After 491 days without any democratic control of Northern Ireland civil servants, the province’s highest court has delivered a judgment which brings to an end increasingly political decisions by unelected bureaucrats.
Almost a year and a half after the last devolved ministers left Stormont, the Court of Appeal judgment about a vast incinerator halts all controversial decisions by civil servants in the absence of ministers.
But, as civil service lawyers continue to pore over the 20-page ruling this weekend, some experienced Stormont figures believe that it effectively makes Northern Ireland ungovernable on the basis which has pertained since last March.
The judges said that the logic of their ruling was that any decision which would normally be made by a minister could not be made by officials.
One former Stormont minister told the News Letter that in a year he would have received about 10 ministerial submissions requiring his approval each week.
Across Stormont’s nine departments, that would equate to about 90 decisions a week which now cannot be taken if civil servants lack that power.
The verdict implicitly heaps pressure on Secretary of State Karen Bradley, pictured, to either implement direct rule or find some alternative to devolution.
The three judges unanimously ruled that senior civil servant Peter May did not have the legal authority to approve the building of an incinerator in countryside outside Mallusk, just north of Belfast.
Last night a major business group, unionist leaders and Alliance said that the verdict meant that the government had to step in.
The incinerator planning decision was taken last September amid civil service frustration at the situation in which they were left after Stormont’s collapse was followed by the inability of the two biggest parties to restore devolution and the unwillingness of the government to implement direct rule, which would allow Westminster ministers to continue taking decisions.
In that environment, Mr May and other senior officials judged that the public interest lay in approving the publicly-funded incinerator, partly due to the potential for the costs of the project – which involves a publicly-funded commitments to a private developer which could amount to as much as £1.3 billion – to escalate.
In May, Mrs Justice Keegan ruled that Mr May had no power to act as he did, but he appealed the ruling.
But the Court of Appeal – which fast-tracked the case due to its significance – conclusively rejected that appeal.
Colin Buick of the NoArc21 group – which mounted a David versus Goliath fight against Arc21, a body funded by most of Northern Ireland’s councils – said they were “very grateful” to the three judges.
He added: “We sincerely hope that this is the end of the matter and that the Department for Infrastructure accept this decision of both courts.”
Civil servants could decide to appeal the decision to the Supreme Court. But doing so would be a profoundly political decision because it would mean using public money to instruct lawyers to argue that they ought to have the powers of democratically-elected ministers, despite the ruling of four judges.
For civil servants to be allowed to take ministerial decisions “would effectively turn civil servants into ministers”, the court ruled.
That situation would represent “a remarkable constitutional change” from the accepted constitutional role of civil servants to “advise ministers and be accountable to them”, the three senior judges said.
The Lord Chief Justice Sir Declan Morgan – who was sitting with Lord Justices Stephens and Treacy – ruled that decisions which are controversial, significant or which involve more than one department cannot be taken without a minister’s authority.
Then, in a decision which appeared to extend that principle far further and into other areas, the judges said that “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”.
That has the potential to paralyse what has been Stormont’s limping administration where civil servants have been adopting an increasingly wide interpretation of the public interest to justify taking decisions which would normally be for ministers.
However, the judges then seemed to leave open the potential that there may be some time-limited period in which civil servants are able to take decisions normally the responsibility of ministers.
The judges said: “We have considered whether there is any temporal limitation on the exercise of the limited powers available to departments in the absence of ministers. Having regard to the scheme of the Act it can be argued that the exercise of such power should continue for so long as the Secretary of State is lawfully exercising judgement under section 32(3) and for the period set by her for a poll.”
The judgement then revealed a previously unknown court action being taken by an individual in an attempt to force the Secretary of State to call an Assembly election in response to the impasse.
They said: “We understand that proceedings have been initiated challenging whether the Secretary of State has unlawfully failed to act in accordance with her duty under section 32(3) of the 1998 Act. We therefore express no view on that issue.”
The judges ruled that the Northern Ireland Act 1998 – which put into law the Belfast Agreement – “clearly reflects the intention of the Agreement that ministers should head departments and be politically accountable for what happened within those departments”.
They went on to say: “There is no support in the Agreement for the suggestion that cross-cutting matters [those involving more than one department] can be dealt with by departments in the absence of ministers and the allocation of responsibility for such matters within the 1998 Act to the Executive Committee can only be properly interpreted as excluding the departments from the determination of such matters.”
The judges said that the incinerator planning decisions was “a significant and controversial matter” which required a decision by the whole Executive and that “it would be contrary to the letter and spirit of the Agreement and the 1998 Act for such decisions to be made by departments in the absence of a minister”.
But while the judges were in agreement on the crux of the case, Lord Justice Treacy dissented on one point.
Sir Declan and Lord Justice Stephens found that the Departments (Northern Ireland) Order 1999 was ambiguous as to whether civil servants could take ministerial decisions in the absence of a minister. However, they ruled that when taken in context with the Agreement and other constitutional law it was clear that civil servants could not take such decisions.
But Lord Juctice Treacy said the legislation was not ambiguous. He was dismissive of the department’s argument that “the arrangements for devolution in NI are different, permitting civil servants to exercise executive authority in the absence of a minister”. He said: “If Parliament had intended to introduce such a radical and anti-democratic departure from the constitutional norms which apply elsewhere in the UK it would have said so in clear and express terms.”
He went on: “The default position contended for by the Department is profoundly undemocratic. If correct, departments in NI would be empowered, in breach of fundamental constitutional principle, to act without being accountable to ministers. This would be a striking consequence for an Agreement which was intended to usher in a new era of accountable governance and power sharing.”
The judges also undermined another argument of civil servants – that they are merely implementing the views of the last Executive. The court said it was “doubtful that any significant weight can be placed on the views of a minister who has lost office as the political responsibility for responding to what has occurred in the interim is that of the incoming minister”.
Arlene Foster said: “In the absence of an Executive, decisions must be made in London.”
Jim Allister said the verdict “leaves little hiding place for our dithering secretary of state” while Naomi Long called for Karen Bradley to put in place “interim arrangements to allow important decisions to proceed”.