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Northern Ireland Act 1998, SCHEDULE 10 is up to date with all changes known to be in force on or before 04 August 2020. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Section 79.

SCHEDULE 10U.K. Devolution issues

Part IU.K. Preliminary

1U.K.In this Schedule “devolution issue” means—

(a)a question whether any provision of an Act of the Assembly is within the legislative competence of the Assembly;

(b)a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24;

(c)a question whether a Minister or Northern Ireland department has failed to comply with any of the Convention rights, any obligation under [F1EU] law or any order under section 27 so far as relating to such an obligation; or

(d)any question arising under this Act about excepted or reserved matters.

Textual Amendments

2U.K.A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.

Part IIU.K. Proceedings in Northern Ireland

Application of Part IIU.K.

3U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.

Institution of proceedingsU.K.

4(1)Proceedings for the determination of a devolution issue may be instituted [F2by the Advocate General for Northern Ireland] or the Attorney General for Northern Ireland.U.K.

(2)The [F3Attorney General for Northern Ireland] may defend any such proceedings [F4instituted by the Advocate General for Northern Ireland] .

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Notice of devolution issueU.K.

5U.K.A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the [F5Advocate General for Northern Ireland and the Attorney General for Northern Ireland ] (unless the person to whom the notice would be given is a party to the proceedings).

6U.K.A person to whom notice is given in pursuance of paragraph 5 F6... may take part as a party in the proceedings, so far as they relate to a devolution issue.

Reference of devolution issue to Court of AppealU.K.

7U.K.A court, other than the [F7Supreme Court] or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.

8U.K.A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.

References from Court of Appeal to [F8Supreme Court]U.K.

Textual Amendments

F8Words in Sch. 10 cross-heading preceding para. 9 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(3); S.I. 2009/1604, art. 2(a)(d)

9U.K.The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the [F9Supreme Court] .

Appeals from Court of Appeal to [F10Supreme Court]U.K.

Textual Amendments

F10Words in Sch. 10 cross-heading preceding para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(5); S.I. 2009/1604, art. 2(a)(d)

10U.K.An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 7 or 8 shall lie to the [F11Supreme Court] , but only with [F12permission] of the Court of Appeal in Northern Ireland or, failing such [F12permission], with [F13permission] of the [F11Supreme Court].

Part IIIU.K. Proceedings in England and Wales

Application of Part IIIU.K.

11U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.

Institution of proceedingsU.K.

12(1)Proceedings for the determination of a devolution issue may be instituted F14... by the Attorney General.U.K.

(2)The Attorney General for Northern Ireland F14... may defend any such proceedings.

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Notice of devolution issueU.K.

13U.K.A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General [F15and the Attorney General for Northern Ireland] (unless the person to whom the notice would be given is a party to the proceedings).

14U.K.A person to whom notice is given in pursuance of paragraph 13 F16... may take part as a party in the proceedings, so far as they relate to a devolution issue.

Reference of devolution issue to High Court or Court of AppealU.K.

15U.K.A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.

16(1)A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.U.K.

(2)Sub-paragraph (1) does not apply to—

(a)a magistrates’ court, the Court of Appeal or the [F17Supreme Court]; or

(b)the High Court if the devolution issue arises in proceedings on a reference under paragraph 15.

17U.K.A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.

18U.K.A court, other than the [F18Supreme Court] or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—

(a)the High Court (if the proceedings are summary proceedings); or

(b)the Court of Appeal (if the proceedings are proceedings on indictment).

References from Court of Appeal to [F19Supreme Court]U.K.

Textual Amendments

F19Words in Sch. 10 cross-heading preceding para. 19 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(4); S.I. 2009/1604, art. 2(a)(d)

19U.K.The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 16, 17 or 18) to the [F20Supreme Court] .

Appeals from superior courts to [F21Supreme Court]U.K.

Textual Amendments

F21Words in Sch. 10 cross-heading preceding para. 20 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(6); S.I. 2009/1604, art. 2(a)(d)

20U.K.An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 15, 16, 17 or 18 shall lie to the [F22Supreme Court] , but only with [F23permission] of the High Court or the Court of Appeal or, failing such [F23permission] , with [F24permission] of the [F22Supreme Court] .

Part IVU.K. Proceedings in Scotland

Application of Part IVU.K.

21U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.

Institution of proceedingsU.K.

22(1)Proceedings for the determination of a devolution issue may be instituted F25... by the Advocate General for Scotland.U.K.

(2)The Attorney General for Northern Ireland F25... may defend any such proceedings.

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Intimation of devolution issueU.K.

23U.K.Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General for Scotland [F26and the Attorney General for Northern Ireland] (unless the person to whom the intimation would be given is a party to the proceedings).

24U.K.A person to whom intimation is given in pursuance of paragraph 23 F27... may take part as a party in the proceedings, so far as they relate to a devolution issue.

Reference of devolution issue to higher courtU.K.

25U.K.A court, other than the [F28Supreme Court] or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session.

26U.K.A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference.

27U.K.A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary.

References from superior courts to [F29Supreme Court]U.K.

Textual Amendments

F29Words in cross-heading preceding Sch. 10 para. 28 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(3); S.I. 2009/1604, art. 2(a)(d)

28U.K.Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 25 or 26) to the [F30Supreme Court] .

29U.K.Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 27) to the [F31Supreme Court] .

Appeals from superior courts to [F32Supreme Court]U.K.

Textual Amendments

F32Words in cross-heading preceding Sch. 10 para. 30 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss, 40, 148, {Sch. 9 para. 117(6)}; S.I. 2009/1604, art. 2(a)(d)

30U.K.An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 25 or 26 shall lie to the [F33Supreme Court] .

31U.K.An appeal against a determination of a devolution issue by—

(a)a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 27); or

(b)a court of three or more judges of the Court of Session from which there is no appeal to the [F34Supreme Court apart from this paragraph] ,

shall lie to the [F35Supreme Court] , but only with [F36permission] of the court concerned or, failing such [F36permission] , with [F37permission] of the [F35Supreme Court] .

Part VU.K. General

F38. . . U.K.

32U.K.F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Direct references to [F40Supreme Court]U.K.

Textual Amendments

F40Words in cross-heading preceding Sch. 10 para. 33 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(3); S.I. 2009/1604, art. 2(a)(d)

33U.K.The Attorney General, [F41the Advocate General for Northern Ireland, the Attorney General for Northern Ireland] or the Advocate General for Scotland may require any court or tribunal to refer to the [F42Supreme Court] any devolution issue which has arisen in proceedings before it to which he is or they are a party.

34U.K.The Attorney General, [F41the Advocate General for Northern Ireland, the Attorney General for Northern Ireland] or the Advocate General for Scotland may refer to the [F43Supreme Court] any devolution issue which is not the subject of proceedings.

35(1)This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a Northern Ireland Minister or department.U.K.

(2)The person making the reference shall notify the Northern Ireland Minister or department of that fact.

(3)No Northern Ireland Minister or department shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of.

(4)Proceedings relating to any possible failure by a Northern Ireland Minister or department to comply with sub-paragraph (3) may be instituted by the [F44Advocate General for Northern Ireland] .

(5)Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person.

Delegation by First MinistersU.K.

F4536U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ExpensesU.K.

37(1)A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.U.K.

(2)In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or expenses to the party who incurred it (whatever the decision on the devolution issue).

(3)The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 14 or 24.

Procedure of courts and tribunalsU.K.

38U.K.Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision—

(a)for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred;

(b)for the staying or sisting of proceedings for the purpose of any proceedings under this Schedule; and

(c)for determining the manner in which and the time within which any notice or intimation is to be given.

Bail and legal aid in criminal proceedingsU.K.

39(1)Sub-paragraph (3) applies where a devolution issue arises in proceedings against a person (“the defendant”) for an offence and the issue is referred to the Court of Appeal in Northern Ireland under paragraph 7.U.K.

(2)[F46Sub-paragraph (3) applies] where such an issue arises in such proceedings and—

(a)the issue is referred by the [F47Court of Appeal] to the [F48Supreme Court] under paragraph 9 or 33; or

(b)the issue is determined by the [F47Court of Appeal] under paragraph 7 and—

(i)an appeal to the [F48Supreme Court] against the determination is brought under paragraph 10; or

(ii)an application for leave to bring such an appeal is made to the [F47Court of Appeal] under that paragraph.

(3)The [F47Court of Appeal] may, if it thinks fit, on the application of the defendant, admit him to bail pending the determination of the reference, appeal or application.

(4)The [F47Court of Appeal] may at any time when it appears to the [F47Court of Appeal]

(a)that it is desirable in the interests of justice that the defendant should have legal aid; and

(b)that he has not sufficient means to obtain that aid,

assign to him a solicitor and counsel, or counsel only, in the reference, appeal or application.

(5)If, on a question of granting a person free legal aid under sub-paragraph (4), there is a doubt—

(a)whether it is desirable in the interests of justice that he should have legal aid; or

(b)whether he has sufficient means to obtain that aid,

the doubt shall be resolved in favour of granting him free legal aid.

(6)The fees of any counsel, and the expenses and fees of any solicitor, assigned to a person under sub-paragraph (4) shall be defrayed, up to an amount allowed by the Master (Taxing Office), by the Lord Chancellor F49....

Textual Amendments

F47Words in Sch. 10 para. 39(2)-(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(6)(a); S.I. 2009/1604, art. 2(a)(d)

F48Words in Sch. 10 para. 39(2)-(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(6)(b); S.I. 2009/1604, art. 2(a)(d)

Modifications etc. (not altering text)

40U.K.Where a devolution issue arises as mentioned in sub-paragraph (1) of paragraph 39 and—

(a)the issue is referred to the [F50Supreme Court] under paragraph 9 or 33; or

(b)the issue is determined by the Court of Appeal in Northern Ireland under paragraph 7 and—

(i)an appeal to the [F50Supreme Court] against the determination is brought under paragraph 10; or

(ii)an application for special leave to bring such an appeal is made to the [F50Supreme Court] under that paragraph,

sub-paragraphs (3) to (6) of paragraph 39 shall apply as if the references to the [F51Court of Appeal] were references to the [F50Supreme Court] .

InterpretationU.K.

41U.K.Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or power to refer the issue to the court for decision.

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