The Northern Ireland Civil Service head has backed a decision by the Department for Infrastructure to appeal a court ruling overturning an official’s approval of construction of a controversial waste incinerator.
David Sterling said civil servants needed greater clarity on their legal position because the High Court judgment “has potentially wide-ranging implications for decision-making in the ongoing absence of ministers”.
He warned that if the ruling precludes officials from making decisions that should normally be taken by a minister, major events such as the North West 200 would not be allowed to take place.
NICS has 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.
Peter May, the Department for Infrastructure permanent secretary, gave the go-ahead last year for construction of a £240m waste treatment and energy plant in County Antrim. But the High Court ruled this week that he did not have the power to take that decision.
In a statement issued following the ruling, Sterling said was important that the law is clarified on what decisions can be taken by officials in the absence of an executive.
“The Arc21 judgment has potentially wide-ranging implications for decision-making in the ongoing absence of ministers,” he said. “That is why it is important we obtain greater clarity on the legal position and why it is right for DfI to seek to appeal.”
A proposal for the incinerator was turned down by then environment minister Mark Durkan in 2015, but the local government consortium behind the scheme, Arc21, appealed the decision. In the absence of an executive, the perm sec then approved the plans, stating that the plant was of strategic importance to the region.
In his statement, Sterling also said civil servants had been taking departmental decisions on a number of issues over the past 16 months to ensure continued delivery of public services.
“We have been very clear that significant decisions about policy and the allocation of resources should be taken by democratically-accountable ministers. But, in the absence of an executive, civil servants have had to take the unusual step of taking decisions on some issues which would normally have been brought to ministers for decision,” he added.
“We have been doing this reluctantly and only after taking legal advice. And we never expected, or wanted, to have to do this other than for a very short period of time.
“Each decision has been taken on its own merits and senior officials have acted where they believed it was lawful to do so – 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.”
During the High Court judicial review, lawyers challenging the DfI’s approval of the incinerator said civil servants were “in disarray as to how far their powers extend”. They said the approval was inconsistent with other decisions taken by civil servants, including Sterling’s refusal to offer compensation to victims of historic institutional abuse without ministerial direction, despite this having been recommended by an official inquiry.
Counsel for the department said in court that legislation at Stormont allowed officials to take planning decisions.
Stirling also warned yesterday of the consequences if the High Court ruling was taken to mean that civil servants can’t do anything that would normally be done by ministers.
He told the BBC: “Take for example, a topical example, the North West 200 [ motorcycle race], where the permanent secretary in the Department of Infrastructure signed the road closure orders that are necessary to allow the North West 200 to take place.
“If the position is now that we cannot do that anymore because it is normally done by a minister then you would not have had the North West 200 this weekend.”
The race is the largest annual sporting event in Northern Ireland.
The most recent round of talks to restore a power-sharing arrangement between DUP and Sinn Féin failed in February.