Katy Hayward reflects on the introduction of another Northern Ireland (Executive Formation) Bill to delay Assembly elections, concluding that it is a further sign of the parlous state of democratic governance in the region as the 25th anniversary of the Good Friday (Belfast) Agreement approaches.
On Thursday 9 February 2023, the Secretary of State for Northern Ireland introduced the second piece of emergency legislation in under three months to postpone an Assembly election. The Northern Ireland (Executive Formation) Bill will have its second reading, committee stage and third reading all on the one day later this month (22 February). As with its predecessor (the Northern Ireland (Executive Formation etc.) Act (2022)) from November, the legislation is expected to pass all stages in the Commons and Lords with speed.
The explanation offered for fast-tracking this Bill is that ‘the government has assessed that an immediate election would not support the restoration of the devolved institutions’. Without it, the 2022 Act would oblige the Secretary of State to hold an election by 13 April 2023.
There is indeed little to indicate that such an election would transform the political landscape. The current state of limbo is due to the Democratic Unionist Party’s (DUP) refusal to nominate ministers for the Northern Ireland Executive or to elect a speaker for the Assembly until the party’s demands on the Protocol on Ireland/Northern Ireland are met. The requirements for power-sharing and cross-community consent means that the DUP, as the largest unionist party, can thus veto the operation of both the devolved government and legislature.
And so the UK government has decided to reset the deadline to 18 January 2024 for an Executive to be formed. Unless, that is, the Secretary of State decides to call an election earlier – or to postpone it yet again. If limbo is a condition of uncertainty, it is also one of powerlessness for those cast unwillingly in it. It may be true that there is not much enthusiasm for an election, but how does postponing one bring us closer to democratic governance?
If – as has happened twice already since last May’s elections – the DUP (or, for that matter, Sinn Féin) refuses to go back into power-sharing government by the deadline, there will be 12 weeks in which to hold an election (i.e. by 11 April 2024) and another 24 weeks for the parties to form an Executive (by 26 September 2024). So even if no more emergency legislation is passed, the government conceives a time frame in which Northern Ireland is without a fully-functioning government for 32 months: from February 2022 (when the then-DUP First Minister first resigned from the NI Executive) to September 2024.
Such a vacuum can be ill-afforded by a region with the longest NHS waiting times, the lowest classroom spending per pupil and the lowest disposable income in the UK. The UK government retains the power to legislate in areas within devolved competence, and it has said it will keep under review the need for it to do so in the absence of an Executive and Assembly.
However, what it cannot do, as noted by a recent report from the NI think-tank Pivotal, is to effectively act as stand-in ministers by directing executive functions held by Northern Ireland Departments. ‘The many day-to-day decisions that are part of the business of government’ are thus beyond the competence of the Secretary of State, Chris Heaton Harris.
The guidance he issued to Northern Ireland officials acknowledges they will need to step beyond their usual competence in making decisions ‘in the public interest’, whilst at the same time noting that ‘some decisions should not be taken by civil servants without the direction of elected Ministers’. For all the talk about ‘democratic deficit’, this is a precarious governance gulf.
Even before further shortfalls emerge, there are thirty-nine decisions awaiting Executive approval: from oncology services to launching the Green Growth Strategy, and including several bills, e.g. on Sign Language and on Refugee Integration. The case of an opt-out organ donor scheme embodies both the human consequences and political tussle at stake.
Dáithi’s Law (as it is known, after a little boy in need of a heart donation) received Royal Assent last March but cannot be implemented without secondary legislation. In an unconventional intervention, the Secretary of State publicly urged the local parties to make this happen – depending on the DUP’s willingness to enable the Assembly to conduct even temporary business.
Sir Jeffrey Donaldson MP, the party leader, retorted that he will table an amendment to the Executive Formation Bill to enable the Secretary of State to do it himself. Not only will this take longer, it will depend on the permission of the Speaker of the House of Commons – a legislature in which just 11 seats are occupied by MPs from Northern Ireland while the Assembly chamber and committee rooms in Stormont remain empty of the 90 MLAs elected last May.
If Northern Ireland’s parties are not all prepared for government – and divided as to where it should come from – what might turn the dial? The Secretary of State’s twitter thread announcing the decision to delay elections implied that a UK-EU deal over the Protocol is key: ‘We are working hard to resolve the problems caused by the Protocol and want to see an agreed solution with the EU’.
But even if an agreed solution was enough to satisfy the DUP that the Protocol is effectively ‘removed’, it would be just one of the issues on the table from all the parties eligible to join the Executive. The longer the vacuum persists, the longer the list of demands.
Twenty-five years ago, the parties to the Agreement committed to resolving political differences by ‘exclusively democratic and peaceful means’. In Northern Ireland of all places, it is imperative that the democratic means of governance are protected and not perpetually postponed.
By Katy Hayward, Professor of Political Sociology, Queen’s University Belfast.