The possible involvement of the Attorney General was raised before the Court of Appeal at a short hearing on Monday February 1 2016. The Attorney General’s office wrote to the Court that day setting out what the Attorney considers are devolution issues within the meaning of Schedule 10 to the Northern Ireland Act 1998:
“Having considered the first instance judgment the Attorney General is of the opinion that the appeal does involve the following devolution issues:
- The vires of Regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 Regulations insofar as this provision impedes or places a burden on certain forms of political or religious expression given the prohibition of discrimination on the grounds of religious belief or political opinion contained in section 24 (1) (c) and (d) of the Northern Ireland Act 1998.
- The vires of Article 28 of the Fair Employment and Treatment (Northern Ireland) Order 1998 insofar as this provision impedes or places a burden on certain forms of political or religious expression by suppliers of goods or services given the prohibition on Northern Ireland legislation discriminating on the ground of political opinion contained in section 17 of the Northern Ireland Constitution Act 1973, a limitation operative on the power under Schedule 1 to the Northern Ireland Act 1974.
At first instance and, it appears, on appeal, the case concerns, in part, the interplay between allegations of discrimination in the provision of good and services on the ground (1) of sexual orientation and on the ground (2) of political opinion, and a defence which relies on the religious beliefs and political opinions of those engaged in the provision of goods and services.
The issues identified above do appear to be in play on appeal and the Attorney General respectfully invites the Court to consider the issue of a Devolution Notice.
The Court should also be aware that I wrote to the court at first instance on behalf of the Attorney and drew attention to the possible incompatibility of the 2006 Regulations with articles 9 and 10 of the European Convention on Human Rights as giving rise to a devolution issue. The new issues identified above arise from the Attorney’s consideration of the first instance judgment. The Attorney notes that the parties have already addressed argument on Convention issues at first instance and does not propose to add to what the parties may say on Convention issues, unless, of course, the Court otherwise directs.
In summary, the concerns of the Attorney focus on whether provisions in the 1998 Order and 2006 Regulations are compatible with Northern Ireland constitutional law.”
Following submissions made to the Court of Appeal today on behalf of the Attorney General the Court has indicated that it will hear submissions on the issues set out in the letter of February 1 on March 3 and the main hearing will take place on 9-12 May.
The Attorney General takes no position on any factual matter in dispute between the appellants and the respondent; his interest concerns the relationship between certain statutory provisions relied on in the County Court judgment and the constitutional law of Northern Ireland.