Following Monday’s deadline, the future of devolved government in Northern Ireland remains uncertain

The legal deadline for forming a new Northern Ireland Executive has passed without agreement between the parties. This could have important political and legal consequences, including the return of ‘direct rule’. For the time being, however, the Secretary of State for Northern Ireland has decided to give the negotiations more time. In this addendum to his earlier blog post, published on Monday before the UK government’s statement, Alan Whysall discusses what might happen over the coming weeks.

Monday’s deadline for forming a new Executive in Northern Ireland passed without an agreement. The Secretary of State for Northern Ireland spoke afterwards, and again in parliament on Tuesday. As predicted, he decided to give the negotiation process more time, until after the Easter recess (the Commons returns on 18 April). He will then ‘as a minimum’ bring forward a Westminster bill to regularise finances (see below). The bill would also allow an Executive to be formed, if political agreement emerges. But otherwise, the government would have to ‘consider all options’. Since he made it clear further elections were unappealing, this appears to mean direct rule, though he deplored the prospect.

In most such political deadlocks worldwide, there is at least a caretaker government of some sort: but not in Northern Ireland. No–one is at present empowered to give direction to the Northern Ireland civil service. The Head of the Service set out the nature of that uncomfortable position in a letter to staff. There would be business as usual, but no new initiatives, whose legal legitimacy must be doubtful. Such an arrangement clearly cannot go on for long, and unexpected events could cause real difficulty.

And there will be great budgetary prudence. In the absence of a budget voted by the Assembly, the Finance Permanent Secretary has powers to release certain limited funds, but no more than 95 per cent in cash terms of last year’s budget; moreover, there is no authority at present to raise the principal local tax, the rates (a property tax analogous to Council Tax).

Where do the talks now go? The process to date, and the British government’s role in it, has been criticised for incoherence and lack of inclusivity; for the absence of the Prime Minister; and for lack of full partnership between the two governments. And various participants (not just nationalist) have suggested the British government cannot be an impartial chair, especially in the light of Brexit. Continue reading

Following the break down of talks in Northern Ireland, what now?

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.

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A watershed is reached in Northern Ireland

Last week’s snap election in Northern Ireland saw the DUP’s lead over Sinn Féin reduced to a single seat and an Assembly without a unionist majority returned for the first time in the institution’s history. Brian Walker digests the result and considers what might happen next.

Gerry Adams was justified in declaring that the perpetual unionist majority since 1921 was ‘demolished’ in Northern Ireland’s snap election on 2 March. Only 40 seats in an Assembly of 90 members went to the two unionist-designated parties, with Sinn Féin’s 27 seats coming within a whisker of the DUP’s 28. The long-term demographic trend towards a nationalist majority in the province was at last translated into Assembly seats. Turnout, at 65 per cent, was 10 per cent up on May last year, the crucial differential turnout favouring nationalists in particular – the Sinn Féin vote was up by 57,000 compared with 23,000 for the DUP. Fairly small increases in percentage share of the vote – four per cent for nationalists, two per cent for unionists – made crucial differences accentuated by the reduction of seat numbers in the Assembly from 108 to 90. Of 16 lost in an Assembly of ten fewer seats, ten were unionists. Undoubtedly, nationalism has recovered momentum. A chance transfer of only a handful of votes could result in a Sinn Féin First Minister next time and seal the transformation.

Sinn Féin’s success should not be exaggerated. All nationalism’s 40 per cent share is well short of what is necessary for calling the border poll which is likely in time to become a Sinn Féin demand. Nationalist voters may have been keener to punish Arlene Foster and the DUP for arrogance than advance the cause of Irish unity. In any hypothetical straight vote in the Assembly  to test support for Irish unity, the pro-union side could muster around 50 votes to nationalism’s 40. There were other successes. The non- sectarian Alliance party held its 8 seats. The first call for cross community voting, controversially made by the Ulster Unionist leader Mike Nesbitt, ironically helped  save all 12 seats for the minority nationalist SDLP, although  at the cost of losing six of their own 16 seats and Nesbitt’s resignation. Nevertheless the score for centre parties could count in simple majority votes in an Assembly so finely balanced between the DUP and Sinn Féin.

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Northern Ireland: where now?

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The Secretary of State for Northern Ireland has called a fresh Assembly election for March 2, following the spectacular and unexpected collapse of the devolved Executive. The campaign seems likely to be divisive. Reviving devolved partnership government at the end, in a sustainable form, will be difficult, argues Alan Whysall, but is still the only way forward.

The deputy First Minister of Northern Ireland Martin McGuinness resigned last Monday, following the refusal of the First Minister, Arlene Foster, to step down pending investigation of her role several years ago, when Minister for Enterprise, in establishing the Renewable Heat Incentive scheme. The scheme (described in detail in Foster’s statement to the Assembly) was based on one in Great Britain with similar objectives, of encouraging burning of renewable fuels over traditional ones. But unlike that scheme, it provided for a subsidy that turned out to be greater than the market price of the fuel – so the more you burned, the more you earned – and did not taper with increasing use, nor reduce in rate if overall demand increased. The Northern Ireland system is left committed to making payments above its budget that may amount to £500 million over 20 years.

Everyone acknowledges that there have been, as the Audit Office concluded, ‘serious systemic failings’. But this is the latest of a string of affairs, involving DUP ministers as well as others, where rumours abound, though with no real evidence so far, of more serious malpractice. Foster’s DUP successor as Enterprise Minister fanned the flames in a TV interview: following prayers for divine support in telling the truth, offered on camera and with the assistance of a clergyman, he alleged that when the extent of the problems with the scheme emerged advisers to Foster, then Finance Minister, and to Peter Robinson, then First Minister, had sought to delay its closure.

Parts of the media have pursued this story energetically. The parties that had chosen to go into opposition in this Assembly following the May 2016 elections called loudly for Foster’s ejection from office, at least pending an enquiry. Sinn Féin, elected with the DUP on the Fresh Start agenda and pursuing a tacit non-aggression pact, were at first more measured. But as the clamour grew and the story developed, amid suggestions that they were DUP patsies, they asked that she should step aside pending inquiry. She declined.

The DFM’s resignation letter, however, lays out many other grievances bottled up in private by Sinn Féin over the preceding months. They have made clear that resumed devolved government depends on resolving them.

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Things flying apart? Analysing the results of the devolved elections

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On 25 May the Constitution Unit invited three electoral experts to give their analysis on the results of the recent devolved elections in Scotland, Wales and Northern Ireland. In this post Artur Foguet Gonzalez summarises their key insights.

 The fifth round of elections to the devolved parliaments and assemblies in Scotland, Wales and Northern Ireland took place on 5 May. On 25 May the Constitution Unit hosted three electoral experts ­– Professors Ailsa Henderson, Roger Scully and Cathy Gormley-Heenan – to digest the results. This post summarises the key points that were raised by the speakers.

Scotland: Professor Ailsa Henderson, University of Glasgow

Scotland awoke the morning after the election to two significant results: the Scottish National Party (SNP) was still the largest party in Holyrood but no longer held a majority, whilst Labour’s decline continued as it fell behind the Conservatives to become the third largest party in Scotland. Ailsa Henderson used her data from the Scottish Election Study (SES) to explain these results.

For the SNP three factors explain their continued popularity: the constitution, valence and leadership. Though the data shows that the constitution is not top of voters’ agenda, it also shows that voters are very unlikely to back a party that does not share their view on independence, so whilst the constitution may not be driving voter choice, it is a constraining factor. The SNP was the only party likely to collect votes from those who had supported independence in the 2014 referendum, whilst No voters were split between multiple parties. On valence, when voters were asked which party they trusted most on particular issues the SNP came top, not only on ‘standing up for Scotland’ but on every single issue. Nicola Sturgeon, meanwhile, remains an extremely popular figure.

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Better intergovernmental relations for better devolution

Alan Trench calls for a more systematic approach to intergovernmental relations between the devolved and UK governments. He argues that leaving matters to be handled in ad hoc, reactive, unstructured way is no longer an option.

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK government (and each other) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘beef up’ intergovernmental co-ordination as part of the package of further devolution.

The UK government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed these to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee (JMC). Plenary meetings of this body ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, and with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures. As a result many important issues slip through the net.

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Northern Ireland chief justice to confront critics on bail decisions

15th March 2013

The Lord Chief Justice of Northern Ireland Sir Declan Morgan has given a rare TV interview designed to take the heat out of allegations of partiality between unionists and nationalists in granting bail. He is offering to explain the basis of recent decisions to the Justice Committee of the Northern Ireland Assembly and is making himself available to his most prominent critic, the Democratic Unionist First Minister of the powersharing Executive Peter Robinson. The meeting was in fact pre-arranged but will now take on a more urgent character. His private secretary had earlier sent a letter to the Assembly   explaining that in bail decisions  judges carefully weigh the risks – such as a risk of flight, likelihood of committing further offences, interfering with witnesses and preservation of public order – against the rights of the untried accused.

“It is essential that they are free to do this independently and without being subject to external influence.”

Now the chief justice has widened his response to add the offer of an appearance before Assembly members and a meeting with the First Minister if he still wants one. As a direct response to a running controversy this move is unprecedented and as I’ll argue shortly, carries risks which Morgan himself will be aware of.

Even post- Troubles Northern Ireland politics is still largely a zero sum game. In this case unionists are up in arms at bail being denied to two ring leaders of sporadic protests at the decision of Belfast City Council to reduce the number of days for flying the Union Jack above the City Hall. One of them Willie Frazer attracts both sympathy and hostility. Four family members including his father, all of them members of the security forces, were killed by the IRA over 10 years. He is head of a movement called FAIR,  Families Acting for Innocent (unionist) families  which campaigns for justice for victims of the Troubles  but specialises in provocative demonstrations and comments.   He was refused bail on March 1. At another hearing when bail was refused to another alleged loyalist agitator Jamie Bryson, the judge hit out against “ill informed debate” about bail decisions. This attracted the comment of “ judicial arrogance “ from a DUP minister.

Meanwhile, switching sides,  two prominent republicans in south Armagh  were  granted bail in connection with demonstrations eight years ago in favour of the ( not quite disbanded ) IRA which had been held responsible  for the notorious  murder of a Belfast man Robert McCartney in 2005. Despite a McCartney family campaign which reached Downing St and the Oval Office, IRA omerta  has held. The arrests of the two men Padraic Wilson and Sean Hughes were attacked by Sinn Fein politicians as “ political policing”  to  counter balance the actions against loyalists. Unionists immediately claimed partiality in deciding bail between republican and loyalists.

I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident republican attack had been foiled.

Why wait so long to lift the loyalists Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we’re unlikely to get straight answers to such questions and certainly not from the judiciary. Answers in some form may emerge from the PSNI and the DPP if charges are proceeded with.

Although the judges – and of course the police and the DPP – are now being attacked by both sides, this is not a full blown crisis between the politicians and the criminal justice system.  It even represents a sort of progress.  Republicans now argue for fair treatment from the criminal justice system rather than rejecting it altogether. What is happening is a symptom of the tensions created by an underlying shift in power between unionism and nationalism as a result of growing nationalist numbers and the  implementation of the equality provisions of the Good Friday Agreement.  From time to time there is controversy over where fairness lies and the criminal justice system is caught in the middle.

In an arid zero sum debate –  unionist loss is republican gain or vice versa – the judiciary has boldly moved to assert its good faith and educate the politicians in an impartial justice system which like any other body can make mistakes. The risk the chief justice is taking is that is that he may unwittingly feed an appetite for routine explanations of verdicts and sentences and produce disillusion and even louder complaints when he refuses. This could turn  the judiciary into what he and his colleagues greatly fear, a political football.   Much hangs on Northern Ireland’s politicians behaving responsibly to prevent the judiciary being sucked into their zero sum game.