Court appeal to decide Northern Ireland civil servants’ powers as political shut-down continues

By on 22/05/2018 | Updated on 24/09/2020
Stormont Castle, the seat of the devolved Northern Ireland Executive, which was suspended in March 2017 (Image courtesy: Ross).

A Northern Ireland government department is to appeal against a court ruling that senior civil servants have exceeded their remit, in a bid to win clarity over officials’ powers and responsibilities in the absence of a functioning Northern Ireland Assembly and Executive.

The High Court ruled last week that the Department for Infrastructure’s (DfI’s) decision to grant approval for the £240m (US$322m) waste disposal plant in a disused quarry on the outskirts of Belfast was unlawful. In her ruling, Mrs Justice Keegan said: “I do not consider that Parliament can have intended that such decision-making would continue in Northern Ireland in the absence of ministers without the protection of democratic accountability.”

Northern Ireland has been run by civil servants since the power-sharing government collapsed in January last year, when former Sinn Fein leader and Deputy First Minister Martin McGuinness resigned in protest at the Democratic Unionist Party’s involvement in a failed green energy scheme. The two main parties failed to form a new executive following a snap election held in March.

Burning question

Last September, DfI permanent secretary Peter May gave the go-ahead for local government consortium arc21 to proceed with the waste disposal project on the grounds that it was of strategic importance for the region. The scheme had been turned down in 2015 by then environment minister Mark Durkan.

But a community group mounted a judicial review of the decision after thousands of letters objecting to the incinerator were lodged by residents, who cited concerns about light and noise pollution and the health effects and visual impact of the project.

Following Judge Keegan’s ruling, the DfI announced on 16 May that it would appeal against the judgment. The department wants clarity in the law on the case and in relation to decision-making on other regionally significant planning applications, it said.

The DfI added that it won’t take any further decisions on “regionally significant” applications while the appeal process is underway, and said it “continues to carefully consider the full implications of the judgement on other planning cases”. It will continue to progress applications in readiness to reach a final decision, it said.

Seeking guidance

David Sterling, interim head of the Northern Ireland Civil Service (Image courtesy: Michael Cooper/ The Executive Office).

David Sterling, head of the Northern Ireland Civil Service, issued a statement the same day, saying it is important that the law is clarified in relation to the decisions that government departments can and cannot take in the absence of ministers. “Over the past 16 months, in the absence of ministers, civil servants have been taking departmental decisions on a number of issues so that public services can continue to be delivered as effectively as possible,” he said.

“We have been very clear that significant decisions about policy and the allocation of resources should be taken by democratically-accountable ministers. But, in the absence of an Executive, civil servants have had to take the unusual step of taking decisions on some issues which would normally have been brought to ministers for decision.”

Sterling emphasised that civil servants have been doing this “reluctantly” and only after taking legal advice. “And we never expected, or wanted, to have to do this other than for a very short period of time,” he said.

“Each decision has been taken on its own merits and senior officials have acted where they believed it was lawful to do so – where it was consistent with the direction of the previous minister or necessary in the public interest that a decision be taken at the time.

“The arc21 judgment has potentially wide-ranging implications for decision-making in the ongoing absence of ministers. That is why it is important we obtain greater clarity on the legal position and why it is right for DfI to seek to appeal.”

Sterling has previously warned repeatedly of the problems created by the lack of ministers and a functioning assembly in Northern Ireland. In January, as UK ministers struggled to broker a budget agreement for the province, he told a committee of MPs: “We have never had a period of one year with no ministers at all, and I am surprised that we have managed to survive as long as we have. To me, it is totally unprecedented and I don’t think it’s acceptable, to be frank.”

The arc21 judgment has potentially wide-ranging implications for decision-making in the ongoing absence of ministers.

Democratic deficit

Politicians across the political spectrum in Northern Ireland hailed the ruling as having major implications for government of the province, as reported by the Belfast Telegraph.

Sinn Fein president Mary Lou McDonald said the decision “highlights yet again the absolute necessity to restore power-sharing and for these institutions to work. And these institutions can only work on the basis of real power-sharing.”

Social Democratic and Labour Party MLA Mark Durkan, who previously refused the incinerator a planning license, said: “Time is up on political drift. Both the British and Irish governments must now immediately convene the British Irish Intergovernmental Conference to clear the decks and get Stormont back to work.”

DUP MP Paul Girvan agreed that the lack of ministerial direction is “unsustainable”, but did not directly call for the re-establishment of power-sharing – saying that “the government must move to put arrangements in place so that ministerial decisions can be properly taken.” The DUP has huge influence with the UK government via its 10 Westminster MPs – which prop up the minority Tory government – and its opponents suspect that the unionist party would be content to leave key decisions in the hands of UK ministers.

Other major development plans now in question include a new Gaelic Athletic Association stadium and a gas-fired power station in Belfast, and a north-south electricity connector between counties Tyrone and Meath, as reported by the BBC.

About Liz Heron

Liz Heron is a journalist based in London. She worked on daily newspapers for more than 16 years as an education correspondent, section editor and general news reporter. She was Education Editor of the South China Morning Post in Hong Kong and has contributed to a wide range of British media including The Independent, The Guardian and the BBC.

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