For all the talk of the DUP and Sinn Fein having been in a bunker until early July seeking a way through towards restoring devolution, it is increasingly evident neither has any intention of doing so. The DUP is quite happy to play with the big boys (risking economic and social stability as they do so, but as long as you can run a consultancy lobbying alongside your MLA work or get a few free family holidays in exotic islands as an MP, who cares?) and Sinn Fein is simply clueless about how to govern and actually deliver (hence its savaging in the Republic’s European and local elections last month, alongside its worst vote share since 2001 in Northern Ireland). I would love them to prove me wrong and take the next phase of talks seriously – but frankly it is much easier for both of them just to blame everyone else, even though this renders rather pointless any vote cast for them (since they will just blame everyone else no matter what mandate they receive).
This presents an apparently unsolvable problem, because a deal between those two parties specifically is what is needed to restore devolution (and since they like to blame everyone else but this leaves them with the option only of blaming each other, the circle just becomes ever decreasing each time).
It is evident, therefore, that devolution will not be restored until the requirement for the DUP and Sinn Fein to agree to it is removed.
Even though the fundamental problem is our tendency to elect populists who promise much and deliver little (as opposed to people who understand the limitations of governing a complex and diverse society), it is worth emphasising what the structural problem specific to Northern Ireland is.
It is said that, to be able to take and hold office, an executive (or government) has to be able to command a majority in the legislature (or parliament/assembly). In fact, this is inaccurate. The requirement is not to have a majority against it. This is highly relevant in the UK currently, where Boris Johnson will soon command the overt support of only 321 of 643 MPs even for confidence and supply purposes, yet will be able to hold office because fewer than that are expressly against him. This is decidedly tricky, of course, and one significant issue in the run-up to 31 October is whether the number against him will rise to form a majority (and that is a majority only of those voting in a confidence vote, not in Parliament itself), which is a possibility particularly if some aggravated ex-Minister or Remainer Conservatives decide enough is enough.
The problem in Northern Ireland is that merely having a majority against you is not enough. In practice, you need a majority of both the largest two designations – in other words, both a majority (or “not-minority”) of Unionists and a majority (or “not-minority”) of Nationalists. This hands all the power after an election to the largest Unionist and largest Nationalist party, but an Executive can only be formed if they both agree to one.
Furthermore, there is the oddity that an Executive may only be formed and a legislature (Assembly) may only sit after those parties have agreed to form an Executive. In most systems, the legislature would sit anyway and outgoing Ministers would remain in a caretaker capacity. Northern Ireland is unique in not having this, and leaving the time between the election and formation of an Executive as a complete limbo period.
This suits the two largest parties electorally, of course, because they can simply go to the polls ignoring the key issues and just demanding a mandate to beat the other side. However, ultimately it is a ridiculous zero-sum game which fundamentally doesn’t work. We should stop kidding ourselves that it ever will.
That means we have to assess other options for governing this place.
“Direct Rule” actually means the appointment of Ministers to the Northern Ireland Office to fulfill the functions of Executive Ministers, theoretically accountable to the UK Parliament rather than the Northern Ireland Assembly (but in practice not really accountable to anyone).
A lot of people find this tempting because at least it means decisions would at least be made, and it is familiar.
However, it is also fundamentally undemocratic, and in fact illegal under the 2006 Agreement. Most importantly, it is democratically illegitimate as almost literally no one in Northern Ireland voted to be governed by the Conservatives, particularly not in their current guise. “Consent of the governed”, anyone?
So, tempting though this appears, it is not a serious option. (Under the current government, of course, “not being a serious option” is not a reason to discount something happening…)
Weighted majority Executive
This essentially requires an amendment so that any Executive which can be formed and can pass a Programme and a Budget without being defeated may continue to hold office.
In practice, given a Petition of Concern could be used to defeat it, this would mean that any Executive not opposed by 30 Assembly members (essentially, commanding two thirds support or, at least, two thirds consent) could hold office – there is no “designation” and no “d’Hondt”.
Such an Executive would inevitably be cross-community. Indeed, there would be no reason for the Petition of Concern to be allowed for any purpose other than challenging a Programme or Budget once one was formed (and perhaps calling in any policies or legislation which breach human rights or equality law).
Remember, such an Executive would not be required to appoint Ministers to the current Departments – it could shift them about a bit and even have more or fewer; nor would it be required to have a First and deputy First Minister – it could have just a First Minister, or even a Senior Ministerial Council with a rotating chair (similar to Switzerland, which rotates its Presidency every year). Exactly how Ministerial (and First/senior Ministerial) portfolios are allocated would be part of the negotiation to form the Executive and agree the policies to offer to the Assembly in its Programme and Budget.
At the moment, a DUP-Alliance-SDLP Executive could be so formed; or a SF-Alliance-UUP one. Most intriguingly, perhaps, an SDLP-UUP-Alliance Executive could likely be formed if either the DUP or Sinn Fein opted not to bring it down (in other words, they would have to vote together to stop it taking office).
Given that the penalty for not being able to form an Executive would be another election, any party bringing down an Executive would have to be very sure about its position with the electorate (and particularly if it continued to do so). Causing ongoing instability (rather than merely taking a seat in opposition and scrutinising performance from there) would be unlikely to be a vote winner in the long run.
This is essentially a technocracy – the Assembly operates as normal, but instead of appointing Ministers by party strength from among its number, Ministers are appointed on the basis of some evident competence in the same way that Commissions are. Essentially, each Department would receive a Commissioner with Ministerial authority until such time as the parties in the Assembly were able to provide their own. Scrutiny would therefore still be provided by elected representatives, with the potential for them to take on Ministerial roles at any time if they can find agreement to do so on a cross-community basis.
This seems peculiar, but it is not at all unusual even in sovereign states. Italy did it at the height of the financial crisis. The Czechs have did it a decade ago (in fact, its technocratic government proved extremely popular). Notably, Austria is governed in exactly this way at time of writing. It can in fact be a highly effective way of bringing expertise into government and, dare we say it, making decisions which have to be made – is that not exactly what Northern Ireland needs?
I emphasise I am writing in a purely personal capacity but those, it seems to me, are the options. They are not exclusive – with the exception of Direct Rule (which is democratically illegitimate) they could in fact be tried in order. Is the new Secretary of State Julian Smith an “outside-the-box” thinker? We may be about to find out.