McCord, Re Application for Judicial Review

Factual and Procedural Background

The appellant initiated judicial review proceedings challenging the respondent's failure or refusal to publish a policy setting out the circumstances under which a border poll would be directed in Northern Ireland. The background to the dispute lies in the Belfast Agreement and the Northern Ireland Act 1998 (NIA), which provide that Northern Ireland shall not cease to be part of the United Kingdom without the consent of a majority of its population voting in a border poll. The appellant contended that the absence of a published policy undermined constitutional principles of clarity, transparency, and legal certainty.

The appellant’s initial application sought leave for judicial review focusing on the absence of such a policy, without challenging any specific decision not to hold a border poll. Later proposed amendments included challenges to an alleged negative decision not to hold a poll, but these were refused leave and not pursued on appeal.

The High Court dismissed the appellant’s claim, holding that no duty to publish a policy arises under the NIA or the Belfast Agreement. The appellant appealed that decision.

Legal Issues Presented

1. Whether the respondent is required to publish a policy governing the discretion to hold a border poll under section 1 and Schedule 1 paragraph 1 of the Northern Ireland Act 1998.
2. Whether the respondent is required to publish a policy governing the duty to hold a border poll under section 1 and Schedule 1 paragraph 2 of the Northern Ireland Act 1998.

Arguments of the Parties

Appellant's Arguments

• There is an implied duty to publish a policy to ensure consistency, transparency, and legal certainty in the exercise of the respondent’s discretion regarding border polls.
• The rule of law demands a published policy to avoid arbitrariness, especially given the constitutional significance of the decision.
• Transparency is a constitutional principle, particularly important in a post-conflict society such as Northern Ireland.
• Without a policy, inconsistency in decision-making could arise, which is a ground for judicial review.
• The respondent must identify the electorate before assessing whether a majority would support a border poll, and this requires clarity and policy guidance.
• The failure to publish a policy is Wednesbury unreasonable.

Respondent's Arguments

• There is no express or implied statutory duty under the NIA or the Belfast Agreement to publish a policy on border polls.
• The discretion to hold a border poll involves complex political judgment requiring flexibility, which a rigid policy would undermine.
• Consistency is not an absolute principle applicable here; political judgments differ from regulatory or adjudicative decisions where policies are common.
• The exercise of powers under the NIA is not a regulatory function subject to statutory duties under the Legislative and Regulatory Reform Act 2006.
• The respondent’s decision not to publish a policy is rational and lawful, given the need for flexibility and the political nature of the decision.
• Determining the electorate is a political judgment to be made at the time a poll is ordered, not in advance by policy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by situating the dispute within the constitutional framework established by the Belfast Agreement and the Northern Ireland Act 1998, which codify the conditions and mechanisms for a border poll. The court emphasized that the powers conferred on the respondent to direct a border poll involve complex political judgments in a context of differing and unpredictable events, requiring flexibility rather than rigid rules or policies.

The court rejected the appellant’s argument that a general principle of consistency or the rule of law mandates a published policy. It held that consistency is not an absolute principle and that the political discretion exercised here is distinct from regulatory or adjudicative discretion where policies are more common. Furthermore, no express or implied statutory duty to publish a policy exists in the NIA or the Belfast Agreement.

The court also found that the principle of transparency, while important, does not impose a constitutional obligation to publish a policy in this context, especially given the political sensitivity and potential for disruption to participation by unionist and nationalist communities.

Regarding the assessment of the electorate, the court agreed that the respondent may consider who should vote when deciding whether to hold a border poll, but this is a political judgment to be made at the time of the decision, not a matter requiring advance policy publication.

Overall, the court concluded that the respondent’s decision not to publish a policy was rational and lawful, consistent with the constitutional values of flexibility and participation underpinning the NIA.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct effect of this decision is that there is no legal obligation on the Secretary of State for Northern Ireland to publish a policy governing the circumstances in which a border poll may be directed under section 1 and Schedule 1 of the Northern Ireland Act 1998. The ruling affirms the broad and flexible nature of the political discretion conferred by the statute and the constitutional framework established by the Belfast Agreement. No new precedent imposing a policy publication requirement was established, preserving the respondent’s discretion to adapt to changing political circumstances without being bound by a fixed policy.