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Section 79.
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
F1Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3, 6 (with arts. 3(2)(3), 4(2), 6(4)(5))
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.
3U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.
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.
Textual Amendments
F2Words in Sch. 10 para. 4(1) substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(2)(a); S.R. 2010/113, art. 2, Sch. para. 19(a)
F3Words in Sch. 10 para. 4(2) substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(2)(b); S.R. 2010/113, art. 2, Sch. 19(a)
F4Words in Sch. 10 para. 4(2) inserted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(2)(b); S.R. 2010/113, art. 2, Sch. para. 19(a)
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).
Textual Amendments
F5Words in Sch. 10 para. 5 substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(3); S.R. 2010/113, art. 2, Sch. para. 19(a)
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.
Textual Amendments
F6Words in Sch. 10 para. 6 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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.
Textual Amendments
F7Words in Sch. 10 para. 7 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(2); S.I. 2009/1604, art. 2(a)(d)
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.
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] .
Textual Amendments
F9Words in Sch. 10 para. 9 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(4); S.I. 2009/1604, art. 2(a)(d)
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].
Textual Amendments
F11Words in Sch. 10 para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(6)(a); S.I. 2009/1604, art. 2(a)(d)
F12Words in Sch. 10 para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(6)(b); S.I. 2009/1604, art. 2(a)(d)
F13Words in Sch. 10 para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 115(6)(c); S.I. 2009/1604, art. 2(a)(d)
11U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.
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.
Textual Amendments
F14Words in Sch. 10 para. 12 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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).
Textual Amendments
F15Words in Sch. 10 para. 13 substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(4); S.R. 2010/113, art. 2, Sch. para. 19(a)
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.
Textual Amendments
F16Words in Sch. 10 para. 14 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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.
Textual Amendments
F17Words in Sch. 10 para. 16(2)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(2); S.I. 2009/1604, art. 2(a)(d)
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).
Textual Amendments
F18Words in Sch. 10 para. 18 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(3); S.I. 2009/1604, art. 2(a)(d)
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] .
Textual Amendments
F20Words in Sch. 10 para. 19 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(5); S.I. 2009/1604, art. 2(a)(d)
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] .
Textual Amendments
F22Words in Sch. 10 para. 20 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(7)(a); S.I. 2009/1604, art. 2(a)(d)
F23Words in Sch. 10 para. 20 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(7)(b); S.I. 2009/1604, art. 2(a)(d)
F24Words in Sch. 10 para. 20 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 116(7)(c); S.I. 2009/1604, art. 2(a)(d)
21U.K.This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.
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.
Textual Amendments
F25Words in Sch. 10 para. 22 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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).
Textual Amendments
F26Words in Sch. 10 para. 23 substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(5); S.R. 2010/113, art. 2, Sch. para. 19(a)
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.
Textual Amendments
F27Words in Sch. 10 para. 24 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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.
Textual Amendments
F28Words in Sch. 10 para. 25 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(2); S.I. 2009/1604, art. 2(a)(d)
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.
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] .
Textual Amendments
F30Words in Sch. 10 para. 28 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(4); S.I. 2009/1604, art. 2(a)(d)
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] .
Textual Amendments
F31Words in Sch. 10 para. 29 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(5); S.I. 2009/1604, art. 2(a)(d)
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] .
Textual Amendments
F33Words in Sch. 10 para. 30 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(7); S.I. 2009/1604, art. 2(a)(d)
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] .
Textual Amendments
F34Words in Sch. 10 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(8)(a); S.I. 2009/1604, art. 2(a)(d)
F35Words in Sch. 10 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(8)(b); S.I. 2009/1604, art. 2(a)(d)
F36Words in Sch. 10 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(8)(c); S.I. 2009/1604, art. 2(a)(d)
F37Words in Sch. 10 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 117(8)(d); S.I. 2009/1604, art. 2(a)(d)
Textual Amendments
F38Sch. 10 para. 32 and preceding cross-heading repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 146, 148, Sch. 9 para. 118(2), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(a)(d)(f)
32U.K.F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F39Sch. 10 para. 32 and preceding cross-heading repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 146, 148, Sch. 9 para. 118(2), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(a)(d)(f)
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.
Textual Amendments
F41Words in Sch. 10 para. 34 substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(6); S.R. 2010/113, art. 2, Sch. para. 19(a)
F42Words in Sch. 10 para. 33 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(4); S.I. 2009/1604, art. 2(a)(d)
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.
Textual Amendments
F41Words in Sch. 10 para. 34 substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(6); S.R. 2010/113, art. 2, Sch. para. 19(a)
F43Words in Sch. 10 para. 34 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(5); S.I. 2009/1604, art. 2(a)(d)
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.
Textual Amendments
F44Words in Sch. 10 para. 35(4) substituted (12.4.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 7 para. 2(7); S.R. 2010/113, art. 2, Sch. para. 19(a)
F4536U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F45Sch. 10 para. 36 repealed (1.3.2010) by Justice (Northern Ireland) Act 2002 (c. 26), s. 87(1), Sch. 13; S.R. 2010/52, art. 2(e)
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.
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.
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
F46Words in Sch. 10 para. 39(2) substituted (1.4.2015) by Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), art. 1(2), Sch. 4 para. 14 (with art. 45); S.R. 2015/194, art. 2, Sch. (with art. 3)
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)
F49Words in Sch. 10 para. 39(6) omitted (12.4.2010) by virtue of The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 18 para. 58(2) (with arts. 28-31)
Modifications etc. (not altering text)
C1Sch. 10 para. 39(6): transfer of functions (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 17 para. 16 (with arts. 28-31)
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] .
Textual Amendments
F50Words in Sch. 10 para. 40(a)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 119(a); S.I. 2009/1604, art. 2(a)(d)
F51Words in Sch. 10 para. 40(a)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 119(b); S.I. 2009/1604, art. 2(a)(d)
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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