Devolution, Judicial Review and Constitutional Principle: Re No Gas Caverns Ltd, [2024] NICA 50

To open, a plug for the excellent new “Administrative Court Blog“, run by Anurag Deb, Lewis Graham and Gabriel Tan: this highlights important decisions from the UK on administrative law matters. I have found it invaluable and, indeed, only came across the case described in this post from Anurag Deb’s post.

Last year, I posted some critical comments on a decision dismissing an application for judicial review brought by the Scottish government against the UK government (see here). In the end, there was no appeal of the decision. However, more recently, the Northern Irish Court of Appeal has taken a different approach to judicial review in the devolution context, in Re No Gas Caverns Ltd, [2024] NICA 50.

The issue here related to licensing decisions about an enormous underground gas storage facility — yes, a gas cavern — in Northern Ireland. Governance and government in Northern Ireland are complicated, but for present purposes the salient point is that government ministers are appointed on a cross-community basis, some unionist, some republican and some unaligned. This flows from the Good Friday Agreement:

A central feature of the agreement as it related to Strand 1 issues (ie the functioning of the Executive) was the requirement that certain important decisions would have to be taken at Executive level rather than by being taken by any individual minister.  The purpose of this was to avoid a minister making a unilateral decision or undertaking a solo run on an issue of general importance.  This meant that the Executive Committee was to be the forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more ministers (at para. 16).

Here, a unionist minister had made the licensing decisions without referring them to the government as a whole. The question for the Court of Appeal was whether this was lawful.

Both the legislation and the soft-law ministerial code made clear that significant or controversial projects ought to be referred to the government as a whole. The applicants unsuccessfully argued that the courts should determine, on a correctness basis, whether any given project satisfied the legislative and soft-law definitions in relation to significance or controversy. For Keegan LCJ, context counted against correctness review:

That context is the exercise of ministerial power in relation to a permission for a marine licence, discharge consent and abstraction licence.  Notwithstanding Mr Fegan’s erudite submissions we do not think that the review of this ministerial power should be categorised a question of law or correctness review.  In our view, that is a step too far and detracts from the freedom that should be afforded within the usual good faith parameters for ministers to exercise their decision-making function.  Ministers should have the ability acting in good faith to determine whether matters are significant, or controversial matters within their portfolio (at para. 49).

Accordingly, a rationality standard applied. However — and here the contrast with the Scottish decision comes into view — “a higher intensity of review is required given the constitutional context” (at para. 50).

Applying this heightened standard, the minister’s decision was unreasonable, as it failed to disclose a rational basis for concluding that the project was not significant. The minister offered a “paucity” of reasons in support of the decision (at para. 59) but did not engage with two evidently important matters, the economic significance of the project and the significance of the project as a means of achieving climate change commitments. Both matters were before the minister, in submissions by the developer and submissions by interested members of the community. Yet the reasons were simply inadequate:

Without any further explanation by the Minister, his decision that a strategic project of significance for all citizens in Northern Ireland in terms of security of energy was not significant is problematic.  Without explanation from the Minister and a sparse explanation ex post facto by [affidavit], we consider that the decision not to refer to the Executive Committee is open to challenge (at para. 68).

The “lack of rationalisation” meant that the decision crossed the “threshold of irrationality” (at para. 71). The same applied to the minister’s inadequate analysis of the controversy of the project (at para. 78).

This is a useful corrective, in my view, to the Scottish decision holding that the constitutional context of devolution does not require an increased intensity of judicial review. Where sensitive constitutional arrangements are at issue, it makes perfect sense for courts to carefully scrutinize decision-making to ensure that the reasons for action are adequate. Were it not so, ministers could, by design or inadvertence, undo carefully calibrated cooperative schemes.

This content has been updated on November 1, 2024 at 03:07.