In the case of Buick, the Northern Ireland High Court explored whether government departments can continue to operate as normal in the absence of ministers due to the collapse of the devolved administration in Belfast. It reached a striking conclusion which, if upheld on appeal, would have significant constitutional and practical implications. It was mistaken.
The United Kingdom is currently engaged in an experiment in political anarchism. For over a year, it has been exploring what happens when one part of the country, in this case Northern Ireland, is required to carry on without an elected government.
The experiment arose inadvertently, and on the surface very little has changed. Belfast 2018 is not the anarcho-syndicalist utopia of Barcelona 1936, nor has it suddenly lapsed into a Hobbesian state of nature. But the very reason why hardly anything appears to be different – the continuity that is provided by the de facto technocratic government of the Northern Ireland Civil Service – gives rise to constitutional questions of real importance. The most fundamental question is this: can day-to-day government be carried on by civil servants without the need for direction or control by politicians; if so, subject to what conditions and within what parameters?
It was only a matter of time before this question fell to be considered in a court of law. And it has been, in the recent case of Buick [2018] NIQB 43, in which the High Court was asked to determine whether Northern Ireland’s ten government departments are able to carry on without ministers in charge. It came to a surprising and unintentionally radical conclusion.
The Political Background
An election for the Northern Ireland Assembly occurred in March 2017. A new Executive should have been in place within a few weeks. However, under the prevailing model of consociationalism (i.e. power sharing) an Executive may be formed only with the joint participation of the largest parties representing the loyalist and nationalist communities. Those two parties – the DUP and Sinn Féin – have a rancorous relationship and have been unable to agree on a programme for government. In consequence, more than twelve months after the election, the Assembly is still not sitting and no ministerial office has been filled.
In February 2018 a deal briefly looked likely – the UK Prime Minister and Irish Taoiseach even went to Belfast for the announcement – but it unravelled overnight. At the time of writing, no resolution of the impasse is imminent.
At other times and in other circumstances the UK government might have taken steps to restore ‘direct rule’ from London. During 2017 this was the sanction implicit in a series of deadlines set by the Secretary of State for Northern Ireland, who demanded that, by each (increasingly arbitrary) date, the DUP and Sinn Féin must have reached an agreement to restore the devolved institutions.
However, the passing of successive deadlines without consequence revealed the threat to be empty. Whitehall, preoccupied with Brexit, has neither the appetite nor the capacity for direct rule. Eventually, the deadline-setting tactic, no longer credible, was quietly abandoned. The devolved institutions now exist in a state of suspended animation, and a three-way stalemate between the DUP, Sinn Féin and the UK government has become the new normal in Northern Ireland politics.
Things do not fall apart. The centre holds.
Devolution complicates any constitutional picture; malfunctioning devolution even more so. However, pared down to its simplest terms, the current situation in Northern Ireland comprises three main elements.
First, on all matters which were never devolved, the Westminster Parliament continues to legislate, and public authorities with a national remit exercise their UK-wide functions as before. Second, since the Assembly in Stormont is not sitting, statute law is no longer being made for the wide range of matters that were devolved to Northern Ireland. Third, the Northern Ireland departments, acting within their devolved competence, continue to exercise their functions and carry on the business of public administration largely as they used to; but since no ministerial appointments have been made they are not subject to political control, and in the absence of Stormont there is no democratic scrutiny of the type that Assembly Committees would usually provide.
The lack of a functioning legislature is the most visible symbol of the current impasse, but by no means the most important. In the long run it is unsustainable, but in the short term tolerable. In any country, many new laws are unnecessary, some even detrimental. For law-making to be limited to small exercises in secondary legislation under existing statutes amounts to a form of legal homeopathy – it can hardly do much good, but ought at least to make things no worse.
Moreover, devolution does not diminish the legislative competence of the UK Parliament, and where necessary Westminster can (if reluctantly) step in to fill the gap left by the absence of Stormont. It has done this on five occasions so far, principally for financial purposes. In particular – by means of two finance bills, the Northern Ireland Budget Act 2017 and Northern Ireland Budget (Anticipation and Adjustments) Act 2018 – it has provided the Northern Ireland departments with the c.£16 billion they need annually to keep things running.
The bigger problem, however, which is at once more subtle and more significant, relates to the internal governance of the departments. Northern Ireland has a civil service that is both capable and experienced; in practice more than able to carry on the day-to-day business of public administration without constant ministerial oversight. And senior civil servants, finding themselves by default in charge of their departments, have exercised the restraint one would expect, refraining from policy initiatives for which they lack the required political cover.
The difficulty was always likely to arise in the liminal space existing beyond the limits of plain ‘administration’ but falling short of the forbidden territory of policy innovation – in other words, in relation to actions that are part of the ordinary business of government and cannot be delayed forever, but that are significant and unavoidably controversial. This was the arena for the judicial review in Buick.
The Buick Case
Arc21 is a waste management group of six councils in the east of Northern Ireland. Over several years it has developed proposals for a major waste treatment facility, including an energy from waste plant, in County Antrim.
The facility, if built, will plug a significant infrastructure gap in Northern Ireland (where a high proportion of waste is currently diverted to landfill), add significant electricity generation capacity, and contribute towards the UK’s compliance with EU environmental legislation.
A planning application was made in March 2014. The Northern Ireland Planning Appeals Commission (PAC), following a public hearing, recommended its approval in March 2017. The final decision on the application fell, under statute, to be made by the Department for Infrastructure.
Like most major infrastructure projects, the facility has its opponents – notably a lobby group known as ‘No Arc21’, chaired by Colin Buick. Ordinarily, a controversial planning decision of this significance would be taken by the relevant minister. However, as time passed and no minister was appointed, and with no likely future appointment in sight, the senior civil servant in the Department came to the conclusion that it was not in the public interest to continue to delay. Having the benefit of the PAC recommendation, he decided, on behalf of the Department, to grant planning permission in September 2017.
The judicial review brought by Mr Buick relied on the argument that this decision could not be taken by a civil servant in a department without a minister.
The Judgment
The case came before Mrs Justice Keegan, whose judgment largely turned on the effect of the following provisions of Article 4 of the Departments (Northern Ireland) Order 1999 (the Order) –
(1) The functions of a department shall at all times be exercised subject to the direction and control of the Minister…
(3) Subject to the provisions of this Order, any functions of a department may be exercised by –
(a) the Minister;
(b) a senior officer of the Department.
In the judge’s view, Article 4(1) has an ‘ordinary and natural meaning‘ which is ‘clear‘ [42] – namely that, since a department must be subject to ministerial direction and control at all times, it follows that a department can exercise its functions only if there is a minister in situ at all times. This, she considered, is both consistent with the Belfast Agreement (which established the devolution settlement) and the Northern Ireland Act 1998 which embodies it – each of which envisage that ministers will be in charge of departments [39]. It is also required to ensure ‘democratic accountability‘ [41].
In consequence she held that the decision was unlawful because, being inconsistent with the Order, it was ultra vires [48].
Buick – A Critique
With great respect to Keegan J, for whom this must have been an unenviable decision, her reasoning was flawed, as the Northern Ireland Court of Appeal (or indeed the UK Supreme Court if it comes to that) will surely conclude in due course.
The Implications
The starting point is to follow the logic of the judgment to its ultimate conclusion, which the judge notably did not. Buick was of course concerned with one particularly sensitive decision. But nothing in the judge’s interpretation of the Order restricts her conclusions to such cases. Article 4 does not distinguish between categories of departmental decision-making; it is concerned with the departments as bodies corporate, and therefore with their decisions as a whole. As creatures of statute, there is nothing the departments do that is not encompassed by the language of ‘functions‘ in Article 4(1), and therefore nothing they do that falls outside the scope of that provision.
Consequently, if Article 4(1) has the meaning that the judge ascribes to it – if she is correct on that basic point of statutory interpretation – then her reasoning must apply to every exercise of every function by every Northern Ireland department.
If, on this basis, Article 4(1) has the effect that there must at all times be a minister in situ for each department, it follows that no function exercised by any department during the last year, nor any function that may be exercised in the future until power sharing has been restored, either was or will be lawful. All government in Northern Ireland, so far as it is carried on by the ten ministerial departments – in other words almost the whole of government within the devolved sphere – is unlawful and should cease.
Anarchy in the UK indeed!
These implications ought perhaps to have given the judge pause.
The Comparison
A comparison may be instructive. What would happen if a Whitehall department found itself in the equivalent situation of having no ministers, for instance during prolonged coalition negotiations in a hung Parliament?
Unlike Northern Ireland departments, which the Order establishes as bodies corporate (Article 5(1)), departments of UK central government are merely aggregations of civil servants without a distinct legal status. And unlike Northern Ireland statutes, in which functions are typically afforded to a department rather than to its minister, functions in UK-wide legislation are almost always given to the Secretary of State.
To ensure that this situation is manageable in the real world, where senior ministers do not exercise most functions personally, the courts recognise that civil servants are able, with appropriate authorisation, to exercise the functions of the Secretary of State on his or her behalf (the Carltona doctrine).
Moreover, the Secretary of State for each department is usually (by virtue of secondary legislation under section 2(1) of the Ministers of the Crown Act 1975) a corporation sole. This means, in simple terms, that the office exists independently of any individual office holder. A civil servant authorised by a previous incumbent may therefore exercise the functions of the Secretary of State notwithstanding that there is a current vacancy in the office. (Section 3 of the 1975 Act supports this point, if statutory support were needed.)
In the circumstances of a vacancy, any prior authorisation should of course be used with restraint. But restraint is a principle of propriety, not a rule of law. There is no legal impediment to UK public administration continuing on this basis, if need be, for some time.
It would be surprising if the position of civil servants in a Northern Ireland department, which is constituted as a body corporate and has functions in its own right, was worse than that of their Whitehall counterparts whose departments lack such legal advantages.
Again, these considerations might have given the judge pause.
The Critique
The judgment in Buick goes wrong for three main reasons.
First, the judge placed considerable weight on the fact that ‘Article 4(1) is expressed in mandatory terms by inclusion of the word shall’, a point she emphasised twice [27, 42] and plainly regarded as significant. However, treating this use of ‘shall’ as the language of obligation appears to have led her to make a category error, interpreting the Article as mandating a state of affairs that, in fact, it merely assumes.
Article 4 is concerned with the internal governance of a Northern Ireland department. It provides that departmental functions may be exercised by either the minister or a senior civil servant (Article 4(3)). Consequently, it also needs to determine an order of seniority and precedence between them. Unremarkably, it resolves this in favour of the minister (Article 4(1)).
The purpose of Article 4(1) is therefore to establish the hierarchy within a department. Its ‘shall’ is declaratory of the relationship of authority between an elected minister and his/her unelected officials. For these purposes, the Article simply assumes that a minister has been appointed – hence ‘the Minister‘ not ‘a minister’ (where ‘Minister‘ is a defined term meaning, in the case of each department, ‘the minister in charge of that department‘ – Article 2(2)).
The only rule that can be extracted from this is how a ministerial department is to work once a minister has been appointed. What cannot be derived from it is any requirement that there must be a minister appointed at all times, or that the exercise of departmental functions is prohibited whenever there is a vacancy in the ministerial office. (Indeed, since even in normal times it may take up to 108 days to appoint ministers post-election – section 1 of the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017 – this would be a remarkably troublesome principle.)
The judge questioned why Article 4(1) would exist at all if not to require that a minister must be in situ: ‘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’ [39]. However, if she considered and dismissed the purpose and role of Article 4(1) outlined above, there is no evidence of it in the judgment.
Second, the judge posited the principle of democratic accountability as a key element in the intention of Parliament when approving the Order – ‘I do not consider that Parliament can have intended that such decision making would continue in Northern Ireland in the absence of Ministers without the protection of democratic accountability‘ [42].
At one level this is an understandable conclusion. Parliament certainly anticipated that the ten departments would operate within a framework of oversight and control by elected politicians. On the other hand, it misses the point. For the purposes of the Buick case, the question is not whether Parliament would have preferred the departments to be democratically accountable (unarguably it would), but whether, if such accountability was temporarily unavailable, it would have intended that public administration should be carried on by civil servants, or that there should be no public administration at all. Neither option may be perfect, but they are the only options available. That Parliament would favour the former seems rather more probable than the alternative.
Third, the judge found support for her position in what happened on the last occasion when devolved government in Northern Ireland failed and direct rule from London was restored. Under the (now repealed) Northern Ireland Act 2000, the role of ministers in Northern Ireland departments was taken by the Secretary of State. This, she considered, ‘supports the argument made by the Applicant that departmental exercise of power must always be subject to direction and control whether by a Minister in the case of devolved institutions or the Secretary of State in the case of direct rule‘ [37].
Does it? Aside from the obvious point that legislation which is long since repealed can hardly continue to speak to the current situation, the logical inference to be drawn from the Northern Ireland Act 2000 is surely the opposite of the one the judge supposed. If Parliament insisted on the notion that departmental functions must always be subject to political control, it had the ability to legislate to that effect, as it did before. The absence of such intervention suggests that it does not always hold to this view.
Indeed one can go further. Parliament has now passed two finance bills by which it has ensured that substantial sums of money are available to fund the continuing activity of the Northern Ireland departments. It was fully aware when it did so that no ministers were in post, but attached no strings to the cash (cf. section 1(5) of the Northern Ireland (Regional Rates and Energy) Act 2018, which offers an example of such conditionality).
In passing the two finance bills, Parliament must have understood and anticipated that the resources made available would be spent by departments which were, of necessity, under the direction and control of civil servants. By passing that legislation, it must have understood and intended that it was facilitating just such an outcome. If Parliamentary intention matters, it is as well to start with what Parliament intends now; not what it did intend in a former statute which has become a legal nullity.
For all of these reasons, the conclusions of the court in Buick are difficult to support.
Conclusion
The television comedy Yes Minister once toyed playfully with the mildly subversive idea that civil servants, rather than elected politicians, actually run the country. The case of Buick considers whether, as a matter of law, they can really do so.
In the specific context of Northern Ireland, its answer is that they cannot.
However, the logic of the judgment was not followed through by the judge. Put starkly, it is that if a genuinely democratic government is impossible, there must be no government at all. This is a notion that might have been unsurprising in the mouth of Pierre-Joseph Proudhon or Mikhail Bakunin – high priests of Nineteenth Century anarchism – but is a little startling when coming from the High Court of Northern Ireland and imputed to the UK Parliament.
Ultimately, no-one will want to live with this outcome. For all of the reasons given above, as a matter of law, it is unlikely that they will have to do so.
Public Law & Regulation 