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02 Dec 2022

Constitution

Union

In the first of two blogs, Andrew McCormick explains the experience of governing with no Northern Ireland Executive from 2017-20 and how current legislation would simply replicate the problems seen then but in less benign circumstances.

Parliament is being asked to approve legislation which would, again, give civil servants in Northern Ireland departments powers to take decisions in the absence of ministers. This follows: first, the DUP’s refusal to re-enter the Assembly and the Executive and second, the decision not to proceed quickly to a new Assembly election.

There was a strong consensus in January 2020 that there should be no repetition of the last hiatus in devolution between March 2017 and January 2020, which left the Northern Ireland Civil Service (NICS) carrying inappropriate responsibilities.

This issue arises only because NI legislation gives powers to departments whereas UK legislation, and devolved Scottish and Welsh legislation expresses the responsibility as ministerial (‘…. the Secretary of State may….’).

The administrative application of this principle was defined in the Carltona judgement of 1943, so that everything civil servants do elsewhere in the UK, is done in the name of their ministers. Hence, if there was a breakdown in Scottish devolution, any extraordinary delegation of powers to civil servants would blatantly overturn the role of the minister as stipulated in legislation.

In contrast, in the NI devolved administration, between March 2017 and July 2018 administration carried on without ministers, because departments were still able to function – or so it was supposed. However, the relationship between civil servants and ministers is defined in the Departments (Northern Ireland) Order (1999) which provides that the functions of the Department ‘shall at all times be exercised subject to the direction and control of the Minister’.

The implications of this provision were tested in the courts during the last government hiatus. In the Buick judgement of July 2018 the NI Court of Appeal addressed carefully the limits on departments’ powers in the absence of ministers.

The main judgement concluded that ‘The appellant’s submissions would effectively turn civil servants into ministers. Such a remarkable constitutional change would require the clearest wording and we do not consider that the Northern Ireland Budget Act 2018 provides any basis for the implication of such a major departure from established constitutional principles.’

Lord Justice Treacy said that empowering civil servants to take major decisions in the absence of ministers would be ‘a radical and anti-democratic departure from the constitutional norms which apply elsewhere in the UK’.

The judgement made it practically impossible for administration to continue without ministers.

However, as the May administration was determined to avoid Direct Rule, it intervened to extend the powers of the NICS. It legislated to confirm that ‘departure’ from constitutional norms in the form of the Northern Ireland (Executive Formation and Exercise of Functions) Act of 2018.

But the UK government recognised that there were some decisions that could not be left to civil servants – as well as setting overall budget allocations, a number of other functions were assumed by NIO ministers. Several other key interventions were made through Westminster, either to break logjams at Stormont, or to impose   policies that would not have secured support in the Assembly.

This shows that Westminster was willing to legislate on devolved matters.

When devolution was restored in January 2020, there was strong determination to avoid any recurrence of this problem. Part 2 of the ‘New Decade, New Approach’ (NDNA) agreement that paved the way for the restoration of government in 2020 made provision for continuity of government, or, if an impasse was reached, for fresh Assembly elections.

However, as soon as this agreed approach was put to the test, it was found wanting. The period for an Executive to be formed after the May 2022 Assembly election elapsed with no re-engagement by the DUP. The Secretary of State intervened to postpone another election and has introduced legislation to again allow civil servants to step in to fill the breach left by absent ministers.

This may appear to be a ‘least worst’ expedient, but it breaches fundamental constitutional principles and places responsibility on the NICS that has no democratic legitimacy, and which will require them to take decisions that are inherently matters of political judgement.

The Northern Ireland (Executive Formation etc) Bill would empower civil servants to act if they are ‘satisfied that it is the public interest to exercise the function [in the absence of NI ministers]’. There is no political check on that judgment – nor without the Assembly sitting – any real accountability. And, unlike politicians, no civil servant had to test their policies with the public in an election. On many of the issues that are within the scope of decision making in NICS Departments, there is no single clear interpretation of ‘the public interest’. The choices that civil servants are being asked to make are inherently political.

This is especially clear on public spending.

To ask Permanent Secretaries to deliver public services within the financial allocations set out by the Secretary of State on 24 November is grotesque. Is it in the public interest to confirm pay awards for staff, knowing that that means very deep constraints on services, some of which have already fallen well below acceptable standards?

Should new actions that are badly needed to address the long-term consequences of Covid-19 for some of the most needy in society proceed, or be abandoned to reduce the consequences of high energy costs which account for around £200 million of additional costs to the public sector this financial year?

These are political judgements that should be subject to the checks, balances and scrutiny that underpin the operation of the Executive and the Assembly.

What was challenging in the 2017-2020 period, when the financial situation was more benign, is now well-nigh impossible. The context is extraordinary, following the Russian invasion of Ukraine. Since the Executive stopped fully functioning in February 2022, there has been no mechanism to take and implement hard choices to live within the resources available and those choices have only got harder as energy and pay costs have escalated.

For the Secretary of State to blame the former NI ministers, and leave civil servants to resolve the budgetary crisis, is very unfair, given that the absence of decision-making has been clear since February 2022.

In a second piece to follow, I look at what could be done.

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

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