Court dismisses appeal by NI civil servants over decision made without ministers

NICS challenge over High Court ruling to overturn incinerator planning decision rejected by Court of Appeal

The Stormont Assembly, which hasn't had an executive since a power-sharing arrangement broke down in January 2017. Credit: Artur Widak/ PA

By Tamsin.Rutter

10 Jul 2018

The Court of Appeal in Belfast has rejected a challenge from the Northern Ireland Civil Service (NICS) over a planning decision made in the absence of ministers.

A civil servant from the NICS Department for Infrastructure gave approval for the construction of a controversial waste incinerator last year. But this approval was overturned in May, after the High Court ruled that the civil service did not have the power to take that decision.

Civil servants have been running the devolved administration since a power-sharing agreement between DUP and Sinn Féin broke down over the handling of a renewable energy scheme in January 2017.

David Stirling, head of NICS, backed the department’s decision to appeal the High Court ruling, stating that the judgment had “potentially wide-ranging implications for decision-making in the ongoing absence of ministers”.

But the Court of Appeal has ruled that decisions that would normally be made by a minister are “beyond the competence of a senior civil servant in the absence of a minister”.


Its judgement said: "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."

A spokesperson for the Department for Infrastructure told the BBC that it was “carefully considering” this judgment.

The proposal for a £240m waste treatment and energy plant in County Antrim was turned down by then environment minister Mark Durkan back in 2015, but the local government consortium behind the scheme, Arc21, appealed the decision.

Following the collapse of the executive in Northern Ireland, the permanent secretary at the Department for Infrastructure then approved the plans, stating that the plant was of strategic importance to the region.

In a statement released after the High Court ruling overturning that approval, Stirling said civil servants had been taking departmental decisions on a number of issues for more than a year to ensure continued delivery of public services.

“We have been doing this reluctantly and only after taking legal advice,” he said. “And we never expected, or wanted, to have to do this other than for a very short period of time.”

He added that senior officials had acted where they believed it lawful to do so, and “where it was consistent with the direction of the previous minister or necessary in the public interest that a decision be taken at the time”. He said it was important to get clarity on the powers available to civil servants.

The Court of Appeal judges ruled the decision to approve the “controversial” waste incinerator was “contrary to the letter and spirit of the (Good Friday) Agreement and the 1998 (Northern Ireland) Act”, according to the BBC.

But they did not express a view on the competence of civil servants to make decisions in the absence of ministers more generally.

The judgment could have implications for other infrastructure projects planned to take place in Northern Ireland.

The DUP leader and former first minister Arlene Foster said the ruling brought into sharp focus the impact on Northern Ireland of not having a functioning executive and assembly.

"In the absence of an executive, decisions must be made in London,” she said.

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