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Blog: A lucky escape for Northern Ireland


With the late October withdrawal of the Planning Bill by the minister Mark H. Durkan, Northern Ireland has had a lucky escape. 

The Bill, which had passed through four of its six stages in the Assembly, became controversial when in June the Assembly passed a DUP and Sinn Fein amendment restricting judicial review of planning decisions. It would have made challenges to planning decisions possible only on the grounds of breach of European Union or human rights law. A planning decision taken in breach of any other law would have stood.
If the Bill had been passed, it would have meant that laws of fairness, requiring notice and consultation, requiring the decision maker not to take into account irrelevant matters and to take into account everything which is relevant, would have been 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 were hoping they had encapsulated all of them in their amendment.
It would have neutered the rest of planning law. It is similar to the ouster provisions we saw in the last century. They culminated in the 1968 House of Lords judgment in Anisminic v. Foreign Compensation Commission where a challenge was allowed despite an ouster clause saying that no decision of the FCC should be called into question in any court of law.

"If passed, the Bill would have removed the right to hold the NI government to account for planning matters"

Their Lordships held that a decision not taken in accordance with the legal requirements was not a decision at all; it was void. But why now create a problem and then have to rely on the Anisminic approach?
The Bill was criticised by the Northern Ireland Human Rights Commission and the Northern Ireland government itself had obtained legal opinion from David Elvin QC to the effect, I understand, that the Bill would have made the planning system in Northern Ireland unlawful: the Alconbury litigation held that the availability of judicial review to challenge the government’s planning decisions was what ensured that the planning system complied with Article 6 of the European Convention on Human Rights, the right to a fair trial when rights are determined.  
The law – and the practice of the liberties it protects – can be messy. But it protects us from greater chaos and tyranny, and it applies to everyone. As the great Lord Denning used to say:  “Be you ever so high, the law is above you”.  
And as the minister said: “Although the executive and, indeed, any minister responsible for planning, might not always welcome [judicial review] challenges, it is fair to say that such a process is a fundamental right of citizens.”  The Rule of Law is vital.
David Brock is an author, lecturer, speaker and retired planning solicitor, blogging here  


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