The Legacy of Buick: Northern Ireland's Chaotic Constitutional Crucible

The Buick litigation in 2018 has rightly been described as a “landmark” case in relation to devolved governance in Northern Ireland.¹ In seeking to end legal uncertainty as to the proper scope of civil service decision-making in the absence of a functioning executive, the combined result of the High Court and Court of Appeal judgments was to plunge the governance of Northern Ireland into paralysis. Westminster has responded with a controversial and unparalleled statute which, by enabling civil servants in Northern Ireland to take certain decisions in the absence of Ministers, has purportedly wiped clean the last vestiges of constitutional orthodoxy. It is therefore useful to examine the legacy of Buick for the lessons that it holds for lawyers, administrators and judges still trying to find their feet in this brave new world.

The present Northern Ireland constitution shares many similarities with equivalent arrangements in Scotland and Wales: a devolution model based on the distinction between reserved and transferred powers, a democratically elected (though non-sovereign) legislature with limited legislative competence and a government made accountable to the legislature. It is in the last of these similarities however, that Northern Ireland's constitution is unique.

In Scotland and Wales, only the First Ministers of each enjoy statutory creation and prescription,² with the respective enabling statutes leaving it to the wisdom of the First Ministers to induct as many Ministers into the Scottish and Welsh governments as required.³ Consequently, there is neither statutory creation nor statutory prescription of “ministries”, which largely is a reflection of the model employed at Whitehall, wherein the Prime Minister enjoys the flexibility of the royal prerogative in creating, merging and disposing of ministries as required.

By contrast, in the Northern Ireland Act 1998 (“1998 Act”) the appointment of Ministers is statutorily prescribed,⁴ as is the existence of departments,⁵ which constitute the highest rung of the civil service. This bi-level Executive structure has a long antecedence, going back to the birth of Northern Ireland itself. Originally, the Northern Ireland Executive consisted in Ministers who were the chief administrators of statutorily created departments, and while required to be members of the erstwhile bicameral Stormont Parliament, they were appointed by the Lord Lieutenant of Ireland and held office at his pleasure.⁶ With the emergence of the Irish Free State, the executive powers of the Lord Lieutenant were transferred to the newly created Governor of Northern Ireland,⁷ with the consequence that this executive continued to govern Northern Ireland without needing parliamentary confidence until its suspension in 1972⁸ and abolition in 1973.⁹ Against this history of non-responsible government, the current arrangements marked a radical departure. Northern Ireland Ministers are individually responsible to the Northern Ireland Assembly,¹⁰ with no provision for collective executive responsibility to the legislature. Moreover, the creation and dissolution of Ministerial offices¹¹ and departments¹² is a legislative rather than executive function. Finally, departments are required to exercise their functions “at all times…subject to the direction and control of the Minister”.¹³

Northern Ireland's present constitution fulfils an important function in the troubled history of the jurisdiction: in order to prevent any one community from achieving hegemony, by excluding other communities through the dissolution of departments at will, it is left to the wisdom of a legislature in which one-third of the membership can force a cross-community vote¹⁴ on any single issue, whether quotidian or constitutional.

However, amid the vast detail of the present constitution, no provision delimits the boundary between Ministerial and departmental functions, only recognising that executive authority may be exercised by either in accordance with the relevant statutory provisions.¹⁵ This lack of clarity was the cause of the consternation which came to define Buick.

The facts central to the Buick litigation can be summarised relatively briefly as set out in detail in the judgment of Mrs Justice Keegan.¹⁶ A planning application for an incinerator at Mallusk, Northern Ireland was submitted to the then Department of the Environment (“DoE”) in 2014. The plan for the incinerator directly engaged waste management policies pursuant to the European Union's updated Waste Management Directive,¹⁷ and thus compliance with European Union law. Notified for refusal by the then DoE Minister...