Northern Ireland

Lawyers contest civil service powers in Stormont's absence

An artist's impression of the proposed waste facility Image copyright Becon Consortium
Image caption An artist's impression of the proposed waste facility

A senior civil servant did not have the power to "go on a solo run" and approve a controversial waste incinerator near Belfast, the appeal court has been told.

But the court also heard it was never intended that an absence of ministers would mean decision making in Northern Ireland would "grind to a halt".

The contrasting arguments were made during a key court case.

It centres on approval for the £240m waste incinerator at Mallusk.

The case could have massive implications for decision making while devolved government is down.

The Permanent Secretary of the Department for Infrastructure, Peter May, approved the incinerator in September 2017.

But his decision was overturned by the High Court in May 2018.

Image caption Head of the civil service David Sterling has called for clarity over what decisions civil servants can take in the absence of Stormont

The department is now appealing that decision.

The head of the civil service David Sterling said the appeal was necessary to provide clarity over what decisions could be taken while devolution is down.

And in a measure of the importance of the case the Attorney General John Larkin QC also contributed to the hearing.

A number of other interested parties, including the electricity network operator SONI, were represented.

The result of the case could have implications for another regionally significant planning decision - the North/South Interconnector.

It faces a legal challenge on similar grounds from landowners along its route.

'Not civil service rule'

Counsel for the department Tony McGleenan QC said the incinerator decision was not a case as had been suggested, of civil servants "ruling".

Rather he said departments were "discharging their functions" under powers afforded to them under the 1998 Northern Ireland Act which established the Executive and the Assembly.

Mr McGleenan said the act was unique in that it made provision for the continued exercise of departmental functions in the absence of ministers - unlike other parts of the UK.

Counsel for residents opposed to the development, David Scoffield QC, said civil servants taking decisions were subject to the direction and control of ministers "at all times".

He said in controversial cases which cut across several departments there was a requirement for collective decision making by the Executive.

Image caption The controversial incinerator project was planned for Hightown Quarry near Glengormley

He said this was such a case and if the permanent secretary was able to make a unilateral decision that requirement could be "simply side-stepped".

The Lord Chief Justice Sir Declan Morgan questioned how civil servants were accountable for the decisions they took.

He said the civil service code suggested they were only accountable to ministers.

He asked who fulfilled that role in the absence of ministers.

Mr McGleenan said ultimately Westminster provided that function with the possibility that senior officials could be called before the NI Affairs Committee.

Democratic accountability

He said since the collapse of devolution Westminster had approved £16bn of public money for spending through departments here.

He said if parliament thought "what was happening here was unlawful it's unlikely it would disperse £16bn" through the Department of Finance.

But Mr Scoffield said if the case went against the residents it created a precedent where decisions would be taken and "no-one is democratically accountable".

"No-one can punish Peter May or David Sterling at the polls at the next election if they don't like the decision that has been taken."

'Find the clues'

Sir Declan said he and his two appeal court colleagues would have to "find the clues" in the legislation about any constraints on departments when making a public interest decision.

He asked if a department could take a controversial decision or one that cut across the responsibility of another department.

Mr McGleenan said only if there was a "compelling public interest in play".

He said the incinerator decision had not been a cross-cutting issue and was a case of the department acting on planning powers vested with it.

Image caption There is considerable opposition to the incinerator at Glengormley

The Attorney General said he was present to deal with some "devolution" points raised by the case.

He argued that as long as the civil servants properly applied the rules, they had the authority to make decisions they had the power to take.

Mr Scoffield said the decision to approve the incinerator had been contrary to to the direction of the last infrastructure minister Chris Hazzard.

He said Mr Hazzard had indicated that the decision should be taken by a minister.

He said if that direction had any "residual effect" it was a further ground of illegality of the department's decision.

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