So the incinerator in Mallusk cannot go ahead on a nod from a civil servant, says Mrs Justice Keegan in her judgement yesterday. The argument (in pure terms) is that senior civil servants cannot make decisions without political sanction from the minister.
Interestingly, it makes no distinction on what constitutes a decision, or at what level a decision can be made. Mark Devenport reports:
In September 2017 the then Department for Infrastructure permanent secretary Peter May felt he had the public interest on his side when he gave an incinerator at Hightown the go-ahead.
Mr May told me he would have much rather had a minister in place to take the decision, but he was convinced there was a strong need for the development and any undue delay would be “damaging”.
But High Court judge Mrs Justice Keegan has now rejected Mr May’s belief that he had the power to make the decision himself.
The judge concluded that parliament cannot have intended “such decision-making would continue in Northern Ireland in the absence of ministers without the protection of democratic accountability”.
Despite provisions of the Departments (Northern Ireland) Order 1999 which separately confers power on the Minister and senior officers of the department. But, in Paragraph 42 of her judgement the judge states:
The Respondent is effectively asking the Court to read Article 4(1) of the 1999 Order to mean that direction and control only applies when a Minister is in place and at all times is also subject to that qualification. I am not attracted to this argument for the following reasons.
Firstly, it offends the 19 ordinary and natural meaning of the provision. Secondly, it is not in keeping with the legislative context namely the 1998 Act which forms the basis for government in Northern Ireland and which provides for ministerial oversight. Thirdly, 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.
Fourthly, in terms of effect, the rubric suggested by the Department would mean that civil servants in Northern Ireland could effectively take major policy decisions such as this one for an indefinite period. This is not a purdah situation where there is a short gap. Rather there is a protracted vacuum in existence pending the restoration of executive and legislative institutions or direct rule.
Former first minister David Trimble’s former adviser, David Kerr, described the High Court judgement as a “huge decision” with “massive implications for the government in Northern Ireland”.
Mr Kerr surmised that the “NIO will have to appoint direct rule ministers now, otherwise the machinery of government will stop”.
Richard Bullick, a one-time adviser to another former first minister, Peter Robinson, raised similar questions asking: “Is direct rule or new Westminster legislation now inevitable? But perhaps first an appeal?”
If officials can’t make decisions without ministers, then it’s not only the Hightown incinerator development which could be due a rethink.
A group of landowners have launched a separate legal challenge to the Department for Infrastructure’s decision to approve a north-south electricity interconnector between counties Tyrone and Meath.
Among the arguments their lawyers will deploy is the absence of a Stormont minister. The implications could reverberate, not just for decisions previously taken, but others yet to be approved.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty