On 6 July 2018, the Northern Ireland Court of Appeal handed down its ruling in Buick’s application for judicial review  NICA 26. A keenly awaited ruling for its constitutional implications, the Court of Appeal dismissed the appeal of the Northern Ireland Department for Infrastructure (“DFI”) against the decision of Mrs Justice Keegan in the High Court (Re Buick’s application for judicial review  NIQB 43). Though celebrated and criticised in equal measure, it is important to highlight that the approaches taken by the High Court (“Buick 1”) on the one hand and the Court of Appeal (“Buick 2”) on the other could not be more different.
The facts central to the two decisions can be briefly summarised as follows: a planning application was submitted to the Northern Ireland Department of the Environment (“DoE”) in 2014 for an incinerator in Mallusk, Northern Ireland. Far from being a run-of-the-mill matter, the application proposed the development of a major waste management facility, with implications for Northern Ireland-wide waste management and specific policies of the Department of Agriculture, Environment and Rural Affairs (“DAERA”). Subsequently, following certain legislative changes, the application was transferred to the DFI, notified for refusal by then Environment Minister Mark Durkan and appealed to the Planning Appeals Commission. Before the appeal could be determined however, new elections to the Northern Ireland Assembly ushered in a new Minister for Instructure, who adopted a neutral stance in respect of the appeal. Following the collapse of devolved government in Northern Ireland in January 2017, and its ongoing failure to return, the DFI decided, following the receipt of legal advice, to act in the absence of a Minister and grant planning permission in August 2017. The challenge to this grant of permission in Buick 1 rested on two grounds: firstly, that the DFI decision taken in the absence of a Minister breached the statutory constitutional framework in Northern Ireland (“the vires ground”) and that, as the incinerator project cut across the responsibilities of two or more Ministers, the DFI were obliged to bring the matter to the attention of the Executive Committee (the First Minister, deputy First Minister and other Northern Ireland Ministers) and having failed to do so, acted unlawfully (“the cross-cutting ground”).
Constitutional framework in NI
The present constitution of Northern Ireland stems largely from the Northern Ireland Act 1998 (“NIA”), the long title of which reads: “An Act to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883”. The agreement referred to in the long title is of course the Good Friday Agreement 1998 (“GFA”), Strand One of which details the devolution arrangements which were enacted by the NIA. In particular, paragraphs 14 – 25 of Strand One set out the provisions for executive authority in Northern Ireland as ultimately expressed through the NIA and article 4(1) of the Departments (Northern Ireland) Order 1999 (“the 1999 Order”) which provides “The functions of a department shall at all times be exercised subject to the direction and control of the Minister”. As a result of a new agreement reached at St. Andrews in October 2006, the NIA was amended to include a new section 28A, obliging Ministers to act in accordance with the statutorily mandated Ministerial Code. Thus the NIA, associated legislation and the Ministerial Code together form the constitutional yardstick against which to measure the lawfulness of acts of the devolved administration.
The ratios in Buick 1 and 2
Before Keegan J, the DFI contended in Buick 1 (rather surprisingly) “While the 1999 Order and the 1998 Act anticipate that Ministers and an Executive will be in place, they do not require it”, pointing to article 4(3) of the 1999 Order which provides:
“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.”
However, Keegan J gave this argument short shrift in paragraph 39 of her judgment: “[…] the Department cannot be entirely detached from the Minister who heads it up […] If the Department’s argument were correct there would have been no need to include the provisions of Article 4(1) in the 1999 Order.” The very fact that the article 4(3) provision on which the DFI contended that senior civil servants could exercise Department functions in the absence of Ministers is made expressly subject to the 1999 Order, including the mandatory language of article 4(1) (“shall”) (article 4(1) having no qualification whatsoever) only serves to reinforce Keegan J’s ruling. The vires ground thus succeeded in Buick 1, as the Department could not take “major policy decisions” in the absence of Ministers “without the protection of democratic accountability” (Buick 1, ).
The cross-cutting ground however failed in Buick 1. The central tenet of this ground was that paragraph 2.4 of the Ministerial Code obliges any matter which inter alia “cuts across the responsibilities of two or more Ministers” to be brought before the Executive Committee for its consideration. The incinerator, as already highlighted, engaged waste management policies of the DAERA. Thus, the contention before Keegan J was that the DFI ought to have brought the application to the attention of the Executive Committee and, having failed to do so, the grant of planning permission was consequently void. Keegan J dealt this contention a succinct blow: “[a]s the Ministerial Code does not apply to civil servants this obligation [to act in accordance with the Ministerial Code] does not even arise” (Buick 1, ).
Buick 2 marks an altogether sharp contrast with the ratio of Buick 1. In delivering the majority ruling in the Court of Appeal (Morgan LCJ, Stephens and Treacy LJJ), the Lord Chief Justice while upholding the final order in Buick 1, nevertheless departed from its approach in two important ways: firstly, he somewhat diluted Keegan J’s confident reading of article 4(1) of the 1999 Order in that he ruled that the article was ambiguous (Buick 2, , though Treacy LJ dissented on this point at ) and upheld the cross-cutting ground (Buick 2, ). Indeed, Morgan LCJ went further and held that the grant of planning permission was significant and 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” (Buick 2, ). Significant or controversial decisions which are “clearly outside the scope of the agreed programme [for government]” are obliged to be brought to the attention of the Executive Committee, (Ministerial Code, [2.4]). In Buick 2, Morgan LCJ observed “There is no agreed programme”, as a result of which the planning application required the consideration of the Committee (Buick 2, ), thus rendering the DFI decision unlawful on an apparent third ground (which, significantly, finds no mention in Buick 1). In the Court’s final disposal, Morgan LCJ expressed “no final view on the competence of Departments to make decisions during periods when no Minister is in place.” (Buick 2, ). It is important to note that the Court of Appeal expressed no opinion on whether Keegan J was correct in her approach, even as it dismissed the appeal against her judgment.
The Good Friday Agreement: a justiciable treaty?
When considered side by side, Buick 1 and 2 illustrate a difference, not only in the consideration of the various grounds of challenge, as above, but also in the two courts’ respective considerations of the constitutional framework of Northern Ireland. In Buick 1, Keegan J observes “The governing legislation is the 1998 Act which reflects Strand 1 of the Belfast Agreement 1998 […] by virtue of which devolution was established in Northern Ireland” (Buick 1, ). Throughout her consideration of Northern Ireland’s constitutional framework, Keegan J looks to the NIA and the 1999 Order, with occasional references to the GFA as being ‘reflected’ in the various statutes (Buick 1, ,  and ). By contrast in Buick 2, Morgan LCJ begins with a consideration of the GFA before construing those provisions of the NIA which Keegan J had considered reflective of the GFA. An example of this can be found in paragraph 52 of Buick 2:
“When, however, looking at the extent of the power given to departments the context of the Agreement and the surrounding features of the 1998 Act impose significant limitations. We are satisfied that the decision in this case is a cross-cutting decision involving the interests of DAERA because of its waste management function and FMDFM because of the impact on compliance with EU Directives. Paragraph 19 of the Agreement provides that 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. Section 20(3) expressly attributed that function to the Executive Committee and Section 28A of the 1998 Act provides a mechanism to ensure that the authority of ministers is limited accordingly. 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.” (emphasis added)
The difference in the above approaches is fairly simple: Keegan J began with the statutes and only referred to the GFA for context, whereas the Court of Appeal looked to the GFA itself for understanding the constitutional framework of Northern Ireland. This difference may seem trivial in circumstances where the NIA was enacted to implement the GFA (as above) but is in fact of major constitutional significance.
As a matter of constitutional jurisprudence in the UK, the impact of treaties is limited to their signatory States in the international plane (JH Rayner Ltd v Department of Trade  2 AC 418 at 500C per Lord Oliver of Aylmerton)
Thus, a treaty cannot impose domestic obligations or create domestic rights and, unless explicitly incorporated by way of statute, is not domestically justiciable at all. There are of course, exceptions to this rule – the most prominent being the EU Treaties, which create directly effective rights within domestic law without any enactment beyond the European Communities Act 1972 (R (on the application of Miller) v Secretary of State for Exiting the EU  UKSC 5,  per Lord Reed). However, the GFA does not fall into this exception. As a result, any applicability of the GFA, including the entirety of the devolution framework in Northern Ireland, has effect only insofar as enacted by Parliament via the NIA. Consequently, any duties and obligations on executive authorities and any constraints on executive power which are domestically justiciable arise only pursuant to the NIA. The justiciability of the GFA is limited to the international plane, and only as between the UK and Ireland (“res inter alios acta”). A hypothetical international tribunal, constituted under the GFA, could quite easily invoke every provision of the GFA as against the two countries, but its rulings would have no effect domestically, against any of the devolved institutions, unless Parliament expressly provided for it.
In paragraph 52 of Buick 2 as quoted above, Morgan LCJ makes direct reference to paragraph 19 of Strand One of the GFA as the source of the cross-cutting function of the Executive Committee. It is however difficult to source the cross-cutting duty from the GFA, when, in light of the constitutional principle in JH Rayner above, one must look to the statute incorporating the GFA to find the source (in this case, section 28A of the NIA when read in conjunction with paragraph 2.4 of the Ministerial Code as mandated by the NIA). This is of course significant, as it is the cross-cutting ground which Keegan J dismissed in Buick 1, but the Court of Appeal upheld in Buick 2, as one of two main reasons for dismissing the appeal.
I should at this stage stress that the finding of unlawfulness of the DFI grant of planning permission was, given the particular constitutional framework in Northern Ireland, unavoidable for both courts. However, in light of the apparent blurring of the constitutional principle of treaty justiciability in Buick 2, coupled with the considerable difference in approach to the grounds of challenge between the two courts, the conclusion of unlawfulness is somewhat bereft of judicial heft. In debates surrounding the passage of the Northern Ireland Budget (No. 2) Bill on 9 July 2018, Northern Ireland Secretary Karen Bradley MP stated that the government is “considering the position” when asked by Lady Hermon MP whether Buick 2 would be appealed. If the decision is appealed, the Supreme Court must grapple with one of the most important questions facing Northern Ireland today: who governs with no government?
Anurag Deb, Paralegal, KRW LAW LLP (Belfast) and BPTC student (University of Law)
(Suggested citation: A. Deb, ‘Buick: Two Courts, Two Approaches and No Government’, U.K. Const. L. Blog (16th Jul. 2018) (available at https://ukconstitutionallaw.org/))