The powers of civil servants in Northern Ireland to make decisions without ministers are set for a further court challenge after the UK Supreme Court said a case examining the legality of plans for an electricity interconnector with the Republic of Ireland should go ahead.
In a ruling published yesterday, the UK Supreme Court rejected a referral from the attorney general for Northern Ireland (AGNI) John Larkin for justices to rule on the powers of civil servants.
Northern Ireland has lacked an executive since power-sharing arrangements between Sinn Féin and the Democratic Unionist Party collapsed in early 2017.
The Westminster parliament passed legislation late last year to clarify the powers of devolved departments without ministers, including that were not prevented from exercising any functions if they are satisfied that it is in the public interest. However, this legislation is time limited, with provisions are set to expire in August, and Larkin sought clarity from the Supreme Court in a number of areas. These included whether the ministerial code applied to departments without ministers, and whether the lack of a programme for government restricted action.
After Larkin made his referral, a Northern Ireland High Court case examining the validity of a civil service decision to proceed with the proposed electricity interconnector was stayed.
However, in a unanimous judgement with Supreme Court president Lady Hale and deputy president Lord Reed, justice Lord Kerr said the interconnector case would provide an opportunity for greater legal clarity and should go ahead.
“In general, it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic issues of law,” said Kerr. “The opportunity for discussion and determination of the legal questions raised in the AGNI’s reference exists. Litigation concerning the validity of a proposed electricity interconnector between Northern Ireland and Ireland potentially raises most, if not all, of the issues adumbrated in the current reference.
“This court was told that that litigation has been stayed pending the outcome of this reference. The stay of proceedings is not appropriate. Those proceedings will provide the chance for the issues raised in the reference to be ventilated against a clear factual backdrop.”
The case would also allow “the courts of Northern Ireland [to] deal with those issues by reference to the practical reality of their impact on society there”, Kerr added.
This is the latest legal challenge to the powers of civil servants in Northern Ireland. A court ruling last May overturned a decision by officials to approve a waste incinerator in the absence of ministers.
During the judicial review, lawyers challenging the decision to approve the incinerator said civil servants were “in disarray as to how far their powers extend”. It was after this judgement that Larkin sought “authoritative guidance” from the Supreme Court.
David Sterling, the head of NICS, has said the power vacuum is putting his 23,000 staff in an “unacceptable” position.
“It’s unacceptable that we’re having to deliver public services in Northern Ireland without ministerial direction,” he told the inquiry into Northern Ireland’s £700m Renewable Heat Incentive scandal, which was a key factor in the collapse of power-sharing arrangements between the DUP and Sinn Féin in early 2017. “But we have to play the ball as we find it.”