely undermines respect for the law, and also reduces the chances that others will comply with it.  This point was recognised by the court, pointing out that some protests against the Northern Ireland Protocol have turned violent.  Although the violent protests have been condemned by all parties in the Northern Ireland Executive, it is harder to take that condemnation seriously if some parties continue to break the law themselves.

The fourth point is the consequence of the previous ones – there is a reduction in the value of a legal system if the rules are not going to be followed, and its judgments not enforced.  What is the point of going to court if the court will not vindicate your rights?  What is the point of a law if those in power can simply ignore that law?  As Tom Bingham memorably said, it doesn’t matter if you are the archbishop of canterbury, if you maltreat a penguin, you will be punished for it.  Or as Judge Chutkan put it in discussing Donald Trump, “Presidents are not kings”, meaning that Presidents are not above the law.

Conclusion

Although this post is not about the possible breach of coronavirus regulations by UK ministers, the parallels are obvious.  Disregard for the rules is not an appropriate course of conduct for ministers.  Judicial reticence to enter into the political sphere is understandable, (although with breach of coronavirus regulations, there is not a difficult balance between making a finding and ordering a minister to do a positive act).  Finally, if ministers break the law, it unravels the edifice of the legal system, as well as giving the green light to others to do the same.

The solution is a rather obvious one.  It is the solution given by every lawyer every day in Belfast Petty Sessions to their clients – if you don’t want the court to rule against you, then don’t break the law.

Dr Ronan Cormacain, Bingham Centre for the Rule of Law

(Suggested citation: R. Cormacain, ‘What should courts do when ministers flout the law?’, U.K. Const. L. Blog (22nd Dec 2021) (available at https://ukconstitutionallaw.org/))