Opinion

Newton Emerson: Despite court ruling, expect civil servants to muddle on for another year

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

Part of an artist's impression of the proposed incinerator at Hightown Quarry near Mallusk
Part of an artist's impression of the proposed incinerator at Hightown Quarry near Mallusk Part of an artist's impression of the proposed incinerator at Hightown Quarry near Mallusk

The top of a hill in Mallusk is a sub-optimal site for an incinerator, to put it mildly. But this Monday’s judicial review against the project was not about location.

The flip-flopping of the four main parties over incinerators in general and this one in particular would take a diagram to explain. But the judicial review was not about that either.

Instead, it was about whether civil servants can take policy decisions in the absence of ministerial direction and democratic accountability. The judge ruled that Westminster cannot have intended, when passing the law enacting the Good Friday Agreement, to have Northern Ireland governed solely by bureaucrats.

The decision to approve the Mallusk incinerator, taken by the most senior civil servant at the Department for Infrastructure, was therefore “unlawful”.

This has been portrayed across the political spectrum as meaning the current political limbo cannot continue.

The DUP and UUP have demanded direct rule. The SDLP has called for the British-Irish Intergovernmental Conference to be convened so London and Dublin can cooperate on restoring devolution - the conference’s proper remit under the agreement.

Sinn Féin has also called for the conference to be convened but says it should act as a form of joint authority, taking decisions down to planning-approval level. This would breach every strand of the agreement, indicating desperation by Sinn Féin to fit the court ruling into its overall position since Stormont collapsed.

Journalists, legal experts and business representatives have also said the ruling must bring matters to a head - and maybe it should. But that does not mean it will, while precedent shows it almost certainly will not.

It is important to note that a finding of unlawful does not mean illegal. Police cars will not be screeching up to the Department for Infrastucture to confiscate the rubber stamps.

A judicial review can only examine if an official decision was inconsistent with law, guidelines or policy.

Government can and does brush adverse findings off - when is politics ever perfectly consistent?

Very occasionally, courts will order a contradiction to be addressed. Northern Ireland has a recent track record of ignoring this as well. Such an order was issued last year against the executive and the secretary of state in the executive’s absence to provide Troubles legacy inquest funding. It made no difference and the matter remains in political contention.

A judge reviewing official decisions is little better than a newspaper columnist in a wig - pointing out double standards to no avail.

The Mallusk ruling will not be ignored because it involves planning permission and a major investment by a private company. However, it is absurd to suggest civil servants will no longer make other more workaday policy choices. They will merely avoid the sort of decisions likely to end up before a judge, of which the incinerator was a glaring example.

Recent allocations of extra money for health have had even less of a legal basis than the incinerator approval - but nobody is going to bring a judicial review against last week’s cash boost to restructure GP practices, or last December’s pay rise for nurses on top of their usual increments.

There is enough governance to be getting on with and enough public money available to keep bureaucrats busy for years at this relatively uncontentious level.

The limbo that has lasted since March 2017 can easily muddle on for another year - the time frame both governments and all parties see as realistic to restore devolution. So it would be excessive for the British government to do anything as antagonistic as bringing in formal direct rule, simply to address the loose end raised by a judicial review.

If there is a new point of political pressure it is through the special vulnerability of infrastructure projects. Because they involve commercial interests, tend to provoke passionate objections and increasingly end up before the courts, civil servants will now be extremely reluctant to sign off their approval or funding.

If this stymies projects Sinn Féin and the DUP really want, they will be more inclined to reach a Stormont deal - just as there are suspicions taking decisions they do not want, such as approving incinerators, could be intended to bounce them into a deal.

But there would have to be balance to avoid this blockage becoming another political football and thanks to Casement Park and the A5, most of the pressure appears to fall on Sinn Féin.

Perhaps that is another reason it is blowing smoke about joint authority.

newton@irishnews.com