Northern Ireland: civil servants step into the void amid uncertainty over devolution

The legal deadline for forming a new Northern Ireland Executive passed without agreement between the parties. This could have important political and legal consequences – and is uncomfortable for civil servants in the province

By Alan Whysall

31 Mar 2017

Monday’s deadline for forming a new executive in Northern Ireland passed without an agreement. Northern Ireland secretary James Brokenshire 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. 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.

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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. Sir Malcolm McKibbin, the head of the civil service in Northern Ireland 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, David Sterling, permanent secretary at the Department of Finance, has powers to release certain limited funds, but no more than 95% 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 the 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.

Beyond government, there is talk of bringing in an outside chair for negotiations, as has been done a number of times in the past. The most obvious candidates are former US Senator George Mitchell, who presided over the Good Friday Agreement talks – but he is some years out of active involvement with the process; and Dr Richard Haass, once a US Envoy to Northern Ireland who chaired an intensive enquiry into political hot potatoes in 2013 – but he was not able to get all-party buy in then, despite making intensive efforts, and he is now otherwise occupied.

But do Sinn Féin really want a return to devolution? The DUP continue to express doubt. Whether Sinn Féin know themselves is unclear. Having said that talks were over, they now say they are willing to talk. But they have reiterated their opposition to direct rule, saying a failure to reach agreement must mean further elections. This seems to involve a willingness to go on seeing Northern Ireland without any government – lack of concern for good government is something Sinn Féin are at times called out for.

Sinn Féin are focusing their demands purely on existing commitments, essentially around an Irish Language Act, a Bill of Rights, and alleged failures by the British government to deal with legacy issues. Would they plausibly want to bring devolved government in Northern Ireland down on such relatively narrow issues, and against considerable self-interest; are there broader issues in play; or is this another game of chicken?

Anyway, there is potentially a great deal of work involved in determining the content of measures fulfilling the ‘commitments’ – and Sinn Féin have said they were willing to talk about such issues. It is not clear such discussions could reach a resolution in a couple of weeks, even without an outside chair. So the benign scenario would involve the parties coming back to devolution, contingent on a new process – perhaps under an outside chair, perhaps nominated by the parties themselves rather than either or both governments – delivering an agreed outcome within a fixed timescale.

The talks process so far perhaps bears out the thesis that the British government lacks inclination, heft and positioning to bring about a resolution by itself. The Northern Ireland political class is short of new ideas too; and there is no sign that the US government is in any position to help, as at times before. Now really is the time for people within Northern Ireland, beyond politics, to make their voices heard coherently.

A version of this post first appeared on the Constitution Unit website

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