Mills Selig - Knowledge

Mills Selig

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Clarity on civil service powers remains elusive.

Businesses hoping for clarification on the ability of senior civil servants to make decisions on significant infrastructure projects and other matters having a bearing on their strategic planning were left disappointed this week when the Supreme Court declined to answer several questions posed by Northern Ireland’s Attorney General. 

The Attorney General made a reference to the Supreme Court seeking authoritative guidance on issues he felt had been left unresolved by the Court of Appeal’s decision in the case of In re Buick [2018], in which the Court held that the relevant department did not have the power to make a decision to grant planning permission for a controversial waste incinerator in the absence of a minister.  Whilst legislation intended to reverse the effect of that judgement was quickly enacted by Parliament, the Act is time limited, applying only during the statutory period for formation of an Executive Committee. With no real signs of a functioning Executive in sight, the legislation does not provide a long-term solution. 

 The Supreme Court appeared reluctant to answer theoretical questions in the abstract and suggested that it would be preferable for the issues to be ventilated fully against the backdrop of a clear set of facts.  The Court noted that there was in fact relevant litigation ongoing in relation to the proposed North South electricity interconnector which had been put on hold procedurally pending the outcome of the reference. 

The Court indicated that the interconnector case should now proceed and that the Attorney General might intervene in those proceedings. His reference stands adjourned in the meantime. 

Businesses and commentators alike will observe the interconnector case with renewed interest. 

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