Decision-making

9. In 2018, the case of Buick1, which concerned the approval of planning permission for a major waste disposal incinerator by the Department for Infrastructure, the Court of Appeal upheld the High Court’s judgment that powers exercisable by departments in the absence of Ministers are subject to limitations. In particular – and for the purposes of that appeal – it held that departments may not exercise functions in respect of matters that would normally be required to be referred to the Executive Committee of the Assembly because they are cross-cutting, significant or controversial. It also observed that Northern Ireland departments cannot take decisions that would normally, as a matter of convention or otherwise, go before a Northern Ireland Minister for approval.
10. The conclusions of Buick were considered again in the case of JR80 2 which considered whether the Secretary of State for Northern Ireland was legally obliged to establish a scheme of redress for victims of historical institutional abuse as recommended by the independent inquiry during the then ongoing collapse of the devolved institutions. The Court of Appeal confirmed the court’s findings in Buick as to the limitations on decisions that can be made by Northern Ireland departments in the absence of Ministers, subject to the effect of the primary legislation passed in response to that case.
11. The effect of Buick and JR80 meant that legislation was required to clarify that departments could continue to exercise functions in the absence of Ministers where it is in the public interest to do so. This was considered necessary so as to ensure the continued delivery of public services in Northern Ireland and to provide clarity and certainty about decision making while efforts are made to restore the Executive. NIEFA 2022 therefore clarified that a senior officer of a Northern Ireland department is not prevented from exercising functions of the department, where it is in the public interest to do so, during the period for Executive formation or 6 months from the day on which NIEFA 2022 was passed. Given these existing senior officer decision-making provisions expire on 5 June 2023, this Act therefore will provide for the continuation of these arrangements during the current period where there is no Executive and will continue to require the Secretary of State to publish guidance about the exercise of departments’ functions.