The Northern Ireland (Executive Formation and Exercise of Functions) Bill, which arrives in the House of Lords today, is set to be enacted by way of fast-track legislative procedure this week. The Bill intends to facilitate the formation of an Executive in Northern Ireland while providing for the exercise of executive functions by civil servants in the interim. In effect, the Bill suspends the statutory duty on the Secretary of State to call a Northern Ireland Assembly election. This is little more than a continuation of the present situation in which the UK Government has kept administration in Northern Ireland ticking over since March 2017. Much more controversially, the Bill gives civil servants within Northern Ireland departments general powers for the administration of Northern Ireland, introducing a public interest test for the exercise of these powers. Cross posted from the UK Constitutional Law Association

The UK Government has clearly lost patience after a period of more than eighteen months in which the political parties in Northern Ireland have failed to form an administration. While the Government’s frustration is certainly understandable, the Bill nonetheless raises significant problems of both constitutional practice and principle as the House of Lords Constitution Committee observes in a critical report to the House ahead of second reading. In this blog I consider the background to the Bill and assess some of the constitutional problems it raises.

The power-sharing Executive in Northern Ireland collapsed on 9 January 2017 when the serving Deputy First Minister Martin McGuinness resigned. When the Northern Ireland Assembly failed to nominate a new deputy First Minister the Secretary of State for Northern Ireland fell under a statutory duty to set a new election (1998 Act, s.32(3)). This was held on 2 March 2017, but again the Assembly failed to form an Executive as required by statute (1998 Act, s.16), leaving the Secretary of State with a duty under the 1998 Act to propose a date for a further, probably pointless Assembly election. That period ended on 27 March 2017. The timeframe within which ministers must be appointed was extended to 29 June 2017 by the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017, to no effect. Since then no election date has been set and the Northern Ireland Assembly has not met since 13 March 2017.

In the interim period the UK Government has overseen the continuation of public administration in the province and Parliament has voted supply, while day to day administration is conducted by Northern Ireland civil servants. This stop-gap arrangement has however run into practical problems. In Re Buick [2018] NICA 26 the Court of Appeal in Northern Ireland found that while Northern Ireland departments, as well as ministers, can exercise statutory functions, the powers of the former are more limited in nature and do not extend to matters that would normally require the discussion and agreement of the Executive Committee of the Northern Ireland Assembly. Another implication of the decision is that departmental civil servants may not have the power to approve decisions, such as senior public appointments, which would ordinarily be referred to ministers for approval. With various public appointments in the judicial area now in the pipeline this is potentially problematic, prompting the UK Government to respond with the current Bill.

Clause 3 of the Bill vests a “senior officer” of a Northern Ireland department with general discretionary powers, to be exercised in the public interest. It further provides that senior officers of Northern Ireland departments must “have regard” to “guidance” from the Secretary of State. This guidance (‘the draft Guidance’) has been published in draft form alongside the Bill.

A public interest test is by its nature very broad. It is an established constitutional principle that such a level of discretion should only be exercised by ministers and not by unelected officials. The draft Guidance does attempt to constrain this highly unusual power in a number of ways. In the first place it will operate alongside the Northern Ireland Civil Service Code of Ethics. The draft Guidance also seeks to draw a distinction between policy and administration, declaring that “major policy decisions, such as the initiation of a new policy, programme or scheme, including new major public expenditure commitments, or a major change of an existing policy, programme or scheme, should normally be left for Ministers to decide or agree.” (para. 7) It is with this qualification in mind that departments should then consider “whether there is a public interest in taking a decision rather than deferring a decision during the period for Executive formation.” (para. 8).

However, in setting out the principles that should be taken into account in deciding whether there is a public interest in taking a decision in the absence of Ministers, it is apparent from the draft Guidance that there is no possibility of a clear distinction between purely administrative decisions on the one hand and policy decisions on the other. While one principle (“that the priorities and commitments of the former Executive and Minister(s) should be followed unless there is an exceptional circumstance… which lead senior officials to conclude that it is no longer in the public interest to do so” (para 9(b)), is an attempt to circumscribe this power within the realm of administration, other principles seem to empower officials to advance broad policy objectives – for example the 12 very widely framed outcomes published in the 2018-19 Outcomes Delivery Plan, cited in the draft Guidance, para 9(c). The Constitution Committee notes that, in effect, the draft Guidance “vests unelected officials with potentially very wide policy-related discretion.” In its view there is also a serious concern in relation to accountability: “Northern Ireland officials have no direct line of accountability to UK ministers which means that there will consequently be no line of accountability for decisions made by Northern Ireland officials to either the suspended Stormont Assembly or to Parliament.” Although the Committee also observes that there will be an audit trail of decisions taken, which can be made available to incoming Ministers when an Executive is appointed.

A further issue is that it is unclear in the exercise of these powers whether decisions taken by civil servants will be open to judicial review in the same way as those taken by devolved Ministers. It would be dangerous and highly constitutionally questionable to treat civil servants as Ministers, even for a limited time and for limited purposes, but if they are not to be so treated, it is not clear how the courts will interpret their role. It is also uncertain what, if any, legal status the Guidance will be given. In the event that the answer is none, with the Guidance document being treated as a merely advisory document, the Committee observes that “the discretion of officials will be all the greater, and undesirable constitutional precedent set”.

Further constitutional issues arise through the retrospective effect of clause 3. This attempts to preclude legal challenges like Buick, which concern decisions made by officials in the period since March 2017. The Committee is alive to the issue of principle here, describing such retroactivity as “irregular and concerning”. It does however also note the practical problems which have led to this provision, and accepts that “in the interests of good administration it would not be helpful if Northern Ireland departments faced repeated judicial review actions in respect of decisions taken by civil servants since March 2017 which would have been lawful if taken by Ministers.”

The Bill also extends the powers of the Secretary of State in relation to senior public appointments in Northern Ireland (clause 4). In effect the Secretary of State takes over the functions of Northern Ireland ministers. The Secretary of State also has wide discretionary powers to extend the list of appointments which she is entitled to make and even the power to change the definition of “appointment function”. At the same time consultation and approval functions in relation to these appointments (which normally rest with Northern Ireland ministers) are given to civil servants. As the Committee concludes: ‘This provision is problematic, as either it could lead to civil servants exercising a policy-influencing role, or it will result in acquiescence by civil servants in relation to UK ministerial decisions with which they do not consider it constitutionally appropriate for themselves to be involved.’

There are other constitutional issues with the Bill, not least the broad secondary law-making powers it contains. For example, clause 1 extends the period (to 26 March 2019) within which the offices of the First Minister and Deputy First Minister can be filled. Clause 2 gives the Secretary of State the power by regulations to extend this period by up to 5 months, and these regulations can be created by ‘made affirmative’ procedure, in effect granting the Secretary of State a power to change the law without parliamentary scrutiny or even approval.

The Bill contains so many provisions of a highly questionable nature, from the perspective both of high constitutional principle and practical efficacy, that it seems to require a thorough assessment by Parliament. However, the use of fast-track procedure precludes this. The Bill was introduced in the House of Commons on 18 October and completed its Commons stages on 24 October. It is expected to complete all stages in the Lords today. The deep concerns with the powers given to UK ministers and to Northern Ireland civil servants raised by the Constitution Committee are therefore compounded by the manner of the Bill’s passage. As the Committee concludes: “We question whether the speed at which the Government wishes to pass this Bill is necessary. Power-sharing has been suspended in Northern Ireland for 18 months and there have been few signs that a resolution to the impasse is likely. Moreover, the judgment in the Buick case was delivered in early July. We understand the Government’s desire to allow the negotiations to continue for as long as possible to avoid this legislation, however more time (even with a fast-track timetable) could have been made available for parliamentary scrutiny for this Bill.”

The situation in Northern Ireland is not of the Government’s making. It is also the case that while the institutions of devolution remain suspended the administration of Northern Ireland is highly dysfunctional. The search for a solution which puts pressure on the political parties to reach agreement is therefore entirely understandable (although it is by no means clear that the Bill will achieve this aim). It is nonetheless deeply problematic to respond to this state of affairs with a measure that raises a number of constitutional red flags and includes the potentially dangerous constitutional precedent of vesting unelected officials with broad policy-making discretion. Furthermore, to rush such a measure through Parliament without adequate scrutiny would be, in less pressing circumstances, simply unacceptable.

----------------------------------
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and a Senior Fellow of the Centre on Constitutional Change. He serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a purely personal capacity.

(Suggested citation: S. Tierney, ‘Governing Northern Ireland without an Executive: Quick Fix or Constitutional Minefield?’, U.K. Const. L. Blog (30th Oct. 2018) (available at https://ukconstitutionallaw.org/))