Neutral Citation no. (2002) NICA 18A
Ref:     
CARC3620

 
Judgment: approved by the Court for handing down
Delivered:
21.03.2002
(subject to editorial corrections)

 
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND 
 
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IN THE MATTER OF AN APPLICATION BY PETER ROBINSON FOR JUDICIAL REVIEW
 
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CARSWELL LCJ
 
            In these proceedings the appellant, in his capacity as Member of the Legislative Assembly, challenged the validity of the election on 6 November 2001 of the Right Honourable David Trimble MP MLA as First Minister and Mark Durkan MLA as deputy First Minster.  He brought an application for judicial review, claiming a number of declarations and an injunction restraining Messrs Trimble and Durkan from acting in their offices.  His application was dismissed by Kerr J on 21 December 2001, and the appellant has appealed to this court on a number of grounds.
            The Northern Ireland Assembly has in its short life had a chequered, not to say stormy, existence.  It was set up in pursuance of the provisions of the Northern Ireland Act 1998 (the 1998 Act), itself passed, as the preamble states, “for the purpose of implementing the agreement reached at multi-party talks” (the Belfast Agreement).  I do not propose to trace its history in this judgment, and it is sufficient for present purposes to say that on 21 September 2001 the Secretary of State once again suspended the Assembly, invoking for the purpose the provisions of the Northern Ireland Act 2000.  On 22 September 2001 the Secretary of State terminated the suspension by the Northern Ireland (Restoration of Devolved Government) (No 2) Order 2001, which came into force on 23 September.  
            The effect of that Order was prescribed by the Northern Ireland Act 2000.  Under section 3(2), when a restoration order is made, if on the effective date the First and deputy First Ministers remain eligible to hold office, they resume office on the effective date and section 16 of the 1998 Act does not apply.  If, however, either office was vacant on the effective date then section 3(5) applies:
“(5)      On the effective date, section 16 of the 1998 Act applies-
 
(a)        with the omission of subsection (1); and
 
(b)       as if the office had been vacated on the effective date.”
 
            Section 16 of the 1998 Act makes provision for the election of the First and deputy First Ministers:
“16.-(1)           Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the deputy First Minister.
 
(2)        Each candidate for either office must stand for election jointly with a candidate for the other office.
 
(3)        Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.
 
(4)        The First Minister and the deputy First Minister –
 
(a)        shall not take up office until each of them has affirmed the terms of the pledge of office; and
 
(b)       subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.
 
(5)        The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office – 
 
(a)        during any absence or incapacity of the holder; or
 
(b)       during any vacancy in that office arising otherwise than under subsection (7)(a):
 
but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding 6 weeks.
 
(6)        The First Minister or the deputy First Minister –
(a)        may at any time resign by notice in writing to the Presiding Officer; and
 
(b)       shall cease to hold office if he ceases to be a member of the Assembly otherwise than by virtue of a dissolution.
 
(7)        If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other –
 
(a)        shall also cease to hold office at that time; but
 
(b)       may continue to exercise the functions of his office until the election required by subsection (8).
 
(8)        Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.
 
(9)        Standing orders may make provision with respect to the holding of elections under this section.
 
(10)      In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).”
  
            Provision is made in section 32 for the consequences if the Assembly is unable to reach agreement on the election of a First Minister and deputy First Minister.  Section 31(1) fixes the ordinary life of the Assembly, which is to be dissolved in the fourth year of its existence.  In the case of the first Assembly it is provided by section 31(2) that the poll is to be held on 1 May 2003, subject to a possible adjustment of up to two months either way.  Section 32, which has the marginal note “Extraordinary elections”, provides:
“32.-(1)           If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.
 
(2)        A resolution under subsection (1) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.
 
(3)        If the period mentioned in section 16(1) or (8) ends without a First Minister and a deputy First Minister having been elected, the Secretary of State shall propose a date for the poll for the election of the next Assembly.
 
(4)        If the Secretary of State proposes a date under subsection (1) or (3), Her Majesty may by Order in Council – 
 
(a)        direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with section 31, be the date proposed; and
 
(b)       provide for the Assembly to be dissolved on a date specified in the Order.”
 
            When the Assembly was restored on 23 September 2001 the office of First Minister was vacant, as Mr Trimble had resigned on 1 July 2001.  It was not in dispute that the six-week period specified by section 16(8) ran from the date of restoration.  On 2 November 2001, before the expiry of that period, the Assembly held an election for the offices of First and deputy First Minister, but the candidates Messrs Trimble and Durkan did not obtain the necessary majority for election.  On 4 November the appellant sought leave to apply for judicial review, claiming that the Secretary of State was required to propose a date for an Assembly election.  On 5 November, on the hearing of the application for leave to apply, counsel for the Secretary of State stated in court that his client accepted that he was under an obligation to propose a date, whereupon the application was dismissed.  On 6 November 2001, after the expiry of the six-week period, another election was held for the offices of First Minister and deputy First Minister, and this time in consequence of a change in voting Messrs Trimble and Durkan obtained the required majority and were declared elected.  On the same day the Secretary of State proposed the date 1 May 2003 as the date for the poll for the election of the next Assembly.  On 11 December 2001 the Northern Ireland (Date of Next Assembly Poll) Order 2001 was passed, directing that the date for the poll should be the date proposed, 1 May 2003.
            None of the parties to the appeal suggested that the Assembly went out of existence or ceased to have any function at the expiry of the period of six weeks specified in section 16(8).  It seems clear that it continues to exist and to be capable of exercising its functions until it is dissolved under section 31 or section 32, and that if a date for a poll is proposed by the Secretary of State under section 32(3) it continues until it is dissolved pursuant to section 32(4)(b).  The appellant’s argument was that when that period of six weeks had expired, the Assembly did not have power to hold another election to fill the offices of First Minister and deputy First Minister.  The purported election held on 6 November 2001 was therefore a nullity and the candidates elected were not entitled to act in those offices.  Counsel for the appellant did not address in his argument before us the issue raised by the appellant’s Order 53 statement, that the Secretary of State could not lawfully propose 1 May 2003 as the date for the poll.  It was, however, inherent in his submissions that since Messrs Trimble and Durkan had not been validly elected, and the Assembly cannot effectively function for long without a First Minister and deputy First Minister, an earlier election date was necessarily required, as he had argued in the court below. 
The contrary argument advanced on behalf of the respondents was that as there is nothing in section 16(8) or any other provision in the 1998 Act to restrict the Assembly from electing a First Minister and deputy First Minister after the expiry of the six-week period the election held was lawful.  Although the Secretary of State had to propose a date for the poll under section 32(3), he had a wide discretion to choose any date and in the circumstances which had occurred he was lawfully entitled to propose a date as long ahead as 1 May 2003.
 Much of the discussion was directed, both in the court below and on appeal, to determining whether the provision in section 16(8) is mandatory or directory.  Counsel in their well researched and admirably constructed arguments cited a range of decisions and textbook opinions from a variety of jurisdictions, from which one can derive a good deal of assistance. The problem of interpretation of provisions such as section 16(8) was posed by Millett LJ in Petch v Gurney (Inspector of Taxes) [1994] 3 All ER 731 at 736:
“The difficulty arises from the common practice of the legislature of stating that something ‘shall’ be done (which means that it ‘must’ be done) without stating what are the consequences if it is not done.”
 
The distinction between mandatory and discretionary provisions was evolved in order to provide a tool of interpretation for determining the consequences when the thing prescribed was not done.  It was not long before the difficulty of applying the test became more and more apparent.  From the cases which counsel drew to our attention a certain number of principles may be extracted as further guidelines to courts facing problems of construction:
1.      One should look at the consequences of alternative constructions.  The court should weigh the inconvenience of holding the condition ineffective against the inconvenience of insisting upon it rigidly: Wade & Forsyth, Administrative Law, 8th ed, p 227.
2.      Provision in the legislation for a consequence which is to follow on failure to perform the act prescribed is an indication that the provision is mandatory.  Mr Larkin QC for the appellant cited the old American cases of Shaw v Randall (1860) 15 Cal 384 and Perine v Forbrush (1893) 97 Cal 305 in support of this proposition, but its logical force is such that it hardly needs authority.
3.      There is American authority that as a general proposition constitutional provisions are given mandatory effect: Sutherland, Statutory Construction, 3rd ed, vol, para 57:13.  On the other hand, it has been held by the Privy Council that such provisions may require more flexible interpretation to cater for changing circumstances: Attorney General for Ontario v Attorney General for Canada [1947] AC 127 at 154.  In that case the Judicial Committee paid considerable regard to the spirit of the Statute of Westminster that Dominion legislatures should have “the widest amplitude of power”.  This approach is an application of the well established principle that in construing legislation the court should pay regard to its policy and objects.
4.      In some cases the consequences of adopting a mandatory construction would cause such public inconvenience that public policy requires that it should not be adopted: see such cases as R v Mayor of Rochester (1857) 7 E & B 910 and the striking example of Simpson v Attorney General [1955] NZLR 271.
Some of the modern cases contain an approach in which I find much attraction, which tends to fight shy of attempting to classify provisions in the traditional categories of mandatory or directory, described by Lord Hailsham of St Marylebone LC in London and Clydesdale Estates Ltd v Aberdeen DC [1979] 3 All ER 876 at 883 as stretching or cramping them on a bed of Procrustes invented by lawyers for the purpose of convenient exposition.  In R v Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231 at 235 Lord Woolf MR described the process in a passage in his judgment which related to procedural requirements but which is capable of more general application:
“The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory.  If it is categorised as directory it is usually assumed it can be safely ignored.  If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect.  The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance.  This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance.  In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory.”
 
A similar approach may be seen in the leading textbooks and in a number of modern authorities.  One of the most forthright is the view expressed by the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20 at 24, where it said:
“The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement … It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms.  It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.”
  
This expression of opinion received the approval of the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, in which the majority judgment at page 390 described the “elusive distinction between directory and mandatory requirements” as  --  
“classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.  The classification of a statutory provision as mandatory or discretionary records a result which has been reached on other grounds.  The classification is the end of the inquiry, not the beginning.”
 
In Ex parte Jeyeanthan Lord Woolf MR gave a different priority to the traditional test, though still subordinating it to an altered approach.  He said at pages 238-9:
“ … I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step.  In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test … Which questions will arise will depend on the facts of the case and the nature of the particular requirement.  The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not.”
 
      I respectfully agree with and adopt the approach of Lord Woolf MR in Ex parte Jeyeanthan, while observing the salutary warning given by Judge LJ  at pages 242-3 of that case against reanalysing his analysis or restating the principles using slightly different language.  Having started with the proposition that the paramount objective is to ascertain the intention of the legislature in enacting the provision under consideration, the particular task of the court is to determine whether it intended that the act in question could only be carried out within the prescribed time or whether it could validly be done after the expiry of that time.  The question can therefore be posed in terms, not whether the provision in section 16(8) is mandatory or directory, but whether on its proper construction the statute discloses an intention that failure to elect a First Minister and deputy First Minister within the prescribed period of six weeks would deprive the Assembly of power to hold an election for those posts after the end of the period.
             Counsel for the appellant laid stress upon the prescriptive nature of the word “shall” in section 16(8) and the provision by the legislature of a consequence which was to follow if the Assembly failed to elect a First Minister and deputy First Minister within the six-week period.  Parliament had imposed upon the Secretary of State a duty to propose a date for an Assembly election, as he had himself acknowledged, and had not merely conferred a power on him to do so.  Both features were in his submission a clear indication of an intention that an election could not validly be held outside the period.  In enacting section 32(3) Parliament contemplated that if deadlock was reached, as would have been apparent by the end of six weeks, an election should be held within a relatively short time, to allow a new Assembly, perhaps differently constituted, to agree on two candidates for the offices.
            Mr Larkin pointed to the legislative history of the Bill in Parliament, submitting that it assisted his interpretation of sections 16(8) and 32(3).  In the earlier versions there was no provision equivalent to that in section 16(8) and no time limit for electing a First Minister and deputy First Minister was prescribed.  This appeared during the course of the passage of the Bill through Parliament and was combined with a provision now enacted in section 32(3).  It is not clear to what extent it is permissible to rely upon the history of amendments in Parliament as an aid to interpretation of the legislation as enacted: see Bennion, Statutory Interpretation, 3rd ed, pp 487-8.  In so far as it may be legitimate to do so, it does not seem to me that it is conclusive of the matter.  Parliament intended that the Assembly was not to be permitted to drift on indefinitely without a First Minister and deputy First Minister, whose function is essential to its proper working.  It therefore introduced the provision contained in sections 16(8) and 32(3).  The introduction of that form of pressure, however, does not of itself determine the matter in issue, whether section 16(8) irrevocably terminates the Assembly’s power to elect a First Minister and deputy First Minister or whether a locus poenitentiae was available if it transpired that it could successfully complete an election to the offices before its dissolution.  It is possible to suppose that by adding these subsections Parliament intended them to be either a means of terminating the uncertainty by providing for a new beginning, or a spur to put pressure on the Assembly to reach agreement without undue delay, under threat of a dissolution and general election if it failed to do so.  It is a question of their construction into which class they fell, but the legislative history does not determine that issue.
             The appellant’s counsel also asked the court, relying on Pepper v Hart [1993] AC 593, to consider statements made in the House of Lords during the passage of the Bill by Lord Dubs, a Government minister, in reply to queries raised by other members of the House.  Some of these were cited by the judge in the court below, but I consider that other references in the course of the same discussion, which I shall set out, may also be indicative of intention.  
The Earl of Balfour questioned the sufficiency of the period of six weeks, to which Lord Dubs replied (column 1227):
“I should tell the noble Earl that the intention is that the Assembly is to elect the new First Minister and Deputy First Minister within six weeks of its first meeting or, in the case of a mid-term election, within six weeks of a vacancy.  I do not think that six weeks is too short a period.”
 
Lord Cope of Berkeley asked about the consequences if the Assembly failed to carry out the election successfully within the period.  It is apparent from his remarks that he may himself have envisaged that an election could be held after its expiry, for he said (columns 1227-8):
“In practice, of course, it would have to keep going until it had settled the matter and found a new First Minister and Deputy First Minister.”
 
In his reply to a number of questions Lord Dubs stated (column 1229):
“The noble Lord, Lord Cope, asked what would happen if no election took place for the First or Deputy First Minister within the six week period.   If the Assembly fails to make such an election within six weeks, it will be dissolved and the Secretary of State then sets the date for an extraordinary election.  That is not unreasonable.  Six weeks is a sufficiently long period to deal with a matter of importance to the government of Northern Ireland.”
 
Lord Dubs went on to say in the course of that reply (column 1230):
“We do not wish to demand an election of the First Minister or Deputy First Minister within a shorter period if failure to do so in the appointed time would trigger a new election for the Assembly.  Therefore, we are trying to achieve a balance between maintaining good government but ensuring that there is a time period and if that is exceeded, a new election for the Assembly would be triggered.  I believe that those arrangements are reasonable, bearing in mind that in the case of our own government there have been occasions in the past when there has been something of an interregnum and uncertainty has continued for some time.  We have achieved the right balance between the two arguments.”
 
Lord Renton posed the possibility that the First Minister might fall seriously ill and have to resign, whereupon his deputy would also be out of office.  He asked what would happen in the six weeks when there was no leadership.  Lord Dubs replied (column 1230):
“First, it will be a period up to six weeks and may well be a much shorter period.”  (My emphasis).
 
Finally, Lord Dubs responded to a question from Lord Holme of Cheltenham, who asked if both the First Minister and deputy First Minister could appoint alternates if one resigned through illness.  Lord Dubs said (column 1231):
“I hope that I have got this right because these questions are becoming rather technical.  For the six week period, the First Minister, in the situation described, would stay in office but within that period, and not later than six weeks, there would have to be an election for both the First Minister and Deputy First Minister.  Therefore, if the First Minister wished to continue, he would have to stand for re-election, along with the Deputy First Minister.”
 
Until the decision of the House of Lords in Pepper v Hart [1993] AC 593 the courts followed a self-imposed rule which precluded resort to statements made in Parliament as an external aid to construction of statutes.  The limits of the relaxation of that rule effected in Pepper v Hart, together with a warning against the over-frequent exercise of resort to Hansard, were set out in the opinion of Lord Bingham of Cornhill in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holmes Ltd [2001] 2 AC 349 at 391-2:
“In Pepper v Hart the House (Lord Mackay of Clashfern LC dissenting) relaxed the general rule which had been understood to preclude reference in the courts of this country to statements made in Parliament for the purpose of construing a statutory provision.  In his leading speech, with which all in the majority concurred, Lord Browne-Wilkinson made plain that such reference was permissible only where (a) legislation was ambiguous or obscure, or led to an absurdity; (b) the material relied on consisted of one or more statements by a minister or other promoter of the Bill together, if necessary, with such other parliamentary material as might be necessary to understand such statements and their effect; and (c) the effect of such statements was clear (see pp 640B, 631D, 634D).  In my opinion, each of these conditions is critical to the majority decision.
 
(1)        Unless the first of the conditions is strictly insisted upon, the real risk exists, feared by Lord Mackay of Clashfern LC, that the legal advisers to parties engaged in disputes on statutory construction will be required to comb through Hansard in practically every case (see pp 614G, 616A).  This would clearly defeat the intention of Lord Bridge of Harwich that such cases should be rare (p617A), and the submission of counsel that such cases should be exceptional (p597E).
 
(2)        It is one thing to rely on a statement by a responsible minister or promoter as to the meaning or effect of a provision in a bill thereafter accepted without amendment.  It is quite another to rely on a statement made by anyone else, or even by a minister or promoter in the course of what may be lengthy and contentious parliamentary exchanges, particularly if the measure undergoes substantial amendment in the course of its passage through Parliament.  
 
(3)        Unless parliamentary statements are indeed clear and unequivocal (or, as Lord Reid put it in R v Warner [1969] 2 AC 256, 279E, such as “would almost certainly settle the matter immediately one way or the other”), the court is likely to be drawn into comparing one statement with another, appraising the meaning and effect of what was said and considering what was left unsaid and why.  In the course of such an exercise the court would come uncomfortably close to questioning the proceedings in Parliament contrary to article 9 of the Bill of Rights 1688 (I Will & Mary, sess 2, c 2) and might even violate that important constitutional prohibition.”
 
Lord Nicholls of Birkenhead, after supporting Lord Bingham’s expressed hope that counsel would be sparing in their references to Hansard, stated at page 399:
“As Lord Cooke of Thorndon points out in his speech, this does not mean that the courts will shut out, and not even look at, parliamentary material which one party reasonably contends supports his interpretation of ambiguous legislation.  Rather, the courts will consider the material to see whether counsel’s contention is well founded.  If the parliamentary statements relied upon are not clear, they are of little or no value and cannot qualify as an external aid in the particular case.  They will fail to satisfy the third of Lord Browne-Wilkinson’s conditions: see Pepper v Hart [1993] AC 593, 640.
 
If, however, the statements are clear, and were made by a minister or other promoter of the Bill, they qualify as an external aid.  In such a case the statements are a factor the court will take into account in construing legislation which is ambiguous or obscure or productive of absurdity.  They are then as much part of the background to the legislation as, say, Government white papers.  They are part of the legislative background, but they are no more than this.  This cannot be emphasised too strongly.  Government statements, however they are made and however explicit they may be, cannot control the meaning of an Act of Parliament.  As with other extraneous material, it is for the court, when determining what was the intention of Parliament in using the words in question, to decide how much importance, or weight, if any, should be attached to a Government statement.  The weight will depend on all the circumstances.  For instance, the statement might conflict with the principle of interpretation that penal legislation is to be construed strictly.”
 
            In my opinion the conditions for resort to parliamentary materials are satisfied in the present case.  The terms of section 16(8) are ambiguous enough to make elucidation of value.  The statement was made by the government minister charged with the duty of moving amendments in the House of Lords, which brought him within the second condition.  Kerr J in the court below found more difficulty with the third condition.  He thought that Lord Dubs’ statements did not partake of “the unequivocal quality necessary to settle the matter of the proper construction of sections 16 and 32 of the Act once and for all”.  He pointed to an expression of uncertainty in the last of Lord Dubs’ replies which I have quoted, when he said:
“I hope that I have got this right because these questions are becoming rather technical.”
 
I do not think that Lord Dubs was expressing misgivings in this remark about the correctness of his statement concerning the intention behind section 16(8); rather he seems at that point to feel some uncertainty about the answers to questions about the appointment of alternates.  Taking Lord Dubs’ several statements together, I think that he envisaged clearly that the period of six weeks would be finite and that an election for the offices of First Minister could not be held outside it.  I accordingly would conclude on this issue that the minister’s statements are properly admissible.  In my view they carry substantial weight as considered replies made on behalf of the Government and give one direct and material assistance in determining this matter of construction.
             The respondents relied strongly upon arguments derived from the nature and purpose of the legislation and the underlying Belfast Agreement.  They submitted that one of the overarching purposes of the 1998 Act was to provide stable and sustained government of Northern Ireland, which would be frustrated if a construction were adopted that did not conduce to this purpose.  There was no express prohibition in section 16(8) against holding an election for the offices of First Minister and deputy First Minister outside the six-week period.  The procedure instituted by sections 16(8) and 32(3) was designed to have some coercive effect, to put a degree of pressure on the Assembly to elect a First Minister and deputy First Minister, with the consequence that if they failed to do so an Assembly election would have to be held.  Faced with this prospect, it was always possible that a sufficient number of members of the Assembly might change their minds and that a successful election could be held outside the period before the dissolution came into effect.  A construction which permitted this outcome was accordingly in accordance with the policy of the 1998 Act and gave proper effect to it.  The contrary construction, preventing an election from being held once the six-week period expired, would subject the Assembly to the disruptive and unsettling effect of having a general election, which would not be in accordance with the policy and objects of the Act. 
            These are powerful arguments, to which I have given very careful consideration.  I have paid particular attention to those based on the policy and objects of the 1998 Act.  I think that it would be generally accepted that a proper degree of continuity conduces to the stability of a legislature.  Parliament would accordingly be taken to have intended that extraordinary elections would not be held without good cause.  The respondents argued that the holding of an Assembly election would be disruptive and unsettling, but the appellant’s riposte was that in a representative democracy the holding of a general election cannot be regarded as contrary to the public interest.   The respondents’ thesis is that since Parliament did not provide to the contrary, the election of a First Minister and deputy First Minister could be held outside the six-week period, up to the time when the Assembly is dissolved.  That is an attractive argument on its face, but when examined more closely it may be seen to contain difficulties which are hard to escape:
(i)        The Secretary of State could not know at the end of the six-week period how long it might take to resolve the issue if the Assembly were to make further attempts to hold and complete an election of a First Minister and deputy First Minister.  He would have to propose a date which was not too far ahead, so as not to leave the Assembly without leadership.
(ii)       If he proposed a date some little time ahead, and an order for dissolution on that date were made, and in the meantime the Assembly succeeded in electing a First Minister and deputy First Minister, I do not see how the Assembly election could be called off or put back.  There is nothing in section 32(3) and (4) which would permit a change once the date has been proposed and dissolution ordered.
 These difficulties seem to be insurmountable, and point to the conclusion that Parliament must have intended that an election was not to be held outside the six-week period.
            I have given full weight to all the respondents’ contentions, but in my considered opinion the factors in favour of the construction for which the appellant contends are compelling:  
1.         Section 16(8) uses the word “shall”, which is, as his counsel submitted, presumptively mandatory.  
2.         Section 32(3) provides for the consequence if the Assembly fails to elect a First Minister and deputy First Minister within the period of six weeks, another significant factor tending to indicate that it could not elect them outside the period.  
3.         Lord Dubs’ statements in the debate in the House of Lords are in my opinion a clear indication that Parliament intended that that consequence was to follow once the period had elapsed.  
4.         Although  the policy and objects of the 1998 Act may be said to favour continuity of the Assembly, the difficulties involved in extending the six-week period are, for the reasons which I have given, insurmountable and point to the conclusion that it cannot be extended.
            I have given this issue long and anxious consideration, as befits the importance of the subject matter, and I find myself impelled to the conclusion that the construction for which the appellant contends is correct.  I would therefore hold that the election on 6 November 2001 of Messrs Trimble and Durkan was invalid.  Since counsel did not argue the question of the limits within which the Secretary of State can act in proposing a date for the election of the next  Assembly, pursuant to the duty laid upon him by section 32(3), I do not propose to express an opinion on that question.  I do consider, however, that his proposal of the date 1 May 2003 cannot be valid, in view of the wording of section 32(4)(b), “instead of being determined in accordance with section 31”.  That phrase seems to me to connote clearly that it is to be a date other than 1 May 2003, the date fixed by section 31(2) for the poll for the next Assembly.  This being so, it is in my opinion open now to the Secretary of State to propose another date.
It is a difficult and invidious task for judges sitting in a court of law to adjudicate upon matters which have a highly charged political content, where the exercise of political judgment is at the centre of decision-making.  That task is, however, imposed upon us by law and we have to discharge our function in the manner required of a judicial tribunal, looking only to those matters which are properly within our purview.  Those matters are concerned solely with the interpretation of the governing statute, and I have sought to construe its terms in such a way as to ascertain and give effect to the intention of Parliament, eschewing all other considerations.  
For the reasons which I have given in this judgment I would allow the appeal and declare that Messrs Trimble and Durkan were not validly elected on 6 November 2001 to the offices of First Minister and deputy First Minister respectively.  I would not propose to make any other declaration or give any other relief.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND 
 
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IN THE MATTER OF AN APPLICATION BY PETER ROBINSON FOR JUDICIAL REVIEW
 
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J U D G M E N T   O F
CARSWELL LCJ
 
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