Sam McBride: Ruling means more confusion in an already unclear picture

Mallusk anti incinerator group celebrate winning their case against the against the civil service to have the scheme go ahead outside north Belfast.   Picture by Jonathan Porter/PressEye
Mallusk anti incinerator group celebrate winning their case against the against the civil service to have the scheme go ahead outside north Belfast. Picture by Jonathan Porter/PressEye

Mrs Justice Keegan’s ruling adds another layer of confusion to the already unclear picture over who has the authority to take decisions about public services in Northern Ireland.

For more than a year and through no fault of their own, civil servants have been running public services in Northern Ireland with no ministerial authority or oversight.

Having initially refused to take any significant controversial decisions in the expectation of either devolution or direct rule, officials have increasingly moved into territory which is inherently political, arguing that it is in the public interest for some decision to be taken – even if they are unaccountable for it.

Now the High Court appears to have blown apart the basis on which Northern Ireland is being governed.

Although the judge has been clear that the incinerator planning approval decision could not be taken by the civil service, she did not set out clear criteria for decisions which can be taken by officials.

Therefore, a natural interpretation of the judgment is that any decision which would normally be taken by a minister must wait for either the return of devolution or direct rule unless civil servants are merely continuing the policy direction of the last minister.

However, that may be too simplistic a view of the 19-page verdict which segues from the principles of democratic accountability to the facts of the case in hand which involved a particularly large and controversial decision taken against united political opposition.

Also, while the judge ruled that this decision was not in the public interest, that verdict may change in separate circumstances.

But regardless of whether this conclusively ends civil service policy-making or not, at the very least it leaves confusion about the situation. There is now the potential for court challenges for decisions on everything from road schemes to school closures and taxis being allowed in bus lanes.

That adds to pressure on the government - which accepts it is ultimately responsible for Northern Ireland being governed responsibly – to bring clarity, with the traditional alternative to devolution being direct rule.

If the government refuses to do so, one alternative would be for Parliament to expressly legislate for the current situation, giving clear powers to civil servants to effectively act as ministers.

Constitutionally, that would be an extraordinary abandonment of democratic accountability. But it would arguably be more honest and more democratic than the current quagmire.