The townland of Carrickmore in County Tyrone in Northern Ireland is the ancestral home of legendary Nirvana frontman Kurt Cobain. It is also near an ancient and beautifully preserved Neolithic court tomb, excavated between 1979 and 1982. Carrickmore was at the heart of a different funerary matter when, on 3 February 2023, the Northern Ireland High Court handed down a judgment with potentially wide consequences for many laws which govern everyday life in the jurisdiction. This post examines the judgment in Re Oliver Hughes’ application for judicial review [2023] NIKB 5 in terms of the administration of Northern Ireland after the suspension and abolition of devolution in 1973, until its restoration in 1999 – the longest period of direct rule since the jurisdiction’s birth.

The facts

Oliver Hughes was interested in establishing a crematorium in the area around Carrickmore. The problem is that crematoria are regulated by the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 (‘the 1985 Order’), article 17 of which authorises local authorities to provide crematoria – and no one else. The law in this area has been reformed in England and Wales and Scotland to authorise private crematoria. But the Northern Ireland Assembly has not yet enacted (and nor has any Northern Ireland Department made) any legislation to allow for similar reforms in Northern Ireland. Efforts towards reform have sputtered, and given the current devolution impasse at Stormont, ground to a halt.

Ultimately, a challenge to the bar on private crematoria under the 1985 Order was dismissed in Hughes, but this is not the subject of this post. The relevant point is the question of the amenability of the 1985 Order to judicial review – more particularly, to rationality review.

The circumstances around the 1985 Order

The 1985 Order, like with much legislation enacted between the abolition of the old Stormont Parliament and the creation of the modern Assembly, was an Order in Council made under the Northern Ireland Act 1974 (‘the 1974 Act’). This Act authorised the making of laws by Order in Council in respect of Northern Ireland ‘and, in particular, provision for any matter for which the Constitution Act authorises or requires provision to be made by Measure’.

The ‘Constitution Act’ is the Northern Ireland Constitution Act 1973 (‘the 1973 Act’), which was an attempt to revive and redesign devolution after its spectacular collapse in 1972. Under the 1973 Act, a new Assembly would have the power to pass Measures, which had the ‘same force and effect’ as Acts of the UK Parliament, subject to a bar on enacting any Measure which discriminated against individuals or classes on the basis of religious belief or political opinion. Beyond this specific bar, the Assembly was free to legislate on any matter not expressly reserved to the UK Parliament or reserved for future transfer to the Assembly. 

Of course, the Assembly envisioned by the 1973 Act never quite materialised as hoped. With a very brief existence in 1974 when it enacted two Measures, the Assembly and the 1973 devolution settlement crumbled in the face of the paralysing Ulster Workers’ Council strike of 1974. This gave rise to the 1974 Act and the proliferation of Orders in Council between 1974 and 1999. Major examples of such Orders include Northern Ireland laws governing insolvency, reforms of police powers and criminal evidence, reorganisations of the lower judiciary and the 1985 Order which was the subject of this challenge.

The judgment

The relevant part of the judgment in Hughes for this post explores whether the 1985 Order ought to be amenable to judicial review. The starting point, for Mr Justice Colton, was to look at AXA v Lord Advocate [2011] UKSC 46. This is because the respondent in Hughes, which resisted the challenge to the 1985 Order, submitted that Orders authorised ‘under foundational statutes for devolved legislators’ should be ‘considered as equivalent’ to Acts of devolved legislatures ([30]). AXA, being the authority for the proposition that Acts of devolved legislatures were not reviewable for rationality (AXA, [52]), would therefore preclude reviewing the 1985 Order for rationality.

But the Court did not agree. Instead, Colton J drew an analogy with R (Bancoult) v Foreign Secretary (No. 2) [2008] UKHL 61 and R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789. Bancoult concerned the British Indian Ocean Territory (Constitution) Order 2004 which was an Order in Council made through the exercise of prerogative powers. By contrast, Javed concerned subordinate legislation made under the Asylum and Immigration Appeals Act 1993. While Colton J analogised Bancoult, Javed and the 1985 Order because all three were (in the judge’s view) Orders in Council (Hughes, [36]-[40]), the analogy is less convincing than might appear for two main reasons.

First, there is a difference between an Order in Council made in exercise of the royal prerogative, which is a primary legislative power (in Council rather than in Parliament) and an Order in Council made under an Act of Parliament, which as a legislative power is subordinate to its parent Act (see e.g. Bancoult [34]).

Second, it is not clearly the case that the order in Javed was an Order in Council and not simply the product of delegated legislative powers frequently conferred on ministers rather than the Sovereign in Council (the body which makes Orders in Council). This is apparent when considering the parent Act, which simply provides for ‘an order made by the Secretary of State by statutory instrument’, in contrast with, for example, the 1974 Act which specifically provided: ‘Her Majesty may by Order in Council make laws …’. Although Secretaries of State are by convention all sworn of the Privy Council, the delegated legislation they make pursuant to an Act of Parliament does not, by the fact of their Privy Council membership, become Orders in Council.

Colton J drew on Javed in particular to conclude that ‘an order in council which had been approved by Parliament could be challenged on the grounds of irrationality’ (Hughes, [40]). However, this was not the end of the judge’s reasoning. Colton J also looked at the level and quality of legislative scrutiny afforded to the 1985 Order in comparison to a Bill being moved through either Parliament or the Assembly, noting that ‘[t]here was no committee stage. There was no opportunity to amend the [impugned] provisions’ (Hughes, [43]). Thus, the judge concluded, the 1985 Order was subordinate legislation amenable to review for rationality (Hughes, [45]).

The implications

At the outset, given that the 1985 Order is subordinate legislation made under the 1974 Act, its mere character as an Order in Council bears little on the question of its amenability to judicial review. It is uncontroversial that subordinate legislation cannot be made ultra vires its parent statute and is therefore amenable to legality review. In that sense, the respondent’s submission that the 1985 Order ought to be considered ‘equivalent’ to primary legislation appears, to put the matter mildly, novel.

However, that is not the end of the question, because the 1985 Order was part of a category of law authorised under a specific statute dealing with the governance of Northern Ireland – the 1974 Act. The text of the relevant provision in that Act purported to transfer legislative ability from the short-lived Assembly created by the 1973 Act to the Privy Council, but otherwise retain that ability as before. A legality review of Assembly Measures under the 1973 Act was not a mere legality review, but a highly specific test of legislative competence – much like the competence tests which apply to Acts of the Scottish Parliament, Senedd Cymru and the present-day Assembly. A distinction between a test of competence and that of legality is that the former is an explicit set of negative criteria laid down in the 1973 Act (or other devolution settlements) while the latter derives from the general supervisory jurisdiction of the courts – ensuring that statutes are correctly applied regardless of whether or not they (explicitly) negatively condition the exercise of any powers which they delegate (see e.g. the discussion by Lord Mance of the breadth of the powers of delegated legislation under section 2(2) of the European Communities Act 1972, in United States v Nolan [2015] UKSC 63, [64]).     

It is true that in AXA, while ruling out rationality review for devolved primary legislation, the Supreme Court had nevertheless made obiter observations on the susceptibility of such legislation to rule of law review. This would strike down the kinds of extreme legislation envisioned in cases such as Jackson v Attorney General, on the premise that Parliament cannot be taken to have authorised a devolved legislature to abrogate the rule of law (AXA, [153]). But, again, this is not the same as scrutinising executive-made subordinate legislation against its corresponding parent statute (AXA, [48]). Although these remarks were made in the context of Acts of the Scottish Parliament, I would suggest the same characteristics are shared by Acts of the Northern Ireland Assembly and the two Measures enacted by its previous incarnation.

Part of the reason for according devolved primary legislation far greater constitutional respect than subordinate legislation made by the executive (and approved by the legislature) is that the former is the direct result of democratic debate. Subordinate legislation cannot be amended while being considered by the legislature. In practice, some conventions around seeking legislative input into draft subordinate legislation have developed – whether through the use of SL1 letters in Northern Ireland or Super Affirmative SSIs in the Scottish Parliament. But once these drafts have been laid before their respective legislatures, they are unamendable and may only be negatived in their entirety. The same applied to the Orders in Council under the 1974 Act – which could only be affirmed or negatived but not amended in any way.

So, what does this make Orders in Council under the 1974 Act? I suggest two options, neither without some level of conceptual difficulty. First, by the terms of the 1974 Act, Parliament had indeed effected an exact transfer of legislative powers from the erstwhile Assembly to the Privy Council, so that Orders in Council were functionally (and therefore legally) equivalent to devolved primary legislation (in this case, Assembly Measures). This is, however, no answer to Colton J’s point on the (comparative lack of) democratic credentials of Orders in Council under the 1974 Act, and indeed altogether ignores the discussion of the character of devolved primary legislation in AXA.

Second, and assuming Colton J is entirely correct, Parliament effected only a partial transfer of legislative power to the Privy Council by the 1974 Act, so that it did not authorise the making of irrational law without a degree of democratic oversight comparable to its own ability to make primary legislation (such as might be found in a functional Assembly). Alternatively, Parliament conferred legislative power on the Sovereign in Council under the 1974 Act, but afresh: the reference to the Assembly’s competence under the 1973 Act was not a transfer, but a legislative shorthand. Either way, the conferral of legislative power was only in respect of rational law.

But this poses a difficulty when read together with Colton J’s conclusion that immunity from rationality review was contingent on there being a level of democratic scrutiny comparable to that over bills in Parliament or the Assembly. In Bancoult (No. 2), the House of Lords unanimously held that the British Indian Ocean Territory Constitution Order 2004 (the BIOT Order) was amenable to ordinary judicial review, including rationality review (Lords Bingham and Mance dissented on whether the BIOT Order was lawful on being reviewed). This was based predominantly on the decision in the GCHQ case, in which the exercise of prerogative powers was held to be amenable to ordinary judicial review. Additionally, Lords Bingham and Mance also held that the BIOT Order was amenable to ordinary judicial review because it suffered from a lack of democratic oversight – crucially, there being no possibility of parliamentary intervention on the making of the BIOT Order. By contrast, Orders in Council under the 1974 Act could only be made if Parliament had approved their draft, or without parliamentary approval in urgent cases. The 1985 Order had been laid in draft form before Parliament and was therefore approved prior to being made. The point in Bancoult (No. 2) had been a complete lack of democratic oversight; the point in Hughes was that of a lack of comparable democratic oversight (with primary legislation), by analogy with Javed (as explored above). But here, we encounter another problem which I suggest goes to the heart of the amenability of the 1985 Order to ordinary judicial review.

Javed involved subordinate legislation which was ministerial in character without clearly being an Order in Council. However, the distinction with the 1985 Order does not end here. The order in Javed concerned the designation of safe countries for the purposes of applications for asylum. Crucially, such designation could only be validly made if the Home Secretary was satisfied, on perusing relevant evidence, that there was generally no risk of persecution in the country being designated safe. On this basis, the Court of Appeal distinguished the order in Javed from subordinate legislation in cases such as ex p Hammersmith LBC [1991] 1 AC 521 and ex p Nottinghamshire County Council [1986] AC 240, both of which concerned matters of finance and where the House of Lords categorically ruled out rationality review of subordinate legislation.

The crematorium provisions under the 1985 Order do not concern matters of finance, but as these provisions relate to the powers of local government, they are essentially matters of political judgment. Whether crematoria should be operated solely by local authorities or widened to include private players is not a question on which the law requires evidentiary justification as had been the case in Javed. No doubt that answering this question would involve relevant political actors arriving at a position on the basis of evidence, but that position is not prescribed in terms similar to the parent Act in Javed, or indeed at all. In a way, Colton J almost arrives at this exact conclusion – recognising the ‘political and social issues’ underlying the challenge in Hughes which make judicial intervention unsuitable (Hughes, [96]). This being the case, the judge’s conclusion on the 1985 Order’s amenability to rationality review rings somewhat hollow.

The upshot to all of this is twofold. First, Hughes demonstrates that rationality review is not always a simple and categorical matter when it comes to legislation. In principle, executive-made legislation, whether Orders in Council or other subordinate legislation, can be amenable to rationality review. But the real question is whether rationality review should apply to such legislation – in which case the focus shifts to the policy content of the legislation. The existing authorities appear to align on a single point: for subordinate legislation, the less prescriptive the parent statute, the less likely it is that subordinate legislation ought to be reviewable for rationality. With respect to Colton J, I suggest that article 17 of the 1985 Order ought not to be amenable to rationality review for the simple reason that the 1974 Act (or any other primary legislation) in no way prescribes its policy content. Put another way, the Sovereign in Council was not required to arrive at any particular view, on the basis of any evidence, before making the 1985 Order.

The above discussion also illustrates why, although it may be tempting to construct categories of legislation for the purposes of judicial review, the question of whether judicial review ought to be available at all depends a great deal on the content of the legislation to be construed, rather than its character (in terms of whether it is primary or subordinate). This is also a reminder that the obiter comments on rule of law review in AXA have yet to be put into practice. Just as the general availability of rationality review over prerogative powers set out in the GCHQ case becomes more nuanced when practically applied to prerogative-made legislation, it is not inconceivable for a substantive rule of law challenge to devolved primary legislation to qualify the comments in AXA. 

Second, Hughes theoretically makes every Order in Council made under the 1974 Act amenable to rationality review. Such a possibility is unlikely to lead to a bonfire of laws, however. Rationality is a famously (or infamously, depending on one’s perspective) difficult threshold to cross. In Hughes, Colton J refused to accept the applicant’s submission that rationality in the provision of crematoria in Northern Ireland at least partially required parity with the legal landscape in Great Britain (Hughes, [92] (i)-(ii) and [94]). Given that one of the oft-quoted aims of devolution is to develop a ‘policy laboratory’, this is a particularly important point. Relatedly, given that many of these Orders in Council brought in sweeping changes to Northern Ireland law, the categorical subjection of these Orders to rationality review would create significant uncertainty to the way in which daily life in Northern Ireland has been ordered for at least 3 decades.  

For the time being, the body of law made for Northern Ireland between 1974 and 1999 remains as intact and as in force as it was before Hughes. Crematoria remain under the sole purview of local authorities and adverse inferences may still be drawn from an accused’s silence.

I am grateful to Paul Scott and Mike Gordon for their very helpful feedback on an earlier draft of this post. Any remaining errors are my own.

Anurag Deb, PhD Candidate at Queen’s University Belfast

(Suggested citation: A. Deb, ‘Direct Rule in Northern Ireland and the Power to Make Irrational Laws’, U.K. Const. L. Blog (17th February 2023) (available at https://ukconstitutionallaw.org/))