Incinerator judicial review appeal is a useful test case
The judicial review of the decision to declare that the planning approval of the waste disposal incinerator at Mallusk was unlawful has been appealed by the Department for Infrastructure. The appeal will be heard by senior judges under an expedited procedure this week.
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The Appeal Court judges will approach the appeal with the apparently straightforward task to determine whether, on the basis of legal rights, the original judgment should be upheld or reversed or modified. Although there is a need for legal clarity, external observers are understandably interested in the wider implications of this appeal.
The judicial review has become a proxy in a debate about administrative and policy making decisions in the absence of a functioning regional government.
There are no locally appointed Executive ministers to take ministerial decisions and the UK Government has not exercised authority which it could take to make local decisions.
The UK Government has, by default, taken no action on decisions for Northern Ireland in the absence of locally appointed ministers.
Although the legal process, now under way, will examine a well-defined series of questions, in parallel to this legal process there is a wider separate question of how Northern Ireland should desirably and efficiently be governed.
There is a temptation to hope that the legal outcome will help to solve the immediate decision making hiatus.
Since there are no local ministers and there is a reluctance to introduce direct rule, it would be useful if the reconsideration of the judicial review pointed to a rationale that opened the way to justifying more local decision making by the senior officials in the public sector.
That outcome would ease the consequences of a possible paralysis because of an inability to make important urgent decisions.
The expectation of an easier pathway for local decision-making in the absence of ministers is a short-term answer which would leave longer term concerns.
Somewhat perversely, the more that public sector decisions can be facilitated, enhancing the role of senior officials, then there will be less pressure to bring the political parties into a power-sharing arrangement.
The present political impasse is damaging the efforts to improve the economy, allowing a form of political debate where possible compromises gain little effective support and inadequately challenges political parties to debate issues on a reaching out basis.
The logic of these conclusions is that the appeal judgment would be more helpful if it favoured the endorsement of the original judicial review that the waste incinerator decision was unlawful.
That conclusion seems too simple. The reconsideration of the judicial review also needs to take account of a too rigid interpretation of what decisions might be made by senior civil servants in Northern Ireland.
The appeal will understandably ask how the line should be drawn between decisions to implement agreed policies and decisions where there is a significant policy change or gap that calls for a significant discretionary decision.
The application of development planning conclusions is definitely a useful test case.
If the full planning appeal has been heard, does that give a presumption that a minister could be expected to endorse the outcome since the planning appeal has been professionally determined?
Alternatively, if a minister has agreed to a referral to a planning appeal, might that agreement imply an acceptance of the outcome?
Party politicians may be expected to argue that ministerial discretion should be able to override the convenience of endorsing final professional decisions.
If a minister overrides the conclusions of a planning appeal - or any other similar process - then that override should possibly then be subject to a further judicial review!
The appeal about the unlawful purported decision on the incinerator is testing some critical procedures.
Is a legal review an appropriate way to get an important policy decision?