The limping governance of Northern Ireland has been thrown into turmoil after a High Court ruling that civil servants cannot take major decisions normally taken by ministers.
The judgment – which overturned a senior civil servant’s approval for a huge waste incinerator on the outskirts of Belfast – puts pressure on the government to avoid stasis by installing direct rule Westminster ministers to run Northern Ireland, something which would anger nationalists, if the DUP and Sinn Fein cannot agree to share devolved power.
In a judgment which brings to a head the unprecedented drift in how Northern Ireland is being governed, Mrs Justice Keegan said that there was a fundamental absence of democratic accountability in the incinerator decision.
The judge said that she was being asked “to validate a decision-making process which offends one of the core values of the constitutional structure namely democratic accountability”.
The case hinged on whether Peter May, the most senior civil servant in Stormont’s Department for Infrastructure, had the legal authority to decide on the £240 million energy from waste plant at Hightown, just outside Mallusk on the outskirts of north Belfast.
Mr May had argued that it was in the public interest for him to take the decision to allow the major planning application by Arc 21 – a consortium of local councils – due to the months without devolved ministers.
The case has far-reaching practical and political implications for how Northern Ireland is being run.
The judge came down firmly on the side of the NoArc21 local community group who took the matter to court, stating that “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”.
Central to the case was the Departments (NI) Order 1999 whereby ministers are “in charge of all departments” and that “the functions of a department shall at all times be exercised subject to the direction and control of the minister” but which goes on to also say that “subject to the provisions of this Order, any functions of a department may be exercised by – (a) the minister; or (b) a senior officer of the department”.
One of the core arguments from Mr May was that “it is not accepted that either of these provisions require the appointment of a minister as a pre-condition to the exercise by a department of its own powers”.
However, Mrs Justice Keegan said that if this was correct then civil servants would be able to indefinitely run Northern Ireland without democratic oversight.
Noting the past involvement of ministers in this case, the judge said that “the rationale given for a switch to departmental decision making seems to be the ‘public interest’ in having a timely decision. I have sympathy with the point and I understand the frustration within the civil service that important decisions need to be made. That is a sentiment which I am sure is echoed by the public at large.”
However, although she said she had no reason to doubt that Mr May had acted in good faith, she went on to say: “However, as he recognises himself, decisions have to be taken in a lawful manner otherwise the whole structure of government is undermined.”
The Department for Infrastructure said it was “considering” the judgment, as did The Executive Office, where the head of the civil service is based. The Northern Ireland Office would only say: “The UK government is considering the decision and it would not be appropriate to comment.”