On 6 July 2018 the Northern Ireland Court of Appeal gave its ruling in the appeal against the decision of the High Court in Buick's (Colin) Application as Chair Person of NOARC 21  NICA 26.
The potential implications of the judgment for governance as a whole in Northern Ireland in the absence of an Executive (and without direct rule) are significant. But at its heart lies a major question mark over decision making by the Department for Infrastructure (DfI) in relation to regionally significant infrastructure planning applications. Careful analysis of the Court of Appeal's decision perhaps raises more questions than it answers.
The original subject matter of the judicial review proceedings was the DfI's decision to approve an energy from waste project at Hightown Quarry in North Belfast. The project was brought forward by Arc21, a grouping of NI Local Councils set up to provide waste treatment solutions for those Councils. This decision to approve was made in September 2017 by the Permanent Secretary to the DfI, some 10 years or more from when the project was originally conceived. Ordinarily the final decision to approve would be made by the Department's Minister. However, since the collapse of the Stormont Executive in January 2017, no Minister was in place. The DfI was therefore left with the difficult position of awaiting either the restoration of the Executive or imposition of direct rule by Westminster. In September 2017 (and still today) neither appeared to be a realistic prospect.
A local objector group, "NoArc21", brought an application for judicial review against the decision fronted by its chairperson, Colin Buick. Unusually for a planning related judicial review, the challenge focussed solely on a fundamental constitutional law issue, namely that in the absence of a Minister, no decision could be taken by a civil servant to approve the application. Mr Buick also argued that the decision to approve was "cross-cutting" in that it was of such regional significance and (political) controversy that other Ministerial departments and the Executive had to be involved in the final decision.
In the High Court ( NIQB 43), Keegan J ruled that under Article 4 of the Departments (NI) Order 1999 (the Departments Order), Northern Ireland Departments are subject at all times to the "direction and control of the Minister". The implications were stark; without a Minister in place, arguably no civil servant could make any decision, let alone approve a major infrastructure project.
It was therefore hardly any surprise that the DfI almost immediately appealed the decision. Mr Buick cross-appealed on the basis that the High Court had rejected the challenge relating to the issue of cross-cutting.
In an expedited appeal hearing and subsequent decision a week later, the Court of Appeal dismissed the appeal and upheld the cross-appeal. The judgment is highly significant. Whilst the emphasis of the decision shifts from that of the High Court, arguably allowing some decision-making to take place, the boundaries of what is and is not lawful for a civil servant to do are very much blurred.
The key parts of the judgment and its implications for other major infrastructure projects are considered below.
In the Court of Appeal's view:
"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."
The Court of Appeal rowed back from Keegan J's decision somewhat by stating that the words "direction and control of a Minister" in the Departments Order were supervisory rather than mandatory. In other words, if there was no Minister in place, the Departments Order meant that decision-making at some level could continue – the "lights would not go out" as had been claimed by the Department in court. However, the Court of Appeal sought to draw a line such that decisions ordinarily passed up to a Minister for approval or the final decision could not be made without a Minister in place. A planning decision such as that for the Arc21 Energy from Waste Project squarely falls within that realm as a Minister would ordinarily make that decision, and the Minister was not obliged to follow the recommendation. Indeed, the last-but-one Minister for the then Department of the Environment refused the application even though his civil servants recommended approval.
This element of the decision has immediate repercussions as there are a number of major infrastructure projects either awaiting a decision or that were approved post January 2017 by the Permanent Secretary. The North-South electricity interconnector – a critical element of the all-island electricity network – is currently subject to judicial review proceedings and the Buick decision was introduced as a further ground of challenge to that approval. Similarly the decision to approve the A5 Derry/Londonderry to Strabane road scheme was approved without a Minister and that decision is being judicially reviewed. Again Buick features in that JR. The application for the 34,000-seater Casement Park stadium in Belfast sits in limbo awaiting a decision, its former approval having been quashed some years ago. In light of the Court of Appeal's judgment, what does seem clear (without pre-empting further judgments in the High Court) is that decisions of this nature require a Minister in place to be lawfully made.
The difficulty for the Department (indeed all NI Departments) however lies in the distinction between decisions ordinarily made by civil servants and those where "as a matter of convention or otherwise" a Minister takes the decision. One of the reasons that this appeal was brought is that Article 4 of the Department's Order is almost the only guidance as to what a Minister's responsibility is. The Court of Appeal in its judgment recognised the ambiguity of Article 4, but arguably its judgment is no less ambiguous in this respect.
This ambiguity was further underlined in the final sentence of the judgment;
"we express no final view on the competence of Departments to make decisions during periods when no Minister is in place"
This is perhaps a significant sting in the tail of the judgment. The Court had earlier stated that Article 4 of the Department's Order merely provided for Ministerial oversight. However in expressing "no final view" on what "direction and control" of a Minister actually means, the issue has to a large extent been batted away. Undoubtedly there will be further discussion and – almost inevitably - legal challenges over where this line of competence lies.
The Court of Appeal then considered the issue of "cross-cutting";
"The decision was plainly politically controversial. Given its importance for waste management it was also significant. On those grounds it also was a decision that could only be made by the Executive Committee…
… It would be contrary to the letter and spirit of the [Belfast] Agreement and the 1998 [Northern Ireland] Act for such decisions to be made by departments in the absence of a Minister"
The genesis of this part of the ruling lay in the cross appeal brought by Mr Buick. It was argued that under the Northern Ireland Act 1998 and the 1998 Belfast Agreement (otherwise known as the Good Friday Agreement, under which the Stormont Executive was established) the controversial and regionally significant nature of the decision required consideration of the application by the Executive Committee. The Court recognised that the decision involved the interests of the Department for Agriculture, Environment and Rural Affairs ("DAERA") because of its functions in relation to waste management and associated policy. Further, the Office of First Minister and Deputy First Minister had, in the Court's view, an interest due to issues relating to compliance with EU Directives (i.e. the Waste Framework Directive).
Previously, no planning application, including many major and regionally significant applications had been considered as cross-cutting, and indeed the Department and Arc21 had argued this point in court with reference to previous case law. The Court's decision now raises the prospect of other "significant and controversial" major applications being cross-cutting. Where the distinction lies will be a difficult one to gauge. Almost all major planning applications are controversial and in many cases different political parties will have opposing views on their merits. Further, DAERA in particular is a consultee for all planning applications, for example in relation to matters of protecting ecology and historic buildings. To what extent will these statutory functions of DAERA constitute "cross-cutting matters"? Again this may well be a matter that future court cases must grapple with.
In concentrating on on the "cross-cutting" issue the Court of Appeal in some respects narrowed the focus of its judgment onto the specific Arc21 planning application, which of course was the subject matter of the judicial review challenge. Subject to any further appeal to the Supreme Court the decision is quashed and must await the restoration of the Stormont Executive and appointment of a Minister for a further decision to be made. The alternatives could be restoration of direct rule, which at this point in time seems to remain politically unpalatable for both local political parties and Westminster, or a change in the underlying legislation. The latter also seems unlikely in light of the "cross-cutting" issue as this would require a wholesale redrafting of the legislation that underlies devolved government in Northern Ireland.
However, the Court of Appeal, in addressing the wider issue of the meaning of Article 4 of the Departments Order, has not by any means put the matter to bed. The clarity sought by the Department in bringing its appeal has arguably not been provided. In many respects this is a fault of the underlying legislation in being broadly drafted – but in fairness it was never created with the current political impasse in mind.
The implications of the judgment
The implications for decisions on major infrastructure applications are, it would appear, stark. There appears to be no doubt that final decisions on regionally significant planning applications are made by the Minister "as a matter of convention or otherwise". The Court of Appeal has therefore effectively prevented any further decisions being made until the political impasse at Stormont is dealt with one way or another. The decision also leaks across to other departments and many major decisions, for example on funding and investment seem likely be put on hold for the time being.
The judgment does not necessarily stop the on-going processing of major planning applications that are with the DfI at present. However even within those there are decision processes along the way where the blurred boundary of what might ordinarily go before a Minister, even for tacit approval are unclear.
What started as a community group objecting to an energy from waste plant in their neighbourhood has snowballed into a Court of Appeal decision that goes to the very heart of governance in Northern Ireland and the current political impasse. It is perhaps easy for developers and investors to bemoan this decision and the paralysis that could well now occur on major development decisions and the associated investment in Northern Ireland. However, the issue of Ministerial "direction and control" is such a wide-ranging matter that it was inevitable that a similar challenge was going to arise, whether in relation to a major planning application or another critical Departmental decision. The fact that the issues in Buickare being raised in multiple other judicial reviews demonstrates the broad legal consequences that a lack of a government in Northern Ireland has created.
Ultimately the responsibility for dealing with this issue lies with the Northern Ireland and UK governments. By any measure the lack of a stable governance structure in NI for the past 18 months is a far from satisfactory position for business and investment regardless of this decision. The Court of Appeal's judgment simply emphasises the need for rapid progress on providing a lawful mechanism for government in Northern Ireland.