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Northern Ireland Planning Bill neuters law

StormontI have just today seen that the Planning Bill currently in the Northern Ireland Assembly contains a clause which restricts JR of planning decisions. If passed into law, challenges will only be possible on the ground of breach of European Union Law or human rights law.  So a planning decision taken in breach of any other law will apparently stand.  This is astonishing and it is surprising that it has received so little publicity.  It means that notice and consultation requirements, the rules for a fair hearing, rules against bias, rules requiring the decision maker not to take into account irrelevant matters and to take into account everything which is relevant, will be unenforceable.  Of course some of those may overlap with human rights and some aspects of European Union law, but I rather doubt that the proponents are hoping they have encapsulated all of them in the new limited grounds of challenge.

If this clause passes into law, it will remove the right to hold Government to account for planning matters in Northern Ireland, except on human rights and EU grounds.  It threatens to neuter planning law.  This is similar to the ouster provisions we saw in the post-war period and which were subject to critical court judgments. They culminated in the historic 1968 judgment of the House of Lords in Anisminic v. Foreign Compensation Commission[1] where their Lordships allowed a challenge despite an ouster clause which said that no decision of the FCC should be called into question in any court of law.  They did this by the simple expedient of declaring that a decision which had not been taken in accordance with the legal requirements was not a decision at all; it was void.  But it would be unfortunate to have to rely on the Anisminic approach, especially as the clause does allow for limited challenge. Better to remove it during the legislative process and for Government to accept that it must comply with the law.

I see that the relevant clause is in fact an amendment tabled by the DUP and Sinn Fein (and so wonder if I should tread carefully in voicing this criticism) (see this BBC report) and has been criticised not only by Friends of the Earth (here) but also on 26th September by the weighty Northern Ireland Human Rights Commission in a formal letter to the Northern Ireland Minister for the Environment (here).

The Bill has completed four of its six stages before Royal Assent so swift action is needed to reverse this part of it.

[1] [1969] 2 AC 147

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