Leaders in Legal Excellence Event

This week saw the first event in the Bar of Northern Ireland’s new Leaders in Legal Excellence discussion series. The panel debate, entitled “Stormont Stalemate: politicians, civil servants or the courts – who decides?”, considered the impact of the absence of an Executive on the legal and justice sector and the potential implications of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 which aims to enable civil servants to take certain decisions in the absence of Northern Ireland Ministers.

Bar of Northern Ireland Chair Sarah Ramsey opened proceedings by highlighting that the Bar’s Leaders in Legal Excellence discussion series will run during the 2018-2019 legal year, creating a conversation space for representatives of the legal and justice sectors & beyond to come together and explore ideas and opportunities on a range of topical policy issues. The Chair stated that Northern Ireland has been without a fully functioning devolved Assembly and Executive since January 2017; the lack of Ministerial direction for Government Departments has led to policy initiatives stalling across many sectors, including justice. Consequently, there are a raft of justice policy matters needing action, ranging from some of the recommendations contained in the Review of Civil and Family Justice and the creation of a domestic abuse offence to, more specifically, the personal injury discount rate and QC appointments.

The panel discussion featured Attorney General John Larkin QC, Department of Justice Permanent Secretary Peter May, DUP Justice Spokesperson Paul Frew MLA and public law specialist Karen Quinlivan QC.

The panel initially considered the powers of civil servants under the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 with Peter May confirming that they will not be able to progress any major policy decisions. However, if a matter is not considered major then it can be progressed under the public interest test contained within the legislation, alongside a number of public appointments. Civil servants will not be able to make primary legislation or secondary legislation by way of the affirmative resolution procedure or do anything explicitly in the name of a Minister. Ultimately only “modest decisions” can be taken with the reality being that transformation projects still cannot be taken forward without Ministerial approval. Karen Quinlivan QC countered this by highlighting that if civil servants decide not to take decisions because they are “controversial” then this can still be viewed as a political decision in itself.

Panelists also speculated about the constitutional implications of the 2018 Act. Karen Quinlivan QC pointed out that the generalities contained in the guidance accompanying it will undoubtedly open up the possibility for the judicial review of any decisions that the civil service potentially takes. Northern Ireland’s court system has already seen the case of JR80, involving the failure to implement a compensation scheme for victims of historical institutional abuse, in 2018. Indeed this is a matter on which there is a degree of consensus amongst the political parties given that an Executive would likely have taken action on the recommendations of Sir Anthony Hart. Karen also contended that this legislation was not necessitated by the Court of Appeal decision in the Buick case, relating to the Department of Infrastructure’s lack of power to grant planning permission for a major waste treatment centre and incinerator, and instead merely represents a “breakdown in democratic accountability and leadership” in both Northern Ireland and Westminster.

Attorney General for Northern Ireland John Larkin QC also spoke about the unusual character of the 2018 Act which is a “stop gap” for decision making in this jurisdiction. In response to questions from the audience on the capacity of the 2018 Act to extend the package of welfare reform mitigations, the Attorney General noted that this matter is not within the capacity of the legislation even if an overwhelming civic society consensus exists that these measures should continue. Paul Frew MLA also recognised that the new 2018 Act represents a “constitutional shift”, adding that the accompanying guidance is unclear as to who can say that a decision is in the “public interest” or what represents a “major” policy issue.

Finally, the panel also considered how to improve confidence in the justice system in the absence of political leadership. The Attorney General highlighted that active and engaged citizens are essential if we are to have a functioning democracy in NI; the linkages between universal credit, low incomes and access to justice were also highlighted as requiring attention by both the Attorney and Karen Quinlivan QC.

Permanent Secretary Peter May highlighted that tackling avoidable delay within the system remains a priority, alongside progressing a consultation paper on a stalking offence and considering the outworkings of the review into the law and procedure in serious sexual offences in the coming months. Meanwhile Paul Frew MLA reflected on the aspects of devolution that worked effectively during the previous Assembly mandate, particularly the structure of the Committee scrutiny system, and he spoke of his priorities around progressing problem solving courts and a review of public protection arrangements in NI.

Our next Leaders in Legal Excellence event will take place in April 2019 – keep an eye out for more information which will issue in the coming weeks!

Read The Bar of Northern Ireland: Leaders in Legal Excellence or download a copy. Contact media@barlibrary.com