With no ministers in charge since March 2017, public administration in Northern Ireland faces serious challenges. Civil servants have been attempting to keep things running, but on collapsing legal foundations. A public Inquiry has raised issues about competence, commitment and propriety in the old devolved government. There is little energy behind restoration of devolved government, and little lead from London. The lack of attention to good government, suggests Alan Whysall, is a serious weakness in Northern Ireland political culture that must be tackled. The first part of this blog outlines the current challenges; the second, what might be done about them.
There is a side of Northern Ireland that revels in its disasters. A whole quarter of Belfast is after all named after the Titanic, rather than the many Harland and Wolff ships that did not sink. So there was resentment when the Guinness Book of Records recently denied Northern Ireland’s claim to have gone for longer than anyone else without a government (on grounds of Westminster’s ultimate ability to intervene).
There has been no government at all as respects devolved matters since January 2017. The position is worse than in most states ‘without government’, including Guinness’ reigning champion Belgium, which have had ministers exercising caretaker functions. Northern Ireland has a legal void.
The larger political stakes around the collapse of devolution and profound disagreement over Brexit have been outlined in earlier pieces. They have continued to worsen. The focus of this blog is issues of governance – which however bear closely on future prospects of sustaining political progress.
Who is currently governing Northern Ireland?
The law is unimaginative: when a Northern Ireland deputy First Minister resigns, it simply envisages repeated Assembly elections, the old ministers losing office, until the main parties agree again to form a government. But they have not reached agreement, and the Secretary of State for Northern Ireland, Karen Bradley, has not discharged her statutory duty to call elections for the last year. Few think they would make any difference.
The civil service in Northern Ireland has been left in acute discomfort attempting to carry on government, following priorities decided by devolved ministers and avoiding controversial new steps, with occasional interventions from Westminster to regularise the financial position and set budgets.
The view that this was lawful was bolstered by the general practice in Northern Ireland statutory drafting of vesting powers in government departments rather than ministers (as is usual at Westminster).
The civil service showed great caution in exercising powers. Some details have emerged of the sorts of decisions they considered they could not take. Business urged action on major infrastructure decisions not made or in jeopardy. Many lamented the failure to give effect to the recommendations of an inquiry into historic child abuse, including a compensation scheme for victims. Government has been stagnating, with new needs in particular not being met.
Despite this caution, a decision confirmed in the Court of Appeal in Belfast in late July leaves a legal quagmire. The judgment overturned a department’s approval of a planning application. It declined to say what (if any) powers the civil service has in current conditions, but held that ‘any decision which as a matter of convention or otherwise would normally go before the minister for approval lies beyond the competence of a senior civil servant in the absence of a minister’. That category of decisions is of course not anywhere defined.
The legal framework for Northern Ireland government enacted in 1998 is being applied in circumstances no one then envisaged. The judges effectively sent a message that Westminster had to resolve matters. The civil service concluded there was no point in an appeal — making urgent action inevitable.
The Secretary of State has now said that she will put forward a Bill to ‘give greater clarity and certainty to enable Northern Ireland Departments to continue to take decisions… in the public interest and ensure the continued delivery of public services’. She will consult about the detail. And she will, as announced before the summer, enable UK ministers to exercise the appointment powers of Northern Ireland ministers.
She will also remove the obligation to hold a new Assembly election, reduce the salaries of Assembly Members in line with recommendations made some months ago, and hold ‘talks about talks’ on resumed devolution.
The Renewable Heat Incentive Inquiry raises longer-term concerns
Meanwhile, serious questions of longer-term significance about Northern Ireland government are surfacing in the Inquiry into the Renewable Heat Incentive (RHI).
RHI was a subsidy, involving commitments to payment over 20 years, for the use of sustainable fuels. It was introduced – at the behest of London – by former First Minister Arlene Foster whilst she was Minister at the Department of Enterprise, Trade and Investment (Deti).
The Northern Ireland scheme was different from that in other parts of the UK, because of the differing energy market. But it was seriously flawed from the start, because the subsidy was higher than the cost of the fuel, creating incentives to burn it wastefully. In 2016, these deficiencies came to light; as did the reality that the Treasury would not, as previously assumed, cover all costs, creating a huge potential burden on future devolved finances. This provoked a political crisis that ultimately triggered Sinn Féin’s withdrawal from the Executive – though there were more profound underlying issues.
The Inquiry is led by Sir Patrick Coghlin, a retired member of the Court of Appeal of Northern Ireland, and has extracted much written and oral testimony from ministers, civil servants and special advisers (SpAds). Its hearings have often led the Northern Ireland news agenda – and not in an edifying way.
Serious concerns arise first about the competence of the government machine. There were misjudgements in the conception, implementation and eventual closure of the scheme. A number of ministers have also emerged as doubtfully competent or attentive to their responsibilities in a stream of mudslinging testimony, with allegations of smear campaigns, dossiers of dirt on colleagues, late-night ejection from New York bars – and even failure to read civil servants’ submissions.
There has also been indignation about the role of special advisers, who seem to have exercised enormous influence with doubtful accountability, followed by much mutual recrimination before the Inquiry. And painful ethics issues have come to light – there were pressures, not yet fully explained, against closing the RHI promptly when the flaws could no longer be ignored; meanwhile some special advisers or their relatives were beneficiaries of it.
The Inquiry will go on through October, reporting in the spring.
This is the latest in a long line of scandals that collectively have been corrosive of public support for politics. Another instance was the suspension in July of Iain Paisley Junior, a Westminster MP, for 30 sitting days, after failing to declare hospitality from a foreign government, paid advocacy on its behalf and conduct bringing the Commons into disrepute. This was a record sanction, which led to the first ever petition for the recall of a member. It narrowly failed to reach the statutory threshold – leading Mr Paisley, evidently not greatly abashed, to claim he has ‘90.6% support’ (the petition process itself came in for some criticism, but that is beyond the scope of this blog).
The role of Westminster
Westminster’s handling of Northern Ireland is hardly more satisfactory than Belfast’s. Northern Ireland is no longer the priority it was for successive British governments in the 1960s. The Prime Minister has not seriously been involved in attempts to restore devolved government. Few in government (though many in the Northern Ireland parties) now have experience of the Northern Ireland peace process. The government’s alliance with the DUP and, some suggest, a tin ear to nationalist concerns, continue to feed perceptions of partisanship. The Northern Ireland Affairs Committee lamented the government’s ‘sticking plaster approach’ to Northern Ireland.
Northern Ireland policy is perhaps just another casualty of Brexit. But many have been unimpressed by the government’s approach to Brexit issues themselves, as they bear on Northern Ireland. As a consequence, there are seriously frayed relations between London and Dublin, meaning that the two governments find it harder to act together in Northern Ireland.
Karen Bradley suffered for her honesty about Westminster when she explained all too frankly to the House Magazine how little a typical MP understood of Northern Ireland, stating plainly her own ignorance before her appointment.
Irish nationalism meanwhile is no longer represented at Westminster to administer any corrective, because of the abstentionist policy of Sinn Féin, now Northern Ireland’s only nationalist party with seats there.
The issues here are not ones that have featured prominently in the negotiations about returning to the devolved institutions. That is itself part of the problem, as the second part of the blog will discuss, because they are significant for the prospects of future devolved government.
This is the first of two blogs on governance in Northern Ireland in the absence of a government. The second blog, which discusses options for the future, is available here.
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.