Only a few short months on from the passing of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 and legislation is once again before Westminster to amend the Northern Ireland Act 1998 – as everyone knew that it would be. One of the key innovations in the 2022 Act, belatedly giving effect to a proposal in the New Decade, New Approach Agreement of January 2020, was that during its 24-week post-election period Northern Ireland Executive ministers would continue to hold office and take decisions within their remit. This period prevented what Lord Bingham referred to in Robinson as a “persisting vacuum in the conduct of devolved government” (para 15). Its extended duration under the 2022 legislation was intended to provide a sufficient window after an election for a new power sharing administration to be formed, but to keep a count-down to new elections in place to focus Northern Ireland’s major parties towards that end. This arrangement, however, has proven no more effective as an impetus than the terms that it replaced.

At the core of the problem is that the most important parties do not currently regard an election forced on them by Westminster legislation as much of a threat. The DUP’s refusal to re-enter power-sharing until it is satisfied that the Northern Ireland Protocol has been scrapped, or radically overhauled, has secured its core vote, but it has also galvanised support for Sinn Fein and the Alliance Party in their opposition to the DUP. All three parties, indeed, see the opportunity to pick up seats at the expense of the smaller parties in the Assembly. But without a resolution to issues of the Northern Ireland Protocol that can satisfy the spectrum of opinion in Northern Ireland in sight, the Secretary of State’s hope that this new legislation’s short window extending the period for Executive Formation to 8 December and thereafter 19 January, seems forlorn.

Positions around the Protocol have hardened to the point at which, even if some arrangement can be reached between the UK Government and the EU over the Protocol’s implementation within this window, it is unlikely to satisfy the DUP’s position that the Post-Brexit arrangements on trade between Great Britain and Northern Ireland pose a threat to Northern Ireland’s place within the UK. The UK Government having held out the potential for dual regulatory arrangements being introduced under the Northern Ireland Protocol Bill, the DUP are likely to regard mere mitigations of the current Protocol’s operation as unacceptable, not least because accepting such terms would open them up to losing ground to other Unionist parties. The Protocol Bill, moreover, will only return to the House of Lords for its Report stage in the New Year, and is unlikely to be enacted ahead of 19 January. Given that the DUP have made its enactment, or the impossible scenario of a deal with the EU securing all of its terms, a precondition of it returning to power sharing, the different elements of UK Government’s Northern Ireland policy do not line up.  

In these circumstances, a further problem is that the electorate knows what they want to hear about the Protocol. An opinion survey published in October 2022 as part of the ESRC’s Post-Brexit Governance NI project saw almost three quarters of respondents consider that they have a “good understanding” of the Protocol, but it also identified that people are most likely to trust information about the Protocol from political parties that they support. When people in Northern Ireland discuss the Protocol they are thus filtering it through a prism of the opinions of parties which wish to present it as being destructive of Northern Ireland’s place in the UK (with that being understood simultaneously as a positive and a negative by different parties) and those who regard it as being a necessary set of compromises to protect Northern Ireland’s distinct governance arrangements post-1998. In other words, the terms and operation of the Protocol are becoming increasingly divorced from public understandings of it. In those circumstances, radical changes to the Protocol are going to alienate larger sections of the electorate than they stand to bring on board. Brexit’s destabilisation of Northern Ireland’s governance arrangements will persist. 

If there is no resolution over the power-sharing impasse, an Assembly election is scheduled to take place on the new Bill’s revised time frame in April 2022 at the latest, providing a depressing backdrop to the 25^th anniversary of the conclusion of the Belfast/Good Friday Agreement that month. This deadline is also likely to be treated by the Northern Ireland parties as a moveable feast. In mid-October,  the Secretary of State for Northern Ireland, Chris Heaton-Harris, based his pledges to call an election on the binding legal effect of the previous statutory deadline of 28 October; it was a “legislative requirement”. He insisted before the Northern Ireland Affairs Committee that he ‘cannot see the space for any emergency legislation’. Given that these pledges came to nothing, and the new Bill is the very piece of emergency legislation he could not envisage, Northern Ireland’s political parties will continue to expect that things will simply be kicked down the line again with fresh legislation. The underlying message is that Northern Ireland is a jurisdiction in which binding legal obligations are very much mutable, and it seeps into the behaviour of its parties (including the DUP simply ignoring a judicial declaration over the unlawfulness of its boycott of North-South bodies).

This is particularly evident when the current Bill enables civil service management of Northern Ireland’s governance until the middle of 2023. Ministers of the previous Northern Ireland Executive ceased to hold office in October, and with that went even their caretaker oversight of the administration of executive functions in Northern Ireland. In such circumstances, civil servants have no power to take decisions which would otherwise require ministerial approval. The Buick decision,  saw the Court of Appeal conclude that “the devolved constitutional arrangements elsewhere in the UK do not permit civil servants to act without being accountable to Ministers” and that there was nothing to support a more extensive general role in the Northern Ireland context (para 62). 

As a result of the Buick case, section 3(1) of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 was enacted, making special provision that the “absence of Northern Ireland Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department during the period for forming an Executive if the officer is satisfied that it is in the public interest to exercise the function during that period”. The Constitution Committee, reviewing the legislation, adopted an “only in Northern Ireland” position on this provision:

We accept, reluctantly, that an exceptional response is justified to protect the people of Northern Ireland from a potentially significant damaging impact on the provision of services. We emphasise that in any other circumstances provisions such as these which challenge established constitutional principles would not be acceptable. (para 24)

Notwithstanding the admission of the profound weakness of Northern Ireland’s governance order inherent in this approach, the usefulness of this provision as a governance tool has seen it duplicated, almost word for word, in clause 3 of the new Bill. Further affronts to constitutional principle follow for good measure. Clause 4 provides a bridging provision, providing for the same level of civil service decision making between 28 October and the enactment of this Bill. The new legislation will thus provide retroactive cover for current decision making for which there is no legal basis. This is unlikely to be particularly useful in practice. As with the Acts of Indemnity which Dicey regarded as an effective means to retrospectively protect agents of the state for actions taken during an emergency, Northern Ireland’s civil servants are unlikely to regard the prospect of forthcoming legislation retroactively authorising their actions with any great enthusiasm. At best, clause 4 will provide a basis for authorising an urgent decision which cannot be delayed. The legislation, taken as a whole, highlights how a range of UK constitutional principles work very differently in the Northern Ireland context.

The civil service’s inherent aversion to autonomous decision making (without the involvement of elected ministers) runs deep. Following the enactment of the 2018 Act there was relatively little use of the section 3 powers, as civil servants took minimal steps to “keep the lights on” as they awaited the return of the Executive. As with the 2018 Act, clause 3 of the 2022 Bill requires the Secretary of State for Northern Ireland to provide for guidance and principles as to how these powers are exercised by civil servants. The more expansive this guidance is, or the more the Secretary of State is prepared to provide specific direction over particular issues, the more civil servants will be likely to exercise these powers in reliance on this input guidance and directions. As has recently been in the case with regard to the commissioning of abortion provision (even if that is subject to separate statutory arrangements under the Northern Ireland (Executive Formation etc) Act 2019), such directions could be highly detailed in their terms. Ironically, in light of the Bill cutting the pay of Northern Ireland Assembly Members for the duration of the current hiatus, clause 3 enables these representatives to make representations to the Secretary of State on his guidance to civil servants.

All of this makes for a complex edifice to avoid the formal imposition of direct rule by London. The reasons for this are twofold. In the current febrile context of Northern Ireland, the formal consultation with Dublin that is required with regard to decisions taken under direct rule is anathema to Unionism, and has the potential to exacerbate tensions. More importantly, however, the form of “arms length” oversight of civil service decisions keeps Northern Ireland off the decision-making agenda at Westminster as much as possible. When Westminster has already spent considerable time in recent months dealing with legacy legislation, language legislation, the Protocol Bill and this new set of amendments and bolt on provisions to the Northern Ireland Act 1998, there is little appetite for Northern Ireland to exert even more of a hold over the parliamentary agenda. As Chris Heaton-Harris has demonstrated, only with regard to Northern Ireland can a budget be announced by written ministerial statement with weeks to wait before the next scheduled ministerial questions.     

The most significant departure from the civil service authorisations under clause 3 from the template of the 2018 Act comes in the form of a sunset provision. Technocratic governance does not run on until a new Executive is formed but will, as noted above, last for a maximum of six months from the enactment of this legislation. But with the degree of intractability around the Protocol and the governance crisis which now surrounds it, it becomes a virtual certainty that Westminster will be asked to extend this time frame. Unless the UK Government reaches an agreement with the EU over the Protocol which is acceptable to the DUP, and also satisfies the other major parties, there is no obvious route to a resumption of power sharing. If the UK Government wants to bed in new Protocol arrangements which do not meet this threshold, it will have to do so through extending the period of technocracy.  

The UK Government are likely to even see additional advantages to this scenario. As seen in the case of abortion provision, interventions by the Secretary of State can circumvent some of the log jams of power sharing in Northern Ireland. Indeed, the uses of the new powers over an extended period could have a profound impact upon Northern Ireland. In mid-October, the Northern Ireland Secretary was downplaying the budget he was preparing to impose on Northern Ireland as “a small technical piece of legislation”. When the announcement came, however, he fulminated about the overspending of Northern Ireland’s administration. The arrangements for the coming period of technocratic governance affords the Northern Ireland Office an opportunity to address “systemic” issues with Northern Ireland’s public finances and to take steps in terms of curbing spending and imposing additional taxation which no local politician would contemplate. Such fiscal retrenchment was not an option for Theresa May’s Government during the last period of Stormont collapse, because she ended up relying upon the DUP for her Commons’ majority. For many in Northern Ireland, amid the cost-of-living crisis, the austerity regarded by Heaton-Harris as necessary to address its budget shortfall will be a bleak prospect. 

Professor Colin Murray, Newcastle Law School

(Suggested citation: C. Murray, ‘A New Period of “Indirect” Direct Rule – The Northern Ireland (Executive Formation etc) Bill ’, U.K. Const. L. Blog (29th November 2022) (available at https://ukconstitutionallaw.org/))