Introduction

The case of Burns & Anor, Re Application for Judicial Review ([2022] NICA 20) was heard by the Court of Appeal in Northern Ireland on April 12, 2022. This appeal arose from the refusal of leave to apply for a judicial review concerning government proposals addressing legacy issues from the Troubles—a period of conflict in Northern Ireland. The applicants, Patricia Burns and Daniel McCready, sought to challenge the government's Command Paper 498, which proposed significant legal changes affecting investigations and prosecutions related to incidents during the Troubles. The central issue revolved around the constitutionality and legality of these proposals, particularly their alignment with human rights and the Northern Ireland Protocol.

Summary of the Judgment

The applicants contended that the government's proposals, as outlined in Command Paper 498, would:

• Create a statute of limitations for all Troubles-related incidents;
• Establish a statutory bar preventing the Police Service of Northern Ireland (PSNI) and the Police Ombudsman from investigating such incidents, effectively ending criminal investigations and prosecutions;
• Prohibit courts from hearing any cases related to the Troubles, including criminal, civil, and judicial proceedings.

They argued that these measures were fundamentally unconstitutional, violated rights under the European Convention on Human Rights (including Articles 2, 3, and 6), and conflicted with Article 2 of the Northern Ireland Protocol.

The Court of Appeal, affirming the High Court's decision, refused to grant leave for judicial review. The court determined that the application was premature and non-justiciable, emphasizing the separation of judicial and parliamentary functions and the importance of respecting the legislative process.

Analysis

Precedents Cited

The judgment referenced several key cases to underpin its decision:

• R (on the application of Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs & Orders [2016] EWHC 2010 (Admin) - Discussed the court's discretion in granting declaratory relief.
• British Railways Board v Pickin [1974] AC 765 - Established that courts cannot question the legitimacy of Acts of Parliament.
• R v Her Majesty’s Treasury, Ex parte Smedley [1985] QB 657 - Highlighted limits on judicial intervention in parliamentary functions.
• Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62 - Related to the scope of Article 50 TFEU, though deemed not directly applicable.
• JR 80 [2019] NIQB 1 and [2019] NICA 58 - Concerned the implementation of historical abuse inquiry recommendations, illustrating tangible legal issues.
• R (Adiatu) v HM Treasury [2020] PTSR 2198 - Reinforced the principle of parliamentary sovereignty.

Legal Reasoning

The court's legal reasoning centered on the principles of parliamentary sovereignty and judicial restraint. It emphasized that:

• The judiciary should not interfere with the legislative process or preemptively challenge government proposals before they are enacted into law.
• Judicial review is appropriate only when there is a definitive decision or action by a public authority, not for speculative or pending legislative changes.
• Declaratory relief, while available, requires a concrete and present legal issue, which was absent in this case as the proposals had not been formalized into legislation.
• Invoking the separation of powers, the court maintained that matters within the political arena, especially those involving complex policy decisions, are primarily for Parliament to address.

The court further noted that granting leave for judicial review in this context would overstep its jurisdiction and infringe upon the legislative domain reserved for Parliament.

Impact

The decision in Burns & Anor underscores the judiciary's role in maintaining a clear boundary between legal adjudication and political decision-making. By refusing to grant leave for judicial review on premature and non-justiciable grounds, the court reinforces the principle of parliamentary sovereignty. This judgment serves as a precedent for future cases where applicants seek to challenge proposed legislation before its enactment, delineating the limits of judicial intervention in the legislative process.

Additionally, the ruling highlights the judiciary's cautious approach in politically sensitive contexts, ensuring that judicial review mechanisms are not misapplied to prevent or delay legislative actions prematurely.

Complex Concepts Simplified

Judicial Review

Judicial review is a process by which courts examine the actions of public authorities to ensure they comply with the law. It allows individuals to challenge the legality of decisions made by government bodies.

Justiciability

Justiciability refers to the suitability of a matter to be decided by a court. For a case to be justiciable, there must be a real and concrete legal issue that the court can resolve.

Parliamentary Sovereignty

Parliamentary sovereignty is a fundamental principle in the UK constitution, stating that Parliament is the supreme legal authority, capable of creating or ending any law. Courts cannot override or question the validity of legislation passed by Parliament.

Declaratory Relief

Declaratory relief is a judicial determination of a legal right or obligation without ordering any specific action or awarding damages. It clarifies the legal position of the parties involved.

Conclusion

The Burns & Anor case serves as a reaffirmation of the judiciary's respect for parliamentary sovereignty and the limits of judicial review. By declining to intervene in a premature and politically sensitive matter, the Court of Appeal highlighted the importance of allowing the legislative process to unfold without judicial interference. This judgment emphasizes that while courts play a crucial role in upholding the rule of law, they must also recognize the boundaries of their jurisdiction, particularly in areas deeply intertwined with political processes and legislative actions.