Law of Northern Ireland

For the purposes of private international law, the United Kingdom is divided into three distinct legal jurisdictions: England and Wales; Northern Ireland and Scotland.

Northern Ireland is a common law jurisdiction. Although its common law is similar to that in England and Wales, and partially derives from the same sources, there are some important differences in law and procedure. Northern Irish law has its roots in Irish common law before the partition of Ireland in 1921 and the Acts of Union in 1801. Following the formation of the Irish Free State (which later became the Republic of Ireland), Northern Ireland became its own devolved legal jurisdiction within the United Kingdom.

History of the law of Northern Ireland

The sources of Northern Irish law reflect Irish history and the various parliaments whose law affected the region down through the ages.

The Brehon laws

The Brehon Laws were a relatively sophisticated early Irish legal system, the practice of which was only finally wiped out during the Cromwellian conquest of Ireland. The Brehon laws were a civil legal system only – there was no criminal law. Acts that would today be considered criminal were then dealt with in a similar manner to tort law today. A perpetrator would have to compensate the victim, rather than having a punishment, such as imprisonment, imposed upon him.

Common law

Ireland was the subject of the first extension of England's common law legal system outside England. While in England the creation of the common law was largely the result of the assimilation of existing customary law, in Ireland the common law was imported from England, gradually supplanting the customary law of the Irish.

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Legislation

The current statute law of Northern Ireland comprises those Acts of the Parliament of the United Kingdom that apply to Northern Ireland and Acts of the Northern Ireland Assembly, as well as statutory instruments made by departments of the Northern Ireland Executive and the UK Government, Acts of the Parliament of Northern Ireland passed between 1921 and 1972, Acts of the Parliament of Ireland made before the Act of Union 1800, and Acts of the Parliament of England, and of the Parliament of Great Britain, extended to Ireland under Poynings' Law between 1494 and 1782.

The Northern Ireland Parliament was prorogued in 1972; from then until the establishment of the Northern Ireland Assembly following the Good Friday Agreement, the primary method of making legislation for Northern Ireland was by means of orders in council under the Northern Ireland (Temporary Provisions) Act 1972. A number of important legislative measures were adopted using the order in council procedure: this included the Criminal Evidence (Northern Ireland) Order 1988 restricting the right to silence, the Fair Employment and Treatment Order (Northern Ireland) 1998 on religious and political discrimination.

Definition

The expression "Northern Ireland legislation" is defined by statute. The Northern Ireland Act 1998 establishes the legislative competence of the Northern Ireland Assembly. It creates a distinction between excepted matters, reserved matters and other matters (which are transferred i.e. they fall within the NI Assembly's competence). The Northern Ireland Act 1998 functions as a constitution for Northern Ireland.

Section 24(5) of the Interpretation Act 1978 now reads:

In this section "Northern Ireland legislation" means—
(a) Acts of the Parliament of Ireland;
(b) Acts of the Parliament of Northern Ireland;
(c) Orders in Council under section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972;
(d) Measures of the Northern Ireland Assembly established under section 1 of the Northern Ireland Assembly Act 1973;
(e) Orders in Council under Schedule 1 to the Northern Ireland Act 1974;
(f) Acts of the Northern Ireland Assembly; and
(g) Orders in Council under section 85 of the Northern Ireland Act 1998.

Paragraphs (d) to (g) were substituted by paragraph 3 of Schedule 13 to the Northern Ireland Act 1998.

Until 2 December 1999, paragraph 7(2) of Schedule 2 to the Northern Ireland Act 1982 provided that Orders in Council under section 38(1)(b) of the Northern Ireland Constitution Act 1973 were Northern Ireland legislation for the purposes of section 24 of the Interpretation Act 1978.

Section 5 of the Interpretation Act 1978 provides that in any Act, unless the contrary intention appears, the expression "Northern Ireland legislation" is to be construed according to Schedule 1 of that Act, which contains the following paragraph:

"Northern Ireland legislation" has the meaning assigned by section 24(5) of this Act. [1 January 1979]

The preceding paragraph applies, so far as applicable, to Acts passed on or after 1 January 1979.

Primary legislation

Primary Legislation is made by the legislative branch of government. In Northern Ireland this includes the Parliament of the United Kingdom (hereafter "Westminster") and the Northern Ireland Assembly ("the Assembly"). Legislation created by the Parliament of Northern Ireland, which operated from 1921 to 1972, is still in effect.

Westminster may still legislate on any Northern Ireland matter. In contrast the Assembly cannot legislate on "Excepted" matters nor "Reserved" matters. The Assembly may legislate on devolved ("Transferred") matters and then Westminster plays no part in the enactment of such legislation.

Excepted matters remain the remit of Westminster and were those that were of imperial or national concern for example: the armed forces, external trade or weights & measures.
Reserved matters were to be the remit of the proposed, but never operational, Council of Ireland, are now the remit of the Privy Council and may be transferred to the Assembly at a later date. Examples include the post office, criminal justice and administration of the courts.

Acts of the Northern Ireland Parliament are distinguished from Westminster Acts by the position of the phrase "Northern Ireland" inside their title.

The Privy Council legislates on Reserved matters through Orders in Council. Technically speaking these are secondary, or delegated legislation, and they are therefore given UK Statutory Instrument numbers. Orders in Council are however used as primary legislation.

Secondary legislation

All secondary legislation is derived from primary legislation. Parliament cannot amend secondary legislation, but may reject or approve it. Secondary legislation is drafted by a branch of government:

A parent Act can give power to a government department or agency to issue more detailed laws.
The Privy Council of the United Kingdom can enact secondary legislation as "Orders in Council". The Privy Council of Northern Ireland was created in 1922, but became dormant in 1972 with the reinstatement of direct rule. Its advisory powers were then handed over to the Secretary of State for Northern Ireland, who is head of the Northern Ireland Office.

Secondary legislation is called a statutory instrument when drafted by a Westminster department and a statutory rule when drafted by an Assembly department. Previously statutory rules were titled "statutory rules and orders".

Summary table

Legal publications

In 1979, there was a severe shortage of textbooks and of works of authority, such as annotated statutes, law reports and rules of court, because the potential readership of any legal work, no matter how general, was so small that publication was not commercially viable. The only periodical dealing with the law of Northern Ireland was the Northern Ireland Legal Quarterly (NILQ), a peer-reviewed quarterly journal published since 1936, published at the School of Law at Queen's University Belfast.

According to the Bodleian Library at Oxford University: "There are two main series of law reports for Northern Ireland: the Northern Ireland Law Reports (NI), which began in 1925; and the Northern Ireland Judgments Bulletin (NIJB), previously known as the Blue Books, which was first published in 1970".

The Northern Ireland Statutes Revised are printed editions of NI statutes, revised.

Legal education

Both of Northern Ireland's universities offer a range of undergraduate and postgraduate law degrees:

The School of Law at Queen's University of Belfast
Ulster University School of Law

There are specialist research centres in the two universities:

Human Rights Centre at Queen's University Belfast
Institute for Criminology and Criminal Justice at Queen's University Belfast
Transitional Justice Institute at Ulster University

Professional legal education is offered by the Institute of Professional Legal Studies at Queen's University Belfast and the Graduate School for Professional Legal Education at Ulster University.

Criminal law

Criminal offences

Offences against the person

Child destruction

Abortion

The 1967 Abortion Act does not apply in Northern Ireland. This situation led the Northern Ireland Human Rights Commission to take judicial proceedings which led to a decision in 2015 that Northern Ireland's abortion regime violated Article 8 of the European Convention on Human Rights as it failed to allow for termination in cases of fatal foetal abnormality or when pregnancy was due to a sexual offence.

Abortion was decriminalised in Northern Ireland when the relevant sections of the Offences against the Person Act 1861 were repealed in October 2019. The Abortion (Northern Ireland) Regulations 2020 commenced on 31 March 2020, authorising abortions to be carried out by a "registered medical professional".

Fatal offences

As to the mens rea for murder, see section 8 of the Criminal Justice Act (Northern Ireland) 1966.

The following partial defences reduce murder to manslaughter:

See also section 6 of the Criminal Justice Act (Northern Ireland) 1966. The common law defence of provocation was abolished and section 7 of that Act repealed by section 56 of the Coroners and Justice Act 2009.

The Infanticide Act (Northern Ireland) 1939 provides a partial defence which reduces murder to infanticide.

The penalty for murder is provided by section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973.

Sexual offences

The Sexual Offences (Northern Ireland) Order 2008 reformed the law of sex crime in Northern Ireland similarly to how the Sexual Offences Act 2003 did in England and Wales.

Non-fatal non-sexual offences

Offences against property

Firearms and offensive weapons

Forgery, personation and cheating

Forgery is covered by the Forgery and Counterfeiting Act 1981.
The common law offence of cheating, except in relation to the public revenue, was abolished by section 30(1) of the Theft Act (Northern Ireland) 1969.

Offences against the State or Crown or Government and political offences

Several of these areas of law, such as treason, defence and foreign relations, are reserved or excepted matters, meaning only Westminster has the power to legislate for them.

High treason
Misprision of treason
Compounding treason
Treason felony
Attempting to injure or alarm the Sovereign, contrary to section 2 of the Treason Act 1842
Offences under the Official Secrets Acts 1911 to 1989
Offences under the Incitement to Disaffection Act 1934
Causing disaffection among police officers, contrary to section 68 of the Police (Northern Ireland) Act 1998
Incitement to sedition or disaffection or promoting industrial unrest, contrary to section 3 of the Aliens Restriction (Amendment) Act 1919
Offences relating to terrorism
Offences under section 1 of the Unlawful Drilling Act 1819
Piracy iure gentium
Piracy with violence, contrary to the Piracy Act 1837
Offences under the Slave Trade Act 1824
Offences under the Foreign Enlistment Act 1870
Offences under the Immigration Act 1971
Coinage offences under Part II of the Forgery and Counterfeiting Act 1981
Offences relating to public stores under the Public Stores Act 1875
Offences against postal and electronic communication services
Misconduct in public office
Refusal to execute public office
Cheating the public revenue
Offences under the Customs and Excise Management Act 1979
Tax evasion and money laundering offences

Abolished offences

Sedition
Seditious libel

Harmful or dangerous drugs

Offences against religion and public worship

Blasphemy
Blasphemous libel

The Criminal Justice and Immigration Act 2008 abolished the offence of blasphemy in England and Wales; this measure did not extend to Northern Ireland.

Offences against the administration of public justice

Public order offences

Prevention of Incitement to Hatred Act 1970 (Northern Ireland)
Riot
Affray
Offences under the Public Order (Northern Ireland) Order 1987. These include Northern Ireland's incitement to hatred laws. In 2013 the Northern Ireland Human Rights Commission reported, in 'Racist Hate Crime: Human Rights and the Criminal Justice System in Northern Ireland', that authorities were uncertain about the scope of this legislation.
Justice Act (NI) 2011 proscribes sectarian or indecent chanting at regulated matches.

Offences against public morals and public policy

Bigamy

Protection of children and vulnerable adults

Protection of animals and the environment

Road traffic and motor vehicle offences

Participatory offences

Participatory offences include aiding, abetting, counselling, or procuring the act of some crime or conspiracy. It also includes being an accomplice to criminal behaviour.

Defences to crime

Marital coercion

Criminal justice

Due to the history of political violence in Northern Ireland, there have been distinctive developments in Northern Irish criminal law and anti-terrorism procedures. These date to the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, commonly called the Special Powers Act. Following the outbreak of violence in the 1960s and 1970s, the Northern Ireland (Emergency Provisions) Act 1973 introduced juryless Diplock courts to try terrorism related offences.

The Terrorism Act 2000 retains special provisions for Northern Ireland in respect of anti-terrorism law, and retains the possibility to try certain offences without a jury.

Civil law

The Defamation Act 2013 does not apply in Northern Ireland. This protections which this Act provides for free expression (e.g. the public interest defence in section 4) do not therefore apply in Northern Ireland.

Northern Irish courts have issued a small number of super-injunctions.

Discrimination law

The Government of Ireland Act 1920 prohibited religious discrimination in legislation. In 1976 the UK Parliament passed the Fair Employment (Northern Ireland) Act which prohibited religious and political discrimination in employment. The Fair Employment (Northern Ireland) Act 1989 creates a system to monitor the religious composition of the workforce so as to promote fair participation.

In 1998 the Northern Ireland Act 1998 introduced a statutory duty on designated public authorities to promote equality of opportunity on a number of grounds.

While in some aspects Northern Ireland's equality law has been in advance of developments elsewhere, there are also examples where it is not as progressive. Racial discrimination in Northern Ireland was only prohibited in 1997. The Equality Act 2010 does not apply in Northern Ireland; this means that Northern Ireland's equality legislation is split across a large number of Acts and Orders.