The incinerator forms part of a waste management plant planned by arc21.

Civil servants in Northern Ireland did not have the power to grant planning permission for the construction of an incinerator by council waste management coalition arc21, the Court of Appeal has ruled – reinforcing the administrative limbo afflicting the province since the collapse of its power-sharing executive in early 2017.

The appeal was brought by the Department for Infrastructure (DfI), following a successful bid by campaign group NoArc21 to challenge the department’s September 2017 decision through judicial review. NoArc21, which is backed by local people concerned about noise and air pollution, argued that in the absence of a functioning Northern Ireland Executive the DfI lacked the democratic mandate to make key planning decisions – which would normally be signed off by a minister.

In bringing its appeal, the department made clear that its goal was to determine the extent of its powers to make planning decisions in the absence of elected ministers. David Sterling, head of the Northern Ireland Civil Service, said then: “The arc21 judgment has potentially wide-ranging implications for decision-making in the ongoing absence of ministers. 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.”

No democratic mandate

On Friday, the Court of Appeal dismissed the department’s appeal. According to the judgment, the Northern Ireland Act 1998 – which implemented the Good Friday Agreement – does not contain any provision for the role of civil servants.

The judges said that it was clearly the intention of the agreement that ministers should head departments, and be politically accountable for what happened in those departments. Lord Justice Treacy said that the argument that the department could exercise executive authority in the absence of a minister was incompatible with the Good Friday agreement and “profoundly undemocratic”.

“This would be a striking consequence for an agreement which was intended to usher in a new era of accountable governance and power sharing,” he ruled.

Businesses rue administrative paralysis

The ruling has disappointed business groups, including the Confederation of British Industry Northern Ireland (CBINI) and the Northern Ireland Chambers of Commerce and Industry, which last month called for extra powers to be given to civil servants in order to ease the province’s political paralysis.

Confederation of British Industry Northern Ireland director Angela McGowan said the judgment weakened civil servants’ ability to make crucial decisions in the absence of an elected executive.

“Instead of providing clarity, we are unfortunately left in an intolerable position where uncertainty and decision-making paralysis are putting economically significant projects across the region into planning purgatory,” she said.

She reiterated the group’s call to Northern Ireland secretary Karen Bradley to consider giving civil servants extra powers. It was not likely a new government would be in control this year, given the UK government’s focus on Brexit negotiations, she said.

Meanwhile Ellvena Graham, president of the Northern Ireland Chamber of Commerce and Industry, said: “The ruling by the Court of Appeal means that it is more important than ever that Northern Ireland’s political leaders reach an agreement. In the absence of the Northern Ireland Assembly and of ministers, key decisions need to be made in Westminster.”

Deadlock

However, republican party Sinn Fein would not welcome the handing of powers back to London – a move that would effectively introduce a form of ‘home rule’, in which the UK government makes decisions that have been formally passed to the Northern Ireland Assembly and Executive. Given the loyalist DUP’s key role in propping up Theresa May’s minority government, passing powers back to Westminster could leave the DUP in effective control of many areas of domestic Northern Ireland policy which should under the Good Friday Agreement be decided locally.

The latest appeal ruling leaves the Northern Ireland Civil Service unable to make key decisions over the province’s administration and governance. In January, as UK ministers struggled to broker a budget agreement for the province, Sterling told a committee of MPs: “We have never had a period of one year with no ministers at all, and I am surprised that we have managed to survive as long as we have. To me, it is totally unprecedented and I don’t think it’s acceptable, to be frank.”

A spokesperson for the DfI said: “The department is carefully considering the judgment by the Court of Appeal.”