Newton Emerson: Westminster's indirect rule over the North is outrageous and barely lawful

Northern Ireland must either restore devolution or return to direct rule. The present bizarre limbo simply cannot continue.

Northern secretary Karen Bradley is currently consulting Stormont parties on imposing a budget from Westminster – the third such barely lawful act of indirect rule since power-sharing collapsed. This budget will reportedly fall £410 million (€410 million) short of projected costs, equivalent to 4 per cent of departmental spending. The civil servants left in charge must plug the gap without ministerial direction. Their only guide will be the policies and programme for government left over from the previous executive, since when there has been an election, rendering the policies and programme invalid. Their only authority is a law rushed through Westminster last October, permitting them to make decisions “in the public interest” and under guidelines set by Bradley. This law was passed in response to legal challenges but it is doubtful it would survive further challenges.

Meanwhile, public services are in crisis and capital budgets are being raided for current spending, causing infrastructure to rot. There are rumours another £100 million will be switched this year from vital investment to keep paying the bills.

Last October’s law included a talks timetable to restore devolution, running from this January to the end of the financial year in March, with a one-off extension permitted to August, after which there must be another election.

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Brexit

Nobody expected results by March, due to Brexit. Any hope of progress by August will be lost if Brexit goes into extra time, as now appears likely.

Of course, another law can be rushed through extending the August deadline but this will be farcical if no serious talks have taken place by then, as also appears likely.

It speaks volumes about legal activism in Northern Ireland that the courts have not been asked to bring this nonsense to an end.

To date, the two key legal challenges to indirect rule have been objections to a waste incinerator and a cross-Border power line, both approved by civil servants. Campaigners have had the approvals quashed on the grounds that no minister was involved. The incinerator case led to last October’s law, while the power line case is being mulled over by the UK supreme court to see what decisions civil servants can still make on their own. However, nobody is campaigning to bring British ministers in to take this type of decision, either in particular cases or in general. Objections to indirect rule at this level are merely a legal pretext for nimbys, dropping more little spanners into Northern Ireland’s jammed-up works.

Republicans have framed the Stormont stand-off in grander terms of “rights”, most notably Irish language services, same-sex marriage, abortion and access to inquests.

Non-party campaigners have had some success pressing backbench British MPs to get involved – the October law had to provide cover for civil servants and the northern secretary on these issues.

But if social policies such as same-sex marriage and abortion can be described as rights, there are far stronger legal grounds to describe failing health, education and welfare provision as breaches of rights, and on a far worse scale. Where is the campaigning against that? It appears to suit nobody’s agenda to cry “Brits in!” over hospital waiting lists.

Taking a rights view of indirect rule should immediately highlight its outrageousness. The Human Rights Act, which takes primacy over all other UK law, requires regular elections to the legislature. Under British constitutional tradition, legislature and executive are inseparable. Northern Ireland is denied this most fundamental of rights not just regionally but nationally – its self-contained civil service must govern without ministers from Belfast or London.

Any of the North’s battalion of human rights groups could have this struck down by a judicial review, if they could tear themselves away from making up Brexit scare stories.

Divisive issue

Direct rule is a divisive issue. Every main unionist party has demanded it since Stormont collapsed, while every main nationalist party plus the Irish Government has described it as unacceptable. The flip side of nationalist voters losing faith in Stormont and looking towards a united Ireland is unionist voters losing faith in Stormont and looking towards direct rule – both are equally menacing developments for devolution.

Direct rule would be a lot less menacing, certainly as a temporary measure, if it was not for the DUP-Conservative pact, which makes any prospective UK ministers in Belfast look like de facto DUP ministers in nationalist eyes. Avoiding that appearance is the main reason London has shied away from direct rule so far.

Perhaps this is another question that should be put before the courts. Unionist voters are entitled under the Human Rights Act and the Belfast Agreement to participate fully in the political life of the United Kingdom – they cannot be excluded from the process of forming a British government.

Can that right really conflict, perversely, with everyone’s right to an elected government?