In July the UK Supreme Court (UKSC) will hear a “reference” about the Abortion Services (Safe Access Zones) Bill passed by the Northern Ireland Assembly. This is only the second time that an Assembly bill has been referred to the UKSC, and will be the first time such a reference progresses to an oral hearing.
This Insight provides an overview of bill references, explaining this one’s significance and the role the UKSC has in this type of case.
What is the role of the UK Supreme Court?
Normally, the UKSC is an “appellate” court. It hears appeals against the decisions of lower courts, including the Court of Appeal (in England and Wales or Northern Ireland) and the Court of Session (in Scotland). It decides whether the lower courts have made legal errors, and if so, overturns their decisions.
References, including bill references, are slightly different. They are a feature of the devolution settlements in Northern Ireland, Scotland and Wales. References allow government law officers, whether those of the UK Government or devolved authorities, to test legal issues directly before the UKSC.
What is a bill reference?
Bill references happen after a devolved legislature has approved bills, but before they get Royal Assent. The referrer asks the UKSC whether the devolved legislature has the power to pass the bill.
If the UKSC decides one or more provisions would be beyond the devolved legislature’s powers, the bill cannot then be enacted. Instead, the devolved legislature must revisit the legislation to address the legal problems or abandon it.
The most common reasons why a provision would be beyond competence are that it:
- relates to subject matters that are reserved or excepted, so can only be legislated about by the UK Parliament;
- would modify protected enactments (like the Human Rights Act); or
- is incompatible with the European Convention on Human Rights.
The point of bill references is to stop unlawful legislation reaching the statute book before individuals and organisations start, mistakenly, to rely on it. They are a last resort if disputes about drafting and competence have not been resolved before the passage of a bill by a devolved legislature.
Previous Bill references
|Bill||Legislature||Referring law officer||Outcome|
|Damages (Asbestos-related Conditions) Bill (Northern Ireland)||Northern Ireland Assembly||Attorney General for Northern Ireland||Reference withdrawn, became an Act, competence addressed in related appeal on Scottish legislation in Axa General Insurance v Lord Advocate|
|Local Government Byelaws (Wales) Bill||National Assembly for Wales||Attorney General for England and Wales||Bill within competence, became an Act|
|Agriculture Sector (Wales) Bill||National Assembly for Wales||Attorney General for England and Wales||Bill within competence, became an Act|
|Recovery of Medical Costs for Asbestos Related Diseases (Wales) Bill||National Assembly for Wales||Counsel General for Wales||Bill outwith competence, did not become an Act|
|Law Derived from the European Union (Wales) Bill||National Assembly for Wales||Attorney General for England and Wales||Reference withdrawn, became an Act but repealed as part of intergovernmental agreement|
|UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill||Scottish Parliament||Advocate General for Scotland (and AGEW)||Most referred provisions outwith competence (though only 1 at the point of reference being made), bill abandoned|
|United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill||Scottish Parliament||Advocate General for Scotland (and AGEW)||Referred provisions outwith competence, bill being revisited|
|European Charter on Local Self-Government (Incorporation) (Scotland) Bill||Scottish Parliament||Advocate General for Scotland (and AGEW)||Referred provisions outwith competence, bill being revisited|
The bill reference power has been used more sparingly in Northern Ireland than in Wales and Scotland. The previous Attorney General for Northern Ireland (John Larkin QC) notably did refer other “devolution issues” to the UKSC which did not involve Stormont bills. For example, a 2019 reference concerned the powers of civil servants whenever a functioning Northern Ireland Executive does not exist.
The Northern Ireland Abortion Services Bill reference
In late March, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill. The legislation proposes to create “safe access zones” by banning anti-abortion protests outside certain health settings.
The Attorney General for Northern Ireland has referred the Bill to the UKSC. She wishes to clarify whether this legislation would be compatible with the European Convention on Human Rights. The case is likely to turn on whether this law is a “proportionate” restriction on the Convention rights of freedom of expression (Article 10) and assembly (Article 11).
The UKSC will hear oral argument on Tuesday 19 July.
This case is significant not just for Northern Ireland, but for all three devolution settlements. To be valid, all devolved legislation must be compatible with Convention rights. The case also matters more broadly as to the lawfulness of restrictions on freedom of expression and assembly under the Human Rights Act. The decision to hear the case with a panel of seven judges, rather than the usual five, reflects its wider constitutional and public importance.
Are there other ways to challenge devolved legislation in court?
A bill reference is not the only way legislation passed by a devolved legislature can be challenged. Individuals can also challenge devolved Acts through judicial review proceedings (specifically brought against the devolved authority) or in ordinary disputes (where arguments about competence are usually known as “collateral proceedings”).
Such challenges have been brought, for example, against the Scottish Government’s “Named Persons” legislation (successfully in Christian Institute v Lord Advocate), its legislation to restrict advertising of tobacco products (unsuccessfully in Imperial Tobacco v Lord Advocate) and its legislation introducing minimum unit pricing for alcohol (unsuccessfully in Scottish Malt Whisky Association v Lord Advocate).
When challenges are brought in this way, they usually begin in the lower courts, although they can eventually be appealed to the UK Supreme Court (or fast-tracked via a devolution issue reference). Crucially, such challenges can be brought by private individuals or organisations, rather than just government law officers.
Can draft legislation be referred to the UK Supreme Court?
As explained in another Insight last week, the Lord Advocate (the Scottish Government’s chief law officer) has referred the draft Scottish Independence Referendum Bill to the UKSC as a “devolution issue”. She is asking the Court to decide whether the legislation, if introduced and enacted, would be within Holyrood’s competence.
It remains to be seen whether a “devolution issue” reference can be used to refer draft legislation in this way, and there is no precedent for this alternative approach.
- Northern Ireland Assembly, Abortion Services (Safe Access Zones) BIll (landing page)
- UK Supreme Court, Attorney General NI’s Reference (landing page)
- House of Commons Library, UK Supreme Court on Devolution, July 2016
- House of Commons Library, Reserved matters in the United Kingdom, June 2022
- House of Commons Library, The UK Supreme Court, June 2022
About the author: Graeme Cowie is a researcher at the House of Commons Library, specialising in constitutional law.