Central Craigavon Ltd, Re Judicial Review

Factual and Procedural Background

The opinion concerns the responsibilities of the First Minister and deputy First Minister, particularly regarding standards in public life, machinery of government, public appointments policy, EU issues, economic policy, human rights, and equality. The case involves the transfer of staff, files, and resources related to draft Planning Policy Statement 5 (PPS 5) from the Department of Regional Development (DRD) to another Department. Under Government Accounting Northern Ireland, no expenditure can be incurred without approval from the Department of Finance and Personnel.

The transfer of resources related to draft PPS 5 cut across the responsibilities of the two Ministers involved, creating an obligation to bring the matter before the Executive for consideration. Although there was some debate about whether a letter dated 12 December 2007 had achieved this, the Executive expressly approved the transfer at its meeting on 20 November 2008.

On 15 January 2008, the Department took on responsibility for draft PPS 5, although the transfer only concerned staff and materials since responsibility for planning policy matters always resided with that Department. The DRD had no authority to transfer responsibility itself.

The legal question arose whether the adoption of draft PPS 5 by the Department triggered an obligation under the Ministerial Code to refer the matter to the Executive for decision. Arguments were made regarding the significance and controversy of the decision, the requirement to adopt a common position in conformity with the Regional Development Strategy (RDS), and whether the policy issue was cross cutting across ministerial responsibilities.

Legal Issues Presented

1. Whether the adoption of draft PPS 5 by the Department constituted a significant or controversial decision requiring referral to the Executive under the Ministerial Code.
2. Whether the requirement for planning policy to conform with the Regional Development Strategy necessitated adoption of a common position by the Executive.
3. Whether the adoption of draft PPS 5 was a cross cutting issue that should have been brought to the Executive for approval.
4. Whether a breach of the Ministerial Code occurred and, if so, the appropriate remedy and effect on executive authority under section 28A(10) of the Northern Ireland Act 1998.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the transfer of staff and materials related to draft PPS 5 and the responsibilities of the Ministers involved, emphasizing that such transfers cut across ministerial responsibilities and should be brought to the Executive for approval. Although the letter of 12 December 2007 was debated, the Executive's explicit approval on 20 November 2008 resolved that issue.

The court analyzed whether the adoption of draft PPS 5 was a significant or controversial decision under the Ministerial Code. It found that the policy had been promulgated previously without controversy and that not every significant or controversial decision requires referral to the Executive. The court rejected the argument that the policy was clearly outside any agreed programme or that it was inherently controversial.

Regarding the requirement for a common position due to conformity with the RDS, the court determined that while the RDS constrained ministerial discretion, it did not mandate a common Executive position on the planning policy.

Importantly, the court accepted that the adoption of draft PPS 5 was a cross cutting issue, given references in the policy to social need and rural proofing, which involve multiple ministerial responsibilities. The joint work done between departments during preparation reinforced this view. Consequently, the decision to adopt the policy should have been brought to the Executive for approval.

On the question of breach, the court found the breach of the Ministerial Code to be inadvertent and technical, caused by a misunderstanding of departmental responsibilities and without objection from the Executive. The court interpreted "contravention" in section 28A(10) of the Northern Ireland Act 1998 as implying a conscious breach, which was absent here. Therefore, the Minister did not act without executive authority.

Given no evidence of dissent within the Executive, the court declared that the adoption of draft PPS 5 should have been brought to the Executive for approval as a cross cutting issue but declined to quash the adoption of the policy. It left any further action to the Minister and the Executive.

Holding and Implications

The court held that the adoption of draft PPS 5 was a cross cutting issue that should have been brought to the Executive for approval, constituting a technical breach of the Ministerial Code.

The breach was inadvertent and did not amount to a conscious contravention that would result in loss of executive authority under the Northern Ireland Act 1998. The adoption of the policy was not quashed, and the court left further remedial action to the Minister and the Executive. No new precedent was established; the decision primarily clarified the application of the Ministerial Code and executive authority in the context of cross cutting policy issues.