NI: High Court finds Minister for Environment acted ultra vires in adopting Belfast Plan
The High Court has found that the Minister for the Environment acted ultra vires under the Northern Ireland Act 1998 and Ministerial Code, following his unilateral adoption of the Belfast Metropolitan Area Plan, without Executive agreement.
The Minister for Enterprise, Trade and Investment had challenged a decision of the Minister for the Environment made on 3 September 2014 whereby he authorised and directed his Department to adopt the Belfast Metropolitan Area Plan.
The Trade Minister contended that the Environment Minister had no authority to make his purported decision without the matter having been agreed by the Executive Committee by virtue of the provisions of s20(3) and (4) of the Northern Ireland Act 1998 (as amended) (“the 1998 Act”), read in conjunction with relevant provisions of the Ministerial Code.
Following an announcement in 2011 that the Department for the Environment intended to include as part of the BMAP retail strategy, a restriction on the expansion of Sprucefield Regional Shopping Centre as being for bulky goods only, it was determined by the First Minister and Deputy First Minister that the strategy was a significant and controversial matter which should be considered by the Executive.
However, notwithstanding the absence of Executive agreement, the Environment Minister, in August 2014, indicated to officials that he wished to proceed with the adoption of BMAP and he “instructed officials to seek legal advice on the adoption of the Plan and in particular upon his Ministerial authority to proceed in this way, having previously requested the agreement of Executive colleagues”.
On 4 September 2014 the Environment Minister provided his Paper informing the Executive, retrospectively, that he had authorised and directed his Department to adopt BMAP and on 8 September 2014 he made a statement to the Assembly regarding the adoption of BMAP.
The Minister for Trade announced her intention to take legal action.
The applicant submitted that the respondent had acted ultra vires, under section 20(3) of the Northern Ireland Act, which required decisions that cut across the responsibilities of other Ministers to be made with the agreement of the Executive, and 20(4), which required decisions which were significant and/or controversial to be made with the agreement of the Executive.
The respondent was also ultra vires his powers under paragraphs 2.4(i), (v) and (vi) of the Ministerial Code, as the decision was a matter cutting across the responsibilities of two or more Ministers; and/or was a matter which is significant and/or controversial; and/or was a matter which had been determined by the First Minister and deputy First Minister acting jointly to be a matter which should be considered by the Executive.
It was argued that the decision of the respondent was therefore contrary to s28A(1) of the Northern Ireland Act, meaning it was made without Ministerial authority under s28A(10).
This was opposed by the respondent on a number of grounds.
The High Court turned to the Northern Ireland (St Andrews Agreement) Act 2006, which aimed to avoid the mischief of “one Minister making a unilateral decision which affected another Minister, or to which another Minister objected, or which was properly a matter to be decided by the Executive as a whole, without there being any obligation on the first Minister to bring the matter to the Executive to be discussed and agreed upon there.”
This had led to changes being made to the Northern Ireland Act, meaning that the Executive would be the forum for agreement on ‘cross-cutting’ issues that concerned multiple Ministers, and or agreement on significant or controversial matters (even if they were not cross-cutting).
The Court found that “It is clear that the new s28A was designed, through the mechanism of the Ministerial Code, to impose an obligation on Ministers to bring cross-cutting issues and significant or controversial matters to the Executive for agreement; and to deprive them of Ministerial authority to act in the event of a failure to do so.”
The Code made similar provision for discussion and agreement by the Executive on any issue “which is significant and controversial and (a) clearly outside the agreed Programme for Government or (b) which the First and Deputy First Minister agree should be brought to the Executive”.
Treacy J therefore determined that “In my view it plainly follows from the above provisions that a Minister has no power to take a decision in violation of the Ministerial Code relating to the obligation to bring to the attention of the Executive committee any matter that requires to be considered by it for discussion and agreement by reason of being cross-cutting, significant or controversial.”
“In the present case, the Minister, having failed to achieve any agreement at the Executive Sub-group, acted unilaterally and unlawfully by authorising and directing the Department to adopt the BMAP without informing the Executive until after the event and despite objections having been raised by other Ministers.”
In support of his finding, he cited Re Solinas NIQB 43, which made clear that “when a matter was required to be brought to the Executive Committee for consideration but the Minister did not do so and instead made his or her own decision “the combined effect of the provisions of section 28A(5) and 28A(10) would mean that in those circumstances the Minister would have no Ministerial authority to take any decision in respect of the issue”.
He also cited Re Central Craigavon Limited NIQB 73, which found a draft planning policy to cut across the responsibility of more than one minister, and which he held had resonance with the current case, where “’wider context’ of BMAP, a policy dealing with economic and social activity throughout a large part of Northern Ireland, engages the responsibility of various Ministers.”
In light of these findings, the Court concluded that the respondent had acted ultra vires his powers, and the parties were invited to be heard as to the appropriate relief.