The Supreme Court has decided that legal uncertainties around the powers of Northern Ireland civil servants amid the Stormont impasse should be dealt with in a case before Belfast High Court.
A challenge against a proposed interconnector linking the electricity networks in Northern Ireland and the Irish Republic would provide a “clear factual matrix” for the issues to be aired, Supreme Court justices said.
The judgment comes after Northern Ireland’s Attorney General (AGNI) John Larkin referred a series of questions to the UK’s highest court seeking legal clarity on the ability of senior civil servants to make decisions usually taken by ministers.
Lord Kerr said: “In general, it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic issues of law.
“The opportunity for discussion and determination of the legal questions raised in the AGNI’s reference exists. Litigation concerning the validity of a proposed electricity interconnector between Northern Ireland and Ireland potentially raises most, if not all, of the issues adumbrated in the current reference.”
The High Court judicial review against a civil servant’s decision to proceed with the Northern Ireland sector of the cross-border interconnector has been stayed pending the outcome of the Supreme Court case.
Lord Kerr said that challenge should now proceed. The Supreme Court has now adjourned the reference brought by Mr Larkin until that interconnector case is heard.
“The stay on the proceedings in relation to the interconnector should be lifted,” he said.
“If necessary, the AGNI should apply to intervene in those proceedings in order to canvass the issues which arise on the current proposed reference. In the meantime, the present reference will stand adjourned.”
Lord Kerr, sitting with Supreme Court President Lady Hale and Deputy President Lord Reed, heard Mr Larkin’s arguments during a preliminary hearing in December. They all reached the same conclusion.
Stormont civil servants have been running government departments in Northern Ireland since the powersharing administration imploded two years ago.
But they have been working under a cloud of uncertainty over the extent of their decision making powers in the absence of elected ministers.
Last year, a decision to grant planning permission for a £240 million waste incinerator on the outskirts of Belfast was overturned by judges who ruled that the senior civil servant who gave the project the green light did not have the authority to do so.
Responding to the outcome of that case, Northern Ireland Secretary Karen Bradley introduced temporary measures to hand civil servants greater authority.
But with those powers set to expire this year, Attorney General John Larkin had referred a number of issues to the Supreme Court in a bid to secure legal certainty going forward. He did not launch a formal appeal against the incinerator judgment.
Campaigners against the construction of a new dual carriageway in Northern Ireland – the A5 – also participated in the Supreme Court preliminary hearing, as controversy over that project has focused on the extent of civil service decision making powers.