Opinion

ANALYSIS: Incinerator ruling exposes key flaw in government's light touch approach

In the absence of a Stormont executive key policy decisions have been made by civil servants
In the absence of a Stormont executive key policy decisions have been made by civil servants In the absence of a Stormont executive key policy decisions have been made by civil servants

THE court ruling on the Hightown incinerator is clearly popular and will be welcomed by all the north's main parties, even though the plan to generate power by burning municipal waste is being driven by a group of councils dominated by the very same parties.

However, Mrs Justice Keegan did not uphold the judicial review based on the scheme's environmental or strategic merits but rather because the senior civil servant who gave the green light did not have the power to make such a decision.

The High Court judge said that despite the absence of a Stormont assembly and executive, Department of Infrastructure permanent secretary Peter May was not authorised to make the call, which should instead have been made either by a devolved minister or a direct rule counterpart.

The decision may well have far-reaching implications for future waste management policy but in the more immediate term it brings many aspects of government planning to a halt.

Stormont departments will continue to carry out their duties as normal, just don't expect any new policies to emerge while the current political limbo exists.

The civil servants hadn't quite lost the run of themselves over recent months – in reality there's only been a handful of major projects or initiatives signed off in the absence of a minister.

That said, approval of the north-south interconnector and some non-planning matters such as appointments to quangos are decisions that in normal circumstances require democratic accountability.

In light of the Hightown ruling, the possibility of a permanent secretary making a similar decision in the coming months is now remote.

As significant as this inertia is the fact that the unlawful basis of the incinerator approval highlights the key flaw in the approach adopted over the past 17 months by Secretary of State Karen Bradley and her predecessor James Brokenshire, who appeared content to let this situation drift.

The alternatives – imposing direct rule or even convening the British Irish Intergovernmental Council – are contentious and not without difficulties but at least they would provide the necessary legal certainty and bring authority to government decisions, even if these decisions were made by ministers with constituencies in Britain and acting under the direction of civil servants.

With little prospect of devolution being restored any time soon, it now appears incumbent on Mrs Bradley to consult with the Dublin government ahead of abandoning her light-touch approach and putting in place an administration that can implement policy with confidence and authority.

Failure to act will only create more uncertainty and further demoralise the civil service.