After Northern Ireland’s political parties missed the latest deadline for reaching an agreement to restore devolved government, the current Assembly crisis is now the longest for over a decade. In this post Brian Walker suggests a new approach that might help to break the deadlock.

Standing back, it’s easy enough to see why the latest Assembly crisis is the longest and most intractable for over a decade. Unusually in recent times and in sharp contrast to the heady days of the Good Friday Agreement (GFA), this breakdown is set against a background of momentous upheaval which, typically, the local politicians have rushed to exploit for their own causes. For the DUP, Brexit revives the prospect of a physical border which in whatever final form confirms the fact of the Union. For Sinn Féin the prospect of Northern Ireland remaining in the EU as part of a united Ireland opens up a new route to the elusive old destination. Both parties now enjoy uncertain leverage in the two parliaments of their allegiance where minority governments uncertainly rule.

If Sinn Féin’s narrative of a people’s surge of rebellion against DUP intransigence is not entirely convincing, it cannot be denied that events outside have given fresh impetus to the struggle for Northern Ireland’s constitutional future. Internally, the frustrations of power sharing by which the winning parties are always denied the fruits of clear victory might otherwise have been contained, had it not been for a remarkable coincidence of the green energy fiasco and the fatal illness of Martin McGuinness. For Sinn Féin the chance of exploring whether Assembly elections could become one more useful stage in an unending series of mini-referendums to create momentum for a border poll was too good to miss. In the short run the tactic has not delivered, but the contest may become all the keener with the impending emergence of a Catholic voting majority. All election victories look like becoming marginal from now on and the prospect of a well functioning Assembly all the more uncertain. Or so it appears at the moment. As recently as May last year it all looked rather different.

The shortcomings of the UK government

Faced with the collapse of the Assembly, the British government’s attitude  was curiously passive until almost the last minute, compared to the close engagement of earlier years when in a high pressure environment prime ministers presided, ears were constantly bent and many draft proposals circulated. Even after making due allowance for mediation fatigue, this looks like a fundamental error, though whether out of calculation or incompetence is unclear. It is not enough to claim – rightly – that the government have bigger things to worry about: they usually do. For under the guise of respecting devolution (interestingly also the reason given for denying Northern Irish women abortions on the NHS in England and now overthrown), a Conservative pattern of relative disengagement since 2010 has weakened the British government’s authority and exposed a loss of touch. Secretary of State James Brokenshire’s impartiality was compromised from the moment he complained about legal action against ex-soldiers in January. He appeared to care more about the Tory cause of shielding them from possible prosecution than his essential role as a minister.

As an organising principle for the talks, the split between devolved and non- devolved matters, with the former chaired by the apolitical figure of the head of the civil service, was a pointless distinction.  While insisting on the sovereign power’s prerogatives, Brokenshire exercised them very little. The present government’s line on Brexit already placed them on the opposite side from nationalists in Scotland and Northern Ireland whose ultimate aim is to dismantle ‘the precious, precious Union’ they are pledged to defend. Might that have been a reason for letting the locals get on with it? The Secretary of State’s role as the judge of a majority in favour of a border poll is  therefore unlikely to survive unchallenged.

How then to proceed from here?

If the professed desire of both parties to return to the Assembly is not fulfilled by the autumn, after the marching season, it  would be a further affront to democracy and the badly neglected public interest simply to freeze policy and passively administer as much as could be absorbed of £20 billion a year plus the DUP windfall.

Straightforward direct rule from Westminster in the Assembly’s absence seems to be ruled out as unacceptable all round. But there should be no obstacle to producing a realistic action plan, partly to put into effect, partly to put to the parties and direct to the public. The closed shop for squabbling politicians that everybody has taken for granted for 20 years has been a great bugbear. Light and the people should be let in.

Ideas are current for British ministers to present directly to the Assembly as a consultative and transitional body substantially their own long delayed programme for government and a budget. Their ability to resume office easily would be factored in.

The future has to be a joint British-Irish project. The British–Irish relationship will be more vital than ever for stability and steering through Brexit on opposite sides of that divide. But events require an end to the Conservative government’s laissez faire combined with jealous protection of the supposed prerogatives of the sovereign parliament. For the Irish, integrated involvement should quell their doubts about the legitimacy of qualified direct rule.

A new framework for consultation

For future negotiations a catalyst is needed to stimulate breakout. This can be achieved by a more structured open process, without pseudo-macho deadlines, under a strong facilitator as chair and with some sessions held in public. Civil society representatives should be called to put their heartfelt case for better than this. They would separately convene as the civic forum envisaged in the GFA and put their proposals to the Assembly in consultative mode. Forum members should be tasked with membership of the equivalent Brexit forum in the Republic to contribute to Brexit policy development. Councils should comprise another tier of involvement.

A new approach to content 

To refresh stale palates, the next stage of talks would benefit from inviting each party to make its own self critical appraisal. Before leaping in where they left off, discussions of first principle would be valuable on striking a balance between political choice and  ‘a rights based society’. The parties might reflect on the difference between issues of conscience like abortion and gay rights which might be regarded as absolutes, and cultural matters such as language rights which after legal protection is achieved may require implementation proportionately. Are Assembly procedures such as the blocking mechanism of petitions of concern by 30 out of the 90 members, and reflexive habits like ‘one for you, one for me’ across the divide, the best way of dealing with them? The mere assertion of rights by itself is unlikely to prevail. Northern Ireland today is enveloped in equality laws and procedures with watchdogs, and still disputes rage over identity recognition. This suggests that solutions are more likely to be found in careful and detailed negotiations leading to protocols on the ground than in seeking remedy in court. Avoiding problems or blocking them only makes them worse.  Politics at Stormont level, take note.

If any or most of the parties refused to attend – as the SDLP did for the period of the 1982 Assembly – sessions should forge ahead with the civic forum provided for in the GFA and in reduced form in the Fresh Start agreement of 2015.

Almost certainly civil society can provide answers to questions that have so far eluded the politicians, for instance relating to the possibility of an Irish Language Act:

• Why has there not been a more informed debate?
• Can a less politicised case at a cost of £20 million over five years be made?
• Is parity of esteem for the Ulster-Scots dialect justified other than as a political fix?
• Is this a case where nationalists who want something should have it without a direct trade-off?
• Can Sinn Féin offer guarantees that the language issue isn’t about feeding the crocodiles after all?
• In the end, can the parties pass this test case together?

Reconciling different positions is possible  

The plan should contain proposals for implementing the essentials of the programme for government and the budget with which the parties are entirely familiar: NHS reform, shared education, welfare with continuing mitigation, infrastructure development. They should begin to consider the regional consequentials of Brexit.

On the legacy, the British government should present their own proposals followed by the Irish.

They should explain that the extension of the voluntary military covenant to Northern Ireland would become the MoD’s quite small contribution to ex-military and police support as part of general victim support on the basis of need.

The NI Sentences Act of 1998 was discriminatory against soldiers because it did not extend the two-year minimum sentence for paramilitaries to soldiers and police officers who could yet be convicted in relation to deaths occurring before 1998.  A new Sentences Act would end that discrimination. Otherwise a time- limited consultation should begin on the Haass structures for setting up an independent review unit for historical cases and a unit for collecting memories free from legal process, both currently in deadlock, accompanied by a pledge from Westminster to fund historic inquests which the chief justice has repeatedly called for.

The British government would at last set out the national security criteria for withholding evidence.

They would also declare that a Northern Ireland Bill of Rights may become viable if a promised review of the Human Rights Act and membership of the ECHR after Brexit recommends their replacement by a British Bill of Rights.

The agenda should revisit Assembly reform to include an open review in public of the blocking effect of petitions of concern and the operation of the communal ‘unionist, nationalist and other’ designations which prevent the emergence of an alternative government.

Can it be made to happen?

Would the British government in particular be up for it? Precedent is not encouraging and the precarious political balance in Westminster might be a problem. But fluidity can move in various directions. It would be well not to rely too much on the DUP deal to foreclose on all other options. The decision to allow free abortions in England to Northern Irish women shows as much. In the Dáil the political balance by no means creates a linear progression for Sinn Féin’s southern strategy.

Much of the programme proposed here would be broadly consensual in principle if more problematic in implementation. The parties might welcome being removed at some distance from tough choices for a while, provided they are satisfied on equality and fairness.

What is not obvious is the motivation to adopt a format for interim government and negotiation which the local politicians do not fully control.   More pro-activity from the national governments combined with more open consultation may mean greater exposure of their failures. On the other hand exposure of failure increases pressure to agree. Passivity must be the tempting default especially when there are so many other priorities around. And yet something like the process suggested here could be more productive in the long run.

About the author

Brian Walker is an Honorary Senior Research Fellow and media adviser at the Constitution Unit. He is a former political editor for BBC Northern Ireland.