Last people left running NI now hamstrung after deciding not to appeal sweeping court verdict

Karen Bradley
Karen Bradley

Stormont civil servants have decided not to appeal a far-reaching court judgment which said that they do not have authority to take decisions normally made by ministers, the News Letter can reveal.

In a decision which piles enormous pressure on Secretary of State Karen Bradley – who had appeared to openly disagree with the judgment – mandarins have declined to appeal it to the Supreme Court.

Three weeks after the verdict – in relation to planning approval which a senior civil servant had granted for an incinerator outside Mallusk – Stormont’s Department for Infrastructure confirmed last night that it had studied the Court of Appeal ruling “and will not appeal the judgment”.

The fact that the judgment now stands has sweeping implications for public sector decision-making in the continued absence of any devolved administration or direct rule.

A senior Stormont source told the News Letter that departments are “in regular contact with the NIO and they are under no illusions about the seriousness of the issue”.

Sam McBride analysis: Karen Bradley must decide – is it direct rule or drift?

In a brief statement, Stormont’s lead department, The Executive Office, said: “Departments have always been clear that decision-making is limited without ministers. The Court of Appeal judgment makes the scope to act even more constrained.”

Civil servants had initially lost the case in the High Court, but appealed to the Court of Appeal in an attempt to seek “clarity” on their powers.

In a judgment delivered by Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, Lord Justice Stephens and Lord Justice Treacy, the court comprehensively found against the department, with Lord Justice Treacy saying that civil servants were arguing for a position which was “radical and anti-democratic”.

The judges said that the logic of their ruling was that any decision which would normally be made by a minister could not be made by officials.

However, the secretary of state expressed disappointment at the ruling, telling Parliament that it was “not the decision that we wanted to see”.

Mrs Bradley – who has faced criticism for her apparent inaction in the face of the Stormont crisis – also suggested to the Commons that she was involved in consideration of whether the ruling should be appealed – even though she was not a party to the case and by choosing not to implement direct rule she has no power over Stormont officials, in whose hands that decision was meant to solely lie.

Civil servants – who have been left in a hugely problematic situation by the collapse of devolution and the refusal of the prime minister to implement direct rule – have now brought a degree of clarity to their powers by accepting the Court of Appeal ruling.

The decision about whether to appeal demonstrates how they are now routinely being asked to take decisions which are essentially political in nature.

Had they appealed the decision, that would itself have represented an intensely political decision of the sort which would normally be taken by a minister because it would mean using public money to instruct lawyers to argue that they ought to have the powers of democratically elected ministers, despite the ruling of four judges.

But by not appealing, civil servants also acted in a political way, given the clear political implications of the current predicament.

The decision also represents a significant victory for anti-incinerator campaigners who raised money to fight the case and took on publicly funded lawyers in both the original case and the appeal.

The case was taken by Colin Buick of the NoArc21 residents’ group – which has undertaken a David versus Goliath fight against Arc21, a body funded by most of Northern Ireland’s councils, which wanted to build the incinerator.

Mr Buick’s case was funded with money raised by everything from prize draws to online crowdfunding.

Although this judgment has stopped planning permission for the incinerator for now, it may not be the end of the road for the incinerator plans.

The court did not consider arguments against the incinerator in principle and only dealt with the narrow procedural grounds of whether civil servants had the power to grant planning approval.

In a bizarre twist, Mr Buick’s campaign against the incinerator was backed by every major political party. However, those same parties are meant to be – via their councillors – in control of Arc 21, the public body attempting to build the incinerator.

Sam McBride analysis: Karen Bradley must decide – is it direct rule or drift?