Out-Law News 2 min. read

Belfast court confirms decision-making vacuum in Northern Ireland


The existing decision-making vacuum in Northern Ireland caused by the absence of government ministers in the country cannot be filled by civil servants, the Court of Appeal in Belfast has ruled.

The latest judgment, which served to dismiss an appeal against a ruling of the High Court in Northern Ireland in May, has potential major implications for businesses across all sectors, according to Belfast-based legal expert Laura Gillespie of Pinsent Masons, the law firm behind Out-Law.com.

The court confirmed that senior civil servants have "limited powers" in the absence of a government minister, but determined that they have no powers to issue decisions on "crosscutting, significant and controversial " issues that ministers would ordinarily rule on should they be in office, according to a summary of the judgment (5-page / 79KB PDF), issued by the Judicial Communications Office in Northern Ireland.

No government ministers have been in post in Northern Ireland since 2 March 2017 after the previous Northern Ireland Executive collapsed in January of that year.

In September 2017, however, a senior civil servant at the Department for Infrastructure, in the absence of a minister in the department, granted planning permission for a major new waste disposal incinerator in the Hightown and Mallusk area of County Antrim. The power of the department's permanent secretary, Peter May, to make that decision was challenged, however, by environmental campaigners 'No Arc21', via chairperson Colin Buick.

In May, the High Court ruled that civil servants cannot make decisions on behalf of government departments in Northern Ireland where those decisions would ordinarily be taken by ministers. Although the Department for Infrastructure appealed that judgment, the Court of Appeal upheld the High Court's decision in its own ruling.

Gillespie said: "This decision leaves both the public and private sectors in a position where it is clear that in the absence of a functioning Executive, important strategic, financial and social decisions ordinarily taken by ministers at Stormont, cannot be taken by civil servants. This will have serious ramifications across all sectors and may result in challenges to any other decisions recently taken in the absence of the relevant minister."

According to the summary of the judgment, the Court of Appeal held that it is individual ministers in Northern Ireland that have "full executive authority in their respective areas of responsibility". That authority is not shared with government departments, it said.

The Court of Appeal considered the terms of the Northern Ireland Act 1998 and Article 4 of the Departments (Northern Ireland) Order 1999, which respectively provide for the basis and functioning of the government in Northern Ireland, before reaching its decision. According to Article 4(1) of the Order, "the functions of a department shall at all times be exercised subject to the direction and control of the minister".

The court ruled that "it would be contrary to the letter and spirit" of the Northern Ireland peace deal, known as the Good Friday Agreement, and of the Northern Ireland Act 1998 that implemented it, for a "controversial" and "significant" decision like one on "the issue of incineration as a means of waste disposal" to be taken by departments "in the absence of a minister".

While the Department for Infrastructure argued otherwise, the Court of Appeal determined that if it was to accept its submissions it "would effectively turn civil servants into ministers". The court said that "such a remarkable constitutional change would require the clearest wording" to "provide any basis for the implication of such a major departure from established constitutional principles", according to the summary of the ruling.

The court said: "It follows from our analysis of the constitutional position of civil servants that any decision which as a matter of convention or otherwise would normally go before the minister for approval lies beyond the competence of a senior civil servant in the absence of a minister."

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