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02 Dec 2022

Constitution

Union

In this second piece, Andrew McCormick explores what an approach to decision-making in Northern Ireland in the absence of an Executive might look like that is less of a departure from democratic and constitutional norms.

The previous blog argued that the UK government’s approach to the current political impasse is an affront to democracy. That begs the question of what could be done instead?

Political decisions should be taken by ministers, and in the absence of the ministers of the devolved Northern Ireland (NI) administration, the obvious answer is that decisions revert to UK government ministers.

While, as explained below, there are very real objections to all the ways in which that could be applied, asking unelected, unaccountable civil servants to stand in the breach is still undemocratic and an affront to the constitution.

It simply does not suffice for there to be very limited and selective ministerial intervention in devolved matters, driven by expediency. Nor would the addition of a scrutinising role (for MPs or MLAs) provide a viable match between responsibility and accountability.

The case against Direct Rule is very strong. Indeed, one reason for the creation of the Stormont Parliament in 1921, when not all unionists wanted it, was that the government then did not want to ‘… leave large nationalist minorities under British rule….’ (from the First Report of the Cabinet Committee on the Irish Question, 1919). That dilemma has not gone away.

Nevertheless, between 1974 and 1999 and from 2002 to 2007 provision was made for the Northern Ireland Civil Service (NICS) Departments to operate under the direction and control of the Secretary of State for Northern Ireland – so called Direct Rule. The settlement reached in 2007 was underpinned by a very strong determination never to revert to Direct Rule, and the emergency legislation that had been made in February 2000, after the first collapse of the Assembly, was repealed.

Today, under a Conservative Party government, which has had recent formal alliances with both the UUP (in 2010) and the DUP (in 2017), Direct Rule would inevitably be seen as partisan.

Even more clearly, the idea of joint authority of the UK and Irish governments can be ruled out, as that would be such a clear breach of the unique constitutional settlement that was reached in 1998.

There have been several attempts at finding a middle way. Recognition of the Irish identity in NI was a central feature of the Sunningdale Agreement of 1973, which would have given the Irish government a consultative – not an executive – role in relation to NI. Unionist opposition to that agreement led to its collapse in 1974 (though there was a clear majority in support of the agreement in the 1973 Assembly election).

In 1985 the UK and Irish governments agreed that the latter should have a formal consultative role in relation to issue in NI, through an Intergovernmental Conference, which could take forward, inter alia, issues relating to security (a prime motivation for the Thatcher government at that time) and co-operation of aspects of economic and social policy. This was seen as a key step forward by Irish nationalists in NI, but was vehemently opposed by unionists as giving a ‘foreign government’ a say in relation to the domestic affairs of part of the UK.

Hence, a key unionist objective in the 1990s was the abolition or replacement of the hated Anglo-Irish Agreement. The Belfast/Good Friday Agreement both facilitated and limited the role of the Irish government, and created safeguards that some key unionist leaders could accept at that time, and which the DUP in effect accepted when they went into the Executive in 2007.

The 1998 Agreement did not set out any plan for what could be done if the institutions were not functioning. But it should be clear that for any form of Direct Rule to be tolerable to nationalists and republicans in Northern Ireland, it would have to give at least as strong a consultative role for the Irish government, as was the case before 1998. Such an approach could be developed and applied even now.

At an absolute minimum, there should be substantive political input from the Northern Ireland Office (NIO) to the very difficult decisions needed this financial year on public spending and services.  

The impediment is, of course the Protocol issue, and the governance vacuum in NI can only be addressed by dealing with that problem. The misleading and contradictory statements by the UK government about the Protocol in 2020 were a major factor in exacerbating unionist discontent, leaving the suspicion that it is a convenient tactical lever on the EU.

The DUP claims  that ‘New Decade, New Approach’ (NDNA) promised that the Protocol would be changed to ‘restore’ NI’s place in the UK internal market, when in fact it says nothing of the sort. On the contrary, NDNA is founded on the view that the Protocol does not prevent NI remaining part of the UK internal market ‘… in line with the clear guarantee in the Protocol that Northern Ireland remains in the customs territory of the United Kingdom.’

These are fudgy and Delphic words, but the straightforward point is that NDNA could not possibly have promised to change the terms of the Withdrawal Agreement, as that would have been a blatant breach of faith with the EU – and would also have been blatantly misleading the newly elected parliament, which was debating the Withdrawal Agreement Bill on the same day as NDNA was published.

There is a clear onus on the UK government to make it clear that that false assertion provides no basis for not returning to the Executive.

Resolving the Protocol issue is the vital step – but not by unilateral action that addresses only the concerns of unionists. Some of the steps that are needed would be uncomfortable to the Conservative Party and the DUP, but ultimately, finding an agreed way ahead is as much in their interests as anyone’s.

So the priority should be a determined and urgent quest for agreement, and, if necessary, further process or independent review that takes account of the full range of views in NI.

What is most wrong with what is happening now is that the previous deceptive approach is costing the people of Northern Ireland, in the form of an avoidable political impasse, destabilisation of government, and the absence of proper decision-making for public services at a time of acute financial difficulty. The responsibility for finding a more constructive approach lies firmly with the UK government.

By Andrew McCormick, former Director General of International Relations, Northern Ireland Executive Office (2018-2021).

This is the second of two blogs looking at the absence of a Northern Ireland Executive and the UK government’s approach to managing it. The first can be found here

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