Northern Ireland’s attorney general has sought clarification from the Supreme Court after the Court of Appeal upheld a judgment that civil servants lack powers to make significant decisions in the absence of ministers.
John Larkin submitted a series of questions to the Supreme Court relating to the ruling in Belfast that overturned a civil servant’s approval of a controversial waste incinerator.
Larkin told the BBC that his intervention does not amount to an appeal of the decision, but that he was seeking “authoritative guidance about the powers of departments to make important decisions” in future.
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Civil servants have been running the devolved administration since a power-sharing agreement between DUP and Sinn Féin broke down over the handling of a renewable energy scheme in January 2017.
In the absence of an executive, the permanent secretary of Northern Ireland’s Department for Infrastructure gave approval for the construction of a controversial waste incinerator last year. But this approval was overturned in May, after the High Court ruled that the civil service did not have the power to take that decision.
In July the Court of Appeal rejected a challenge from the Northern Ireland Civil Service (NICS) on the ruling, stating that decisions normally made by a minister are “beyond the competence of a senior civil servant in the absence of a minister”. It said the incinerator decision was such a case, because it was a significant and cut across the remit of several Stormont departments.
NICS decided not to appeal this decision, but the attorney general has independently referred the case to the Supreme Court in order to clarify the consequences of the ruling.
Larkin, the chief legal adviser to the Northern Ireland executive for both civil and criminal matters, said he took no “formal position on the planning merits” of the incinerator decision, but wanted further guidance on the application of the ministerial code in the absence of ministers.
"My reference under paragraph 34 of schedule 10 to the Northern Ireland Act will leave the Court of Appeal decision unaffected, but it offers the Supreme Court the opportunity to give us authoritative guidance about the powers of departments to make important decisions,” he said.
The Supreme Court does not sit again until the Autumn.
The case has increased pressure on NI secretary Karen Bradley to introduce direct rule from Westminster, as major decisions remain untaken by civil servants unsure of their powers.