Hamlet without the Prince: Re Buick’s Application [2018] NICA 26

Under the “Carltona principle”, decisions taken in reality by civil servants in a government department are treated in law as decisions of the responsible minister, such that where a statute provides for decisions to be made by a “minister” it is lawful for a civil servant to take them in the minister’s stead (see here and here).

In Re Buick’s Application [2018] NICA 26, the Northern Ireland Court of Appeal was confronted with a novel scenario: could the Carltona principle apply to legitimate civil-service decision-making in the absence of a responsible minister (due to the breakdown of Northern Ireland’s parliamentary institutions)? The answer given was “no”, in part for high-level constitutional reasons, in part because of the (very) particular arrangements relating to executive decision-making in Northern Ireland.

Due to a breakdown in the relations between its two largest political parties (the Democratic Unionist Party and Sinn Féin), Northern Ireland has been without ministers since March 2017. At issue was the decision to grant planning permission for an incinerator. Civil servants had recommended to the then-minister in 2015 that he grant permission. He refused to do so.

Subsequently, the matter was sent to the Planning Appeals Commission: when in office the Minister indicated that he would consider the Commissioner’s report before coming to a final decision. In March 2017, shortly after the Minister ceased to hold office, the Commisioner recommended that permission be granted, subject to conditions. Mindful of the various implications of delay (increased costs and difficulties for waste management, economic policy and compliance with EU-law obligations), the civil servants in the Department of Infrastructure granted planning permission subject to conditions.

A potential source of authority to so act could be found in delegated legislation, specifically, in article 4 of the Departments (NI) Order 1999:

(3) Subject to the provisions of this Order, any functions of a department may be exercised by—(a) the Minister; or (b) a senior officer of the department. (My emphasis)

For Morgan LCJ (with whom Stephens J agreed), however, when the 1999 Order was placed in its wider context, it could not justify the grant of planning permission in this case. Relevant to understanding the scope of the 1999 Order were the provisions of the Good Friday Agreement, as given effect by the Northern Ireland Act 1998, and the Ministerial Code. In particular, the grant of planning permission was, first, a “cross-cutting issue” involving more than one government department. Paragraph 19 of Strand One of the Agreement was thus engaged:

The Executive Committee will provide a forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, for prioritising executive and legislative proposals and for recommending a common position where necessary (e.g. in dealing with external relationships).

This was placed on a statutory basis by s. 20(3) of the 1998 Act.

The grant of planning permission was, second, a “significant or controversial issue”. Section 28A of the 1998 Act provides for the development of a Ministerial Code which must “include provision for requiring Ministers or junior Ministers to bring to the attention of the Executive Committee any matter that ought, by virtue of section 20(3) or (4), to be considered by the Committee”. Of particular relevance here are references in the Code to “significant or controversial” issues, which are to be flagged for the Committee’s consideration. The same language appears in s. 20(4) of the 1998 Act.

As a result, the grant of planning permission could not be made by civil servants acting alone:

There is no support in the Agreement for the suggestion that cross-cutting matters can be dealt with by departments in the absence of ministers and the allocation of responsibility for such matters within the 1998 Act to the Executive Committee can only be properly interpreted as excluding the departments from the determination of such matters..We also consider that the issue of incineration as a means of waste disposal is controversial having regard to the political views expressed within the papers and that the issue is significant having regard to the importance of this issue for waste management policy in Northern Ireland and compliance with EU Directives (at paras. 52-53).

Treacy LJ did not consider that the 1999 Order could be construed as empowering civil servants to act in the absence of a minister, again having regard to the wider context:

I consider that it is clear from the terms of the Agreement set out above that the Department’s argument that executive authority may be exercised by Departments in the absence of a Minister is inconsistent with the express terms of the Agreement. The default position contended for by the Department is profoundly undemocratic. If correct Departments in NI would be empowered, in breach of fundamental constitutional principle, to act without being accountable to Ministers. This would be a striking consequence for an Agreement which was intended to usher in a new era of accountable governance and power sharing (at para. 64).

One can see why the civil servants ran the argument based on the 1999 Order (especially in the current exigent circumstances, where gridlock was the only alternative). Moreover, the 1998 Act envisages periods of time in which no ministers are in office, itself a departure from the usual norms of responsible government (at para. 36). Nonetheless, empowering civil servants to act in the absence of ministers would be a “remarkable constitutional change” (at para. 55). As Treacy LJ noted: “If parliament had intended to introduce such a radical and anti-democratic departure from the constitutional norms which apply elsewhere in the UK it would have said so in clear and express terms” (at para. 62).

There is a line of English cases in which the Carltona doctrine has been applied outside the context of governmental departments (Director of Public Prosecutions v Haw [2008] 1 WLR 379; Castle v Director of Public Prosecutions [2014] 1 WLR 4279; R (Hamill) v Chelmsford Justices [2015] 1 WLR 1798). But in these cases the responsible individual was in position and so responsible in fact as well as in theory.

Just as the Prince is central to Hamlet, so the identified decision-maker is central to the Carltona doctrine. Northern Ireland is exceptional in many ways, but not when it comes to the scope of the Carltona principle.

 

 

 

This content has been updated on September 23, 2018 at 19:41.