About this case:

• Citation:
  [2022] NIQB 4
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

The ongoing bonfire dispute, which was previously covered by Irish Legal News here, was held to have been already disposed of, rendering this application academic in nature.

A unionist activist challenged decisions by the ministers with responsibility for the Department for Infrastructure and the Department for Communities. He alleged that their judicial review proceedings against the PSNI in relation to its decision not to provide operational support for contractors to clear bonfire material at Adam Street, Belfast should never have been brought.

Factual background

The judicial review proceedings in issue were dealt with on an emergency basis on 9 July 2021 and dismissed. The two Departments and Belfast City Council had engaged a specialist contractor to remove bonfire material from the site due to health and safety concerns, but that gave rise to concerns about public order and the safety of the contractors in the course of this process.

Policing support for the removal process had been requested but the PSNI declined to provide it. The ministers contended that this approach on the part of the police was in breach of their public law duties and Wednesbury unreasonable.

The applicant had been a spokesperson for the organisers of the bonfire. He urged the minister not to bring her intended application for judicial review on the basis that it would be unlawful for her to do so without Executive approval.

The minister with responsibility for the Department of Agriculture, the Environment and Rural Affairs had also written to the two ministers stating that their intended challenge was significant or controversial, as well as cross-cutting.

Referencing Re Safe Electricity A&T Ltd and Woods’ Application [2021] NIQB 93, the court recognised that the views expressed on these matters within the Executive committee by other ministers will usually be a powerful indicator as to whether or not a decision is one which requires Executive approval as a matter of law.

Leave stage

The court’s provisional views at the leave stage were as follows:

1. The application did disclose an arguable case of breach of the ministerial code by virtue of the relevant decisions being significant and/or controversial. The position was much less clear as to whether the decision was cross-cutting, per section 20(8) of the Northern Ireland Act 1998.

2. The applicant did have sufficient interest to bring these proceedings in light of his earlier involvement with the bonfire judicial review.

3. The other suggestions raised by the proposed respondents did not represent an alternative remedy available to the applicant.

The proposed respondents resisted the argument that the ministers’ decisions were cross-cutting. She noted that the application was both fact-specific and academic, and that there was no good reason in the public interest for the court to grant leave in light of the fact that the central focus of the applicant’s challenge, the ministers’ judicial review against the police, had come to an end without the ministers having secured the result for which they had hoped.

The court found that there was an arguable basis for contending that the bringing of the ministers’ proceedings was cross-cutting, however the court next considered whether the point was now merely academic in nature.

Was the case academic?

It seemed plain to the court that “these proceedings, practically speaking, are now academic, in light of the fact that the relevant judicial review proceedings have been disposed of […] Moreover, the particular bonfire to which those proceedings related has also now long since burned out.”

The applicant instead argued that the central submission was that neither of the proposed respondents had accepted that their initiation of the judicial review proceedings without Executive approval was unlawful.

This, it was argued, suggested that neither proposed respondent had “seen the error of their ways” and that either or both of them may again seek to commence legal action of a similar nature without Executive approval.

The failure to concede that they had acted unlawfully was not deemed to be the appropriate yardstick by which to judge whether or not the proceedings were academic.

In these circumstances there were no anticipated or threatened legal proceedings by either respondent. In addition, the court did not consider it likely that there was a large number of similar cases presently or anticipated. If any such case was brought, the question of ministerial authority could be addressed at that point:

Conclusion

By reason of the foregoing, the court dismissed the applicant’s application for leave to apply for judicial review. The case, properly viewed, was academic and there was insufficient reason for the court to exercise its discretion to proceed to hear the case, notwithstanding “the interesting issues it raises”.