Northern Ireland’s political parties have failed to reach an agreement that would allow a new power-sharing Executive to be formed by today’s deadline. This will have important legal and political consequences, possibly including the re-introduction of ‘direct rule’ from Westminster. These issues are looked at here by Alan Whysall.

Political negotiations have been going on since the election of 2 March, which was brought about by the decision in January of Martin McGuinness of Sinn Féin (who has since died) to resign as deputy First Minister. Yesterday, however, Sinn Féin said that the talks process had ‘run its course‘, and they would not be making nominations to Executive offices today. They did not say where the political process might go from here, but professed commitment to the devolved institutions returning.

Sinn Féin have significant grievances that they say must be resolved before a new Executive is formed. They have an effective veto on that happening since, as the largest nationalist party, they must nominate the deputy First Minister. Among their demands has been that the leader of the DUP, Arlene Foster, should not become First Minister until the report of an inquiry into the Renewable Heat Incentive affair that was the ostensible trigger for the election, potentially a year away. That condition would be very hard for the DUP to meet. Latterly, though, they have given precedence to their demands of the British government in relation to what they assert are ‘existing commitments’ as to ‘rights’ of various sorts.

Some may question whether Sinn Féin want to be in devolved government at all at the moment. There is a range of grievances that their base genuinely feel. But in large measure, this may be on account of Brexit. Brexit is the first development since 1998 with a significant effect on the operation of the Good Friday Agreement which was not agreed by both sides of the community in Northern Ireland. It would be extremely uncomfortable for Sinn Féin to be in government, carrying out British rule in Ireland, as hard-line Republicans would put it, while Brexit was being implemented, potentially including barriers of whatever sort (and anything will be an irritant politically) being introduced at the land border within the island.

Northern Ireland views on Brexit appear to have had no impact on the approach in London. A political stand-off against the British government might gain more traction. It may also play well for Sinn Féin politically north and south of the border. But renouncing a role in government in Northern Ireland in favour of British ministers, for an uncertain but perhaps protracted period, is not attractive for them either.

At all events, by today, the main parties in the Assembly elected on 2 March ought by law to have nominated a First and deputy First Minister. They are also scheduled to fill the other ministerial posts in the Executive, and the Assembly Speakership. The Assembly was due to meet at 12 noon for the purpose, and the legal shutters are deemed to come down at 4pm. If the parties do not appoint the FM and DFM by that time their powers disappear and the Secretary of State comes under an obligation to set a date for another Assembly election. There is legal authority that he does not have to do so immediately however, and there is speculation that he might hold off for a while, seeking to reinstate negotiations. He appears likely to make a statement in the Commons tomorrow.

Like his predecessors in similar situations, the Secretary of State has been playing up the prospect of a further election as a threat. In fact that might rather appeal to both of the two big parties, who might hope to pick up seats from smaller ones. But there is no sign that an election would do anything to facilitate political agreement. The arithmetic would not change radically. The campaign would probably intensify the reversion of the political debate in Northern Ireland to the old unionist-nationalist, them and us, stand-off, and away from the era of working together which Martin McGuinness personified.

If there are no Executive appointments, and no elections, some Westminster primary legislation will be needed after today. That might be to permit the selection of an FM and DFM, if there is a late breakthrough; or give more time for negotiation if the prospects radically change. And in those contexts there might be powers to fix aspects of Executive business in the short term, since there are no ministers at present, nor any budget for the new financial year.

The anatomy of direct rule

Failing that a Westminster Bill would have to provide for direct rule. There are no powers for this at present: the old ones in the Northern Ireland Act 2000 were repealed in 2006. Sinn Féin say that direct rule would be unacceptable as well. Neither the British nor Irish governments will in the least welcome it. But since otherwise there would be no governing structures in Northern Ireland at all, it is hard to see how it could be avoided, if there is no political agreement.

There is probably not much scope for variance from the broad model of the former Act (itself closely reflecting provisions of 1974 under which Northern Ireland was governed for several decades).

• The Assembly would be suspended, hence unable to meet, with no appointments made from it to Executive positions. But on this model it would not be immediately dissolved, and the Secretary of State would be empowered to restore devolved government. Dissolving it would suggest all hope of early return to devolution had gone. The Assembly suspended in 2002 remained in that state until elections were held late in 2003, to an Assembly that itself remained suspended for several more years. Members have been recognised in the past to have a continuing role of representing constituents during suspension.
• Conceivably some functions could be conferred on the Assembly, by way of oversight or consultation. But this might not be appealing to the government – power without responsibility – nor probably to nationalist parties. The Assembly elected in 2003 was eventually brought a little way out of its induced coma in 2006, with functions of preparing for resumed devolved government.
• Difficult questions arise about remuneration of and facilities for those elected to the Assembly. If the hope is to restore devolved politics, then losing the political class, especially those elements ablest to find employment elsewhere, is to be avoided. But paying them not to do their jobs is also unpopular. Salaries were reduced after direct rule in 2002, but never stopped entirely.
• In place of Assembly legislation, the Government is given power by Order to legislate for Northern Ireland, the Orders being subject to affirmative resolution, but not amendment, in each chamber of parliament. There was a long-standing non-statutory practice of consultation on drafts of such instruments (even before that became fashionable at Westminster).
• Meanwhile, all executive powers pass under the control and direction of the Secretary of State, assisted in practice by a number of junior ministers (though the existing, legally established, Northern Ireland departmental structure remains). They would be subject to scrutiny at Westminster, in particular by the Northern Ireland Affairs Committee, whose remit would expand with the Secretary of State’s.
• The North-South Ministerial Council established by the Good Friday Agreement, which brings together ministers in the Executive and the Irish government in a variety of formats, would necessarily cease to meet, in the absence of one half of its membership.
• A serious question arises with the Policing Board, which is constituted partly by members of the Assembly, selected by the same proportional process as is used to fill ministerial offices. Logic would suggest excluding them. But cross community acceptance of policing, of which the Board is the embodiment, is one of the great triumphs of the last 20 years. Some means of maintaining political representation on the Board may therefore be desirable.

The role of Dublin

Some nationalists have demanded a regime of joint authority with the Irish government, as an alternative to direct rule. Politics and practicality make any provision cast in those terms very unlikely.

However, under the Strand Three provisions of the Good Friday Agreement, the Irish government have formal rights to put forward views and proposals on non-devolved Northern Ireland matters (which under direct rule means all of them), at meetings of the British Irish Intergovernmental Conference held for the purpose, and a requirement of determined efforts to resolve differences – though it is made clear there is no derogation from sovereignty. These provisions have been at times intensely controversial with unionists in Northern Ireland, though they have been little noticed or formally invoked in recent years.

Sinn Féin has been recalling joint commitments of the British and Irish governments in 2006, as they sought to induce the parties to resume devolved government that if they were no devolution there would be ‘new British Irish partnership arrangements to implement the [Good Friday] Agreement’, spoken of in media and political circles as ‘Plan B’, or ‘green-tinged direct rule’. The British government may say that the 2006 commitments are now neither relevant nor binding.

But potentially the Agreement provisions assume great political significance. The Irish government may come under heavy pressure in Dublin to become closely involved in Northern Ireland affairs. Its precarious position in the Dáil means politics there is volatile in any event. But developments of recent weeks – the renewed force of nationalism in the North, the improved standing that Sinn Féin has derived from it in polling in the south, the prospect of a Scottish independence referendum and the imminence and emerging character of Brexit – have significantly changed the approach to Northern Ireland affairs. Many in politics are once more talking about Irish unity, if only to avoid being outflanked by Sinn Féin. An early border poll is most unlikely – though the Secretary of State may order one at any time, he is only obliged to do so if there appears likely to be a majority for a united Ireland. But Northern Ireland is much more a live political issue in Dublin these days.

Meanwhile, Westminster’s understanding of the Irish role may have changed. A Downing Street statement this month, rebuffing suggestions (themselves quite possibly overblown) from the Taoiseach that he had reached agreement with the Prime Minister on the handling of Northern Ireland affairs, opened with the words ‘Political stability in Northern Ireland is the responsibility of the UK Government;. It is unlikely that British governments involved in the key stages of the peace process would have put matters in that way. They would have acknowledged that decisions were ultimately for them, but would also have been conscious that the two governments acting together had always been the motor of the process, and Irish involvement indispensable to its success. Irish governments have always been clear that they were, in their terminology, ‘co-guarantors’ of the Good Friday Agreement.

There must be a real prospect of serious discord between the British government and its chief partner in ensuring that Northern Ireland politics works, as well as one of its closest allies in the European Union. Neither government would remotely want this, but that may be the political dynamic.

Conclusion

And that dynamic might be fed as politics becomes still more fractured and divided in Northern Ireland, as must be very likely if direct rule is introduced. At that point, all obligations on the parties to work together, flawed as they might have been, are removed. Getting back to devolved government may then be a very arduous, protracted and uncertain business. It may not happen this side of a fresh Irish election; of final Brexit decisions being made; or even for some time after that. Meanwhile community tensions may rise, as traditionally they do in a political vacuum, possibly finding violent expression.

Some in Northern Ireland seem to see direct rule the advent of a new political serenity, an antidote to negative debate and administrative chaos. And the statutory provisions for direct rule may be pleasingly simple and coherent. But the outworkings, if it comes about, are unlikely to be remotely so.

About the author

Alan Whysall is a former senior civil servant who has worked on Northern Ireland for most of the last 35 years. In his retirement he has become an Honorary Senior Research Associate at the Constitution Unit, where he is undertaking further work on Northern Ireland.