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Background

In 2015, former Environment Minister, Mark Durkan, rejected planning permission for a £240m waste treatment centre and incinerator to be built in Mallusk. The decision of the former Environment Minister was appealed by Arc21 – a consortium of local councils that supported the development.

Arc21’s appeal was heard by the Planning Appeals Commission which endorsed the development, and in September 2017, a senior civil servant for the Department of Infrastructure approved planning permission in absence of a Minister.

Following the resignation of the former Deputy First Minister, Martin McGuinness, in January 2017; an election was held in March 2017. The Northern Ireland Act 1998 required the Assembly to fill the offices of First Minister, Deputy First Minister, and the Ministerial offices within 14 days of its first meeting – however this did not happen and therefore there have been no ministers in place in Stormont since March 2017, and there has been no meeting of the Executive Committee since Martin McGuinness’s resignation in January 2017. The Northern Ireland Act 1998 does not contain any provision in relation to the role of civil servants, which the Court considered was a clear indication of the intention of the Act that Ministers should head Departments and be politically accountable for what happened within those Departments. Furthermore, Article 4(1) of the Departments (Northern Ireland) Order 1999 provides that the functions of a Department “shall at all times be exercised subject to the direction and control of the Minister”. Article 4(3) provides that any functions of the Department may be exercised by the Minister or a senior officer of the Department.

In the High Court, Ms Justice Keegan “noted the general frustration among civil servants and others about the need to take important decisions”, and recognised that delay had an effect on the implementation of public waste and environmental development at national, European and international level.

Justice Keegan rejected a submission that because an outgoing Minister had indicated that a neutral stance should be taken, the Permanent Secretary could be said to have been acting in accordance with the direction and control of the previous Minister and concluded that in the absence of a Minister, the Department did not have the power to grant the impugned planning permission.

Court of Appeal

In the Court of Appeal, there was some disagreement regarding the interpretation of Article 4(1) of the Departments (Northern Ireland) Order; the Lord Chief Justice Sir Declan Morgan and Lord Justice Stephens considered it to be ambiguous, and could be read as merely empowering Ministers to exercised direction and control over Departments when in place; whereas Lord Justice Treacy said that it was “clear from the terms of the Agreement that the Department’s argument that executive authority may be exercised by Departments in the absence of a Minister was incompatible with the Agreement”. Lord Justice Treacy said that the default position contended for by the Department was “profoundly undemocratic” and said that if this was correct “Departments in NI would be empowered, in breach of fundamental constitutional principle, to act without being accountable to Ministers”. Stating that this would be “a striking consequence for an Agreement which was intended to usher in a new era of accountable governance and power sharing”, Lord Justice Treacy concluded that even if Article 4(1) of the Departments (Northern Ireland) Order was ambiguous “it ought to be construed consistently with established constitutional principle and the Agreement”.

It was agreed that the decision was cross-cutting, and that such decisions were a function of the Executive Committee pursuant to the Northern Ireland Act 1998. The issue of incineration as a means of waste disposal was controversial and significant, and that it would be “contrary to the letter and spirit of the Agreement and 1998 Act for such decisions to be made by Departments in the absence of a Minister”.

This was reinforced by the constitutional position of civil servants whose role is to advise Ministers and be accountable to them – and the Department’s submissions would effectively turn civil servants into Ministers and “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.

Concluding that the decision made by the Department was crosscutting, significant and controversial, the Court of Appeal said that it was a decision which could only be taken by the Executive Committee and dismissed the appeal.

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