Describe the legal and constitutional framework of Northern Ireland.

University Degree Law

BA Hons in Business Studies

(with Specialisms)

Law and the Legal System

Essay Topic:

Describe the legal and constitutional framework of Northern Ireland

Compiled by: Sinead Stevenson

Tutor: Dr Rose Logue

Word Count: 3,158

Contents Page

Introduction 1

The History of Northern Ireland Legal System 1

How Laws are made for Northern Ireland 2

The Court Service in Northern Ireland 6

The Court Structure of Northern Ireland 7

Conclusion 10

Appendix 12

Introduction

In order to explain the legal and constitutional framework of Northern Ireland it first requires a familiarity of the history of the legal system: how the island was separated into the North and South, how it was formed, and how Northern Ireland attempted to create its own legal system.

The next section describes how its laws come into being (i.e. the ‘sources’ of Northern Ireland law). The third section is an overview of the Northern Ireland Court Service and its strategic objectives. This is followed by an exposition of how existing laws are implemented and the bodies that undertake this task.

The History of Northern Ireland’s Legal System

In the thirteenth century a Parliament in Ireland evolved along with a Parliament in England claiming the power to make laws for Ireland. When Ireland was divided in 1920, separate legal systems were established for the North and the South. The North was given its own Parliament as well as its own system of courts and in the South the old law continued to apply.

A new local Parliament was then created for Northern Ireland and was granted the right to enact legislation ‘for the peace, order and good government’ of the province. From the year 1932 the Parliament of Northern Ireland was located at Stormont. The matters which were ‘transferred’ to it included:

Law and order;
Local government;
Health and social services;
Education;
Planning and agriculture;
Internal trade; and
Industrial development

Other matters of national concern known as ‘excepted’ matters could only be dealt with by the Parliament of Westminster.

The power of the Stormont Parliament was withdrawn from them when they were suspended in March 1972. ‘Direct rule’ was introduced and under the Northern Ireland Constitution Act 1973 the Northern Ireland Parliament was abolished.

Northern Ireland had many attempts to create a new legal system, for instance, in January 1947 they made laws called ‘Measures’, which collapsed in May 1974; direct rule was then again applied; in 1982 a new 78-member Northern Ireland Assembly was elected and proved unsuccessful and the Assembly was dissolved in 1986 (Brice Dickson, 1993)

Northern Ireland therefore continues to be controlled by the Parliament at Westminster.

How Laws are made for Northern Ireland

There are two types of laws in Northern Ireland: law made by Parliament, which is called legislation, and law made by judges, which is called case law or common law. Usually both types of law have something relevant to say about any matter.

The Northern Ireland legal system is based on the principle of ‘parliamentary sovereignty’. In other words:

what Parliament says today can change what any judge or even Parliament itself may have said yesterday’

(Brice Dickson et al, 1995, 3)

A judge’s task, in such a system, is to lay down legal rules for matters that are not clearly covered by legislation.

Since 1973, however, membership of the European Union has meant whenever the law of Northern Ireland counteracts to law originating from Brussels or Luxembourg, the latter must be given priority. Thereby, the United Kingdom Parliament is no longer completely sovereign, and the law of the European Union must be considered as part of the law of Northern Ireland.

Primary Legislation

Primary legislation is concerned with the Acts of Parliament, also known as ‘statutes’, and is passed by the Parliament of Westminster. Secondary legislation is concerned with a large number of orders, rules, regulations and schemes. These also can be known as subordinate or delegated legislation. This latter body of laws are just as legally enforceable on the general public as the primary legislation covered in statutes. Secondary legislation is considered in more detail on page 4.

There is also a third type of legislation, which is created under Royal Prerogative. This is known as Prerogative Orders in Council. It is simply where the Queen approves to proposals brought forward by senior Ministers. These proposals are not statutory instruments, and are only added as an Appendix in the annual volumes of the United Kingdom statutory instruments, where as Parliamentary Orders in Council are made under authority of an Act of Parliament and are a statutory instrument.

Prerogative Orders only regulates certain areas such as the armed forces, the civil service, and coinage. For example: if an interested person feels that a police officer failed to investigate a crime or prosecute a suspect, an application can be made to the High Court for the ‘prerogative’ order of mandamus. This type of Prerogative Order states:

‘An order to compel the performance of some public duty’ (Brice Dickson, 1993, 214)

This type of legislation applies throughout the United Kingdom.

Statutes are formed by being first outlined and then enacted. On average 60-70 of these statutes are ...