With no prospect of an early return of devolution and no sign of the introduction of Direct Rule, Northern Ireland is left in a constitutional limbo which may be regarded as the ‘least worst’ solution by the UK Government, but is wholly unsatisfactory in terms of democracy and decision making.
The Secretary of State has announced that she intends to introduce legislation for a budget for Northern Ireland, to set a Regional Rate, to extend cost control measures in relation to the RHI scheme and to take a power to vary MLA pay. This gives the impression of some level of activity on behalf of the UK Government and the Westminster Parliament. Most of these measures are largely uncontentious but more significantly all of these measures are legislative in nature.
There can be no real doubt that notwithstanding devolution being in place in Northern Ireland, the power of the Parliament of the United Kingdom to make laws for Northern Ireland remains unaffected (see section 5(6) Northern Ireland Act 1998). This is tempered only by the so called ‘Sewel Convention’, later incorporated into a Memorandum of Understanding between the UK Government and the devolved executives, which essentially stated that Westminster would not normally legislate with regard to devolved matters.
Setting any political sensitivities (or parliamentary arithmetic) of legislating from Westminster aside legislating for Northern Ireland in this way, in the present constitutional arrangements, is more burdensome than in circumstances where Direct Rule was in force previously. Historically, during periods of Direct Rule most legislation in relation to Northern Ireland was passed through the ‘Order in Council’ process (most recently set out in the Schedule to the (now repealed) Northern Ireland Act 2000). While this was democratically deficient, given the lack of scrutiny, it was nonetheless a very straightforward process which did not take up any significant amount of Parliamentary time.
By contrast, the Northern Ireland legislation which has been passed by Parliament since the 2017 Assembly election has been by way of primary Westminster legislation, the Northern Ireland Budget Act 2017 being the most obvious example. This places significantly greater demands on Parliamentary time with a full legislative process being required in the House of Commons and the House of Lords. The challenges of legislating in this way on a routine basis should not be underestimated particularly where there is any contention about the measures being proposed.
In the absence of new arrangements to enable Parliament to pass legislation in relation to Northern Ireland, there is no reason to believe that other than in the most urgent or important circumstances that even legislative interventions by the UK Government will be made.
In reality however, most decisions in government are administrative or executive in nature rather than legislative and the Secretary of State has not and cannot presently trespass into this arena. The extent of any ‘greater intervention’ by the UK Government in the present legal arrangements is therefore, necessarily, extremely limited.
Virtually all decisions taken by departments on a daily basis are ‘executive’ decisions and are required to allow any administration to function.
Section 23 of The Northern Ireland Act 1998 makes clear that executive powers in respect of transferred matters (those being the matters which are devolved) are to be exercised by any (Northern Ireland Executive) Minister or Northern Ireland department. These powers are notably not exercisable by the Secretary of State (or for that matter any UK Government Minister.)
This provision is a very significant limitation on the capacity of any greater direct intervention of the UK Government in relation to day to day decisions in Northern Ireland. (It is also worth noting that on the basis of the present statutory arrangements, and even given the most extensive possible interpretation of its role, any British Irish Intergovernmental Conference meeting would be extremely limited in what it could do with respect to decisions in Northern Ireland.) A provision equivalent to paragraph 4 of Schedule 1 of the Northern Ireland Act 2000 would be required to give the Secretary of State executive powers in respect of the powers previously exercised by (Northern Ireland Executive) Ministers.
For this reason, the Direct Rule ‘light’ arrangements which presently exist are a very poor alternative to devolution or Direct Rule.
All of this then raises the question of what the present source of executive decision making is in Northern Ireland. The answer to this can be found in Article 4 of the Departments (Northern Ireland) Order 1999 which sets out that any functions of departments can be exercised either by the Minister or a senior officer of the department. (To complicate matters further there is a debate over whether this provision requires a Minister to be in place and a Judicial Review on this point. Judgment is awaited in this case though it seems likely that the court will rule that civil servants have the power to act.)
However, even if the legal position were to be clarified beyond any doubt in the coming period of time, the greater reluctance for civil servants to take executive decisions or decisions involving policy is as much a function of a caution rather than any legal impediment. This proposition will likely be tested when the High Court rules.
So where does that leave things as things stand?
1. Legislation at Westminster is possible, though in all but the most urgent cases will be politically difficult and administratively time consuming.
2. UK Ministers have no power to take ‘executive’ decisions in relation to devolved matters.
3. Legally speaking it is likely that the Northern Ireland Permanent Secretaries have considerable powers to take decisions, but have to date, been reluctant to do so for reasons of democratic accountability.
With no sign of a political breakthrough this situation cannot be sustained for much longer. In the medium term, in the absence of political agreement, a more comprehensive approach needs to be taken to ensure democratically accountable government.
In the short term for the good of public administration in Northern Ireland the Secretary of State could give ‘political’ cover for civil servants to take decisions though even without such cover many would welcome civil servants stepping into a space that is otherwise unoccupied. To date only a few have been prepared to risk challenge in the courts or criticism in the media.
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