Direct rule and the governance of Northern Ireland

By Derek Birrell

This is the first comprehensive study of direct rule as the system of governance which operated in Northern Ireland for most of the period between 1972 and 2007. The major institutions of governance are described and examined in detail, including the often neglected sectors of the role of the Westminster parliament, the civil service, local government, quangos, ombudsmen offices, cross-border structures and the public expenditure process.

The book explains how the complex system covering transferred, reserved and excepted functions worked and provided viable governance despite political violence, constitutional conflict and political party disagreements. In addition, a comparison is drawn between direct rule and devolution, analysing both the positive and negative impact of direct rule, as well as identifying where there has been minimal divergence in processes and outcomes. It will prove an invaluable reference source on direct rule and provide a comparative basis for assessing devolution for students of public administration, government, politics, public policy and devolution.

• Language: English
• Publisher: Manchester University Press
• Release date: Jul 19, 2013
• ISBN: 9781847797179

Book preview

1

Introduction

Direct rule is best defined as the exercise of the transferred functions of government in Northern Ireland by the United Kingdom Government. Thus direct rule takes its meaning from its particular relationship with forms of devolution which have existed throughout the history of Northern Ireland. From 1921 to 1972 Northern Ireland had a unique system of executive, legislative and administrative devolution over a set of transferred (devolved) powers within the United Kingdom. This ended in 1972 when the British Government, faced with violent conflict and political turmoil, took action to transfer all statutory and executive responsibility for law and order to the United Kingdom Government and Parliament. The subsequent decision by the existing Northern Ireland Government to resign led to the British Prime Minister, Edward Heath, announcing the transfer of devolved powers from the Stormont government and Parliament to the United Kingdom Government and Parliament. This new ‘direct rule’ was intended to be temporary until new lasting political arrangements could be agreed upon. The temporary nature of these measures was exemplified in provisions that the legislation imposing direct rule had to be renewed annually. However, during the period 1972–2007 direct rule was to be in position continuously except for short periods when there was a return to devolved government as Table 1.1 indicates. The practice of the United Kingdom Government exercising functions directly in Northern Ireland was of course not new, in that the original Government of Ireland Act 1920 had specified a list of excepted and reserved powers which the British Government retained and exercised detailed administrative responsibility over. In practice direct rule meant the exercise of all functions of government in Northern Ireland by the UK Government.

With the introduction of direct rule the British Government had direct comprehensive control over key policies to tackle the continuing violence and conflict in the areas of security policy, the search for a political settlement and social and economic reforms to assist in the amelioration of conflict. As direct rule continued it had to become more proactive in relation to its responsibilities for the total good governance of Northern Ireland and to provide a degree of stability and continuity. Direct rule inherited a still distinctive system of administration with a separate Northern Ireland Civil Service, government departments and other public bodies, and these remained in operation. It also inherited a separate body of legislation and policy for what had been devolved matters and a separate statute book of Northern Ireland legislation. The relationship between direct rule and devolution is somewhat complex and as a form of government direct rule can be considered as direct rule plus administrative devolution. Direct rule did not mean the complete and total integration of Northern Ireland into government from London. As well as a separate structure of public administration and separate legislation a new territorial department, the Northern Ireland Office, was created. Direct rule, therefore, had some of the characteristics of a system of administrative devolution. It was also the case that until 1999 many of the ways in which Northern Ireland was governed had similarities, particularly with Scotland and to a lesser extent with Wales, as these parts of the United Kingdom were also governed through a form of administrative decentralisation. A major difference was that Scotland and Wales had not this form of government following a suspension of a previously existing devolved government and parliament and had not a tradition of such wide-ranging separate legislation and administrative differences. At the times when devolution was restored to Northern Ireland it did not mean the end of direct United Kingdom involvement in the governance of Northern Ireland. With devolution the United Kingdom government still retained important direct responsibilities for excepted and reserved functions. Thus, with devolution, it is better to consider Northern Ireland as having two governments with a division of powers which should be complementary to each other. Constitutionally, the United Kingdom Parliament is sovereign and at any time can legislate on any devolved matter.

Table 1.1 Northern Ireland governance

As direct rule developed over the years it was to make a major impact on all the institutions and agencies of government and public policy-making in Northern Ireland. Direct rule was to be moulded to fit with the existing government, parliamentary and administrative institutions and practices in London as well as the continuing institutions of governance in Belfast. Furthermore, as the political and constitutional context developed, institutional relationships with the government and public bodies in the Republic of Ireland became more important.

Direct rule also had certain unusual features as a system of government within the United Kingdom. Such features can be identified as:

• a system of government described formally and informally as interim or temporary;

• a system of government where those holding office and exercising power wished to bring the system to an end and worked to bring that; about

• a system of government which was not the first preference of the population governed by it;

• a system where the government ministers taking key decisions were not accountable to the electorate they were governing as they did not represent Northern Ireland constituencies and their parties did not contest elections in Northern Ireland, apart from a small Conservative party foray.

Overall, this study identifies, describes and explains the key features of direct rule as it developed into a distinctive system of governance. The term governance is used to cover all functions and institutions which are governmental in nature but may not be directly provided by government ministers. This requires an examination of the impact of direct rule on the institutions of government which had previously existed in Northern Ireland as well as the impact on the UK Government and the Westminster Parliament. This includes the impact on policy formation, legislation, administrative structures and service delivery, including the development of new policies, strategies, procedures and institutions. The interaction of direct rule with the continuing responsibility of the UK Government over reserved and excepted matters is explained as is the growing importance of cross-border institutional relationships in Ireland. The processes of direct rule are also put in a comparative context in relation to Great Britain and in more recent years with reference to the Scottish and Welsh Governments. The periods of restored devolution, although brief to date, also provide a basis for drawing some conclusions on the relative merits and shortcomings of direct rule and devolution as systems of government for Northern Ireland. The book chapters are based on the key elements of direct rule as a system of government while the above themes also inform the content of each chapter.

Chapter 2 sets out the constitutional and legal frame work under which direct rule was introduced and evolved. It explains the temporary context of the arrangements and the procedures introduced for both replacing and restoring direct rule. The division of government functions into transferred, excepted and reserved matters is explained as are amendments to this division. Chapter 3 examines the exercise of executive power under direct rule through the role of the Secretary of State for Northern Ireland and the tier of Northern Ireland Office ministers. This chapter also comments on the different approaches and priorities of successive secretaries of state and their relationship to the Prime Minister, Westminster and Whitehall. Their activities in relation to Irish Government ministers and the EU is also discussed. Chapter 4 examines the impact of direct rule on the parliamentary procedures at Westminster. It describes the special legislative process adopted for transferred legislation, the establishment of specialist Northern Ireland committees, the work imposed on other parliamentary committees and the impact on Northern Ireland business of reform and innovations in parliamentary procedures. An evaluation is made of priorities and shortcomings in handling Northern Ireland business under direct rule. Chapter 5 deals with a key institution of government, the Civil Service machinery, particularly in the context of the Northern Ireland Civil Service maintaining its status as a separate civil service. The structure of Northern Ireland departments, executive agencies, the Northern Ireland Office, other UK departments in Northern Ireland and changes occurring under direct rule is described. The impact of Home Civil Service reforms, efficiency drives and modernisation on the Northern Ireland Civil Service is discussed. An assessment is also made of the policy role of civil servants under direct rule. Chapter 6 examines another part of the administration machinery, quangos, or public bodies. There was a long established practice of the use of such bodies in governance in Northern Ireland and their use continued under direct rule. There is a key distinction between quangos sponsored by Northern Ireland departments, and those sponsored by the Northern Ireland Office and other United Kingdom departments. The rationale for the use and value of quangos under direct rule as opposed to devolution is discussed. Chapter 7 describes how the local government system functioned in relation to direct rule. A system with very limited functions had been introduced at the same time as direct rule commenced. The structure and functions of local government are described with areas of development and reform under direct rule identified. Chapter 8 gives a summary of the operation of financial arrangements and public expenditure. The basis of the system is explained including the key areas of block grant allocation, the use of the Barnett formula and the nature of the UK subvention. The particular impact of direct rule in determining patterns of expenditure and priorities and EU funding is addressed. The development of the Anglo-Irish relationship and cross-border cooperation has been a major feature of direct rule and this process is analysed in Chapter 9. The different levels of institutional cooperation are described including the involvement of other territorial governments from Great Britain. The way in which direct rule facilitated the growth of cross-border initiatives and institutions is highlighted. The suspension of devolution in 2002 put a particular onus on the direct rule administration to accommodate the new North–South institutions. Another important priority for direct rule administrations has been action to ameliorate the conflict in Northern Ireland. This has given rise to a wide range of measures and strategies to deal with discrimination, equality, human rights and complaints against public bodies. Chapter 10 describes the various ombudsman offices, commissioners and commissions that were set up under direct rule. Their structures, powers, effectiveness and inter-relationships are examined and a comparison is made in relation to their uniqueness or otherwise in governance in the United Kingdom. Chapter 11 presents an overview of public policy-making under direct rule. This identifies the degree of convergence in policy and legislation with Great Britain and also areas of divergence and the reasons for these patterns. The major influences on policy and the nature of policy networks are also examined. The book ends with an overview of the achievements and failures of direct rule in relation to substantive policies, policy formulation, administrative delivery systems, public participation and accountability, and contribution to well-being. This is particularly set in the context of a comparison with the operation of devolution.

2

The constitutional framework

All the provisions for the government of Northern Ireland since the Government of Ireland Act 1920 have been set out in legislation passed in the Westminster Parliament. It was on 24 March 1972 that Edward Heath the Prime Minister rose in the House of Commons to announce that the British Government was assuming full and direct responsibility for the administration of Northern Ireland until a political solution to its problems could be worked out in consultation with all those concerned. Legislation followed, transferring all legislative and executive powers from the existing Northern Ireland Parliament and Government to the United Kingdom Parliament and a United Kingdom Cabinet minister. All the constitutional changes since 1972 have also been introduced through legislation passed at Westminster.

The transfer of powers, 1972–73

The Northern Ireland (Temporary Provisions) Act 1972 was brief and did the minimum necessary to initiate direct rule. It did not replace the 1920 Act but rather superimposed upon it certain temporary provisions. The Parliament of Northern Ireland stood prorogued, although not dissolved, and the Westminster Parliament was given the power to make laws for Northern Ireland through orders-in-council. The devolved government of Northern Ireland was suspended. A new office of Secretary of State for Northern Ireland was created to take over the executive functions of the Northern Ireland Government and the functions of the Governor of Northern Ireland and to assume overall responsibility for the Northern Ireland Government departments. The provisions of the 1972 Act expired after one year but could be extended for a further period of one year. Other details of the Act made provision for the Attorney General for England and Wales to become the Attorney General for Northern Ireland and also for the appointment of a commission to advise the Secretary of State in the exercise of his functions. It also specified that nothing in the Act would alter the status of Northern Ireland as part of the United Kingdom. The UK Government also introduced provisions for holding regular plebiscites to ascertain the views of the electorate on the constitutional position of Northern Ireland. The Border Poll Act 1972 prescribed the questions in the plebiscite. A poll was held in March 1973 and produced an overwhelming majority of those voting to remain within the United Kingdom but the provisions of the Border Poll Act were not to be used again. These legislative provisions were intended to be temporary to cover the period when the Government produced new constitutional proposals for the government of Northern Ireland. The first such constitutional proposals were produced in March 1973 (Secretary of State, 1973) and these were enacted through the Assembly Act 1973 and the Northern Ireland Constitution Act 1973.

The constitution of 1973

While the Assembly Act simply provided for the election of a seventy-eight-seat assembly the Constitution Act was much more complex. After an initial declaration that Northern Ireland would remain part of the United Kingdom and not cease to be so without the consent of the majority of the people of Northern Ireland, it spelt out a detailed scheme for the devolution of legislative and executive powers to the elected assembly. The Act was intended to provide a constitutional framework which would require further subordinate legislation. This approach had the advantage of allowing flexibility and avoiding delay in producing further specific legislation. The controversial part of the 1973 Act specified that the devolution of legislative and executive power could only take place if a Northern Ireland executive could be formed which had widespread acceptance throughout the community and there were satisfactory arrangements for committees based on power-sharing within the assembly. Other provisions of 1973 Constitution Act were to be important in laying a further basis for direct rule. There was a tripartite division of powers (Table 2.1) which was based on the 1920 Act. Firstly, excepted matters, which were of national importance and over which Westminster retained sole and permanent responsibility and these powers included the crown, elections, taxation, international relations, the armed forces, nationality, the appointment of judges and other judicial positions. Secondly, reserved matters which were those where Westminster retained responsibility but exceptionally laws could be made by the Assembly with the consent of the Secretary of State. Eventually these powers could be handed over completely to the assembly. Reserved matters included the police, public order, criminal law and the courts, firearms and explosives, foreign trade, navigation and broadcasting. Thirdly, transferred matters which covered all other matters and would be the responsibility of a devolved assembly and executive. This division of powers marked a reduction in transferred powers compared with the 1920 division with important law and order and electoral matters moved to the excepted and reserved list. However, the hand-over of reserved matters would have meant an increase in powers compared to the old Stormont system. Executive responsibility for the administration of the courts and exceptional measures in the law and order field was reserved to the Secretary of State for Northern Ireland. Ministerial responsibility for public prosecutions was vested in the Attorney General and responsibility for all judicial appointments was reserved to the Lord Chancellor. Certain other powers previously exercised by the Northern Ireland Government in relation to the police, public order and penal establishments were reserved to the Secretary of State because of the security situation.

Table 2.1 Division of powers, 1973

The legislation also enacted a number of other important constitutional changes. It specified that both the Parliament of Northern Ireland and the office of Governor of Northern Ireland should cease to exist. Part III of the Act contained provisions on human rights which outlawed religious and political discrimination in the public sector and set up a Standing Advisory Commission on Human Rights. In the light of the Government’s commitment to an Irish dimension section 12 gave a Northern Ireland executive authority to enter into agreement with the Republic of Ireland in respect of any transferred matter.

Following agreement on the basis for setting up a Council of Ireland at the Sunningdale Conference in December 1973 between representatives of three political parties, the British Government and the Government of Irish Republic, the 1973 Act was put into full effect. The date 1 January 1974 was the appointed day for the devolution to the Northern Ireland Assembly of legislative powers and to the new Northern Ireland Executive of executive powers. The Assembly and Executive did not really get off the ground due to the hostility of loyalist coalition members opposed to power-standing and the Council of Ireland. In May 1973 the Chief Executive, Brian Faulkner, announced in the Assembly that the Sunningdale agreement on a Council of Ireland would be implemented in two phases, in the first a Council of Ministers would be established and in the second a Consultative assembly would be created. Loyalist opposition increased leading to a widespread stoppage of work organised by the Ulster Workers Council (Fisk, 1975). The Chief Executive and his Official Unionist colleagues resigned under this pressure and as the necessary broad basis for the maintenance of the Executive accordingly had ceased to exist the warrants of the remaining members of the Executive were revoked (Faulkner, 1978: Bew et al., 1996). The 1973 Constitution Act itself made formal provision for the UK Government to prorogue or dissolve the assembly.

The Northern Ireland Act 1974

When the Executive came to an end new arrangements had to be made for the government of Northern Ireland. Under the Constitution Act 1973 the powers devolved to the Assembly and Executive did not automatically revert to the British Government and Parliament. The Act, however, did contain provisions to enable government to be carried on. Section 27 of the Act enabled the assembly to be prorogued by order-in-council and Section 8 provided a means for dealing with devolved executive powers under these circumstances, by enabling the Secretary of State to appoint persons from outside the Assembly for up to six months. Using this section the Secretary of State appointed ministers at the Northern Ireland Office (NIO) as the political heads of the government departments, so that Executive government could be carried on. These provisions in the 1973 Act which were brought into force for the temporary government of Northern Ireland were designed only for short periods which might arise between executives. The Government accepted that these arrangements could only be temporary as they had two serious flaws (Secretary of State, 1974). Firstly, the position of ministers from Westminster as heads of departments was anomalous in that under the Constitution Act they were responsible to the Assembly which was prorogued and not to the Westminster Parliament for their decisions and actions. Secondly, the legislative procedures for Northern Ireland under the Northern Ireland (Temporary Provisions) Act 1972 had lapsed since 1 January 1974. During this period any Northern Ireland legislation would have to be introduced through ordinary bills passed at Westminster and the parliamentary timetable could not bear this load for long. These flaws clearly demonstrated the need for new constitutional arrangements. The constitutional provisions of the 1974 Act suspended the operation of the legislative and executive provisions of the 1973 Act and devolved administration again became the responsibility of the Secretary of State and Parliament. The 1974 Act did not repeal the 1973 Act but temporarily set aside those sections dealing with the functions of the assembly and executive. With the legislative functions of the assembly suspended laws would be made by order-in-council at Westminster, no appointments would be made to a Northern Ireland administration and the Northern Ireland departments would discharge their functions subject to the direction and control of the Secretary of State (NIO, 1975). The other provisions of the 1973 Act remained in force. This measure was again introduced as a temporary scheme and was not intended to be a permanent form of government. The arrangements had a life of one year with the Secretary of State empowered to extend them by order-in-council for a further period of up to one year. From 1974 to June 1998 these constitutional arrangements were renewed annually. The 1974 Act also set out the statutory basis for an elected seventy-eight-member convention to consider what provision for the government of Northern Ireland was likely to command the most widespread acceptance throughout the community. The convention transmitted a report on its deliberations to the Secretary of State but its final report was not acceptable to the government and the convention was dissolved in March 1976 by order-in-council made under the 1974 Act. This left the section reintroducing direct rule as the sole operative provision of the 1974 Act (Hadfield, 1989). The following few years saw no major constitutional legislation although in 1979 the Labour Government agreed to legislate to increase the number of Northern Ireland seats at Westminster from twelve to seventeen. The period 1979–82 did see an attempt by the British Government to design a constitutional system which would amend direct rule by at least transferring some powers back to locally elected representatives.

The role of the Northern Ireland Assembly, 1982–86

The 1982 Act was designed to introduce a form of devolution by gradual stages (Secretary of State, 1982). It has been described as a legal graft onto the existing constitutional arrangements prescribed in the 1973 and 1974 Acts (McGuire, 1982). While primarily a facilitative measure it was also intended to improve the processes and scrutiny of direct rule (Hadfield, 1989: 152). The Act provided for a seventy-eight-seat assembly, the legal basis of which was in the 1973 Act. The Assembly was given powers of scrutiny and deliberation and could consider any matter affecting Northern Ireland whether transferred or excepted and also reserved matters referred by the secretary of state. It was obliged to establish a scrutiny committee for each Northern Ireland Government department. However, the main task of the Assembly was to report on how a Northern Ireland administration could be formed and under what arrangements executive powers should be exercised. The devolution of executive and legislative powers could either take place en bloc or there could be partial devolution under which only functions relating to some Northern Ireland departments would be transferred leaving others subject to direct rule. The Assembly came into existence and was able to carry out its deliberative and scrutiny functions and establish a system of committees. Direct rule ministers did attend some Assembly and committee sessions to explain government policy and these arrangements did not affect the continuing accountability of ministers to the Westminster Parliament. On the conclusion of a committee investigation a report was made to the minister containing recommendations for changes in policy and legislation. A report published in 1984 claimed that 138 recommendations which the government had accepted represented an acceptance rate of 64 per cent (NIA, 1984). A detailed study calculated that 42 per cent of the total of 998 recommendations made by the assembly committees were accepted by government (O’Leary et al., 1988). Many concerned minor issues rather than major matters of substance but for this limited period the Assembly and its committees did give locally elected politicians some say over policy and administration. This was to be the only period of direct rule when there was a local political forum which could exert some influence in policy until 1999. In December 1985 the unionist parties adjourned most of the operations of the Assembly in protest at the signing of the Anglo-Irish Agreement and in June 1986 the Secretary of State announced that the Assembly was not performing its main functions and moved its dissolution.

The involvement of the Irish Government

The Anglo-Irish Agreement of 1985 was the outcome of increasing contact and negotiations between the British and Irish Governments which had started at Anglo-Irish summits in 1980 and continued through an Anglo-Irish Intergovernmental Council which provided an overall framework for intergovernmental consultation at head of government, ministerial and official levels (Kenny, 1986). The establishment of this council did not require any new legislation. The Agreement put Anglo-Irish relations on a new footing by giving the Irish Government a role in influencing public policy in Northern Ireland. Article 1 of the Agreement (UK Government, 1985) affirmed that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland. The main institution established was an Intergovernmental Conference within the framework of the existing Anglo-Irish Intergovernmental Council. This Conference was to deal on a regular basis with political, security and legal matters and the promotion of cross-border cooperation. The United Kingdom Government accepted that the Irish Government would put forward views and proposals on matters relating to Northern Ireland but there was no derogation from the sovereignty of the United Kingdom Government. The Conference would operate at official and ministerial level and there would be a permanent secretariat. It was specified that the conference would concern itself with measures to recognise and accommodate the rights and identities of the two traditions, security policy, prisons policy, the enforcement of the criminal law, relations between the security forces and the community and also the composition of public bodies. In practice the Intergovernmental Conference met eight or nine times a year. The Secretary of State and the Irish Foreign Minister were joint chairs and normally two other ministers from each government attended as well. The Conference was serviced by a secretariat based at Maryfield in Belfast, made up of twenty British and Irish civil servants, seconded from the Foreign Office in London and the Foreign Ministry in Dublin. Shortly after the signing of the Agreement Margaret Thatcher stressed that full responsibility for the decisions and administration of government remained with the United Kingdom Prime Minister, stating in an interview that this was not an agreement for the government of Northern Ireland (Thatcher, 1985). The Anglo-Irish Agreement did not make any difference constitutionally to the way that Northern Ireland was governed. It did not give the Irish Government any legal powers over the government of Northern Ireland and therefore did not constitute a form of joint authority. The Anglo-Irish Agreement was an interstate treaty governed by the rules of international law but as such it was not binding on either government in domestic law (Hadden and Boyle, 1989).

In 1989 a review of the working of the Conference was carried out which noted that it had met on twenty-seven occasions since the Agreement and had provided a valuable forum to promote cooperative action. The two governments reapproved their full commitment to all of the provisions of the Agreement and adopted some recommendations for structural changes to the secretariat (Irish Times, 1989). The political rather than constitutional nature of the Agreement was emphasised when it was agreed to suspend meetings for a period in 1992 to allow opportunities for political talks involving the Northern Ireland political parties and the United Kingdom and Irish Governments. The Anglo-Irish Agreement continued to sit uneasily attached to the constitutional framework of direct rule. While commentators tended to regard the role given to the Irish Government as ambiguous or even ‘disastrously unclear’ (Cox, 1986) it did give the Irish Government a formal channel of influence. The then Secretary of State, Tom King, was to note that ‘the Intergovernmental Conference was not a decision-making body, except on cross border security and we are meeting as governments of two sovereign states’ (King, 1986). The routine working of the Anglo-Irish Intergovernmental Conference was used by the Irish Government particularly to make representations on the operation of the security forces in Northern Ireland and also on issues related to discrimination and deprivation. There was, however, little evidence of any harmonisation of major areas of social and economic policy. The main constitutional impact of the Anglo-Irish agreement was for the future (O’Leary and McGarry, 1996), with the acceptance by the UK Government of the right of the Republic of Ireland to be involved in decisions about the government of Northern Ireland.

The Downing Street Joint Declaration between the British and Irish Governments, made on 15 December 1993, represented a new London–Dublin political initiative. The text (UK/Irish Governments, 1993) reiterated Northern Ireland’s statutory constitutional guarantee and reaffirmed that the British Government would uphold the democratic wish of a greater number of the people of Northern Ireland, on the issue of whether they prefer to support the Union or a sovereign united Ireland. On this basis the British Government reiterated that they had no selfish strategic or economic interest in Northern Ireland. The British and Irish Governments also undertook to create institutions and structures which, while respecting the diversity of the people of Ireland, would enable them to work together in all areas of common interest. Again the Downing Street Joint Declaration, like the Anglo-Irish Agreement, did not require any new legislation at Westminster. It was a policy statement and did not