Direct rule and the governance of Northern Ireland 9781847792716

Citation preview

Direct rule and the governance of Northern Ireland

BDR_PR.indd i

3/23/2009 4:08:33 PM

BDR_PR.indd ii

3/23/2009 4:08:33 PM

Direct rule and the governance of Northern Ireland Derek Birrell

Manchester University Press Manchester

BDR_PR.indd iii

3/23/2009 4:08:33 PM

Copyright © Derek Birrell 2009 The right of Derek Birrell to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA, UK www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 978 0 7190 7757 9

hardback

First published 2009 18 17 16 15 14 13 12 11 10 09

10 9 8 7 6 5 4 3 2 1

The publisher has no responsibility for the persistence or accuracy of URLs for external or any third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Typeset by SNP Best-set Typesetter Ltd., Hong Kong

BDR_PR.indd iv

3/23/2009 4:08:33 PM

To Edith

BDR_PR.indd v

3/23/2009 4:08:33 PM

BDR_PR.indd vi

3/23/2009 4:08:33 PM

Contents

Figures and tables Acknowledgements List of abbreviations 1

page viii x xi

Introduction

2 The constitutional framework

1 6

3 The Secretary of State and the Northern Ireland ministers

21

4 Northern Ireland business in the Westminster Parliament

40

5 The Civil Service: a continuing institution

69

6 The use of quangos

102

7 The role of local government

120

8 Finance and public expenditure

143

9 Cross-border cooperation and British–Irish institutions

167

10 Ombudsmen, commissioners and complaints

197

11 Policy-making under direct rule

229

12 Conclusions

242

References Index

248 270

BDR_PR.indd vii

3/23/2009 4:08:33 PM

Figures and tables

Figures 5.1 5.2 8.1

Northern Ireland Office: structure, 1996 Northern Ireland Office: structure, 2006 Community Support Framework (CSF), 2004

page 74 75 163

Tables 1.1 2.1 2.2 3.1 3.2 3.3 4.1 4.2 4.3 4.4 4.5 5.1 5.2 5.3 5.4 5.5 5.6 5.7 6.1 6.2 6.3 6.4 7.1 7.2 7.3

BDR_PR.indd viii

Northern Ireland governance Division of powers, 1973 Division of powers, 1998 Secretaries of state under direct rule, 1972–2007 NIO ministerial responsibilities, 1997 Ministerial portfolios, 2006 The number of orders-in-council (primary legislation) Northern Ireland acts, 1972–2008 Subject of Northern Ireland Acts, 1972–2007 Territorial coverage of UK bills, 2000–2007 Time debating Northern Ireland orders Functions of the NIO London, 1980 Divisions of NIO, Belfast under direct rule, 1980 Government departments, pre-1999 Northern Ireland government departments, 1999–2007 NICS staff numbers The size of the NICS, 2005 Northern Ireland executive agencies Types of non-departmental bodies Public bodies by department, 1993 Northern Ireland Office quangos, 2006 Review of Northern Ireland quangos, 2006 Population of district councils Party control of councils Councillors by party

2 8 16 23 28 29 41 46 46 49 65 71 72 76 78 87 88 92 104 105 107 115 121 136 137

3/23/2009 4:08:33 PM

Figures and tables 7.4 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 11.1

BDR_PR.indd ix

Categories of functions in new councils Public income to Northern Ireland Consolidated Fund Example of attributed share of UK taxes, 1992–93 Role of Grant-in-Aid in public income, 1993 Subvention to Northern Ireland, 1990–95 Annual managed expenditure £ per head expenditure on services, 1998–2006 Expenditure per head, 1998–2007: Northern Ireland rankings of four countries in the UK Northern Ireland capital expenditure Northern Ireland receipts from the EC, 1975–95 North–South implementation bodies Areas for cooperation Topics for cooperation British–Irish Intergovernmental Conference Programme of work of the British–Irish Council and lead country 2005 summit: British–Irish Council Work sectors and meetings, 2000–07 Inquiries by Inter-Parliamentary Body committees Local government cross-border networks Common chapter North/South expenditure Investigation of complaints by Parliamentary Commissioner/Assembly Ombudsman The main subject areas of complaint to the Parliamentary Commissioner, 1995–2005 Bodies against which complaints received and outcome. Commissioner for Complaints Health service complaints, 1999–2008 Individual Investigations by the FEA NIHRC and individual complaints Police Ombudsman complaints Details of complaints, Independent Assessor of Military Complaints Ombudsmen and Commissioners UK governments: party composition during direct rule

ix 140 144 145 146 147 152 154 155 155 161 174 176 179 182 183 184 187 190 192 199 200 202 205 208 217 222 225 227 230

3/23/2009 4:08:33 PM

Acknowledgements

My thanks are due to colleagues who have provided help and encouragement towards the completion of this volume. I also received welcome assistance to enquiries from government departments and other public bodies in Northern Ireland. I particularly wish to thank Helena Devine for her invaluable work in typing drafts and the final manuscripts. Thanks are also due to Gerry Hasson, Valerie Canny, Amanda Leighton and Carol Wilson for their assistance.

BDR_PR.indd x

3/23/2009 4:08:33 PM

Abbreviations

AIIC AME ARK BIC BIIC BSP CAWT CC CSF CSR DED DEL DoE DFP DHSSPS DSD DUP EAGGF EC EOC EPCU ERDF ESF ESG EU FEA FEC FMI GDP ICBAN ICPC

BDR_PR.indd xi

Anglo-Irish Intergovernmental Council Annually Managed Expenditure Access, Research, Knowledge, Northern Ireland British–Irish Council British–Irish Intergovernmental Conference Building Sustainable Prosperity Cooperation and Working Together Commissioner for Complaints Community Support Framework Comprehensive Spending Review Department of Economic Development Departmental Expenditure Limit Department of the Environment Department of Finance and Personnel Department of Health, Social Service and Public Safety Department of Social Development Democratic Unionist Party European Agriculture Guarantee and Guidance Fund European Commission Equal Opportunities Commission European Policy and Coordination Unit European Regional Development Fund European Social Fund Economic Steering Group European Union Fair Employment Agency Fair Employment Commission Financial Management Initiative Gross Domestic Product Irish Central Border Area Network Independent Commission for Police Complaints

3/23/2009 4:08:33 PM

xii

Abbreviations

IRA MLA NDPB NIA NIAC NIAO NICCY

Irish Republican Army Member of the Legislative Assembly non-departmental public body Northern Ireland Assembly Northern Ireland Affairs Committee Northern Ireland Audit Office Northern Ireland Commissioner for Children and Young People NICS Northern Ireland Civil Service NIE Northern Ireland Executive NIEC Northern Ireland Economic Council NIHCS Northern Ireland Home Civil Service NIHE Northern Ireland Housing Executive NIHRC Northern Ireland Human Rights Commission NIIS Northern Ireland Information Service NILGA Northern Ireland Local Government Association NILTS Northern Ireland Life and Times Survey NIO Northern Ireland Office NSMC North–South Ministerial Council OCPANI Office of Commissioner for Public Appointments for Northern Ireland OCPA Office of Commissioner for Public Appointments OFMDFM Office of First Minister and Deputy First Minister OPSI Office of Public Sector Information PAC Public Accounts Committee PAFT Policy Appraisal and Fair Treatment PCA Parliamentary Commissioner for Administration PCC Policy Coordinating Committee PES Public Expenditure Survey PESA Public Expenditure Statistical Analysis PFI Private Finance Initiative PPP Public Private Partnerships PR proportional representation PSA Public Service Agreement PSIU Public Service Improvement Unit PSNI Police Service of Northern Ireland QUANGO Quasi-autonomous non-governmental organisation RPA Review of Public Administration RUC Royal Ulster Constabulary SACHR Standing Advisory Commission on Human Rights SDLP Social Democratic and Labour Party STV single transferable vote TSN Targeting Social Need

BDR_PR.indd xii

3/23/2009 4:08:33 PM

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

BDR01.indd 1

3/23/2009 4:09:23 PM

2

Direct rule and the governance of Northern Ireland

Table 1.1 Northern Ireland governance 1972 1974 1999 2002 2007

Direct rule imposed Northern Ireland Executive and assembly (five months only) Introduction of devolved government Direct rule restored Restoration of devolved government

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.

BDR01.indd 2

3/23/2009 4:09:23 PM

Introduction

3

As direct rule developed over the years it was to make a major impact on all the institutions and agencies of government and public policymaking 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

BDR01.indd 3

3/23/2009 4:09:23 PM

4

Direct rule and the governance of Northern Ireland

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

BDR01.indd 4

3/23/2009 4:09:23 PM

Introduction

5

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.

BDR01.indd 5

3/23/2009 4:09:23 PM

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

BDR02.indd 6

3/23/2009 4:09:53 PM

The constitutional framework

7

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 seventyeight-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

BDR02.indd 7

3/23/2009 4:09:54 PM

8

Direct rule and the governance of Northern Ireland

Table 2.1 Division of powers, 1973 Excepted matters Crown UK Parliament International relations Armed forces Honours Treason Nationality and immigration Taxation Appointment of judges Office of Public Prosecutions Elections Coinage and bank notes National Savings Bank Special powers

Reserved matters Policing Public order Criminal law Treatment of offenders Prosecutions Compensation International trade Navigation Foreshore and seabed Civil aviation Postal service Broadcasting Nuclear installations Copyright Civil defence

Transferred matters and all other matters, mainly Social Security Health and Welfare Employment Education Training Planning Housing Agriculture Industrial development

Source: Northern Ireland Constitution Act 1973.

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.

BDR02.indd 8

3/23/2009 4:09:54 PM

The constitutional framework

9

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 orderin-council and Section 8 provided a means for dealing with devolved executive powers under these circumstances, by enabling the Secretary

BDR02.indd 9

3/23/2009 4:09:54 PM

10

Direct rule and the governance of Northern Ireland

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-incouncil made under the 1974 Act. This left the section reintroducing

BDR02.indd 10

3/23/2009 4:09:54 PM

The constitutional framework

11

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-eightseat 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

BDR02.indd 11

3/23/2009 4:09:54 PM

12

Direct rule and the governance of Northern Ireland

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

BDR02.indd 12

3/23/2009 4:09:54 PM

The constitutional framework

13

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 AngloIrish 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 AngloIrish 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)

BDR02.indd 13

3/23/2009 4:09:54 PM

14

Direct rule and the governance of Northern Ireland

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 have any immediate implications for the existing constitutional arrangements or the current system of governance. The Framework Document (UK/Irish Governments, 1995) followed the declaration in setting out the way ahead to achieve the British Government’s declared objective to bring about a comprehensive settlement which would return power, authority and responsibility to all the Northern Ireland people on an agreed basis and take full account of Northern Ireland’s wider relationships with the rest of the United Kingdom and the rest of the Island of Ireland. The British Government undertook to enshrine in constitutional legislation the principles and commitments in the Joint Declaration and the Framework Document either by amendment of the Government of Ireland Act 1920 or by its replacement by appropriate new legislation. This Framework Document set the scene for negotiations to reach an agreement with the relevant political parties in Northern Ireland and the Irish Government. The process of negotiation set up by the Framework Document again did not directly affect the on-going system of government by direct rule. A new constitutional settlement: the Agreement, 1998 In April 1998, agreement was reached between the political parties and the two governments at the multi-party negotiations which brought the possible restoration of devolution. Although the agreement became known for the three strands setting up new political institutions, the agreement contained other provisions covering a settlement of constitutional issues (UK/Irish Governments, 1998) which would have continuing applicability whether or not there was devolved government. It recognised that the present wish of the majority was to maintain the union and accordingly that Northern Ireland stays as part of the United Kingdom reflects that wish. The Agreement confirmed that if

BDR02.indd 14

3/23/2009 4:09:54 PM

The constitutional framework

15

in future the people of the island of Ireland exercised their right of selfdetermination to bring about a united Ireland it will be a binding obligation on both governments to introduce legislation to bring that into effect. A further constitutional related provision recognised the right of all the people of Northern Ireland to hold both British and Irish citizenship. Consequently the claim to sovereignty over the whole island of Ireland in article 2 of the Irish constitution was replaced by an aspiration to unity in a new version of article 3 (UK/Irish Governments, 1998: Annex B). The Agreement also covered North–South cooperation, British–Irish cooperation, human rights, equality of opportunity, decommissioning, prisoners, policing and justice. Despite the role of the Irish Government in the negotiation of the agreement its provisions had no legal force without being incorporated into the domestic law of the UK (Hadfield, 2001). The implementation of the Agreement did require extensive legislative action including the replacement of the Government of Ireland Act 1920 and a new Northern Ireland Act 1998. The main focus was on strand one of the Agreement covering the new devolved democratic institutions in Northern Ireland making provision for; a democratically elected assembly, the formation of a power sharing executive through the application of the D’Hont formula based on proportionately and choice of ministerial office, the operation of the assembly, the legislative powers of the assembly, the Executive’s powers and financial provisions. The division of powers maintained the distinction in the 1920 and 1973 acts between excepted, reserved and transferred powers. The list (Table 2.2) was broadly similar to 1973, but had some additions and changes which were to remain in force after the political institutions set out by the 1998 act were in operation or suspended. The excepted matters as the prerogative of the UK Government included an exemption from international relations to facilitate the Assembly and Executive in their dealings with the Irish Government. The list of reserved matters contained quite a number of new Government functions, for example: human genetics, data protection, the national lottery and the national minimum wage. The definition of transferred or devolved matters was again defined as anything not excepted or reserved. Under Strand Two of the Agreement a North–South Ministerial Council was established to develop consultation and cooperation between those with executive responsibilities in Northern Ireland and the Irish Government. A major constitutional change was the establishment of new cross border implementation bodies to execute joint authority over six areas of services. These were established through

BDR02.indd 15

3/23/2009 4:09:54 PM

16

Direct rule and the governance of Northern Ireland

Table 2.2 Division of powers, 1998 Excepted Crown Parliament Elections International relations Defence Nuclear energy Titles of honour Nationality Immigration Taxation National Insurance Appointment of judges Coinage National Savings National security Sea fishing Outer space

Reserved Crown properties Navigation Civil aviation Foreshore/seabed Post Office Criminal law Prosecutions Treatment of offenders Prisons Policing Firearms Civil defence Emergency powers Units of measure Courts Civil Service Commissioners Import/export National Minimum Wage Financial services Money laundering Intellectual property Telecommunications National Lottery Human genetics & fertilisation Consumer safety Data protection Environmental protection

Transferred (all other matters, mainly) Agriculture Health and Social Services Social Security Education Environment Planning Housing Economic development Public finance Local government Sport Equality of opportunity Youth services Libraries Arts and Culture

Source: Northern Ireland Act 1998.

separate legalisation, the North–South Cooperation (Implementation Bodies) Order 1999. Separate legalisation also set up was a new British– Irish Intergovernmental conference replacing the pre-existing AngloIrish Intergovernmental Council and Conference which was to enhance the influence of the Irish Government. A significant feature of these

BDR02.indd 16

3/23/2009 4:09:54 PM

The constitutional framework

17

developments was also that they did not automatically end when the new devolved institutions ceased to function or were suspended. Further separate electoral legalisation made provision for the establishment of the new assembly and 108 members of the legislative assembly (MLAs) were elected in June 1998. Section 3 of the Act provided that if it appeared that sufficient progress had been made in implementing the Agreement the Secretary of State would lay before Parliament a draft order-in-council appointing a day for the commencement of the provisions dealing with the legislative powers of the assembly and with the transferred functions of the executive ministers. The restoration of devolution was delayed by further political negotiations over the decommissioning of weapons held by paramilitary groups. Decommissioning itself had required special legalisation through the Northern Ireland Arms Decommissioning Act 1997. The restoration of devolution, 1999–2002 The 2 December 1999 was the appointed day that eventual power was devolved to the Northern Ireland Assembly and its Executive Committee marking the end of a near twenty-seven-year period of direct rule. On the same date the North–South Ministerial Council, North–South Implementation Bodies and the British–Irish Intergovernmental Conference became fully functional institutions. A number of legislative orders passed at Westminster, a Departments Order and a Transfer of Functions Order, finalised the replacement of direct rule. The operation of the new devolved Assembly and Executive was far from smooth with the DUP refusing to attend the formal meetings of the four-party Executive and with the First Minister David Trimble’s and Official Unionist concern at commitment to decommissioning by the Republican movement. Trimble’s leadership came under increasing pressure from his party. Between 2000 and 2002 the assembly was to be suspended on four occasions February to May 2000, 11/12 August 2001, 22/3 September 2002 and from 14 October 2002. On two occasions the suspension was more technical in order to provide a further period of six months for negotiations and to support Mr Trimble’s position. Primary legislation in the form of the Northern Ireland Act 2000 was introduced in February 2000 to provide for the suspension of devolved Government and the consequences. A power to suspend the assembly was not contained in the original Act (Hadfield, 2003). It has been argued (McGarry and O’Leary, 2007) that the introduction of the 2000 Act was in breach of the UK’s treaty obligations with the Irish Government, who were opposed to suspension. A further

BDR02.indd 17

3/23/2009 4:09:55 PM

18

Direct rule and the governance of Northern Ireland

legislative measure, as an order-in-council, had to be passed at Westminster to enforce a suspension of devolved government and also any restoration of devolved government. This occurred in August 2001 when devolved government was suspended on 11 August and restored the next day on the 12 August and similarly on 22/3 September 2001. By October 2002 the UK Government had accepted that there was no alternative to the indefinite suspension of the Assembly and Executive. This took effect from midnight on 14 October 2002 and the Secretary of State and the Northern Ireland Office ministers resumed responsibility for the government of Northern Ireland. The schedule of the Northern Ireland Act 2000 came into effect allowing the suspension of the assembly and authorising legalisation by order-in-council for devolved matters. This power was limited to six months and had to be extended at six-month intervals by the Northern Ireland Act 2000 (Modification) orders. The ease with which the Westminster Parliament could suspend and restore the devolved institutions had led to criticism, especially from the SDLP and Sinn Fein (Wilford and Wilson, 2005a). Some additional formal measures, which can be described as constitutional, had to be introduced. In 2004 the 1998 Act and the 2000 Acts were amended to reduce the salaries of assembly members and financial assistance to political parties. The arrangements for the brief restoration of devolved government made in 1999 had one major different characteristic from previous attempts at devolution in that Northern Ireland shared the establishment of devolution with Scotland and Wales. This was exemplified with the production at the time of a series of memorandums of understanding and four overarching concordats, on international relations, the EU, financial assistance to industry and statistics, between the UK Government and the three devolved administrations. The concordats were non-legally binding agreements (Leyland, 2002) whose purpose was to facilitate good relations between the administrations. They had no force of law and could not add or detract from the formal legal standing as set out in the Northern Ireland Act 1998 (Select Committee on the Constitution, 2002a): The restoration of direct rule meant that the concordats were not really used. Direct rule was to last a further five years while negotiations continued between the UK and Irish Government and the political parties to secure an agreed basis for the renewal of devolution. Progress was assisted by the British and Irish Governments producing formal proposals for a comprehensive agreement in 2004 and by the IRA declaration of 28 July 2005 formally ordering an end to its armed campaign. In April 2006 the secretary of state, Peter Hain, brought forward a Northern Ireland Bill to arrange for the

BDR02.indd 18

3/23/2009 4:09:55 PM

The constitutional framework

19

assembly to be called to elect a First and Deputy First Minister but also set a date of 24 November for the parties to reach agreement, otherwise both governments would move to formulate a plan B (Secretary of State, 2006). It was not clear how this would change direct rule and it appeared there was no question of joint authority or joint governance (Gay, 2006). The British and Irish Governments and the political parties reached agreement (NIO, 2006b) on practical changes to the operation of devolved institutions and North–South and East– West bodies as well as commitments on human rights, equality and victims, a financial package and national security arrangements. There was limited wider constitutional implications. The Northern Ireland Act 2000, providing the legislative basis for suspending the assembly, would be replaced. This would mean primary legislation would be required should the UK Government wish to revert to direct rule in future (Gay, 2006: 25). St Andrew’s Agreement legislation in 2006 and 2007 paved the way for the restoration of devolution following a transitional assembly and new elections and made provision for the selection of ministers. The 2006 Act also gave the secretary of state the power to dissolve the assembly indefinitely if agreement was not reached. The legislation also made provision for the future devolution of criminal justice and policing if requested by the assembly. A Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2007 passed in March 2007 ended the suspension of the Northern Ireland assembly and devolution replaced direct rule on 8 May 2007. Main features of the constitutional framework There are a number of aspects to note about the constitutional and legal context of direct rule. Firstly, the legal basis for direct rule has never been put on a permanent or settled foundation; instead the legal basis has been renewed regularly for yearly or six-monthly cycles. Thus constitutionally direct rule can be described as a form of government which on a temporary basis was to last for decades. Secondly, the major constitutional arrangements of the 1920 Act have remained as the bedrock of the constitutional framework and have been amended and added to for the purposes of devolved settlements primarily by the 1973 and 1998 Acts and other legislation and have been suspended or replaced temporarily in order to introduce and continue direct rule. Thirdly, the constitutional provisions for direct rule have not altered the basic tripartite division of governmental functions in Northern Ireland into three categories, transferred, reserved and excepted.

BDR02.indd 19

3/23/2009 4:09:55 PM

20

Direct rule and the governance of Northern Ireland

Fourthly, the legal and constitutional context has remained flexible to allow a rapid return to a devolved system of government or an immediate restoration of direct rule through a simple and straight forward legislative process at Westminster. Fifthly, changes in the arrangements for direct rule were closely related to measures introduced to move towards a political settlement. Sixthly, the constitutional arrangements since 1972 have conferred on the Secretary of State an important range of executive, policy-making, administrative and financial powers under direct rule, and some of these continue under devolution. Seventhly, the United Kingdom Government entered a close relationship with the Irish Government in pursuing a political settlement. Major cross-border intergovernmental institutions were established and these continued to operate under direct rule. However, to date, they have made only a marginal alteration to the constitutional and legal arrangements for the government of Northern Ireland. Overall well-established procedures were developed for the flexible and speedy change between direct rule and devolution.

BDR02.indd 20

3/23/2009 4:09:55 PM

3

The Secretary of State and the Northern Ireland ministers

Prior to direct rule the minister in the British Government responsible for Northern Ireland was the Home Secretary. Until 1968 this had been a less than onerous part of the Home Secretary’s job but the workload increased substantially with the growing intervention by the British Government between 1969 and 1972. With direct rule the transfer of all legislative and executive powers would have imposed too much of an extra burden on a Home Secretary and the wide range of ministerial duties justified a new Cabinet minister and department. Direct rule led directly to the establishment of the new office of Secretary of State for Northern Ireland modelled on the existing offices of the Secretaries of State for Scotland and Wales. The duties of the Secretary of State under direct rule The main duties of the Secretary of State were: to exercise the executive functions of government, coordinate the administrative machinery and represent Northern Ireland in the Cabinet. The Secretary of State had direct responsibility for political and constitutional matters, security policy and operations, public expenditure and broad economic questions and for overseeing the whole legislation programme. The security responsibilities meant that a Secretary of State had regular meetings with army and police chiefs. Another key area was overall responsibility for the Northern Ireland budget allocation and for determining priorities within it. The office also originally incorporated most of the functions of the Governor of Northern Ireland, described as ‘at one minute I was discharging duties previously performed by the Governor on behalf of the Queen, or as a proconsul (Hurd, 2003) the next I was in effect Prime Minister of the province’ (Prior, 1986). The Secretary of State had to coordinate and head the rather complex administrative machinery. This included the Northern Ireland Office, which had quite small numbers of civil servants in both Whitehall and Stormont dealing

BDR03.indd 21

3/23/2009 4:10:20 PM

22

Direct rule and the governance of Northern Ireland

with the Secretary of States areas of policy responsibility but also overall responsibility for all the Northern Ireland Government departments. The coordinating role covered the Northern Ireland Office, the Northern Ireland departments and relevant Whitehall departments including overall control of the legislative programme for Northern Ireland. The Secretary of State also assumed extensive powers of patronage through appointments to statutory boards and offices. As a member of the Cabinet the Secretary of State represented Northern Ireland’s interests, including those in the transferred as well as the reserved and excepted field, at the highest level of UK Government. This was important in relation to the allocation of finance, priorities for legislation and European Union (EU) matters. The Secretary of State also represented Northern Ireland in the House of Commons and was responsible there for legislative proposals, answering parliamentary questions and appearing before select committees and the Northern Ireland Grand Committee. The complex position of the Secretary of State was described in evidence to a House of Lords Committee as ‘it is a false dichotomy to say that the Secretary of State is either Northern Ireland’s man in government or the government’s man in Northern Ireland. He tries to be both’ (Select Committee on the Constitution, 2002a: para. 55). In the Cabinet pecking order the Northern Ireland post was of middle to upper ranking, around eighth in importance (Lodge, 2003) although those appointed have varied in their degree of seniority in their party. Significant change in the position of Secretary of State did not occur until the first general election after the restoration of direct rule in 2003, when Peter Hain combined the roles of Secretary of State for Northern Ireland and Secretary of State for Wales. This was in recognition of the impact of devolution and the reduced workload for the offices. The post of Secretary of State for Scotland was also shared. The fact that the shared portfolio continued even when the prospect of the return of devolved government looked unlikely for a period indicated a lower priority for Northern Ireland matters. The length of tenure of secretaries of state for Northern Ireland has ranged from five years served by Sir Patrick Mayhew who was the longest serving secretary of state, to Francis Pym who served only a few short months because of a change of administration. Tom King was the second longest serving secretary of state holding office for nearly four years (see Table 3.1). At times a Northern Ireland Cabinet committee has existed based normally on the Secretary of State plus the Foreign Secretary, the Home Secretary, the Defence Secretary and Treasury representatives. In 1985 an extended Northern Ireland Cabinet Committee was created

BDR03.indd 22

3/23/2009 4:10:20 PM

The Secretary of State and the NI ministers

23

Table 3.1 Secretaries of state under direct rule, 1972–2007 William Whitelaw Francis Pym Merlyn Rees Roy Mason Humphrey Atkins James Prior Douglas Hurd Tom King Peter Brooke Sir Patrick Mayhew Mo Mowlam Peter Mandelson John Reid Paul Murphy Peter Hain Shaun Woodward

1972–1973 1973–1974 1974–1976 1976–1979 1979–1981 1981–1984 1984–1985 1985–1989 1989–1992 1992–1997 1997–1999 1999–2001 2001–2002 2002–2005 2005–2008 2008–

which included nine ministers and the Attorney General to help decide the outcome of Anglo-Irish negotiations. There has not always been a separate Northern Ireland Committee and at times Northern Ireland has been included in the Overseas and Defence committee which also covered foreign affairs and defence and was chaired by the Prime Minister. In 1982 the draft White Paper on new devolution proposals was discussed and reviewed at this Cabinet Committee (Prior, 1986: 97). Under John Major’s administration there was a Cabinet committee on Northern Ireland whose terms of reference included policy on Northern Ireland issues and relations with the Republic of Ireland. It was chaired by the Prime Minister and consisted of the Northern Ireland Secretary, the Foreign Secretary, the Defence Secretary, the Attorney General, the Chief Secretary to the Treasury and other ministers as required. Following the restoration of direct rule in 2002 there was no Northern Ireland committee but a new committee on the nations and regions was created for a short period. Northern Ireland ministers also attended a number of the other Cabinet committees and sub-committees which touched their duties in Northern Ireland. Out of twenty-five Cabinet committees in the mid-1990s Northern Ireland had direct representation on nine. By 2005 the direct representation of the Northern Ireland Secretary was confined to six committees out of some thirty ministerial committees of the Cabinet including constitutional affairs, economic

BDR03.indd 23

3/23/2009 4:10:20 PM

24

Direct rule and the governance of Northern Ireland

affairs and European policy with other NIO Ministers sitting on several sub-committees including children’s policy and aging. With the return of devolution the representation on Cabinet committees was reduced. Secretaries of state have played a leading role in political and constitutional developments and some of the political initiatives have assigned them a particular role, for example, the 1973 arrangements gave the Secretary of State power to initiate the devolution of legislative and executive responsibilities, appoint the Chief Executive and ministers and give the necessary consent for proposed legislation or measures dealing with excepted and reserved matters. The Secretary of State had also specific duties related to the Constitutional Convention in 1978, which included fixing the date for elections, giving directions for its procedures and dissolution and holding a referendum. The proposals for rolling devolution which led to the Northern Ireland assembly in 1982 envisaged that the Secretary of State would continue to be accountable to Parliament for reserved and excepted services and would be responsible for submitting proposals on the transfer of powers to an assembly and the appointment of members of an executive and political heads of departments. The Secretary of State’s role during the Peter Brooke initiative of 1990–91 was more informal with implementation being subject to agreement among the parties. By the 1990s the Secretary of State had become a mediator. John Major was to increase his government’s role as an honest broker in negotiations to end violence (Major, 2000). Mo Mowlam was to state that her party’s election manifesto had shifted the emphasis from ‘unity by consent’ to ‘reconciliation between the peoples’ and that this put her in more neutral position in the context of the peace process, to mediate between the two sides and work for an agreement between them (Mowlam, 2000: 32). It has been argued that Peter Brooke and Patrick Mayhew emphasised the neutrality of the British state (O’Leary and McGarry, 1996: 331) meaning between Irish nationalism and Ulster unionism. Peter Hain used the position of secretary of state to take a more directive and forceful role to secure the St Andrew’s Agreement. He also developed a wider agenda than some of his predecessors to reform public services and enhance economic sustainability. Apart from a political negotiating role secretaries of state have had a major role in the arrangements to bring direct rule to an end. The Good Friday Agreement in 1998 required specific actions by the Secretary of State to implement the multi-party agreement and secure the major transfer of powers to the Northern Ireland Executive from the Secretary of State. The St Andrew’s Agreement in 2006 involved the Secretary of State in moving through a staged timetable from a transitional assembly, nominating

BDR03.indd 24

3/23/2009 4:10:20 PM

The Secretary of State and the NI ministers

25

First and Deputy First Ministers, filling ministerial offices and finally calling an election. With devolution recommencing in 2007 the Secretary of State had a clear priority to secure the devolution of policing and justice powers. Secretaries of state have usually had political advisers who may pick up on topics civil servants miss or on highly political issues. Richard Needham (1998: 24) has written that their role was to be at the heart of the Whitehall machine to relate to Cabinet ministers and other advisers and give ‘off the record’ briefings. Peter Hain’s special adviser, Phil Taylor, had such a wide remit within the NIO on policy matters that he came into conflict with senior civil servants (Gordon, 2007). After 1975 the office of the secretary of state was based in Stormont Castle adjacent to Stormont Parliament buildings and the main civil service offices. The adjacent Stormont House was adapted and renovated in 1978 to provide suitable and secure office and residential accommodation. Hillsborough Castle, the former Governor’s residence and officially the Queen’s residence in Northern Ireland also housed a flat for the secretary of state and apartments for ministers. Used for official functions and receptions it was where some secretaries of state resided, for example, Mo Mowlam. In London the Secretary of State’s base was the Northern Ireland Office in Millbank. Northern Ireland ministers The Secretary of State had a team of junior ministers to look after the government departments at Stormont although legally all powers were vested exclusively in the Secretary of State. Three ministers were appointed originally in 1972 but subsequently four were appointed in the mid-1970s and between 1979 and 1990 there were five junior ministers. The ministerial team has usually consisted of one or two ministers of state plus two or three more junior under-secretaries of state. The size of the team reflected the range of activities of the devolved departments ministers were required to lead. In 1972 the British ministers took over responsibilities from fifteen Stormont Cabinet ministers and four junior ministers. There was also a general tendency at this time towards bigger teams of ministers in Whitehall departments. Before devolution the Scottish Office had a total of five ministers and the Welsh Office had three ministers. The range of functions covered by the Northern Ireland Office was greater and there were also extra travel demands. Junior ministers were usually in the post for around two years, but two ministers, Nick Scott and Richard Needham, served for almost six years. Of this length of tenure Mr Needham claimed that ‘had I not stayed as long as I did many of the changes I introduced

BDR03.indd 25

3/23/2009 4:10:20 PM

26

Direct rule and the governance of Northern Ireland

such as the drink licensing regulations would have taken a great deal longer because of lack of continuity (Needham, 1998: 122). In 1991 Lord Belstead became the first member to re-occupy a Northern Ireland Office post when he returned after sixteen years. It became the custom for one junior minister to be appointed from the House of Lords to take responsibility for Northern Ireland business in the Lords. However if no one in the NIO ministerial team was a member of the House of Lords, an outside minister had to act as Northern Ireland spokesperson in the Lords, for example in 2004 Baroness Amos took on that role. The general role of ministers can be described under six headings: • Departmental responsibilities: Ministers were allocated one or two departments plus other specific areas of responsibility and acted as political heads of the departments. When direct rule resumed this increased to an allocation of three departments for some ministers. • Coordinating government in Northern Ireland: Northern Ireland Office ministers acted together as a mini-cabinet in consultation with civil servants coordinating political and security policies as well as more routine social and economic policies and public expenditure. • Role at Westminster: Ministers had a range of duties at Westminster including taking Northern Ireland legislation through Parliament, answering parliamentary questions, attending the Northern Ireland committees and looking after Northern Ireland EU interests through UK governmental and parliamentary machinery. The different requirements of the Westminster system and the Northern Ireland departments was reflected in a dual system of private secretaries for each minister. • Attending Cabinet committees: Ministers could be asked to attend Cabinet committees and sub-committees touching on their duties relating to Northern Ireland including, for example, the Foreign Office Ministerial Committee on EU Coordination. • Anglo-Irish cooperation: Particularly after the Anglo-Irish Agreement in 1985, ministers had regular contact with their counter parts in the Republic of Ireland through the intergovernmental conference and secretariat as well as bilateral meetings between ministers. • Representing the Secretary of State: Ministers could be called to stand in for the Secretary of State or represent the government and it was the custom to have at least one minister on duty in Northern Ireland at weekends. The Secretary of State as a Cabinet member also had a parliamentary private secretary who was an MP and had a key role in keeping the Secretary of State in touch with affairs in the Commons.

BDR03.indd 26

3/23/2009 4:10:20 PM

The Secretary of State and the NI ministers

27

The allocation of ministerial duties Between 1982 and 1990 there were six Northern Ireland departments and five ministers other than the Secretary of State. This meant that one minister had to take responsibility for two departments out of the six, Agriculture, Economic Development, Education, Environment, Finance and Personnel, and Health and Social Services. It was the Department of the Environment which usually doubled up as a ministerial responsibility despite the fact that was the largest department in terms of staff and had a very wide range of functions. The minister who was a member of the Lords usually would take on one or two departments in addition to the responsibility of answering in the House of Lords on all Northern Ireland matters. Another minister also had to accept responsibility as spokesman in the House of Commons for any department which was represented by a member of the Lords. There was in practice a seventh department, the law and order divisions of the Northern Ireland Office, which was formerly the Ministry of Home Affairs, and was a large section within the Northern Ireland Office in Belfast. A minister had to take on this responsibility for security administration along with one of the six departments. This area of responsibility was originally linked with responsibility for the Department of Finance and Personnel and given to a minister of state and in 1991 it was identified as a separate area of ministerial responsibility with the designation of Minister for Security. It was also the custom at most times for the minister responsible for the Department of Finance and Personnel to be designated Deputy Secretary of State. It has been suggested that the division of responsibilities was not always totally rigid in the context of London commitments and the unexpectedness and urgency of many problems (Windlesham, 1973). When a junior minister, Peter Bottomley, left office following a ministerial reshuffle in 1990 he was not replaced and for the first time in eleven years there were only four junior ministers. Three ministers took over responsibility for Bottomley’s two departments, Agriculture and the Environment, resulting in a somewhat arbitrary distribution of the functions of the later department. After that the pattern was established of only four ministers with the Secretary of State. A key area of special responsibility within the Northern Ireland Office was political development. A special ministerial responsibility for political affairs was first created in 1986 and this responsibility continued with post renamed in 1991 as Minister for Political Development. Some more detailed areas of special responsibility within the Northern Ireland Office were also given specifically to ministers, normally to the ministers of state (see

BDR03.indd 27

3/23/2009 4:10:20 PM

28

Direct rule and the governance of Northern Ireland

Table 3.2). This list of subjects has varied over time and has included information services, community relations, EU coordination, prisons, and equality and human rights. Each minister was normally allocated some special areas of responsibility. These were normally specific areas of responsibility within the remit of the Northern Ireland Office, for example the EU. Some special responsibilities were allocated outside the NIO and reflected priority issues at the time, for example, in 1989 the Minister responsible for transport had designated responsibility for inward investment, urban renewal and the construction industry. In 1989 the official statement on the reallocation of responsibilities referred to the minister responsible for the Department of the Environment as having a particular emphasis on transport (NIIS, 1989). By 1994 only two special ministerial responsibilities were listed, community relations and the Making Belfast Work initiative. When direct rule returned in 2002 the major difference with the previous arrangements was the inheritance of ten, not six, devolved

Table 3.2 NIO ministerial responsibilities, 1997 NIO Secretary of State Mo Mowlan Minister of State Adam Ingram

Minister of State Paul Murphy Under-Secretary of State Tony Worthington

Under-Secretary of State Lord Dubs

NI departments

Special responsibilities

Security

Economic Cooperation Development with Republic of Ireland

Political development Human rights

Finance and Personnel Education, Health and Social Services

Community relations Employment review

Environment/ agriculture NI matters in House of Lords

Source: NIO Annual Report 1997.

BDR03.indd 28

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

29

government departments including the functions of the Offi ce of the First and Deputy First Minister and Cabinet Offi ce. Apart from the NIO the Offi ce of the First and Deputy First Minister and Finance and Personnel were key departments and a minister of state was allocated responsibilities for both of these. Tables 3.2 and 3.3 give as examples typical allocations of ministerial responsibilities with a full direct rule team based on a threefold distinction in responsibilities. It can be noted that the individual allocation of ministerial duties often crossed the division between transferred and excepted and reserved

Table 3.3 Ministerial portfolios, 2006 NIO Secretary of State Responsibility overall Minister of State Lord Rooker

Minister of State David Hanson

Under-Secretary of State Shaun Woodward Under-Secretary of State Angela Smith

Departments

Special responsibilities

Responsibility Finance and Personnel Office of First Minister and Deputy First Minister Environment Agricultural and Rural Development Lords spokesperson Social Development, Culture, Arts and Leisure.

Political development and criminal justice Equality and human rights Security Health, Social Services Policing and Public Safety Regional Development Prisons Organised crime Assets recovery Victims Education Employment and Learning Enterprise, Trade, Investment

Source: NIO Department Report. 2006b.

BDR03.indd 29

3/23/2009 4:10:21 PM

30

Direct rule and the governance of Northern Ireland

services. Other UK Cabinet ministers had responsibilities and interests relating to Northern Ireland, particularly the Defence Secretary and the Foreign Secretary. The Defence Secretary had an overall United Kingdom responsibility for the army but did not appear to normally become involved in Northern Ireland operational matters. On the other hand the increasingly close relationship with Dublin in the 1990s involved the Foreign Secretary more in Northern Ireland affairs. The Department of Constitutional Affairs, later the Ministry of Justice, also had some key judicial functions relating to Northern Ireland.

The work of Northern Ireland ministers The powers of ministers have been described as far greater than those of the Secretaries of State for Scotland and for Wales (Rose, 1982). The Northern Ireland Secretary of State has been described as a governor, prime minister and commander-in-chief all rolled into one (Oliver, 1978) and has been viewed under direct rule as presiding over the equivalent of a Northern Ireland Cabinet taking all the major decisions of policy and administration. The government of Northern Ireland was a miniature version of the Westminster model. The important political difference is that one junior minister guides the fortunes of several departments, each of which on the mainland would have its own Secretary of State (Needham 1998: 139). In implementing direct rule Northern Ireland ministers were responsible for a very wide range of government activities. The day-to-day coordination of business in Northern Ireland was conducted at what is known as ‘morning prayers’. This was when Northern Ireland ministers in Belfast and civil servants and press officers met to discuss the issues of the day with the Secretary of State whether at Stormont or by video-conferencing as what has also been described as a kitchen Cabinet (Bloomfield, 1994). The demands of Stormont, Whitehall, Westminster and their constituencies meant that the ministers are rarely all in the same place and therefore ‘the ministerial team was barely a viable concept’ (Connolly and Erridge, 1990). Despite the many responsibilities it has been argued that the Secretary of State did not preside over a Cabinet of independent ministers (Bell, 1987). It is more accurate to note that the Secretary of State had a breadth of policy and administrative responsibilities not to be found in any other UK department. The role of junior ministers has also been likened to that of a full minister in Britain. Merlyn Rees, a former Secretary of State, argued that junior ministers had a role within the province and a range of responsibilities that they could not have in

BDR03.indd 30

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

31

any other department (Rees, 1985). They had similar responsibilities as secretaries of state in Britain although for a small population. While junior ministers had to deal with major policies and assist the Secretary of State in political and security crises they were also expected to deal with detailed routine matters. The powers of ministerial office had to be set against some constraints. All ministers travelled frequently between Belfast and London. They were in Britain because of parliamentary and Cabinet business, party meetings and constituency interests. It became established practice to always have at least one minister at Stormont and one close to Whitehall. The Secretary of State also had to attend weekly Cabinet meetings. The first Secretary of State, Lord Whitelaw, records that in taking the job he insisted he would have the right to an aircraft whenever he wanted (Whitelaw, 1989). This phenomenon where ministers spent only a few days a week in Northern Ireland was described by Oliver (1990) as ‘helicopter rule’ and it has been argued that in practice much of both policy-making and implementation was ceded to officials (Morison and Livingstone, 1995). At the same time there was always a ‘duty minister’ in Northern Ireland. The longest serving ministers clocked up over 1,000 flights across the Irish Sea, about one flight per two days in office. However, Aughey (1996) has argued that despite the Secretary of State and the Northern Ireland ministers dividing their time between their duties in Northern Ireland and Britain plus the problems of air travel and intense personal security, the practical burden on Northern Ireland’s ministers was no greater than that experienced by others in modern government. In Tom King’s period in office (1985–89) a video-conferencing link was established to allow participation by the Secretary of State when he happened to be in London (Aughey, 1996: 87). An answer to a parliamentary question showed at the time that the Secretary of State spent only six or seven nights a month actually staying in Northern Ireland and other ministers spent between three and ten nights a month (House of Commons, 1987). Ministerial overnights were to increase as the political talks gained momentum when serving in Northern Ireland became very much a full-time job. This commitment was to decline again in the second period of direct rule when the time the Secretary of State and other ministers spent in Northern Ireland was on average about ten days per month. At times there was a perception by the media and politicians that ministerial office in Northern Ireland was a demotion. Aughey (1996: 88) highlighted some of the ‘well publicised differences of attitude on the part of secretaries of state towards their office. James Prior, appointed by Thatcher in 1981 after disagreements on conservative economic policy,

BDR03.indd 31

3/23/2009 4:10:21 PM

32

Direct rule and the governance of Northern Ireland

clearly viewed his posting as a form of punishment and political exile. Subsequently, after two years in the post, he was to ask to be sent back to Northern Ireland following the 1983 election. Sir Patrick Mayhew, on the other hand, clearly welcomed his appointment as an opportunity, even as a vocation. It has been suggested that as a major political ally of Tony Blair, Mo Mowlam, should have been given a major portfolio of health, education or trade and industry, rather than what she regarded as a Cinderella position. This was not because she didn’t have regard for the significance of Northern Ireland but it was out of the main political arena and yet she would eventually leave Northern Ireland against her wishes (Langdon, 2000: 31). A prime ministerial view of the role of Secretary of State was that ‘the job was worthy, necessary and thankless’ (Major, 2000: 433). Richard Needham (1998: 122) has written that ‘Northern Ireland ministers posts are in the gift of the Prime Minister and the Whips. As Northern Ireland has no Conservative party to speak of and the Labour party will not organise there, those ministers that go to Ulster go for either of two reasons; as a step on the way up or as a step on the way out. In either case they do not stay long’. Secretaries of state have tended to reflect a relatively more experienced, safer middle of the party background. Quite a few secretaries of state have rather slipped into the political background after their time in Northern Ireland, for example, Francis Pym, Humphrey Atkins, James Prior, Peter Brooke, Peter Mandelson and Mo Mowlam but some, for example, Douglas Hurd, Tom King and John Reid progressed to higher office; Hurd as Foreign Secretary, King as Defence Secretary and Reid as Home Secretary. In the case of Paul Murphy he served as a junior minister and later returned as Secretary of State, being appointed eventually to the Wales Office. A few junior ministers have gone on from the Northern Ireland Office to higher office and their political careers have prospered, for example, John Patton and Chris Patton. The Northern Ireland ministers were not accountable to the local electorate and have not normally during direct rule had to account directly to local politicians for their performance. The main exception occurred during the existence of the Northern Ireland Assembly between 1982 and 1986 when the ministers did attend on occasions to introduce debates or convey information. The Secretary of State attended three plenary services and the junior members seventeen sessions but also thirty-seven committee sessions (O’Leary et al., 1988: 181). This was actually a potential hybrid model of direct rule with an element of accountability in operation through scrutiny by the assembly committees. It was, of course, a feature of direct rule that the Northern Ireland

BDR03.indd 32

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

33

ministers did face Northern Ireland elected politicians in the Westminster Parliament in debates, and committees and at question time. Ministers were keen to get out and about the province, meeting people, visiting councils and contacting pressure groups. When Mo Mowlam became Secretary of State the first thing she did on arrival in Belfast was go on a city-centre walkabout and she became instantly popular. She was the first woman to hold the office and when she took up the post ‘it was the woman herself in whom (people) were interested and she was an instant, extraordinary success – she hugged people, was fun, very popular which was later to be used against her by her enemies’ (Langdon, 2000: 277). Most ministers from the beginning adopted a policy of accessibility for local groups and delegations (Windlesham, 1973: 270). Merlyn Rees suggested that the open-door policy at Stormont could not have been followed in practice at Westminster (Rees, 1985: 315). The highly sensitive nature of ministerial office in Northern Ireland required a talent for tact and diplomacy and several ministers have committed gaffes at times, for example, Brooke on the Gay Byrne television show, which led him to offer his resignation. Mr Prior also offered his resignation after the breakout from the Maze prison in 1983 (Prior, 1986: 23l). After the murder of Billy Wright, a loyalist leader, in the Maze prison and complaints of lax security Mo Mowlam stated that ‘the Northern Ireland Secretary has always been, and probably always will be, everyone’s scapegoat when things get tough’ (Mowlam, 2000: 182). This echoed a sentiment expressed by Sir Patrick Mayhew when he was Secretary of State to Mo Mowlam in the House of Commons when he said that ‘I have come to believe that secretaries of state for Northern Ireland are born with difficulties as the sparks fly upwards. None the less, it remains an excellent job to have’ (House of Commons, 1994). Prior stated the emotional strains of the Northern reland job are the hardest, ‘it isn’t the amount of work, but the knowledge that at any time something may go wrong’ (Prior, 1986: 224). Ministerial office in Northern Ireland has lacked a strong partypolitical dimension. Ministers tend to be less involved in party-political discussions and they have less time to attend party meetings at Westminster and to devote much attention to their local political party and even their constituents. As Prior describes it ‘I was head of government, yet my own political base was not in the province but across the Irish Sea in Britain’ (Prior, 1986: 182). In 1990 there was an unusual development when the Conservative Party began to intermittently organise and contest elections in Northern Ireland and ministers took part in electioneering and canvassing for local Conservative candidates

BDR03.indd 33

3/23/2009 4:10:21 PM

34

Direct rule and the governance of Northern Ireland

speaking in defence of their policies directly to a local electorate for the first time, but this initiative largely petered out. Ministers did make foreign visits. The main country for visits abroad was the United States where the secretaries of state became frequent visitors to explain government policy and promote and seek support for political development. In the early years visits to other countries were rare, but this later changed and between January and June 1994, for example, the Secretary of State and his ministers made seventeen overseas visits in an official capacity (House of Commons, 1994) and in 1995 eighteen overseas visits were made by the Secretary of State and Northern Ireland ministers. The Secretary of State made three of these visits and the other Northern Ireland ministers made the rest of these visits which were mainly for trade reasons (House of Commons, 1996). The development of the Anglo-Irish dimension throughout the 1980s further increased the workload of ministers. The Anglo-Irish Intergovernmental Council after 1981 involved ministers in working groups on economic, cultural and educational matters. The Intergovernmental Council would meet about eight times a year and usually involved the Secretary of State as joint Chairman and the Minister of State responsible for security policy and the Under-Secretary of State responsible for political development. Other ministers also had meetings with their Dublin counterparts to discuss matters of common interest outside this structure. The political role of secretaries of state Secretaries of state have tended to be remembered for their contribution to advancing a political and constitutional settlement. This does also imply that successive secretaries of state have concentrated on this area rather than on social policy or the economy. The former head of the Northern Ireland Civil Service has noted successive secretaries of state were to use subtly different mechanisms to promote the political process they sought (Bloomfield, 2007). Thus Willie Whitelaw was closely linked with the Sunningdale Agreement, Merlyn Rees with the Constitutional Convention, Atkins with the Constitutional Conference of 1980, Prior with rolling devolution and the Northern Ireland assembly, Hurd and King with the Anglo-Irish Agreement. Brooke with the three strands talks about talks which got the main constitutional parties in Northern Ireland at the formal negotiating table for the first time in seventeen years (Bloomfield 1997: 8), Patrick Mayhew with the Downing Street declaration and Mo Mowlam with the Good Friday Agreement and Peter Hain with the St Andrew’s Agreement.

BDR03.indd 34

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

35

Cunningham (2001) claims that many accounts, particularly biographical and journalistic ones, emphasis the style and character of secretaries of state for example, Mason’s ‘gung ho’ approach, Rees’ indecisiveness, Atkins’ lack of knowledge of Northern Ireland, Brooke’s sharpness concealed beneath a Wodehousean exterior, Mowlam’s informal approach and Mandelson’s forensic grasp of detail. He argues that one should be sceptical about such accounts which place too much emphasis on the personality of the Northern Ireland secretaries of state. Some secretaries of state may have been stronger devolutionists than others and some more enthusiastic on the Anglo-Irish dimension than others. As direct rule continued, secretaries of state had a rather more specific approach to constitutional development. In the earlier years the way forward tended to be analysed and delineated in published discussion papers. In later years secretaries of state focused more on contact with the Northern Ireland political parties and the Dublin government and then in opening communication with and in drawing republicans into negotiations. In 1990 there had also been a significant statement by Brooke as Secretary of State that Britain had no selfish strategic or economic interest in Northern Ireland. This was to create the potential for moving political developments forward (Bloomfield, 2007: 70) and became the basis of a new negotiating process. Mo Mowlam brought a more fundamental rethink of approaches to the problem. She was particularly well prepared for her job as she had been shadow secretary of state for Northern Ireland. Richard Needham claims that ‘she knew a lot more about Northern Ireland than anybody else coming into the job. He believes this gave her the power to take decisions. Most people that went there got swamped by the system and did what their civil servants told them. It has been suggested ‘she took initiatives and did things which no other Secretary of State would have dared do and that was very important in taking the whole thing forward – the Good Friday Agreement’ (Langdon 2000: 279). On the other hand it has been suggested that ‘once Mowlam had lost the confidence of Trimble and the pro-agreement Unionists it was necessary to replace her in order to salvage movement in the peace process’ (Cunningham 2001: 158). This also happened with Tom King who became a hate figure over the Anglo-Irish Agreement and meant that a change of personnel was needed (Bloomfield, 1998). Peter Brooke lost the confidence of unionists after the Irish television chat show and had to step down shortly afterwards (Major, 2000: 437). Secretaries of state have had to perform their duties amidst continuing violence and almost all have had to face security crises even during cease-fires. For some security issues dominated their period in office, for example, Rees and the Ulster

BDR03.indd 35

3/23/2009 4:10:21 PM

36

Direct rule and the governance of Northern Ireland

Workers Strike of 1974, Atkins and the hunger strikes of 1981, Mason with security initiatives and Mo Mowlam with the Omagh bomb. At the point of crucial political decisions the Secretary of State’s relationship with the Prime Minister became more important. Thatcher records that in 1988 following the murder of two soldiers at Milltown cemetery she told Tom King that there must be a paper brought forth setting out all the options. She was determined that nothing should be ruled out (Thatcher 1995: 408). Thatcher also gives an account of changing Atkins’s constitutional paper in 1980 in order to take account of unionist sensitivity and she also intervened to have the text of Prior’s rolling devolution white paper of 1982 substantially changed by cutting a chapter dealing with the Irish dimension. Prior spoke of Thatcher’s determination to run Irish policy from Number Ten but Prior did obtain enough Cabinet support to get his revised white paper on rolling devolution through but he could not push Thatcher into a better position (Prior, 1986: 197). On the other hand John Major, who was committed to give a new priority to a political solution, established a close working relationship with his Secretary of State, Sir Patrick Mayhew, eventually authorising ministerial meetings with Sinn Fein. It appears that Mo Mowlam’s relationship with Blair became fraught. Mo Mowlam was held to have ‘made an early strong impact on the process’ leading to the Agreement (Mitchell, 1999: 102) but by 1999 she was becoming sidelined though mainly because of Ulster Unionists insisting in dealing directly with the Prime Minister himself (Langdon, 2000: 289). Leading up to the St Andrew’s negotiation Blair took a major role based in Downing Street with his Chief of Staff, Jonathan Powell, having a key role rather than the Secretary of State. Formally, however the Northern Ireland Act 2006 gave the Secretary of State power to decide whether the necessary conditions had been met in order to restore devolution. Partnerships with Irish ministers The development of Anglo-Irish relations and the political negotiations leading to the Good Friday Agreement meant that the Secretary of State and other ministers had to devote a considerable part of their time to collaborative activity and partnership working with the Irish Government. Earlier Prior argued that what made his job different from that of any other Secretary of State was the importance of establishing close relations with the government of another country (Prior, 1986: 182). The main diplomatic conduit was for the Secretary of Sate to relate to the Irish Minister of Foreign Affairs. The working partnership involved

BDR03.indd 36

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

37

the Secretary of State and NIO ministers to different degrees, divided between the two contexts of political negotiations and the institutional cooperation. The formal meetings setting up the Anglo-Irish Agreement consisted of the two prime ministers, two foreign ministers and the Northern Ireland Secretary plus officials (Arthur, 2000). At times the Northern Ireland Minister of State for political development would also be involved, but rarely any other NIO minister. The crucial political decisions tended to involve only the two prime ministers. The Downing Street Declaration in 1993 was launched by the Taoiseach, Albert Reynolds and the Prime Minister, John Major. George Mitchell has recorded that ‘Mr Blair and Mr Ahern did not just supervise the negotiations in 1998, they conducted them’ (Mitchell, 2002: 87). With the restoration of direct rule both governments were negotiating again with the political parties and in 2004 they jointly published ‘Proposals for a Comprehensive Agreement’ as a way forward, followed by a further joint statement in 2006 on reviving the devolved institutions by the Prime Minister and the Taoiseach (Gay, 2006: 8). The other partnership context was joint participation in the Anglo-Irish Intergovernmental institutions which developed after 1981 and expanded further after 1999. The Secretary of State and the Irish Foreign Minister were normally co-chairs and other NIO ministers played a major role at the meetings. Ministers were also involved in bilateral ministerial meetings outside specific institutional meetings, for example, the two health ministers would meet to discuss such issues as major emergency planning, drug abuse and medical research. Transition between direct rule and devolution What was common to all secretaries of state, however, was their willingness to set in train developments which would ultimately divest their office of many of its powers. The ending of direct rule in 1999 and its restoration in 2007 changed significantly but did not abolish the role of secretary of state or a role for ministers but the transition was executed in a speedy and undramatic way. The junior ministerial team at the Northern Ireland Office was reduced to two after 1999 and to one after 2007. The Secretary of State continued to represent Northern Ireland interests within the Cabinet, and to be responsible for reserved and excepted services as listed in the 1998 Northern Ireland Act, the allocation of the block grant and overall control of law and order and security policy. The Secretary of State was also given a range of responsibilities in relation to the new Assembly and Executive. After 1999 the Secretary of State submitted bills for the royal assent but had the right

BDR03.indd 37

3/23/2009 4:10:21 PM

38

Direct rule and the governance of Northern Ireland

not to submit bills on a number of grounds, for example, if the provision was considered incompatible with international obligations, national security or public order. Also with the Secretary of State’s approval the assembly could have the power to legislate in reserved areas. A bilateral concordat was put in place to provide for regular meetings between the Secretary of State and the First Minister and Deputy First Minister to discuss matters of mutual interest (Select Committee on the Constitution, 2002a: 18). A general duty to promote the devolved settlement lay with the Secretary of State. When flying of flags from government buildings became a disruptive issue between ministers in 2000, the Secretary of State, Mandelson, intervened with a draft order to give him the power to set regulations regarding flagflying. Following the restoration of devolution in 2007 the final power still lies with the Secretary of State to suspend devolved government despite some suggestions that in future such a decision should involve the Irish Government. The continuing role for the Secretary of State and possible intervention in relation to transferred matters might suggest an element of blurring between direct rule and devolution. In general the UK Government was looking to devolved institutions taking the dominant position in governance. The transfer of policing and criminal justice would mean the removal of the remaining junior minister from the NIO and many of its remaining functions. The Northern Ireland (St Andrew’s Agreement) Act 2006 added to the Secretary of State’s constitutional duties laid down in the 1998 Act, particularly in reporting to Parliament on progress towards the devolution of policing and eventually bringing an order to Parliament. Another new duty would be the Secretary of State taking forward any legislative changes required following an efficiency review which might include an institutional review of strand one institutions, the size of the assembly, the departmental structure or cross-border bodies. Conclusion The Secretary of State and the Northern Ireland Office ministers under direct rule formed a kind of Northern Ireland cabinet or equivalent to a devolved Northern Ireland executive. The ministers effectively formed the Northern Ireland Government with one Secretary of State presiding over ministers, departments and security forces as a’ mini-prime minister’ (Connolly, 1990). Ministers also had duties in London, to some extent in the NIO but mainly at Westminster. The work of the Secretary of State and ministers at Westminster involved; making statements, answers to parliamentary questions, legislative and committee work as

BDR03.indd 38

3/23/2009 4:10:21 PM

The Secretary of State and the NI ministers

39

well as Cabinet committee work and some EU and other oversees commitments. These tasks had to be carried out along with their wider party and political role at Westminster and also their constituency workload. The breadth of duties, the geographical spread of duties and time implications raised issues of effectiveness of ministers under direct rule. In practice they did form a significant ministerial team similar in size to large Whitehall departments. The functions of the Secretary of State and ministers were affected by some of the particular features of direct rule. The ministers did not draw up a programme of government or manifesto to present to the electorate of Northern Ireland. No ministers have ever had a constituency in Northern Ireland and in a sense all the Northern Ireland MPs tended to form an ‘opposition’ to the NIO ministers. It is difficult to generalise on differences between approaches of Conservative and Labour secretaries of state, especially with a stated bipartisan approach. Hayes (2008) suggests that over the years conservative governments were actually more prepared to take radical action, imposing direct rule, the Anglo-Irish Agreement and the Downing Street Declaration. The closest to a programme of government came normally in ministerial statements on political and security development and on budget planning. It was not until Hain’s time in office that a more specific and coherent policy agenda appeared in relation to public services and public expenditure. Perhaps most significantly all secretaries of state and ministers have regarded their role as temporary and devoted much of their ministerial duties in attempts to find an agreed political settlement that would largely remove them from their ministerial functions.

BDR03.indd 39

3/23/2009 4:10:22 PM

4

Northern Ireland business in the Westminster Parliament

One of the main features of direct rule was the transfer of the functions of the devolved Stormont Parliament to the Westminster Parliament. The key elements related to dealing with Northern Ireland legislation and scrutinising Northern Ireland business. A range of procedures were introduced at Westminster to deal with Northern Ireland business and these were not to change very much over the time of direct rule. The legislative process and orders-in-council Prior to direct rule legislation on most major services in Northern Ireland had been carried into effect as acts of the Northern Ireland Parliament. The last act was the Agriculture (Abolition of County Committees) Act NI 1972 which received the royal assent on 28 March 1972. Since that date, apart from the brief periods of a Northern Ireland assembly, the vast majority of Northern Ireland legislation was carried into effect by means of orders-in-council passed at Westminster. These orders-in-council equated to primary legislation which might have been passed by a Northern Ireland devolved parliament and were laid before Westminster under the parent Northern Ireland Act 1974 and the Northern Ireland Act 1998 as a form of delegated legislation, technically, United Kingdom statutory instruments. Legislation which related to non-devolved reserved and excepted matters, including security and constitutional matters, continued to be made by the United Kingdom Parliament and required the normal Westminster legislative procedure. The use of the order-in-council procedure originally reflected the temporary nature of the arrangements for direct rule but it was to become a permanent feature. The main justification was the preservation of a distinct Northern Ireland book of statutes which would facilitate a return of legislative responsibility to any future devolved legislative body in Northern Ireland. The alternative method would have been to introduce Northern Ireland bills at Westminster for all matters and take

BDR04.indd 40

3/23/2009 4:10:50 PM

Northern Ireland business at Westminster

41

them through all the formal committee stages which would have led to increased pressure on parliamentary time. It would also have been a complicated exercise to tag Northern Ireland legislation on to British legislation as sometimes happened with Scottish legislation. The practice of treating Northern Ireland legislation separately allowed for legislation to be more readily adopted to the different needs and existing legal statutes of Northern Ireland. Orders-in-council were originally laid before Parliament as a draft order representing the government’s defi nite legislative intent. In the case of the vast majority of draft orders the next stage was the approval of the order by both Houses of Parliament within forty sitting days of the draft order being laid. The normal gap was two or three weeks. An exception to this process was if a draft order was required to come into effect for urgent and emergency reasons. In such cases the order was made and came into effect immediately and the order remained in force only if approved by both Houses within forty sitting days of its being laid. This process was used fairly frequently in the early period of direct rule but later lapsed except for some emergency security legislation (House of Commons, 2007). Following the suspension of the Assembly in 2002 orders in council were made under the Northern Ireland Act 2000 and the distinction between ordinary orders in council and those made under the urgency procedure has continued. By 2003–04 some 90 per cent of orders were subject to the affi rmative procedure. In contrast, few British orders which were subordinate legislation were subject to affi rmative procedure (House of Commons, 2005a). When draft orders were approved by both Houses they became a statutory instrument and were published as Northern Ireland statutes which were a continuation of the pre-1972 acts of Parliament of Northern Ireland (see Table 4.1). The number of orders has remained Table 4.1 The number of orders-in-council (primary legislation) 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981

22 24 07 22 29 28 28 19 17 28

1982 1983 1984 1985 1986 1987 1988 1989 1990 1991

23 21 15 19 25 23 21 22 17 25

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

20 16 17 22 26 22 22 11 3 3

2002 2003 2004 2005 2006 2007 2008

9 19 23 20 22 11 2

Source: Northern Ireland statutes, 1921–2008.

BDR04.indd 41

3/23/2009 4:10:50 PM

42

Direct rule and the governance of Northern Ireland

largely consistent. The low figure for 1974 and for 2000–02 was a consequence of the establishment of the devolved Northern Ireland Assemblies. The procedure for orders-in-council differed from bills in two important respects. Orders in council could not be amended in Parliament, only approved or rejected and the time allocated for their discussion was traditionally limited to not more than one and a half hours. There was no equivalent of committee or report stages, which in the case of bills would permit amendments to legislation to be proposed and discussed, a facility which was more useful in lengthy or complex legislation. The absence of a committee stage or amending process to Northern Ireland legislation was to become a major problem and a source of considerable frustration to Northern Ireland MPs. It was clear soon after the introduction of direct rule that short debates on very complex and radical legislation were unsatisfactory. A planning order with one hundred articles and a health and social service order reorganising health and personal social services with one hundred and nine articles both received the maximum of one and half hours discussion during 1972. In replying to a debate on an appropriation order the minister had to quickly state that he would reply by letter to the points raised by several MPs, which he was unable to cover in the time left to him. It was possible for extra time to be allocated for debates and this happened as early as 1972 when the order reorganising the administration of education was debated for three and a half hours. Subsequently the time constraints on orders in council eased and after 1975–76 extensions to the one and a half hours for ordinary orders became more common. Many important orders still did not have time extensions beyond one and a half hours, for example, the Companies Order 1986 which had 681 articles and 24 schedules and the Social Services Order 1991 implementing the governments radical white papers ‘Working for Patients’ and ‘People First’. In 1992 there was considerable controversy about the inadequate time given to the Electricity Supply Order which paved the way for the privatisation of the industry. The restrictions on time meant that few MPs could participate in debates. In the debate on another privatisation order, the Aircraft and Shipbuilding Order, only six Northern Ireland MPs had time to speak. An analysis of Hansard for 1993–94 shows that no orders were debated for more than two hours and eleven orders-in-council were made without debate. Later in the 1990s it became normal for important annual legislation to have slight time extensions. The financial appropriation orders, renewal of the direct rule arrangements and emergency provisions legislation were debated for periods of one to two hours. It cannot be

BDR04.indd 42

3/23/2009 4:10:50 PM

Northern Ireland business at Westminster

43

assumed that all transferred legislation would have received a full and lengthy discussion in a Stormont legislature, for example, a Museum Bill was introduced at Stormont just before the introduction of direct rule in March 1972 and the second reading lasted twelve minutes. In February 1973 the same bill was introduced as an order-in-council at Westminster and the debate lasted one hour and twelve minutes. A further difficulty with the procedure was the convention that orders were usually taken after 10.30 p.m. Many important Northern Ireland orders were debated in the early hours of the morning. In July 1985 MPs finished discussing Northern Ireland orders at 4.30 a.m. and in 1982 the debate on the renewal of direct rule did not start until midnight. One MP suggested he belonged to the direct rule ‘midnight club’. This practice meant that a limited number of MPs were scrutinising late at night, in limited time, important proposals sometimes involving millions of pounds of public money. The lateness of these debates invariably meant a very small attendance of MPs. Hadfield (1990) took the view that the consideration of the merits of these orders was scarcely of impressive duration or quality. While there was no provision for a committee stage to discuss amendments to order-in-council it was normal for them to be referred for technical scrutiny to a special parliamentary committee, the Joint Committee on Statutory Instruments. This scrutiny involved drawing Parliament’s attention to an order if it imposed a charge on public revenues, had retrospective effect without authority, made some unusual or unexpected use of power, required further explanation or its drafting appeared to be defective. This scrutiny had nothing to do with the merits of policies incorporated in orders. The Joint Committee on Statutory instruments soon noted that there were problems in deciding what degree of technical scrutiny was appropriate to a Northern Ireland order when it appeared more akin to a bill as primary legislation than as delegated legislation (Joint Committee on Statutory Instruments, 1975). In terms of content and drafting, orders-in-council were based on closely equivalent British primary legislation. As a result of representations and after discussion and occasional disagreement between the Joint Committee and the NIO an amendment was made to the terms of reference of the Committee in 1977, excluding from its consideration orders made under the Northern Ireland Act 1974 which were primary legislation ( Joint Committee on Statutory Instruments, 1977). A small number of Northern Ireland orders were processed by other committees. The Westminster Joint Committee on Consolidation Bills considered consolidation orders to ensure that the matter was one of pure consolidation, for example, a 1991 Planning Order

BDR04.indd 43

3/23/2009 4:10:51 PM

44

Direct rule and the governance of Northern Ireland

consolidating previous legislation. Some Northern Ireland orders were also identified as hybrid orders, i.e. a mixture of private and public legislation thus requiring special procedures and subject to special consideration by the Hybrid Instruments Committee, for example, the Children’s Order 1995. Delegated legislation committees In an attempt to provide more time for debate arrangements were agreed in 1975 whereby orders could be sent to the Standing Committee on Statutory Instruments with an opportunity for a debate up to two and a half hours long on the merits of the order. Originally only a small number of Northern Ireland orders, about one a year, were dealt with in this way. The Standing Committee on Statutory Instruments changed its title to Standing Committees on Delegated Legislation at the beginning of the 1995–96 session as the number of orders and statutory instruments rose considerably in the House of Commons. This committee was composed of seventeen members but any MP could attend and speak but only the original members of the committee were entitled to vote. There were six standing committees and they normally considered orders around two weeks after the draft order was laid in the House. Debates were again time limited and usually restricted to one and half hours but for instruments relating exclusively to Northern Ireland debates of up to two and half hours were permitted (House of Commons, 2005a). Debates on Northern Ireland orders normally lasted one and half hours but some were very short, for example, an Employment Order in 2003 was considered for only twelve minutes. Not all Northern Ireland primary legislation in the form of ordersin-council had to be considered by these committees. Between 1997 and 1999 only nineteen out of fifty-five primary orders were considered. However, with the resumption of direct rule after 2002 almost all draft orders were considered by the (renamed) Delegated Legislation Committees. In all, between 1997 and 2007 around 13 per cent of all the statutory instruments considered by these committees have been exclusive to Northern Ireland. The debates at the Delegated Legislation committees are introduced by the relevant minister, who may note that the content of the order reflects a pre-legislative consultation or recommendations from the Northern Ireland Grand Committee occasionally the Northern Ireland Affairs Committee, for example, in relation to the Public Procession Amendment Order 2005. Party strengths are reflected in the committee membership so only two Northern Ireland MPs are members. On occasions matters may be pressed to a vote to

BDR04.indd 44

3/23/2009 4:10:51 PM

Northern Ireland business at Westminster

45

record the dissent of some members, for example, the draft Higher Education Order was approved on a 12-6 vote and a Rates Order in 2004 by an 8-4 vote. The handling of Northern Ireland primary legislation by this process still lacked the same degree of scrutiny as bills in the House of Commons or what they might expect in a devolved parliament and they still could not be amended. Thus such substantial and multi-faceted legislation as the 2003 Housing Order with 98 pages, 149 articles and 5 schedules passed with no amendments and a yes or no vote rather than with a full second reading and several days in committee and the controversial Education Order in 2006, abolishing academic selection, had only a heated two and half hour debate with no capacity to make any change. The use of the order-in-council procedure for legislation also raised the problem of dealings with what would have been subordinate legislation in the form of orders-in-council in a devolved parliament and which were now reduced in status under direct rule arrangements to statutory rules made under Northern Ireland primary legislation. These statutory rules could come into operation without being subject to any kind of parliamentary process. The solution was the appointment of an Examiner of Statutory Rules to perform similar functions to the Joint Committee on Statutory Instruments. The work of this Examiner started in 1974 and he began reporting to the Northern Ireland Assembly. His reports continued to be made to the office of the clerk of the assembly even long after its dissolution. Much of the work involved minor errors in regulations, misuse of powers or lack of clarity of expression. This procedure was a further special device made necessary by direct rule although it received almost no publicity. The Examiner expressed disquiet that on occasions some departments even forget that statutory rules were subject to his scrutiny (Examiner of Statutory Rules, 1989). With the suspension of the Assembly in 2002 the Northern Ireland Examiner continued the technical scrutiny of statutory rules and reverted to reporting to the Secretary of State (Examiner of Statutory Rules, 2002), before reverting in 2007 to reporting to the new Assembly and its appropriate committees. In his first report the Examiner reminded Northern Ireland departments of the need to avoid breaches of the twenty-one-day rule, the time between laying the statutory rule and the date it comes into operation (Examiner of Statutory Rules, 2007). Northern Ireland Acts of the UK Parliament Some legislation which was exclusive to Northern Ireland passed through Parliament in the form of bills in the normal legislative manner.

BDR04.indd 45

3/23/2009 4:10:51 PM

46

Direct rule and the governance of Northern Ireland

The bulk of this legislation falls into the expected and reserved matters categories which are the direct responsibility of the Westminster Parliament. Table 4.2 shows that the number of such bills has tended to be quite small. The most important category (see Table 4.3) was constitutional legislation which has included such major acts as; the Northern Ireland Constitutional Act 1973, the Northern Ireland Act 1974, the Northern Ireland Act 1984, the Northern Ireland Act 1998 which implemented the Agreement, the Northern Ireland Act 2000 which dealt with the suspension of the institutions and the Northern Ireland St Andrew’s

Table 4.2 Northern Ireland Acts, 1972–2008 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984

3 6 2 5 2 1 4 1 2 – 1 – 1

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

2 – 1 1 1 – 1 3 1 – 1 2 1 6

1 2 – 3 4 1 1 4 2 0

Source: Office of Public Sector Information (OPSI), 2007a.

Table 4.3 Subject of Northern Ireland Acts, 1972–2007 Subject matter

Number

Constitutional/political matters Law and order Financial legislation Consolidation legislation Other

26 23 3 6 8

Total

66

Source: Constructed from data.

BDR04.indd 46

3/23/2009 4:10:51 PM

Northern Ireland business at Westminster

47

Agreement Acts 2006 and 2007 restoring devolution. A number of other measures have covered electoral law. Law and order legislation has covered mainly the police, courts and sentencing, e.g. the Police (Northern Ireland) Act 2003, setting up the new Police Service of Northern Ireland but also such legislation as the Justice (Northern Ireland) Act 2004 establishing a Judicial Appointments Commission. Some of the less important legislation has been introduced first of all in the Lords. Most of the legislation on constitutional matters has had the committee stage in the House of Commons, and not in standing committee. This would be Westminster practice for important constitutional bills but it has been suggested that these bills were also taken on the floor of the House because they were rarely controversial between government and opposition and a standing committee would provide little participation for Northern Ireland MP (Hazell, 2006). The time given to many of these bills was in marked contrast to ordersin-council. The second reading for the Emergency Provisions Bill 1973 setting up the Diplock Courts took six hours and the Northern Ireland Bill 1982, seven hours, with six days in committee. There have also been some lengthy sessions on the normally brief report and third reading stages, for example, six hours each on the Fair Employment Bill 1976 and the Emergency Provisions Bill 1987. Some of the political legislation has been processed quickly through Parliament. The Northern Ireland Act 2000 and the St Andrew’s Act in 2006 went through their second reading, committee stage and third reading in the House of Commons in one day. Northern Ireland bills which were not taken in the Committee of the Whole House went to a standing committee for detailed consideration. Legally, the UK Government could choose to introduce bills instead of orders-in-council for all transferred matters and this remained an option for important or very special legislation. The fair employment legislation to outlaw religious discrimination in employment went through Westminster as a bill in 1976 as did the revised legislation in 1989, later consolidated in the 1998 Fair Employment and Treatment (NI) Order. This later enactment by order rather than by primary legislation was criticised by both the opposition and the Northern Ireland Affairs Committee. The government did not explain why this was the case but it has been suggested that it may have been because of the pressures of the Commons’ timetable (Cunningham, 2001: 144). There were demands for other important legislation such as the key Educational Reform Order 1989 and Electricity Supply Order 1991 to have the form of bills but the government was unwilling to go in this direction. The differences in the treatment of orders and bills have been

BDR04.indd 47

3/23/2009 4:10:51 PM

48

Direct rule and the governance of Northern Ireland

apparent in related legislation. The Criminal Evidence Order 1988 dealing with the controversial ‘right to silence’ and the Public Order (Order) 1987 dealing with the regulation of processions, flags and emblems and the Location of Victims’ Remains Order 1999 went through as orders whereas the Emergency Provisions Bill 1987 and sections of the Prevention of Terrorism Bill 1988 applying to Northern Ireland were normal legislation. Consequently the committee and report stages of the latter two saw the acceptance of some amendments. The report and third reading of both bills took up some seven hours each of parliamentary time. MPs commented on the genuine discussion and the give and take that took place at the committee stage of the bills. The government’s position was that the use of orders was now routine for the reserved category of powers and was necessary to maintain the consistency of Northern Ireland legislation in this area. The resumption of direct rule saw the government adopt the position that the Northern Ireland Act 2000, suspending the Assembly, allowed it to legislate for Northern Ireland by order-in-council covering not just the full range of transferred matters but also the full range of reserved matters, such as criminal justice, since the assembly may have legislated on those with consent (Northern Ireland Affairs Committee: NIAC, 2004a). UK statutory instruments on reserved/excepted matters As UK legislation, statutory instruments on reserved and excepted matters were subject to normal House of Commons procedures. All such UK statutory instruments referring exclusively to Northern Ireland matters between 1997 and 2007 totalled 283 (OPSI, 2007b). Between 1998 and 2007, 61 orders were introduced linked to the Northern Ireland Acts 1998 and 2000 and the Northern Ireland Elections Act 1998. The remainder related to other reserved matters including crime and justice, taxation or social security measures. Increasingly some statutory instruments covered transferred matters, for example, primary medical services in 2004. This delegated legislation may be scrutinised by the Joint Committee on Statutory Instruments, but only for their technical propriety. Defective drafting has been the main grounds for reporting instruments, with others on grounds of not being in accord with proper drafting practice, requiring elucidation or doubtful vires. The Joint Committee has usually published the memorandum received from the Northern Ireland Office or sometimes a Northern Ireland department which was the response to the issues deferred. As a further degree of scrutiny the Joint Committee published a report listing those instruments that were reported the previous year with the response that

BDR04.indd 48

3/23/2009 4:10:51 PM

Northern Ireland business at Westminster

49

departments have made in addressing their concerns, for example, in 2004 it was reported the Northern Ireland Office had corrected six instruments while four orders were still awaiting from previous years as it was unclear how to proceed. UK legislation which covers Northern Ireland It is sometimes overlooked that a great deal of ordinary public legislation passed at Westminster applied wholly or in part to Northern Ireland. Legislation which wholly included Northern Ireland was mostly in the category of excepted functions and covered such subjects as immigration, elections, social security, finance, the EU and international matters and communications. In some cases legislation was extended to Northern Ireland, for example, in new areas for legislative intervention such as consumer protection, financial services, human fertilisation and human tissues. The Government is empowered to legislate on transferred matters through this method and in 2004 the Northern Ireland ministers agreed with the inclusion of Northern Ireland in the Westminster bills on civil partnerships, on tobacco advertising and on consumer credit. Acts of Parliament describe their territorial application and it is possible to divide all UK legislation into three categories: covering Northern Ireland, not applicable and partially applicable. Table 4.4 gives a breakdown of all UK bills in the period 2000–07. In the years 2000–07, half of all bills, excluding purely Northern Ireland legislation, had some application to Northern Ireland. The proportion of UK legislation which totally omitted Northern Ireland was less than half. Bills applying in part vary between where the legislation largely applies with the exception of a few clauses, for example, Table 4.4 Territorial coverage of UK bills, 2000–2007

1 2 3 4 5 6

Covers Northern Ireland Does not cover Northern Ireland Contains sections applying to Northern Ireland Covers transferred matters Northern Ireland Only bill Similar order-in-council

Number

%

105 107 27 3 14 2 258

41 41 11 1 6 – 100

Source: The United Kingdom Parliament (2007).

BDR04.indd 49

3/23/2009 4:10:51 PM

50

Direct rule and the governance of Northern Ireland

laws on sustainable energy, and anti-social behaviour or where it is specified that the UK Act does not apply to Northern Ireland except for a few clauses, for example, legislation relating to licensing of drugs, higher education and gambling. A final variation is that a few separate sections in the legislation apply only to Northern Ireland, and not England/Scotland/Wales, for example legislation on domestic violence, insolvency, freedom of information and crime. Private members bills A smaller category of Northern Ireland legislation has been introduced into Parliament as private members legislation. Backbench MPs who are successful in a ballot can introduce their own bills but most fail to become law. There have been very few successful Northern Ireland private members bills during direct rule. The most important was an Education Bill introduced in the House of Lords by Lord Dunleath in 1988 to make provisions for setting up integrated schools. The Chronically Sick and Disabled Bill 1978 was introduced by Gerry Fitt after dissatisfaction was expressed in Northern Ireland with the Government’s claim that similar legislation to the British Act was unnecessary in Northern Ireland. In 1989 Rev. Martin Smyth introduced the Disabled Persons Bill which extended existing legal provision in Britain to Northern Ireland. These bills passed through Parliament following the normal legislative procedures but normally a private members bill has to have some measure of government support to succeed. A number of other private members bills have failed to gain parliamentary approval including: the Accomplice Evidence Bill introduced by Seamus Mallon in 1986 to require that an accused person should not be convicted on the uncorroborated evidence of an accomplice, the Northern Ireland (Termination of Jurisdiction) Bills introduced by Tony Benn in 1988 and again in 1993 and a bill by William Ross in 1990 to amend the 1974 Act to provide that laws should be made by bills and not ordersin-council. Other unsuccessful bills have been introduced in the Lords, for example, the Bill of Rights bill introduced by Lord Brockway in 1977 and the Trial of Terrorists and Witness Protection bill introduced by Lord Brookborough also in 1977. Pre-legislative consultation The lack of procedures to amend orders-in-council led to more attention being paid to pre-legislative consultation, almost since the start of direct rule. The legislative process through orders in council involved

BDR04.indd 50

3/23/2009 4:10:51 PM

Northern Ireland business at Westminster

51

two phases, a preliminary process of consultation with Northern Ireland interests and then submission to and consideration in Parliament. Proposed legislation was published first of all as a ‘Proposal for a Draft Order’ and was accompanied by an explanatory memorandum or document which included much of the supporting information that would form part of the second reading speech by a minister under the bill procedure. Some more technical orders did not have a consultative stage, for example, consolidation orders. Explanatory documents normally followed a set format in reviewing the existing law, explaining the reasons or sources of changes, identifying the most important changes, comparing the proposals with the law in Britain and later setting out general policy options. Most explanatory documents also had a note on the financial and staffing implications of the order and also included explanatory notes on each of the articles of the proposed order. Copying Westminster practice the explanatory memorandum was written to make the proposals accessible to readers who had no specialist or legal knowledge. The normal period of consultation was six weeks but this was occasionally extended, as it was for the Divorce Order while the controversial Higher Education Order 2005 allowed three months for responses. Proposals for draft orders, as legislative consultation documents, were sent to interested bodies and organisations in Northern Ireland sometimes preceded by a consultation paper. No list of the circularised bodies was published and at times there were complaints about omissions. It was not unusual for ministers to announce amendments to draft orders after the consultation process but most were of the marginal kind. In 1996 during the consultation period on the proposals to amend Northern Ireland’s liquor licensing and club registration laws 700 responses were received and as a result of the comments seventeen amendments were made. The Education Order 2005 was sent out with a response booklet to facilitate a high response. Consultation events may be held to allow interested parties to express their views, for example, on the strategic investment and regeneration of cities legislation in 2003. It was customary for draft proposals for orders-in-council to be referred to Northern Ireland MPs and all the party spokesmen on Northern Ireland. It was suggested by the government that as a result of the extensive consultation there was a distinct Northern Ireland character to the divorce legislation of 1978, and twenty-one amendments were made in the light of the comments received during the consultative period. The Education Reform Order of 1989 was based on a discussion document which produced 5,000 written submissions. In 2004, in announcing a smoking ban in all enclosed public places

BDR04.indd 51

3/23/2009 4:10:51 PM

52

Direct rule and the governance of Northern Ireland

and workplace the minister announced this was overwhelmingly the most popular of three options put to consultation. After 2002, unless for urgent reasons, orders were subject to a period of twelve weeks’ public consultation. Parliamentary involvement in pre-legislative consultation began in 1975 when a Northern Ireland Committee was established in the House of Commons and one of its functions was to discuss proposed ordersin-council. The committee met to debate topics of general Northern Ireland interest or proposals for draft orders in council before they were formally laid before Parliament. One of the most significant inputs by the Committee occurred in 1977 when the Compensation for Criminal Injuries Order was changed in several important respects, in the light of Committee recommendations. In 1982 a recommendation by the Northern Ireland Committee to increase trade union representation on the Industrial Development Board was accepted. However, during the 1980s not all legislative proposals were published as draft proposals (Hadfield, 1990: 21). Pre-legislative scrutiny, originally introduced for Northern Ireland, was to become of interest to the House of Commons with a trend developing for many Westminster bills to undergo prelegislative scrutiny. Pre-legislative scrutiny by the Northern Ireland Grand Committee More significant action was taken in 1996 to meet criticism of the inflexibility of the order-in-council procedure with the establishment of a Northern Ireland Grand Committee to replace the old Northern Ireland Committee and distinct from a new Northern Ireland Affairs Select Committee, discussed below. The Grand Committee was established along the lines of the Scottish and Welsh Grand Committees and consisted of all Northern Ireland MPs and up to twenty-five other MPs, but with a government majority in its membership. The Grand Committee could in effect exercise three different roles in relation to legislation. However, its work has been largely confined to pre-legislative scrutiny of orders-in-council. The Grand Committee can debate legislative proposals for a draft order-in-council normally for up to two and a half hours. Proposed orders are introduced and taken through the committee by the relevant minister. It became the norm for the Grand Committee to consider appropriation, later budget orders, which authorised expenditure and between 1998 and 2007 over half of all twentyone orders considered fell into this category (Northern Ireland Grand Committee, 2007). The number of orders covering other areas of

BDR04.indd 52

3/23/2009 4:10:51 PM

Northern Ireland business at Westminster

53

legislation is thus quite small, only one or two per year. The Government has no obligation to consult the Grand Committee but can do so if it thinks it is advisable or there is time. The separate Northern Ireland Affairs Committee can request orders be considered by the Grand Committee and this may be agreed to, for example, the Life Sentences and Financial Investigation Orders in 2001. Following devolution it was the intention that the Grand Committee would focus on the scrutiny of orders on reserved matters, i.e. mainly on criminal justice. With the resumption of direct rule in 2002 the Grand Committee became responsible for pre-legislative scrutiny of orders on devolved matters. However, the number of such debates was small covering such topics as employment and strategic investment in 2003 and special educational needs and disability in 2006. Since devolution in 2007 the Grand Committee has chosen only reserved topics for investigation, for example, police reform and youth offending. The role of the Grand Committee was still very limited, given the fact that orders could not be amended, although the minister can take into account points made in the Grand Committee in producing the final version of the order. There was an embarrassment for the Government in 2005 when their motion on the Draft Higher Education Order was defeated 11-10 in a Grand Committee vote (Northern Ireland Grand Committee, 2005). The Grand Committee is empowered with other legislative functions. Bills referring exclusively to Northern Ireland can be referred to it for consideration of its principle policies prior to its second reading, and if approved the House of Commons can formally give the bill a second reading. The Grand Committee may then consider a bill after its report stage, which again in effect constitutes its formal third reading. However, these procedures have not been used, probably as most Northern Ireland bills concern law and order or constitutional issues and are controversial. The Grand Committee is also empowered to consider delegated legislation, on a motion that it be removed, annulled, not made, or approved, but again this power has not been used and this work is done by the Delegated Legislation Committees. The Select Committee on Northern Ireland Affairs has also the power to engage in the pre-legislative scrutiny but has conducted few investigations. One of the few it did engage with was the Policing Bill. The scrutiny of government activities by debates and questions: the whole House These are two main parliamentary forums through which the activities of government in Northern Ireland can be scrutinised, in the whole

BDR04.indd 53

3/23/2009 4:10:52 PM

54

Direct rule and the governance of Northern Ireland

house through debates and parliamentary questions and in the Grand Committee through debates and questions. There have been major debates in the Commons on important constitutional developments. In 1982 there was a six and a half hour debate on the Government white paper on devolution and in 1985 a two-day debate totalling fourteen hours on the Anglo-Irish Agreement. Northern Ireland MPs have initiated debates on a wide range of topics including more minor matters, e.g. in 1977 Enoch Powell introduced a debate on retirement at sixty in the Northern Ireland Civil Service although at one stage during this debate only seven MPs were present. There also have been occasional examples of MPs from Britain initiating debates, e.g. a debate on the Northern Ireland Educational Guidance Service. Northern Ireland MPs have also made frequent use of Standing Order No. 9 to move an adjournment of the House ‘for the purpose of discussing a specific and important matter that should have urgent consideration’. This has been invoked quite often after major security incidents. Normally the Speaker did not allow the debate but this procedure permitted the airing of strong feelings. Ministerial statements on current events whether political developments or terrorist incidents also provided opportunities for brief debates. Early day motions provide an indication of opinion on the backbenches through the number of signatures and in 2006 there were such motions on the Equality Commission and grammar schools in Northern Ireland. Under direct rule the Secretary of State and the Northern Ireland ministers answered parliamentary questions on all Northern Ireland matters whether put orally or in writing by MPs. Questions are used to seek information but also to press for action and force ministers to defend their policies or actions of their departments. Oral questions to the Secretary of State and Northern Ireland ministers occurred once a month. Direct rule meant a large increase in the volume of parliamentary questions. The number increased from 140 in 1970 to 1,221 in 1974/75 with totals of 1,766 for 1983/84 and 1,051 in 1994/95. The number of parliamentary questions during devolution dropped as the rules on questions were revised so that in general parliamentary questions could not be tabled on matters devolved to Northern Ireland, Scotland and Wales. With the resumption of direct rule in 2005 there were 3,684 parliamentary questions from MPs, out of a total in Parliament of around 80,000 (House of Commons, 2005b). There have only been a few difficulties with parliamentary questions. Some were not answered for security reasons or cost, or difficulty in providing detailed material. When devolution was introduced in the

BDR04.indd 54

3/23/2009 4:10:52 PM

Northern Ireland business at Westminster

55

UK in 1999 question time was reduced to thirty minutes but the time was not increased when direct rule resumed (Gay and Mitchell, 2007). Most questions were directed at the NIO ministers but other Cabinet ministers may be involved in answering questions which relate to Northern Ireland matters; the Minister of Defence in connection with the Army, the Foreign Office for relations with other countries and the Lord Chancellor, later the Minister for Justice, for the Northern Ireland Court Service. The oral questions tended to seek statements about current political or security developments. Written questions focused more on detailed aspects of policy, provision and information. It was not so common for very local issues or constituents’ grievances to be raised but questions have been put, for example, about repairs to specific primary schools and roads. Scrutiny by debates and questions: the Northern Ireland Grand Committee Apart from the legislative role described earlier the Grand Committee, with all Northern Ireland MPs (in practice fourteen minus Sinn Fein MPs) and up to twenty-five other MPs, also has a scrutiny role. The Grand Committee meets when ordered to by the Commons and begins with a ministerial question time for thirty minutes and ends with an adjournment debate with the main business in between. The oral questions were in addition to those in the House of Commons and were answered by a minister, but with no system of written answers. Questions covered much the same areas as parliamentary questions and provided an extra dimension of scrutiny for Northern Ireland MPs. Short debates lasted thirty minutes on a subject relating to Northern Ireland raised by members with a minister replying, and ministers could also make statements in the Grand Committee but this usage was rare. The Grand Committee has held in depth debates on one or two topics each year, twenty-four in all between 1998 and 2007. Half of these would fall under an economic heading, for example, the Northern Ireland economy in 1998, and the social economy in 2004. The other half covered more socio-political topics, for example, hospital services in 1999, human rights and equality in 2001, community relations policy and policing reform in 2006. These debates can last two to three hours. When the Grand Committee considered the Review of Public Administration in 2006 there were protests at the shortness of the two and half hour debate (Northern Ireland Grand Committee, 2006).

BDR04.indd 55

3/23/2009 4:10:52 PM

56

Direct rule and the governance of Northern Ireland

Following the restoration of direct rule in 2002 the terms of reference of the Grand Committee were not changed but it met more frequently. It can be noted that following devolution the Scottish Grand Committee no longer meets. There were vocal complaints from unionist MPs about the Grand Committee not meeting in Northern Ireland, unlike the Scottish and Welsh Grand Committees. The UK Government and the SDLP may have viewed the Grand Committee meeting in Belfast as an alternative mini-assembly. However, the practice changed to allow meetings in Northern Ireland, for two of the roughly six meetings each session. Scrutiny by the Northern Ireland Committee The Northern Ireland Committee was inaugurated in February 1975 as part of a package of moves to improve the handling of Northern Ireland business. It had the task of considering specific matters relating exclusively to Northern Ireland which were referred by Parliament. All Northern Ireland MPs sat on the committee as of right but up to twenty-five other members were appointed separately for each debate. The Committee did not have the powers of a select Committee to send for papers and take evidence and was not equivalent to the Scottish and Welsh Affairs Select Committees or the Scottish Grand Committee. In 1977 the restriction on the number of sittings that the Committee could hold in a parliamentary session was removed and the discussion of draft legislative proposals was facilitated. The proceedings of the Northern Ireland Committee have resembled a mini-debate with a relevant minister present and the procedures permitted more precise questioning of ministers than is possible in the House of Commons. The Northern Ireland Committee dealt with three different kinds of matters: firstly, a number of draft legislative proposals, secondly, topics of current interest, for example, the state of the health service or housing conditions and, thirdly, the consideration of some official reports, e.g., the report of the Examiner of Statutory Rules, and the annual report of the Fair Employment Agency. The Northern Ireland Committee did not really make much of an impression. There were rarely more than three or four inquiries a year and government ministers determined the subject matter. The most controversial activity involved three days of sittings on an annual report of the Fair Employment Agency when the agency came under strong criticism from Unionist MPs. During its lifetime the committee’s role was rather disjointed and unfocused. The Committee could only report that it had considered the matters referred to it. The Northern Ireland

BDR04.indd 56

3/23/2009 4:10:52 PM

Northern Ireland business at Westminster

57

Committee lapsed completely after 1985 with the parliamentary boycott by Unionist MPs in protest at the Anglo-Irish Agreement. In 1991 it recommenced limited work and again considered draft proposals for legislation and discussed electricity privatisation and the health service. Government reservations about a more powerful committee helping to entrench direct rule were eventually overcome in 1994 when a Select Committee on Northern Ireland Affairs was established and in 1996 the Conservative Government agreed to expand the role of the Northern Ireland Committee and the word ‘Grand’ was added to the title. It was felt that the word ‘Grand’ would help distinguish this committee from the newly formed Northern Ireland Affairs Select Committee and avoid confusion between the two. Scrutiny by the Northern Ireland Affairs Committee This committee is similar to other Select Committees which cover the UK Government departments. It has the task of examining the expenditure, administration and policy of the Northern Ireland Office and other matters within the responsibilities of the Secretary of State except for the office of the Director of Public Prosecutions. The committee consists of thirteen MPs and normally only four have been Northern Ireland MPs with, as is customary, the governing party having a majority. The Northern Ireland Affairs Committee (NIAC) can carry out full inquiries, seek written evidence, hold formal evidence sessions including evidence from NIO ministers and appoint expert advisers. It can travel to hold sessions and normally has made two-day-long visits to Northern Ireland where it is able to conduct a broader range of work than would be possible at Westminster. In 2004 more than a quarter of its meetings took place in Northern Ireland and during an inquiry into hate crime it heard from thirty-three witnesses during a visit (NIAC, 2005a). The committee has also travelled to the USA in connection with a fair employment inquiry and to Brussels for an inquiry into the peace programme. The committee has chosen between five and seven topics each year for inquiries, selected from the Northern Ireland Office updates about the range of work in progress across all parts of the Northern Ireland Office and the Northern Ireland departments. Working relations between the committee and the Northern Ireland Office are reported as ‘generally good’ (NIAC, 2001a). The work tends to be a mixture of short inquiries into matters of topical concern and other longer-term inquiries. Of all the subjects investigated to date, approximately two-thirds fall within the responsibility of the Northern Ireland Office. Many of the chosen subjects, if not all, usually relate to

BDR04.indd 57

3/23/2009 4:10:52 PM

58

Direct rule and the governance of Northern Ireland

issues which have attracted recent media, public and political attention. Writing about the Northern Ireland Committee, Wilford and Elliott (1995) suggested that it had avoided controversial topics but in subsequent years this does not appear to be the case. Examples are the composition, recruitment and training of the RUC, electoral malpractice in 1998, the Parades Commission in 2000, the separation of political prisoners in 2004 and the functions of the Police Board and Police Ombudsman’s Office in 2005. The other topics have related to social and economic questions (which are usually the responsibility of Northern Ireland departments), for example, educational special needs in 1998, illegal drugs in 2002, air transport and waste management in 2004 and education policy in 2005. The Committee on occasions has carried out inquiries into specific legislation, for example, the Police Bill 2003 and the ‘Hate Crime’ Criminal Justice Order 2003 and has also turned its attention to a number of quangos or non-departmental public bodies, such as, the Arts Council and the Tourist Board. Occasionally, the matter investigated may be the responsibility of another UK department, for example, the impact of cross-border road fuel price differences was a Treasury responsibility. The Committee also has a general duty to examine and report on the main estimates and annual expenditure plans. It also examines the Northern Ireland Office performance against public service agreements and scrutinises the work of its executive agencies (NIAC, 2008). The reports of the Committee normally contained quite a number of special recommendations. These numbered twenty plus on the report of the Fair Employment Act in 1999, twenty-seven on social housing provision and twenty-nine on the separation of prisoners in 2004. The Government is obliged to respond to the Committee’s recommendations within two months and this may be done in a published written report or as a letter or memorandum from the relevant department on behalf of the Government. The Government’s response was invariably mixed but overall was often positively expressed, for example, as generally endorsing the principal conclusions and recommendations on the operation of the Prison Service in Northern Ireland (NIAC, 2001b) or stating that the report on fair employment provided a valuable contribution to the wider understanding of government efforts (NIAC, 1999a). Some, but not very many recommendations led to changes: these have included the role of prison boards of visitors, prison shift work and the administration of the Peace II applications (NIAC, 2003a). However, it is more common for the Government to state that it will consider recommendations, or will they form part of an ongoing discussion. Usually criticisms are answered fairly fully, for example, over the community balance in

BDR04.indd 58

3/23/2009 4:10:52 PM

Northern Ireland business at Westminster

59

the Parades Commission but sometimes rather sidestepped, for example, the criticism that housing associations were failing to meet their targets for new-build social housing. Some recommendations were clearly rejected but reasons were given. The Government’s view remained, contrary to the committee’s belief, that the decision to separate paramilitary prisoners was the right one (NIAC, 2004b). The Select Committee could conduct pre-legislative scrutiny of orders-in-council but this happened only occasionally for example on the proposed ‘hate crime’ legislation, the Criminal Justice Order, 2004. The NIO minister commented that the work of the Select Committee had been extremely important in helping government to take forward its legislative proposals (NIAC, 2004c). From 2001 the House of Commons Liaison Committee proposed that each select committee should make an annual report on progress on the implementation of recommendations and other live issues (Liaison Committee, 2000) and note any follow-up inquiries they have conducted in annual reports. In following up progress on initiatives to improve the administrative efficiency of the Peace II programme the NIAC Committee held further meetings with relevant ministers. In what marked an enhancement of the impact of the work of select committees, the Secretary of State can make a formal government response to these annual follow-up reports. In 2005 the Secretary of State rejected the committee’s view of a slow response on the parades issue (NIAC, 2005b). There is not usually time to debate the reports of the departmental select committees in the House of Commons but special provision is now made to take some reports in Westminster Hall as an addition to the Commons, for example, in 2003–04 the report of the NIAC on drugs was debated there. The restoration of devolution means the work of the committee is restricted to the matters which were within the remaining responsibilities of the Secretary of State. In practice, this has not made a major difference as the NIAC tended to focus on Northern Ireland Office matters anyway, particularly law and order topics. With the suspension of the Assembly in 2002 the committee took on a more proactive responsibility in scrutinising the work of the Northern Ireland departments and formally set up a sub-committee under a different chairperson to consider matters that had fallen previously within the remit of the assembly (NIAC, 2005b: para. 4). This led to inquiries on social housing provision and on waste management strategy. It appeared to be the intention of the Committee to increase its workload with more inquiries into transferred matters thus enhancing scrutiny arrangements under direct rule, however the number of MPs on the NIAC was not increased and the sub-committee was to

BDR04.indd 59

3/23/2009 4:10:52 PM

60

Direct rule and the governance of Northern Ireland

lapse. Westminster conventions ensured that normally the Government view prevailed but the work of the NIAC increased political surveillance of policy-making in Northern Ireland at Westminster. The NIAC also suffered from a lack of Northern Ireland members with local knowledge and interest (Osborne, 2002). A report in 2005 on education changes in Northern Ireland was a very low-key affair compared to what would have taken place in a devolved select committee. The NIAC had investigated tourism just before the restoration of devolution but post-2007 the main inquiries have related to reserved matters, for example, the prison service. Departmental select committees In 1979, the system of select committees in the House of Commons was extended to monitor the work of all government departments. These committees had a membership of nine to twelve MPs and had the power to send for persons, papers and records. Eight of the seventeen committees were chaired by a member of the opposition, an element of the Westminster-style power-sharing. The specific remit of the select committees was to examine the expenditure, administration and policy of the main government departments and their associated public bodies. All the departmental select committees were empowered to examine matters within the responsibilities of the Secretary of State for Northern Ireland. This meant that potentially during direct rule there could be complete scrutiny of Northern Ireland affairs. In practice departmental select committees did not show a great deal of interest in Northern Ireland. There have only been a few major investigations, leading to reports and policy recommendations. The Education Select Committee investigated further and higher education in Northern Ireland in 1983, prompted by the many changes the system was undergoing and the final report made thirty-one recommendations on further education, teacher education, youth training programmes and the universities. A special Liaison Select Committee monitors the work of the departmental select committees. Its first report (Liaison Committee, 1988) noted that the inclusion of Northern Ireland widened considerably the scope of activities of the twelve relevant select committees. It reported that six committees had so far received written evidence from Northern Ireland departments. The Energy Select Committee reported on the privatisation of Northern Ireland electricity in 1988 and again in 1992. A wide ranging investigation took place during 1990–91 when the Environment Select Committee conducted a major separate inquiry into environmental issues in Northern Ireland. The Committee included

BDR04.indd 60

3/23/2009 4:10:52 PM

Northern Ireland business at Westminster

61

a three day visit, meetings in Parliament Buildings at Stormont and it travelled widely in Northern Ireland. The Committee eventually published a 216-page report with 29 recommendations which found the system of environmental protection much less highly developed than in Great Britain. The Committee was so concerned at what it saw as indiscriminate development in the countryside that it threatened to carry out a further inquiry into the operation of the planning system. The Government published a full response to the report in March 1991 (DOE, 1991) and announced the allocation of additional resources and an enhanced status for environmental policies. In 1993 the Environment Committee returned to the issue to report general progress on most of its earlier recommendations. This select committee inquiry was responsible for the introduction of major policy developments which would not otherwise have happened. Select committee inquiries into UK-wide topics on occasions received evidence from Northern Ireland bodies and on occasions from NIO ministers. The Department of Agriculture Select Committee received evidence from Northern Ireland fairly regularly on subjects such as agricultural research. A few select committees have also visited Northern Ireland to take evidence as part of their wider investigations, for example, as part of investigations into community care, health service organisation, tourism and social security benefits. In 1990 the House of Commons Select Committee on Procedure (Select Committee on Procedure, 1990) investigated the working of the select committee system. This report examined the treatment of Northern Ireland affairs and noted that the fragmentation of responsibility among many different committees had led to widely different assessments of the priority accorded to Northern Ireland matters. In evidence, for example, the chair of the Energy Committee, which had made some attempt to include Northern Ireland affairs, acknowledged that ‘I do not believe that committees with Great Britain members alone will ever do justice to Northern Ireland issues’ (Select Committee on Procedure, 1990: para. 46). The Committee concluded that ‘it can hardly be said that Northern Ireland matters are receiving the attention from the departmentally related select committees which they deserve and which the House is likely to have intended’ (Select Committee on Procedure, 1990: para. 48). The period after devolution and its suspension did little to counter that view and in practice inclusion of Northern Ireland has become rarer. Evidence has only been presented on a small number of issues, for example, to an inquiry into social cohesion in 2004 (Select Committee on Office of Deputy Prime Minister, 2004). What was happening following devolution in the UK was that Westminster

BDR04.indd 61

3/23/2009 4:10:52 PM

62

Direct rule and the governance of Northern Ireland

departmental select committees increasingly confined themselves to England. Public Accounts Committee It has been standard Westminster practice for the accounts of government departments and other public bodies to be subjected to parliamentary scrutiny. The accounts are sent to a committee of backbench MPs, the Public Accounts Committee (PAC) which selects a number of subjects for detailed investigation. Under direct rule the Westminster Public Accounts Committee became responsible for Northern Ireland departments and the examination of the reports of the Comptroller and Auditor General for Northern Ireland. After 1976 some dozen other public bodies were included. The main task of the PAC is to ensure that public expenditure is properly incurred on the purpose for which it has been voted by Parliament. The PAC has developed a reputation as a thorough investigative and authoritative body and the Government is expected to publish a reply to its comments and recommendations. In time the PAC widened its range of comments, focusing more on possible waste and negligence and the questions of efficiency and value for money. The PAC consists of only sixteen MPs and normally it does not include any Northern Ireland MPs. In 1983 the office headed by the Comptroller and Auditor-General was replaced by a National Audit Office which became an independent body outside the Civil Service. A similar change was introduced to Northern Ireland in 1987 when the Exchequer and Audit department was replaced by a Northern Ireland Audit Office. Since 1988 reports on the accounts have been issued each year including an economy, efficiency and effectiveness examination of selected topics. The PAC selected some six items from the Audit Office reports each year for investigation. Northern Ireland civil servants and the heads of statutory bodies were questioned at Westminster and, as well as individual reports, a composite Northern Ireland report was usually published annually. In February 1998 the PAC visited Northern Ireland, the first occasion on which an evidence session was held in Belfast. Some topics have had a detailed value for money orientation, for example, energy efficiency in the education sector, the provision of government office accommodation, and the management of museum collections. Other topics have had more high-profile public expenditure implications, for example, the privatisation of Harland and Wolff and Short Brothers and the sale of Belfast International Airport. Some of the most detailed investigations have related to industrial development. In 1984 the PAC

BDR04.indd 62

3/23/2009 4:10:52 PM

Northern Ireland business at Westminster

63

published a major report on an investigation of the DeLorean motor car project in which it concluded that hardly any of those involved on behalf of the British tax payer could escape substantial blame or criticism for their failure to prevent ‘one of the gravest cases of the misuse of public resources to come before it’ (PAC, 1984). Methods of financial accounting and management have come in for strong criticism with the increasing emphasis on efficiency and effectiveness as well as identifying losses to the public purse. In 1990 the PAC made a range of criticisms of the performance of the Industrial Development Board as it was revealed that between 1987 and 1989 many of the jobs promised did not materialise (DFP, 1990). The PAC was to report on the job skills programme in 2005 that it was one of the worst-run programmes that this committee had examined in recent years (PAC, 2005a). The PAC was also to report in 2006 on what it highlighted as one of the worst failures of governance and worst cases of conflict of interest and impropriety the committee has seen. This report related to the Department of Enterprise, Trade, and Investment oversight of the Local Enterprise and Development Units funding of Emerging Business Trust, a body which provided loans and equity funding for small businesses (PAC, 2006a). Another inquiry in 2006 was critical of the lack of leadership in the Department of Education in bringing forward a strategy to improve literacy and numeracy (PAC, 2006b). The PAC often investigates expenditure two years after it has been incurred and its most useful work involves recommendations to prevent the recurrence of the problem. Following the DeLorean investigation the PAC recommended an adequate period in which to carry out a full and detailed assessment of the viability of a potential project and tighter monitoring of projects. Up until 2004 it was still monitoring reports by the Audit Office on attempts to recover the public funds lost on the De Lorean project. Normally the Northern Ireland Department of Finance and Personnel (DFP) produced a formal response to PAC, in a formal command paper. Departments have tended to accept the criticisms of the Committee and make suitable comments about it not happening again but some important changes have resulted. It was claimed that the lessons learnt after the De Lorean project would be fully reflected in the arrangements for the new Industrial Development Board with improved checks introduced. In 1998 the Department of Health and Social Services accepted fifteen recommendations from an investigation of expenditure on coronary health disease relating to improving health promotion, waiting lists and rehabilitation of cardiac patients (DFP, 1998). The DFP’s response to the highly critical report on its lack of

BDR04.indd 63

3/23/2009 4:10:52 PM

64

Direct rule and the governance of Northern Ireland

control over its public bodies specified an extensive range of remedial action (DFP, 2006a). The PAC, with its selective investigations, is not normally in a strong position to follow through its recommendations. However, it can request that it be kept informed of the outcome of further follow-up by departments. In 2005 it returned to the issue of the use of operating theatres and noted only a ‘modest improvement in theatre utilisation’ since its previous report (PAC, 2005b). The proportion of Northern Ireland inquiries at Westminster was quite small. In 1998 six of the total sixty-four investigations were about Northern Ireland matters, and between 2003 and 2007 there were only around three reports per year. The chair of the PAC was to note that the Committee did its best but it has to deal with the whole of the United Kingdom (Wilford and Wilson, 2005a). During the second period of direct rule a new procedure was introduced to deal with those reports not the subject of a PAC hearing. The Audit Office can write to the departments concerned setting out the main issues and asking for a formal written response. The House of Lords The powers of the House of Lords are limited within the parliamentary process and it had no special responsibilities for Northern Ireland business. The main involvement of the Lords has related to the legislative process. All orders-in-council had to be approved by the Lords as well as the Commons, although the time taken to debate them has been shorter and on occasions there has been no debate. The Housing Order 1988 on homelessness which was debated for forty minutes by only three Lords was a fairly typical example. Lengthy debates are the exception although there was a four-hour debate on the renewal of direct rule in 1978 and the Lords actually spent longer discussing the Northern Ireland 1998 Act than the House of Commons. Statistics produced in the Lords indicated that the difference in time compared to the Commons was not always substantial (see Table 4.5). Northern Ireland bills also had to go through the legislative procedures of the Lords as well as the Commons. Some less controversial bills, for example consolidation measures like the Statute Law Revision Bill, were introduced first in the Lords before going to the Commons. An Ulster Defence Regiment Bill in 1973 was introduced in the Lords but it concerned the admission of women into the regiment and was largely non-controversial. The one controversial bill to be introduced in the Lords was the Fair Employment Bill but this was largely due to pressure on parliamentary time. Under these procedures bills in the

BDR04.indd 64

3/23/2009 4:10:53 PM

Northern Ireland business at Westminster

65

Table 4.5 Time debating Northern Ireland orders Hours

1984–85 1985–86 1986–87 1987–88 1988–89

Commons

Lords

39 18 12 15 21

21 12 12 14 9

Source: House of Lords, 1989.

Lords attract more attention and scrutiny than unamendable orders. The Elected Authorities Bill 1989 imposing a declaration against violence on local councillors was debated for a total of five hours and amendments were discussed at both the committee and report stage. One amendment was defeated narrowly on a 67-52 vote. A number of private bills relating to Northern Ireland have been introduced into the Lords. These proposals have usually failed to attract the tacit government support necessary to progress to legislation. Lord Dunleath introduced a Divorce Reform Bill, Lord Brockway, a bill of Rights, and Lord Brookborough, a Northern Ireland Trial of Terrorists, Witnesses and Protection Bill and in 2006 Lord Laird introduced a bill concerning the composition of the police force. An exception was in 1977 when an Education Bill, introduced by Lord Dunleath to facilitate integrated schooling, received support from the Government and eventually became law. The House of Lords has also been given an enhanced role in general in scrutinising delegated or secondary legislation. This function is carried out through two select committees. Since 1992 the Delegated Powers and Regulatory Reform Committee has examined bills to report on whether they inappropriately delegate legislative power or subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny. Some Northern Ireland bills have gone through this scrutiny but, for example, nothing inappropriate was reported concerning the Terrorism Bill, 2005. The St Andrew’s Agreement Bill 2006 and the Justice and Security Bill 2006 produced letters of response from the NIO minister, clarifying issues or indicating amendments. Clauses in United Kingdom bills applying to Northern Ireland may also be highlighted, for example, in the Equality Bill in 2006. The second select committee was only set up in 2003, when the Merits of Statutory

BDR04.indd 65

3/23/2009 4:10:53 PM

66

Direct rule and the governance of Northern Ireland

Instruments Committee was established with the role of drawing the attention of the House an instrument which merited further debate if it is judged politically important or may imperfectly achieve its policy objectives or is inappropriate in view of changes since the parent Act. This Lords Committee identified the Northern Ireland Rates (Regional Rates) Order 2006 on the grounds it gave rise to issues of public policy. The Merits Committee reports may publish additional information obtained in response to the Committees questions to departments. The Lords also has a number of special select committees which occasionally covered Northern Ireland matters but one of those has a special relevance. A Constitution Committee was set up in 2001 with both a scrutiny function in examining public bills to inform the House of any constitutional concerns and an investigative function in carrying out inquiries into wider constitutional issues. Consequently the Constitution Committee examined several Northern Ireland bills. The Justice (Northern Ireland) Bill was examined, and some of the provisions were judged to have significant constitutional implications (Select Committee on Constitution, 2002b) for example, on the independence of the judiciary in Northern Ireland. The Constitution Select Committee has also carried out a major study of inter-institutional relations in the United Kingdom and made recommendations covering the effect of devolution on the legislative progress. In 2008 under its new name of the Justice Committee, it launched a study of ‘devolution: a decade’ on. Members of the House of Lords also participate in several ad hoc joint committees with the House of Commons. One which had relevance for Northern Ireland is the Joint Committee on Human Rights, which considers matters relating to human rights in the United Kingdom and examines all bills in respect of compliance with human rights measures. The Joint Committee on Human Rights reported on the controversial Northern Ireland Offences Bill although the bill was to be withdrawn ( Joint Committee on Human Rights, 2006). There have been some debates on major constitutional developments in the Lords but few debates on other subjects, for example, in 1979 there was a debate on economic and social problems in Northern Ireland and in 1980 even a debate on the future of hospital services in the Omagh district. There was a small number of Northern Ireland peers but some were quite active in the Lords in debates and putting questions to the Government. Lord Blease was also for a period the Labour opposition spokesman on Northern Ireland in the Lords. An answer to a question put by Lord Blease indicated that a fairly limited time, an average of only twenty-one hours per parliamentary session, was devoted exclusively to Northern Ireland matters. The lack of interest in Northern

BDR04.indd 66

3/23/2009 4:10:53 PM

Northern Ireland business at Westminster

67

Ireland affairs led a rather exasperated minister to note in 1989 as he introduced an order ‘we discuss the affairs of Northern Ireland and one-third of the members depart’ (House of Lords, 1989). Reform of parliamentary procedures Direct rule resulted in extra pressure on the Westminster timetable with the increased workload from orders-in-council, statutory instruments, Northern Ireland bills, debates, ministerial statements, parliamentary questions and the work of committees. There was much criticism of the way in which Northern Ireland legislation was passed and the scrutiny of administration was carried out and there were fairly frequent demands for some change in the procedures for handling Northern Ireland business. These usually related to the lack of procedures to amend Northern Ireland orders as primary legislation. The only significant reforms to improve the handling of Northern Ireland business related to the formation of Northern Ireland Committees and until 1993 Governments were reluctant to even move on this. There were three main reasons for this reluctance to introduce special mechanisms for handling Northern Ireland business; firstly, the desire not to effect the temporary nature of direct rule; secondly, the possible opposition by SDLP politicians and the Irish Government as procedural improvements could be perceived as integrationist; and, thirdly, the extra pressure on parliamentary time and MPs. In 1993 the Northern Ireland Standing Advisory Commission on Human Rights commissioned a paper ‘Legislating for Northern Ireland: Options for Reform’ (Hadfield, 1993). The author, Brigid Hadfield, suggested that the most simple and obvious reform would be that all laws currently made by order-incouncil should take the form of an Act of Parliament but accepted that it was futile to make a recommendation which would entail the government making more time available for Northern Ireland affairs. She took the view that recommendations for reform which concentrated on the pre-parliamentary stages of legislation were the most feasible. The major improvements in handling Northern Ireland business in Parliament took place from the mid-1990s, but these were mainly brought about by reform or modernisation changes which applied to the wider workings of Parliament (Birrell, 2007a). This included three major developments. Firstly, the increase in pre-legislative scrutiny which largely fell to departmental select committees including the Northern Ireland Grand Committee plus the increase in the opportunity for external consultation or draft legislation. Secondly, with an overall increase in the amount of delegated legislation and statutory

BDR04.indd 67

3/23/2009 4:10:53 PM

68

Direct rule and the governance of Northern Ireland

instruments, measures were introduced to improve parliamentary scrutiny and provide more parliamentary time. This led to the Delegated Legislation Committees considering most Northern Ireland orders and the involvement of two Lords committees with delegated legislation. Thirdly, there was the establishment of new specialist scrutiny committees and the Constitution/Justice Committee and Human Rights Committee were further parliamentary bodies that could scrutinise Northern Ireland matters. However, these reforms did not correct the major problems with Northern Ireland business in Parliament under direct rule; procedural treatment of primary legislation as secondary legislation, the lack of mechanisms to amend orders-in-council, the short time for debate, the low key role of Northern Ireland committees and the limited interest of other parliamentary committees in Northern Ireland matters.

BDR04.indd 68

3/23/2009 4:10:53 PM

5

The Civil Service: a continuing institution

The system of devolved government from 1921 to 1972 had operated with its own Northern Ireland Civil Service (NICS), as a separate entity from the United Kingdom Home Civil Service (Birrell, 1978). This separateness was demonstrated by its legal status, the existence of separate Northern Ireland Civil Service commissioners and the corporate status of Northern Ireland Government departments. Although independent the NICS has tended to follow very closely, if not exactly, the structures and practices of the Home Civil Service. In 1972, before the introduction of direct rule, the NICS was operating through eight separate government departments plus a Prime Minister’s Office, staffed by some 15,000 non-industrial civil servants. Direct rule left much of the Civil Service unchanged. Some departments were undergoing an increase in their functions at this time because of a decision made in 1971 to transfer some functions from local to central government. The major structural innovation that accompanied direct rule was the establishment of the Northern Ireland Office on 1 April 1972, as a new UK government department led by the Secretary of State for Northern Ireland. As well as having responsibility for political and constitutional affairs the Northern Ireland Office became directly responsible for security policy and the administration of the police, prisons and courts, which were transferred from the old Stormont Ministry of Home Affairs. The other Northern Ireland Government departments remained separate from the Northern Ireland Office although they had to develop a new relationship with it. The Northern Ireland Office The Northern Ireland Office (NIO) was to an extent modelled on the existing Scottish and Welsh Offices but also took over the functions of the old Northern Ireland Prime Minister’s Office. However, it was grafted on to the existing departments (Levy, 1995) and these

BDR05.indd 69

3/23/2009 4:11:19 PM

70

Direct rule and the governance of Northern Ireland

departments and the NIO did not jointly form a unified organisation (Bell, 1987; Connolly and Erridge 1990). The NIO was established with one section in London and one section in Belfast, staffed by both Northern Ireland and United Kingdom civil servants. It had very distinctive features which made it different from other UK Government departments. It was divided geographically between London and Belfast, was divided between two separate civil services and had divided responsibilities between what had been devolved and non-devolved functions. With the establishment of direct rule the NIO performed four main functions: • as a department responsible for excepted, reserved and transferred services, all of which were the direct responsibility of the Secretary of State; • as an office rather akin to a Prime Minister’s Office or Cabinet Office for the Northern Ireland Secretary of State exercising overall executive responsibilities. This included the taking and seeking of advice from the Northern Ireland departments; • as a base for the other ministers of the Northern Ireland Office who exercise ministerial responsibilities for Northern Ireland departments. The NIO was in a position to have a general overseeing role with respect to the Northern Ireland machinery of government although it did not specifically direct the work of the Northern Ireland departments; • as a department responsible for handling Northern Ireland matters in London in relation to other Government departments, the Cabinet and other bodies. It had a major role in looking after the processing of Northern Ireland business in Parliament and also for EU matters. The original structure of the Northern Ireland Office reflected this range of functions divided over its two locations. The London office originally had three main policy divisions (Table 5.1). There was also an establishment division and a section for information services. The NIO had a liaison role on economic and social matters, as these were the direct responsibility of Northern Ireland departments. An important aspect of the liaison role related to Northern Ireland parliamentary business at Westminster. The major responsibility for preparing legislation, briefs for ministers, papers for Cabinet meetings or Cabinet sub-committees rested with the relevant Northern Ireland departments. Northern Ireland officials could attend Parliament when legislation was going through and the NIO provided a base for the London work of the Northern Ireland departments. It also

BDR05.indd 70

3/23/2009 4:11:19 PM

The Civil Service: a continuing institution

71

Table 5.1 Functions of the NIO London, 1980 Division Economic and social Security and international

Constitutional and political

Function Liaison on economic and social matters, agriculture, EC social and economic issues International questions other than EC including the Anglo-Irish Agreement, liaison on law and order matters, policy on extradition Constitutional and political matters, human rights, electoral matters

Source: Civil Service Department 1980.

assisted in producing information or data which were urgently required or in answering urgent parliamentary questions. The NIO in London was also better plugged in to the whole machinery of Government in London than the Northern Ireland departments. Its staff had a feel for what was going on in London and could advise the Northern Ireland departments about developments in the Whitehall networks and the parliamentary process. They could also advise on how Northern Ireland policy proposals would fit in with developments in Britain and ensure consistency where appropriate in legislation and provision. The NIO could also channel relevant information from UK Government departments to their Northern Ireland counterparts but usually such contacts tended to be direct. The security and international division had a direct responsibility for international aspects of governing Northern Ireland and its work required close cooperation with the Foreign Office. Relations with the Republic of Ireland was by far the largest element of the division’s work. The major responsibility for security policy rested with the NIO in Belfast but the NIO London again played a role as a base for the work that was required in London, especially the large legislative load, and also responded to urgent Government, parliamentary or international demands. Again it could feed back relevant information and opinion from the whole Whitehall network to Belfast. The constitutional and political division was directly responsible for policy in this area in cooperation with the Belfast office. Increasingly as this work required more forward planning and development of ideas it was not so necessary for it to be based in Belfast and some of the work of this division was directed to the Cabinet Office. Under direct rule the structure of the NIO in Belfast reflected its direct responsibility for the administration of law and order functions

BDR05.indd 71

3/23/2009 4:11:19 PM

72

Direct rule and the governance of Northern Ireland

which it inherited from the Stormont Ministry of Home Affairs (Table 5.2). The Northern Ireland civil servants moved from Home Affairs to become a separate unit within the NIO, known as the NICS group originally headed by a permanent secretary from the NICS (Birrell and Murie, 1980). The Northern Ireland Office in Belfast had two general policy divisions, one dealing with security, policy and operations and the other with political affairs. Until 1979 there were three such divisions with a separate one for security operations. All the remaining divisions dealt with policy and administration for prison, police and legal matters and the precise functions of divisions was subject to only minor alterations over the years. Some of these divisions would deal with fairly routine administrative matters but policies in the whole area of security, police, prisons and the courts were very important politically. Under direct rule there was a gradual move away from the clear distinction between the ‘political’ side of the NIO and the old ‘Home Affairs’ side. The special designation of ‘Northern Ireland Civil Service Group’ was dropped and responsibilities integrated at a more senior level. However, there still remained something of a physical division as the political affairs and security policy and operations divisions along with the police division were located at Stormont Castle while the remaining divisions were located at Dundonald House. Table 5.2 Divisions of NIO, Belfast under direct rule, 1980 Policy divisions Security policy and operations Political affairs

NICS divisions Prison policy and planning Prison personnel and services Prison operational management Finance and estate management Criminal justice services Police Establishment and services Criminal justice

General Information services Resource control Executive agencies Compensation Agency Forensic Science Source: Civil Service Department 1980.

BDR05.indd 72

3/23/2009 4:11:20 PM

The Civil Service: a continuing institution

73

At this time the major apparent area of duplication between the NIO Belfast and the NIO London was in the area of political affairs but a division of functions existed in that the political affairs division in Belfast concentrated on information gathering, reporting contact with politicians, analysing party documents and election results and meeting pressure groups and interested parties. The division in London concentrated more on policy analysis and trends and the consideration of possible constitutional developments. The Northern Ireland Office was staffed by both United Kingdom and Northern Ireland civil servants. The London office was manned by a relatively small number of civil servants, around 150, and they were almost all United Kingdom civil servants with only a few staff from the NICS attached to the London office of the NIO, an arrangement that continued under both direct rule and devolution. By 2006 the NIO London had eighteen NICS staff and sixty-five home civil servants. The NIO Belfast policy divisions had a significant number of home civil servants in 2006, eighty-seven, but some two thousand NICS staff worked in the administrative law and order divisions of the NIO. A permanent secretary from the UK Home Civil Service usually from the Home Office or Ministry of Defence, headed the NIO with offices in London and Belfast, although the main base was in Millbank, London. There was a director and an associate director with responsibility for policing and security, both based in Belfast, usually drawn from the Home Office or Ministry of Defence. During direct rule the Associate Political Director Belfast occupied a key post (see Figure 5.1). Under the overall control of the Political Director (London) this post holder offered advice on political matters to successive secretaries of state. The post was generally held by civil servants on secondment from the Foreign Office because of the diplomatic and political skills required. The post was a development from the post of UK Government representative in Belfast which existed between 1969 and 1972 and was filled by Foreign Office personnel. The NIO later moved towards a more integrated approach and the political affairs division became more unified in its functions between Belfast and London. A departmental board was created following a strategic review in 1995 which was chaired by the permanent secretary and was attended by not only NIO senior civil servants, but also the head of the NICS and the chief executive of the Prison Service. During the period of direct rule after 2002 the structure remained similar except for the removal of the head of the NICS and minor adjustments (Figure 5.2). The rather unique NIO structure made inevitable a degree of duplication and overlap. Expertise, advice and information had to

BDR05.indd 73

3/23/2009 4:11:20 PM

BDR05.indd 74

Permanent Secretary

Second Permanent Secretary, Head of NICS

Director, Criminal Justice

Senior Director (Belfast), (Director Policing and Security)

Political Director

Principal Establishment and Finance Officer

Executive Agencies

Associate Director, Policing and Security

Associate Director, Political (London)

Associate Director, Political (Belfast)

NI Prison Service Forensic Science Agency Compensation Agency Head of Information Services

Figure 5.1 Northern Ireland Office: structure, 1996 Source: Correspondence from NIO. 3/23/2009 4:11:20 PM

BDR05.indd 75

Permanent Secretary

Senior Director Policing and Security (Belfast)

Senior Director (London), Political Director

Director of Communication

Director of Criminal Justice Director of Resources

Associate Political Director, Policing and Security Associate Political Director (Belfast)

Associate Political Director (London)

Executive Agencies NI Prison Service Forensic Services Compensation Agency Youth Justice Agency

Public Prosecution Service

Figure 5.2 Northern Ireland Office: structure, 2006 Source: NIO Departmental Report 2006b. 3/23/2009 4:11:20 PM

76

Direct rule and the governance of Northern Ireland

be made available to ministers in Belfast and also to ministers and the rest of the Government machinery in London. The Northern Ireland departments There were seven departments at Stormont at the introduction of direct rule and some were in the process of having their functions expanded with the transfer of functions from local government, a process not immediately affected by direct rule. The Ministry of Development took over direct responsibility for planning, roads, water, sewage, conservation, motor vehicle licensing and car parks, a process which involved the transfer of some 8,000 former local government employees to the Civil Service. This structure outlined in Table 5.3 was to remain in place until 1999 and as a comparison with 1972 shows direct rule brought little structural change over the years. Direct rule originally had minimal impact and only the small department of the Northern Ireland Prime Minister was abolished. In the case of the excepted services, which had to be handed over to UK departments, arrangements were made for the Northern Ireland departments to continue to provide the services on an agency basis. Only in a few cases did the UK department directly take over functions, for example, the Department of the Inland Revenue took over estate and stamp duties from the Ministry of Finance. The Ministry of Home Affairs ceased to exist as a separate entity on 1 January 1974 when the NIO took over all but a few of its functions. In 1974 a realignment of departments was made to accommodate the arrangements for the powersharing executive at the time. All the previous ministries were renamed

Table 5.3 Government departments, pre-1999 1972 Northern Ireland Office Central Secretariat Finance Commerce Agriculture Education Health and Social Services Development Home Affairs

BDR05.indd 76

1998 Northern Ireland Office Central Secretariat Finance and Personnel Economic Development Agriculture Education Health and Social Services Environment

3/23/2009 4:11:20 PM

The Civil Service: a continuing institution

77

departments. These special arrangements did not survive long after the fall of the Executive. Following Whitehall precedence a separate Civil Service Department was established in 1976. There were no further departmental changes until 1981 when the Department of the Civil Service was merged with the Department of Finance to form a new Department of Finance and Personnel. This followed a similar development in Great Britain when the Whitehall Civil Service Department was reabsorbed into the Treasury. The new department of finance and personnel comprised all the functions of the Department of the Civil Service and the financial planning, control and economic and social research divisions of the Department of Finance, thus becoming responsible for the control of money and human resources in respect of all the Northern Ireland departments. In 1981 one further merger was announced between the Departments of Commerce and Manpower Services to form a new Department of Economic Development and within it a new Industrial Development Board, merging the industrial development organisation of the Department of Commerce and a previous board, the Northern Ireland Development Agency. It was a radical departure to bring industrial development into the Civil Service. It was clear that criticisms of the Northern Ireland Development Authority and the Department of Commerce, following the Delorean project and other failed ventures, prompted this development. This period also saw an increase in the size and range of functions of the Department of the Environment. By 1986 it was employing 45 per cent of all civil servants and responsible for sixteen major functions. The reduction in the number of departments in this period to six and increased integration with the NIO moved the system of administration away from the miniWhitehall model, but a distinct Civil Service and central administrative machinery with its own Department of Finance remained. It was a much more devolved administrative system than the Scottish Office. The Northern Ireland separate departments and Civil Service remained with a distinct identity within the United Kingdom system. The permanent secretary of the Northern Ireland Office was only the accounting officer for that department, with each of the Northern Ireland departments having a permanent secretary who acted as the accounting officer for their own department. The Northern Ireland departments also have a corporate legal entity under Northern Ireland statues from 1921, so unlike those in Great Britain, have a legal existence separate from their heads of department. Legally, junior ministers acted on behalf of the Secretary of State and did not themselves discharge the functions of Northern Ireland departments (Hayes, 1995) although this had little practical impact on the role of ministers.

BDR05.indd 77

3/23/2009 4:11:20 PM

78

Direct rule and the governance of Northern Ireland

Major changes were made in the structure of government departments to facilitate the return of devolved government. In 1999 the six central government departments were reorganised into ten new departments plus an offi ce of First and Deputy First Minister (Table 5.4). This increase in departments was undertaken to create more ministerial posts in the devolved power-sharing executive not for administrative reasons and did involve rather artifi cial divisions, including separating schools from higher education. The Northern Ireland Offi ce continued as the Secretary of State’s department and the NICS section of the NIO responsible for the law and order functions also continued. This extensive structure of Northern Ireland departments was not changed with the suspension of the devolved administration and the establishment of the second period of direct rule. The rationale was the hope that devolution would resume in the future. In the meantime one anomaly occurred with continuation of the Office of First Minister and Deputy First Minister (OFMDFM) which was a kind of Prime Minister’s/Cabinet Office. It continued with a coordinating role for Northern Ireland departments, the legislative programme, Civil Service reform and efficiency programmes and as the base for the Head of the Civil Service. Other cross-departmental functions included community relations, equality and rights and targeting social need. Many of the functions of the OFMDFM could have been located within the NIO or the Department of Finance and Personnel but the office continued under direct rule in expectation of a return to devolution. All the other nine Northern Ireland Departments also continued and even the Review of

Table 5.4 Northern Ireland government departments, 1999–2007 Agriculture and Rural Development (DARD) Culture, Arts and Leisure (DCAL) Education (DE) Employment and Learning (DEL) Finance and Personnel (DFP) Health, Social Services and Public Safety (DHSSPS) Environment (DOE) Regional Development (DRD) Social Development (DSD) Office of First Minister and Deputy First Minister (OFMDFM) Plus NIO – NICS divisions, law and order Source: Northern Ireland Yearbook (2008).

BDR05.indd 78

3/23/2009 4:11:20 PM

The Civil Service: a continuing institution

79

Public Administration indicated only some minor changes in functions, mainly to the Department of Health and Social Services and Public Safety. However, had direct rule continued it is quite likely the number of departments would have been reduced from ten to six. United Kingdom departments in Northern Ireland A number of Whitehall departments carry out functions throughout the whole of the United Kingdom and have offices in Northern Ireland. The civil servants employed in these offices are employees of the United Kingdom Home Civil Service and are not Northern Ireland civil servants. This arrangement existed under the Stormont system and expanded somewhat under direct rule. A number of Home Civil Service bodies employ staff in Northern Ireland, HM Revenue and Customs, Immigration and Nationality directorate (formerly Home Office), Ministry of Defence, Northern Ireland Office, Maritime and Coast Guard Agency and the United Kingdom Passport Agency (later the Identity and Passport Service). Together they make up the Northern Ireland Home Civil Service network (NIHCS). On 1 January 2001 there were some 6,400 staff employed in Northern Ireland by the Home Civil Service. The majority of NIHCS staff were employed by the Ministry of Defence, Inland Revenue, and HM Customs and Excise. Rather unusually, the Cabinet Office had to take responsibility for monitoring that equality requirements were met by what came to be called the Northern Ireland Home Civil Service (NIHCS). The year 2002 was the first time that information was made public from the triennial review which was a statutory requirement under the Fair Employment and Treatment Order 1998. The review found that ‘across the NIHCS as a whole, the proportions of staff from all communities were broadly representative of the economically active population within Northern Ireland’ as were the community background of people who gained promotion (Cabinet Office, 2002). In addition, the Cabinet Office liaises between individual departments and the Equality Commission throughout the year and coordinates regular meetings of the NIHCS. The operation of these UK departments in Northern Ireland produced some difficulties in that the UK Civil Service reforms apply automatically to them but not to the NICS. The staffing of the NIO is particularly complex with the almost three different groups of civil servants, NIO London largely staffed by the UK Home Civil Service, NIO Belfast policy divisions with staff from the Northern Ireland Home Civil Service and the NIO Belfast operational divisions by the Northern Ireland Civil Service. There is one other technically separate Civil

BDR05.indd 79

3/23/2009 4:11:20 PM

80

Direct rule and the governance of Northern Ireland

Service, the Northern Ireland Court Service, which was established in 1979 as a separate and distinct Civil Service of the crown to provide for the unified administration of the courts which had been divided between a reserved and transferred functions. The Court Service is led by a director, who is head of department and principal accounting officer, reporting directly and politically accountable to the Lord Chancellor and Minister of Justice in London (Northern Ireland Court Service, 2007). The status as a separate Civil Service for a body with 762 staff was intended to minimise ministerial involvement in the administration of justice and protect the independency of the judiciary. Responsibility for the court service was conferred on the Lord Chancellor as being removed from the government of Northern Ireland. Relationship between the NIO and Northern Ireland departments The formal mechanism for coordination between the Northern Ireland Departments and the Northern Ireland Office existed through a Central Secretariat particularly after the collapse of the 1974 Executive. The Central Secretariat also acted as the office of the Head of the Northern Ireland Civil Service, and an important aspect of coordination was through the assimilation of the two posts of Head of the Northern Ireland Civil Service and the Second Permanent Secretary in the Northern Ireland Office. Historically, the position of the Head of the Northern Ireland Civil Service had always been held in parallel with the Head of the Ministry of Finance, but in 1976 it was decided to establish a separate post of Head of the Civil Service with a specific responsibility to the Secretary of State for the coordination of the policies and programmes of all Northern Ireland departments. While the Department of Finance and Personnel has responsibility for the general management of the Civil Service, the Head of the NICS has a special role in terms of coordinating the Northern Ireland departments. In 1981 there was a further significant organisational change in that the post holder was appointed Second Permanent Secretary of the Northern Ireland Office alongside the position of Head of the NICS. This position gave the occupant some standing in relation to the wide range of matters which were the responsibility of the Northern Ireland Office rather than any of the six Northern Ireland Departments. Overall the post had a liaison function in channelling the views of Northern Ireland Departments in a coordinated way to the NIO, and ensuring that advice coming from any individual department was placed in the wider context of the policy objectives of Government. There was inevitably a very

BDR05.indd 80

3/23/2009 4:11:20 PM

The Civil Service: a continuing institution

81

close relationship between the Head of the NICS, the first Permanent Secretary of the Northern Ireland Office and the Principal Finance and Establishment Officer in relation to major resource implications. At the same time a former head of the NICS has stated he did not seek to second-guess the judgement of the NIO permanent secretary in a purely departmental matter (Bloomfield, 1997:4). While the Head of the NICS was the most senior official advising ministers on the exercise of their Stormont responsibilities alone, the NIO Permanent Secretary remained the most senior adviser to the Secretary of State over the whole range of responsibilities, which included the direction and control of the Northern Ireland departments. It also became customary for the Secretary of State and other ministers in Belfast to hold daily morning meetings with senior NIO officials from the security and political divisions, the head of the NICS and the NIO’s head of information, to identify issues needing urgent follow up. It appears that these meetings focused on the latest security incident rather than any social or economic issues (Needham, 1998:68). In 1997 the new Head of Northern Ireland Civil Service combined the post with his existing post as Permanent Secretary of the Department of Finance and Personnel and was not appointed the Second Permanent Secretary at the Northern Ireland Office. This may have been part of the preparations for devolution but it meant the exclusion of the Head of NICS from the ongoing political negotiations. On political matters the political director and the two associate political directors in London and Belfast remained as the senior political advisers. Richard Needham (1998:89) was to note how he felt at some NIO meetings that senior NIO staff were often out of touch with Ulster realities while Kenneth Bloomfield (1994:258) as head of the NICS recorded the fact that he was often the only Ulsterman present at meetings of the AngloIrish Intergovernmental Conference. During the second period of direct rule after 2002 the OFMDFM remained, with the Head of the NICS as the head of this department, which was the equivalent of a new central secretariat. The office focused on a coordination role for the NICS and Northern Ireland Government departments. It developed under direct rule with specific functions for some key crossdepartmental strategies; promoting better community relations, equality, targeting social need, economic policy and cross-border cooperation, the Review of Public Administration, improving public services and promoting Northern Ireland internally. The OFMDFM contained a legislation unit which coordinated and monitored legislation from Northern Ireland departments, progressed cross-cutting legislation, monitored Westminster’s programme of primary legislation and oversaw

BDR05.indd 81

3/23/2009 4:11:20 PM

82

Direct rule and the governance of Northern Ireland

the implementation of EU legislation in Northern Ireland. The OFMDFM also has a ‘Making Government Work’ division and its executive secretariat provided a coordination mechanism for Northern Ireland Departments in their relationships with Westminster, worked with the NIO on political and constitutional issues, provided guidance to Northern Ireland departments on politically sensitive issues and coordinated their relationship with North–South bodies and the British– Irish Council. The OFMDFM gained clout under direct rule after 2002, as the Northern Ireland Departments no longer were operating as independent ministerial fiefdoms. An important coordinating mechanism was the Permanent Secretaries group which consisted of all the heads of the Northern Ireland Departments. It was chaired by the Head of the Civil Service and was based in the OFMDFM. Its weekly meetings monitored all aspects of the work of the government departments including public sector reform, and it also gave a steer to Civil Service management and training. The Permanent Secretaries group meeting was attended by a top official from the NIO and by other relevant UK officials at times, for example, Treasury officials. Coordination between Northern Ireland departments Despite the small size of the Stormont administration problems of lack of coordination between government departments could arise. Originally, the central Secretariat, with the head of the NICS, encouraged a collective outlook and approach (Bloomfield, 1991:171). Later, a Policy Coordinating Committee (PCC), consisting of the Permanent Secretaries of the Northern Ireland Departments and the NIO Deputy Secretary, and chaired by the Head of the NICS would carry out this function. This particular body was described as an effective and politically sensitive machine as it considered broad policy issues that crossed departments and the NIO/NICS divide (Hayes, 1995:286). The PCC has been described as ‘akin to a Cabinet of civil servants, though never presented as such’ (Carmichael, 2002:35). It also performed a number of other specific functions related to the coordination of work which affected all departments, particularly the legislative programme, public appointments, community relations, cross-border economic cooperation and the impact of the Anglo-Irish Agreement. It was also given a role in keeping an oversight of EU matters, acting in a liaison role with Whitehall and the European Commission, particularly on matters which did not fall into a single department and looking after visitors and protocol matters. In 1997 the PCC was replaced by a new Civil Service Management Board, the composition of which has been

BDR05.indd 82

3/23/2009 4:11:20 PM

The Civil Service: a continuing institution

83

described by Carmichael as ‘essentially identical’ (Carmichael, 2002:35). With the formation of the OFMDFM the machinery of government section performed internal support functions within the Northern Ireland administration, covered issues that cut across the departments and coordinated flows of information. A legislative progress unit managed, coordinated and monitored legislation from the Northern Ireland departments, monitored the implementation of EU legislation, offered guidance to departments on primary and secondary legislative proposals, liaised back with departments and could take the lead on cross-cutting legislation. Formal inter-departmental groups were another method of achieving coordination. At times under direct rule there were two broad groups, the Social Steering Group (SSG) and the Economic Steering Group (ESG) to develop policies across departmental boundaries. A number of other more specialised units were also created under direct rule to coordinate certain key activities throughout all departments. A Central Community Relations Unit was established in 1987 to advise the Secretary of State on all aspects of the relationship between the different parts of the Northern Ireland community. Ad hoc coordinating groups could also be set up, for example, a cross-departmental ministerial group on public health, and an interdepartmental group on early years services. The Department of Finance and Personnel played a key role in relation to the other departments through its control of expenditure and resource allocation. It was also responsible for a broad jurisdiction over the management and control of the Civil Service, implementing Civil Service-wide initiatives for improving management and monitoring equal opportunities within the NICS. Contact between Northern Ireland departments and UK departments Under direct rule the relationship with UK departments was not highly formalised. United Kingdom departments did not have separate divisions dealing with Northern Ireland affairs. However, part of the Northern Ireland Office in London had a role in ensuring that other UK departments took Northern Ireland interests into account in their work and that Northern Ireland departments take into account the interest of other UK Departments. In the context of subjects for which a Northern Ireland department was primarily responsible, the NIO was best regarded as the ‘department’s representatives in London’. Northern Ireland departments could liaise directly with their UK counterparts but this form of contact could vary between departments. It was essential that the departments responsible for social security cooperated

BDR05.indd 83

3/23/2009 4:11:21 PM

84

Direct rule and the governance of Northern Ireland

closely. The Department of Agriculture had close links with its Whitehall counterparts on such issues as the annual price review, and EU matters. The relationship between other departments may have been more distant for example, between the departments for the environment and education. A major area for cooperation concerned EU matters. Northern Ireland was formally represented at Whitehall on various committees dealing with EC business by NIO officials. However, the NIO could arrange not only for ministers to attend meetings in Brussels but also on occasions NICS officials (Aughey et al., 1989). Northern Ireland departments were also sometimes invited to include a senior official in the UK Minister’s team of advisers or working groups for example, it was reported in 1978 that 51 officials of the NIO and Northern Ireland departments spent a total of 379 working days in Brussels (Hainsworth, 1989). A few Northern Ireland civil servants have been seconded to the office of the UK Permanent Representation in Brussels and to the EU Commission. Overall it has been suggested that Northern Ireland did not have a strong policy input on European issues although EU links intensified after 1988 when Northern Ireland was designated as a single objective one region (McGowan and Murphy, 2003). The Foreign Office and the Cabinet Office are the key UK departments for EU matters. A European division of the Department of Finance and Personnel was the principal contact point for the departments on EU affairs and was responsible for the overall management of EU structural funds and coordination with Whitehall departments. After 1999 a European Policy and Coordination Unit was set up within OFMDFM with an EU policy remit and as the chief liaison point with Whitehall when UK policies were being formulated. Probably only two Northern Ireland departments for agricultural and finance, had direct lines of contact with Brussels, while others had scarcely any direct dealings with the EU. A strategy document in 2004 suggested the development of stronger links with Whitehall on EU matters was crucial (OFMDFM, 2004). Under direct rule one of the more complex relationships involved the Treasury and Northern Ireland departments. The funding bids were settled bilaterally between the NIO and the Treasury. Subsequently the Treasury would take responsibility for the NIO estimates and vote while the Department of Finance and Personnel was responsible for the estimates and spending priorities on transferred services. There was no formal system of secondment or exchange between Northern Ireland departments and Whitehall departments and there was only an occasional ‘interleaving’ or exchange of staff. Some staff from Northern Ireland departments have spent time in the NIO London

BDR05.indd 84

3/23/2009 4:11:21 PM

The Civil Service: a continuing institution

85

and a Northern Ireland permanent secretary spent a six-month period in a Whitehall department. However, Civil Service exchanges between UK departments and Northern Ireland departments were not common. The Northern Ireland Civil Service Commissioners Since 1923 Northern Ireland has had a Civil Service Commission which was separate from the United Kingdom Civil Service Commission. Until 1969 the Stormont Minister of Finance was a member of the Commission. Subsequently and after the introduction of direct rule the five Commissioners were civil servants, normally current or former permanent secretaries. However, in 1986 two external persons were appointed as Commissioners to sit alongside the senior Civil Servants and in 1996 a third external person was appointed, increasing the total to six Commissioners. By 1999 no current civil servants were Commissioners. Under the Civil Service (Northern Ireland) Order 1975 the Civil Service Commissioners were responsible for insuring that candidates for appointment satisfied appropriate standards of suitability. There was no appeal to ministers against decisions on selection but, unlike practice in Britain, allegations of maladministration on the part of the Civil Service Commission could be referred for investigation by the Parliamentary Commissioner for Administration, or the Fair Employment Commission or the Equal Opportunities Commission, later the Equality Commission (NICSC, 1984). The Commission had a major role in the formulation of recruitment policy and the fact that its staff are part of the Department of Finance and Personnel facilitated consultation on policy matters with other parts of the Civil Service. Practices tended to be similar to those followed by the Commissioners in Britain with regular meetings between the two groups of Commissioners. In 1996 the management trainee competition, a newly developed competition designed to select high-calibre candidates for the NICS, was advertised throughout the United Kingdom with selection tests carried out in Belfast, Londonderry, Stirling, Birmingham and London. The Civil Service (Northern Ireland) Order 1996 revised arrangements for recruitment to the NICS which were broadly in line with changes made within the Home Civil Service and the responsibilities of the Commissioners in Britain. The Order took away the operational responsibility for selecting staff and instead gave power to the Commissioners to make general regulations upholding the principle that selection for appointment to posts should be on merit on the basis of fair and open competition. Since 1997 a new Recruitment Service

BDR05.indd 85

3/23/2009 4:11:21 PM

86

Direct rule and the governance of Northern Ireland

(part of the Department of Finance and Personnel : DFP) has assumed responsibility for the recruitment of civil servants, taking over from the Civil Service Commission (DFP, 2004a). The Recruitment Service recruits staff to all non-industrial grades including open competitions for senior Civil Service posts and increasingly began to act as well for a number of non-departmental public bodies. This process has to meet requirements of the Civil Service Commissioners recruitment code and equal opportunities legislation and practice. The Northern Ireland Act 1998 made the Civil Service Commissioners a reserved matter while the management and control of the NICS remained a transferred matter. Legislation in 1999 revised the Civil Service Commissioners role to the more limited one of publishing and maintaining a recruitment code, setting out essential principles and procedures, auditing the recruitment policies and practices followed by departments and agencies and approving certain exceptions to recruitment on merit, e.g. appointments to meet emergency needs. Every appointment to the senior Civil Service through open competition must be approved by the Civil Service Commissioners and each stage of the procedure checked by the Commissioners. It also monitors any ministerial participation in the process, e.g. in 2001 it reported on two such interventions in relation to a permanent secretary post and a director of communications post (DFP, 2004a). Since 1991 it has also considered appeals under the Northern Ireland Civil Service Code of Ethics, governing the values and behaviour of civil servants. In 2004 the Commissioners, after a major consultation exercise, produced a new recruitment code to meet what was identified as the changing needs of the NICS (Civil Service Commissioners, 2005). During 2004–05, following the adoption of practices in Britain, the Civil Service Commissioners began to chair senior Civil Service open competition selection panels in recognition of their role as independent custodians of the merit principle. Generally, the Northern Ireland Commissioners have taken a very cautious approach making little comment on the wide range of recommendations of the Ouseley Report on the Senior Civil Service and not publishing any discussion or position papers on more controversial issues, for example, on the relationship between politics and Civil Service, as the Civil Service Commissioners in Britain have done. The Northern Ireland Civil Service: size and scale The transfer of staff from local government to central government in 1972 produced a substantial increase in the number of civil servants

BDR05.indd 86

3/23/2009 4:11:21 PM

The Civil Service: a continuing institution

87

which coincided with the introduction of direct rule. The number of non-industrial civil servants jumped from 10,000 in 1968 to 14,324 in 1972. Under direct rule increases continued up to 22,542 by 1975 with some of these the product of the security situation. The numbers reached a peak of 23,653 in 1979 but in the same year the Conservative Government came into office with policies for cutting bureaucracy. The NICS was asked to identify options for cutting staff and this exercise eventually produced a package of measures giving an overall cut in staffing of 6.4 per cent compared to 5.5 per cent in the UK Civil Service. In 1980 following the Prime Minister’s decision to reduce the size of the UK Civil Service comparable reductions were applied to similar areas of the NICS. This meant a net reduction of 1,600 posts between 1980 and 1984 and 1,000 between 1984 and 1989. The separate status of the NICS did not protect it from this UK policy. Between 1990–91 and 1995–96, staff numbers declined by 2,610 posts and there was a further 4.7 per cent decrease between 1996 and 1999 (Equal Opportunities Unit, 2000) representing a fall of 11.5 per cent in the NICS over the previous ten years, although the NICS did not experience such a sharp decline as the Home Civil Service (Carmichael, 2002: 35). However, since 1999 there has been a significant increase in the number of civil servants which direct rule did not prevent. By the resumption of direct rule in 2002 the number of civil servants stood at 29,480 and by 2007 the number was 30,366 (see Table 5.5). The government had actually announced its intention to reduce NICS numbers by some 2,000 by 2008. It was the intention that the Civil Service would absorb these pressures through greater efficiency. The department with the highest projected number of workforce reductions was Social Development with 730 (DFP, 2005a: para.172) (see Table 5.6).

Table 5.5 NICS staff numbers

1987 1991 1993 1999 2002 2007

All

Non-industrial

29,046 29,057 29,959 27,034 29,480 30,366

23,270 23,862 25,104 24,202 26,519 28,031

Source: Equal Opportunities Unit, 2008.

BDR05.indd 87

3/23/2009 4:11:21 PM

88

Direct rule and the governance of Northern Ireland

Table 5.6 The size of the NICS 2005 Departments Agencies Dept of Agriculture Dept of Culture, Arts, Leisure Dept of Education Dept of Employment and Learning Dept of Enterprise Investment Dept of Environment Dept of Finance and Personnel Dept of Health, Social Services and Public Safety Dept of Regional Development Dept of Social Development Office of First and Deputy First Minister Northern Ireland Office Total

Planned reduction, 2004–8

3,347 264 720 1,748

803 206 – –

373 42 85 82

640 255 1,588 877

97 2,587 1,269 149

53 135 351 73

565 703 451

4,570 7,292 –

336 730 43

2,423

2,376

–

11,833

19,349

2,203

Source: House of Commons 2005c.

The internal structure of the NICS has always followed closely the pattern of the UK Civil Service. Direct rule led to the erosion of most of the remaining differences and the full application of the various administrative reforms which were introduced throughout the 1970s and 1980s in the UK Home Civil Service. The major development in the 1980s was the introduction of the unified grading structures. The UK white paper The Civil Service: Continuity and Change (Office of the Prime Minister, 1994), was to have a major impact on the structure of the NICS. The main recommendation proposed the creation of a new senior management group covering those with substantial management and policy responsibilities. The white paper stated that the principles underlying the proposals applied with equal force to the NICS. In 1996 the Northern Ireland Senior Civil Service was identified as a separate group of 260 posts spread over 4 levels at grade 5 and above, covering administrative and professional posts and including Assistant Secretary, Deputy Secretary, Permanent Secretary and Head of the NICS.

BDR05.indd 88

3/23/2009 4:11:21 PM

The Civil Service: a continuing institution

89

Equal opportunities and the Northern Ireland Civil Service Monitoring of equality of opportunity in the NICS was introduced in 1985 and followed a Fair Employment Agency investigation which reported that the NICS had demonstrated a failure to set up monitoring systems with no equality plans (Carmichael and Osborne, 2003). Since that date there has been a range of affirmative action measures and there is strong evidence of compositional change. In 1987, of nonindustrial civil servants, Protestants accounted for 58.1 per cent and Roman Catholics 33.7 per cent. By 2002 the statistics were 53.9 per cent Protestant and 43.2 per cent Roman Catholic and this was seen as indicating a high degree of realignment with estimates of the economically active population in relation to community background. By 2007 as a whole Catholics were actually overrepresented with statistics showing 51.9 per cent Protestants and 45.6 per cent Catholics (Equal Opportunities Unit, 2008). However, there is still an under representation of Catholics at the most senior grade levels. Catholic representation in the senior Civil Service changed from only 9.8 per cent in 1985 to 15.5 per cent in 1991, and 19.2 per cent in 1997 but grew to 27.6 per cent in 2002. These changes reflect the general improvement in labour market representation of Catholics, demographic change and the political climate and stronger legislation (Carmichael and Osborne, 2003: 12). Female representation has also increased significantly from 40.2 per cent in 1987 to 49.2 per cent in 2002 and in 2007 stands at 54.6 per cent for non-industrial civil servants (Equal Opportunities Unit, 2008: table 10). Action plans had been put in place to improve female representation including flexible working hours but women continue to be underrepresented in senior grades and in professional, technical and industrial grades. By 1997 female representation in the senior Civil Service was still only 9.5 per cent. Female representation in senior grades has been very low, only 2.8 per cent in 1985 and still only 5.7 per cent in 1993 but has grown to 16.1 per cent by 2002 and 25.4 per cent by 2007. Ways of making the senior Civil Service more representative of the community were considered in an independent review which was set up at the end of direct rule. The Ouseley Review (2002) had a specific remit to address how to increase representation of under-represented groups in the senior Civil Service and review the appointment and promotion procedures for the senior Civil Service. This analysis identified the difficulty in changing the composition rapidly given the small number of vacancies each year. The Ouseley

BDR05.indd 89

3/23/2009 4:11:21 PM

90

Direct rule and the governance of Northern Ireland

Review recommended that there should be a presumption in favour of all senior civil servant vacancies being filled by open recruitment, that ways of extending the applicant pool should be considered, that existing senior Civil Service core competencies should be reviewed to incorporate a diversity competency, that nationality requirements should be changed, that the ‘long hours’ culture should be tackled as an obstacle to staff with caring responsibilities and that there be greater flexibility in retirement arrangements. An action plan based on the Ouseley Review was implemented but overall the approach to increasing diversity has been rather cautious compared to the Home Civil Service. Following Section 75 of the Northern Ireland Act 1998, each NICS department has produced an equality scheme setting out how they propose to fulfil the duties of Section 75. In 2002, 5.1 per cent of all civil servants were declared disabled and 0.1 per cent were from an ethnic minority. Section 75 obligations have led the NICS to widen their programme of outreach measures. One cognate issue which the Equal Opportunity Unit has not addressed is the location of NICS jobs, with approximately 63 per cent located in the greater Belfast area and concern had been expressed particular in the west of the province. More decentralisation has been rejected on the grounds of the expense involved (House of Commons, 1997) but the issue was re-examined following the Review of Public Administration and a review of policy on location of public sector jobs including the Civil Service was established in 2007 (DFP, 2008a). Next steps/executive agencies One of the most significant structural changes in the UK Civil Service and machinery of government since the 1980s was the Next Steps initiative which followed a report in 1988 by Sir Robin Ibbs, Head of the Downing Street Efficiency Unit (Office of Prime Minister, 1988). The Next Steps initiative was based on the idea that the bulk of civil servants’ work was related to the delivery of services, not policy, and that this would be best separated from policy functions and organised through specialist agencies. Such agencies would carry out their functions within a policy and resources framework set by the parent department, would be accountable to the department and would remain part of the Civil Service. Agencies would be headed by chief executives with responsibilities for the agency’s performance in meeting targets and with considerable managerial freedom. The overall purpose was to deliver services more effectively with a stronger customer-focused

BDR05.indd 90

3/23/2009 4:11:21 PM

The Civil Service: a continuing institution

91

approach. All UK Civil Service departments had to produce plans for setting up agencies and by 1998 some three-quarters of all civil servants were working in 113 agencies, increasing to 127 by 2002. The Next Steps initiative was adopted fairly quickly into Northern Ireland and the first agency was set up in 1990, the Training and Employment Agency. A further twelve were added by 1996, covering some 12,000 civil servants some 41 per cent of the total. It has been suggested (Knox and McHugh, 1990) that the NICS, although accepting the Next Step initiative, did not rush to adopt it although the centralisation of local services had created some obvious candidates, e.g. roads, water, planning and rates. By 1998 at the of the first period of direct rule the number had grown to twenty-five agencies, with eleven created out of the functions of the Department of the Environment, covering 90 per cent of DOE civil servants. By 2004 there were eighteen agencies within Northern Ireland Government departments and four within the NIO employing some 60 per cent of all civil servants. This left the remaining core central departments responsible for advice to ministers, central policy coordination and central resource management. The operation of executive agencies had a strong focus on the setting of targets and objectives and the transparent measurement of performance against the targets. The Cabinet Office started to publish an annual review of how each agency was performing in meeting targets, usually between ten and twenty each year and also how they were performing in meeting such standards as Charter Marks, Investors in People, or a Business Excellence Model (Cabinet Office, 1997). What was significant about these annual reviews was the inclusion of Northern Ireland executive agencies on the same basis as executive agencies in Great Britain. The evaluation of Northern Ireland executive agencies performance has been integrated into the home Civil Service (Cabinet Office, 2000). However this evaluation process was replaced in 2003 by a Treasury guide to setting key targets. Table 5.7 sets out in 1999 and their success in meeting three different award standards. The question has arisen of how appropriate the Next Steps initiative was for Northern Ireland. It has been pointed out that on average a Northern Ireland agency had 771 civil servants and 14 of the 20 agencies had fewer than 300 civil servants, whereas the average size of a British agency was 2,500 with only 37 of 113 British agencies having fewer than 300 civil servants (Hyndman and Eden, 2001). Most of the NICS executive agencies mirror their UK counterparts on a smaller scale, for example, the ordnance survey or public record office but some have responsibilities which are local government rather than executive agency responsibilities in Britain, for example, planning, water and

BDR05.indd 91

3/23/2009 4:11:21 PM

92

Direct rule and the governance of Northern Ireland

Table 5.7 Northern Ireland executive agencies

Business Development Service Compensation Agency Forensic Science Agency of NI Northern Ireland Prison Service Construction Service Driver and Vehicle Licensing Northern Ireland Driver and Vehicle Testing Agency Environment and Heritage Service Forest Service Government Purchasing Agency Health Estates Industrial Research and Technology Unit Training and Employment Agency (NI) Land Registers of Northern Ireland Northern Ireland Child Support Agency NI Statistics and Research Agency Ordnance Survey of Northern Ireland Planning Service Public Record Office of Northern Ireland Rate Collection Agency Rivers Agency Roads Service Social Security Agency Valuation and Lands Agency Water Service

EFQM Excellence Model

Charter Mark

Investor In People

√ √ √ ✕ √ √

✕ √ ✕ ✕ ✕ ✕

√ √ √

√ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √

√ ✕ ✕ ✕ ✕ √ √ ✕ ✕ ✕ ✕ ✕ ✕ ✕ ✕ ✕ √ ✕ ✕

✕ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ ✕ ✕

Source: Cabinet Office 2000.

roads. Many executive agencies dealing with more scientific and technical matters, for example, marine safety or defence, have no equivalent in Northern Ireland. Only a few executive agencies with a UK-wide responsibility operated within Northern Ireland, for example, the UK Passport Agency. The restoration of direct rule actually saw some new executive agencies created, for example, the Youth Justice Agency in 2003. A study based on interviews with senior civil servants indicated

BDR05.indd 92

3/23/2009 4:11:21 PM

The Civil Service: a continuing institution

93

concerns about agencies fragmenting the NICS, limiting movement of staff between organisations, encouraging a narrow departmentalisation and making joined up government more difficult (Carmichael et al., 1997). The initiative can also be questioned on the grounds that policy cannot easily be separated from the administration of services. Carmichael (2002:41) quotes a permanent secretary stating that ‘Next Steps was a very bureaucratic exercise and the government wanted us to go through the exercise although all it did was increase expense, especially in the very small agencies. Crude application of a formula based on Great Britain’s needs to Northern Ireland seemed bizarre’. A former Head of the NICS does recount that the process of agentisation had been introduced in the teeth of real reluctance by local interests and notes that with growing agentisation there would not be a case for a large number of core policy departments, for example, for social security where policy has to be in parity with Britain (Bloomfield, 1997:7). The Review of Public Administration although set up to examine the large and complicated system of public administration which had developed in Northern Ireland excluded the core Northern Ireland Government departments. No public rationale was given for this other than the grounds that the structure of ministerial departments was part of the negotiated agreement in 1998. However, somewhat bizarrely, the RPA did include executive agencies. The main paper on the Review of Public Administration (RPA, 2005) contained very little discussion of the pros and cons of executive agencies, other than to assume a reduction in the number was a good policy, largely ignoring the reasons for having executive agencies in the first place. The final proposals suggested a reduction from eighteen to seven executive agencies. The functions of two would transfer to local government, the status of the water service would change to a government owned company and four would be amalgamated.

Improving the efficiency of the Civil Service A major influence for change in the NICS in the late 1980s and 1990s was the application of strategies to improve the efficiency and effectiveness of the Civil Service. These measures were adopted mostly from initiatives in Britain. In 1982 the Government launched a major exercise to strengthen and develop arrangements for the efficient management of financial resources set out in a UK white paper ‘Efficiency and Effectiveness in the Civil Service’ (Office of the Prime Minister, 1981). The white paper covered only the UK Home Civil Service but the

BDR05.indd 93

3/23/2009 4:11:22 PM

94

Direct rule and the governance of Northern Ireland

Secretary of State for Northern Ireland decided that a similar initiative should be launched within Northern Ireland departments which would be conducted as a separate but parallel exercise coordinated by the DFP. In 1983 a report (DFP, 1983a) described the main objectives of the Financial Management Initiative (FMI) within Northern Ireland departments, identified the progress achieved and described a programme of further work. The initiative in Northern Ireland took special account of the distinctive features of Northern Ireland, including the smaller scale of the departments, the shorter lines of communication and the greater potential for setting priorities and managing public expenditure as a regional resource. Nevertheless, the thrust of the initiative was similar to that in Great Britain. Most of the effort was devoted to creating management and information systems to assist in improving performance and value for money (DFP, 1984). A report by the Controller and Auditor General in 1987 expressed disappointment that all the necessary information systems had not been introduced, that departments reported very wide general goals of improving administrative efficiency, that performance measures had not been produced and consequently it was not clear what savings had resulted from the FMI (PAC, 1987). The drive to privatisation in the UK Civil Service had limited effect in the NICS. In 1984 departments were asked to identify services which could be privatised. The Department of Agriculture produced plans for privatising milk recording and milk hygiene with a resultant loss of sixty-six posts and proposals for the sale of land by the Forest Service. The Department of the Environment reported that the main form of privatisation was the use of consultants, but only occasionally has privatisation manifested itself directly, for example, in the closure of some of the department’s nurseries and road service shops. In 1991 under John Major’s Government the efficiency agenda changed direction with the publication of a national Citizens’ Charter to improve the standard of public services by increased choice, competition and commitment. The Northern Ireland Secretary of State had announced that given different administrative arrangements there was a need for a separate Charter, but based on applying the same principles of better quality, services, choice and better information under the theme of putting the customer first (NIO, 1992). This initiative led to a series of charters, for example, a Charter for Patients and Clients a Housing Tenants Charter, and a Customer Charter from the Social Security Agency. Overall, the Financial Management Initiative, the Next Steps initiative and the Citizens’ Charter all promoted greater transparency in the

BDR05.indd 94

3/23/2009 4:11:22 PM

The Civil Service: a continuing institution

95

work of NICS, clarifying what had to be achieved and the standard of service, largely mirroring similar initiatives in the Home Civil Service. In 1998 the new Comprehensive Spending Review led to the introduction of public service agreements (Treasury, 1998a) which meant departments had to draw up measurable targets for their full range of operations. This strategy applied to the functions of the Northern Ireland Office but the Treasury stated the devolved authorities would be looking themselves at how to deliver modern public services. The document went on to frame an illustrative public service agreement for Northern Ireland departments as a model on which ‘devolved authorities may wish to draw’ (Treasury, 1998a: 173–6). While the adoption of this reform was a straight read across from the UK model the various UK Home Civil Service reform and modernisation initiatives did not apply automatically to the NICS. In 2004 the UK Government announced that parallel reform and efficiency programmes to Great Britain would take place in Northern Ireland. An efficiency review applied the same definitions for efficiency as the Gershon Review of efficiency in Britain (Gershon, 2004). Targets which at least match those set for Whitehall Departments have been adopted for Northern Ireland (DFP 2005a: para. 159). These aim at a cumulative efficiency gain of at least 2.5 per cent per year and a capping of total administrative costs for all departments. Using the same methodology as that used in the Whitehall Reviews of workstreams, departments identified savings of £589 million by 2007–08. In addition, a number of efficiency savings were adopted centrally covering ICT rationalisation, human resources, accounts and procurement. There is a close connection between reform and efficiency priorities and the ministerial top priorities, as embedded in the public service agreements. The Gershon review also calculated a planned workforce reduction of 2,203 which was much more specific than objectives set in Scotland and Wales (Parry and McDougal, 2005). The statement by the Secretary of State on the outcome of the Review of Public Administration in November 2005 (Secretary of State, 2005) proposed a vision of a smaller core Civil Service letting go the reigns of service delivery. Specifically noted was the reshaping of the role of a Department of Education with a clear separation between policy formulation and operational delivery with the transfer of certain functions from the department to a proposed new centralised education authority. Similarly, the Department of Health, Social Services and Public Safety would be significantly reduced with a number of functions transferring to a new centralised health and social services authority.

BDR05.indd 95

3/23/2009 4:11:22 PM

96

Direct rule and the governance of Northern Ireland Reform agenda in the Civil Service

The history of the NICS has demonstrated a tendency or what Loughlin (1992) called custom and practice to replicate Civil Service reforms introduced in Great Britain. Although the NICS was not necessary compelled to this, Carmichael (2002:45) suggested the NICS in practice is closely modelled on the UK Home Civil Service from which it takes many aspects of its service and procedures. Parry (2005) argued that the Northern Ireland Civil Service has been influenced by the norms and practices of the UK Civil Service but its power of discretion was shown in the slow and cautious application of UK modernising programmes. Rhodes et al. (2003) suggest the ‘partial, delayed and deliberately selective implementation of reforms. The NICS generally made a response to organisational changes coming from the Home Civil Service, either to adopt UK initiatives virtually in their entirety such as public service agreements or to make significant adaptations such as with the financial management initiative (Birrell, 2007b). There was no Northern Ireland equivalent of the Modernising Government paper (Cabinet Office, 1999). The aims of Modernising Government; for better strategic policy-making, a focus on public service users and high-quality public services had a more indirect effect on the NICS. The implementation of Modernising Government clearly did apply to the NIO as a UK Government department, and it set up a taskforce in 1999 to deliver the modernising agenda in the department. This included improving policy-making and service standards, a commitment to the Service First/New Charter programme and publication of its first public service agreement (PSA) targets. Such developments obviously put the Northern Ireland departments under pressure to follow the modernising agenda. In 2004, with the restored period of direct rule firmly established, a reform agenda was published to create a leaner NICS more focused on service delivery with a new commitment to reform and modernisation (DFP, 2004a). Fit for Purpose was described in the foreword by the direct rule minister as a new commitment to reform in the NICS. This reform programme was very much set in the context of initiatives originating in the home Civil Service. The main themes of Fit for Purpose were threefold, firstly, a smaller and more efficient Civil Service building capability and embracing diversity. A smaller Civil Service was to be achieved by; a 15 per cent reduction in numbers by 2007/08, rationalising services, efficiency savings in procurement, better support services in finance, a centralised accounting system and the disposal of property. One of the more controversial aspects was a reference to pay reflecting more

BDR05.indd 96

3/23/2009 4:11:22 PM

The Civil Service: a continuing institution

97

realistically local labour markets, heralding a possible break in pay parity with the Home Civil Service. The second theme of building capability was to be achieved by enhancing leadership and professionalism and better performance management through training, developing specialist skills in policy development. Some of these ideas on increased professionalism were taken from a Cabinet office paper on Civil Service delivery and values (Cabinet Office, 2004). Fit for Purpose suggested that the British model needed three types of specialists, policy experts, operational managers and corporate support professionals was less viable in the smaller NICS. The third theme of embracing diversity was based on recruiting from the wider society, opening recruitment up to the highest levels to make the Civil Service more representative of the society it served and enhanced equal opportunities through better monitoring. The reform agenda has been given definition and emphasis by the introduction of a reform framework of six strands for each department intended to establish priorities, help plan reforms and facilitate the monitoring of their implementation (DFP, 2005: para. 129). In practice the departmental reform frameworks read more like specific sectoral policy reforms limited to structural reforms and funding with only one element relating to improving public-sector capacity. Direct rule did not appear to put strong pressure on the NICS to follow closely the modernisation agenda in Great Britain. There was no equivalent of the delivery and reform team in Great Britain. There was a Public Service Reform Unit but this related to some long-standing issues as charter marks and customer services rather than driving reform. The strategy of capability reviews of departments to review their capability in future to deliver public services from 2005 was also not adopted. It can be argued that the reforms adopted by the NICS were insufficiently different to be dependent on the existence of a separate Civil Service. This raises the issue of whether the full potential of a separate Civil Service was realised. Direct rule administrations seemed happy to accept the low-key perspective that the NICS would pursue a reform agenda appropriate to the Northern Ireland context. The Select Committee on the Constitution detected a sense of detachment or semidetachment in the NICS and less concern about management issues that are a priority within the Home Civil Service (Select Committee on the Constitution, 2002: para. 167). This reflects what Parry (2003: 110) sees as a small conservative Civil Service protective of established staff interests. There has been almost no discussion of more radical approaches, such as the desirability of a unified public service in Northern Ireland. A recent commitment to Civil Service reform has related

BDR05.indd 97

3/23/2009 4:11:22 PM

98

Direct rule and the governance of Northern Ireland

mainly to more technical reform projects covering the appliance of technology, electronic access and delivery of services, accounting and the working environment. The political role of the Civil Service Ministers and civil servants who were involved in the implementation of direct rule in the early 1970s and who have commented on the changes have all inclined to the view that there was minimal disruption to the administrative machinery. The NICS adapted quickly to the sudden disappearance of the bodies under which it worked, the Stormont ministers, Cabinet and Parliament. A Civil Service union described the event: ‘the Civil Service took this extraordinary event in its stride and with scarcely a flutter continued to formulate and administer policies’ (Public Service Alliance, 1972). Lord Windlesham, one of the First direct rule ministers, explained this in terms of the sense of public duty of civil servants and their common official tradition as a service of the crown (Windlesham, 1973:263). Bloomfield (1994:172) noted that neither the outgoing government nor the Civil Service who worked for it questioned the essential legitimacy of the new regime. Senior civil servants at Stormont had no experience of a change in government in Northern Ireland and with direct rule they had to adjust to a different government, but one based in London. A senior civil servant, Maurice Hayes, has written ‘I was struck by the ease with which the Civil Service machine adapted to direct rule’ (Hayes, 1995: 163). There were strains in the early days. Northern Ireland civil servants had to adjust to Westminster and Whitehall procedures and timetables. There was an increased documentation and consultation and a lengthier decision-making process. A senior civil servant at the time (Oliver, 1978:104) described the difficulties caused by the different procedures, for example, the civil servants found themselves faced with a rigorous interrogation before the Westminster Public Accounts Committee, the like of which they had never experienced before. Civil servants and ministers had to quickly establish working relationships. Ministers were in some respects more inaccessible because of their Westminster and constituency commitments but on the other hand the Northern Ireland Office and the Northern Ireland departments were much smaller than Whitehall departments and this produced a fairly informal atmosphere with close links between ministers and officials (Oliver, 1978:106). By 1974 senior civil servants had experienced two more novel developments, working under a Labour Government and working for the power-sharing Executive. All the available evidence

BDR05.indd 98

3/23/2009 4:11:22 PM

The Civil Service: a continuing institution

99

suggests that senior civil servants for the brief period of the Executive developed excellent working relations with the minority politicians who were the political heads of departments. The permanent secretary at the Department of Commerce noted that he rapidly established constructive and harmonious working arrangements (Bell, 1985). Hayes (1995:170) cites the growth of respect between the new ministers and their permanent secretaries. The collapse of the power-sharing Executive in 1974 did raise some questions about the role of senior civil servants. It was suggested that towards the end of the Ulster Workers’ Council strike the Stormont permanent secretaries indicated that they could conceive of a situation in which they could no longer support the Executive because of the effects of the situation on their departments (Devlin, 1975:28). The Head of the Civil Service was later to issue a statement declaring that there was no question of an ultimatum of any kind (Fisk, 1975:218). Brian Faulkner, the Head of the Executive, was later to describe a meeting with permanent secretaries at which he was informed of the terrible conditions which faced the province if the strike continued (Faulkner, 1978:276). Merlyn Rees the Secretary of State has described the same meeting when the permanent secretaries presented a sombre picture of the economic and social position but he saw this as a representation of facts rather than politically motivated activity (Rees, 1985:84). The senior civil servants may have been presenting an assessment of the facts of the situation of the imminent breakdown of vital services (Bloomfield, 1991:220) rather than giving advice or taking up a political position but what they said did seem to have had an influence on Faulkner’s decision to resign the following day. The possibility of a crisis over the loyalty of civil servants did not surface again until 1985–86 following the signing of the Anglo-Irish Agreement, when it appeared that some civil servants might join in strike action. Although this did not happen the Government was sufficiently worried to distribute a circular to all civil servants explaining the Agreement and what a civil servant’s duties were. The NICS has a code of ethics which is the equivalent of the Home Civil Service’s code and provides the framework within which civil servants work, and the values they are expected to uphold, the Northern Ireland version stresses the importance of impartiality. Morison and Livingstone (1995:155) state that despite the fact that most senior officials came from a Unionist background during direct rule there were good ‘institutional reasons why the Civil Service in NICS would not stray too far beyond the lines of policy set in Whitehall. A former Head of the NICS (Bell, 1985) writing earlier had identified a number of factors; the close similarity between the NICS and the UK Home Civil Service, the non-political

BDR05.indd 99

3/23/2009 4:11:22 PM

100

Direct rule and the governance of Northern Ireland

tradition and the cross-community acceptability of the Northern Ireland Civil Service. Ministers in Northern Ireland who have depended on civil servants have expressed conflicting views on their role, for example, Baroness Denton (a former minister), in a BBC interview in 1997, complained bitterly about the autonomy of the NICS, accusing it of making decisions without the involvement of elected politicians. She described the NICS as ‘the ultimate closed shop’. Her successor, Adam Ingram, took a contrary view, complimenting his civil servants for the high standards of advice, help and cooperation he had received since taking office. Greer (1994) has claimed that ‘Direct rule and the depoliticisation of administration increased the influence of public officials’. Speaking of the phenomena of helicopter rule Morison and Livingston (1995:154) quote sources that suggest that much of the policy-making in Northern Ireland under direct rule was left to officials. ‘The comparatively small number of these officials and their relative public invisibility has accentuated the idea of government by an elite, a sense captured by the notion that all important decisions are taken in six key dining rooms in North Down’. Baroness Denton later suggested that as a Junior Minister she occupied a kind of ministerial vacuum between the permanent secretary and the Secretary of State. Other ministers do not appear to have taken this view, and it can be argued that junior ministers in Northern Ireland were actually in charge of two or more departments which gave them more power than in Whitehall and a higher profile than their Westminster counterparts. Mo Mowlam, former Secretary of State’ did criticise the NICS under direct rule claiming that she was ‘frustrated by the Civil Service culture of only telling you what you asked about’. Providing information was fine but Mowlam wanted delivery and goes on to say that Civil Service training in this department was not as good as it should be (Mowlam, 2000:86). On the introduction of devolution John Semple, Head of the NICS, stated that ‘politicians on all sides are resentful of NICS. They are outside of the fence looking in. After years of direct rule, it will be difficult for many civil servants to adjust to the new circumstances. The traditional anonymity of senior civil servants that is the hallmark of the Whitehall/Whitehall model has been eroded during direct rule’ (quoted in Carmichael, 2002:44). His successor as head of the NICS, Gerry Loughran, stated ‘under direct rule civil servants were largely detached from the political process. With 29,000 civil servants and comparatively few of those civil servants directly engaged with ministers, I think that many of our civil servants had limited experience of political engagement. One of the lessons coming out of the

BDR05.indd 100

3/23/2009 4:11:22 PM

The Civil Service: a continuing institution

101

response to devolution was that politicians, ministers and assembly members probably felt was that the Civil Service did not know enough about working within the framework of the local political system’. Mr Loughran went on to say that he didn’t think there was any disadvantage in dealing with Whitehall because of the shared values they have in common. He believed that every civil servant successfully and smoothly made the adjustment from serving direct-rule ministers to devolved ministers (Select Committee on Constitution, 2002a: para. 1207). Civil servants found the adaptation to devolution in 1999 difficult at times as evidenced as Civil Service concern at the role of assembly scrutiny committees in interrogating civil servants. Some MLAs reported arrogance from civil servants in dealing with committees (Carmichael and Osborne, 2003:215). This suggested that under direct rule political accountability was somewhat spasmodic. The return to direct rule in 2002 and to devolution in 2007 demonstrated the Civil Service’s ability to implement again a largely smooth transition from one regime to another despite the restructuring, change in ministers and the political context involved. It was part of the St. Andrew’s Agreement that an efficiency review panel would be appointed which could examine the departmental structure so that in future whether under direct rule or devolution the number of Civil Service departments is likely to be reduced.

BDR05.indd 101

3/23/2009 4:11:22 PM

6

The use of quangos

Northern Ireland had a tradition of administration by statutory boards for a range of key public services. Such boards featured strongly in the nineteenth-century administration in Ireland. MacDonagh (1977) noted that in the nineteenth century a new type of public service was emerging in Ireland, in which administration was being divorced from politics. Hood and Schuppert (1988) noted the use of a network of non-ministerial boards at the time as a way of politically managing the peripheral areas of United Kingdom. Examples of such boards in Ireland were the Local Government Board and the General Permanent Board of Health. After the new Northern Ireland state was established a tendency remained to allocate some functions to statutory boards rather than to local authorities or government departments (Lawrence, 1965). These included the Northern Ireland Electricity Board, the Northern Ireland Hospitals Authority, the Northern Ireland Special Care Service and the Northern Ireland Housing Trust. Such bodies had the advantage of largely avoiding political problems and the administrative difficulties of local councils and the hostility of some councillors to welfare measures. These bodies could also work in a more effective manner with the absence of the traditional constraints of Civil Service departments. The health profession also welcomed the more arm’s-length approach from direct government control. The Northern Ireland Hospitals Authority was a most influential body responsible for policy-making as well as delivery in distinct contrast to the legislation in England and Wales where regional hospital boards were agents of the department. Oliver (1978: 193) has suggested that nominated boards at this time found it difficult to accept the constraints of public accountability. However, the use of such boards were largely seen as successful in terms of the standard of provision, particularly for such bodies as the Northern Ireland Housing Trust which built a high standard of social housing. When the British Government intervened in 1968–72 to promote social and administrative reform it turned to the

BDR06.indd 102

3/23/2009 4:11:43 PM

The use of quangos

103

administrative model of the statutory board as an alternative to local government. While some services were transferred directly to government departments; for example, roads, planning and water; the important services of housing, education, personal social services, youth work and libraries were transferred to statutory boards. The size of Northern Ireland in terms of population and area also facilitated administration of some services by one public body. Two forms of statutory boards were used to administer the major services removed from local government, a single statutory board for the whole of Northern Ireland or a number of sub-regional or area boards. A single administrative board, the Northern Ireland Housing Executive (NIHE), was established as an executive body responsible for a wide range of housing functions which it acquired from the local authorities, the development commissions and the former specialist statutory housing body, the Northern Ireland Housing Trust. Some of the larger local authorities had responsibilities for services, which in other areas of Northern Ireland were already administered by a statutory body and in the reorganisation of the early 1970s these statutory boards extended their functions, for example, the Northern Ireland Fire Authority and the Electricity Board for Northern Ireland. An area board structure was used for health and personal social services and education and libraries. Five education and library boards were established to manage state schools and provide the maintenance of most voluntary schools. They were also each responsible for public library services and youth services. Four health and social services boards were established to undertake the area administration of services on behalf of the central government department. A number of health-related activities were also organised on a Northern Irelandwide basis through new statutory boards, such as, the Central Services Agency and the Staff Council for Health and Social Services. By 1980 Northern Ireland had an extensive system of quangos in operation, with some exercising what in Britain were key local government functions. Quangos in the 1980s and 1990s By the 1980s, the term quango (quasi-autonomous non-governmental organization) had come into popular and academic use. The exact definition of quangos is rather open to dispute but the official term became ‘Non-Departmental Public Bodies’ which the government defined as a body which has a role in the processes of national government but is not a department or part of one and accordingly operates to a greater or

BDR06.indd 103

3/23/2009 4:11:44 PM

104

Direct rule and the governance of Northern Ireland

lesser extent at arms length from Ministers. Ministers do, however, have a degree of responsibility for all those public bodies. (Cabinet Office, 1993)

The official documentation also provides a definition on the basis of the exclusion of certain administrative bodies from the category, i.e. central government departments, local authorities, non-ministerial government departments and executive agencies. Quangos can be simply defined as any body with a role in governance other then Civil Service and local government bodies. The classification of quangos that has been normally used has three categories, executive, advisory and tribunals, but this does not take account of more recent developments in the area of regulatory bodies and independent statutory boards (see Table 6.1). The main category, executive groups, are responsible for the administration, delivery and regulation of a particular function or service. Among the executive bodies exclusive to Northern Ireland were the Northern Ireland Housing Executive, the Police Authority, the Education and Library Boards, the Health and Social Services Boards, the Fire Authority for Northern Ireland, the Fair Employment Commission, the Local Enterprise Development Unit and the Council for Catholic Maintained Schools. Others had exact or near counterparts in Great Britain, for example, the Arts Council, the Equal Opportunities Commission, the Labour Relations Agency, the Tourist Board and the Health Promotion Agency. Traditionally, the boards of nationalised industries were a major category of executive boards but Northern Ireland has had few formalised nationalised industries. In recent years only three quangos have been broadly analogous to public corporations, the Northern Ireland Electricity Service, the Northern Ireland Transport Holding Company and the Belfast Harbour Authority. There were also in 1980 some thirty-two companies in which the government has

Table 6.1 Types of non-departmental bodies

Executive Advisory Tribunals Other

1980

1993

1999

2007

59 52 15 6 132

60 43 15 2 120

65 42 15 3 125

45 18 7 2 72

Source: Cabinet Office, (2007).

BDR06.indd 104

3/23/2009 4:11:44 PM

The use of quangos

105

a majority or minority interest although many of these were subsequently privatised. The second category of quango, advisory bodies, exist to advise on or help with the formulation of policies by departments. The majority of advisory bodies again replicate those in Britain, for example, the Higher Education Council and the Historic Monuments Council but others were again specifi c to Northern Ireland, for example, the Advisory Committee on Travellers, the Economic Council, and the Standing Advisory Commission on Human Rights. The third category of tribunals is much more similar to the British pattern, for example, the Mental Health Review Tribunal, and the Northern Ireland Industrial Tribunals. Table 6.2 demonstrates the distribution of the different types of non-departmental bodies between Departments. Changes to the number of quangos up to 1999 tended to reflect developments in British practice. The overall number of quangos was cut back slightly in line with government policy in the rest of the United Kingdom. In 1980 a review of all non-departmental public bodies (Pliatsky, 1980) was initiated as part of a general streamlining exercise in the public service. This review covered the whole of the United Kingdom and sought to determine how essential the functions of these bodies were. The report recommended the abolition of two executive bodies in Northern Ireland and the abolition or rationalisation of ten advisory bodies. In 1981 the abolition of some 240 non-departmental bodies in the UK was announced, followed by the further abolition or rationalisation of 192 bodies (Holland, 1981). Only fifteen Northern

Table 6.2 Public bodies by department, 1993 Departments

Executive

Advisory

Tribunals

Other

Total

NI Office Agriculture Economic Development Education Environment Finance and Personnel Health & Social Services Health Services Other

4 7 12 13 5 2 3 12 2

2 1 5 2 8 5 12 4 4

– – 4 – 5 – 6 – –

1 – 1 – – – – – –

7 8 22 15 18 7 21 16 6

Total

60

43

15

2

120

Source: Cabinet Office, 1993.

BDR06.indd 105

3/23/2009 4:11:44 PM

106

Direct rule and the governance of Northern Ireland

Ireland bodies were on this list, amongst them the Advisory Committee on Health Education and the Northern Ireland Agricultural Trust. By 1982 a total of twenty-nine Northern Ireland quangos had been abolished or merged. This consisted of nine executive bodies, eighteen advisory bodies, one tribunal and one other body. Sixteen of the twentynine bodies were abolished, nine were merged and four replaced. The general review of quangos continued on a reduced scale with further small numbers abolished or amalgamated, for example, the creation of the Equality Commission from four existing quangos and the absorption of the Foyle Fisheries Commission into a cross-border implementation body in 1991. However, in the same period, a number of new quangos were created, including a Travellers Advisory Committee in 1986, the Laganside Corporation in 1989, the Youth Council in 1989 and the National Museum and Galleries in 1998. Despite a slight reduction in numbers, quangos continued to make up a major element of the system of government administration in Northern Ireland. Non-departmental public bodies in Northern Ireland accounted for 29 per cent of total public expenditure in 1985 and 42 per cent of total departmental expenditure by 1992/93. In 1992 there were a total of 582 elected councillors in Northern Ireland compared to a total of 2,371 members of public bodies. By the end of the first phase of direct rule the total number of quangos was approximately 118, responsible for an estimated £7 billion out of a total £11 billion public expenditure (NIA, 2002a). By 2007 the number of quangos had declined but quangos still employed roughly the same number, some 105,138 (PSIU, 2007), nearly four times the number of civil servants. It can be noted that there were almost annual alterations in the number of quangos. Also there are some bodies whose status is something of a grey area, for example, housing associations are probably correctly identified as voluntary organisations rather than executive public bodies. NIO and UK quangos in Northern Ireland The Northern Ireland Office and other UK departments are responsible for a number of quangos which are exclusive to Northern Ireland. The Northern Ireland Office quangos are categorised in Table 6.3. Some of the non-departmental public bodies (NDPBs) had a key role and had high profile such as the Equality Commission, the Human Rights Commission, the Policing Board and the Police Ombudsman. Some are large in terms of the number of employees, for example, the

BDR06.indd 106

3/23/2009 4:11:44 PM

The use of quangos

107

Table 6.3 Northern Ireland Office quangos, 2006 Executive Advisory Tribunal Monitoring/Ombudsmen Other Total

9 5 1 5 2 22

Source: NIO, 2006a.

Probation Board, others have been controversial as in the case of the Parades Commission, and some played a key role in the peace process such as the Police Oversight Commissioner. Other key independent quangos within the NIO include the Civil Service Commissioners and the Chief Electoral Office. Another UK department with responsibility for aspects of criminal justice, the Ministry of Justice, is the sponsoring department for the Northern Ireland Judicial Appointments Commission and the Northern Ireland Legal Services Commission and through the Northern Ireland Court Service for advisory committees on appointments of Justices of the Peace and General Commissioners of Income Tax as well as a number of tribunals. Under direct rule these quangos have largely operated with similar degrees of independence from the sponsoring department as other Northern Ireland quangos. It is again sometimes overlooked that there are quite a number of United Kingdom quangos whose remit covers Northern Ireland. These tend to be normally linked to excepted and reserved services, although not entirely, and cover Northern Ireland simply as part of their comprehensive UK remit. Organisations operating on a unified UK basis include the Human Fertilisation and Embryology Authority and the Health Protection Agency. The Social Security Advisory committee has a special remit to cover Northern Ireland as well as Great Britain. These bodies may make special organisational arrangements for Northern Ireland. Some have a territorial sub-structure. The Food Standards Agency has a Northern Ireland advisory committee and Skills for Justice has a Northern Ireland group as a sub-board. Other UK-wide bodies only have offices in Northern Ireland, for example, the Energy Savings Trust and Investors in People. A few UK quangos overlap with Northern Ireland bodies or perform only a few functions in Northern Ireland. Northern Ireland may or may not have representation on these UK quangos and the Secretary of State occasionally has reported making appointments to represent Northern Ireland interests on UK bodies.

BDR06.indd 107

3/23/2009 4:11:44 PM

108

Direct rule and the governance of Northern Ireland The composition of boards

The majority of quangos are managed by a board appointed by the sponsoring department. The composition of boards may be specified in the relevant legislation in terms of numbers or interest representation. In the case of Northern Ireland’s five education and library boards authority councillors accounted for 40 per cent of the membership while 25 per cent of the membership had to be representatives of maintained and transferred schools, i.e. catholic schools and former protestant schools. The boards also had to contain three teachers serving within its area and three persons with a special interest in libraries. In the case of the Northern Ireland Housing Executive the legislation specified that three of the nine member board were nominated from the members of the Housing Council, an advisory quango which consists of one representative from each council. Under direct rule public appointments were made by the respective heads of the Northern Ireland Departments (permanent secretaries) following consultation and approval from ministers while they were made by the Secretary of State to the Northern Ireland Office quangos (OCPA, 1998). The original system for nomination and appointment to a public body was complex and vague. Public appointments in Northern Ireland were originally divided into three categories – A, B and C. Category A appointments, including appointments to chairs of bodies were approved by the Secretary of State. Category B appointments were approved by government ministers. Category C appointments could be made by senior civil servants, largely from a list maintained of the great and good. This system of nomination and appointment gave rise to concern about the representativeness of quangos in Northern Ireland, particularly in view of the wide ranging functions which they performed (Connolly, 1990). Concern about appointments to quangos in Britain has traditionally focused on political patronage but the issue of political bias on quangos in Northern Ireland has been of a different nature. Local councils had representatives on the main quangos but most councillors nominated to serve on public bodies have been unionists. The three nominees of the Housing Council to the board of the Northern Ireland Housing Executive were always unionists and on the four Education and Library Boards at one time forty-eight out of fifty-six district council nominees were unionist. In such circumstances the government has used its power of nomination to correct political imbalances. A process also started of removing local council nominees from quangos. Up until 1991, 30 per cent of the membership of the four Health and Social Services Boards came from nominations by district councils with

BDR06.indd 108

3/23/2009 4:11:44 PM

The use of quangos

109

a further 30 per cent representing relevant professions and the remainder other interests. However, in 1991 the Health and Social Service Boards were reconstructed to create smaller executive-type management boards and local councillors were removed. The climate in the 1990s was one of encouraging public participation and there were concerns expressed about the appointments process (Knox, 1999). It would appear that most departments preferred to appoint those already known to them or those who represented little threat to the status quo. The fact that often the same people were reappointed to boards or moved between boards or between chairs was indicative of the reluctance to introduce new blood and of the fact that those responsible for appointments relied heavily on the ‘tried and tested’. Although it was recommended that people should not serve on more than three boards at any given time this was not binding and the practice could differ. Although it has been argued that the membership of nominated boards was representative and members were not ‘hand-picked conformists’ (Bloomfield, 1991). In 1994 women accounted for 31 per cent of the membership of public bodies (EOC, 1994), a major improvement on the figure for the mid-1970s which was only 14 per cent, and in 1986 when only 18 per cent were women. Very few women were appointed to paid or influential positions on quangos, and very few chairpersons were women. The fact that women continued to be under-represented was largely due to the nomination and selection process which, in the absence of clear formal guidelines, placed much emphasis on informal procedures which placed women at a disadvantage (Gray and Heenan, 1996). An increase in the number of women appointed to quangos were largely the result of efforts by the Equal Opportunities Commission. One of the initiatives employed, in an attempt to increase the representation of women, was the setting up of a talent bank of names maintained by the Central Appointments Unit at the Northern Ireland Office. No record was kept of the religious composition of board members in Northern Ireland but under direct rule they started to become a vehicle for the involvement of catholics in public life. John Oliver, a former permanent secretary, noted in the 1970s that there had been progress in securing the appointment of leading catholics to statutory boards and practical cooperation between protestants and catholics (Oliver, 1978: 241). The importance of this issue was illustrated by the fact that Article 6 of the Anglo-Irish Agreement of 1985 gave the Irish Government the right to put forward views and proposals on the composition of a number of quangos. Quangos therefore were a mechanism to involve both communities in governance and a method for making

BDR06.indd 109

3/23/2009 4:11:45 PM

110

Direct rule and the governance of Northern Ireland

government more impartial and more representative of the community. Concern throughout the United Kingdom at standards in public life including public appointments led to the Nolan Report (Committee on Standards in Public Life, 1995). The Nolan Committee concentrated on members of parliament and civil servants but also covered executive quangos and NHS bodies. It drew up principles of public life, codes of conduct and systems for independent scrutiny to alleviate concern about appointments to some 800 public bodies. Nolan recommended selection on merit, taking account of the need to appoint boards which included a balance of backgrounds. A Public Appointments Unit was set up within the Cabinet Office to encourage nominations for vacancies and an Independent Commissioner for Public Appointments was set up in 1995 to monitor, scrutinise and advise on the appointments process and also to investigate complaints. Northern Ireland was also brought within the scope of the new measures with the creation of a Central Appointments Unit and a Commissioner for Public Appointments for Northern Ireland. The Northern Ireland Commissioner’s remit does not cover quangos sponsored by the Northern Ireland Office or a number of advisory and regulatory bodies. The Commissioner (initially the UK Commissioner) published a code of practice for all ministerial appointments to boards of executive non-departmental public bodies and health bodies in Northern Ireland with the overriding principle of selection based on merit. Consequently, since 1996 most vacancies for public appointments have been advertised and based on interviews. Publicity has been undertaken to encourage a wider range of people to consider applying for public appointments. The reports of the Northern Ireland Commissioner have noted an increase in first appointments although approximately 25 per cent of those appointed in 1999 already held a public appointment. In 2006, 21 per cent of board members still held more than one appointment (OFMDFM, 2007a). Also, the chairs of quangos do often rotate around the same core of people. The initial reports of the Commissioners for 1996–97 and 1997–98 showed that the percentage of appointments held by women was 35 per cent (Office of Commissioner for Public Appointments: OCPA, 1998: 6). Between 1997/98 and 2006/07 the percentage actually dropped to 32 per cent, and the percentage of chairs held by women also declined from 28 per cent to 26 per cent in 2006/07. The Commission has stated these statistics paint a gloomy picture (OCPA, 2006). It has to be noted that not all appointments are within the remit of the Commissioner, as some are filled by nominees. The percentage breakdown by community background has become representative of the whole community. For 1997/98 figures were 43 per cent catholics,

BDR06.indd 110

3/23/2009 4:11:45 PM

The use of quangos

111

51 per cent protestants and 6 per cent other (OCPA, 1998: 21) and for 2005/6, 40 per cent catholic, 46 per cent protestant and 14 per cent other. In 2005 the Commissioner, Baroness Fritchie, reported that over the previous decade a great deal had been done to encourage a more diverse range of applicants and some departments had transformed their approach (OCPA, 2005). The Commissioner has a duty to investigate complaints and has suggested that the lack of complaints indicates that appointments processes are generally working well (OCPA, 2005: 37) although there may be a deterrent to potential complainants in that complaints have to be made to the relevant department first and only the procedures are open to question. There have been a number of high-profile controversies over appointment procedures. In 2006 the Public Accounts Committee at Westminster identified what it saw as ‘one of the worst cases of conflict of interests and impropriety that this committee has seen’ in relation to the Local Enterprise Development Unit’s oversight over a third-party organisation it had set up (PAC, 2006a). This led to the Northern Ireland Commissioner amending the code of practice and issuing new guidance on probity and conflicts of interest. The OCPA has been rather reactive rather than proactive to concerns about the operation of quangos. There have also been legal challenges to appointment of an Interim Victims Commissioner and appointments to the Parades Commission and appointments to two new quangos were made without public advertising. This may suggest a need for more comprehensive powers to be given to the office of Commissioner over all public appointments within Northern Ireland and for more specific guidance to be given on what expertise and interests should be the basis for appointment. The existing definitions of merit are heavily biased to managerial experience. Relationship with central government and accountability Those quangos responsible for the delivery of services in Northern Ireland are totally dependent on central government for finance and are answerable to the sponsoring department. Most quangos have to operate within financial frameworks set by the department, for example the Department of the Environment used its powers to require the Housing Executive to increase public sector rent levels. The health and social services boards were also formally defined as agents of the Department of Health and Social Services and as such had limited financial discretion. Education and library boards were not defined as agents of the Department of Education for Northern Ireland but as statutory

BDR06.indd 111

3/23/2009 4:11:45 PM

112

Direct rule and the governance of Northern Ireland

bodies in their own right with a measure of autonomy. They have traditionally had a rather uneasy relationship with the Department of Education. For example, in 1988 the government used legal means to bring a board into line when they refused to change their secondary transfer procedure. The Department of Education for Northern Ireland controls educational policy, funding and standards and determines teacher staffing levels and the payment of teachers’ salaries. McKeown (1991) argues that the breadth of the Department’s responsibilities results in the control of the education system being more centralised in Northern Ireland than in Great Britain. The powers of the Department were further strengthened by the Education Reform Order (1989) which eroded the powers of the education and library boards by allocating the department additional powers and devolving more responsibility for admissions policy, curriculum policy and staffing levels from boards to school governors and head teachers. In general, departments have overall responsibility for policy-making, setting priorities, and standards as well as financial allocation, while the quangos have responsibility for the day-to-day running of the services. It has been suggested that quangos in Northern Ireland have achieved little autonomy from departments (Morison and Livingstone, 1995: 163). Northern Ireland quangos were careful to fall into line with Treasury guidance in recent years in producing clear governance arrangements. A study by the Northern Ireland Audit Office (NIAO, 2007a) found management statements and financial memoranda in place which defined channels of management, accountability and communication. There were variations in the detailed structures of contact and in the interest displayed by departments. Relationships ranged from direct control and involvement and close oversight with regular meetings, to an arm’s-length approach. The trend to departmental dominance does raise some questions about the rationale for independent quangos. There have been few serious disputes between the boards and departments but in the event of disagreement the boards are virtually powerless. The board of the Housing Executive attempted with little success to resist rent increases and expenditure cuts imposed by the department. A restructuring of the health services in the early 1990s and the introduction of compulsory competitive tendering was imposed by the DHSS despite opposition from the boards. Resistance to departmental directives has tended to come from the officers of boards or the trade unions rather than from board members who rarely put forward a united front opposition to government. During the 2002–07 period of direct rule some education boards fell into disarray when faced with ministerial criticism for exceeding their budgets. In 2006 the

BDR06.indd 112

3/23/2009 4:11:45 PM

The use of quangos

113

South-Eastern Board failed to conform to the department’s requirements for an allocation plan to tackle overspends. The direct rule minister and the department suspended the board and appointed four commissioners to carry out board functions. This can be seen as an arbitrary act of the direct rule administration as it seems unlikely such drastic action would be taken against, for example, an NHS trust/ quango in England in a similar financial situation. It has been suggested that many quangos, smaller executive and advisory bodies did not appear to be subject to much clear political accountability, parliamentary scrutiny, financial accountability or transparency although this did not differ greatly from Great Britain (Meehan, 1997). Following similar criticisms of quangos in general an initiative was launched in Great Britain in 1998 to make executive nondepartmental bodies subject to more efficient scrutiny, through a specific annual report process. The Secretary of State for Northern Ireland decided to publish a separate Northern Ireland report to improve the openness and accountability of non-departmental public bodies, which unlike the Great Britain report would include all the smaller boards. This sought to make public bodies more efficient, transparent and accountable by drawing together in a single document key information on their performance. The performance reports covered the activities of forty executive non-departmental public bodies, with the exception of bodies sponsored by the Northern Ireland Office, which appeared in the Great Britain non-departmental public bodies report. The report detailed each organisation’s key targets and their achievements against them over a three-year period and provided a breakdown of their income and expenditure over the same period. For 1988–89 a total of nine non-departmental public bodies achieved all the targets set for them (PSIU, 2000). The report also encouraged the public bodies to identify best practice to assess their performance against an excellence model, whether investors in people or national standards. It was also the intention to review non-departmental public bodies and the need for their continuation on a five-yearly basis. This monitoring progress was not continued and was replaced by a factual public bodies report for Northern Ireland. The review of quangos During the devolved administration the Northern Ireland Executive initiated the Review of Public Administration (RPA) and a review of quangos was to be a major component. The RPA was only commencing in 2002 when the Assembly was suspended and the Secretary of State

BDR06.indd 113

3/23/2009 4:11:45 PM

114

Direct rule and the governance of Northern Ireland

indicated he wished the review to continue, and thus the first consultation paper was launched by the restored direct rule administration. This paper (RPA, 2003a) noted that many of the major public services were delivered by a variety of public bodies. The RPA exercise covered only quangos sponsored by Northern Ireland departments and not the NIO or other UK departments. The review team set out major criticisms of quangos relating to their perceived lack of representativeness, lack of accountability, problems of coordination and public confusion. A Further Consultation Document, in response to the first consultation exercise, noted a general antipathy to what were often described as the unelected, unaccountable quangos (RPA, 2005: 96). Less concern was expressed about advisory public bodies than about executive bodies and overall the lack of democratic accountability was quoted in support of the abolition of executive public bodies. The document (RPA, 2005: 98) set out one somewhat unrealistic option as no public bodies but the recommended alternative was that public bodies should continue with every effort made to improve their accountability and some might have their functions transferred to either local or central government. With the continuation of direct rule the rationale for the outcome of the review was to shift more to arguments for streamlining the bureaucracy and cutting costs. In 2005 specific proposals were announced for restructuring quangos in health and social services and education. A new single Strategic Health and Social Services Authority, advised by seven local commissioning groups, would replace the existing four health and social services boards and the eighteen health and personal social service trusts would be reduced to five. Seven support service agencies would be abolished and the four advisory health and social service councils replaced by a single Patient and Client Council. In all, thirty-four bodies would be reduced to eight bodies and these plans would mean a reduction of nearly 1,700 staff and estimated savings of £53 million by 2011. A new education authority was proposed to replace the support services undertaken by the five education and library boards plus an advisory forum and a new unique single library authority. The final decision on the reorganisation of other quangos outside health and education was delayed until the following year. The final outcome for quangos is described in Table 6.4. This scarcely amounted to a major cull of quangos covering transferred matters. In effect only a small number of quangos were actually abolished, the most significant being Enterprise Ulster and the Housing Council. Transfer to government departments did not figure prominently and only involved the Fishery Conservation Board, some

BDR06.indd 114

3/23/2009 4:11:45 PM

The use of quangos

115

Table 6.4 Review of Northern Ireland quangos,a 2006 No change Abolished Declassification Amalgamation Transfer to departments Transfer to local government Transfer to dept and local government Split quango/local government

29 3 2 4 1 2 2 4

Source: Review of Public Administration, 2006. Note: a Excluding NIO and UK sponsored quangos and health and education bodies.

functions of the Museums Council and the policy role of the Rural Development Council. The opportunity was also not really taken of strengthening local government with only two quangos proposed for a transfer of their total functions, the Fishery Harbour Authority and the Local Government Staff Commission. Three quangos, the Arts Council, Tourist Board and the Sports Council would lose only their local funding powers to local government. These proposals can be assessed as leading overall to a reduction in the number of quangos, mainly in the health and education areas, but with, if anything, an actual increase in the functions of the remaining quangos. The restructuring also saw the emergence of proposals for very large or super quangos in education, health and social care and libraries. In terms of the size of population covered, the scope of services and the number of employees, the new Health and Social Care Trusts would be among the largest health related bodies in the United Kingdom. With the restoration of devolution some of the direct rule proposals were reviewed but this resulted in only a few changes to the health structures. The powers of the single regional Health and Social Care Board were reduced with two new quangos created, a new Regional Public Health Agency and a common services organisation (Department of Health, Social Services and Public Safety: DHSSPS, 2008). The existing Health and Social Service trusts had been amalgamated into five new trusts in 2006 and six bodies abolished in one piece of legislation in 2007. However, during this period a number of new quangos emerged. Attempts to reform quangos in the United Kingdom have always been diluted by governments accepting the necessity to continue setting up new bodies. Ironically, a

BDR06.indd 115

3/23/2009 4:11:45 PM

116

Direct rule and the governance of Northern Ireland

new quango, the Public Service Commission, was created in 2006 to help implement the staffing reorganisation required by the RPA. Other new quangos in 2007 were an advisory Mental Health and Learning Disability Board and an advisory Architecture and Built Environment Group. The advantages and disadvantages of quangos The Northern Ireland experience provides evidence of the advantages in the use of quangos. These can be expressed most accurately in terms of expertise, specialisation and impartiality. Quangos can be a vehicle for the harnessing of expertise, specialist knowledge and experience and Northern Ireland was unique in allowing, for example, the direct input of such expertise into the delivery of housing. This proved valuable in the rapid expansion of high-quality social housing in the 1970s. In 1993 the minister specified the basis of the board of the Housing Executive as ‘a mix of experience, business background and expertise to enable it to achieve the objectives for which it has been established . . . board membership should include those with an interest in housing or related public sector policies and relevant professional, managerial and commercial experience’ (House of Commons, 1993). Quangos normally have responsibilities for a specific function and thus can build up specialist professional and management experience in relation to one function. A similar argument can be applied to the specialisms built up in single-person commissioner offices. Impartiality has also been held up as a particular advantage of administration by quango in the Northern Ireland context. The idea of impartiality embraces the notion of having a decision-making process less influenced by political and sectarian concerns. Since the early 1970s the transfer of the major social services from local government to quangos has virtually ended religious discrimination and sectarian bias, particularly in housing allocations. Allegations of religious discrimination in service provision against quangos have been quite rare. The notion of quangos being ‘non-political’ is a much more difficult area. The majority of quango members do not represent Ulster’s political parties but local authority representation on boards means some degree of political influence remains and boards are not immune to party conflict. In the wake of the Anglo-Irish Agreement a unionist campaign led to the disruption of the committee work of boards, including the boycotting of board meetings. Under direct rule quangos can be seen as having a beneficial effect in offering a way of avoiding the intrusion of party politics into the policy and administrative process of services such as

BDR06.indd 116

3/23/2009 4:11:45 PM

The use of quangos

117

housing, education and health. Northern Ireland politics are dominated by divisive constitutional issues and consequently administration by quango has been largely exempt from these influences during periods of political turmoil. Another benefit of quangos is that they have a degree of independence, being at arm’s length from government departments and thus may be better able to adopt more flexible approaches than civil service departments. Quangos can also have a sub-structural organisation which facilities a degree of local influence. In 1998 the Secretary of State for Northern Ireland also noted that membership of public bodies enables the wider community to play an important role in influencing and shaping the provision of a whole range of services and this is particularly important where public bodies are involved in areas which in Britain would be the responsibility of locally elected representatives (Secretary of State, 1997). Thus an advantage of quangos was that they served as a participatory mechanism in the absence of a devolved tier of government. The Northern Ireland experience also demonstrated some of the major problems associated with quangos. Some of these disadvantages are thrown into stark focus in Northern Ireland because of the transfer of services from local government. Because members are appointed and not elected, quangos can be criticised for being undemocratic and unaccountable. The majority of the membership of quangos are not held accountable to a local electorate. The position in Northern Ireland was exacerbated during direct rule and the absence of a regional Parliament or assembly leading to a ‘democratic deficit’ or ‘accountability gap’. Quangos were technically accountable, in a broad sense, to the Westminster Parliament but time permitted only limited scrutiny of their performace. There is evidence that quangos can be remote from the public they are supposed to serve and formally, board members have little contact with the public or users. In 1993 out of thirty-eight quangos in Northern Ireland only three gave the public the right to attend meetings and only one the right to inspect minutes of meetings. They are also remote in that members of the public may be unaware of the membership of a board and will rarely approach them. A study carried out in 2003 (RPA, 2003b) found that only 52 per cent of respondents were aware of the category of public bodies known as quangos. This is very different from the experience of councillors. There is an interesting phenomenon in Northern Ireland in that councillors are still often approached by members of the public in relation to social housing issues even though it is nearly forty years since councillors last had a direct responsibility. It is only rarely that members of the board of the Housing Executive or other boards are approached by

BDR06.indd 117

3/23/2009 4:11:45 PM

118

Direct rule and the governance of Northern Ireland

the public directly. The large number of quangos operating alongside councils, departments and executive agencies can cause confusion among the public about respective responsibilities. Quangos may also be considered undemocratic in another sense, in that they remove service provision from the public arena and discourage public discussion of policy issues. It is noticeable that in Northern Ireland the main political parties have not really developed or published coherent social policies and the prevalence of quangos may be a factor. This prevalence of quangos has led to the depoliticisation of some of policy debates and encouraged a failure to recognise the salience of underlying political ideologies in policy formulation. As noted earlier, a major criticism of quangos is that in terms of membership they are not as representative of the community as elected councillors. Also few boards take an independent stance against the government that appoints them. With few exceptions, quangos have facilitated the implementation of central government policies and guidelines and can be seen as facilitating the smooth operation of direct rule. In practice, quangos in Northern Ireland have been rather cautious and conservative and not particularly innovative. There have been some exceptions to this, particularly in the case of more high-profile political bodies such as the Policing Board and the Human Rights Commission. A further difficulty in Northern Ireland has related to the coordination of services. The existence of separate specialist quangos is in contrast to the multifunctional local authority system in Great Britain. This creates difficulty in relation to the coordination of services, for example, between housing and personal social services and planning and education. A specific difficulty in Northern Ireland has been problems with linked services in one composite board. The provision of more minor services, which have been attached to major services of boards, may suffer in comparison to the major service. For example, library services or youth services may have been overshadowed by mainstream education services. Similarly social work and social care may be eclipsed by the large health services component of health and social services bodies. What is noticeable has been the limited debate in public documents, such as the Review of Public Administration, on the role of quangos or the principles involved. Increasingly quangos have become involved in many partnership arrangements with departments, agencies, local government, voluntary bodies and other quangos and the stand-alone quango is no longer such a reality but this was little discussed in the RPA. There was little analysis of how the rationale for the use of quangos differs between direct rule and devolution. The Scottish

BDR06.indd 118

3/23/2009 4:11:45 PM

The use of quangos

119

Parliament and Welsh Assembly Government articulated a strong case for the absorption of quangos into devolved government and in some ways regional quangos occupy the same space as devolved administration. There is a case for enhancing the capacity of devolved government through replacing quangos and allowing devolved governments to be directly accountable and lead on policy delivery (Birrell, 2008). However, during direct rule there was a stronger case for the use of quangos in the absence of devolved government and with limited local government as they provided a mechanism for local participation and localised delivery.

BDR06.indd 119

3/23/2009 4:11:45 PM

7

The role of local government

The introduction of direct rule coincided with the reorganisation of local government. Local government reform had become one of the main priorities of the British Government during the period 1969–72, although proposals for reforming the existing structure had been put forward in the late 1960s. The old system of local government had existed since the nineteenth century and was similar to the system in Britain with two all-purpose county boroughs, Belfast and Londonderry and a two-tier system for the rest of the province with six county councils, ten borough councils, twenty-four urban districts and thirty-one rural district councils. A Stormont white paper (Government of Northern Ireland, 1969a) had proposed a new structure of seventeen area councils and had questioned the need for the continued existence of county councils which were responsible for education, personal social services, local health services and also roads and planning in the rural district areas. Shortly after this a Government green paper proposed a number of area boards to provide an integrated system of health and personal social services. None of these government papers had discussed any political criticisms of the local government system but this had become crucial. Complaints concerning religious discrimination by some local authorities in housing and employment and the manipulation of council boundaries for political purposes had been a major component of the civil rights protests in 1968–69 and were analysed by the Cameron Commission (Government of Northern Ireland, 1969b). Some minor reforms to local government had been made as part of the first package of reforms produced by Westminster intervention, but in 1969 more comprehensive reforms were set in motion. A decision in October 1969, to centralise housing functions following the proposals already announced for new health and personal social services boards, reduced the options for a reorganisation of local government. The Macrory Report (Government of Northern Ireland, 1970), set up to produce plans for reorganisation, noted three special circum-

BDR07.indd 120

3/23/2009 4:12:06 PM

The role of local government

121

stances in Northern Ireland, the existence of a regional tier of government, the dependence of local government on central government finance and the small size of the province. There was no reference to any political considerations such as the need to sustain a system of local democracy. The report divided services into two categories, major regional services which required large units for administration and minor district services. The Macrory proposals were accepted as a basis for reorganisation. This meant that all major services, housing, personal social services, local health, education, libraries, planning, roads, water and sewerage were removed from local government and transferred to statutory boards or to government departments. A range of relatively same minor functions was given to twenty-six new district councils. At the time as direct rule was introduced the legislation introducing the new system of local administration was passing through Parliament. No change was made in the eventual legislation although direct rule undermined the ‘argument from Macrory’ that the centralisation of major local government functions was justified by the existence of the Stormont Parliament and Government. The new structure was established under the Local Government Act (NI) 1972 and had become operational by 1 October 1973. It consisted of a single tier of twenty-six district councils based on the main population centres. There was quite a degree of variation in the population of council areas as Table 7.1 indicates. The majority were small in population but Belfast City Council with a population of 277,391 within the city boundary dwarfs all the others. Moyle council with a population of only 15,933 was the smallest. All the councils are officially designated district councils but Belfast and Derry were also designated city councils. Armagh was conferred with city status in 1995 and Lisburn in 2002. In 1977 Newtownabbey was granted a royal charter to become the first of the new district councils to change to borough status and

Table 7.1 Population of district councils Population Over 100,000 70–100,000 50–70,000 35–50,000 Under 35,000

Number 3 5 6 7 5

Source: Birrell and Hayes, 1999.

BDR07.indd 121

3/23/2009 4:12:07 PM

122

Direct rule and the governance of Northern Ireland

others have followed and thirteen councils have obtained borough status as a result of charters. In 1990 Maurice Hayes was appointed Local Government Boundaries Commissioner to review the number, boundaries, names and wards of the district councils. Despite speculation concerning the merger of some smaller councils, particularly Moyle Council, no change in the structure of the twenty-six councils was recommended. The direct provision of core services Local government in Northern Ireland became directly responsible from 1973 for a limited range of services and for only a few of the services traditionally associated with local government in the rest of the United Kingdom. Local government was therefore divested of any substantive role in Northern Ireland governance. The functions of local government was formally described as threefold: direct service provision, consultative and representative, although the direct provider role was the most significant. The main functions can be broadly categorised as regulatory, community, technical, recreational, economic and social. The two main regulatory functions, environmental health and building control, were provided by councils operating together in groups. Individual councils could not justify the employment of professional staff and the group system facilitated specialisation, staff training and staff mobility. There was a group committee consisting of two members from each council in the group which coordinated the provision of the service. One council in each group employed staff on behalf of the others and Belfast was the exception to the group system as it was large enough to employ its own staff. The others formed six building control groups and five environmental health groups. Other regulatory functions included air and water pollution, noise, the inspection of premises used for the food storage and preparation, the quality of food, health and safety standards in offices and shops, pest control and consumer safety. In addition, council environmental health officers acted as agents for other public bodies, e.g. the Housing Executive. The group system appeared to work well. In the case of building control the group principle has promoted uniformity in the interpretation and application of building regulations. More generally, the protection of the environment became an area of increasing importance for district councils. All councils appointed environmental coordinators to progress such issues as recycling and waste management. The remaining regulatory functions

BDR07.indd 122

3/23/2009 4:12:07 PM

The role of local government

123

included the registration of births, deaths and marriages and the performance of civil marriages and civil partnerships. Since 1973 district councils have provided a core range of technical services directly to the community. The function of ‘emptying the bins’ has become the service most often quoted in relation to local government as a reference to the restricted nature of local government functions. Related services are waste collection, street cleaning, litter prevention, public conveniences and recycling amenities. Waste management became a major issue for councils, particularly in meeting European Union directives. Councils had to produce waste management plans to divert from landfill to re-use, recycling and recovery (McKernan and Fagan, 2003) and to comply with a number of targets. There was a recognition of the constraints of small councils and again a move to inter-council partnerships to establish sustainable regionalised facilities. This led to the creation of an eastern region waste management group of eleven councils and a southern waste management partnership of eight different councils. Parks and cemeteries are a traditional local government function and they have remained with the district councils. A later addition was the responsibility to service and manage travellers’ sites. Councils also have a role in the protection and conservation of the environment and the heritage of their areas. Although local government was not directly responsible for emergency planning the chief executives of local councils were given a role in the coordination of responses to civil emergencies. Their role was specified as assisting where appropriate the primary responding agencies, monitoring responses and reporting to government departments. Some councils have produced an emergency services handbook which lists emergency contacts. In general, chief executives have not been proactive in this area but there were some instances of meetings convened by chief executives with representatives of all the emergency services. Legislation introduced in 1992 permitted district councils to incur a small amount of expenditure to safeguard life and property. Among the activities supported have been the establishment of one-stop emergency advice centres and assistance for traders to obtain temporary premises following natural or civil emergencies. Further legislation in 2005 gave councils new powers to make emergency planning arrangements with other bodies. The promotion and development of recreation and leisure amenities has also been a statutory function of district councils since 1973. All district councils provided and managed a wide range of facilities, swimming pools, leisure centres, marinas, playing fields, golf courses, squash

BDR07.indd 123

3/23/2009 4:12:07 PM

124

Direct rule and the governance of Northern Ireland

courts, tennis courts and bowling greens and more specialist facilities such as a ski slope (Craigavon) and an ice rink (Castlereagh). Recreation provision accounted for as much as 40 per cent of the total annual grant expenditure and large capital grant aid packages were available to councils for building leisure and recreation centres. The outcome has been extensive provision with at least one indoor sport/leisure centre in each council area. District councils were originally given a responsibility for the provision of adequate social facilities in their area but in 1976 a government working party, convened by Richard Moyle an NIO minister, recommended that district councils should have increased responsibilities for the provision of social, community and recreational facilities. This was the most important set of functions offered to district councils since reorganisation. District councils took over from the Department of Education responsibility for assisting voluntary and community groups with general administrative expenses. An emphasis on physical provision led most councils to provide community centres and in all by 2000 the community services programme supported the provision of 239 community centres across all district council areas (DSD, 2000). Community centres provided by councils represent a major financial investment in Northern Ireland’s social, economic and physical infrastructure with some 1,600 community groups using the centres. Some district councils also supported resource centres which provided support for community development, leadership on local issues and information dissemination. By 1996/97 all twenty-six district councils provided financial support for local advice services to varying extents The provision of grants to voluntary and community groups was a small but important element of the community services programme. Belfast City Council employed twenty-five community workers but overall there was a rather haphazard pattern of provision with an emphasis on ‘bricks and mortar’ rather than community development work. One overall assessment of ten years of community services in district councils indicated that community services have been a low priority as many councillors had political reservations about community groups (Rolston, 1985). However, the establishment of area district partnerships in 1995, with European funding to promote community group activity, gave a boost to council functions and priorities in this area (McCready, 2000). There is an important distinction between the community services programmes and the community relations programmes. In 1989 a major initiative by the direct rule administration was taken to promote community relations through the vehicle of local government. Councils had to agree to participate across party lines, to draw up a community relations policy to promote

BDR07.indd 124

3/23/2009 4:12:07 PM

The role of local government

125

reconciliation and to appoint community relations officers. There were some misgivings about the principles underlying the programme amongst unionist parties and only thirteen councils participated during the first year. This rose to twenty-one to 1991/92 and by 1994/95 all twenty-six councils were involved and employing community relations officers. This area of activity was further developed after 1998 by the requirement for councils to have a good relations strategy and Belfast City Council created a Good Relations Unit. Legislation in 2002 empowered local councils to form community safety partnerships and NIO funding was available in support of community safety initiatives. The majority of district councils have moved to employ community safety officers, set up community safety partnerships to oversee projects and drawn up action plans to tackle anti-social behaviour, neighbourhood disorder, substance abuse, and promote the safety of the elderly and vulnerable groups. Until 1992 councils had no special responsibilities for economic development but were permitted a small amount of expenditure to promote their area in terms of trade, industry or commerce. This was used to promote visits and meetings concerned with the development of trade and industry (Connolly and Murray, 1986) and to produce promotional information and literature. In 1992 this power was extended by legislation to allow councils to spend a maximum of five pence in the pound on its rates to promote economic development. These activities again covered the production of information but also strategies for economic regeneration and the promotion of local enterprise companies. Eligible expenditure was raised to 5 per cent of local rates receipts in 1995, totalling £18 million, and local action plans covered business development, tourism, agricultural diversification and rural development and town centre development (Hughes et al., 1998). It has been suggested that many councils adopted a cautious and narrow technocratic approach rather than being inventive with local economic development (Teague and Wilson, 1999). Nevertheless, the expansion of this function can be seen as still representing a significant breakthrough for local government and all councils moved to employ economic development officers. Economic activities expanded further in 2002 when councils were allowed to acquire, hold, develop and vest land. Tourism was a further important area of economic activity and councils were again able to develop a range of tourist amenities, information centres, publicity materials, caravan sites and some local councils set up tourist development organisations. Tourist projects also involved cooperation with the Northern Ireland Tourist Board, the National Trust and other councils or cooperation across the Irish border.

BDR07.indd 125

3/23/2009 4:12:07 PM

126

Direct rule and the governance of Northern Ireland The representative and consultative role

District councils carried out their representative role through the nomination of councillors for appointment to a range of public bodies with responsibilities for the delivery of major services including education and housing. In the case of the five education and library boards, 40 per cent of the membership was nominated by district councils and the number of councillors allocated to each district council was related to the population. In practice, this meant one or two councillors from each council with the exception of the Belfast Education and Library Board, on which Belfast City Council had sixteen representatives. The board of the Housing Executive consists of ten members, three of whom are councillors. Until 1991 councillors also made up 30 per cent of the membership of the four health and social services boards but these bodies were then reconstituted as smaller executive type boards and councillors were removed. While at the time this corresponded to changes in health boards in Great Britain, in Northern Ireland it also meant the removal of councillors from any direct control over personal social services which in Great Britain remained totally a local government function. Representatives of councils also sat on other executive and regulatory public bodies, for example, the Fire Authority, the Drainage Council and the Sports Council. Councillors could still sit on health and social services councils which had a consumer watchdog role in scrutinising the work of the health and social services boards and trusts. Each district council nominated one representative to the Housing Council, which advised the NIHE on matters related to housing. Its actual influence on policy was limited but it did successfully press for amendments to the housing selection scheme for more investment in social housing. There are a number of other totally local government based representative bodies which play an advisory and coordination role, for example, the Emergency Planning Group, the Local Economic Development Forum and Local Government Marketing Forum. These bodies also have a more specific role in promoting collaboration between councils, exchanging information and expertise and linking with other bodies. District councils also have representatives on a wide range of more locally based public bodies, for example, road safety committees, universities, local arts committees, local museums, home safety committees, local sport advisory councils and older people’s forums. Councils may also have representatives on the management committees of local bodies which are in receipt of council funding, for example, citizen’s advice bureaux.

BDR07.indd 126

3/23/2009 4:12:07 PM

The role of local government

127

In their consultative role councils could reflect the views of the community on the operation of public services and a statutory duty is imposed on certain public bodies to consult local authorities. The Department of the Environment was the planning authority for the whole of Northern Ireland but it had to consult district councils on all individual planning applications. If a council was unhappy about a recommendation it could request either a review of the department’s recommendation or a deferment for further investigation. It was the planning authority that had the final say and councillors remained in a weak position and have frequently been at odds with the Department of the Environment over planning issues. The department was obliged to consult with district councils in the preparation of area development plans or on any subsequent alterations. A study by John (1993) indicated that a number of councillors believed central government did take their views on planning into account. Government departments also had to consult with local councils concerning roads, conservation, sewerage and water services: for example, each divisional water manager presented a capital works programme each year to local councils. This gave councillors an opportunity to express their views, although real power rests very much with the central government administration. District councils had to be consulted formally at least once a year by the NIHE, about the housing plan or programmes of work for the area. NIHE district officials also established liaison committees to facilitate regular contact at district level with local councils. The Arts Council consulted regularly with district councils through the formal mechanism of a Forum for Local Government and the Arts, which was set up in 1994. This Forum met in plenary session three times a year and organised an annual conference. A performance review did demonstrate an important role for the Forum as a conduit for consultation between local government and the Arts Council although it found its input into policy development tended to be ad hoc (Northern Ireland Arts Council, 2006). Police liaison committees were set up in some district councils as a channel of consultation with local senior police officers. However, nationalist political representatives originally did not participate in the scheme and overall the liaison committees did not make much impact but they were the forerunner of the policing partnership boards introduced following the Patten reforms and eventually accepted in all areas. Some councils have become well organised for consultation purposes and see themselves as having a degree of influence on decision-making affecting their local areas. Spence (1997) argued ‘the consultative role of councils has brought benefits in terms of informing the managers of the regional services about local

BDR07.indd 127

3/23/2009 4:12:08 PM

128

Direct rule and the governance of Northern Ireland

perceptions of need’. However, Hayes (1997b) found that generally councils were less than pleased with the adequacy of their consultative role due to the apparent reluctance of government departments to take the advice seriously or to act on it consistently. Lobbying role While consultation may imply a rather passive role for councils, they can often take a more pro-active or lobbying role in promoting or defending what they see as the interests of their local area. This activity normally relates to services that fall outside the remit of local government. Probably the most high-profile remit activity has related to campaigning to prevent proposed hospital closures or changes in status. The proposal to have a single acute hospital serving Fermanagh and Tyrone, meaning the loss of acute status to Omagh Hospital or the Erne Hospital in Enniskillen, led to a major lobbying campaign in which District Councils had a leading role. Omagh District Council led a ‘Hospital Campaign for the Rural West’ which involved mounting legal challenges to the Department’s final decision while the campaigning Fermanagh Hospital Group was underpinned by Fermanagh District Council. There was a similar major campaign in relation to Down Hospital in Downpatrick with Down District Council in a leading role and this led to some key services being retained by the hospital. More routinely, councils lobbied direct rule ministers extensively on transport issues, roads, railways, airports, as well as planning and economic investment issues. Other campaigns have addressed specific issues in the local council area, for example a proposal to open a lignite mine in the Ballymoney Council area. Local government and partnerships A major development in the 1990s was the growth of partnerships involving local authorities. In these arrangements the local council participated in a partnership with other bodies from the voluntary and community sector, the rest of the statutory sector or the private sector in order to provide a service or fund a project. One of the major factors which encouraged the growth of partnerships was the availability of special funding mainly from the EU. Local government partnerships evolved in two broad areas, as a requirement under the EU Special Support Programme for Peace and Reconciliation and linked to economic development strategies. In 1995–96 district partnerships were

BDR07.indd 128

3/23/2009 4:12:08 PM

The role of local government

129

established in each council area funded by the EU Peace programme to promote peace and reconciliation through support for projects in: urban and rural regeneration, job creation, promotion of social exclusion, economic investment and industrial development. The membership of each district partnership consisted of one-third local government councillors, one-third representatives of the voluntary/community sector and one-third representatives from trade unions, business and local statutory interests. With the EU Peace II programme the district partnerships were replaced by local strategic partnerships based on the twenty-six district councils and containing as two equal strands, local government and the main statutory bodies plus the four pillars of the social partners – private sector, trade unions, voluntary and community sector and agricultural and rural development. Local strategic partnerships had more authority than the district partnerships to deliver local economic initiatives, improve the economic, social and environmental conditions in the local area and contribute to sustainable development. Partnerships have also developed in other Northern Ireland wide areas of activity and include, for example, a local government partnership on travellers’ issues, and a tourism development taskforce. The formation of district policing partnerships in 2003 under the ‘Patten’ police reforms gave district councils a major role. District policing partnerships coincide with local council areas and consist of a partnership of ten elected councillors and nine independent nominated members representing the local area. Their function is to hold consultation with local communities, identify local policing issues, monitor police performance and assist in crime prevention. Sinn Fein councillors refused to participate in the partnerships until 2007. They have been described as ‘autonomous bodies within local councils’ (McKernan and Fagan, 2003: 236). District policing partnership managers operate from district councils and they work closely with the community safety officers that most councils have now appointed. Separate community safety partnerships involve councils with local representatives of community groups, local forums and statutory bodies. The development of partnerships as a form of local governance has allowed district councils to expand their activities and interests beyond their narrow legal range of functions. The partnership agenda was imported as a key component of New Labour’s modernisation agenda and as part of the EU’s social model. It has allowed councils to assume more important roles without associating this with independent service provision and has engaged councils with civil society and a wide range of social partners (Knox, 2003).

BDR07.indd 129

3/23/2009 4:12:08 PM

130

Direct rule and the governance of Northern Ireland Local government finance

Before the reorganisation of 1972–73 local authorities had been funded by a mix similar to that existing in Great Britain of rates, central government grants and miscellaneous receipts. Rates on occupiers of property were collected directly by councils, but there was extensive de-rating covering agricultural buildings, industrial properties and properties used for charitable purposes. Government grants to meet expenditure on major services such as education, housing and social services were the main source of income and just before reorganisation in 1969–70 government grants contributed 62 per cent of income compared to 28 per cent from rates and 10 per cent from miscellaneous receipts. The Macrory Report on reorganisation made recommendations for change particularly in the light of the transfer to central government of a range of services. The main recommendation was that there should be one uniform rate for the whole of Northern Ireland which would be struck centrally, and, in addition, each district council would strike a rate for the local services under its control. Consequently, a new rating system set up in 1972 consisted of two elements. Firstly, a regional rate, set at a uniform level by the Department of Finance and Personnel as a contribution to the cost of the services transferred to central government agencies and this rate revenue is pooled with Northern Ireland’s general revenue to finance the cost of all Northern Ireland Government departments. In essence the regional rate is a central government tax. The second component is the district rate passed by each district council to meet their own expenditure on services. Even though the district rate does allow council discretion over expenditure most councils take a fairly conservative approach to keep district rate increases down. The district and regional rates are collected together by central government so individual rate payers were not very aware of the dual system. The whole concept of a regional rate remained controversial. It proved impossible to determine a regional rate by reference to estimates of expenditure for services which had transferred to government departments and at its inception the regional rate was structured by reference to parity with comparable areas in Britain, for example, Humberside. It soon became apparent that this was not entirely appropriate and needs in Northern Ireland were different. In 1978 a different approach was attempted to determine the total Northern Ireland rates bill by simple annual percentage increases, similar to the overall average increases in England and Wales. This principle was adopted but after a few years this became unworkable mainly because so many adjustments to the English and Welsh average had to be made. In 1983 the

BDR07.indd 130

3/23/2009 4:12:08 PM

The role of local government

131

Department of Finance and Personnel suggested a new methodology, involving, firstly, identifying and totalling expenditure in Northern Ireland on those services which are provided by local authorities in England and Wales and taking account of the notional grants that Northern Ireland would be entitled to if it were regarded as a local authority in England and Wales. It was calculated in 1981–88 that some 86 per cent of rate relevant expenditure would be met by a notional grant with the remaining 14 per cent met by ratepayers (DFP, 1983b). This system came into operation in 1983–84 and for 1997/98 took account of government rate support calculated at 84 per cent. The proportion of the rate which goes to the district council covers the majority of their income, around 62 per cent with some 26 per cent from fees and charges and a further 12 per cent from central government grants. Councils received from government a general exchequer grant as a contribution to the overall net revenue costs of council services. This general grant consisted of two elements, one element to compensate for loss of income because of industrial de-rating and a resources element which provides a degree of equalisation on the basis of need. Councils also raised money by charging for services such as leisure centres and catering franchise but the significance of fees and charges varied from council to council: for example, Castlereagh council has operated a profitable ice-rink. In addition, councils received from central government specific grants for earmarked purposes, for example, energy efficiency grants, clean air grants and community relations grants. Central government also provides extensive grant funding for capital projects. Grants of 75 per cent were available to district councils for approved capital expenditure on access to the countryside, historic buildings, environmental schemes and sites for travellers. Councils could also borrow money for capital expenditure but they were obliged to obtain loan sanction from government. Expenditure by the twenty-six district councils has accounted for only around 3–4 per cent of public expenditure in Northern Ireland. By contrast, local authority expenditure in England accounted for some 27 per cent and in Scotland 40 per cent of all public expenditure, reflecting the wide differences in functions. The four items that dominated local government expenditure in Northern Ireland were: refuse collection and disposal, sports and leisure, recreation and parks, and street cleansing. During the time of direct rule local government finance in Britain underwent a radical overhaul. The first proposal in Britain was for a community charge or poll tax which all adults would pay. This was

BDR07.indd 131

3/23/2009 4:12:08 PM

132

Direct rule and the governance of Northern Ireland

introduced in Britain in 1989/90 but the view of the British Government was that as district councils only accounted a small percentage of spending on services the problems of overspending and accountability which led to the introduction of the tax in Britain did not arise in Northern Ireland. The new community charge was so unpopular in Britain that it was quickly replaced by a new local government tax, the council tax in 1993. This was basically a property tax based on the value of properties but again this new local government tax was not extended to Northern Ireland. Consequently, despite the principle of parity of taxation and the convergence of so much legislation, Northern Ireland remained the only area of the United Kingdom or Ireland where the old local tax in the form of rates remained. A review of rating policy largely coincided with the introduction of the new devolved institutions in 1999, although it was likely to have proceeded irrespective of devolution. The direct rule administration had a strong interest in the size and use of this regional source of revenue. A consultation process on the review of rating policy was launched in 2000 and the policy paper The Reform of the Domestic Rating System in Northern Ireland was published in 2004 (DFP, 2004b). The restored direct rule administration came up with proposals quite different from council tax in key respects. It was proposed that in future domestic rate bills would be based on an assessment of each property’s capital value instead of rental or net annual value but without the banding system which operated for council tax in Britain. The government also announced that industrial de-rating would be phased out which would bring Northern Ireland into line with England, Wales and Scotland. A reason given for the change was that the existing system did not take account of people’s ability to pay, and a further major factor was that average rate payments in Northern Ireland were considerably lower than Great Britain (DFP, 2002). This principle was taken up again with the renewal of direct rule when rate increases which would follow the introduction of the new rating system were justified by the quotation of figures showing the average rates and water bill in Northern Ireland to be half that in Britain (Hain, 2006). The main proposals for a change in the rating system were set out in the 2004 policy paper and subsequent legislation in 2005–06. Key aspects differed from local taxation in Britain, specifically: the use of individual capital values rather than banding, no maximum cap on capital values, regular revaluations, no 25 per cent discount for single adult occupiers, no disregard category of vulnerable occupier and no discount on second homes (Birrell, 2007c). It seemed that with the resumption of direct rule the government wished to raise more money locally to pay for public services, to bring rate bills more into line with

BDR07.indd 132

3/23/2009 4:12:08 PM

The role of local government

133

Britain and to help fund new investment. It was also possible that the NIO ministers recognised the unfairness and regressive nature of council tax in Great Britain and with no electoral consequences in Northern Ireland they were willing to make local taxation more progressive. Governments in London and in Edinburgh refused to do this, despite recommendations from the independent Lyons Inquiry and Burt Review at that time. Such an explanation was undermined when the British Government, in the St Andrews Agreement, made a commitment to introduce a cap on capital values and further rates relief in order to provide incentives for a political agreement. This suggests that political opportunism was determining changes in local government taxation rather then more objective considerations. One of the first actions of the restored devolved administration was to review the direct rule proposals which led to relatively small changes, in imposing a cap and further eligibility for reliefs (DFP, 2008b).

Central government control During direct rule the ‘central’ department for district councils in Northern Ireland was the Department of the Environment (DoE). This was not a major function and a small local government division of the DoE was responsible for overall policy legislation and finance. Originally, the local government division was seen largely as a ‘grant aiding’ body but by the 1990s, due to an increase in policy initiatives, its role expanded. The department had to develop a distinct policy unit to deal with such matters as ministerial correspondence, parliamentary questions and ministerial visits. The Local Government Act 1972 gave the department a range of statutory powers. These included directing a council, failing to discharge any of its functions, to take actions as specified and ultimately it could exercise the functions of a council. This eventually became a reality during the campaign by unionist-controlled councils against the Anglo-Irish Agreement after 1985. Eighteen councils took part in a campaign of suspending meetings and refused to set rates, award contracts or release grants. The direct rule administration took action to ensure the maintenance of essential services and in 1986 passed special legislation to empower the DoE to appoint a commissioner to ensure normal council functions were carried out. A commissioner was appointed for Belfast City Council to authorise certain actions for a period before the councillors’ protest petered out. More routinely, the DoE guides and directs local councils through circulars and advice mainly on technical, administrative and staffing matters. A

BDR07.indd 133

3/23/2009 4:12:08 PM

134

Direct rule and the governance of Northern Ireland

further measure of control is through local government audit which aims to ensure that councils exercise proper stewardship over ratepayers and taxpayers monies. In 1980 the original Local Government Audit Office functions were transferred to the main Northern Ireland Audit Office. Since 2006 the local government audits bring together comparative information about councils and the standards of service they provide. The auditor has powers to reject any expenditure considered not to have been lawfully incurred and to surcharge any individuals responsible for losses due to wilful misconduct and there have been several cases of the use of these powers. The Audit Office has also carried out a number of specialist studies including reviews of absenteeism which have showed higher rates in Northern Ireland than in England and Wales (NIAO, 2007b). The Audit Office has had a particular role in promoting competitiveness and value for money in local government. Compulsory competitive tendering was introduced in 1992 following its introduction in Britain to promote open competition between existing council workforces and private contractors. The first three services to be put out to tender were refuse collection, street cleansing and grounds maintenance and all the contracts with one exception were awarded to councils’ own direct service organisations. The major benefit was probably to stimulate councils to improve the efficiency of their own services. In 1998 the decision was made to introduce the Best Value initiative to Northern Ireland. This was founded on twelve principles (developed in Great Britain) and designed to improve the quality and efficiency of local services with a programme of continuous improvement. Most councils adopted the practice of publishing an annual Best Value report on their performance against targets and regularly undertook service reviews using Best Value principles. The local government auditor reports publicly on whether Best Value has been achieved and reports on progress against agreed plans. Each year the Audit Office published comparable statistics for each of the twenty-six councils with a range of performance indicators for each service. Central government has no power to issue directions in relation to continuous improvement but the DoE established a Best Value steering group which produced guidance and toolkits. A range of staffing issues in local government are dealt with centrally. A Local Government Staff Commission for Northern Ireland was created as part of the local government reorganisation in 1972. The Commission’s main functions cover; chief executive recruitment, promoting good practice in recruitment, advising councils on training and development needs, advising the local government training group,

BDR07.indd 134

3/23/2009 4:12:08 PM

The role of local government

135

promoting employee relations and career development and assisting with the implementation of organisational reviews and grievance procedures (Local Government Staff Commission, 1997). The Staff Commission has also looked at the training and development needs of elected councillors. In 1992 its powers were extended to monitor and give advice on fair employment practices of councils and subsequently equality of opportunity practices and diversity agendas in councils. The Staff Commission has a general duty to enhance local government but its existence reflected both the limited size of local government and continuing government concern with fair employment practices.

Politics and local government Throughout the operation of direct rule local government functioned as a major forum for the expression of the views of the electorate and local government was the major platform for local political representation outside the Westminster Parliament. Despite local government operating with limited functions its political role was important and expanded over time (Connolly, 1996). Local government elections took place under the single transferable (STV) system of proportional representation introduced in 1972. The party political composition of councils reflects the PR electoral system, which makes it difficult for one party to have an overall majority. Few of the twenty-six councils were under the majority control of one party and following the 2001 elections no council had single party control. The division of the main blocks of votes into two competitive groups, Official Unionists and Democratic Unionists, and SDLP and Sinn Fein, also contributed to this scenario, as set out in Table 7.2. There has been a significant increase in the number of councils under nationalist/republican control and one of the biggest changes in the local government political landscape was the loss of unionist control of Belfast City Council in 1997. Table 7.3 indicates how local election results mainly reflect Northern Ireland political issues rather than local issues. There is one notable exception, as some 12 per cent of councillors are independents, i.e. they do not stand as a representative of a political party and a few councils, for example Moyle, have a tradition of this. Political divisions in local government have become acute at certain times and within certain councils. There was a period of real difficulty in 1985 when local government became the centre of a unionist campaign against the Anglo-Irish Agreement. Councils refused to consider business and spent money on campaigns against the Agreement.

BDR07.indd 135

3/23/2009 4:12:08 PM

BDR07.indd 136

Table 7.2 Party control of councils Year

One-party majority UUP DUP SDLP SF Alliance Unionist majority Nationalist majority Multi-party/no majority Source: ARK, 2005.

1973

1977

1981

1985

1989

1993

1997

2001

2005

10 (10) – – – – 7 5 4

4 (3) (1) – – – 14 5 3

5 (1) (2) (2) – – 15 2 4

2 (1) (1)

5 (2) (1) (2) – – 14 4 3

5 (3) – (2) – – 13 4 4

7 (4) – (3) – – 13 8 5

0 – – – – – 12 11 3

3 – 3 – – – 12 9 2

– – 15 7 2

3/23/2009 4:12:08 PM

The role of local government

137

Table 7.3 Councillors by party Year Party

1973

1977

1981

1985

1989

1993

1997

2001

2005

UUP DUP SDLP Alliance SF Other Total

216 21 83 63 – 143 526

178 74 113 70 – 36 526

168 137 103 39 – 91 526

190 103 101 34 59 40 566

194 110 121 8 43 60 566

197 103 127 44 51 60 582

185 91 120 41 74 71 582

154 131 117 28 108 44 592

115 182 101 30 126 28 582

Source: ARK, 2005.

Councils eventually went back to normal business but the direct rule government announced its intention to take action to prevent future political disruption. A new code of conduct was introduced which prohibited the use of council resources to promote a party line mirroring provisions in England and Wales. Further action was taken through the Elected Authorities (NI) Act 1989 requiring all candidates for election to sign a declaration to the effect that, if elected, they would not support terrorism or assist proscribed organisations. Throughout the period of direct rule there was frequent criticism of mainly unionistcontrolled councils for attempting to exclude opposition councillors, sometimes nationalist councillors in general, sometimes only Sinn Fein councillors. This arose in a number of contexts mainly in relation to chairs and vice-chairs of councils, chairs of council committees and the nomination of representatives to boards and other external bodies. In 1978 the SDLP claimed they had only 15 per cent of all board places whereas the Official Unionist Party had 67 per cent. This position changed somewhat with more equalisation in the numbers of the four main political parties but also with an increasing acceptance of the principle of power sharing. Power sharing means, in effect, the rotation of chairships/mayors and deputy chairships/mayors between the parties across the sectarian divide, sharing out committee chairships and committee seats in proportion to party strength and sharing nominations to external bodies. The SDLP and Alliance parties made power sharing party policy and the power sharing arrangement in Dungannon council in 1988 reflected the SDLP’s role in holding the balance of power. This trend continued after the 1989 local government elections, encouraged also by the new community relations initiative in local government. By

BDR07.indd 137

3/23/2009 4:12:08 PM

138

Direct rule and the governance of Northern Ireland

1993 a total of twelve district councils were effectively engaged in power sharing including the high-profile Derry City Council, largely led by agreement between the SDLP and Official Unionists. In a study of power sharing in councils Knox (1998) suggested that in nationalistcontrolled councils power sharing was likely to continue but in unionist-controlled councils, while some had moved to a commitment to power sharing, for example Craigavon, others have not, for example, Coleraine and Lisburn. The election of more DUP and Sinn Fein councillors also put power sharing arrangements under pressure. The power sharing that councils did set up was achieved by voluntary agreements and not by any statutory requirements of the type set up for the establishment of devolved government in 1999. By 2002/03 eighteen councils were operating some form of power sharing arrangement (Knox, 2003: 19). The reform of local government The reform of local government was initiated as part of the devolved Executive’s Programme for Government on the basis that it had inherited from the previous thirty years a wide range of public bodies but it wanted to ensure what the organisations that deliver key services including local government are more coherent (NIE, 2001a). The terms of reference and parameters of the Review of Public Administration (RPA) included all twenty-six district councils. With the renewal of direct rule in 2002 the Secretary of State announced the continuation of the RPA with the same terms of reference. The first consultation document set out five general alternative models for the way ahead and the construction of the models underlined that local government was to play an important role in the debate, despite its small size. One of these models set out an enhanced role and a second a very comprehensive role for local government (RPA, 2003a: 28–9) with functions transferred from central government and public bodies. A further consultation document appeared which, rather than returning to these models, put forward a two-tier model of public administration with a regional tier of authority and a sub-regional tier which would have at its core local government. In fact the consultation document (RPA, 2005: 3) envisaged local government as the bedrock of a reformed and streamlined system of public administration. Local government came to dominate the RPA process to such an extent that concern was expressed that it had become a review of local government rather than public administration (Knox and Carmichael, 2006). A number of factors contributed to this, the exclusion of central government departments, the political

BDR07.indd 138

3/23/2009 4:12:09 PM

The role of local government

139

salience of local government, the treatment of local government as a separate sector and the limited discussion of quangos or executive agencies (Birrell, 2007d). Also, in the consultation response to the five models there was a widespread preference for either enhanced or strong local government with fewer public bodies or quangos. The Further Consultation paper set out a range of functions that could be added to the existing functions, including planning, urban and rural regeneration, rural development and community planning and possibly minor roads, libraries and youth services, hardly a major enhancement in comparison to Great Britain. It went on to describe three options for the number of councils, seven, eleven or fifteen to replace twenty-six. In terms of the arguments set out, the Further Consultation document very much favoured the seven-council model as the basis for strong local government on the grounds of coterminosity, efficiency, economics of scale and prosperity wealth base. There was actually no final report of the Review of Public Administration. Instead the NIO ministers announced the outcome in November 2005. The key decisions were put in the context of two overall rationales, that Northern Ireland was over-governed and had high levels of public expenditure. The reforms announced were presented as being based on four guiding principles: firstly, subsidiarity, that the delivery services and the exercise of power should be as close to the people as possible; secondly, equality and good relations; thirdly, common boundaries to deliver joined-up services; and fourthly, strong local government. The proposal was for seven councils to replace the twenty-six and the enhanced powers largely covered those suggested by the Further Consultation document, including community planning, planning control, local roads and urban and rural regeneration (see Table 7.4). More controversial was the suggestion that a range of housing management functions might transfer from the Housing Executive. Apart from proposals to restructure and streamline health and education administration local government again dominated the government announcement. The government did recognise the need to have checks and balances to protect minority interests in councils but this was to be the subject of further research and discussion. Definite decisions were announced, to have a maximum of fifty councillors per council, later amended to sixty, and an end to the dual mandate of being a councillor and an assembly member. It was anticipated that the new councils might increase their proportion of public expenditure from 4 per cent to 10 per cent. In spite of an enhanced role, the local government system was hardly changing into strong local government and was still left without what would be considered major local government

BDR07.indd 139

3/23/2009 4:12:09 PM

140

Direct rule and the governance of Northern Ireland

Table 7.4 Categories of functions in new councils Continuing

Enhanced

New

Future transfer

Arts and Building regulation culture Community relations Heritage conservation Sports Local tourism

Community planning Planning control Local events

Emergency planning

Housing Local roads management Well-being Rural development

Human resources

Environment matters

Fishery harbours Environmental health Museums Local economic Urban and rural Leisure and regeneration development recreation Community services Parks and cemeteries Community safety Waste management Registration and licensing

Traveller site provision

Source: RPA, 2005.

functions. In practice, the proposals were not compatible with the four guiding principles. The proposed changes were hardly conducive to facilitating localised decision-making and delivery of major services. From being over-governed locally, Northern Ireland would move to being under-governed. A briefing paper for the RPA (Knox, 2002) showed that the average population of councils in Britain was 128,000 which would imply some thirteen councils for Northern Ireland. The average population of councils in the Republic of Ireland was 33,000. The declared primary rationale of common boundaries was not really achieved, given the single centralised education authority, a centralised health authority and a mismatch of five health and social care trusts with seven new councils. The proposal for only seven councils did not seem likely to improve community relations, three with six councils likely to split between three with a unionist majority and with a nationalist/republican majority, which raised concerns for the treatment of minorities and the need for protective checks and balances. The proposals by the direct rule minister for the reform of local government received a largely hostile reception. The Northern Ireland Local Government Association (NILGA) was critical of the continuing

BDR07.indd 140

3/23/2009 4:12:09 PM

The role of local government

141

lack of powers and urged the transfer of youth services, libraries, housing functions, regeneration and greater planning and local economic development powers. Of the main political parties, only Sinn Fein was happy with the proposal for seven councils. Subsequently, the NIO attempted to involve local councillors in the implementation process and the work of a local government taskforce and its subcommittees on such areas as internal governance, central/local relations, capacity building and community planning. However, the restoration of devolution meant that the whole reform outcome was reviewed. There will be eleven councils but the proposed functions will not change much, confirming the new functions of planning control, urban regeneration but specifying only very limited housing functions, and only local ‘public realm’ aspects of local roads functions would transfer, i.e., streetscaping and street lighting. Northern Ireland will thus continue with a very limited form of local government. Local government and direct rule Local government occupied a somewhat unusual role under direct rule. Its significance lay mainly in its political representation and lobbying role in the absence of a regional tier of government. Councils and councillors had a role as a point of contact for the population as an alternative to approaching MPs with constituency concerns. Local government also had a training and recruitment function for local politicians in the absence of a devolved assembly. This is clearly demonstrated by the fact that some 96 per cent of elected councillors represent political parties, and in 2003, 69 out of the 108 assembly members were also local councillors. With direct rule in operation, local government was a major focus of political debate, the exercise of political power and electioneering. It was also significant that local government was a forum for the gradual development of power sharing arrangements between politicians. The growth of sustainable patterns of political cooperation in many councils became a basis for the development and viability of inter-party cooperation at the level of devolved government. The growth of cross-border cooperation in local government also served to make wider cross-border institutional arrangements more acceptable. It is more difficult to evaluate the relationship of direct-rule administrations to the local government system as there appeared little attempt to mould any special relationship or give local government any significant role related to the operation of direct rule. The question can be asked if the local government system had the potential to counter act some of the deficiencies in direct rule as a system of governance. NIO

BDR07.indd 141

3/23/2009 4:12:09 PM

142

Direct rule and the governance of Northern Ireland

ministers only intervened to deal with a few political crises in the system and they appeared content to endorse and preside over marginal increases in the functions plus the development of partnership activities. Little of the British local government modernisation agenda centred on the new localism, partnership working and improving local leadership and management was introduced. It was not until 2005 that a direct rule administration took an interest in changing the local government structure. A major motive was based on the assertion that Northern Ireland was over-governed and over administered and savings could be made. Given the actual RPA outcome it is in fact difficult to regard as valid claims by both direct rule and devolved ministers to be setting up ‘strong dynamic local government’. During the RPA process there was no analysis of how an appropriate system of local government should vary between direct rule and devolution.

BDR07.indd 142

3/23/2009 4:12:09 PM

8

Finance and public expenditure

Prior to direct rule, Northern Ireland operated with financial arrangements laid down in the original Government of Ireland Act, 1920 and in a number of subsequent special agreements. All major items of taxation including income tax were levied and collected by the United Kingdom Government with Northern Ireland’s share of tax revenue then ‘handed back’ to the Stormont Government for devolved services. Originally an ‘Imperial Contribution’ was deducted, as Northern Ireland’s contribution to the cost of defence and foreign affairs but this sum almost disappeared over the years and in 1972–73 the payment was only £500,000. There were also certain other local sources of revenue from transferred taxes, for example, car-tax and rates and these accounted for 10 per cent of revenue. The general principle governing expenditure and taxation has been parity of services and taxation with the rest of the United Kingdom (NIO, 1972a). With the development of the welfare state a series of agreements were entered into, supplementing Northern Ireland’s revenue in order to maintain parity of social security and health service provision with Great Britain. In 1948 the Social Services Agreement, a Health Services Agreement and a National Insurance Agreement put the principle into practice. Parity in its simplest form meant that social security payments were exactly the same or in the case of other services it meant that the same standards of service. The principle could be interpreted differently (NIO, 1974), for example, it could mean the same rate of Government grant, adopting the same scale unit of costs, funding Northern Ireland expenditure on a service on a proportionate population basis to the corresponding expenditure in Great Britain or in adopting the same policy or quality objective. The maintenance of parity gave rise to considerable imbalances between Northern Ireland revenue and expenditure. As expenditure programmes grew, particularly with the development of social services, it became increasingly necessary over the years to supplement Northern Ireland’s revenue with special contributions from

BDR08.indd 143

3/23/2009 4:12:28 PM

144

Direct rule and the governance of Northern Ireland

the United Kingdom Government. Also parity in taxation produced lower tax revenue per head in Northern Ireland than in Great Britain. By the early 1970s the expenditure of Northern Ireland Government departments exceeded Northern Ireland’s share of United Kingdom taxation plus local taxation and the revenue from the special financial agreements. It proved necessary to reduce the gap between revenue and expenditure by a direct transfer of funds from the United Kingdom Treasury in the form of a number of subventions towards the general expenditure of Northern Ireland. Public expenditure really operated on an expenditure basis, i.e. money was provided to the extent necessary to pay for approved programmes of expenditure. Direct rule brought some changes in the fi nancial structure although the overall basis of the system remained similar (see Table 8.1). Thus a separate revenue account for Northern Ireland continued to exist under direct rule. Virtually all taxation became the responsibility of the United Kingdom Government. The 1973 Act required the method of calculating the Northern Ireland share of each tax to be presented in regulations either on a proportional basis or in full amount collections. This included VAT, corporation tax, customs and excise duties, motor vehicle tax as well as income tax and even includes Northern Ireland’s share of oil revenues. The 1973 Act also abolished the Joint Exchequer Board which had supervised the various payments between Northern Ireland and Great Britain. The ‘Imperial Contribution’ was abolished

Table 8.1 Public income to Northern Ireland Consolidated Fund 1972–73 Residuary share of reserved taxes Receipts from UK Government Health services agreement Social services payments Ad-hoc-grant Other revenues Transferred tax revenue Transferred non-tax Total

£ millions 272

25 45 51 13 40 54 500

1992–93 Share of UK taxes Receipts from UK Government Grant-in-aid Regional and district rates Other revenues

Total

£ millions 2,885

2,185 206

24

5,300

Sources: Ministry of Finance, 1972 and DFP, 1993a.

BDR08.indd 144

3/23/2009 4:12:28 PM

Finance and public expenditure

145

Table 8.2 Example of attributed share of UK taxes, 1992–93 Receipts

Million

Inland Revenue Customs and Excise Vehicle Excise Duties Total Reductions Collection Costs Share of UK payment to EC Total Final amount of attributed share of UK tax

1,626 1,270 68 2,964 47 107 154 2,810

Source: DFP (1993a).

although certain costs were deducted by the United Kingdom government from the revenue they collect. The main item of public income remained the attributed share of UK taxes, less the cost of collection and other appropriate costs, mainly Northern Ireland’s share of UK payments to the European Commission (EC). The cost of collecting taxes in Northern Ireland was set at 2.1 per cent of the gross yield of the tax. An example of the method of calculating Northern Ireland’s attributed share of taxation is given in Table 8.2. The Consolidated Fund for Northern Ireland is the account into which the attributed share taxes and other non tax receipts were paid plus a grant-in-aid from the UK Government, to meet the difference between income and expenditure. UK subvention to Northern Ireland The most important change with direct rule was the abolition of almost all the special arrangements for giving financial assistance and their replacement with a general grant-in-aid from the Secretary of State to the Northern Ireland Consolidated Fund. This grant-in-aid was estimated annually in relation to the deficiencies in Northern Ireland’s revenue from taxation, rates and non-tax sources. In 1983 the Permanent Secretary of the Department of Finance and Personnel described the grant-in-aid as essentially a residual or balancing item in the accounts (Northern Ireland Assembly: NIA, 1983a). It was part of the income of the Northern Ireland Consolidated Fund and it was not attributable to particular items of expenditure. It simply enabled the books to be balanced. This is illustrated in Table 8.3. In twenty years the grant-in-

BDR08.indd 145

3/23/2009 4:12:28 PM

146

Direct rule and the governance of Northern Ireland Table 8.3 Role of grant-in-aid in public income, 1993–94 £ millions Attributed share of UK taxes Regional and district rate Other revenues Grant-in-aid Total public income

3,129 206 288 2,391 6,014

Source: DFP, (1994).

aid had grown to this level from £51 million for 1972–73, the year of its introduction. The grant-in-aid increased dramatically in the early 1970s from 13 per cent of total public income to 35 per cent in 1978–79, was at a lower level throughout the 1980s at around 25 per cent but increased to near 40 per cent by the early 1990s (Table 8.3). It can be noted in 1993–94 some 50 per cent of public income was accounted for by the attributed share of UK taxation. There were some further transfers from the British Government which are not paid into the Northern Ireland Consolidated Fund. The Northern Ireland National Insurance Fund was financed on a pay as you go basis from contributions but, in addition, financial adjustments were made between Great Britain and Northern Ireland. These financial adjustments were consequential upon the arrangements made for coordinating the system of insurance established in the two countries to ensure they operate as a single system. The balance in the two funds is adjusted and in 2006–07 there was a transfer of £630 million from the Great Britain National Insurance Fund. The Northern Ireland Redundancy Fund operated similarly as single system with adjustments if required until its merger into the Northern Ireland National Insurance Fund in 1991. The official subvention, as shown in Table 8.4, increased in the five years to 1993 to 1994 and the grant-in-aid itself rose to represent between 40 per cent and 44 per cent of total public income. The additional cost of the army’s task in Northern Ireland at the time was not part of the subvention and therefore not recorded in total public expenditure figures. These extra costs of the army in Northern Ireland was estimated at £542 million for 1994–95. This level of subvention meant a high level of public expenditure and a large public sector, justified in this period of direct rule, to promote peace and stability and to counter

BDR08.indd 146

3/23/2009 4:12:28 PM

Finance and public expenditure

147

Table 8.4 Subvention to Northern Ireland, 1990–95 NI subvention figures 1990–95 1990/91 1991/92 1992/93 1993/94 1994/95

Subvention as % of NI expenditure

£2.00 bn £2.40 bn £3.15 bn £3.40 bn £2.76 bn

34 38 45 45 35

Source: NIIS, 1996.

disadvantage. The subvention declined in the late 1990s, which reflected an increase in net attributed tax revenue of almost £600 million. Hutchinson (1998) calculated the proportion of public expenditure in Northern Ireland, financed by locally generated revenue, was on average 65 per cent between 1980 and 1995 and that in the 1990s the level of ‘full’ subvention was equivalent to almost £2,300 per head of population in Northern Ireland. Gibson (1996) argued that the subvention gives an indication rather than an accurate picture of dependence as the accounts are incomplete and because Britain also provides Northern Ireland with borrowed monies. It has also been noted (Barnett and Hutchinson, 1998) that the size of the Northern Ireland subvention is not atypical by international standards for systems of devolved government. By the period of direct rule from 2002 the subvention had increased again, identified in 2005 as some £5 billion a year as the amount by which total public spending exceeded taxes and revenues collected (DFP, 2005) and representing some 20 to 25 per cent of Northern Ireland’s GDP. The Barnett formula Changes in the level of the Northern Ireland’s block grant allocation are determined through the application of a population based formula. From 1980 the Northern Ireland block grant was adjusted in line with the formula called after a former Chief Secretary to the Treasury and introduced in 1978 for Scotland and Wales. The Barnett formula provided that when changes in expenditure in England took place on comparable programmes in Scotland and Wales there would be a spending allocation to the territorial departments calculated on a population basis. This non-statutory arrangement was introduced into Northern Ireland although based on the share of the total UK population

BDR08.indd 147

3/23/2009 4:12:29 PM

148

Direct rule and the governance of Northern Ireland

rather than of Great Britain, as was the case for Scotland and Wales. If the budget of a UK department is increased for services in England and there is total comparability of services in Northern Ireland then the spending allocation for Northern Ireland is determined on the basis of the Northern Ireland population as a percentage of the English population plus a comparability percentage reflecting the extent to which a service is devolved. The Barnett formula did not determine the total allocation to Northern Ireland as the formula only applied to expenditure managed by the Secretary of State. This is a large component of expenditure, but social security and NIO functions are outside the scope of the Barnett formula. The Barnett formula determined changes in the block grant allocations but did not determine the allocation to individual services and the Secretary of State had discretion in making allocations between services (other than social security) in responding to local needs and priorities. One original problem was that the population basis was only changed once in the first twenty years (Twigger, 1998), but from 1999 the population base has been updated annually. Northern Ireland’s share has risen from 2.75 per cent to 2.93 per cent in 1999 but from 2000 the percentage share applied was Northern Ireland’s population as a proportion of England (3.42 per cent) except where the programme covers more than England (Treasury, 2007a). In practice the formula appears to have benefited Northern Ireland over the years and identifiable public expenditure per head in Northern Ireland has remained higher than any other region of the UK. In 1998 spending in Scotland was some 18 per cent above the UK average, Wales 13 per cent higher but Northern Ireland 36 per cent (Hutchinson, 1998: 4). In 2005 it was 29 per cent higher than the overall average, in comparison to 18 per cent in Scotland and 11 per cent in Wale’s (DFP, 2005). However by 2007/08 Northern Ireland and Scotland were both showing 21 per cent above the UK average spend per head and Wales only 8 per cent (McLean et al. 2008). It is difficult to determine the exact impact of the Barnett formula. Bloomfield (1996: 140) argues that the ability of such a system to meet local needs adequately depends upon the pre-existing baseline and the extent to which growth areas in national expenditure affect local populations. Thain and Wright (1995: 316) argue that gains under the formula will be offset by some losses and Heald (1994) refers to the impact of ‘formula bypass’ resulting from additional expenditure allocations outside the formula, for example, if there is no equivalent English service. It has been argued that the fact that the formula has survived so long suggests it must have some beneficial qualities and produced an acceptable distribution of funds (Barnett and Hutchinson, 1998:

BDR08.indd 148

3/23/2009 4:12:29 PM

Finance and public expenditure

149

52). Heald (2003: 66) suggests that both Scotland and Northern Ireland have fared well out of the Barnett formula arrangements. However, the former Finance Minister for the devolved administration, speaking in 2004, called the Barnett formula a chain round our necks, saying it was not transparent, lacked a clear needs basis and stopped the investment of money where it was needed (Farren, 2004). Shortly before the suspension of the executive in 2002 he had initiated a series of needs-based assessments across government departments, as a basis to criticise the formula. Heald (2003: 69), however, argued that a formal needs assessment may not work to Northern Ireland’s advantage. Parry (2005: 59) notes that the formula provided Northern Ireland with a dividend from the Blair Government’s decision to increase expenditure on health and education, the highest spending devolved functions after 1999. A population-based share of these extra funds went directly to the block budgets of the administration without any needs-based argument. The formula can also be seen as of benefit to the Treasury as it avoided the necessity of annual direct negotiations between the Treasury, the Secretary of State and the Department of Finance and Personnel and minimised conflict. It has been seen, despite its complexity, as a robust mechanism for public expenditure allocation which has worked well and if the Barnett formula did not exist something like it would have to be invented (NIA, 2001). The formula has the advantage of a mechanism that is applicable under either direct rule or devolution. There was an expectation that over time the application of the Barnett formula would mean that percentage increases in Northern Ireland would be less than those in Great Britain (Barnett, 1998). This would result from the allocation of Barnett increases on a population basis whereas the existing expenditure base was higher than per capita expenditure in Britain. It has been argued that this trend did not happen as the historic baseline remains the dominant element (Midwinter, 2007) although Heald and McLeod (2005) suggest that some of the existing obstacles to this convergence may reduce in future. McLean et al. (2008: 4) point to difficulties if government spending in England is cut and to a lack of clarity by the Treasury in determining whether spending is subject to the Barnett formula. The public expenditure process As the system of public finance was largely expenditure based or expenditure driven rather than income based the process by which public expenditure was determined was therefore the most important aspect of the system of public finance. The government’s expenditure plans

BDR08.indd 149

3/23/2009 4:12:29 PM

150

Direct rule and the governance of Northern Ireland

for the whole of the United Kingdom largely determined the level of public expenditure by Northern Ireland departments and Northern Irelands allocation of resources was determined annually as part of a Public Expenditure Survey (PES) for the United Kingdom as a whole. This PES system existed until 1997 and each year the survey looked ahead over a three-year period. Northern Ireland constituted one single programme or expenditure block out of twenty which covered the main Whitehall departments. Throughout the whole period of direct rule expenditure was normally 4.1 per cent or 4.2 per cent of the UK total. This block covered the responsibilities of the Secretary of State for Northern Ireland, i.e. the Northern Ireland Office and the Northern Ireland departments including associated bodies such as the Northern Ireland Housing Executive. The PES identified four categories of expenditure within the responsibility of the Secretary of State: law, order and protective services of the Northern Ireland Office; social security benefits; certain national agricultural support schemes and finally other expenditure by Northern Ireland departments and boards. The allocation among the services in the first and last of these categories but not the second and third could be altered at the discretion of the Secretary of State (DFP, 1990b). In 1996 the document on the Government’s expenditure plans (Treasury, 1996) expressed the financial discretion of the Secretary of State differently, noting the Secretary of State’s discretion to allocate resources within the Northern Ireland block with the exception of expenditure on social security benefits, which was largely determined by the level of demand. The 1996 expenditure plan simply noted that the Northern Ireland block excluded expenditure by the Department of Agriculture on national agriculture and fisheries support and also excludes expenditure in Northern Ireland by UK departments, expenditure on the Army and the Northern Ireland Court Service. It has been noted that the Secretary of State’s discretion over the block was often overestimated and with social security only nominally within it the true extent of the managed block was about two-thirds of expenditure (Thain and Wright, 1995: 313). The annual PES was led and managed in Northern Ireland by the Department of Finance and Personnel (DFP) in close liaison with other departments (Quigley, 1987). Plans for the incoming year need were drawn precisely, whilst those for the two later years were more tentative. A review was conducted of the strategic issues and direct rule ministers provided the parameters for the Public Expenditure Survey and settled its broad direction. The DFP integrated the outcome of these discussions into a paper for Ministers which analysed problems and opportunities, suggested ways in which

BDR08.indd 150

3/23/2009 4:12:29 PM

Finance and public expenditure

151

room for manoeuvre might be created within the Northern Ireland programmes by redirecting resources and sought further guidance on the priorities (NIA, 1985a). In parallel with these discussions the DFP was making the Northern Ireland contribution to the national PES process and the Secretary of State was representing Northern Ireland interests as a member of the Cabinet. Northern Ireland’s spending programme was in competition with other programmes for resources. Out of this process emerged the size of the Northern Ireland block allocation. The Secretary of State in consultation with his NIO ministerial team decided the final allocations to the various spending programmes which made up the Northern Ireland total. Comprehensive spending review In 1997 the PES process was replaced by the Comprehensive Spending Review (CSR). This was an attempt by the new Labour government to review all public expenditure decisions in the UK and target areas of high and low priority (Thain, 1998). Planning was also over a threeyear period. The CSR was based on statements of departmental aims and objectives and what they are seeking to achieve in their spending policies which helps the government make informed decisions about the allocation of resources. In 1998–99 the Northern Ireland Secretary of State, in initiating the CSR, embarked on an unprecedented consultation on spending priorities involving representatives of business, trade unions and the voluntary sector. The national review set the Northern Ireland totals for the next three years and the Northern Ireland ministers decided on the distribution of the total, some £8 billion among the six Northern Ireland Departments and the Northern Ireland Office. Public expenditure in Northern Ireland in the period of direct rule after 2002 is best considered as comprising three elements in the CSR. Firstly, the allocation to the Northern Ireland Office as a UK department and the Northern Ireland Court Service which is determined by direct negotiation between the Treasury and the Secretary of State. Then the Northern Ireland Budget allocation to Northern Ireland departments which consists of two elements. The Departmental Expenditure Limit (DEL) which is fixed for a three-year period and, secondly, the Annually Managed Expenditure (AME) which is agreed with the Treasury on an annual basis because it is comprised of demand-led programmes, mainly social security benefits as Table 8.5 shows. The main focus of the priorities and budget process is on the DEL, almost all of which is assigned, i.e. subject to allocation at the discretion of the

BDR08.indd 151

3/23/2009 4:12:29 PM

152

Direct rule and the governance of Northern Ireland

Table 8.5 Annual managed expenditure 2003–04

2004–05

2005–06

2006–07

Benefits Common Agricultural Policy New Deal 50+ National, non-cash items NHS/teachers’ Pensions Planned borrowing

3,545.5 186.9 1.0 1,029.8

3,621.2 186.7 1.0 1,044.0

3,758.6 187.5 1.0 1,059.5

3,758.6 187.5 1.0 1,059.5

173.4 125.0

204.0 200.0

233.8 200.0

233.8 200.0

Total annually managed expenditure

5,061.6

5,256.9

5,440.4

5,440.4

Source: DFP, (2006b).

Secretary of State. The only allocation within DEL which lay outside the assigned budget (the renamed block grant) and outside the discretion of the Secretary of State was EU Peace money. The AME also is non-assigned, i.e. not at the discretion of the Secretary of State. The introduction of the CSR also saw the introduction of new Public Service Agreements (PSAs). These set out for each department aims and objectives, resources in the spending review, key performance targets and outcomes (Treasury, 1998b). PSAs applied to the Northern Ireland Office and it was the then expectation that the new devolved administration would adopt them and the first annual report of the Northern Ireland Executive set out the PSAs for the departments that made up the executive (NIE, 2002). This procedure continued under direct rule and it was reported in 2003 that of the 126 PSA targets 75 per cent had been achieved (DFP, 2003). PSA targets are service delivery related rather than purely financial and they are produced with details of how each target will be measured and judged. Departmental estimates and authorisation of funding The services provided by Northern Ireland departments were funded in the main by the issue of monies from the Consolidated Fund for Northern Ireland under the authority of Parliament originally through appropriation orders, which were dealt with by the Order-in-Council procedure. Under direct rule the separate Northern Ireland Consolidated Fund continued as a legacy of devolution. The Consolidated Fund ensured Northern Ireland’s revenue and cash requirements were

BDR08.indd 152

3/23/2009 4:12:29 PM

Finance and public expenditure

153

met from the Fund in line with the estimates. The details of spending programmes were contained in the estimates presented to Parliament by the DFP and drawn up in conformity with the allocations made in the Public Expenditure Survey (DFP, 1989). In the 1990s Northern Ireland estimates were restructured in order to clarify the relationship between the Government’s public expenditure plans and the estimates presented to Parliament. The estimates were divided into a total of twenty-five votes, which were grouped by department with the estimates of the Northern Ireland Office for expenditure on law and order and related services dealt with differently. These estimates were covered by separate UK supply estimates and presented to Parliament by the Chief Secretary of the Treasury. Each year as well as the main estimates there were two supplementary estimates and consequently three Appropriation Orders. Supplementary estimates were presented to obtain additional money to meet the cost of any new service or to increase the provision for existing services and made the system flexi-ble. Following new legislation on Government resources and accounts Budget Orders were introduced to authorise the issue of sums of cash from the Northern Ireland Consolidation Fund and the use of resources by departments. Separate Budget orders, or Budget acts under devo-lution, cover the main estimates and subsequent supplementary estimates. Over time, departmental estimates have changed from mere financial statistical tables set against names of programmes/services to the inclusion of statements of aims and objectives of the proposed estimates, for example, supporting and developing an efficient, effective and responsive criminal justice system. Public expenditure comparison with Great Britain For most of the first period of direct rule overall public expenditure per capita has been substantially higher than in Great Britain. A study in 1979 examined six main programmes of expenditure and found that comparable public expenditure per head in 1971–72 was 11 per cent above the norm in England and was 41 per cent higher by 1977–78 (NIEC, 1984). The Government’s Public Expenditure Statistical Analysis (PESA) gives a detailed breakdown of public expenditure on services between the four countries of the United Kingdom. The Northern Ireland proportionate allocation, as an overall percentage of UK expenditure, has remained fairly constant throughout direct rule at 4 per cent but noticeably dropped to 3 per cent for 2004–05 and 2005–06 (Treasury, 2005). Northern Ireland’s population is approximately 2.7 per cent of the UK total.

BDR08.indd 153

3/23/2009 4:12:29 PM

154

Direct rule and the governance of Northern Ireland

Table 8.6 gives actual £ per head expenditure for total identifiable expenditure on services for 1998 to 2007. This clearly shows that per head expenditure was greater in Northern Ireland but shows also a slight rise in spending in Scotland which is probability a reflection of the introduction of devolved government producing an increase in public expenditure. Heald (2003: 13) has noted that the figures for Northern Ireland, Scotland and Wales have remained fairly stable. The PESA also gives a breakdown of identifiable expenditure on major groupings of services per head. Table 8.7 give the position of each country in the period 1998–2007 in ranking order of highest per capital expenditure over eleven functions. In relation to only four functions does Northern Ireland come highest every year. It would be expected that expenditure per capita on public order was consistently higher and the consistent higher expenditure on agriculture reflects the large agricultural sector of the economy. Expenditure on housing and communities moved ahead of the other countries and from 2000 the amounts of educational expenditure per capita has been greater than in the other UK countries, increasing in the later years of direct rule. Expenditure has been consistently just ahead of Scotland for education, but behind Scotland for health. Two functions display a different trend with Northern Ireland since 2002 overtaking Wales in ranking for social protection expenditure while the reverse was the case for economic development with Wales overtaking Northern Ireland since 2001. Transport is the only function where per capita expenditure was consistently ranked lowest for Northern Ireland. Overall Heald (2003: 9) in analysing similar figures, but on an index

Table 8.6 £ per head expenditure on services, 1998–2006

1998–99 1999–2000 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07

N. Ireland

Scotland

Wales

England

5,750 6,004 6,418 6,991 7,428 7,802 8,286 8,713 9,385

4,993 5,377 5,692 6,308 6,627 7,280 7,578 8,179 8,623

4,947 5,184 5,513 5,900 6,504 6,982 7,367 7,784 8,139

4,165 4,391 4,649 5,171 5,495 6,051 6,474 6,835 7,121

Source: Treasury PESA (2007b).

BDR08.indd 154

3/23/2009 4:12:29 PM

Finance and public expenditure

155

basis, states they are what might be expected given the relative demographics. Table 8.8 shows capital expenditure for major functions including the year before the end of direct rule in 1999 and after its restoration. Capital expenditure generally shows a pattern of incremental increase across the main functions. The exceptions are economic development and environmental protection where there are wider annual variations and an overall downward pattern in expenditure. The area of housing and local communities has tended to be the area of highest capital expenditure and this increased significantly from 2004–05. Table 8.7 Expenditure per head, 1998–2007: Northern Ireland ranking of four countries in the UK Function

Ranking

Public order Agricultural Education Housing Health Employment Economic development Social protection Transport Environment protection Recreation

First all years First all years First all years First all years Second all years Second all years Second 6 years, first 3 years First 5 years, second 4 years Fourth all years Moves between four positions Moves between four positions

Source: Constructed from Treasury PESA (2007b). Table 8.8 Northern Ireland capital expenditure 1998–99 2000–01 2003–04 2005–06 2006–07 Public order Economic development Agricultural Transport Environment protection Housing Health Recreation no culture Education Total

35 154 26 47 93 141 61 40 110 707

38 156 27 87 115 164 76 31 151 845

54 38 26 92 15 250 120 55 185 835

69 47 31 127 49 462 143 94 181 1,203

95 72 44 142 77 413 189 116 276 1,424

Sources: Treasury PESA (2005; 2007b).

BDR08.indd 155

3/23/2009 4:12:29 PM

156

Direct rule and the governance of Northern Ireland

A surge in overall capital expenditure is also noticeable in the last financial year of direct rule, in part a recognition of a backlog of under investment in the physical infrastructure. In 1980 the Secretary of State had claimed that expenditure was 35 per cent more per head of population than in the rest of the United Kingdom. The Northern Ireland Economic Council carried out a detailed statistical analysis of this claim (NIEC, 1981). Identifying a similar basis for comparison the study showed that public expenditure under the control of the Secretary of State was 30.5 per cent higher per head than for comparable programmes that in Great Britain. The study set out various factors which accounted for this higher level. These included different administrative arrangements governing some items of public expenditure, for example, spending on water and sewage services which in England and Wales is funded from the revenue of the private water authorities and does not appear as public expenditure unlike Northern Ireland. The characteristics of the population also led to an increase in public expenditure. Northern Ireland has a higher incidence of dependent children, unemployment, poverty and sickness, and this has consequences for social security expenditure and also for health and social care expenditure. The incidence of unfit housing was also greater than in Britain. The special need for expenditure on law and order accounted for 8.5 of the 30.5 per cent differential in per capita public expenditure. The NIEC study concluded that if an allowance was made for these factors the 30.5 per cent higher level of public expenditure was reduced to about 2 per cent. The NIEC conclusion (NIEC, 1981: 13) was that the continuing use of statistics to show 35 per cent or 30 per cent higher per head expenditures gave a misleading impression and the level of expenditure is in fact inadequate to deal with the special needs of Northern Ireland. In contrast, the Government view was that public expenditure was as high as can be justified in a national context. The profile of expenditure was largely the result of the implementation of parity principles and the Barnett formula. Extra expenditure on agriculture, education and social security was mainly the result of the application of national policies. The British Government accepted that extra expenditure was justified as a response to Northern Ireland’s greater needs, for example, a greater number of school pupils per head of population and a recognition of its unique combination of social and economic disadvantage. In the period 1981– 86 per capita expenditure on housing was at a level almost four times that in England and Wales. The justification for this expenditure was the extent of housing need in Northern Ireland and the greater degree

BDR08.indd 156

3/23/2009 4:12:29 PM

Finance and public expenditure

157

of unfitness. Since 1987 the government has taken the view that the gap was sufficiently closed to reduce housing expenditure. It has been argued that allowing for poverty, social conditions, remoteness and needs, expenditure on health services should be 10–12 per cent above the mean (Hayes, 1995: 281). Priorities in expenditure Northern Ireland’s public expenditure can be seen as a regional resource to be allocated to meet locally identified needs in line with local priorities. The Northern Ireland direct rule ministers had the freedom to allocate the monies received including the Barnett allocations as they thought fit to meet local needs. It has been Government policy during most of the time of direct rule to reduce central government expenditure as a percentage of GDP and Northern Ireland has not escaped from pressure to reduce or keep public expenditure under control. Public expenditure as a proportion of GDP has dropped from 70 per cent in 1983–84 to 60 per cent in 1993–94 but was then still much higher than the United Kingdom figure of 44 per cent (NIEC, 1996), although it has stabilised to around 63 per cent of GDP in recent years. Policy decisions in the UK public sector, pay agreements and the pattern of movement in comparable programmes in Great Britain had an important impact. There were also certain constraints within Northern Ireland. The Northern Ireland programme was not a clean slate on which entirely new allocations could be written every year as services existed and commitments had been entered into. Apart from these considerations the Secretary of State had substantial discretion to determine priorities and treat public expenditure as a unified total resource and not just disparate spending activities. The direct rule priorities during the 1980s in public expenditure planning were law and order, industrial development and housing. The first priority reflected a stated commitment to provide appropriate resources for the effective enforcement of law and order and the progressive eradication of terrorism. The second priority was the strengthening of the economy. There has been different shifts of emphasis within this objective; industrial development; employment and training measures; long-term regeneration of the economy through enhancing the role of the private sector; the encouragement of small and medium enterprises and support to improve competitiveness. Within the social and environmental programmes housing was originally accorded top priority. The priority given to housing was unparalled elsewhere in the

BDR08.indd 157

3/23/2009 4:12:29 PM

158

Direct rule and the governance of Northern Ireland

United Kingdom and was based on three considerations: the indisputably worse housing conditions in comparison with the United Kingdom, the consideration that poor housing was a material factor in the political and sectarian instability of the province, and the fact that housing work generated substantial employment in areas where it is needed most (NIHE, 1984). The NIHE was able to campaign successfully to maintain the priority given to housing expenditure throughout the 1980s (Brett, 1984). However, in the announcement of public expenditure plans for the period 1988–89 to 1990–91 housing was omitted as one of its three main expenditure priorities. The Secretary of State stating that ‘I have reluctantly concluded that it is no longer possible to provide resources for housing on the scale of recent years but the programme will remain very substantial’ (NIIS, 1987). In the early 1990s planned expenditure was described as reflecting the government’s priorities ‘defeating terrorism, strengthening the NI economy and targeting social need’ (DFP, 1993b). In 1996 the economic priority was changed to the term ‘reflecting the government’s priorities of promoting selfsustaining economic growth’ (Treasury, 1996). After 1991 there was a commitment to a strategy of Targeting Social Need (TSN) is aimed at ensuring greater equality and equity throughout Northern Ireland. TSN did not have a dedicated budget but was aimed at targeting resources toward areas in greater needs. It has been suggested that there was no evidence that TSN led to any discernible change in public expenditure (Quirk and McLaughlin, 1996) or extended into priority setting by government departments. The strategy was relaunched in 1998 as New Targeting Social Need, but still as a theme which ran through spending programmes but without a dedicated budget. A national UK initiative, the Private Finance Initiative (PFI), which replaces public with private sector capital investment, was also introduced in Northern Ireland. The ultimate government aim was that private firms would become responsible for designing, building, financing and operating the assets to deliver the service. Estimated capital spending under PFI in Northern Ireland was £50 million in 1996–97 but projects remained on a smaller scale than in Britain (NIEC, 1996). Projects included Laganside Development, car parks and energy schemes in hospitals, leasing of medical equipment and bus stations. In 1998 public private partnerships extended to a longer-term strategy, for example, to building new schools. It has been argued by the Northern Ireland Economic Council that a distinction exists between the rhetoric of priorities and the reality as reflected by changes in expenditure (NIEC, 1984). Thus it is argued

BDR08.indd 158

3/23/2009 4:12:30 PM

Finance and public expenditure

159

industrial support has been given high priority in public announcements accompanying the publication of public expenditure plans whereas actual expenditure has been declining in real terms. In contrast expenditure on health has risen sharply although it does not appear to have been given higher priority in official announcements. The largest increases were in social security and housing, closely followed by health. Barnett and Hutchinson (1998: 60) compared changes in priorities between 1979–78 and 1995–96 and identified growth in health, law and order and education, accounting for 47 per cent of all expenditure, but with reductions in industry, housing, transport/roads and agriculture. An analysis of the balance in the 1990s between the main programmes within the Northern Ireland block showed a reduction in housing, transport and environmental services and a continuing increase in health and social security. The money allocated to law and order showed a drop, reflecting the peace process and the decline in violence. Savings in the law and order budget resulting from the paramilitary ceasefires has been reallocated within the Northern Ireland block rather than subtracted from it. This ‘peace dividend’ was predicted as likely to release significant sums, perhaps 7 per cent of all expenditure from the period 1995 to 1996 (NIEC, 1995). In 1997 the Secretary of State announced that with the end of the IRA ceasefire and the summer of arson and disturbances the ‘peace dividend’ would experience a reversal with some £120 million extra provided for security and compensation. Heald (2003: 33) suggests that in reality transferred services benefited little from the peace dividend because they are within the managed block of Northern Ireland departments expenditure whereas law and order expenditure is an NIO item directly contributed by the Treasury. The introduction of the Comprehensive Spending Review was held to provide the opportunity for a thorough-going examination of how the Northern Ireland budget could best be deployed (Treasury, 1998a) through a new focus on quality of services outputs and raising effectiveness and efficiency. The Secretary of State still set out priorities which were for health, education and law and order with a rider that a corollary of finding additional resources for the higher priority areas meant that savings and efficiencies had to be identified in other programmes. The specific focus in education and health was on improving standards in schools and reducing hospital waiting lists. Overall spending plans just before the end of direct rule in 1999 provided for 1 per cent growth over three years to be financed through the Barnett formula plus greater efficiencies and savings in law and order. In the 2000 Spending

BDR08.indd 159

3/23/2009 4:12:30 PM

160

Direct rule and the governance of Northern Ireland

Review the Treasury also allocated additional funds to take forward the commitments under the Good Friday Agreement including police reforms. The full return of responsibility for all Northern Ireland expenditure to the Secretary of State and Ministers took place in 2002 in the context that the impact of devolution had been very limited. The budget allocations for the period 2003–06 were developed from the starting point of the executive’s draft budget and a consultation process (DFP, 2003: 5). The executive had initiated a major review of opportunities for public private partnerships and also a major review of rating policy and these continued with the aim of helping to fund a new reinvestment and reform initiative. The Secretary of State announced that ‘we have continued to set our work in the context of the priorities of the former executive focusing on its commitments to improving the infrastructure, reform and modernisation (DFP, 2004c). From this time the priorities and associated budget allocation were published together in a single integrated document. The new direct rule administration gave priority to ‘the reinvestment and reform initiative’ to deliver both modernisation and the infrastructure improvements. The infrastructure strategy for 2005–15 would be funded 60 per cent from mainstream public expenditure but with around £3 billion through PFI/PPP and £2 billion through borrowing. While stating that it had retained the executive’s priorities as the basis for its work there was a specific priority given to tackle sectarianism, equality and improving service delivery. The Priorities and Budget 2005–08 (DFP, 2005: para. 67) set three key overarching objectives of economic competitiveness, building equality and community cohesion and better public services, but no longer set these in the executive’s list of priorities. Public spending plans included a 23 per cent increase in health, a 11 per cent increase in education and a further 11 per cent on capital investment. The Secretary of State made clear there would be accelerated investment in public sector infrastructure plus ring-fenced investment in three special priority areas, children, youth unemployment and renewable energy. The last list of priorities published before the restoration of devolution specified economic growth, high quality public services, public sector reform and inclusion and mutual respect. The direct rule administration was strongly committed to enhancing available revenues. Thus the Secretary of State drew attention to what was called the fiscal deficit of £5 billion a year, the amount by which total public spending exceeded taxes and revenues collected and noted that the revenue raised for local public services from the domestic rating system was only half the equivalent figure for the rest of the UK (DFP,

BDR08.indd 160

3/23/2009 4:12:30 PM

Finance and public expenditure

161

2006b). The intention was that the new rating system would augment the Northern Ireland population’s contribution to the cost of public services. The level of funding available for public services could be increased by revenue generated through the rates. In 2005 rates income accounted for only 7 per cent of total public income. This contribution would be enhanced further by the rating changes and the introduction of water charges. The direct rule administration argued (DFP, 2005: para. 142) that operating costs of the water service should no longer be a call on the mainstream recurrent budget and ministers had decided that water and sewerage would become self-financing with charging to be phased in.

EU funding The planned level of public spending in Northern Ireland included expected receipts from the European structural funds and other community sources. In 1977 Northern Ireland was designated as a priority objective EC region on the basis of its peripheral location, declining industries and with boundaries which divide an economic area. This provided additional assistance in support of national regional policies. For a lengthy period the main source of funds from the European Union were the European Regional Development Fund (ERDF); the European Social Fund (ESF); the European Agricultural Guidance and Guarantee Fund (EAGGF) (see Table 8.9). The European Regional Development Fund was established in 1975 to correct regional imbalances within the EU and has been the major means for the transfer of resources from the richer to the poorer areas of the Community. There was a trend towards using the fund for large infrastructural projects which included Belfast International Airport, the Foyle Bridge

Table 8.9 Northern Ireland receipts from the EC, 1975–95 £ millions European Regional Development Fund (ERDF) European Social Fund (ESF) Agriculture Guarantee and Guidance Fund (AGGF) Total

715 680 230 1,625

Source: Treasury, 1996.

BDR08.indd 161

3/23/2009 4:12:30 PM

162

Direct rule and the governance of Northern Ireland

and schemes for improving electricity generation, water supplies and telecommunications. Northern Ireland received on average 10 per cent of the UK funds. In 1983 the Vice-President of the European Commission claimed that Northern Ireland received more per capita from the Regional Fund than any other area except Greenland (NIA, 1983b). It has also been estimated that in terms of job creation and job maintenance the fund had an impact of about 3,000 jobs each year (Harris, 1988). The European Social Fund existed mainly to improve employment opportunities, develop workforce skills and facilitate labour mobility. An evaluation (McGurnaghan and Simpson, 1988) of the fund in Northern Ireland suggested that the public schemes of training which constituted the major element of expenditure were ongoing and not dependent on EU finance and the Social Fund had a marginal effect. In 1993 as part of a new process for the allocation of structural funds a Northern Ireland plan was submitted to Brussels. This contained government proposals on how the Northern Ireland structural funds allocation of £1,035 million for the years 1994–99 should be distributed. Northern Ireland received 52 per cent of the UK’s total Objective 1 structural funds allocation. Objective 1 was the designation of the deprived areas having a cap/cap lower than 75 per cent of the EU average. The agreed priorities were to promote economic and social cohesion by: (1) promoting economic development and competitiveness; (2) investing in communities and people; (3) reducing the effects of peripherality; (4) developing in agriculture, fisheries and the rural economy; and (5) protecting the environment. In addition Northern Ireland earned a further £105 million between 1994 and 1999 through other EU direct funding. Interreg II supported cross-border cooperation and Leader supported rural development. Equal was an initiative tackling inequality in access to the labour market and Urban II supported urban regeneration. At this time EU funding was also directed at supporting the peace negotiations following the ceasefires in 1994. A task force was set up by the European Commission to provide practical support to help create a peaceful and stable society. This resulted in the approval by the European Council of Heads of State and Government in 1994 of a new programme, the Special Support Programme for Peace and Reconciliation in Northern Ireland and the six border counties of the Republic of Ireland, which was a unique EU Programme. EU Peace money was ring-fenced as additional public expenditure, and it has funded activities related to employment, urban and rural regeneration, social inclusion, cross-

BDR08.indd 162

3/23/2009 4:12:30 PM

Finance and public expenditure

163

border cooperation and industrial development all with a reconciliation dimension. At the time the first period of direct rule was ending in 1999 the structural funds system changed under what was known as Agenda 2000 in anticipation of the enlargement of the EU. One outcome was that some former Objective I regions including Northern Ireland were reclassified as phasing-out (in transition) regions. This allowed phasingout regions to temporarily keep Objective I status while moving more gradually to a lower level of funding. In 1999, after intensive lobbying, the EU agreed to a second round of the Peace Programme. They also agreed to allocate substantial structural funds to Northern Ireland as it was phased out from tran-sitional objective 1 status. The EU structural funds package for the period 2000–6 was worth almost £1 billion, including £280 million for the Peace II Programme (European Policy and Coordinating Unit: EPCU, 2004). The overall strategy was set out in the Northern Ireland Community Support Framework (CSF) and consisted of two operational programmes Building Sustainable Prosperity (BSP) and Peace II plus four complementary EU community initiatives (see Figure 8.1). BSP was worth around £575 million and assisted a range of projects to develop economic growth, employment, urban and social revitalisation, agriculture, rural development, forestry, fisheries and the environment and is delivered mainly through Northern Ireland departments. Peace II was given a new thrust to address economic and social disadvantage particularly in the areas of economic renewal, social reconciliation, social regeneration and cross-border cooperation. The four EU community initiatives were all EU-wide schemes: Interreg II supporting cross-border cooperation, Leader supporting rural development, Equal

CSF

Building sustainable Prosperity (BSP)

Interreg III

Peace II

Equal

Community Initiatives

Urban II

Leader +

Figure 8.1 Community Support Framework (CSF), 2004 Source: DFP, 2004d.

BDR08.indd 163

3/23/2009 4:12:30 PM

164

Direct rule and the governance of Northern Ireland

tackling inequality in access to the labour market and Urban II supporting urban regeneration. The EU changed to an overall cohesion policy framework for 2007–13 which redefined its objectives as: objective 1 convergence, objective 2 regional competitiveness and objective 3 territorial cooperation with Northern Ireland no longer qualifying for convergence or phasing out. The number of funds was reduced to three; the regional development fund, the social fund and the cohesion fund. Under the regional development fund 2007–13 Northern Ireland will receive £614 for a sustainable competitiveness programme and £256 for an Interreg II, a cross-border programme. The UK total structural funds allocation was reduced by 50 per cent which meant a single ESF programme for Northern Ireland with somewhat reduced funding and a focus on reducing economic inactivity and increasing workforce skills. The special effort for the peace process would continue with a total of £333 million allocated for the Peace III programme for a final period 2007–13. The most controversial aspect of European funding has been the issue of additionality. There have been frequent criticisms that funds are absorbed into government receipts and set against general expenditure (Aughey et al., 1989: 106). The issue is whether funding is additional to planned government expenditure, not a substitute for it. The view of the British Government is that the level of receipts from Europe is taken into account in government decisions on the planned level of expenditure allocations and their availability enables public expenditure to be maintained at a higher level than would otherwise be possible. The permanent secretary of the Department of Finance and Personnel has stated that the Northern Ireland public expenditure programme assumes a certain share of these receipts based on what Northern Ireland is likely to earn from the major funds (NIA, 1985b). He argued that public expenditure is genuinely higher than it would be if EC receipts were not available but admitted that in some instances the additional nature of receipts is more transparent than others. A Government minister noted (McGurnaghan and Simpson, 1988) that EC receipts as a general rule did not lead to direct and identifiable increases in particular spending programmes and it is therefore difficult to demonstrate ‘additionality’ arithmetically. The Northern Ireland departments in common with all UK Government departments planned for expected structural funds expenditure and receipts within their departmental expenditure limit (DEL) and produce the matched funding departments are required to provide under EU programmes. Under the European Social fund between 2000 and 2006 EU income of £289 million drew matched funding of £159 million (NIA, 2007).

BDR08.indd 164

3/23/2009 4:12:30 PM

Finance and public expenditure

165

The UK Government is content that it has satisfied the EU rules on additionality (Treasury, 2007a: 23). In practice the only funding that was clearly extra money was the Peace Programme which has always been implemented as fully additional. The official position is that it is not possible to determine Northern Ireland’s actual share of the UK contribution to the EU because payments are made on a national basis. However, a Northern Ireland attributed share of the contribution was calculated in the annual finance accounts for a time, as an accounting mechanism. This showed for the period 1973–89 an attributed contribution of £749 million and identifiable receipts of £884 million and for 1989–92 the contribution of £400 million and receipts of £433 million. Trimble (1989) argued that the official figure that totalled receipts was less than 2 per cent of total public expenditure underestimated the actual amount which in some years was as high as 6 per cent; although writing later, Gudgin (2000) put less emphasis on the impact of EU funding. From 1990 to 2005 Northern Ireland received some £2.3 billion under the programmes for funding Europe’s poorer regions plus £500 million peace money and would seem to have obtained higher allocations than normal for a UK region. Direct rule and public expenditure The key aspects of the public expenditure process under direct rule were not subject to major change. Some of the distinctive features of the financial processes had been retained from the pre-direct rule system, particularly the Northern Ireland Consolidated Fund, the clearly identifiable income and expenditure, the Northern Ireland block grant from the Treasury and the Barnett formula. Direct rule administrations did act to increase public expenditure and the size of the Treasury subvention leading to higher outlay per capita expenditure than England, Scotland and Wales. The income process was largely completely separate from the expenditure process, an unusual aspect of public expenditure produced originally by devolution, i.e. the raising of income was not in any way a Northern Ireland matter, there were only UK fiscal policies. The only element of public income determined by a Northern Ireland specific policy was local government rates, which made up a small element. It was not until 2005 that the direct rule administration began to look in more detail at rates revenue. The direct rule ministers did, however, have decision-making powers over priorities in expenditure in many areas. Some expenditure, as with social security and in part with health and education, was needs driven and

BDR08.indd 165

3/23/2009 4:12:30 PM

166

Direct rule and the governance of Northern Ireland

this explains differences in per capita expenditure with England, Scotland and Wales. Other areas demonstrated a high level of expenditure in response to the conflict, demonstrated in public order, and housing and community expenditure. Strategic priority setting was set out in the annual public expenditure documentation in the later years of direct rule. The basic structure of the public expenditure system is the same for direct rule as devolution. It is also the case that the introduction of devolution in Scotland and Wales drew more attention to the Barnett formula, and comparisons of territorial expenditure. In particular the lack of fiscal autonomy was shown through the Treasury control of the outcome of the Comprehensive Spending Review with less resources given to Northern Ireland in 2007 (NIA, 2007). There is limited evidence of differences that devolution has meant for public expenditure. The statistics show for the period 2000–02 a significant decrease in economic development expenditure but increased expenditure on housing and employment policies. The restoration of devolution in 2007 did see an initial funding package for the incoming executive with some unique infrastructural funding from the Irish Government. The first budget following the restoration of devolution saw some shift in strategic priorities, with economic growth through the private sector as the top priority. However, the UK Government retains control over macro-economic and fiscal policy. This was clearly demonstrated when following a review of tax policy (Varney, 2007) the UK Government refused to reduce Northern Ireland’s corporate tax rate to 12.5 per cent, the same as in the Republic of Ireland. UK fiscal policies, the Barnett formula, parity in tax and social security and existing patterns of public expenditure do not leave a large degree of discretion.

BDR08.indd 166

3/23/2009 4:12:30 PM

9

Cross-border cooperation and British–Irish institutions

The introduction of direct rule facilitated a much more positive view of the political and practical value of cooperation between the United Kingdom and Republic of Ireland and cross-border cooperation in Ireland. Historically, there had been elements of cross-border cooperation, particularly following the historic meetings in 1965 between the Taoiseach, Sean Lemass and the new Northern Ireland Prime Minister Terence O’Neill. The agenda for cooperation at that time had been largely confined to areas of economic cooperation, trade, tourism, electricity supply, transport and communications (Tannam, 1999; Kennedy and Magennis, 2007). The first British document on the future of Northern Ireland following the introduction of direct rule stated that whatever arrangements were made for the future administration of Northern Ireland must take account of the province’s relationship with the Republic of Ireland (NIO, 1972b). The first attempt by the UK Government to re-establish devolved government on a power sharing basis proposed the establishment of institutional links with the rest of Ireland. Basically, this commitment to an Irish dimension was to continue throughout direct rule and largely meant three things. Firstly, the close involvement of the Irish Government with the UK Government in the search for peace and new acceptable political arrangements in Northern Ireland. Secondly, it meant an attempt to establish institutions which would give the Irish Government some direct involvement in aspects of policy-making and administration and, thirdly, it meant an attempt to encourage and to establish bodies which could deliver services on a cross-border basis. The new constitutional proposals in 1973 referred to ‘virtually all the political parties envisaging some sort of scheme for institutional arrangements between North and South’ (Secretary of State, 1973: 29). Eventually, in the Sunningdale Agreement between the UK and Irish Governments and the political parties, this appeared as a proposal for a Council of Ireland, alongside an elected assembly and a power sharing

BDR09.indd 167

3/23/2009 4:12:48 PM

168

Direct rule and the governance of Northern Ireland

executive. It would consist of seven ministers from a new Northern Ireland power sharing executive and seven members of the Irish Government plus a consultative assembly of thirty members from the Dail and thirty from the Northern Ireland assembly. The council was to engage in work which had an immediate and obvious benefit for the whole of Ireland. The UK Government eventually accepted a Council of Ireland with executive functions despite the Ulster Unionist Party’s (UUP) support only for a consultative intergovernmental council (Hennessey, 2000: 16). The Sunningdale Agreement proposed a series of studies to identify areas of common interest over which a Council of Ireland would take decisions including agricultural and environmental matters, cooperation in trade, industry and electricity generation, tourism, roads and transport and public health. The power sharing executive, when established in January 1974, was to last only five months. It was initially damaged by anti-Sunningdale voting at a Westminster election and eventually brought down by militant action by protestant groups and workers, ostensibly in opposition to the proposed Council of Ireland, although some commentators believe this was only a contributory factor (Hayes, 2002). Although the Sunningdale proposals for a Council of Ireland were not to be implemented the whole process had starkly politicised cross-border cooperation. It marked a major development in thinking about cross-border relations through the introduction by the British and Irish Governments of plans for a formal institution to oversee and implement cooperation (Kennedy and Magennis, 2007: 45). The growth of intergovernmental bodies Faced with a political impasse on power sharing, a summit meeting between Mrs Thatcher and Charles Haughey proposed to develop new and closer political cooperation between the two governments and to give consideration to the ‘totality of relationships within these islands’ based on the development of closer links between NIO ministers and Irish Officials. It was decided to proceed by commissioning joint studies covering a range of issues: possible new institutional structures, citizen rights, economic cooperation and measures to encourage mutual understanding, mainly in education. The report of a Joint Steering Group (1981) stated that in many fields cooperation was extensive, for example, communication, energy and customs. It recommended the establishment of an Anglo-Irish Intergovernmental Council (AIIC), to provide an overall framework for intergovernmental consultation at head of

BDR09.indd 168

3/23/2009 4:12:48 PM

Cross-border cooperation and institutions

169

government, ministerial and official levels on matters of common interest. When it came into existence this was to some extent, adding a name to a largely continuing structure of intergovernmental contacts. The UK Government expressed its confidence that the AIIC would give institutional expression to the unique relationship between the two governments and the arrangements would enhance practical cooperation (Secretary of State, 1982: 6). However, the first meetings of the AIIC at minister and official level took place only after some delay caused by problems in the Anglo-Irish relationship over plans for devolution (Hadfield, 1989: 183). It was the Anglo-Irish Agreement of 1985 that gave a major political boost to cross-border cooperation. The Agreement signed by Thatcher and Fitzgerald set out principles for the development of a unique relationship between the UK and the Republic. A new body, an Intergovernmental Conference, was established within the framework of the Anglo-Irish Intergovernmental Council, concerned with Northern Ireland and with relations between the two parts of Ireland. The 1985 Agreement institutionalised the Irish dimension and the new arrangements saw the establishment of a secretariat, partly staffed by Irish officials at Maryfield in Belfast, but not at Stormont as the Irish Government had wished. It has been suggested that the main political purpose of the Agreement, eventually accepted by Mrs Thatcher, was to strengthen support for the SDLP faced with an increasing Sinn Fein challenge and continuing alienation in the catholic community (Hayes, 2002: 98) and undermine Sinn Fein support within the nationalist community (Fitzgerald, 1991). This approach has been defined as the ‘basic equation’ of strengthening Irish acceptance of the legitimacy of the union and greater security cooperation, balanced by giving the Irish Government a say in the administration of Northern Ireland in matters affecting the catholic community (Goodall, 2002). While the Agreement was described as ‘Anglo-Irish’ the focus was on Northern Ireland and the right of involvement by the Irish Government. The Taoiseach at the time, Garret Fitzgerald, was to refer to the process as ‘the new voice for the minority’ (Fitzgerald, 1991: 559). The Anglo-Irish Agreement was to produce extensive and lengthy unionist protests, including local council strikes. The scale of the opposition to what was interpreted widely as a step to joint sovereignty had probably not been anticipated (O’Leary, 1987). However, it was to peter out within a year and demonstrated that cross-border institutions could be set up by the British and Irish Governments without unionist participation. The Anglo-Irish Agreement meant the UK Government accepted that the Irish Government could put forward views and proposals on matters relating to

BDR09.indd 169

3/23/2009 4:12:48 PM

170

Direct rule and the governance of Northern Ireland

Northern Ireland, including views on the role and composition of Northern Ireland public bodies including the Police Authority. By 1996 some 55 Irish Government nominees had been appointed, but out of 284 nominations (Purdy, 1996). The Anglo-Irish Agreement was specific that each government retained responsibility for the decisions and administration of government within its own jurisdiction. The Intergovernmental Conference would meet at ministerial or official level and would be jointly chaired when meeting at ministerial level by the Secretary of State for Northern Ireland and an Irish minister, usually the Foreign Minister. Thatcher was to assert, in response to unionist criticism, that it was not to be a decision-making body, although John Hume saw the conference more as a decision-making process (Hennessey, 2000: 51). The Anglo-Irish Intergovernmental Conference was to deal with four specific areas; political matters, security, legal matters and the promotion of cross-border cooperation. Political matters covered rights, discrimination and devolution. Security included prisons and relations between the public and the security forces, while legal matters included the administration of justice, the criminal law and extradition. An illustrative list of matters for cross-border cooperation was published following a meeting of the conference in 1986, with a comprehensive list covering the economy, infrastructure, transport, agriculture and fisheries, health and social security, education, the environment, taxation and arts and also mentioned were contacts on taxation, emergency services and cross-border studies (Hadden and Boyle, 1989: 43–5). The Agreement has been seen as a framework for producing cooperation and agreement between London and Dublin rather than a substantive edifice (Kenny, 1986: 101) and gave the Irish Government an advisory or consultative role rather than creating joint decision-making structures. The location of meetings varied between Belfast, Dublin and London with the joint secretariat still based at a distance from Stormont at Maryfield. In 1989 the two governments completed a review of the working of the intergovernmental conference. This review noted that the conference had met on twenty-seven occasions since the Agreement (Irish Times, 1989) and had provided a valuable forum to promote cooperative action in both parts of Ireland. The review did not consist of a systematic evaluation of all the detailed sectors of cooperation although it confirmed that cross-border economic and social cooperation was of obvious benefit to all. The review recommended no fundamental changes apart from a more regular schedule of meetings and widening participation by ministers and others, for example, the Chief Constable of the RUC, to help reduce possible disputes between the two governments. The review also reported that,

BDR09.indd 170

3/23/2009 4:12:48 PM

Cross-border cooperation and institutions

171

apart from the work of the Conference, a number of cross-border ministerial meetings had taken place dealing with economic and social cooperation, for example, between health ministers. Garret Fitzgerald was later to produce what he saw as list of achievements of the Conference in reducing alienation in the nationalist community through; the ending of super-grass trials, reform of emergency laws, the repeal of the Flags and Emblems Act, new guidelines on fair employment, representation on public bodies and improvements in housing, employment practices and prison issues (Fitzgerald, 1991: 574). Generally, the review recommended the expansion of the process of cooperation. The Conference can be seen as a procedure for dealing with issues particularly of concern to the nationalist minority, such as parades, and Bloomfield (2007: 63) later described it as a one way consultation process. Thatcher was to suggest that concessions she made for the Anglo-Irish Agreement alienated the unionists without gaining the increased security cooperation she expected (Thatcher, 1995: 415). The operation of the Anglo-Irish Agreement meant that the Irish dimension and cross-border cooperation was no longer something to be tacked on to plans for political development. The UK Government had accepted as absolutely necessary the involvement of the Irish Government without being over prescriptive. It has been suggested that the Anglo-Irish Agreement introduced an irreversible ‘Irish Dimension’ (Goodall, 2002: 122) and has established a permanent bi-national context (Tonge, 2005). The direct rule administration had indicated that it would consult with the Irish Government about Northern Ireland policies without the inclusion of unionist politicians. As Aughey (1989) notes, the Anglo-Irish Agreement was designed to be proof against unionist opposition. It circumvented the problems of boycotts, vetos and refusal to participate in cross-border arrangements (Cunningham, 2002: 50). In practice when faced with a campaign of civil disobedience and the dissolution of the assembly the UK Government recognised the need to defuse the situation and that there were political constraints on alienating unionists too much (Aughey, 1989: 60). The UK Government appeared careful to define the Irish Government’s role as ‘putting forward views’. It has been suggested the Anglo-Irish Agreement was also significant in formally binding the Irish Government to inter-state cooperation, implying acceptance of the existing order (Arthur, 2000: 231). However, the Anglo-Irish Agreement served to make unionists come to terms eventually with the Irish dimension in a framework for a political solution. Out of the Anglo-Irish Agreement came the broad acceptance of the three-stranded approach which was to be developed in future political discussions; firstly, the internal arrangements for

BDR09.indd 171

3/23/2009 4:12:49 PM

172

Direct rule and the governance of Northern Ireland

government and administration in Northern Ireland; secondly, North– South arrangements; and, thirdly, the relationship between Britain and Ireland. Proposals for developing cross-border cooperation, 1990–99 When new inter-party and intergovernmental talks stared in the 1990s, North–South cooperation was accepted as an important strand. A joint declaration of principles underpinning the talks process between the Taoiseach, Mr Reynolds, and the Prime Minister, Mr Major, referred to the vital dimension of new institutions and structures to enable the people of Ireland to work together at all levels of common interest (UK/Irish Governments, 1993: para. 2). Such structures would include institutional recognition of the special links that exist between the peoples of Britain and Ireland as part of the totality of relationships. The Framework document which followed (UK/Irish Governments, 1995) clearly identified three strands for interlocking and mutually supportive institutions, that is, structures within Northern Ireland, North–South institutions and East–West (Great Britain–Ireland) structures. This framework document, in setting out the way ahead, gave a more detailed consideration of North–South cooperation. A rationale for cooperation was given in terms of: a common interest in a given matter, the mutual advantage of addressing a matter together, the mutual benefit of administration by a North–South body and the avoidance of unnecessary duplication of effort. It was envisaged that cooperative activities would fall under three headlines. Firstly, through consultation where both sides could consult and exchange information on any aspect of existing and future policy. Secondly, through harmonisation when both sides would use their best efforts to reach agreement on a common policy. Thirdly, executive decisions, when a North–South body would be directly responsible for the establishment of an agreed policy and its implementation on a joint basis. This was a further significant development in that the possibility of executive bodies with implementation powers was raised. Both governments agreed that a new North–South body should be created and an illustrative list of functions was proposed which was largely similar to that following the Anglo-Irish Agreement and aspects of agriculture, health and education were particularly specified. A new and more broadly based agreement was envisaged which would maintain a standing Intergovernmental Conference (UK/Irish Governments, 1995: para. 40), supported by a permanent secretariat of civil servants. This would be a forum for the two governments to work together and the principal instrument for an

BDR09.indd 172

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

173

intensification of cooperation and partnership. Each government would retain responsibility for policy decisions and administration within its own jurisdiction. It can be argued that the UK Government continued at this time to focus on a minimalist interpretation of such structures. Cunningham (2001: 96) notes that John Major referred to a new North–South body having primarily an advisory role and in 1996 Michael Ancram, the Minister for Political Development explained the watchword was ‘clearly defined and clearly limited cooperation’ (Bew et al., 1996: 236). Negotiations on the institutional format on Strand II for North– South cooperation produced considerable difficulty. It was not so much disagreement on the areas of cooperation but on the powers and scope of new North–South institutions and their accountability and source of authority. The ulster unionist position was that a North–South forum should not have executive powers and would not have a dynamic to evolve towards an all-Ireland State (Hennessey, 2000: 127), and that the Northern Ireland assembly should control the Northern Ireland representatives on the North–South council. The crucial issue was whether the new North–South institutions would be set up and accountable on a Dublin–Belfast basis or a Dublin–London basis independent of the Northern Ireland assembly. Draft proposals in 1998 envisaged a North–South Ministerial Council as a new institutional setting for monitoring different types of cooperation while a new mode of cooperation would be established through new cross-border implementation bodies. Ultimately final agreement on Strand II was to prove more difficult than Strand I on internal arrangements as unionist objections continued to the scope of North–South cooperation, its control by Dublin and London and what seemed like a possible third tier of government in Ireland. Renegotiation of these proposals by Blair and Ahern eventually led to a compromise with a structure and proposals acceptable to the official unionists (Mitchell, 1999: 175). A North– South Ministerial Council (NSMC) would be set up with no executive powers and the Dail and the Northern Ireland Assembly would agree on at least six matters for new implementation bodies which would have executive powers, from a possible list of twelve areas. As well there would be a separate British–Irish Intergovernmental Conference to continue the role of the Intergovernmental Conference established under the 1985 agreement and also a new British–Irish Council to put into practice the East–West relationship involving representation of the British and Irish Governments and all the devolved systems of government in the UK. After the Agreement was approved in December 1998 the details of the new bodies and the areas of cooperation were worked

BDR09.indd 173

3/23/2009 4:12:49 PM

174

Direct rule and the governance of Northern Ireland

out in a series of further political negotiations and interdepartmental discussions. Trade, inland waterways, EU programmes, food safety, lights and loughs and languages were agreed as implementation bodies. Arts, transport and environmental protection were dropped from consideration and instead of a tourism implementation body Tourism Ireland, an all-Ireland promotional body, was created (Kennedy and Maginnis, 2007: 49). Also identified were six areas of cooperation: agriculture, education, environment, health, tourism and transport which would be developed through meetings of the NSMC. It can be argued that despite the difficult political negotiations the areas identified for cooperation were largely in line with those developed throughout the 1980s and 1990s. The establishment of cross-border institutions The six implementation bodies came into existence in 1999, set up by a formal British–Irish agreement which set out their functions and structures (see Table 9.1). Some implementation bodies found it more difficult than others to develop functions. Waterways Ireland was responsible for the manage-

Table 9.1 North–South implementation bodies Areas for implementation bodies, 1999

Cross-border bodies, 2007

Inland waterways Food safety

Waterways Ireland Food Safety Promotion Board InterTrade Ireland

Enniskillen Cork Newry

45

Special EU Programmes Body

Belfast, Monaghan/ Omagh

45

Dublin Belfast Derry/ Carlingford

52 10 48

Trade and business development Special EU programmes

Language

Aquaculture and marine matters

Language Body Foras Na Gaelilge Ulster Scots Agency Foyle, Carlingford and Irish Lights Commission – Loughs Agency

HQ

Staff 347 34

Source: NSMC Annual Reports.

BDR09.indd 174

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

175

ment, maintenance and restoration of the inland navigable waterways system throughout the island and became the most visible of the North– South bodies with the largest staff. The Special EU Programmes Body was given a range of responsibilities for the coordination of the existing round of EU structural funds and advising the governments on future applications. It assumed the functions of implementation, monitoring, development, research and evaluation from the respective government departments, North and South. The Special EU Programmes Body also monitors and promotes the common chapter between the national development plan for Ireland and the Northern Ireland structural funds plan. Overall, its role has altered little since its inception. The Food Safety Body had the function of promoting food safety awareness through public campaigns, conferences, research and scientific cooperation and is also responsible for communication on food alarms and diseases surveillance. It has to work in association with the existing food agencies of the UK and the Republic of Ireland which has left a problem with determining the exact division of labour and finding its own niche. The Trade and Business Development Body was set up to exchange information and coordinate work on trade, business and economic development. Renamed as InterTrade Ireland it successfully developed a high profile in promoting; North–South trade and business development, marketing links and supply chains, facilitating crossborder partnerships, establishing technology transfer projects and in publishing research reports. It has launched a number of successful initiatives such as Biomed Ireland, an all-Ireland software network and an all-Island seedcorn competition. The Language Body was given responsibility for the promotion of both the Irish language and UlsterScots and developed operationally as two largely separate bodies. The Irish language body encouraged the Irish language and while working on an all-Ireland basis has faced some difficulty as the language has not the same constitutional protection in the North as in the South. The Ulster Scots Agency developed its activities in the area of cultural promotion as well as language development. The remaining area of aquaculture and marine matters was more problematic. No difficulty arose in establishing the Foyle and Carlingford bodies as a Foyle Fisheries Cross-Border Commission had existed since 1952, but it proved impossible to have an Irish Lights body for Irish lighthouses because of legal impediments going back to nineteenth-century legislation. The final list of functions of all the implementation bodies was not really very radical or innovative embracing ‘narrowly defined policy sectors’ (Coakley, 2001a) and was largely based on existing areas of cooperation. Each body had a chief executive and its own staff,

BDR09.indd 175

3/23/2009 4:12:49 PM

176

Direct rule and the governance of Northern Ireland

whether transferred or seconded from other public bodies or directly recruited, and most had a nominated board. This structure meant that most of the bodies resembled the quango or non-departmental public board model but on a cross-border basis with joint sponsoring departments. Two of the bodies had a different and more unusual structure without a board and were more akin to joint cross-border executive agencies linked to two departments. The essential feature of the North– South bodies was that they would operate under the auspices of the North–South Ministerial Council. This met in a number of formats (see below) and were to meet in sectoral format to oversee cooperation in the six implementation areas as well as the six areas for cooperation. These meetings were to be attended by the Irish minister responsible for that sector plus two devolved Northern Ireland ministers nominated by the First and Deputy First Ministers, one being the minister and the other a political representative from the other community. This framework was affected by disputes in the assembly and executive as DUP ministers refused to attend and at one point Trimble refused to nominate the Sinn Fein Minister to attend the sector food safety meeting. Outside the six implementation bodies six other areas had been identified as those in which cooperation would be taken forward by existing bodies in each jurisdiction separately. The matters for consid-eration within each area were agreed initially by the NSMC (Table 9.2).

Table 9.2 Areas for cooperation Agriculture Education Environment

Health

Transport Tourism

Discussion of common agricultural policy, animal and plant health and rural development Education for children with special needs, teacher qualifications and educational exchanges Water quality management, waste management, research into environmental protection and environmental awareness Accident and emergency services, planning emergencies, high technology equipment, cancer research and health promotion Strategic planning and road and rail safety Marketing the island of Ireland overseas

Source: NSMC, 2003.

BDR09.indd 176

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

177

In practice, rather than operate just as an area of cooperation, a de facto seventh implementation body, Tourism Ireland, was created as a publicly owned limited company to market the island of Ireland as a whole. In general the topics in the six areas tended to be ones where cross-border cooperation already existed. Under direct rule work in these areas continued through joint working groups, ministerial meetings and joint activities between departments but activities largely stayed with the original topics. Some areas produced more successful initiatives than others, for example, the development of an all-island animal health strategy and planning for major emergencies. Some other aspects did not develop as extensively as might be anticipated, for example, in the transport sector. The NSMC was organised to meet in three different formats, first in plenary format with the Northern Ireland Executive delegation led by the First and Deputy First Minister and the Irish Government delegation led by the Taoiseach and the Tanaiste. Plenary meetings were to take an overview of cross-border cooperation. Secondly, the NSMC met in institutional forum, with the Northern Ireland Executive represented by the First Minister and Deputy First Minister and the Irish Government by the Minister for Foreign Affairs. The task of the institutional forum was to consider institutional and cross-sectional issues, including issues relating to the EU, and to resolve any disagreements. Thirdly, the NSMC met in sectoral format, to oversee cooperation through the six areas covered by the implementation bodies plus the six areas of cooperation at sectoral meeting. The Irish Government was represented by the minister responsible for the sector while the Northern Ireland administration was represented by two ministers nominated by the First and Deputy First Ministers on a crosscommunity basis. The format has been compared to the Council of Ministers in Brussels, in meeting in sectoral format and in taking decisions to be implemented separately in each jurisdiction (Tannam, 2006a). The NSMC was serviced by a Standing Joint Secretariat staffed by around thirty members seconded from the Northern Ireland Civil Service and the Irish Civil Service and based in Armagh. Only four plenary meetings took place before direct rule was restored and only one meeting, in 2001, took place in institutional format. Sectoral meetings were much more frequent with some sixty taking place between 1999 and 2002. The NSMC was originally conceived with no role as an overseeing British–Irish mechanism (Hennessey, 2000: 177), and the UK Government had no representation in the three formats. The suspension of devolution meant that the NSMC had also to be sus-

BDR09.indd 177

3/23/2009 4:12:49 PM

178

Direct rule and the governance of Northern Ireland

pended or alternate arrangements made. An interim arrangement was made, based on the recognition that executive responsibility in Northern Ireland had passed to Northern Ireland Office ministers. Consequently the interim arrangements specified that the decisions of the North–South Ministerial Council on policies and actions relating to the Implementation Bodies, and Tourism Ireland would be taken by the two Governments (NSMC, 2002). The joint Secretariat would continue as the mechanism to put in place and administer the interim procedures during direct rule. This resolved into a fairly large bureaucratic procedure with forty to fifty recorded decisions each year concerning the North–South bodies and Tourism Ireland. Significantly, there would be no new functions conferred on the implementation bodies and the existing bodies would continue on a ‘care and maintenance’ basis (NSMC, 2003). Thus the decisions made by the British and Irish Governments covered mainly the approval of business plans, budget provision and board appointments. The resumption of direct rule meant that political obstacles within Northern Ireland to North– South cooperation were largely removed. Yet North–South cooperation did not rapidly expand, for three main reasons. Firstly, the two governments had decided not to increase the number of implementation bodies and this degree of caution, given unionist sensibilities, continued during the time of negotiations leading up to the St Andrew’s Agreement. Secondly, the civil servants and departments who took on responsibility for the NSMC decisions and the areas of cooperation did not make expansion of cross-border cooperation a priority. Coakley et al. (2007: 55) refers to a principle of ‘no surprises’ which officials applied to NSMC meetings and it is noticeable that cross-border cooperation received almost no attention in the Review of Public Administration. The whole edifice remained on a relatively small scale and was a marginal new area of governance. Total staff numbers of the North–South bodies increased slightly to around five hundred. Thirdly, the operation of cross-border cooperation did and continues to face some general obstacles and difficulties with different sets of legislation and policies, two different bureaucracies, and different levels of remuneration in the public services. The period of direct rule allowed the North–South bodies to progress their work with positive support from the ministers and no disruption, work described as ‘a quiet success story’ (NSMC, 2004). However, it has been argued that the approach between 2001 and 2007 set in train an inertia (Coakley et al., 2007: 55). The plenary meetings since the restoration of devolution in 2007 have had a full attendance of ministers but have taken a cautious approach based on ongoing work (NSMC, 2008).

BDR09.indd 178

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

179

British–Irish institutions Much of the comment on cross-border cooperation following the Good Friday Agreement focused on the North–South Ministerial Council, rather overlooking another body which was set up following the agreement, to take forward the totality of relationships between the UK and Irish Governments. This was the British–Irish Intergovernmental Conference (BIIC) which subsumed both the Anglo-Irish Intergovernmental Council and Intergovernmental Conference established under the 1985 Anglo-Irish Agreement. The BIIC was to deal mainly with non-devolved matters, including cross-border cooperation on which the Irish Government could put forward views and to promote bilateral cooperation at all levels. It was also tasked with keeping under review the workings of the Good Friday Agreement. The conference could meet as required at summit level with the Prime Minister and Taoiseach, otherwise the Governments would be represented by ministers and meetings would be co-chaired by the Secretary of State for Northern Ireland and the Minister for Foreign Affairs in the Republic of Ireland. The BIIC had one inaugural summit level meeting in December 1999 which was also attended by the First and Deputy First Ministers and which approved a memorandum of understanding on its operation. The BIIC was not to meet again until after the suspension of devolved government. However, the inaugural conference had agreed an initial list of issues which would form a programme of work. This list consisted of two elements, matters for bilateral cooperation and nondevolved Northern Ireland matters (see Table 9.3). Table 9.3 Topics for cooperation British–Irish Intergovernmental Conference For bilateral cooperation Asylum and immigration Common travel area issues European Union Social Security fraud Education Misuse of drugs Money-laundering Fiscal issues

Non-devolved matters Criminal justice Policing Rights Security normalisation Cross-border security cooperation Rights Victims Prison issues Drugs trafficking Broadcasting

Source: BIIC Joint Committee, 17 December 1999.

BDR09.indd 179

3/23/2009 4:12:49 PM

180

Direct rule and the governance of Northern Ireland

When the BIIC met again in December 2002, without the pressures of disputes within the executive and assembly, it was decided to continue with the conference through the expressed desire to protect and maintain the achievements and institutions of the Agreement (BIIC, 2002). Again the imposition of direct rule meant that the BIIC could become fully operational and from that time on it met four times a year. It normally met in ministerial format and it was not until June 2005 that a second BIIC summit took place (BIIC, 2005). Mostly the BIIC has kept to the subjects originally identified as non-devolved as the subject matter for bilateral cooperation. Thus the agenda has focused on five main areas: political developments; security issues; policing; criminal justice and human rights and equality. The Conference has tended to take an interest in these areas from four different perspectives. Firstly, the Conference adopted an advocacy role, for example, summarising and reviewing political developments and urging local political parties to reach agreement. Secondly, it adopted a more widespread monitoring role for reforms in a number of areas: the implementation of Patten, progress on a bill of rights, nationality requirements for entry to the Civil Service, historic inquiries, the disappeared, and inquests. In practice it operated as a vehicle in which the Irish Government could raise issues of immediate concern on security, criminal justice and human rights, for example, on opening border roads, loyalist murders, the parades commission, security normalisation, the role of the Human Rights Commission and the Irish language. Many of these issues could be regarded as confidence building measures in the nationalist community. Normally cross-border police cooperation figured regularly on agendas and, in January 2004 the Chief Constable and the Garda Commissioner both attended a BIIC meeting. As time passed and with no formal meetings of the North–South Ministerial Council the BIIC began to move into the space created and take initiatives which related to devolved topics or the areas of North–South cooperation. Issues addressed included a single wholesale electricity market, a concessionary free travel scheme, energy efficiency awareness, public health and support for City of Derry airport. In 2006 the Conference discussed more comprehensive practical cooperation on infrastructural development and spatial planning and the economy (BIIC, 2006) and respective sectoral ministers were asked to review progress with cross-border cooperation. Decisions were made to commission a comprehensive study on the All-Ireland economy, covering particularly collaboration in science and technology and labour market development. Also approved was a joint North–West Gateway initiative based on cooperation in education, science, technology and innovation. This helped

BDR09.indd 180

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

181

move the Conference agenda away from the ‘nationalist complaints’ perspective. An entirely different body, the British–Irish Council (BIC) added a new dimension to Anglo-Irish cooperation introduced after the Good Friday Agreement. This was the idea of a broad representative body to provide a forum for the UK and Irish Governments, the devolved governments in Northern Ireland and Scotland and Wales together with representatives from the governments of the Isle of Man, Guernsey and Jersey. This originated in the negotiations as a counter balance to Strand II North–South relations. A new forum for East–West relations offered some reassurance to ulster unionists by locating aspects of relations between Northern Ireland and the Republic of Ireland ‘within a British Isles context’ (Lynch and Hopkins, 2001: 753). The British– Irish Council is sometimes referred to ‘the Council of the Isles’. The role of the British–Irish Council was defined at its inaugural meeting as ‘a forum for its members to exchange information, discuss, consult and endeavour to reach agreement on cooperation on matters of mutual interests with their respective competencies’ (BIC, 1999). The BIC did not have any executive or legislative powers and no separate budget. Operationally it developed quite structured and multi-levelled tiers of functioning. It would meet at summit level with senior ministerial involvement originally twice a year but, in practice, there has been only one summit a year. The Council meets more regularly at a second-tier level in sectoral format involving the relevant ministers and officials. There can also be a third level of ministerial contact through official level meetings, seminars and visits. The first summit agreed a programme of work of five topics with a given territory taking responsibility as the lead administration. The British–Irish Council commenced its work facing a great deal of scepticism. There was a perception that it was set up as placatory response to the Official Unionist Party and was of little interest to the government of the Republic of Ireland (Meehan, 2001). There was some doubt whether it would avoid overlap and find its own niche outside: the North–South Ministerial Council, the Anglo-Irish Intergovernmental Council, EU bodies and forums, the role of the UK and Irish Foreign Offices and the new Joint Ministerial Council set up in Britain to settle disputes after devolution. The British–Irish Council was not designed as a forum for internal UK discussions on the working of devolution. The focus, therefore, seemed to be on the relationship between the different territories of the UK and the Republic of Ireland. Thus the question arose (Meehan, 2001: 100) whether its role was restricted to issues with a clear Irish dimension. There was also some

BDR09.indd 181

3/23/2009 4:12:49 PM

182

Direct rule and the governance of Northern Ireland

concern about the potential for bilateral links with Scotland and Wales and the Republic of Ireland (Lynch and Hopkins, 2006). In the first year of operation the BIC did not have a high public profile nor was there great enthusiasm in Northern Ireland (Walker, 2001). The full Council had only met three times when the Northern Ireland Assembly and Executive was suspended in 2002. However, the BIC continued with the interests of Northern Ireland represented by the British Government. Under direct rule the BIC was to develop and increase its activities (see Table 9.4). Three main factors have contributed to this. Firstly, direct rule meant that there was no form of disruption in the form of disputes about Northern Ireland politicians’ attendance or other complaints about the Council’s working. At times during devolution the DUP and Sinn Fein had boycotted Council meetings. Secondly, the UK Joint Ministerial Committees set up to provide a forum between the devolved administrations mainly to address disputes with the UK Government or overlapping functions fell into disuse and largely withered away (Trench, 2004). The functional joint ministerial committees had the potential to overlap with the British–Irish Council. Thirdly, the Scottish, Welsh and Irish administrations developed some enthusiasm for participating in the Council and valued some of the outcomes, despite having no great stake in the Northern Ireland peace process. It has also facilitated bi-lateral links, particularly between Scotland and the Republic of Ireland and multi-lateral agreements

Table 9.4 Programme of work of the British–Irish Council and lead country From 1999 United Kingdom Republic of Ireland Northern Ireland Wales, Scotland Isle of Man/Channel Islands

Environment Tackling drugs Transport strategy Social exclusion Knowledge economy

Additions post-2001 Jersey Guernsey Isle of Man Wales Scotland

Knowledge economy Tourism Telemedicine Minority languages Demography

Source: BIC communiqués.

BDR09.indd 182

3/23/2009 4:12:49 PM

Cross-border cooperation and institutions

183

between members outside the formal institution. The summits of the British–Irish Council continued to be held only once a year in different locations, to receive reports from the sectoral groups, endorse actions and set new agendas. Ministerial attendance has been at a significant level of seniority, although the media profile was not always high. Table 9.5 is an example of the nature of attendance when the focus was on tony health issues. Tony Blair attended the first three summits but after this the role of representing the UK Government fell to the Deputy Prime Minister. The Taoiseach has continued to attend regularly as the representative of the Irish Government and on most occasions the First Ministers in Scotland and Wales have attended. The main work of the British–Irish Council was carried out in eight agreed work sectors with each administration taking the lead. Sectoral groups have also met, some more regularly than others as Table 9.6 indicates. The Council has tended to keep to the original topics with few additions but in 2006 a new priority work area of demography was agreed to be led by Scotland.

Table 9.5 2005 summit: British–Irish Council Representation British Government

Deputy Prime Minister Minister of State for Health

Representing Northern Ireland

Secretary of State for Northern Ireland Parliamentary Under Secretary of State

Irish Government

Taoiseach Tanaiste and Minister for Health

Welsh Assembly Government

First Minister and Minister for Health and Social Services

Scottish Executive

Deputy First Minister Minister for Health & Community Care

Government of Isle of Man

Chief Minister Minister for Health

Jersey

President Policy Committee President Health Committee

Guernsey

Chief Minister Minister of Health

Source: BIC Communiqué, 2005.

BDR09.indd 183

3/23/2009 4:12:50 PM

184

Direct rule and the governance of Northern Ireland Table 9.6 Work sectors and meetings, 2000–07 Environment Misuse of drugs Social inclusion Transport Minority languages Knowledge economy Tourism Telemedicine

7 5 2 2 1 – – –

Source: BIC Communiqués.

It is clear that the participants have found the work useful and it has taken on roles which have been seen as not contemplated when it was established (Trench, 2004: 181). The outcomes of the work of the different sectors can be described as threefold. Firstly, the sharing of best practice and information through reports, visits, seminars, exchange of views: examples are the role of credit unions, the operation of telemedicine, treatment of addicts and road safety. What Meehan (2001: 99) called the development of the cross-fertilisation of policy ideas and practice. Secondly, work that is of special British–Irish relevance specifically: marine conservation and biodiversity, waste strategy, regional airlines, the mutual recognition of driving qualifications and digital television. The one controversial agenda topic for the Council has been the issue of the Sellafield nuclear processing plant and radioactive waste, which has generated critical comments from the Irish and Isle of Man Governments. Thirdly, are some more general matters of common interest, examining employment opportunities for people with disabilities or rural transport. The increased activity of the British–Irish Council and the increased commitment from Scotland, Wales and the Islands can be seen as moving the Council beyond the confines of the Northern Ireland Agreement and making it a more ‘important player in governance networks’ (Lynch and Hopkins, 2006: 198). The period of direct rule, 2002–07 helped the Council develop a more permanent role and an identity away from a core Northern Ireland focus and even, it has been suggested, add a confederal element to United Kingdom relationships (Tonge, 2005: 161). Thus when Northern Ireland Executive ministers returned in 2007 there was a strong basis to develop cooperation further with new areas of work and with a standing secretariat.

BDR09.indd 184

3/23/2009 4:12:50 PM

Cross-border cooperation and institutions

185

The British–Irish Inter-Parliamentary Body was set up in 1990, not as a formal part of the developing Anglo-Irish institutions but under the auspices of the British and Irish groups of the Inter-Parliamentary Union. The idea was first mooted in the Anglo-Irish Joint Studies report of 1981 (Joint Steering Group, 1981: 11) as a development of the existing Anglo-Irish Parliamentary Group and was supported in the Anglo-Irish Agreement. While the British–Irish Inter-Parliamentary Body has no legislative or executive functions it is worth some comment as an institution which has some, if a limited, influence on governance and does make a contribution to the policy process. The InterParliamentary Body consists of twenty members from the sovereign Parliaments and the introduction of devolution the composition was revised to include five representatives from Scotland, Wales and Northern Ireland and single representatives of the Parliaments in the Isle of Man and the Channel Islands. However, the unionist parties refused to participate leaving one SDLP representative from the Westminster Parliament and two SDLP representatives and one Sinn Fein representative from the Northern Ireland Assembly, when it was operating. Representatives are drawn from both Parliamentary tiers in London and Dublin, the House of Lords and the Irish Senate. There is also a provision for the nomination of associates, as substitute representatives. The principal aim of the Inter-Parliamentary Body was to contribute to mutual understanding but it was to develop an input into the policymaking process. This is largely because it has based its operating procedures on Parliamentary practice in Westminster and Dublin. It operates not only through two plenary sessions each year but also through four committees which conduct inquiries. The main business of plenary sessions was usually a debate on a motion on recent political developments and sessions have concentrated on supporting the search for peace and a political solution in Northern Ireland. Debates were held on other topics, for example, on Sellafield, smoking in the workplace and foot and mouth disease. Ministers regularly attend to make statements. The Taoiseach has attended on several occasions as have other Irish ministers, usually the Foreign Minister or the Minister for Justice. The Secretary of State for Northern Ireland has frequently made statements, usually on recent political developments. One of the significant and distinctive features of the Inter-Parliamentary Body has been the question time at plenary sessions, at which a minister from the host country answers questions put by members of both Parliaments with provision for supplementary questions and also for written answers. The Taoiseach, the Northern Ireland Secretary of State and

BDR09.indd 185

3/23/2009 4:12:50 PM

186

Direct rule and the governance of Northern Ireland

the Irish Ministers of Foreign Affairs, Justice and Agriculture have all answered questions. This provides instances of cross-jurisdictional questions, for example, a UK MP asked the Irish Minister about plans to introduce a Police Ombudsman in the Republic of Ireland (British– Irish Inter-Parliamentary Body, 2002). Questions do tend to focus on political and security issues, for example, decommissioning, punishment beatings and formal inquiries in Dublin. A further unusual feature was that a Sinn Fein MLA member of the Inter-Parliamentary Body was able to put ‘Parliamentary questions’ to the Northern Ireland Secretary of State which could not happen in the House of Commons as Sinn Fein do not take their seats. Although not widely publicised, the Inter-Parliamentary Body carried out a continuous programme of work through four specific committees. Committee A deals with Sovereign matters, that is, subjects solely the responsibility of London and Dublin and was formerly called the Political and Security Committee. Committee B covers European affairs, Committee C economic affairs and Committee D environment and social affairs. The committees meet three or four times a year and take oral and written evidence. They have conducted hearings around the country and have travelled to Brussels. Obviously this committee work is on a much smaller scale than committee work in the parent Parliaments and a longer time is taken to complete reports. A list of the topics of reports is given in Table 9.7. A significant feature is that the two sovereign governments give a formal response, so there is some evidence of an influence on policy. The British Government accepted recommendations on the common travel area between Britain and Ireland and on the closer integration of animal health databases. The Inter-Parliamentary Body can ask for a further response if they regard the initial response as inadequate and, for example, the British Government was asked for a further response on a committee report on the reform of the Common Agricultural Policy (Cranmer and Roycroft, 2000) and have recorded complaints of inadequate action by the two governments on mutual recognition of penalty points. An early assessment saw the Inter-Parliamentary Body as exercising influence rather than tangible power and as a contribution to the general Anglo-Irish political environment (Taylor and Walker, 1997). It served as an East–West parliamentary body. Much of the work of the Inter-Parliamentary Body has been in the context of political developments in Northern Ireland and it has been argued that it has seen its role as providing support in peace initiatives (Cranmer and Roycroft, 2000). Unionist objections to participation were largely based on perceptions that it could be a move in the direction of all-Ireland

BDR09.indd 186

3/23/2009 4:12:50 PM

Cross-border cooperation and institutions

187

Table 9.7 Inquiries by inter-parliamentary body committees Committee A Sovereign affairs Committee B European affairs

Mutual recognition of penalty points, common travel areas and ID cards, barriers to trade EU aid for peace and reconciliation, reform of common agricultural policy, links with Nordic Council, transport links, European funding programmes and developing understanding across borders, European funding in socially deprived areas of Northern Ireland

Committee C Economic affairs Future of small farms, tourism, health services for rural populations, animal health, road and rail links, challenges to small farm sector Committee D Environment and social affairs

Environment issues affecting UK and Ireland, Sellafield, education and inter-community relations, higher education links, parades, pensions, special education needs, waste management, young people in economically deprived areas

Source: British–Irish Inter-Parliamentary Body, 1997–2007.

Parliament or reduce Westminster sovereignty over Northern Ireland although the DUP broke a 15-year boycott when a delegation attended the plenary session in Killarney in 2006. The direct rule ministers had fully participated in the operation of the body. A number of other British–Irish networks of statutory bodies have been established, specifically noteworthy are: the Joint Equality and Human Rights Forum; the British–Irish Ombudsman Association, established in 1994, and the more recent British–Irish Network of Children’s Commissioners. All of these networks involve the relevant agencies from Northern Ireland, the Republic of Ireland and Great Britain. The development of inter-agency cross-border links The general growth of cross-border cooperation led to the formation of a number of other governmental organisations which promoted cross-border activity. Some North–South links involve only statutory bodies but some are in forms of partnership with voluntary, community

BDR09.indd 187

3/23/2009 4:12:50 PM

188

Direct rule and the governance of Northern Ireland

and other organisations. Some of the most developed cooperation is to be found in the health field. An Institute of Public Health was established in 1994 on an all-Ireland basis by the two departments of health to share information and expertise on common public health concerns. Cooperation and Working Together (CAWT) originally involved two health boards in the South and two health and social service boards in the North, coming together to support and develop cross-border health and social care cooperation with a remit covering the whole of the Irish border region. An evaluation in 2001 found that cooperation in health service delivery was not so strongly developed (Clarke and Jamison, 2001). Subsequently CAWT has developed a wide range of projects in mental health, learning disability, carers, older persons, pharmacy, primary care, GPs out of hours services, fostering and child care and CAWT can be seen as one of the most active and prolific of all cross-border organisations. Cross-border cooperation in health does have some other dimensions including the purchase of services across the border for patients in areas such as cancer services and plastic surgery. However, major cross-border joint working in hospitals in border areas did not develop significantly even with direct rule and was dependent on local bilateral agreements. Patient mobility across the Irish border has not been very extensive and a study of cross-border patient flows (Clarke and Jamison, 2006) showed that patients from the Republic of Ireland using hospital services each year in Northern Ireland represented only 0.4 per cent of all patients treated. The number from Northern Ireland who were treated in the Republic of Ireland was even less, representing only 0.11 per cent of all patients treated. There is also ongoing cooperation between government departments in Belfast and Dublin on a range of topics usually involving working groups and exchanges of information and practice, policy/liaison and development work, for example, on literacy/ numeracy, an all-Ireland energy market, cross-border roads, an environmental research database, all-island cancer statistics, suicide prevention, child protection, data on drug use in both parts of Ireland and planning for major emergencies. An all-island strategy was developed on animal health and the EU water framework directive has been implemented on a North–South basis. Cooperation between statutory bodies outside the six areas of cooperation has grown in other areas. This covers a broad variety of initiatives including the establishment of a single electricity market and cross-border roaming charges for mobile phones. One of the most important joint strategies was produced by the Northern Ireland Secretary of State and the Republic’s Minister for Foreign Affairs in October 2006 with an agenda for an all-Ireland

BDR09.indd 188

3/23/2009 4:12:50 PM

Cross-border cooperation and institutions

189

economy and strengthening economic cooperation based on pooling resources for overseas trade promotion, more collaboration in research and a coherent transport infrastructure. The National Development Plan 2007–13 for the Republic of Ireland sets out a comprehensive statement of future government policy on North–South cooperation with detailed proposals agreed with the direct rule administration identifying ten key areas for cooperation (Department of Finance, 2007). Partnership working between voluntary and community groups and statutory bodies has become a major vehicle for cross-border cooperation. The community and voluntary sector accounts for some 57 per cent of the total of organisations involved in cross-border cooperation (Acheson et al., 2005). Cooperation can involve different levels and sectors of governance and service providers. Cooperation in education provides examples such as Universities Ireland and also the Standing Conference on Teaching Education North and South which bring together all the key agencies.

Local government cross-border cooperation District councils have increasingly entered into collaborative arrangements with councils in the Republic of Ireland. This may be rather surprising given the strong unionist views of many councillors but a study in 1994 (O’Dowd and Corrigan, 1995) found that substantial numbers of unionist councillors favoured cross-border economic cooperation even if they rejected institutional political links. A research study (Birrell and Hayes, 2001) showed that twenty-five of the twenty-six councils had participated in cross-border projects. The most structured and long standing arrangements were the cross-border networks. The North-west Region Cross-border Group and the East Border Region were established in the 1970s. A third network, the Irish Central Border Area Network (ICBAN), was not formed until 1995 and now comprises five district councils in the North and five county councils in the South (see Table 9.8). Funding for the networks came mostly from the European programmes, Interreg 1 and 2, with some funding from each participating council. The networks have sought to promote the border regions in the areas of industrial development, commerce and tourism. The local authority networks continued to develop and in 1999 the three networks devised strategic aims for the border region as a whole, known as the Border Corridor Strategy, under which the integrated area plans of the three border networks would be

BDR09.indd 189

3/23/2009 4:12:50 PM

190

Direct rule and the governance of Northern Ireland

Table 9.8 Local government cross-border networks East Border Region Banbridge Craigavon Down Louth CC Monaghan CC Newry-Mourne

Irish Central Border Area

North-West Region

North-East Partnership

Armagh Cavan CC Cookstown Donegal CC Dungannon Fermanagh Leitrim CC Monaghan CC Omagh Sligo CC

Derry Donegal CC Limavady Strabane

Antrim Ballymena Ballymoney Carrickfergus Coleraine Larne Moyle Newtownabbey

Source: Birrell and Haynes (2001).

implemented and form a basis for Interreg III funding. This was to see the networks develop further as implemention agents for the allocation of funding but with the EU requirement that they move to a partnership model with local groups represented on their management boards. The networks were successful in establishing an ethos of cross-border cooperation during the years of political difficulty, in establishing a more integrated approach to regional development and in providing a critical mass of population and capacity for cooperating activity. They have also established themselves as strong, credible lobby groups on behalf of cross-border work and regularly hold meetings with Northern Ireland ministers, Irish ministers, MEPs, TDs, Senators and MLAs. Most significantly the networks have been able to generate crosscommunity political support. This was most clearly demonstrated when a fourth network was created in 2003, the North East Partnership comprised eight councils in the north-east of Northern Ireland. Seven of these were unionist controlled councils and the agreed aim was to seek cross-border development opportunities. Local Government cooperation exists in other formats, in one to one linkages, for example, the Newry–Dundalk councils linkage. It has also become common for councils to develop partnerships with other statutory bodies on a crossborder basis. This was necessary because of the differences in functions between councils north and south. Thus councils in the south wishing a link with housing bodies in the north had to collaborate with the

BDR09.indd 190

3/23/2009 4:12:50 PM

Cross-border cooperation and institutions

191

Northern Ireland Housing Executive. TradeNet Ireland, set up to promote economic development on the Belfast–Dublin corridor involved nine district councils with seven county enterprise boards from the south. It is noticeable that there was no strategy endorsed by direct rule governments to promote cross-border local government cooperation nor specific guidelines. In practice many local government linkages have been generated bottom up, initiated by councillors, officials or local groups. Funding for cross-border cooperation The growth of cross-border cooperation has been boosted by the political initiatives enhancing the Irish dimension and facilitated by direct rule oversight. However, there has been another major driver and that has been the availability of special funding, particularly EU funding. Historically the introduction of direct rule had been followed fairly closely, in January 1973, with the United Kingdom and the Republic of Ireland both becoming members of the European Economic Community and this was to have an ever-increasing impact, especially on funding cross-border relationships. The EU Special Support Programme for Peace and Reconciliation, introduced following the 1994 ceasefire has extensively supported cross-border projects aimed at promoting reconciliation, social inclusion and economic regeneration in Northern Ireland and the border counties of the Republic. Funding has gone to voluntary and community partnerships, public bodies and crosssectoral partnerships. The Peace II initiative focused more on addressing the legacy of the conflict and taking opportunities arising from peace and supported cross-border cooperation as one of its five main priorities. Extensive funding has also come from the EU Interreg Programme. It was not until 1990 that the EU developed Interreg as a specific programme to promote cross-border cooperation in Europe. The first Interreg initiative for Ireland was introduced from 1991 to 1993 and the second from 1994 to 1999. Interreg IIIA, between 2000 and 2006 had measures for business and economic development, rural development, the physical infrastructure, environmental projects and community infrastructure. Interreg is particularly relevant to the Irish border region in tackling problems of peripherality and rurality, and Interreg II and IIIA have been major sources of funding for some 200 projects in the 2000–05 period (Magennis et al., 2006). Apart from the EU there are other major sources of international funding which have supported cross-border cooperation, particularly the International Fund for Ireland, Cooperation Ireland as well as other charitable trusts. However

BDR09.indd 191

3/23/2009 4:12:50 PM

192

Direct rule and the governance of Northern Ireland

Table 9.9 Common chapter North/South expenditure 2004 3 millions

2005 3 millions

EU supported programmes Operational programmes North/South implementation bodies Six areas of cooperation Other public sector cooperation

67 178 72 78 7

60 212 76 86 11

Total

402

444

Areas

Source: Centre for Cross Border Studies/FPM (2007).

the signifi cance of EU funding is demonstrated by the Common Chapter (see Table 9.9), which is an agreed chapter of text contained within the Northern Ireland Structural Funds Plan (2000–06) and the National Development Plan for the Republic of Ireland (2000–06) and was designed to provide a framework for closer cooperation and encourage economic cooperation. Implementation of the Common Chapter was meant to operate under the direction of the North–South Ministerial Council but instead it has been run on a holding basis by the direct rule administration and the Irish Government. A report on the Common Chapter was carried out for 2004/05 and focused on North–South expenditure and activity in five areas. This is summarised in Table 9.9. A number of points can be noted from this report (Centre for CrossBorder Studies, FPM, 2007). Firstly, government expenditure especially on the infrastructural operational programmes was higher than the EU Peace and Interreg funding although this was mainly expenditure on road projects, Derry City Airport and cross-border transport services. It is, however, the EU programmes which have driven the largest number of cross-border projects, almost 450 in 2004–05. Secondly, there was an overall upward trend in expenditure from 3346 million in 2002 to 3445 million in 2005. Thirdly, despite the care and maintenance approach to North–South Bodies, expenditure rose steadily between 2005 and 2006. Fourthly, mainstream funding for the six areas of cooperation was very limited, accounting for 314 million each year, if tourism and expenditure on Tourism Ireland is deducted. It has been suggested that expenditure measures in the Common Chapter do not tell much about the extent of cross-border cooperation (Magennis, 2007). Although Northern Ireland will benefit from Peace 3 and Interreg IV programmes, with European enlargement and the

BDR09.indd 192

3/23/2009 4:12:50 PM

Cross-border cooperation and institutions

193

new cohesion strategy, funding will be on a gradually reducing basis. In the National Development Plan 2007–13 the Irish Government has moved for the first time to plan significant mainstream investment in North/South strategic and development projects with a contribution of £400 million to help fund major roads programmes (Department of Finance, 2007: 110). Assessment The establishment and development of cross-border institutions and cooperation has been a highly politicised exercise. The institutions created tend to reflect views and actions of British and Irish Governments and their bureaucracies and designing cooperation to encourage unionist participation has always presented obstacles. What has been termed the political symbolism of cross-border cooperation has always been important (Laffin and Payne, 2001: 48). Unionist fears that crossborder cooperation represents a move to a united Ireland has been a background factor but unionist politicians over time have adopted more positive attitudes. This reflects the recognition of economic advantages of cooperation, the attraction of funding, the more politically neutral EU framework which covers much of the cooperation and the gradual growth of cooperation. It has also been the case that politicians in the Republic of Ireland, while not objecting to cross-border cooperation, have not seen it a priority political issue for voters. Tannam (2006b) has suggested that cooperation has emerged more obviously from Anglo-Irish Intergovernmental policy and not from a dominant influence of EU membership or from bottom-up cooperation. However, cooperation in the voluntary and community sector has been a significant bottom-up factor in developing a large local base of cross-border cooperation, demonstrating to politicians and civil servants the practical benefits and enhancing public awareness of the potential of North– South cooperation. (Democratic Dialogue, 1999; Acheson et al., 2005). The Anglo-Irish governmental initiatives have been instrumental in pushing the two civil services into greater cooperation headed by the Anglo-Irish division of the Department of Foreign Affairs and the Northern Ireland Office. The momentum was continued after 2002 with high-level intervention and management in the civil services and a review of corporate government of North–South bodies was carried out in 2003 (Tannam, 2007). Although direct rule brought the political will to promote North– South cooperation, cross-border working faced a number of more practical obstacles which can be categorised as follows.

BDR09.indd 193

3/23/2009 4:12:50 PM

194

Direct rule and the governance of Northern Ireland

• Differences in policy and legislation: For example; in welfare benefits, access to health and the tax systems. Policy harmonisation is largely non-existent. • Legal and constitutional differences: For example; the provisions of the Irish Constitution on the rights of the family or laws on medical malpractice and vetting procedures. • Differences in models of provision: the voluntary sector has traditionally played a much more significant role in education, health and social care in the south than is the case in the north. • Administrative differences: the structure of public administration in both jurisdictions presents obstacles, for example, in the mismatch in functions of local councils. • Accountability to different participants: cross-border institutions have two lines of accountability to their parent bodies, usually Dublin and Stormont departments but sometimes UK departments. • Professional qualifications: recognition of qualifications, for example; in social work, nursing or teaching and the Irish language requirement has presented obstacles although these are being tackled. • Lack of dedicated budgets: much of the funding is short term with limited mainstream departmental funding. • Competition: It cannot be ignored that the two territories may actually be in competition with each other in certain circumstances, for example, for inward investment or tourism. Direct rule administrations have seen cross-border cooperation as part of their approach to building peace and a political settlement, for improving relations both between North and South and between Britain and Ireland. Direct rule has thus provided a facilitative environment for setting up institutions to develop and enhance cross-border cooperation. Direct rule administrations treated North–South cooperation as a political priority, gave it a heightened importance and moved collaboration with government ministers and bodies in the South to the fore. The two governments have tended to take a centralising control role and have moved cross-border cooperation more towards largescale spatial projects perhaps at the expense of the community sector (Creamer et al., 2008). Tannam (2006a) has investigated whether the new North–South arrangements after the Good Friday Agreement conformed to a number of EU models of cooperation and concluded that the institutions signified a shift in conceptions of national autonomy and sovereignty by allowing shared authority for designated areas but there was still an emphasis on centralised executive control. In fact David Trimble had negotiated the arrangements on the basis that they

BDR09.indd 194

3/23/2009 4:12:51 PM

Cross-border cooperation and institutions

195

did not follow an EU model, for example, the North–South Ministerial Council would report back to Dublin and Belfast. One theme overall has been a cautious approach to the growth of North–South cooperation and it remained a relatively small component of the total system of governance. Civil servants north and south may have seen it as upsetting traditional procedures and jurisdiction and it has been suggested that the Irish Civil Service was not particularly enthusiastic (Fitzgerald, 1991: 203). The direct rule administration also appeared to keep the cross-border institutions on the margins and it is suggested they were not embedded in the wider network of institutions (O’Dowd, 2006). Cross-border cooperation has not been mainstreamed into regional service planning or put on a more sustainable resource basis. It is noticeable that there was almost no discussion of the crossborder dimension in key policy documents produced under direct rule, the reform agenda in the Civil Service, the Review of Public Administration and the review of the structure of health and social services. While the civil servants in the secretariats of the North–South institutions may be strongly supportive, a report found that civil servants did not always know about the Common Chapter or its purpose in guiding cross-border cooperation (Centre for Cross-Border Studies, 2007: 49). Tannam (2006a: 417) and O’Dowd (2006) both identify a lack of highlevel political direction and impetus and a lack of strategic vision. Direct rule did not lead to a mainstreaming of the arrangements. However it presided over a major expansion in Anglo-Irish relations and the establishment of institutions to facilitate the involvement of the Irish Government in aspects of policy-making and administration in Northern Ireland and to promote North–South cooperation in areas of service provision. Most of these initiatives were determined and shaped by the two governments and had a political basis and objective. Cross-border cooperation in service provision has developed outside the implementation bodies but has been supported by EU funding rather than British and Irish Government funding. This type of collaboration has been driven partly by professionals and administrators and partly by the community sector, rather than a top-down approach by direct rule administrations although they did provide a supportive governmental environment. Laffan and Payne (2001: 16) argue that the role of EU as an animator of cross-border cooperation cannot be underestimated. It is clear that the EU has provided funding, has laid down the nature and substance of cross-border working, the model of governance, a bottom-up development model and has provided a non-threatening framework politically. The forms of governance set up for cross-border cooperation have largely been attached or fitted on to the existing

BDR09.indd 195

3/23/2009 4:12:51 PM

196

Direct rule and the governance of Northern Ireland

structures of statutory boards or departments or partnerships. This has created a fairly unique form of multi-level governance drawing on European, national governments, regional/devolved government machinery, local government and unique cross-border institutions.

BDR09.indd 196

3/23/2009 4:12:51 PM

10

Ombudsmen, commissioners and complaints

One of the first areas for reform identified by the British Government following their intervention after the civil disturbances in 1969 was citizen grievances against decisions and actions by government agencies. This approach was developed and rolled out by the direct rule administrations, based firstly on copying measures from Great Britain which involved setting up institutional structures to deal with maladministration and discrimination. A second area of development covered human rights and equality and a third area embraced the area of law and order and actions of the security forces. As direct rule developed some of the new institutions and procedures closely followed practice in Great Britain whereas others were to be more specifically tailored to suit Northern Ireland conditions. The Northern Ireland Ombudsman The introduction of an Ombudsman, an idea introduced in Great Britain in 1967, reflected an approach based on copying UK legislation. The Northern Ireland Parliamentary Commissioner for Administration (PCA) was set up to investigate complaints from individuals who claimed to have suffered injustice in consequence of maladministration in connection with actions taken by Northern Ireland government departments. The first British Ombudsman, Sir Edmund Compton, also became the first Northern Ireland Commissioner and complaints had to be sponsored in the first instance through Stormont members of Parliament in imitation of the Westminster procedure. As in Great Britain maladministration was not defined in legislation but the same definition as in Britain (the Crossman Catalogue) was used. Maladministration was taken to cover administrative actions (or inactions) based on or influenced by improper considerations or conduct, arbitrariness, malice or bias, including discrimination (PCA, 1974). This was later redefined by the Northern Ireland Ombudsman to regard

BDR10.indd 197

3/23/2009 4:13:15 PM

198

Direct rule and the governance of Northern Ireland

maladministration as meaning poor administration covering the wrong application of rules, avoidable delay, failing to follow correct procedures, failure to provide a service; not informing people of rights of appeal; unfairness, bias or prejudice; giving misleading or inadequate advice; refusing to answer reasonable questions; mistakes in handling claims and failure to apologise properly for errors. The Ombudsman could not question matters of policy or discretionary judgements and decisions in the absence of maladministration. One major original difference from the UK Parliamentary Commissioner was that the Northern Ireland PCA could investigate personnel complaints from civil servants and unsuccessful candidates for appointments in government departments. Also established at the time of the UK Government’s initial intervention was a second Ombudsman office, which was unique to Northern Ireland. A Commissioner for Complaints was established in 1969 to investigate any written complaint made by an individual who claimed to have suffered injustice in consequence of maladministration in connection with administrative actions of any local government or other public body, including originally, complaints of religious and political discrimination. The two Ombudsmen therefore presented almost total coverage of public services. Shortly after the introduction of direct rule the two offices were effectively integrated. This was not so much a consequence of a direct rule decision as a consequence of the fact that the first Commissioner for Complaints, Mr Benn, was also appointed Parliamentary Commissioner for Administration. The operation of dual functions did not appear to have caused difficulty despite operating under separate legislation (Hayes, 1990). A major difference between the two offices was that the public could complain directly to the Commissioner for Complaints without involving MP sponsorship. A number of changes in the Ombudsmen’s jurisdiction occurred in responding to other government initiatives. The establishment of a Fair Employment Agency in 1976 meant that the Ombudsmen ceased to investigate allegations of religious or political discrimination in employment while the creation of other structures meant that the Ombudsmen no longer dealt with complaints of sex discrimination or unfair dismissal. On the other hand a range of public bodies were added to the jurisdiction of the Commissioner for Complaints, as well as the sixteen executive agencies created within government departments in 1996 and also the administrative functions of tribunals. Northern Ireland did not follow Britain in having a separate Health Services Commissioner and the Commissioner for Complaints has continued with the power to investigate complaints arising in the field of hospital, community health, primary care and social care administration. The two Offices were to

BDR10.indd 198

3/23/2009 4:13:15 PM

Ombudsmen, commissioners and complaints

199

be formally largely unified organisationally into a Northern Ireland Ombudsman in 1996. This integrated the Commissioner for Complaints with what would be defined either as the Parliamentary Ombudsman or the Assembly Ombudsman, depending on the operation of direct rule or devolution. A former restriction on investigating complaints about the exercise of clinical judgement by healthcare professionals was removed in 1996, to bring the powers into line with the Health Services Commissioner in Great Britain. In 1997 the jurisdiction was further extended to include complaints against independent contractors in the health service. The number of complaints against Northern Ireland Government departments and agencies has remained fairly consistent. Complaints reached the two hundred mark in 1987 and since the early 1990s the number of complaints received has settled at an average of around two hundred and fifty per year. The totals in the last decades are given in Table 10.1. Complainants are also expected to have used the relevant body’s internal complaints procedure before going to the Ombudsman, so the complaints that do come to the Ombudsman for independent decision are often the more complex. A relatively small number of complaints received actually reach a full investigation, around 10–15 per cent. An initial validation stage rules out complaints which fall outside the jurisdiction of the PCA while a proportion of investigations are discontinued, withdrawn, or settled without an in-depth investigation. During direct rule complaints required the sponsorship of a member of Parliament. If submitted direct it was the practice to invite sponsorship (PCA, 1994). Three areas have dominated the PCAs work as Table 10.2 shows: planning complaints, welfare benefits including child support, and personnel matters in the Civil Service. As planning approval was a central

Table 10.1 Investigation of complaints by Parliamentary Commissioner/ Assembly Ombudsman

1970–79 1980–89 1990–99 2000–08

Complaints received

Investigations fully completed

Complaints fully upheld

684 1,672 1,984 1,962

244 276 175 274

66 75 113 63

Source: Annual Reports of PCA.

BDR10.indd 199

3/23/2009 4:13:16 PM

200

Direct rule and the governance of Northern Ireland Table 10.2 The main subject areas of complaint to the Parliamentary Commissioner, 1995–2005 Planning Welfare benefits Personnel Roads Water Education Agriculture Rates Other

661 511 387 81 69 21 7 22 908

Source: Annual Reports PCA/Northern Ireland Ombudsman.

government responsibility in Northern Ireland the administration of planning procedures produced more complaints and probably more deeply felt grievances than any other subject and has been an area of increasing complaints. The Ombudsman cannot investigate complaints about the entitlement to or level of benefits which are the responsibility of tribunals but the administration of benefits still has produced a substantial number of complaints. The distinctive jurisdiction of personnel complaints has mainly involved allegations of maladministration in handling applications for posts such as shortlisting, use of references, interview procedures and management of grievance cases. The Parliamentary Ombudsman frequently reported annually that there were no complaints in which religious discrimination was alleged. Such allegations were fairly rare but in the context that religious discrimination in employment was removed from the Ombudsman’s jurisdiction. The number of complaints which are fully upheld has also been low, since 1973 around four to nine per year. Findings of maladministration have included defects in processing grant applications, delays in payments, handling of planning objections and failures in communication. Successive Ombudsman have noted the cooperation of government departments in accepting recommendations to remedy an injustice. One PCA commented that although government departments sometimes argued they always surrendered in the end and adopted his point of view (PCA, 1987). The Ombudsman in some cases has accepted that no remedial action beyond an apology was possible but has also insisted on a financial remedy in appropriate circumstances. In the course of his investigations the Ombudsman has often been led

BDR10.indd 200

3/23/2009 4:13:16 PM

Ombudsmen, commissioners and complaints

201

to question the procedures and rules of government departments and to recommend changes, taking individual complaints as symptoms of wider service problems. Since 1980 the reports of the Northern Ireland Parliamentary Commissioner have been subject to examination by the Westminster Select Committee on Public Administration. The Ombudsman has been questioned closely on the length of time for investigations to be completed, the reasons for an increase in benefits complaints, the jurisdiction over Civil Service personnel complaints and the low public awareness of the Office. In practice there have not been annual parliamentary reports on the Northern Ireland Ombudsman. The last report before direct rule focused on delays in the internal complaints system of some bodies, the Child Support Agency and limited action by the Planning Service to stop the flow of complaints (Select Committee on Public Administration, 1998). This produced a government response detailing measures being undertaken to improve service delivery in planning and child support. In 1982 when questioned about public knowledge of his role, the PCA replied that he was satisfied that ‘there are no people out there as it were who have complaints and have no means of ventilating them’ (PCA, 1987). In 1997–98 there was a television advertising campaign. However, there is still some concern about public awareness of their right to complain, particularly among lower income groups (Select Committee on Public Administration, 1998: para. 4) and also among the young. There have also been calls for the removal of the MP/MLA filter but the case is made that sponsorship keeps public representatives informed about the experiences of their constituents in dealing with government departments. Complaints about local councils and public bodies can be submitted directly to the office of the Commissioner for Complaints (CC), a position now filled by the Northern Ireland Ombudsman. The number of complaints was at its highest in the early years of the Office from 1977 to 1980, between 500–700 per year. Subsequently the number of complaints dropped to a consistent level of 260–390 per year. This was probably a response to the establishment of new internal complaints procedure, particularly by the Northern Ireland Housing Executive (NIHE). Since 1987 the number of complaints remained at largely consistent annual levels, until dropping steadily in the last three years to only 200 in 2006–07. Since its inception housing complaints have continued to dominate the workload as Table 10.3 shows. The NIHE, until the growth in the role of housing associations, was the only social housing landlord, and the dominance of housing complaints has led to the Commissioner been viewed as a ‘Housing’ Ombudsman. The

BDR10.indd 201

3/23/2009 4:13:16 PM

BDR10.indd 202

Table 10.3 Bodies against which complaints received and outcome: Commissioner for Complaints Year 1993 1994 1995 1996 1997 1998 1999–00 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07 2007–08

Local councils

Northern Ireland Housing Executive

Housing associations

Education boards

Health and Social Services

Other

Total

Complaints fully upheld

51 51 59 63 70 56 41 71 66 52 45 52 49 37 40

169 135 134 150 153 149 138 131 125 105 144 100 99 91 69

– – – – – – – – – – – 16 16 22 18

30 48 50 39 36 58 35 24 14 40 57 34 23 20 29

65 67 79 72 85 54 39 22 21 27 35 14 23 12 16

70 50 52 60 88 70 55 44 77 74 56 16 8 18 21

345 351 374 384 432 387 308 292 303 298 337 232 218 200 193

12 29 26 13 15 18 5 14 16 13 14 7 7 4 17

Source: Annual Reports of the Commissioner for Complaints.

3/23/2009 4:13:16 PM

Ombudsmen, commissioners and complaints

203

transfer of social housing responsibility to some forty-two housing associations is unlikely to reduce the dominance of housing complaints and may give rise to issues of consistency of approach, particularly as the Northern Ireland Housing Executive had a well-established complaints procedure. Housing complaints covered a range of topics, including grants, allocations, repairs, house sales, adaptations, and more recently issues related to waiting times for applicants. Complaints against public bodies also related to job selection processes, promotion procedures and other personnel matters, for example, redundancies and staff appraisals. Local council complaints also frequently related to job applications but covered a wide range of matters ranging from public health notices, tenders for contracts and waste management to booking of council facilities and naming of roads. One of the original reasons for the establishment of the CC was to tackle religious and political discrimination (since 1976 excluding employment). The Commissioner had in early years defined discrimination as the taking of a decision in favour of or against a person which is motivated by consideration of the person’s religious beliefs or political opinions (CC, 1971). In almost every annual report the Commissioner has reported receiving no complaints about religious discrimination. In relation to cases fully investigated the Commissioner can also partially uphold the complaint or note a criticism of a public body. Findings of maladministration have included communication of incorrect information between bodies, inadequate record keeping, delays in processing applications and errors in assessment. The CC was empowered to make consolatory payments as well as requiring an apology from the public body to the complainant. With the CC’s findings there was also the availability of a final redress to the courts which added an edge to the powers of the office that was lacking in corresponding offices in Great Britain and which can be seen as unique within the traditional public sector Ombudsman model. Again, like the Parliamentary Commissioner, findings have led to general improvements in the administrative process, for example, in the administration of grants and selection board procedures. When the post of Health Service Ombudsman for England was established in 1977 the UK Parliamentary Commissioner for Administration was appointed to that role, leading to the creation of the Office of the Parliamentary and Health Service Ombudsman. In 1997 the jurisdiction of the Commissioner for Complaints in Northern Ireland was extended to cover general health services providers and since 1998 a separate section of the annual report has dealt with health services complaints.

BDR10.indd 203

3/23/2009 4:13:16 PM

204

Direct rule and the governance of Northern Ireland

The Commissioner has the power to investigate both the administrative actions of health service organisations and the exercise of clinical judgement by healthcare professions, but does not get involved in cases of medical negligence nor claims for compensation. The Commissioner can call in an independent clinical assessor or other professional advice and since 2007 has accessed professional clinical advice through a service level agreement with the health service Ombudsman in England (Northern Ireland Ombudsman, 2008). Findings of maladministration have included removing patients from GP lists, the poor standard of clinical notes and unsatisfactory communication of information to families, failure of communication between nursing and medical staff and failure to implement discharge procedures. Again the recommendations of the Commissioner are normally accepted and acted upon, but the Ombudsman has expressed deep concern that following two findings of maladministration (see Table 10.4) concerning the removal of patients from a GP list, the recommendation regarding an apology and a consolatory payment were ignored (Northern Ireland Ombudsman, 2007). The existing legislation, wherein if an authority ignores the Ombudsman’s recommendation the aggrieved person can seek damages in the Crown Court does not apply in respect of independent contractors providing medical services. Other responses have been slower than the Ombudsman anticipated, for example, a departmental review of health and social services complaints procedures. Complaints against the United Kingdom Government departments which operate in Northern Ireland are outside the Northern Ireland Ombudsman’s jurisdiction and are the responsibility of the United Kingdom Parliamentary Commissioner. Thus complaints against HM Revenue and Customs, the Ministry of Defence and the Home Office, are investigated by the UK Ombudsman as are complaints against the Northern Ireland Office and the Northern Ireland Court Service. The complaint needs to be referred by an MP. There were only thirty-one complaints received against the NIO between 1980 and 1995 and investigations were completed in fifteen cases during this period. These complaints have mainly concerned prisons, for example, relating to the handling of correspondence and visiting arrangements. The establishment of a separate Prisoner Ombudsman for Northern Ireland has meant that complaints from Northern Ireland to the UK Ombudsman dropped to a very low level of one or two per year. Although the two Ombudsman Offices in Northern Ireland were set up directly to tackle specific Northern Ireland issues of discrimination and related unfairness, the Office did not develop during direct rule in ways particularly focused on conflict related issues and in fact moved into the

BDR10.indd 204

3/23/2009 4:13:16 PM

BDR10.indd 205

Table 10.4 Health service complaints, 1999–2008 1999–00

2000–01

2001–02

2002–03

2003–04

2004–05

2005–06

2006–07

2007–08

66

85

107

103

94

74

110

88

117

Full investigations

2

10

6

4

6

8

4

14

19

Upheld

1

2

2

1

4

2

2

5

1

Partially upheld

1

2

1

1

0

4

2

9

8

Complaints received

Source: Northern Ireland Ombudsman Annual Reports.

3/23/2009 4:13:16 PM

206

Direct rule and the governance of Northern Ireland

background more in comparison with some of the new Ombudsmen created later, such as the Police Ombudsman. This reflects in part the fact that the Ombudsman is restricted to examining the way decisionmaking is administered and its consistency with legislation and policies. The work of the Offices that comprise the Northern Ireland Ombudsman is limited by the restrictions on consideration of discretionary decisions which ‘lie at core of individual complaints’ (Northern Ireland Ombudsman, 2007). The current Ombudsman has also suggested that a change to improve the effectiveness of the Office could include ‘own initiative’ investigations or systemic investigations without having to wait for a complaint to be made (Frawley, 2007) which could be more useful than a focus only on individual complaints. Public access to the Ombudsman has been a continuing issue and the Ombudsman has suggested removing the hurdle of sponsorship by an MLA or MP. The continuing existence of really three jurisdictions of the Northern Ireland Ombudsman is reflected in the annual reports; however, such an approach to the Ombudsman’s work was to hide the dominance of a cross-cutting theme of employment/personnel matters. It remains the case that the legislation underpinning the office of Ombudsman in Northern Ireland has been strongly focused on giving public servants a preferential right of access to the Ombudsman. The UK Parliament and Health Commissioner and the Scottish Public Service Ombudsman do not cover public sector personnel matters. It has been argued that the Ombudsman should be concerned with relationship between the government and the governed not with relations between employer and employees (Birrell, 1984). These cases also have tended to take up substantial resources and a review in 2004 recommended the removal of employment matters from the jurisdiction (Deloitte, 2004). An unusual feature of the Northern Ireland Ombudsman Office is that the staff were mainly seconded civil servants. The rationale was on grounds of efficiency and having investigators expert in the system they are investigating. This strategy could be criticised on the grounds of ‘civil servants investigating other civil servants’ and must distract from the impartiality of the office and empathy with user/complainants perspectives and is not the practice in England, Wales or Scotland. More recently staff have been seconded from local government and health bodies as well as the Civil Service. The Northern Ireland Ombudsman have generally expressed satisfaction with the standards of local administration and the delivery of public services. In 1993 the Ombudsman, Jill McIvor, had commented that ‘the job of the Ombudsman was as much to improve administration as to pursue injustice suffered by the

BDR10.indd 206

3/23/2009 4:13:16 PM

Ombudsmen, commissioners and complaints

207

individual citizen’. The current Ombudsman, Tom Frawley, has noted ‘we generally enjoy a standard of public service unrivalled in many other countries’. However, the Northern Ireland Ombudsman is still in discussion with OFMDFM on a set of principles of good administration, similar to those produced by the UK Parliamentary Commissioner and the Scottish Ombudsman. Fair employment institutions The Fair Employment Agency was established in September 1976, by the direct rule administration following the recommendations of the Van Straubenzee working party (Ministry of Health and Social Services, 1973) which had been set up to consider steps to counter religious discrimination in the private sector of employment. It suggested that the Government might wish to consider the implications of the Ombudsman’s powers for the public sector with the view to securing consistency of treatment. The major recommendation was for the creation of the Fair Employment Agency (FEA), with wide powers and responsibilities for investigations, conciliation and enforcement. The agency’s functions would include not only the investigation of complaints of religious discrimination from individuals but also the examination of patterns and trends in employment. With the Fair Employment Act 1976, the agency took over the function of investigating complaints of discrimination against public bodies from the Commissioner for Complaints. The two main duties of the FEA were described as the promotion of equality of opportunity and working for the elimination of unlawful discrimination. Part III of the 1976 Act prohibited unlawful discrimination stating that religious or political discrimination occurs where on either of these grounds a person treats another person less favourably than he treats or would treat any other person in these circumstances. The agency was set up as a unique Northern Ireland institution. Its operations had four main dimensions, the promotion of equality of opportunity, the investigation of individual complaints, investigations into areas of employment and research. The agency was set up as a quango and consisted of a chairperson and eight to eleven other members who operationally formed three sub-committees for complaints, research and administration. The scale and nature of investigations of individual complaints in this area is set out in Table 10.5. The legislation excluded the investigation of acts done to safeguard national security or public order and this clause tended to be invoked on a few occasions each year. Most complaints involved job selection, promotions or dismissals. The findings

BDR10.indd 207

3/23/2009 4:13:16 PM

208

Direct rule and the governance of Northern Ireland

Table 10.5 Individual Investigations by the FEA Findings of discrimination

Complaints Completed Completed received (public bodies) (private bodies) (Public) (Private) 1977–78 1978–79 1979–80 1980–81 1981–82 1982–83 1983–84 1984–85 1985–86 1986–87 1987–88 1988–89 1989–90

11 37 43 49 50 33 71 81 81 86 87 126 138

4 33 14 16 19 17 13 14 27 42 23 16 11

1 21 11 10 22 19 19 21 18 13 22 26 14

1 3 1 1 3 1 1 5 3 7 2 3 3

0 1 2 1 0 3 6 3 2 5 1 3 2

Source: Annual Reports of Fair Employment Agency.

of unlawful discrimination accounted for 13 per cent of cases fully investigated and were about equally divided between the public and private sectors. The chair of the agency stated that the standards of proof were high and there are cases where there may have been discrimination but there was not sufficient evidence to justify a finding to that effect (FEA, 1984). It was noted that cases of discrimination tended to occur at the margin where candidates are closely matched rather than clearly different (FEA, 1985). It is also often overlooked that the agency rather uniquely dealt with political discrimination as well. Complaints, although relatively few, were made relating to; discrimination on the grounds of republican views, left wing views, and connections with loyalist organisations. The FEA, however, did not give prime importance to individual complaints arguing that the success of fair employment measures should not be measured by the number of grievances resolved but rather by the degree to which the concept of equality of opportunity in employment permeates as a whole. Some of the most successful work resulted from FEA reviews of patterns and trends of employment. Unlike the Commission for Racial Equality in Great Britain the FEA did not have to ‘have a belief ’ that discrimination existed in an organisation before using its investigation powers (Osborne, 2007). Such investigations normally focused on the compo-

BDR10.indd 208

3/23/2009 4:13:16 PM

Ombudsmen, commissioners and complaints

209

sition of the workforce, recruitment practices and promotion patterns. Some 140 investigations were conducted, some of which have been follow ups to investigations of individual complaints or have been launched in response to allegations made by politicians. The agency also had a research role and commissioned a general programme of research examining factors influencing patterns and trends of employment and occupations, such as occupational mobility of protestants and catholics, and the vocational aspirations and expectations of school leavers. The agency had to work within staffing and financial constraints and it has been argued the agency did not grow to the size envisaged at its inception (McCrudden, 1983). The direct rule government itself began to take a much more active role in pressing for action to promote good employment practices and was subject to external pressures from both the Irish Government following the 1985 Anglo-Irish Agreement and from the McBride principles. These were nine principles put forward by an Irish-American group as antidiscrimination principles backed with action to force compliance from American investors in Northern Ireland (Osborne and Cormack, 1989). The process of further change in the structures for dealing with fair employment began to take shape in 1986 with the publication of a government consultation paper (DED, 1986) covering the lack of equality not just on grounds of religion but also on grounds of gender and disability. The paper emphasised the commitment to the merit principle and the rejection of quotas but had a strong commitment to affirmative action practices. It proposed a package of measures including a suggestion for a division of functions between the promotion and investigatory roles of the agency and the enforcement role. The eventual white paper published by the Government in 1988 proposed a change to two bodies, a Fair Employment Commission responsible for monitoring, affirmative action and contract denial while a Fair Employment Tribunal would investigate individual complaints of discrimination. The subsequent 1989 Fair Employment Act, which was the strongest anti-discrimination law ever passed in the UK, considerably strengthened the 1976 mechanisms. The Fair Employment Commission and Tribunal The Fair Employment Commission (FEC) was again a quango with eleven members and it built on the work of the Fair Employment Agency. The existing chairman of the Fair Employment Agency, Bob Cooper, continued as chairman of the Commission and the senior management structure was strengthened by the creation of a post of

BDR10.indd 209

3/23/2009 4:13:17 PM

210

Direct rule and the governance of Northern Ireland

chief executive of the Commission. The FEC had double the resources and staffing of the former agency. Responsibility for reviewing its operation and impact lay with the Central Community Relations Unit of the Northern Ireland Office. As well as inheriting the FEA’s intensive investigatory powers it was given a wide range of new powers. A core new element of the FEC’s work was the maintenance of a register of all employers with more than twenty-five employees and from 1992, all employers with more than ten employees. All registered employees had to submit annual monitoring returns showing the religious composition of their workforce. The initial process of registration and monitoring was completed in 1991. All public sector employers and 98 per cent of private sector employers submitted monitoring returns with court action eventually taken against several recalcitrant firms. The FEC could also review patterns and practices in employment and issue directives requiring employees and employers to engage in affirmative action and also set goals and timetables. The FEC used the monitoring returns to analyse and report upon patterns of employment and the comparative representation of each community by occupational group, private and public sectors, area, and by individual firm. In 1990 the first analysis of employers’ returns revealed that ‘the composition of the monitored workforce was 65.1 per cent Protestant and 34.9 per cent Catholic’. Six years later, a report (FEC, 1996) showed equivalent figures of 59.2 per cent and 36.5 per cent and by 1998 the Catholic share had risen to 39.1 per cent. This showed a continuing closing of the employment gap between Protestants and Roman Catholics and demonstrated the importance of monitoring. The 1989 Act had also established a new body, the Fair Employment Tribunal, to adjudicate on individual complaints of religious or political discrimination and enforce the Commission’s directives. It was in practice a specialist division of the then industrial tribunals system, thus taking unlawful discrimination in employment into the mainstream tribunal process. The FEC could assist complainants in taking complaints. A House of Commons review of the operation of the 1989 Fair Employment Act ten years on (NIAC, 1999b) was impressed with the employer compliance and changes the FEC had achieved. The development of equality commissions Three other commissions were to follow the fair employment initiatives: on equal opportunities and gender, disability and racial equality. Action on gender issues was taken much earlier than the other two areas. The

BDR10.indd 210

3/23/2009 4:13:17 PM

Ombudsmen, commissioners and complaints

211

Sex Discrimination Order 1976 made unlawful discrimination in employment on grounds of sex or marriage and discrimination in the provision of goods, facilities and services. It established an Equal Opportunities Commission (EOC) with powers to assist persons in preparation of complaints and to work towards the elimination of discrimination and to promote equality or opportunity. The Commission was established as a separate quango, with a chair and chief executive and a maximum membership of twelve and mirrored a similar initiative in Great Britain. The work of the EOC can be described under several main headings; dealing with complaints and enforcement of the law in relation to sex discrimination, equal pay legislation, an educational and promotional role, a research role, an advocacy and lobbying role, a review role for existing and proposed legislation, undertaking formal investigations and the allocation of grants. Individual complaints of sex discrimination could be made direct to an industrial tribunal and the role of the EOC was to give advice, attempt a settlement or arrange for representation before a tribunal. In the initial period there was considerable disillusionment in the EOC because proving discrimination to a Tribunal’s satisfaction seemed an almost insurmountable hurdle. In 1980 the Court of Appeal made an important ruling clarifying the extent of the burden of proof of an applicant. In reversing the decision of an industrial tribunal the Lord Chief Justice stated ‘only rarely will direct evidence be available of discrimination on the grounds of sex. One is more often left to infer discrimination from the circumstances’. This meant that where a woman’s qualification or experience are better than those of a man who got the job, it is up to the employers to prove that they had not discriminated on grounds of sex’ (EOC, 1986). The success of EOC assisted cases has led to settlements offered by employers including not only apologies, promotion or offers of work but compensation. In 1995 the EOC issued its first code of practice on removing sex bias from recruitment and selection (EOC, 1995). An extensive research programme was also been supported and major research studies included: one-parent families in Northern Ireland, policy and services for pre-school children, women’s training and re-training needs, carers and gender and school curricula. The EOC had the power to conduct formal investigations of a specific or general nature where it would achieve the objectives of eliminating discrimination and promoting equality of opportunity. This power was in practice used very sparingly. The EOC regarded its functions as interwoven and operated with a balance of enforcement of the legislation and the promotion of equal opportunities, backed up by research. During 1994 a quinquennial

BDR10.indd 211

3/23/2009 4:13:17 PM

212

Direct rule and the governance of Northern Ireland

review of the EOC concluded that gender inequality still existed and that the most appropriate way forward would be for an independent Commission, established by statute and funded by Government, to continue to work towards the removal of discrimination and the promotion of equality. Faced with discussions of proposals for a unified equality commission the EOC itself believed that it should remain as an independent public body. Surprisingly it took a considerable period and campaigning before the race relations legislation in Great Britain was extended to Northern Ireland. Despite a consultative document on race relations in 1992 it was not until 1997 that the Commission for Racial Equality was established to enforce the Race Relations Order 1997. The Commission for Racial Equality was set up as a quango but with a small membership of only seven. The commission’s role covered race discrimination in employment, education, housing and provision of goods services and facilities. For the purpose of the legislation the Irish travellers’ community were a distinct ethnic group. The Commission could advise individuals with complaints of racial discrimination but could only give restricted support with legal cases. As well as helping individuals the Commission could investigate companies or organisations where there was alleged discrimination. Like the other Commissions it also had a role in raising public awareness to prevent discrimination, issued codes of practice and racial equality standards to help organisations develop fair policies and could also undertake research to support its work. The Commission, during its short period of operation, highlighted the needs of travellers as a priority issue. The Disability Discrimination Act 1995 set up similar bodies in Great Britain and Northern Ireland. The National Disability Council for England, Wales and Scotland and the Northern Ireland Disability Council were set up as quangos. Both councils were to advise the Government on eliminating and reducing discrimination and the operation of the 1995 Act. During its short time in operation the Council prepared a code of practice on the goods, facilities and services aspects of the Act. However, it could not investigate individual complaints of discrimination against disabled people. Changing structures: the Equality Commission In 1998 the direct rule government announced major changes in the structures for dealing with fair employment as well as related equality issues. This was a response to two major developments, the first of which was a major report on employment equality (Standing Advisory

BDR10.indd 212

3/23/2009 4:13:17 PM

Ombudsmen, commissioners and complaints

213

Commission on Human Rights, 1997). Although statistics showed that the catholic percentage of the workforce had risen to 42.3 per cent in 1995, the report drew attention to the continuing unemployment differential between catholic and protestants particularly among the long-term unemployed. The 1997 report had a major influence and in response the Government proposed to strengthen fair employment in a number of ways including a new statutory framework to promote equality of opportunity with enforcement by a powerful new equality commission, The Government white paper Partnership for Equality (NIO, 1998) recommended a unified equality commission to bring together the separate commissions dealing with fair employment, gender, disability and race. The argument was that a unified body would bring equality considerations further into the mainstream and would facilitate a consistency of approach between codes of practice. The second major development was the multi-party agreement of 1998 which saw the British and Irish Governments and the Northern Ireland parties broadly endorsing the equality of opportunity agenda. The proposal to create a single equality body was supported by the Fair Employment Commission but opposed by the other former equality bodies on the grounds their role and influence would be reduced within a single body. The direct rule administration had decided, however, on setting up another innovative institution. The Equality Commission for Northern Ireland came into existence on October 1999, assuming the duties and responsibilities of the four former organisations, the Fair Employment Commission, the Northern Ireland Disability Council, the Equal Opportunities Commission and the Commission for Racial Equality. It took on additional powers in relation to equality schemes, new duties in the area of sexual orientation and new powers in respect of disability. The Commission operates as a quango with between fourteen and twenty board members, a reduction on the total membership of the four separate boards. It is sponsored by the Office of First and Deputy First Minister and it operations were not effected by the return of direct rule, only its line of accountability. Its main function can be seen as embracing promotional work on equality of opportunity, the monitoring and enforcement of the Section 75 equality agenda, affirmative action in employment and assisting individuals with complaints through the tribunal system. The promotional work covers disability, racism, sexual orientation, challenging discrimination and includes the promotion of codes of practice for public authorities and general guidance material on new legislation. Section 75 of the Northern Ireland Act 1998 required all public authorities to draw up an equality scheme, really an anti-discrimination proofing scheme,

BDR10.indd 213

3/23/2009 4:13:17 PM

214

Direct rule and the governance of Northern Ireland

setting out how it proposes to fill its statutory duties. The new Equality Commission was given the role of advising on and approving equality schemes and also given a responsibility for monitoring and overseeing the effectiveness of Section 75. It also has a role in dealing with alleged breaches of Equality Schemes although the sanctions and enforcements powers are weak (Osborne, 2007) and alleged breaches are rare given it is largely a tick box exercise. The Equality Commission has also assumed responsibility for giving advice to potential complainants and assistance to those taking cases through the tribunal system across all areas. In 2005–06 the Equality Commission reported the largest single area of complaints and inquiries was disability (983) followed by gender (940) religion (399), race (242) and sexual orientation (34) (Equality Commission, 2006). This is in marked contrast to the view that issues of religious equality would dominate the new body. The trend is to a more even distribution of inquiries, complaints and cases which gives support to the principle of a single equality body and may indicate the decreasing significance of religious discrimination but increasing significance of gender and disability issues. A number of internal reviews and evaluations of the Equality Commission have been undertaken and throw up some criticisms. A review by the sponsoring department OFDMFM, 2005a) noted tension over the Commissioner’s dual role in providing advice and also pursuing enforcement action. A review of the effectiveness of Section 75 (Equality Commission, 2007a) indicated the provisions had concentrated on process rather than on actual impacts with a lack of data to identify and measure outcomes. The format of a quango is suited to the Equality Commission governed by an arm’s-length approach from government in relation to its equality strategies and activities. The Equality Commission is responsible mainly to the Office of First Minister and Deputy First Minister as the sponsoring department which covers policy, finance, legislative framework and performance but also to the Northern Ireland Office which is responsible for appointments to the Equality Commission, the statutory equality duty and also in designating bodies as public authorities. The departmental review (OFMDFM, 2005: 24) found that the tri-partite relationship appeared to function satisfactory but did not fully analyse divided responsibilities. The unified Equality Commission was established some seven years before Britain introduced a unified Equality and Human Rights Commission. Some concerns may still exist in relation to the replacement of separate bodies and the limitations of Section 75, but whatever the merits of the different delivery structures direct rule administrations gave high priority to equality policies and innovative strategies.

BDR10.indd 214

3/23/2009 4:13:17 PM

Ombudsmen, commissioners and complaints

215

Human rights commissions The Standing Advisory Commission on Human Rights (SACHR) was established in 1973 as a measure to protect human rights under the system of devolution set up under the Northern Ireland Constitution Act 1973. The Government white paper on constitutional proposals (Secretary of State, 1973: 24) in a discussion of provision for human rights for Northern Ireland contained the idea of setting up an advisory commission on human rights and this was incorporated into the legislation. SACHR’s main role was as an advisory quango, specifically to advise the Secretary of State on the adequacy and effectiveness of the law in preventing discrimination on the grounds of religious belief or political opinion. Paradoxically the original role did not refer to human rights at all. SACHR was set up as a quango with between eight and sixteen members appointed by the Secretary of State. Despite the restrictions of the original remit the direct rule government did allow SACHR to scrutinise and discuss matters which fell into a broader human rights heading (Maguire, 1981). Much of the work of the Commission covered recommendations for changes into legislation relating to flags and emblems, incitement to hatred and fair employment, while it was to develop emergency provisions as a priority area. The acceptability by the UK Government of a wider remit for its advisory role was demonstrated when in 1976 the Northern Ireland Office referred to SACHR, the question of the desirability of amending the laws on homosexuality and divorce. It was not until the 1980s that SACHR was to take a major role in reviews of fair employment, its original statutory function, with reports conducted by or commissioned by the organisation. A major review of fair employment made 124 recommendations for change (SACHR, 1987), some of which were incorporated into new legislation including compulsory monitoring. It also took initiatives to promote the mainstreaming of equality (SACHR, 1990) which resulted in the implementation of a Policy Appraisal and Fair Treatment strategy and measures outlawing religious discrimination in the provision of goods and services. SACHR was also responsible for a further major employment equality review which influenced the 1998 White Paper and new statutory agreements contained in the Northern Ireland Act 1998 (SACHR, 1997). Assessments of the impact of SACHR have tended to be overcritical. Maguire (1981: 53) saw it as at times a voice crying in the wilderness. Harvey (2001) saw it as suffering from several weaknesses particularly its limited mandate and Livingstone (1999) saw it as having a somewhat weak influence on policy-making and implementation as regards the protection of human

BDR10.indd 215

3/23/2009 4:13:17 PM

216

Direct rule and the governance of Northern Ireland

rights in Northern Ireland. Given the formal limitations on the role of SACHR proposals emerged from the peace process for a more specific and powerful human rights body (Harvey: 2006). It was proposed that a Human Rights Commission with a membership reflective of the community balance would be established with an extended and enhanced role beyond that exercised by the SACHR. The functions would include keeping under review the adequacy and effectiveness of laws and practice, considering draft legislation referred to them, promoting awareness of human rights and bringing court procedures or providing assistance to individuals doing so (UK and Irish Governments, 1998: 17). The Northern Ireland Human Rights Commission (NIHRC) was set up in 1999 as a quango responsible to the Northern Ireland Office, the Secretary of State and the UK Parliament and it has operated with this status under both direct rule and devolved government. It was the first Human Rights Commission to be established in the United Kingdom. The Commission itself consists of a full time Chief Commissioner with nine or ten part-time commissioners. In the early years of the Commission much of its work was dominated by the operation of the judicial system and law and order issues covering policing, prisoners’ rights, custody of women and children and allegations of collusion. Since 2005 there has been more of a focus on social rights, including access to health treatments, mental health and the right to housing. This change reflects to an extent to the background of the two commissioners to hold office. Of the priorities for the future only two of seven related solely to law and order although the rights of children and adults in custody remain a priority (NIHRC, 2007). A major priority for the Commission since its inception was the task of advising on a Bill of Rights for Northern Ireland which would supplement the UK Human Rights Act of 1998. Despite being prioritised as a main focus for Commission resources and the Commission taking a lead role in a lengthy process involving a draft Bill of Rights consultation, negotiation with parties, seminar working groups and a forum, progress has been slow. A Bill of Rights would have to be Westminster legislation and the British Government have been cautious about the remit of such legislation and the constitutional, policy and political difficulties involved. In relation to complaints (see Table 10.6) the NIHRC is restricted to assisting individual cases which involve questions of principle, are very complex or are of special significance. Examples have covered inquests, security vetting, fertility treatment and strip-searching of prisoners. From 2003 (NIHRC, 2004) the NIHRC shifted it emphasis

BDR10.indd 216

3/23/2009 4:13:17 PM

Ombudsmen, commissioners and complaints

217

Table 10.6 NIHRC and individual complaints Year 2000 2001 2002–03 2003–04 2004–05 2005–06 2006–07

Applications considered

Assistance granted

145 104 65 44 36 20 20

11 8 10 11 8 4 3

Source: Human Rights Commission Annual Reports.

from funding proceedings brought by individuals to a more selective interventionist approach. As with bodies covering fair employment, the NIHRC has the power to conduct investigations in the event of concern about a pattern of alleged abuse of human rights; for example, investigations have taken place into the care of young people in custody. More generally, the NIHRC has published a wide range of reports and research on such topics as the rights of older people, women in prison, protecting children’s rights in custody and victims of violence. The NIHRC has interpreted its advisory role to comment on both Northern Ireland related legislation and UK legislation such as the UK Terrorism bill. The Commission has felt that a lack of attention has been given to its advice by the NIO as well as by other government departments in Belfast and Whitehall (Joint Committee on Human Rights, 2003). A report into the Commission by the Parliamentary Joint Committee on Human Rights resulted in recommendations that it should be given a specific statutory duty to act with independence and impartiality. It also noted that its independence from the NIO should not be compromised by a lack of resources (Joint Committee on Human Rights, 2003: para. 33) and suggested that the NIO be more robust in its support of the Commission. After an NIO consultation paper in 2005 the government passed legislation providing new powers for the Commission to institute legal proceedings in its own right and allowed compulsory requirement of information and documents and access to places of detention. The changes were seen by the NIHRC as circumscribed by national security restrictions and only applicable after 2007 (NIHRC, 2007: 11). In practice the NIHRC has itself taken a robust stand in promoting human rights compliance of Government legislation, policy

BDR10.indd 217

3/23/2009 4:13:17 PM

218

Direct rule and the governance of Northern Ireland

and actions The NIHRC has developed under direct rule as a strongly independent quango and can claim to have become the model for similar offices in Great Britain, with the creation of a Commission for Equality and Human Rights in Britain and a Human Rights Commissioner in Scotland. Specialist commissioners The idea of a commissioner for victims and survivors originated with concern during the peace process that not enough attention was being paid to those who had suffered during the troubles. In 1997 the then Secretary of State Mo Mowlam established an inquiry by Sir Kenneth Bloomfield, named the Northern Ireland Victims Commission, to examine the feasibility of providing greater recognition for those who had become victims over the last thirty years. One of the Commission’s recommendations (Bloomfield, 1998) was for a stronger voice for victims’ interests through a standing commission or a protector or ombudsman for victims. It was not until 2005 that the then Northern Ireland Secretary of State, Paul Murphy, announced setting up a new Victims and Survivors Commissioner. An interim Commissioner post was established on a non-statutory basis with promised legislation to follow. In 2006 the Victims and Survivors (Northern Ireland) Order provided for the creation of a Commissioner for Victims and Survivors for Northern Ireland to promote the interests of victims and survivors through a strong independent voice. This was again an adoption of a single-person commissioner model. An Interim Commissioner was given limited terms of reference to carry out a review of current arrangements for services delivery, and funding for victims groups and consider the establishment of a victims forum. The report (Interim Commissioner, 2007) noted the lack of analysis of need, inadequate funding and the positive reaction to the idea of a forum. However the appointment of the Interim Commissioner produced considerable controversy and the sensitivity of this post was further demonstrated when the permanent Commissioner’s post was advertised in 2007 but was not filled and was re-advertised on the grounds that some potential candidates may have been deterred by direct rule. Eventually under restored devolution an unusual model was adopted of a four-person Commissioner’s office. A further hiving off to create more specialist commissioners/offices is the example of the Northern Ireland Commissioner for Children and Young People (NICCY). This was not in the first instance a direct rule decision but was introduced as part of the legislative programme of the

BDR10.indd 218

3/23/2009 4:13:17 PM

Ombudsmen, commissioners and complaints

219

new Northern Ireland Assembly and Executive in 2001 although eventually passed through Westminster as an order-in-council in 2003. The idea of a specialist Children’s Commissioner was adopted from the initiatives in Wales in 2001 and Scotland in 2003. A Children’s Commissioner for England was established later. The NICCY has the most extensive powers of all of the Children’s Commissions throughout the UK. This was very much a hiving off from the Human Rights Commission and some duplication with the Human Rights and Equality bodies was difficult to avoid, for example, regarding disabled children. However the model adopted was not of a board but of a single-person office responsible to a unit of OFMDFM. The principal aim of the NICCY is to safeguard and promote the rights and best interests of children and young people. The Commissioner divides the work into three aspects: firstly, promoting children’s rights guided by the UN Convention on the rights of the child through extensive work with children and adults and operating a children’s consultation process; secondly, dealing with individual complaints from children and young people or their parents about government services and if necessary initiating, intervening or assisting in legal procedures. In 2004–05 NICCY supported 342 complaints acting as an advocate, with the main categories related to special educational needs, education, disability and fostering (NICCY, 2007). Thirdly, the NICCY can review the adequacy and effectiveness of services provided, for example, it reviewed speech and language therapy services and child protection vetting arrangements. The NICCY has produced major reports but often in collaboration with government departments or other organisations. Research reports have covered: expenditure on children’s services, the educational needs of traveller children and journeys to school. A further key aspect of the NICCY’s work is to provide advice to government and other statutory providers and strong representations have made on budget priorities as well as specific policies on child protection, physical punishment and school transport. An early review into the powers, mandate, composition and operation of the Commission was commissioned (Fitzpatrick, 2006) and this ‘suggested increasing the capacity of an NICCY with assistant commissioners and an advisory panel, widening the mandate to cover more organisations and the Office given a more independent status’. The sponsoring Government department carried out a wider strategic review (OFMDFM, 2007b) although in practice it was a management-focused review. It did recommend raising public awareness of the office, suggested a reference (advisory) group and a focusing of priorities. However, it did not refer to major issues not dealt with so

BDR10.indd 219

3/23/2009 4:13:17 PM

220

Direct rule and the governance of Northern Ireland

far by NICCY, for example, early years provision or integrated children’s services. Security complaints and Ombudsmen With policing a controversial topic, the issue of complaints machinery became a major matter of public policy for direct rule administrations. There was an early commitment to set up a specific statutory body to handle public complaints and the early initiatives largely followed models in Britain. A Police Complaints Board was established by the Police (Northern Ireland) Order 1971 but was restricted to monitoring the outcome of complaints, still investigated by the police. The whole system was criticised for the dominance by the police of the investigation of complaints and the Complaints Board itself felt it was not able to satisfy complainants adequately. Development of a new model in England of lay supervision of major complaints led to new proposals in Northern Ireland (O’Rawe and Moore, 2000). Consequently, the Government replaced the Police Complaints Board with an Independent Commission which would have authority to supervise police investigations into serious complaints. It was established in 1988 as a small quango with a chair, two deputies and six other members responsible to the Secretary of State. The Independent Commission for Police Complaints (ICPC) had two main functions. Firstly, it was required to supervise the investigation of all complaints which involved an allegation of death or serious injury and had the discretion to supervise other complaints where this is judged desirable in the public interest. Normally, only between 10 per cent and 16 per cent of all investigations were supervised. Secondly, all the completed investigations were referred to the Commission to adjudicate on the Chief Constable’s decision in relation to disciplinary changes. The Commission could direct the Chief Constable to bring disciplinary changes or direct the Chief Constable to refer a case to the Director of Public Prosecutions. In 1995, after 1,373 completed cases, formal disciplinary charges were made against twenty-two officers and the director of Public Prosecution directed fourteen criminal charges (ICPC, 1996). The Independent Commission was mainly criticised for not going far enough in establishing an independent check on police complaints, particularly as investigations were still carried out by police officers. There were continuing calls for a totally independent investigation of complaints and a power of initiation (O’Rawe and Moore, 2000: 276). Apart from external criticisms the ICPC itself appeared to accept weaknesses in the arrangements when it argued for its powers to be created to allow it to decide

BDR10.indd 220

3/23/2009 4:13:18 PM

Ombudsmen, commissioners and complaints

221

what constitutes a complaint, to supervise investigations in the absence of a complaint and to change the burden of proof (O’Rawe and Moore, 2000: 280). The setting up of a number of external investigations of major incidents involving the police had also served to draw attention to the limited powers of ICPC. In the early 1980s there was a number of controversial shootings by the RUC which led to the Deputy Chief Constable of Greater Manchester, John Stalker, being called in to conduct an inquiry. He was later to be replaced by Colin Sampson, Chief Constable of West Yorkshire. Another major inquiry was initiated in 1989 by the Deputy Chief Constable of Cambridgeshire, John Stevens, arising from allegations of collusion between loyalist paramilitaries and the security forces. It was clear that the Independent Commission was not regarded as capable of performing such major investigations. In 1995 Maurice Hayes was appointed by the Northern Ireland Office as an independent reviewer of the police complaints system. Hayes (1997a) acknowledged the failings in the existing system because of the lack of independence, as it was the Chief Constable who decided what a complaint was. The complaints were investigated by police officers with only 10 per cent under supervision by the ICPC. Hayes’ main recommendation was to adopt the Ombudsman model that there should be a Police Ombudsman responsible to Parliament with the duty to investigate complaints and to report the findings. The office would include non-police investigators recruited from people with appropriate experience. All complaints about the police would be made through the Ombudsman in the first place. Although the UK Government recognised that the issue of police complaints was related to the organisation of policing and issues of political control and accountability it proceeded with legislation establishing an Ombudsman. Thus the provisions were put through before the major reorganisation of policing following the Patten Report which was to endorse the main Hayes recommendations but did make some further recommendations to improve the Office (Moore and O’Rawe, 2001). The Police Ombudsman was set up using the model of a single person office. The Police Ombudsman investigates complaints about how police officers do their job and complaints may involve allegations of criminal behaviour or breaches of the police code of conduct. It can also look at any trends or patterns and may investigate a matter even if a complaint has not been made. There is direct access to the Police Ombudsman by the public. The Ombudsman can also carry out research into any matter which may be subject of a report. The Police Ombudsman came into operation in 2000 with the post filled by Nuala O’Loan. The office was a quango, a non-departmental public body, funded by the NIO

BDR10.indd 221

3/23/2009 4:13:18 PM

222

Direct rule and the governance of Northern Ireland

and accountable to Parliament through the Secretary of State. It was accepted that a large amount of power was being concentrated in the hands of the Police Ombudsman (Walker, 2001). The Police Ombudsman has control over what counts as a complaint, can carry out investigations on his/her initiative and all police actions resulting in death must be referred by the Chief Constable. The Offi ce also carries out inquiries as directed by the Secretary of State or requested by the Policing Board and reports on policy implications to the Chief Constable. Between 2000 and 2007 the Police Ombudsman received 20,597 complaints (see Table 10.7), at a fairly consistent rate (Police Ombudsman, 2007). The Police Ombudsman classifies the nature of complaints into three main categories; failure in duty, investigating crimes and the main category, oppressive behaviour and incivility. Between 2000 and 2007, 954 cases have been submitted to the Public Prosecution Service for direction as to whether criminal charges should be preferred, and sixtyone cases have been referred with recommendations for prosecution, mainly for assault or perverting the course of justice and 321 cases were referred to the Chief Constable with the Police Ombudsman’s recommendation for disciplinary action. The Police Act 1998 also provides for a flexible procedure to settle complaints by informal resolution and the number of such resolving has increased annually, to 405 for 2006/07. The Police Ombudsman has also been able to initiate research into a number of relevant areas in a way the Parliamentary Ombudsman has not. Research reports have been published on the use of batons and CS spray, the treatment of solicitors and barristers by the police and attitudes of police officers to the Ombudsman work. Change to the

Table 10.7 Police Ombudsman complaints Year 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 2006/07

Complaints to Police Ombudsman

Referred for formal investigation

1,531 3,600 3,214 2,978 2,885 3,140 3,249

849 1,560 1,388 1,267 1,370 1,425 1,365

Source: Annual Reports Police Ombudsman.

BDR10.indd 222

3/23/2009 4:13:18 PM

Ombudsmen, commissioners and complaints

223

Ombudsman powers following the Patten Report allowed the Police Ombudsman to investigate current policy or practice. Only four policy and practice investigations have been conducted, into police identification, police searches of domestic residences, use of handcuffs and responses to Ombudsman recommendations. More generally the Ombudsman has made recommendations aimed at improving the service the Police Service of Northern Ireland (PSNI) provides and some fifty such recommendations have been accepted (Police Ombudsman, 2007: 49). In the first seven years under the first Police Ombudsman, the Office did achieve a high profile and a high level of public awareness, at around 88 per cent, with a reputation for impartiality among both Catholics and Protestants (Police Ombudsman, 2007: 54). The Northern Ireland Affairs Committee (2005c) concluded that the Police Ombudsman had made significant progress in establishing an effective complaints system and was contributing to positive changes in policing policies and practices and gaining the confidence of the community despite the difficult political context. The UK Government had moved to a more independent mechanism in Northern Ireland, despite this being a break from British traditions, with police complaints and to an enhanced Ombudsman model with comprehensive powers. This is in contrast to the more limited Independent Police Complaints Commission for England and Wales. The Office of Prisoner Ombudsman was created in 2005 largely following the model of a Prisoner Ombudsman which had existed in Britain since 1994–95. Provision had lagged behind in Northern Ireland with only the option of a complaint of maladministration to the UK Parliamentary Commissioner for Administration and the internal complaints had already been subject to criticism that it was not operating efficiently (Criminal Justice Inspection, 2007). The Prisoner Ombudsman was set up as another single-person Commissioner, appointed by the Secretary of State and reporting annually to the Secretary of State. It was not originally established on a statutory basis but there was a Government commitment to do this. Complaints could be submitted for investigation by individual prisoners who had failed to obtain satisfaction from the Northern Ireland Prison Service. In 2005–06, some 368 complaints were received and in 2006–07, some 252, covering such issues as searches, property, visits, medical care, regime level, food and pre-release. In 2006–07 the Ombudsman upheld 23.4 per cent of complaints and a further 16.6 per cent secured local resolution (Prisoner Ombudsman, 2007) and of 102 recommendations made to the prison service only one was not accepted. The Prisoner Ombudsman can consider the merits of complaints as well as the procedures and has

BDR10.indd 223

3/23/2009 4:13:18 PM

224

Direct rule and the governance of Northern Ireland

used the criteria of reasonableness. The role was extended to investigate all deaths in prison service custody mirroring practice in England and Wales. The Prisoner Ombudsman can draw attention to issues of more general significance and the Office has reviewed the internal complaints procedures of the prison service. Brian Coulter, the Prisoner Ombudsman criticised some of the exclusions, particularly of actions by those providing services to prisoners but not employed by the prison service (Prisoner Ombudsman, 2007: 8). The independence of the Prisoner Ombudsman became a significant issue when Coulter resigned in 2008. He was unhappy with the lack of independence in the relationship with the Director of the Northern Ireland Prison Service and with the legislative proposals to put the Ombudsman on a statutory footing. He saw this legislation as meaning the Ombudsman would continue to lack independence, would be dependent for funding and accountable to the Secretary of State (Coulter, 2008). The development of police complaints procedures led to an emerging demand by some groups including the Standing Advisory Commission on Human Rights for a similar mechanism to investigate complaints against the army. In 1991 Brian Mawhinney, then the Minister of State for security in Northern Ireland, advised the House of Commons that the Government had decided in principle to introduce an independent element into the scrutiny of the armed forces procedures for handling those complaints which fall short of allegations of criminal misconduct. Subsequently the Office of Independent Assessor of Military Complaints Procedures was set up as another complaints-based institutional innovation. The Independent Assessor came into existence in 1993 and this office also functioned on a non-statutory basis. The role of the Independent Assessor was limited to keeping under review the procedures adopted by the General Officer Commander Northern Ireland for receiving, investigating and responding to relevant complaints (Independent Assessor, 1995). With the periodic ceasefires, the number of formal complaints began to decline and the total from 1995 was only 298, although there were more than 5,000 informal complaints. The limited role did receive criticism at the time including suggestions that the Assessor should have the same powers as the then Independent Commission for Police Complaints. In 1993 the Independent Assessor reported that the percentage of formal complaints upheld was small (see Table 10.8) but that complaints procedures have not always been followed consistently particularly through delays (Independent Assessor, 1995: 117). After the independent Assessor’s Annual Report the General Officer Commander Northern Ireland responded formally to the Secretary of

BDR10.indd 224

3/23/2009 4:13:18 PM

Ombudsmen, commissioners and complaints

225

Table 10.8 Details of complaints, Independent Assessor of Military Complaints Formal complaints

1991–94 1995–99 2000–02 2003–07

Total made

Substantiated

Not substantiated after inquiry

Informal complaints

882 212 64 22

83 8 3 1

141 13 1 17

449 1,835 2,007 1,227

Source: Assessor’s Annual Reports.

State concerning the recommendations. The first Independent Assessor expressed the belief that the existing powers when exercised with flexibility did allow considerable scope to comment, although retrospectively. His successor however felt there was a case for an extension of powers to include cases of complaint where military personnel were subject to investigation by the police (Independent Assessor, 1998). The only general review of an issue was undertaken in 2002 with a review of the use of baton rounds by the army. One of the most critical comments by the Independent Commissioner concerned the reinstatement of two Scots Guardsmen after their release from prison following conviction of murder (Independent Assessor, 2000). With winding down of the army’s role by 2006 there was a complete absence of formal complaints and a low number of informal complaints (Independent Assessor, 2007). The formal end of ‘Operation Banner’ on 31 July 2007, i.e. the army’s role in Northern Ireland, also saw the end of the work of the Assessor. It can be viewed as a major innovation and no similar system actually exists internationally. The administrative facilities of the Independent Assessor were shared by another single-person Commissioner, an Independent Commissioner with oversight over holding centres for detained terrorist suspects. This office was established in 1993 in response to expressed concern at the lack of independent oversight and represented another unique institutional innovation. The Independent Commissioner reported annually to the Secretary of State. The Independent Commissioner had the power to visit and speak to detainees and observe police interviews. In 2001 the holding centres were closed and suspects were detained in a purpose-built serious crime suite with recording equipment, which was introduced to give both detainees and police protection. The Independent Commissioner looked at and made

BDR10.indd 225

3/23/2009 4:13:18 PM

226

Direct rule and the governance of Northern Ireland

recommendations on such issues as; identification parades and video identification, arrest procedures, prolonged detention and the custody visitors role (Independent Commissioner, 2005). With the ceasefires the number of detained suspects declined, and the Office of Independent Commissioner formally ended in 2005. Following the Good Friday Agreement a review of the Criminal Justice system took place which included arrangements for making appointments to the judiciary. In 2000 the review group recommended the appointment of a Commissioner to oversee and monitor the existing appointments system. A Judicial Appointments Ombudsman was appointed in 2001. The office could investigate complaints of maladministration on unfairness in appointments by the Judicial Appointments Commission, the Court Service or the Lord Chancellor ( Judicial Appointments Ombudsman, 2007). During the first six months of its existence, the office did not receive any formal complaints. The Judicial Appointments Commission has its own internal complaints mechanism and there may be some questions as to whether this particular Ombudsman is actually necessary and could be covered by existing measures. Overview and conclusion Action to safeguard against discrimination and respond to complaints became a major feature of direct rule. The institutions developed were either innovative and ground breaking or largely followed models adopted from Britain. Some innovations such as the Human Rights Commission were later to be copied by the UK Government or other devolved governments while other innovations remained too radical to be copied in Britain, such as the Police Ombudsman and aspects of the Equality Commission. A number of Commissioners/Ombudsman Offices were set up in haste and on an unsatisfactory non-statutory basis by the Secretary of State, with either a legislative basis to follow or a final decision on the permanency of the office deferred. This nonstatutory basis did cause some difficulties with the status and powers of some offices and were examples of the legislative difficulties that could arise with direct rule. These bodies are all quangos, whether the model of governance adopted was that of a single-person office or a commission/board. Single-person offices have been used for Ombudsmen or oversight of complaints procedures with commissions/boards used for bodies with a wider range of functions (see Table 10.9). The number of commissions/boards was reduced with the abolition of four bodies to form the Equality Commission.

BDR10.indd 226

3/23/2009 4:13:18 PM

Ombudsmen, commissioners and complaints

227

Table 10.9 Ombudsmen and commissioners

Parliamentary Ombudsman Commissioner for Complaint Equality Commission Human Rights Commission Police Ombudsman Commissioner for Children and Young people Independent Assessor for Military Complaints Judicial Appointments Ombudsman Commissioner for Victims and Survivors Independent Commissioner for Holding Centres

Type of structure

Original legal status

Single-person Single-person Board Board Single-person Single-person

Statutory Statutory Statutory Statutory Non-statutory Statutory

Single-person

Non-statutory

Single-person

Non-statutory

Multi-person

Non-statutory

Single-person

Non-statutory

This has raised a question of whether single-person offices would have benefited from a board and/or an advisory council, as in the case of the Children’s Commissioner. At the same time the Commissions have operated with a Chief Commissioner who has taken a ‘sole’ leadership role. Some of the Ombudsmen and commissioner bodies have expanded their role and their research and general investigation powers can allow this. In 2007 the Equality Commission published an account of key inequalities in Northern Ireland (Equality Commission, 2007b) but rather than a comprehensive review this was constrained by the categories in the main pieces of legislation under which the Commission operates. The Parliamentary Ombudsman has taken a more conservative approach to its powers, and following the example of a British Ombudsman, has not launched major investigations or promoted much research. It has always interpreted its role narrowly to a procedural investigation. The Police Ombudsman has in contrast made full use of its powers to carry out wide-ranging reports, research and issue recommendations as well as investigating individual complaints and has had a much higher profile and impact. The continuing development of Ombudsmen and Commissions has often meant new bodies wholly or in part hiving off responsibilities from established bodies. This has left

BDR10.indd 227

3/23/2009 4:13:18 PM

228

Direct rule and the governance of Northern Ireland

a major problem of overlap, for example, complaints about young people in custody might involve the Commissioner for Children and Young People, the Human Rights Commission, the Prisoner Ombudsman and even the Parliamentary Ombudsman. Consequently bodies have had to negotiate memorandum of understanding and protocols with each other. The Human Rights Commission, the Equality Commission and the Police Ombudsman agreed a memorandum on a division of labour when issues of overlapping concern arose. However, each new Ombudsman or office has to try to develop its own boundaries and avoid duplication. For example, the overlapping area of health services in prisons proved a major difficulty between the Ombudsman and the Prison Ombudsman. There are likely overlaps between the Human Rights Commission and the Victims Commissioners. There can also be overlapping with other public bodies such as the Health Improvement and Regulation Authority or Criminal Justice Inspection. It has been suggested that there are too many Ombudsman for a small population (Criminal Justice Inspection, 2007). There is what might be called a maze of bodies and bureaucratic procedures which can be complex and confusing for the public and complainants. However each body has made a contribution to the operation of a best practice machinery to eliminate discrimination and safeguard complainants’ rights. Given the confusion of differences in statutory basis and powers, overlapping responsibilities, different relationships with the Secretary of State, Assembly and Parliament, and the mix of reserved and devolved powers a reconfiguration and clarification of the architecture of all these bodies may be needed.

BDR10.indd 228

3/23/2009 4:13:18 PM

11

Policy-making under direct rule

What has been the impact of direct rule on policy-making and policy outcomes? In assessing this, there are a number of significant contexts. Firstly, direct rule administrations have come from both Labour and Conservative Governments and this can account for the content of some policies and changes in policy (see Table 11.1). Secondly, policy decisions under direct rule covered both transferred matters and reserved/excepted matters and at times Governments treated policy as a unified entity. In some areas such as equality there can be difficulties in making a clear division of functions. Thirdly, it is easier to identify the impact of direct rule in terms of policy and legislation than in terms of outcomes. Fourthly, an assessment of the impact of policy also requires a comparative approach and an evaluation of direct rule would suggest that a comparison with policies in Great Britain provides a benchmark. Within these contexts policies implemented under direct rule can be categorised in a number of ways. The continuation of parity in policy and legislation Historically, much of the legislation produced for Northern Ireland was similar to that of Great Britain. The whole area of excepted and reserved powers formed a single legislative entity between Northern Ireland and Great Britain. This meant much of the legislation in these areas applied to Northern Ireland largely automatically. Criminal justice was reserved in 1973 Constitution Act, but here distinctive policies were often introduced. Following the 1998 Northern Ireland Act a number of ‘new’ reserved powers appeared which increased the body of parity legislation, in such areas as the national minimum wage, financial services, money laundering, building societies, monopolies and mergers, human genetics, human fertilisation and embryology, surrogacy arrangements, asylum seekers, community safety, the National Lottery and data protection. Parity in policy and legislation has also traditionally operated

BDR11.indd 229

3/23/2009 4:14:19 PM

230

Direct rule and the governance of Northern Ireland Table 11.1 UK Governments: party composition during direct rule Conservative Labour Conservative Labour

1972–74 1974–79 1979–97 1997–

in a number of devolved/transferred policy areas. This applied most clearly in the whole area of social security. Originally a series of agreements prior to direct rule had committed successive Northern Ireland Governments to parity in social security and also to the same scale and standard of healthcare. This parity principle continued throughout direct rule although constitutionally social security was a devolved matter. Later legislation expressly made arrangements for providing a single social security and national insurance system for Northern Ireland and Great Britain. With the introduction of direct rule large areas of policy, such as housing, education, planning, social care and trade union law presented a legislative mix of convergence and divergence from Great Britain with further divergence in administrative structures (Birrell and Murie, 1980). However, as direct rule continued, the substantive content of politics in transferred areas began to move towards greater convergence with Britain. Bringing policy into line with Great Britain As direct rule became established as a semi-permanent form of government, the trend developed of bringing Northern Ireland into line with Great Britain over a wide range of transferred matters. This was most apparent in new areas of policy where there was no existing separate Northern Ireland legislation. The introductory phases used by ministers in introducing most orders in council or in written explanatory memorandum had a common theme. Legislation on employment would ‘bring the law into line with that in England, Wales and Scotland’; on gambling, ‘would bring the law closer into line with the corresponding law in Great Britain’; the abolition of corporal punishment in schools ‘followed Great Britain legislation’; legislation on disability ‘intended to enact provisions for Northern Ireland similar to those already existing in England, Scotland and Wales’; legislation on vetting would ‘enable processes to operate coherently across the UK’ (OPSI, 2007b). Many statutory instruments have been similarly described during direct rule: ‘that the rule is made in parity with regulations made in England

BDR11.indd 230

3/23/2009 4:14:19 PM

Policy-making under direct rule

231

and Wales’. It is more correct to state that Northern Ireland was usually brought into line with equivalent legislation in England. Scotland, but less so Wales, often had different legislation. For example, the legislation introduced on university tuition fees followed the English model in 2005 rather than the Scottish or Welsh models. The Marriage Order 2003, exceptionally, was based on the model that operated in Scotland in relation to the registration of officiates. The trend to parity in legislation was particularly obvious in the areas of employment law, industrial relations, financial and consumer law and disability but has covered at times all transferred areas. Housing policy which had many distinctive features prior to direct rule came largely to follow Westminster initiatives (Paris, 2008). There were a number of reasons for this convergence in policy. Firstly, direct rule ministers could ask the question why policies or changes in policies which applied to their home constituencies should not apply to Northern Ireland or why Northern Ireland should be different. As time went on arguments about leaving such decisions to a new devolved government carried less weight. A second reason for the convergence in policy was the tradition of parity in some devolved areas prior to direct rule. This applied particularly to social security, health and related areas and therefore the gradual extension of the principle of parity or harmonisation into other areas was not such a radical innovation. A third reason was an absence of pressure in Northern Ireland for the maintenance or development of distinctive policies and in practice some groups campaigned for closer parity with Britain, for example, in early-years provision. A fourth reason was that during the long period of direct rule, the Northern Ireland Civil Service was under little pressure to develop distinctive policies and a fifth factor was the requirement to follow EU directives in an increasing number of areas. The extent of this convergence in policy was such that it can interpreted as a form of ‘integration by statute’ as policy and legislation became unified with Great Britain. This tended to produce little adverse reaction in Northern Ireland as parity legislation mainly related to noncontroversial areas and assisted in bringing some modernisation agendas to Northern Ireland such as the Citizens Charter. A few such policy initiatives were in more controversial areas, particularly on divorce and homosexuality. After initial local hostility to the proposed reform of the law on homosexuality the then Secretary of State, Merlyn Rees, withdrew the proposal but a decision that the UK was in breach of the European Convention on Human Rights led to change in 1982, although the age of consent was one year higher than in Britain (Thorp, 1999). The NIO ministers announced in 2003 that they supported the

BDR11.indd 231

3/23/2009 4:14:19 PM

232

Direct rule and the governance of Northern Ireland

introduction of civil partnerships in Northern Ireland and included of the provisions for Northern Ireland in the Westminster Act. It was unlikely similar legislation would have been enacted by a Northern Ireland Assembly. Thus the process of shifting Northern Ireland into line with Britain did bring some more liberal policies. Divergent Northern Ireland policies to meet special needs Direct rule governments introduced a range of measures to address the special circumstances and problems of Northern Ireland. The majority of these policies and the legislation fell under the reserved and excepted powers covering the areas of law and order, equality and human rights. These divergent measures tended to address the causes and consequences of the conflict. The clearest and most expansive area of disparity was in that of emergency law and order powers. Northern Ireland had a long history of special powers legislation. The lengthy period of paramilitary violence saw a range of radical responses uniquely applied to Northern Ireland. These covered non-jury courts, the proscription of organisations, broadcasting bans, the nature of evidence, detention rules, prison regimes and police and military ombudsmen. Direct rule evolved a policy process of regular independent inquiries into emergency powers and related issues which would make recommendations for change. The list includes Diplock in 1972, Gardiner in 1975, Shackleton in 1978, Bennett in 1979, Jellicoe in 1983, Baker in 1984, Colville in 1990, Rowe in 1995 and Lloyd in 1996 (Donohue, 2001). These provided a basis of policy analysis and discussion within the overall context of adopting a criminalisation model as far as possible. The emergency provisions and prevention of terrorism legislation were subject to regular renewal in Parliament. This process did lead to inputs to policy-making by advisory bodies, mainly the Standing Advisory Committee on Human Rights, by parliamentary committees and by often critical groups of Labour MPs. A bipartisan approach largely prevailed around the consensus that Northern Ireland was different from the rest of the United Kingdom and unique anti-terrorist legislation was acceptable at least until this perspective changed with the threat from international terrorism. There was also a large body of distinctive legislation implementing the Patten reforms of policing. A number of social policies also reflected direct rule government strategies to address and manage the special circumstances of the conflict. Inadequate social housing and complaints over housing allocations had been a major focus of attention for the first years of direct rule. Through the unique mechanism of a centralised public housing

BDR11.indd 232

3/23/2009 4:14:19 PM

Policy-making under direct rule

233

authority and a high level of public expenditure priority was given to major improvements in the amount and fair allocation of social housing and the quality of the whole housing stock. Persistent levels of social deprivation remained throughout the period of direct rule and led to a number of special measures but within the principle that the social security system remained uniform throughout the United Kingdom. Some of these initiatives focused on area-based or other antideprivation strategies which were not too different from the range of special strategies used in Great Britain, e.g. the Making Belfast Work strategy in 1988, or on policies to tackle social exclusion. Targeting Social Need was a Northern Ireland version of such a strategy announced in 1991 by the Conservative Government to target public expenditure towards disadvantaged areas and groups and specifically to address community differences. Research showed little evidence of a distinctive impact on the spending or decision-making of departments (Quirk and McLaughin, 1996). The new Labour Government accepted that there were difficulties with the strategy and New Targeting Social Need was launched in 1998, but with a special emphasis on the unemployed and disadvantaged areas with all government departments required to have action plans. Promoting Social Inclusion was also developed as a crossdepartmental policy for specific disadvantaged groups. Again, some of these strategies did not differ much from the UK-wide policy developments to tackle aspects of poverty and some measures were adopted more directly from Great Britain, for example, Health Action Zones and Surestart. For much of the period of direct rule the development of policies on fair employment, non-discrimination and equality were a priority. The original Fair Employment Act 1976 was passed as an Act of the Westminster Parliament and not as an order-in-council, which indicated its significance to British Government policy. The legislation was strengthened in 1989 through employment monitoring and affirmative action and was described as imposing duties on employers the like of which had never before been seen in the United Kingdom (Edwards, 1995) and as not only the most stringent anti-discrimination legislation in the UK but also in Europe (Osborne, 1996). Even with the final political agreement pending the Labour Government in 1998 had enacted a Fair Employment and Treatment Order to strengthen monitoring requirements and affirmative action and extend antidiscrimination laws to the provision of goods and services. Decisions throughout direct rule brought the wider area of equality of opportunity into the mainstream of public policy. The decision to establish an Equality Commission and implement a requirement on all public authorities to produce equality schemes and promote good relations

BDR11.indd 233

3/23/2009 4:14:20 PM

234

Direct rule and the governance of Northern Ireland

again meant policies were different and more radical than equivalent race relations and related measures in Britain. Another direct rule initiative was Policy Appraisal and Fair Treatment (PAFT) which was an adoption for Northern Ireland of UK-wide equality proofing guidelines for government departments issued in 1990 but aimed at gender and race issues (Tomlinson, 2000). Academic studies indicated considerable confusion on the implementation of the PAFT guidelines and differential impacts (Osborne and Shuttleworth, 2004). PAFT was subsequently to be put on a legal footing through the equality measures of Section 75 of the Northern Ireland Act 1998, requiring public bodies to have due regard for the need to promote equality of opportunity between specific categories of the population including the categories of religion, gender and disability. All public bodies had to produce an equality scheme, assess the equality impact of their policies as well as act to promote good relations. This equality duty is a unique policy introduced under direct rule. There has been criticism of its formal and bureaucratic nature (Osborne 2007: 84) and there are problems with the complexity and implications of monitoring outcomes and the limitations of the concept of equality of opportunity. Despite the establishment of a new Equality and Human Rights Commission, such comprehensive legislation still does not apply in Great Britain. Government support and use of the voluntary and community sector also falls into this category. Policies did not necessarily depart much from policies in Great Britain but were tailored to the special circumstances of Northern Ireland. This arose particularly because of the large size of the voluntary sector in Northern Ireland which had grown in the 1970s and 1980s, up to some 4,500 organisations, sustained also by the extensive availability of funding from government, EU and international sources. This community sector was seen as having the potential to make a powerful contribution to the achievement of better relations between the communities and assist the most disadvantaged and interface areas. Acheson et al. (2007) saw this policy as a distinct departure from government policy in the rest of the United Kingdom in relation to the significance given to community development. Direct rule’s economic policies did not differ significantly from regional economic policies in Britain or area-based policies such as Enterprise Zones and it has been noted how even Conservative governments accepted the need for public support for aiding key industries (Cunningham, 2001: 69). It has been argued that Northern Ireland at the time was largely immune from some of the applications of Thatcherism (Gaffikin and Morrissey, 1990).

BDR11.indd 234

3/23/2009 4:14:20 PM

Policy-making under direct rule

235

Allowing Northern Ireland to continue divergent policies A few policy areas where there had been a tradition of divergence from Great Britain remained largely unaltered by direct rule. These policy areas fell into three categories: firstly, ethical/cultural issues; secondly, administrative differences; and, thirdly, strongly held policy ideas. The clearest example of the first category was abortion policy where Northern Ireland legislation was not brought into line with Britain and remains very different, based on an 1854 law. This was different from the legislative action by direct rule governments on homosexuality and divorce. The reluctance to introduce similar abortion legislation was based on an acceptance of the widespread opposition to more liberal abortion legislation, particularly among the churches. Other examples are the specific distinctive arrangements for schools which reflected both the historic involvement of protestant churches and a totally separate catholic schools system. The second category of the continuation of divergence from Great Britain relates to differences in administrative structures. Examples were the largely integrated structure for the commissioning and delivery of health and social care services and the centralised public housing authority, the Housing Executive. Education policy reflects a third type of policy difference particularly with the continuation throughout direct rule of the 11 plus and the grammar school system. Direct rule did bring independent review views and a government commitment to move towards change but there was some reluctance to take action on an issue where there were strongly held local views, although the second period of direct rule did produce legislation in 2006 to end academic selection.

Not allowing new divergent policies With the continuation of direct rule over a lengthy period there were, on occasions, demands from politicians and groups in Northern Ireland for new divergent legislation. The clearest examples are related to economic issues. There were demands that Northern Ireland should have a different duty rate on fuel from Great Britain in order to offset the impact of cross-border fuel price differences. This has led to smuggling, fraud, closure of petrol stations in Northern Ireland and loss of tax revenue. Such demands were rejected by the Treasury, partly because a reduced rate for Northern Ireland would require EU approval (Northern Ireland Affairs Committee, 2003b). Another campaign was directed at securing a lower corporation tax rate in Northern Ireland from the UK rate, which would be competitive with the lower rate in the

BDR11.indd 235

3/23/2009 4:14:20 PM

236

Direct rule and the governance of Northern Ireland

Republic of Ireland and help economic growth. The UK Government did set up a review but this did not conclude that there was a case for differential tax policies (Varney, 2007). Assertive direct rule Following the restoration of direct rule in 2002, something of a change took place in the direction of key policies. The UK Government began to debate and propose policy changes in a more assertive way. Such an approach meant abandoning the caretaker role followed by previous administrations in leaving any major overhaul or reform of policy until a new devolved government was in place, as was the case with health reforms. This change in approach could be seen as influenced by the New Labour modernising agenda and the view that Northern Ireland could no longer afford a ‘survival policy’ where the troubles prevented any debate on modernising society, the economy and public services (Hain, 2006). A series of initiatives were proposed to meet the challenges of: the global economy, low-quality public services, separated communities, low educational attainment and sustainable energy. This led to a series of largely unpopular policy proposals including water charges and rural planning restrictions. A major influence on this reform agenda was the high level of public expenditure in Northern Ireland. This was identified by the Secretary of State to be nearly one-third higher than in the UK overall with a gulf of £5 billion between what was spent and raised locally. This led to action to raise more income for public expenditure from within Northern Ireland. Thus the list of new policies included proposals for water charges, the reform of rates through a system with different principles and with less generous reliefs than in Britain, as well as a streamlining of structures in the system of public administration which was expected to produce savings. In practice some of the decisions by NIO ministers on the Review of Public Administration did not really accord with the New Labour modernisation agenda as followed in Great Britain, such as the new localism or patient and public participation in health services and appeared more related to making savings. Policy as political leverage This range of assertive policies, particularly those relating to water charges, rates, local government and education were unpopular with many politicians and sectors of the population. As negotiations continued on conditions for the restoration of devolution some of the

BDR11.indd 236

3/23/2009 4:14:20 PM

Policy-making under direct rule

237

proposals were treated as bargaining chips. Thus an incentive for the parties to reach agreement was presented as the fact that a devolved government could change the proposed policies if it did not like them. This was taken a step further in the St Andrew’s Agreement when the UK Government offered concessions to act immediately to put a cap on domestic rates and examine the possibility of reliefs for pensioners and those on lower incomes. An Education Order 2006 was also passed postponing the introduction of a ban on academic selection. A rather different form of political leverage was the decision of the then Chancellor of the Exchequer, Gordon Brown, to offer a financial package as a further incentive to persuade local politicians to reach agreement. This strategy indicates that the main priority was not particularly to assert a New Labour agenda on public policy but to put pressure on the parties to agree on restoring devolution. External influences on policy Policy-making under direct rule was not entirely determined solely by the UK Government. The most significant, if not the most publicised external influence, came from membership of the EU. The impact of the EU often went unnoticed, except for the unique EU Special Support Programme for Peace in Northern Ireland. However, EU directives had a growing influence on specific Northern Ireland legislation and UK legislation applying to Northern Ireland. EU relations are an excepted function and direct rule produced a system of linking Northern Ireland departments with Whitehall departments to ensure the preparation of orders and regulations which would meet the requirements of EU directives. In fact, such was the flow of directives that the Department of Environment admitted in 2004 to considerable delays in transposing EU directives into local legislation (DFP, 2006b). The main areas of legislation determined by EU directives included consumer safety, environmental protection, water quality, waste management, competition policy, equal treatment of men and women and agricultural and rural development. External influences are more readily associated with the role of the Irish Government which had the political status of a major partner of the UK Government in the good Friday Agreement and the St Andrews Agreement. Through the Anglo-Irish intergovernmental bodies established in 1985, the Irish Government had the ability to put its views forward. In practice the Irish Government mainly attempted to influence security and anti-discrimination policies. Its institutional role in public policy-making was to become more specific through the North–

BDR11.indd 237

3/23/2009 4:14:20 PM

238

Direct rule and the governance of Northern Ireland

South Ministerial Council, the British–Irish Intergovernmental Conference, the British–Irish Council and the cross-border Implementation Bodies. The broader areas of cooperation have tended to produce some collaboration and sharing of practice rather than specific impacts on social and public polices in Northern Ireland. At a more detailed level the establishment of implementation bodies meant some harmonisation of legislation and synchronisation of the passage of parallel legislation through the Westminster and Dublin Parliaments. Other external influences have been spasmodic, with only a few clear examples. The influence of the United States Government was important in the peace negotiations. The Clinton administration had given Northern Ireland a high priority. George Mitchell, as a special envoy, played a major role in chairing the peace negotiations and there has been a continuing interest through special envoys. There was also specific US influence on fair employment issues through the McBride Principles campaign which was organised by Irish–American groups. This advocated the adoption of nine affirmative action principles and sought to gain the support of state and city legislatures in threatening to shift their investments if American companies with operations in Northern Ireland did not endorse the campaign. The British Government resisted the campaign on the grounds that several of the principles would have been illegal under fair employment law but the McBride campaign probably did have some influence in strengthening fair employment law in 1988 (McNamarra, 2002). It has also been noted that the equality legislation has drawn extensively from experience in Canada (Osborne, 2003). Policy networks Having examined the modes and scope of influence by the UK Government under direct rule it is worth noting the role of local policy networks under direct rule. The local contribution to policy debates under direct rule was not so significant. Northern Ireland had a rather limited policy-making capacity and the policy community can be seen as limited to the Civil Service and senior professionals and administrators who were often strongly influenced by decisions in the United Kingdom. Morrow (1996) identified a tight and intimate policy network dominated by administrative interests. Greer (2004) saw the health policy community as small and insider-dominated. The Northern Ireland Civil Service was not generally plugged into Whitehall departments and their extensive policy networks and inputs from research institutes and think-tanks. The NICS has recognised the weaknesses in its policy delivery capability (Permanent Secretary Group, 2007). This is further

BDR11.indd 238

3/23/2009 4:14:20 PM

Policy-making under direct rule

239

exemplified by government departments’ heavy reliance on external consultants to provide policy analysis and policy evaluations. This reliance led to criticisms by the Audit Office (NIAO, 2004) concerning the growth in the use of consultants and little evaluation of their work. It can be seen as contributing to a lack of development of policy capacity and policy appraisal skills in the Civil Service. Some of the decisions driven by the Civil Service in the RPA reflect a cautious, anti-modernisation and ideologically conservative position on health structures, centralisation, rates, underdevelopment of social care and children’s services, lack of public participation and local responsiveness. Northern Ireland also has a small academic community to draw on for advice on policy-making although in a few areas, there was a strong input from external academics. This was particularly the case with fair employment and Edwards (1995) suggested this resulted in an understanding of employment inequalities which was considerably more sophisticated than in either Britain or America. During direct rule the local political parties contributed little to policy formulation as distinct from the search for political agreement and making representations on security policy. The one level of governance that involved local politicians, local government, had such limited powers that it did not encourage the production of new significant policy ideas. It has been suggested that to an extent the voluntary sector in Northern Ireland filled the policy gap and organised links with government departments and emerged as a strong influence within the policy network (Morrow, 1996: 151). The increased use of public consultations on legislative proposals also encouraged pressure group engagement with the policy process. It was not so difficult for local pressure groups to arrange meetings with Northern Ireland ministers and there was probably easier access to ministers than for regional groups in England. There were some successful pressure group campaigns, for example, a smoke free coalition of voluntary and statutory groups successfully lobbied the Northern Ireland minister for health in 2005. On the other hand, the limited number and nature of inquiries by Westminster parliamentary select committees did not facilitate extensive pressure group/stakeholder inputs. Comparison with policies under devolution An assessment of policies made under direct rule can be further illuminated by comparing policies with those introduced under devolution. Such an exercise has to be cautious, given the short time period of

BDR11.indd 239

3/23/2009 4:14:20 PM

240

Direct rule and the governance of Northern Ireland

devolved government in recent years. The first Northern Ireland Executive Programme for Government (Northern Ireland Executive, 2001a) was subtitled ‘Making a Difference’ and set out strategies, aims and objectives and public service agreements for departments rather than a programme of legislation. The programme did set out a policy vision of a cohesive, inclusive and just society with some specific priorities related to equality and tackling disadvantage, the competitive economy, improving health, education and skills, community relations and modernisation of services. However, the period of devolved government 1999–2003 saw some thirty-six primary acts of legislation, few of which reflected this agenda. Over one-third was parity legislation and the remainder, other than budget measures, had been in the pipeline from the recommendations for law reform or departmental reviews. The most significant was the decision to set up a new economic development quango, Invest Northern Ireland. When the Assembly was suspended twenty-two further bills were being processed and the Westminister Parliament converted these into orders-in-council, largely unaltered. Again, one-third of these bills were mainly parity measures, three were EU measures and the others were follow-ons from law reform work pre-devolution. Several dealt with routine financial matters and only bills dealing with planning controls, energy and consumer representation, a new regulation authority for health and social care and especially a bill to set up a commissioner for children and young people reflected the devolved administration’s own policy formulation. The latter measure was in practice an example of policy copying from Welsh Assembly Government. It has been argued that although there was a significant legislative output it did not reflect the Good Friday Agreement’s themes or a truly wide-ranging and sustained local legislative programme (Anthony and Morison, 2005). More radical executive actions were limited, mainly to the decision to abolish the 11 plus examination. The most important decision was the commitment to a comprehensive review of public administration in order to introduce reforms to suit the new devolved arrangements. Horgan (2006) in examining policies in this period of devolution identified some resistance to the New Labour neo-liberalism agenda and saw hope in the restoration of devolution halting liberalisation and addressing inequalities. However, the restoration of devolution in 2007 saw little evidence of devolution introducing more radical policies than direct rule. The new agreed programme of government for 2008–11 (Northern Ireland Executive, 2007) indicated that growing the economy would be the top priority with other priorities described; as inclusion and health and well-being, protecting the environment, investing in

BDR11.indd 240

3/23/2009 4:14:20 PM

Policy-making under direct rule

241

infrastructure and delivering modern efficient public services. Both short periods of devolution do not show much evidence of locally determined policies. Moreover, policy-making under devolution has the potential for much fragmentation and even ideological divisions along a left-right spectrum. The Democratic Unionist ministers have prioritised building the private economy, reducing the public sector, pursuing efficiency and exercising greater selectivity in social policy. Sinn Fein’s main radical contribution has been the ending of academic selection, which was totally opposed by both Unionist parties. All parties appear agreed on a rates policy with an element of populism, to freeze regional rates, but have endorsed a future policy on rates which reflects more conservative concerns with fraud and ‘blanket’ relief. The danger, as expressed by McLaughlin (2005) in writing about the 1999–2002 period of devolution, is of a ‘lowest common denominator of conservative social values and social policies’, where because of the need for cross-party agreement only the ‘unambiguously deserving poor’, i.e. children and older people, may benefit from devolution.

BDR11.indd 241

3/23/2009 4:14:20 PM

12

Conclusions

The achievements and failings of direct rule Given that direct rule ended in 2007, it is appropriate to attempt to reach some conclusion on the achievements and failures of direct rule and what advantages and disadvantages have accrued. Such an exercise has to be undertaken, at least in part, in making a comparison with the evidence from the performance of what can be called the St Andrew’s form of devolved government. It remains a moot question as to whether direct rule will ever return, but given the volatility of Northern Ireland politics it would not be surprising. The positive features of direct rule may be classified as follows. • As a safety mechanism: Direct rule provided an insurance for the continuation of governance in Northern Ireland whenever the local political parties failed to agree on working a devolved system of government or in the case of a breakdown in the operation of a devolved executive and assembly. The alternative to a failure or lack of agreement in devolved government was and is, not that there would be no government or a meltdown of governance over transferred powers, but direct rule can take over. • As a alternative system of government: Direct rule is a comprehensive system of government. Although often described as rule by the Secretary of State direct rule has encompassed a system of ministerial government, a parliamentary legislative process, consultation mechanisms, UK parliamentary scrutiny by committee and ministerial and Parliamentary scrutiny over the continuing Northern Ireland structure of public bodies, local government and cross-border institutions. Although originally designated temporary it became a long-standing mechanism for delivering effective government. It therefore allowed local politicians to negotiate at length on a political settlement. Direct rule also demonstrated its ability to incorporate a wide range of administrative structures, regional government departments and

BDR12.indd 242

3/23/2009 4:14:03 PM

Conclusions

•

•

•

•

•

BDR12.indd 243

243

executive agencies, regionalised and sub-regional public bodies, a local government system as well as unique cross-border institutions of governance. Flexible mechanism: Direct rule has proved a very flexible mechanism in that it can be ended or restored at very short notice through action by the Secretary of State and short legislative measures which can be quickly introduced at Westminster. Thus the transfer to and from direct rule has and can take place with little disruption to the overall governance of Northern Ireland, other than to the Executive and Assembly. Neutral government: Direct rule can be seen as providing government by a ‘neutral participant’, the British Government, although the reality of this has been disputed by some commentators. Successive British Governments and secretaries of state and NIO ministers have not perceived themselves as representing either of the two community blocks in Northern Ireland. This was emphasised through both the declaration that the British Government had no selfish strategic interests and through attempts to strike a balance between the conflicting claims and interests of the two communities. Role in conflict resolution: Direct rule facilitated the introduction of radical measures to assist in the peace process, the search for a political settlement, tackling social and economic disadvantage, and postconflict recovery and stability. This is demonstrated in the radical legislation introduced to implementing the peace agreement and the St Andrew’s Agreement on constitutional arrangements, policing, prisoners and cross-border cooperation. It is also demonstrated throughout direct rule in the priority given to initiatives in the area of community relations, the equality agenda and anti-discrimination measures, human rights, complaints procedures and aspects of social and economic policy. Promotion of cross-border cooperation: Direct rule made possible the development of a close relationship between Northern Ireland and the Republic of Ireland and between the United Kingdom Government. Difficulties in cross-border institutional intergovernmental cooperation which emerged in the 2000–02 period of devolution disappeared with the restoration of direct rule and most of the institutions became well established including the British–Irish Council and were in more robust shape when direct rule ended in 2007. Participation in modernisation: Direct rule meant Northern Ireland took part in modernisation agendas developed in Great Britain, if perhaps not totally. This occurred mainly in the area of Civil Service management reforms, public service delivery, partnership working,

3/23/2009 4:14:03 PM

244

Direct rule and the governance of Northern Ireland

public consultations, user involvement, private–public partnerships and public appointments. • Some more progressive policies: Direct rule saw the introduction of some progressive social policies which would probably not have happened had direct rule not been in existence. In these instances Northern Ireland was treated as an internal part of the United Kingdom. • Coherent and joined-up government: Direct rule largely brought coherent and joined up public policies through the implementation of a single party agenda from successive British Governments, for example, on reducing child poverty. It also meant a single unified government with responsibility for all governance functions in Northern Ireland, transferred, excepted and reserved. There was frequently legislation to bring Northern Ireland into line with reforms and new policies in Britain although in some policy areas circumstances required distinctive measures. Some divergent policy proposals emerged in 2006–07, to act as incentives for the political parties to move towards agreement and restoring devolution.

Failings of direct rule It is also possible to highlight some of the limitations and failings of direct rule in practice. • The democratic deficit: The main criticism of direct rule was that it represented a democratic deficit. This meant a denial of selfgovernment over transferred matters as the decisions were not taken by local politicians with local knowledge. The large size of the public sector also served to increase the size of the democratic deficit. The democratic deficit can be seen as alienating the public and politicians from the process of government through the loss of a regional government platform for a generation of politicians. The democratic deficit was also to be identified in the nature and quality of policy-making, as not reflecting local interests and views. • Unaccountable or limited accountability: Direct rule can also be seen as unaccountable government as the direct rule ministers were not held accountable to the local electorate who are directly affected by their decisions. There was accountability to the Westminster Parliament including the Northern Ireland Westminster MPs but this was limited in practice. The large quango sector also operated with restricted public accountability. • Partial government: The criticism was made that NIO ministers had to divide their time between Northern Ireland and Westminster,

BDR12.indd 244

3/23/2009 4:14:03 PM

Conclusions

245

Millbank and their constituencies. NIO ministers had responsibility for several departments and functions. This criticism obtained further support when Peter Hain occupied the post of Secretary of State for Wales as well as Northern Ireland. The partial government criticism would also point to a general lack of interest in Northern Ireland issues at Westminster or in Whitehall unless in times of constitutional or security crisis. It is difficult to speak of totally committed government when it was the normal wish of the governing ministers to be put out of work. • Inadequate treatment of Northern Ireland business at Westminster: This was the criticism that there was inadequate time and procedures for handling Northern Ireland business at Westminster, especially in terms of the lack of detailed consideration and amendment of legislation, and the lack of comprehensive scrutiny by committees. • Direct rule always temporary: Despite the operation of direct rule over a long period of time it was always regarded as a ‘temporary’ measure that could end in almost any year. All the political and constitutional initiatives aimed at replacing direct rule by a form of devolution. This led to some policy decisions not being made or decisions being delayed and a lack of attention to longer-term issues, such as the physical infrastructure. Direct rule or devolution? The question can be asked which system can contribute more to the better governance of Northern Ireland. The assumption would tend to favour devolution particularly for realising an inclusive crosscommunity cross-party form of government, providing an agreed political settlement as a key element in the peace process, addressing the democratic deficit and providing the potential for moulding policies to suit Northern Ireland. However, the detailed study of direct rule does suggest that direct rule actually provided elements of good governance which devolution, on evidence to date, will struggle to meet. The major facet would be a coherent programme of government underpinned by agreed values and a political ideology. Devolution has brought generalised statements with no agreed underpinning ideology and decisions made on a lowest common denominator basis or by ministerial bargaining. The arrangements under the St Andrew’s Agreement require crosscommunity and cross-party support for policy and legislation which means that consensus can be very difficult with parties divided on both traditional ideological lines and on left–right lines. Devolution provides less cohesive government, not based on collective responsibility. There

BDR12.indd 245

3/23/2009 4:14:03 PM

246

Direct rule and the governance of Northern Ireland

is also limited evidence of efficient government. The Executive’s complex and rigid decision-making procedures and blocking mechanism has led to much slower decision-making than under direct rule and hold ups and policy deadlock have been frustrating for civil servants, pressure groups, the media and the public. Direct rule may also be more effective than devolution in dealing with the continuing deep sectarian divisions. It can also be pointed out that there are aspects of governance where replacing direct rule with devolution has made little difference. It has made little difference to the large role and scope of the powers of quangos or public bodies in the governance of Northern Ireland. There is little evidence of the devolved administration moving to reduce the functions of quangos or making quangos more accountable either through assembly committee scrutiny of annual reports or quango activities or the appointment of more elected representatives. There has been little difference between the two systems in the outcome for the reform of local government. The question can be asked are ministers anymore full-time in that six of the eleven ministers are also MPs at Westminster. It is also not obvious that scrutiny of transferred services by the Assembly is a complete improvement over Westminster procedures. A major drawback with the assembly committees is that the government and departments do not have to reply publicly in a written document to each of the select committees findings and recommendations, the practice at Westminster. Assembly committees cover more local devolved topics but again few have taken evidence from a wide range of local sources. Also the devolved Public Accounts Committee has lacked the status of the Westminster Public Accounts Committee. The structure of government departments into eleven reflects an old-fashioned functional configuration, at odds with modern themes or groupings of services. It is likely direct rule would have moved to a smaller number of government departments, around such themes as children services and work and social security. There is also little difference in the near lack of an opposition in the Assembly. Under direct rule there was a bi-partisan policy between Labour and Conservative parties. This applied mainly to constitutional and security issues but also impeded criticisms of social and economic policies. With devolution the coalition of the four main parties also rules out the possibility of an effective opposition and has the potential for an Assembly free for all. This is a contributory factor in the lack of discussion of bread and butter issues and lack of quality debates on social, economic and environmental policies compared to the Scottish Parliament and Welsh Assembly.

BDR12.indd 246

3/23/2009 4:14:03 PM

Conclusions

247

What is the view of the population who have given their majority support firstly to the agreement settlement and to the parties in the St Andrew’s coalition? When it comes to specific opinion polls on devolution and direct rule opinion is more divided and over the years there has been variation in support. In 1996 before the restoration of devolution support for direct rule seemed stronger than devolution, 38 per cent, to 20 per cent as a political settlement options (Irwin, 2002). In 1998 on the eve of the agreement a QUB/Rowntree study identified a take it or leave it attitude with only 19 per cent of protestants and 13 per cent of catholics seeing a regional assembly as essential (Irwin, 2002: 200). The Northern Ireland Life and Times study had found between 2001 and 2007 stronger support for devolution compared to direct rule in 2007, 55 per cent to 11 per cent, although it includes a united Ireland option (Wilford and Wilson, 2008). A different study found in 2003 a majority in favour of devolution compared to direct rule, 66 per cent to 31 per cent, although among protestants opinion was evenly divided 49 per cent for devolution and 47 per cent against devolution (Belfast Telegraph, 2003). In terms of impact in the Life and Times study in 2002, 51 per cent said the Assembly had achieved little and 18 per cent nothing (MacGinty, 2003). By 2008 a poll reported 72 per cent of respondents saying devolution had not made any difference to their lives (Belfast Telegraph, 2008). Legacy of direct rule Political factors will determine whether Northern Ireland is governed in future by direct rule or devolution. Direct rule can be said to have left a legacy which future devolved governments will have difficulty in moving away from. The main features of this legacy are; a significant convergence of legislation with Britain, a settled system of budget allocation and public expenditure processes which provides high levels of public expenditure, a tradition of public consultation, participation in a public service modernisation agenda, the equality and nondiscrimination agenda, cross-border cooperation and institutions, and an extensive system of quangos in governance.

BDR12.indd 247

3/23/2009 4:14:03 PM

References

Acheson, N., Harvey, B., Kearney, J. and Williamson, A. (2005) Two Paths, One Purpose: Voluntary Action in Ireland, North and South. Dublin: Institute of Public Administration. Acheson, N., Cairns E., Stringer, M. and Williamson, A. (2007) Voluntary Action and Community Relations in Northern Ireland. Coleraine: University of Ulster. Anthony, G. and Morison, J. (2005) ‘Here, There and (Maybe) Here Again: The Story of Law-making for Post-1998 Northern Ireland’ in R. Hazell and R. Rawlings (eds), Devolution, Law-Making and the Constitution. Exeter: Imprint Academic. ARK (Northern Ireland Social and Political Archive) (2005) Election Results from Northern Ireland available at www.ark.ac.uk/elections. Arthur, P. (2000) Special Relationships: Britain, Ireland and the Northern Ireland Problem. Belfast: Blackstaff. Aughey, A. (1989) Under Siege: Ulster Unionism and the Anglo-Irish Agreement. Belfast: Blackstaff Press. Aughey, A. (1996) ‘Direct Rule’ in A. Aughey and D. Morrow (eds), Northern Ireland Politics. London: Longman. Aughey, A., Hainsworth, P. and Trimble, M.J. (1989) Northern Ireland in the European Community and Economic and Political Analysis. Belfast: Policy Research Institute. Barnett, R. (1998) ‘Financial Arrangements’ in R. Wilson (ed.), Agreeing to Disagree: A Guide to the Northern Ireland Assembly. Belfast: Stationery Office. Barnett, R. and Hutchinson, G. (1998) ‘Public Expenditure on the Eve of Devolution’ in Hard Choices: Policy Autonomy and Priority-setting in Public Expenditure. Belfast: Democratic Dialogue/Northern Ireland Economic Council. Belfast Telegraph (2003) The Peoples Verdict. (20 February). Belfast Telegraph (2008) Devolution Hasn’t Made Its Mark Yet. (7 May). Bell, E. (1985) ‘What People Should Know about the Role of the Civil Service in Northern Ireland since 1968’, Belfast Telegraph (29 January).

BDR_REF.indd 248

3/23/2009 4:15:09 PM

References

249

Bell, P.N. (1987) ‘Direct Rule in Northern Ireland’ in R. Rose, (ed.) Ministers and Ministries: A Functional Analysis. Oxford: Clarendon Press. Bew, P., Gibbon, P. and Patterson, A. (1996) Northern Ireland 1921–1991: Political Forces and Social Classes London: Serif. BIC (British–Irish Council) (1999) Joint Communiqué, Summit Level Meeting 17 December 1999 available at www.british-irishcouncil.org. BIC (British–Irish Council) (2005) Joint Communiqué, Summit Level Meeting, 20 May 2005 available at www.british-irishcouncil.org. BIIC (British–Irish Intergovernmental Conference) (1999) Joint Communiqué, 17 December 1999. Belfast: British–Irish Intergovernmental Secretariat. BIIC (British–Irish Intergovernmental Conference) (2002) Joint Communiqué, 18 December 2002. Belfast: British–Irish Intergovernmental Secretariat. BIIC (British–Irish Intergovernmental Conference) (2005) Joint Communiqué, Summit Level Meeting 27 June 2005. Belfast: British–Irish Intergovernmental Secretariat. BIIC (British–Irish Intergovernmental Conference) (2006) Joint Communiqué, 2 May 2006. Belfast: British–Irish Intergovernmental Secretariat. British–Irish Inter-Parliamentary Body (2002) Twenty-fourth Plenary Session, 25 March 2002 available at www.biipb.org. British–Irish Inter-Parliamentary Body (1997–2007) Annual Reports available at www.biipb.org. Birrell, W.D. (1978) ‘The Northern Ireland Civil Service: From Devolution to Direct Rule’, Public Administration, 56(2), 305–20. Birrell, W.D. (1984) ‘The Parliamentary Commissioner for Administration and Civil Service Personnel Matters’, Public Administration Bulletin, 45, 10–21. Birrell, W.D. (2007a) ‘Northern Ireland Business in Parliament: The Impact of the Suspension of Devolution’, Parliamentary Affairs, 60(2), 297–312. Birrell, W.D. (2007b) ‘The Reform Agenda in the Northern Ireland Civil Service: The Influences of Parity, Integration, Devolution and Direct Rule’, Public Policy and Administration, 22(3), 275–88. Birrell, W.D. (2007c) ‘Divergence in Policy between Great Britain and Northern Ireland: The Case of Local Taxation’, Public Money and Management, 27(5), 323–30. Birrell, W.D. (2007d) ‘The Role of Local Government in the Review of Public Administration in Northern Ireland: The Challenge of Enhancement, Devolution and Modernistaion’, Local Government Studies, 35(5), 657–75. Birrell, W.D. (2008) ‘Devolution and Quangos in the United Kingdom: The Implementation of Principles and Policies for Rationalisation and Democratisation’, Policy Studies, 29(1), 35–49. Birrell, W.D. and Hayes, A. (1999) The Local Government System in Northern Ireland. Dublin: Institute of Public Administration. Birrell, W.D. and Hayes, A. (2001) Cross-border Cooperation in Local Government. Armagh: Centre for Cross-Border Studies.

BDR_REF.indd 249

3/23/2009 4:15:09 PM

250

References

Birrell, W.D. and Murie, A.S. (1980) Policy and Government in Northern Ireland: Lessons of Devolution. Dublin: Gill and MacMillan. Bloomfield D. (1998) Political Dialogue in Northern Ireland: The Brooke Initiative 1989–92, London: Macmillan. Bloomfield, K. (1991) ‘Who Runs Northern Ireland?’, Fortnight, 14 November. Bloomfield K. (1994) Stormont in Crisis. Belfast: Blackstaff Press. Bloomfield, K. (1996) ‘Devolution: Lessons from Northern Ireland?’, Political Quarterly, 67(2), 135–140. Bloomfield, K. (1997) ‘Central Government and Its Operations’ in Chief Executives Forum (ed.), Review of Northern Ireland Administrative Arrangements, Belfast: Bloomfield, K. (1998) ‘We Will Remember Them’, Report of the Northern Ireland Victims Commissioner. Belfast: Northern Ireland Office. Bloomfield, K. (2007) A Tragedy of Errors: The Government and Misgovernment of Northern Ireland. Liverpool: Liverpool University Press. Brett, C.E.B. (1984) Housing a Divided Community. Dublin: Institute of Public Administration. Cabinet Office (1993) Public Bodies. London: HMSO. Cabinet Office (1994) The Civil Service Continuity and Change. Cm 2627. London: Stationery Office. Cabinet Office (1997) Next Steps Agencies in Government. Cm 3579. London: Stationery Office. Cabinet Office (1999) Modernising Government. Cm 4316. London: Stationery Office. Cabinet Office (2000) Executive Agencies 1999 Report. Cm 4658. London: Stationery Office. Cabinet Office (2002) Composite Review of Fair Employment and Treatment in the Northern Ireland Home Civil Service. London: Stationery Office. Cabinet Office (2004) Civil Service Reform, Delivery and Values. London: Stationery Office. Cabinet Office (2007) Public Bodies Annual Reports available at www .civilservice.gov.uk/about/public/bodies. Carmichael, P. (2002) ‘The Northern Ireland Civil Service: Characteristics and Trends Since 1970’, Public Administration, 80(1), 23–49. Carmichael, P. and Osborne, R. (2003) ‘The Northern Ireland Civil Service under Direct Rule and Devolution’, International Journal of Administrative Sciences, 69(2), 205–17. Carmichael, P., Knox, C. and Osborne, B. (1997) ‘Mapping the Public Sector in Northern Ireland’, Contemporary Political Studies, 2, 989–1009. Centre for Cross-Border Studies/FPM Accountant LLP (2007) Common Chapter North/South Activity Report 2006 and 2005 available at www .crossborder.ie/research/common.php. Civil Service Commissioners for Northern Ireland (2005) Annual Report 2004/2005. Belfast: Office of Civil Service Commissioners.

BDR_REF.indd 250

3/23/2009 4:15:09 PM

References

251

Civil Service Department (1980) The Civil Service Year Book 1980. London: HMSO. Clarke, J. and Jamison, P. (2001) From Concept to Realisation: An Evaluation of CAWT. Armagh: Centre for Cross-Border Studies. Clarke, J. and Jamison, P. (2006) ‘Cross-border Health Co-operation: From Optimism to Realism’, Journal of Cross-Border Studies in Ireland, 1, pp. 48–61. Coakley, J. (2001a) ‘North–South Coordination’ in R. Wilson (ed.), Agreeing to Disagree: A Guide to the Northern Ireland Assembly. Belfast: Stationery Office. Coakley, J. (2001b) ‘The Belfast Agreement and the Republic of Ireland’, in R. Wilford (ed.), Aspects of the Belfast Agreement. Oxford. Oxford University Press. Coakley, J., O’Caoindealbhain, B. and Wilson, R. (2007) ‘Institutional Cooperation: The North–South Implementation Bodies’ in J. Coakley and L. O’Dowd (eds), Crossing the Border. Dublin: Irish Academic Press. Commissioner for Complaints (1971) Third Report of the Northern Ireland Commissioner for Complaints. Annual Report 1970, HC 2101. London: HMSO. Commissioner for Complaints (1987) Annual Report of the Northern Ireland Commissioner for Complaints 1986. London: HMSO. Committee on Standards in Public Life (1995) First Report Nolan Committee, Cm 2850. London: HMSO. Connolly, M. (1990) Politics and Policy Making in Northern Ireland. London: Philip Allan. Connolly, M. (1996) ‘Lessons from Local Government in Northern Ireland’, Local Government Studies, 22(2), 77–91. Connolly, M. and Erridge, A. (1990) ‘Central Government in Northern Ireland’ in M. Connolly and S. Loughlin (eds.), Public Policy in Northern Ireland: Adoption or Adaptation. Belfast: Policy Research Institute. Connolly, M. and Murray, M. (1986) ‘Local Authority Economic Development in Northern Ireland’, Local Government Studies, 12(8), 51–9. Coulter, B. (2008) Resignation of Brian Coulter, Prisoner Ombudsman for Northern Ireland available at www.NIprisonerombudsman.gov.uk/ documents/statement. Cox, W.H. (1986) ‘Managing Northern Ireland Intergovernmentally: An Appraisal of the Anglo-Irish Agreement’, Parliamentary Affairs, 40(1), 80–97. Cranmer, F. and Roycroft, J. (2000) The British–Irish Inter-Parliamentary Body: The First Ten Years available at www.biipb.org. Creamer, C., Blair, N., O’Keefe, B., van Egeraat, C. and Driscoll, J. (2008) ‘Tough Love: Local Cross-border Cooperation Faces the Challenge of Sustainability’, Journal of Cross-Border Studies, 3, 80–95. Criminal Justice Inspection (2007) Handling of Complaints in the Criminal Justice System available at www.cjini.org.publications.

BDR_REF.indd 251

3/23/2009 4:15:09 PM

252

References

Cunningham, M. (2001) British Government Policy in Northern Ireland 1969– 2000. Manchester: University Press. DED (Department of Economic Development) (1986). Equality of Opportunity in Employment in Northern Ireland: Future Strategy Options. Belfast: HMSO. Deloitte, MCC Ltd. (2004) Review of the Office of the Assembly. Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints. Belfast: Office of the First Minister and Deputy First Minister. Democratic Dialogue (1999) No Frontiers: North–South Integration in Ireland, Report 11. Belfast: Deurocutic Dialogue. Devlin, P. (1975) The Fall of the Northern Ireland Executive. Privately published. London. DoE (Department of the Environment) (1991) The Government’s Response to the First Report from the House of Commons Select Committee on the Environment. Environmental Issues in Northern Ireland. Cm 1484. London: HMSO. Department of Finance (2007) National Development Plan 2007–2013: Transforming Ireland. Dublin: Stationery Office. DFP (Department of Finance and Personnel) (1983a) Financial Management Initiative within the Northern Ireland Department. Belfast: HMSO. DFP (Department of Finance and Personnel) (1983b) Determining the Regional Rate in Northern Ireland: A Discussion Paper. Belfast: HMSO. DFP (Department of Finance and Personnel) (1984) Progress in Financial Management in Northern Ireland Departments. Belfast: HMSO. DFP (Department of Finance and Personnel) (1989) Northern Ireland Estimates 1989–90, Belfast: HMSO. DFP (Department of Finance and Personnel) (1990a) Memorandum on 18th Report from Public Accounts Committee. Cm 4822. London: HMSO. DFP (Department of Finance and Personnel) (1990b) Northern Ireland Commentary on Public Expenditure Plans 1990–93. Belfast: HMSO. DFP (Department of Finance and Personnel) (1993a) Finance Accounts of Northern Ireland, 1992–3, Belfast: HMSO. DFP (Department of Finance and Personnel) (1993b) Expenditure Plans and Priorities, 1992–3, 1994–5. Cm 2216. London: HMSO. DFP (Department of Finance and Personnel) (1994) Finance accounts of Northern Ireland 1993–4. Belfast: HMSO. DFP (Department of Finance and Personnel) (1998) Memorandum on 5th and 6th Reports from Committee on Public Accounts, 1997–8. Cm 3893. London: Stationery Office. DFP (Department of Finance and Personnel) (2002) Review of Rating Policy: A Consultation Paper. Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2003) Building on Progress. Budget 2003–2006. Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2004a) ‘Fit for Purpose’: The Reform Agenda in the Northern Ireland Civil Service, Belfast: Stationery Office.

BDR_REF.indd 252

3/23/2009 4:15:09 PM

References

253

DFP (Department of Finance and Personnel) (2004b) Reform of the Domestic Ratings System in Northern Ireland: Policy Paper. Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2004c) Northern Ireland Priorities and Budget 2004–2007. Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2004d) An Introduction to European Union Structural Funds in Northern Ireland: Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2005a) Priorities and Budget 2005–2008, Belfast: Stationery Office. DFP (Department of Finance and Personnel) (2005b) Public Income and Expenditure. HC509. London: Stationery Office. DFP (Department of Finance and Personnel) (2006a) Memorandum on the 46th Report from the Public Accounts Committee, 2005–6. Cm 6879. London: Stationery Office. DFP (Department of Finance and Personnel) (2006b) Creating a World Class Northern Ireland. News Release available at www.dfpni.gov.uk. DHSSPS (Department of Health, Social Services and Public Safety) (2008) Proposals for Health and Social Care Reform available at www.dhssps.gov.uk. DFP (Department of Finance and Personnel) (2008a) Review of Policy on Location of Public Sector Jobs. Public Research Paper available at www.dfpni.gov. uk. DFP (Department of Finance and Personnel) (2008b) Outcome of Northern Ireland Executive’s 2007 Review of Domestic Ratings System. Belfast: HMSO. Donohoe, L. (2001) Counter Terrorist Law and Emergency Powers in the United Kingdom. Dublin: Irish Academic Press. DSD (Department of Social Development) (2000) Review of the District Councils Community Services Programme. Belfast. Edwards, J. (1995) Affirmative Action in a Sectarian Society. Aldershot: Avebury. Environment Committee (1990) First Report: Environmental Issues in Northern Ireland. HC 39. London: HMSO. Environment Committee (1993) Environmental Issues in Northern Ireland. HC 861. London: HMSO. EOC (Equal Opportunities Commission for Northern Ireland) (1986) Tenth Annual Report. Belfast. EOC (Equal Opportunities Commission for Northern Ireland) (1994) Eighteenth Report and Accounts 1993–4. Belfast. EOC (Equal Opportunities Commission for Northern Ireland) (1995). Removing Sex Bias from Recruitment Ad Selection: A Code of Practice. Belfast. EOC (Equal Opportunities Commission for Northern Ireland) (1996b). Twentieth Report and Accounts 1995–6. Belfast. EPCU (European Policy and Coordination Unit) (2004) Taking Our Place in Europe: Northern Ireland’s Strategy 2004–8. Belfast: OFMDFM. Equality Commission for Northern Ireland (2006) Annual report 2005–6. HC 34. London: Stationery Office.

BDR_REF.indd 253

3/23/2009 4:15:09 PM

254

References

Equality Commission for Northern Ireland (2007a) Section 75: Keeping it effective. Belfast. Equality Commission for Northern Ireland (2007b) Inequalities in Northern Ireland. Belfast. Equal Opportunities Unit (2000) Equal Opportunities in the Northern Ireland Civil Service: Seventh Report. Belfast. Equal Opportunities Unit (2008) Equal Opportunities in the Northern Ireland Civil Service: Eighth Report. Belfast. Examiner of Statutory Rules (1989) Thirty-first Report from the Examiner of Statutory Rules. Belfast: HMSO. Examiner of Statutory Rules (2002) First Report of the Examiner of Statutory Rules. Belfast: The Stationery Office. Examiner of Statutory Rules (2007) First Report of the Examiner of Statutory Rules, 2006/2007. Belfast: Stationery Office. Farren, S. (2004) ‘Barnett Formula Must Go’, press release available at www .sdlp.ie/prfarrenbarnett.shrm. Faulkner, B. (1978) Memoirs of a Statesman. London: Weidenfeld & Nicolson. FEA (Fair Employment Agency) (1984) Seventh report of the Fair Employment Agency 1902–3. London: HMSO. FEA (Fair Employment Agency) (1985) Ninth Report of the Fair Employment Agency 1986–5. London: HMSO. FEC (Fair Employment Commission) (1996) Monitoring Report no. 6. Belfast. Fisk, R. (1975) The Point of No Return. London: Deutsch. Fitzpatrick, B. (2006) ‘Article 24 of the Commissioner for Children and Young People (NI) Order 2003’, Review of the Office of the Commissioner, available at www.niccy.org. Fitzgerald, G. (1991) All in a Life: An Autobiography. Dublin: Gill and Macmillan. Frawley, T. (2007) ‘Interview with Northern Ireland Ombudsman’, Belfast Telegraph (24 September). Gaffikin, F. and Morrisey, M. (1990) Northern Ireland: The Thatcher Years. London: Zed Books. Gay, O. (2006) The Northern Ireland (St Andrews Agreement) Bill 2006–7. Research Paper 06/56. London: House of Commons Library. Gay, O. and Mitchell, J. (2007) ‘Stormont, Westminster and Whitehall’ in P. Carmichael, C. Knox and R. Osborne (eds), Devolution and Constitutional Change in Northern Ireland. Manchester: Manchester University Press. Gershon, P. (2004) Releasing Resources to the Front Line. Independent Review of Public Sector Efficiency. London: The Treasury. Gibson, N. (1996) ‘Northern Ireland and Westminster: Fiscal Decentralisation. A Public Economics Perspective in Northern Ireland’, in Decentralised Government and Economic Performance in Northern Ireland. Belfast: Northern Ireland Economic Development Office.

BDR_REF.indd 254

3/23/2009 4:15:09 PM

References

255

Goodall, D. (2002) ‘Hillsborough to Belfast: Is it the Final Lap?’ in M. Elliott (ed.), The Long Road to Peace in Northern Ireland. Liverpool: Liverpool University Press. Gordon, D. (2007) ‘Hain’s Right Hand Man’, Belfast Telegraph (6 March). Government of Northern Ireland (1969a) The Reshaping of Local Government: Further Proposals. Cmd 530. Belfast: HMSO. Government of Northern Ireland (1969b) Disturbances in Northern Ireland. Cmd 532 (Cameron Report). Belfast: HMSO. Government of Northern Ireland (1970) Review Body on Local Government in Northern Ireland. (Macrory Report), Cmd 546. Belfast: HMSO. Gray, A.M. and Heenan, D. (1996) ‘The Significance of Public Bodies in Northern Ireland and their Representation of Women’, Administration, 43(1), 57–75. Greer, A. (1994) ‘Policy Networks and State-Farmer Relations in Northern Ireland, 1921–72’, Political Studies, 42(3), 396–412. Greer, S. (2004) Territorial Politics and Health Policy. Manchester: Manchester University Press. Gudgin, G. (2000) ‘ “EU” Membership and the Northern Ireland Economy’ in D. Kennedy (ed.), Living with the European Union: The Northern Ireland Experience. Basingstoke. MacMillan. Hadden, T. and Boyle, K. (1989) The Anglo-Irish Agreement, Commentary, Text and Official Review. London: Sweet & Maxwell. Hadfield, B. (1989) The Constitution of Northern Ireland. Belfast: SLS Publications. Hadfield, B. (1990) ‘Direct Rule, Delegated Legislation and the Role of Parliament’ in J. Hayes and P. O’Higgins (eds), Lessons from Northern Ireland. Belfast: SLS Publications. Hadfield, B. (1993) ‘Legislation for Northern Ireland: Options for Reform’, Standing Advisory Commission on Human Rights Annual Report 1992–3. HC 739. London. Hadfield, B. (2001) ‘Seeing It Through? The Multifaced Implementation of the Belfast Agreement’ in R.Wilford (ed.), Aspects of the Belfast Agreement. Oxford: Oxford University Press. Hadfield, B. (2003) ‘The Suspension of Devolution in Northern Ireland: New Story or Old Story’, European Public Law, 9(1), 49–57. Hain, P. (2006) From Dependency to Sustainability in Northern Ireland, address to Fabian Society, 31 January available at www.fabian-society.org.uk/ pressoffice/news. Hainsworth, P. (1989) Administering the European Community in A. Aughey, P. Hainsworth and M.J. Trimble. (eds.), Northern Ireland in the European Community: An Economic and Political Analysis. Belfast: Policy Research Institute. Harris, R. (1988) ‘European Regional Policy in Relation to Northern Ireland’ in J.V. Simpson (ed.), Northern Ireland and the European Community: An Economic Assessment. Belfast: Commission of the European Communities.

BDR_REF.indd 255

3/23/2009 4:15:10 PM

256

References

Harvey, C. (2001) ‘Building a Human Rights Culture in a Political Democracy: The Role of the Northern Ireland Human Rights Commission’ in C. Harvey (ed.), Human Rights, Equality and Democratic Renewal in Northern Ireland. Oxford: Hart Publishing. Harvey, C. (2006) ‘Human Rights and Equality in Northern Ireland’, Northern Ireland Legal Quarterly, 57, 215–34. Hayes, M. (1990) ‘The Ombudsman’ in J. Hayes and P. O’Higgins (eds), Lessons from Northern Ireland. Belfast: SLS Publications. Hayes, M. (1995) Minority Verdict: Experiences of a Catholic Public Servant. Belfast: Blackstaff Press. Hayes, M. (1997a) A Police Ombudsman for Northern Ireland? Belfast: Northern Ireland Office. Hayes, M. (1997b) ‘Reinventing Local Government’ in Review of Northern Ireland Administrative Arrangements. Belfast: Chief Executives Forum. Hayes, M. (2002) ‘Neither Orange March Nor Irish Jig’ in M. Elliott (ed.), The Long Road to Peace in Northern Ireland. Liverpool: Liverpool University Press. Hayes, M. (2008) Conservative Stance on the North Is Wiser in Hindsight. Belfast Telegraph 1 January. Hazell, R. (2006) ‘Time for a New Convention: Parliamentary Scrutiny of Constitutional Bills 1997–2005’, Public Law, summer, 247–98. Heald, D.A. (1994) ‘Territorial Public Expenditure in the United Kingdom’, Public Administration, 72(2), 147–75. Heald, D.A. (2003) Funding the Northern Ireland Assembly: Assessing the Options. Research Monograph 10. Belfast: Northern Ireland Economic Council. Heald, D. and McLeod, A. (2005) ‘Embeddedness of UK Devolution Finance within the Public Expenditure System’, Regional Studies, 39(4), 495–518. Hennessey, T. (2000) The Northern Ireland Peace Process. Dublin: Gill and Macmillan. Holland, P. (1981) The Governance of Quangos. London: Adam Smith Institute. Hood, C. and Schuppert, G. (eds.) (1998) Delivering Public Services in Western Europe. London: Sage. Horgan, G. (2006) ‘Devolution, Direct Rule and Neo-liberal Reconstruction in Northern Ireland’, Critical Social Policy, 26(3), 265–8. House of Commons (1987) Written Answers, vol. 138, c.56. House of Commons (1993) Written Answers, vol. 234, c.869. House of Commons (1994) Written Answers, vol. 250, c.40. House of Commons (1996) Written Answers, vol. 274, c.26. House of Commons (1997) Debates, vol. 301, c.615. House of Commons (2005a) Statutory Instruments. Fact Sheet L7. London: House of Commons Information Office. House of Commons (2005b) Parliamentary Questions. Fact sheet P1. London: House of Commons Information Office. House of Commons (2005c) Written Answers, vol. 439, c.1017w.

BDR_REF.indd 256

3/23/2009 4:15:10 PM

References

257

House of Commons. (2007) Northern Ireland Legislation. Fact Sheet L8. London: House of Commons Information Office. House of Lords (1989) Debates, vol. 512, c.1390. Hughes, J., Knox, C., Murray, M. and Greer, J. (1998) Partnership Governance in Northern Ireland. Dublin: Oak Tree Press. Hurd, D. (2003) Memoirs. London: Abacus. Hutchinson, G. (1998) ‘Public Expenditure in the Regional Economy of Northern Ireland: Has the Growth of the 1970s Been Sustained’, Journal of the Statistical and Social Inquiry Society of Ireland, 28(1), 1–34. Hyndman, N. and Eden, R. (2001) The Coordination of Mission Statements, Objectives and Targets in UK Executive Agencies. London: Chartered Institute of Management Accountants. ICPC (Independent Commission for Police Complaints) (1996) Annual Report 1995. HC 353. London: HMSO. Independent Assessor for Military Complaints Procedures (1995) Second Annual Report 1994. HC 471. London: HMSO. Independent Assessor for Military Complaints Procedures (1998) Fifth Annual Report 1997. Belfast: Stationery Office. Independent Assessor for Military Complaints Procedures (2000) Seventh Annual Report 1999. Belfast: Stationery Office. Independent Assessor for Military Complaints Procedures (2007) Fourteenth Annual Report 2006. Belfast: Stationery Office. Independent Commissioner for Detained Terrorist Suspects (2005) Concluding Report. Belfast. Interim Commissioner for Victims and Survivors (2007) Support for Victims and Survivors: Addressing the Human Legacy. Belfast. Irish Times (1989) ‘Wider Ministerial Involvement in Conference Agreed’, (25 May). Irwin, C. (2002) The Peoples Peace Process in Northern Ireland. Basingstoke: Palgrave. Jamison, J., Butler, M., Clarke, P., McKee, M., O’Neill, C. (2001) CrossBorder Cooperation in Health Services in Ireland. Armagh: Centre for CrossBorder Studies. John, P. (1993) Local Government in Northern Ireland. York: Joseph Rowntree Foundation. Joint Committee on Human Rights (2003) Work of the Northern Ireland Human Rights Commission. HC 142/HL 132. London: Stationery Office. Joint Committee on Human Rights (2006) Legislative Scrutiny: Fourth Progress Report. HL98/HC829. London: Stationery Office. Joint Committee on Statutory Instruments (1975) First Special Report. HC 184. London: HMSO. Joint Committee on Statutory Instruments (1977) Twenty-fourth Report. HC 31. London: HMSO. Joint Steering Group (1981) Anglo-Irish Joint Studies. Cmnd 8414. London: HMSO.

BDR_REF.indd 257

3/23/2009 4:15:10 PM

258

References

Judicial Appointments Ombusdman (2007) Northern Ireland Judicial Ombudsman Annual Report 2007-07 available at www.cjani.courtsni.gov.uk. Kennedy, M. and Magennis, E. (2007) ‘North–South Agenda Setting in the 1960s and 1990s: Plus la Change?’, Journal of Cross-border Studies in Ireland, 2, 34–53. Kenny, A. (1986) The Road to Hillsborough: The Shaping of the Anglo-Irish Agreement. Oxford: Pergamon Press. King, T. (1986) ‘What Tom King Thinks Now’, Belfast Telegraph (4 July). Knox, C. (1998) ‘Local Government in Northern Ireland: Emerging from the Bear Pit of Sectarianism’, Local Government Studies, 24(3), 1–13. Knox, C. (1999) ‘Northern Ireland at the Crossroads of Political and Administrative Reform’, Governance, 12(3), 311–28. Knox, C. (2002) Local Government Representation: Briefing Paper. Belfast: Review of Public Administration. Knox, C. (2003) ‘Democratic Renewal in Fragmental Communities: The Northern Ireland Case’, Local Governance, 29(1), 14–36. Knox, C. and Carmichael, P. (2006) ‘Improving Public Services: Public Administration Reform in Northern Ireland’, Journal of Social Policy, 35(1), 97–120. Knox, C. and McHugh, M. (1990) ‘Management in Government: The Next Steps in Northern Ireland’, Administration, 38(3), 252–70. Laffan, B. and Payne, D. (2001) Creating Living Institutions: EU Cross-border Cooperation after the Good Friday Agreement. Armagh: Centre for CrossBorder Studies. Langdon, J. (2000) Mo Mowlam: The Biography, Little, Brown and Company. Lawrence, R.J. (1965) The Government of Northern Ireland. Oxford: Clarendon Press. Levy, R. (1995) ‘Governing Scotland, Wales and Northern Ireland’ in R. Pyper and L. Robins (eds), Government in the UK in the 1990s. London: Macmillan. Leyland, P. (2002) ‘Devolution, The British Constitution and the Distribution of Power’, Northern Ireland Legal Quarterly, 53, 408–34. Liaison Committee (1988) Minutes of Procedure. HC 352. London: HMSO. Liaison Committee. (2000) Shifting the Balance. Select Committees and the Executive. HC 300. London: House of Commons. Livingstone, S. (1999) ‘The Northern Ireland Human Rights Commission’, Fordham International Law Journal, 22, 1465. Local Government Staff Commission (1997) Annual Report 1996–97. Belfast. Lodge, G. (2003) Devolution and the Centre: Quarterly Monitoring Programme, August 2003. London: Constitution Unit. Loughlin, J. (1992) ‘Administration Policy in Northern Ireland’ in B. Hadfield (ed.), Northern Ireland Politics and the Constitution. Buckingham: Open University.

BDR_REF.indd 258

3/23/2009 4:15:10 PM

References

259

Lynch, P. and Hopkins, S. (2001) ‘The British–Irish Council: Progress Frustrated’, Regional Studies, 35(8), 753–8. Lynch, P. and Hopkins, S. (2006) ‘The Totality of Relationships? The British– Irish Council’ in M. Cox, A. Guelke and F. Stephen (eds.), A Farewell to Arms? Beyond the Good Friday Agreement. Manchester: Manchester University Press. MacDonagh, O. (1977) Ireland, the Union and Its Aftermath. London: Allen and Unwin. MacGinty, R. (2003) What Our Politicians Should Know. Research update available at www.ark.ac/publications. McCready, S. (2000) Empowering People: Community Development and Conflict 1969–99. Belfast: Stationery Office. McCrudden, C. (1983) ‘The Experience of the legal enforcement of the Fair Employment Act 1976’ in R. Cormack and R. Osborne (eds.), Religion, Education and Employment Aspects of Equal Opportunity in Northern Ireland. Belfast: Appletree Press. McGarry, J. and O’Leary, B. (2007) ‘Stabilizing the Northern Ireland Agreement’ in P. Carmichael, C. Knox and R. Osborne (eds.), Devolution and Constitutional Change. Manchester: Manchester University Press. McGowan, L. and Murphy, M. (2003) ‘Northern Ireland under Devolution: The Challenge of Institutional Adaptation to EU Policy Formulation’, Regional and Federal Studies, 13(1), 81–99. McGuire, P.R. (1982) The Northern Ireland Act 1982. London: Sweet and Maxwell. McGurnaghan, M.A. and Simpson, J.V. (1988) ‘N. Ireland and the European Social Fund’ in J.V. Simpson (ed.), N. Ireland and the European Community: An Economic Assessmen. Belfast: Commission of the European Communities. McKeown, P. (1991) ‘Removing Education from Local Government: Lessons from N. Ireland’, Local Government Studies, 17(4), 51–67. McKernan, M. and Fagan, J. (2003) Northern Ireland Local Government Handbook 2003/04. Moira: BMF Publishing. McLaughlin, E. (2005) ‘Governance and Social Policy in Northern Ireland (1999–2004) The Devolution Years and Postscript’ in M. Powell, L. Bauld and K. Clarke (eds.), Social Policy Review 17. Bristol: Policy Press. McLean, I., Lodge, E. and Schmuecker, K. (2008) Fair Shares? Barnett and the Policies of Public Expenditure. London: Institute for Public Policy. McNamara, H. (2002) ‘Give Us another McBride Campaign: An Irish–American Contribution to Peaceful Change in Northern Ireland’ in M. Elliott (ed.), The Long Road to Peace in Northern Ireland. Liverpool: Liverpool University Press. Magennis, E. (2007) ‘Public Policy Cooperation: The Common Chapter – Shadow or Substance’ in J. Coakley and L. O’Dowd (eds.), Crossing the Border. Dublin: Irish Academic Press.

BDR_REF.indd 259

3/23/2009 4:15:10 PM

260

References

Magennis, E., Clarke, P. and Shiels, J. (2006) ‘Is Cross-border Cooperation Working? Some Lessons from Border Ireland’, Journal of Cross-Border Studies in Ireland, 1, 20–33. Maguire, P.R. (1981) ‘The Standing Advisory Commission on Human Rights 1973–1980’, Northern Ireland Legal Quarterly, 32(1), 31–61. Major, J. (2000) John Major: The Autobiography. London: Harper Collins. Meehan, E. (1997) ‘The work of the smaller non-departmental public bodies and their aptness and capacity for the responsibilities entrusted to them’ in Review of Northern Ireland Administrative Arrangements. Belfast: Chief Executives Forum. Meehan, E. (2001) ‘The British–Irish Council’ in R. Wilson (ed.), Agreeing to Disagree: A Guide to the Northern Ireland Assembly. Belfast: Stationery Office. Midwinter, A. (2007) ‘The Financial Framework’ in P. Carmichael, C. Knox and R. Osborne (eds.), Devolution and Constitutional Change in Northern Ireland. Manchester: Manchester University Press. Ministry of Finance (1972) Financial Statement 1972–73: Statement of Revenue and Expenditure. Belfast: HMSO. Ministry of Health and Social Services (1973) Report and Recommendations of the Working Party on Discrimination in the Private Sector of Employment. Belfast: HMSO. Mitchell, G. (1999) Making Peace. London: Heinemann. Mitchell, G. (2002) ‘Towards Peace in Northern Ireland’ in M. Elliott (ed.), The Long Road to Peace in Northern Ireland. Liverpool: Liverpool University Press. Moore, L. and O’Rawe, M. (2001) ‘A New Beginning for Policing in Northern Ireland’ in Harvey, C.J. (ed.), Human Rights, Equality and Democratic Renewal in Northern Ireland. Oxford: Hart Publishing. Morison, J. and Livingstone S. (1995) Reshaping Public Power: Northern Ireland and the British Constitutional Crisis. London: Sweet and Maxwell. Morrow, D. (1996) ‘Filling the Gap: Policy and Pressure under Direct Rule’ in A. Aughey and D. Morrow (eds), Northern Ireland Politics. London: Longman. Mowlam, M. (2000) Momentum: The Struggle for Peace, Politics and the People, London: Hodder and Stoughton. Needham, R. (1998) Battling for Peace, Belfast: Blackstaff Press. Northern Ireland Arts Council (2006) Forum for Local Government and the Arts. Report on Proceedings. Belfast. NIA (Northern Ireland Assembly) (1983a) Northern Ireland Assembly Report, Public Income and Expenditure. NIA 98. Belfast: HMSO. NIA (Northern Ireland Assembly) (1983b) The Financial Aspects of the Impact of the European Community on Northern Ireland, Address by Mr C. Tugendhart, Vice-President of the European Commission. NIA 35. Belfast. NIA (Northern Ireland Assembly) (1984) Local Democracy at Work, Northern Ireland Assembly. Belfast: HMSO.

BDR_REF.indd 260

3/23/2009 4:15:10 PM

References

261

NIA (Northern Ireland Assembly) (1985a) Report on 1985 Public Expenditure Survey. NIA 212. Belfast: HMSO. NIA (Northern Ireland Assembly) (1985b) Additionality of Receipts from European Funds. NIA 46. Belfast. NIA (Northern Ireland Assembly) (2001) A Background Paper on the Barnett Formula. Research Paper 12/01. Belfast: Stationery Office. NIA (Northern Ireland Assembly) (2002a) Public Appointments and Public Bodies in Northern Ireland. Research Paper 04/02. Belfast: Stationery Office. NIA (Northern Ireland Assembly) (2007a) Comparative analysis of draft budget 2008–11. Research Paper 49/08. Belfast: Stationery Office. NIA (Northern Ireland Assembly) (2007b) The Impact of reducing the European Social Fund in Northern Ireland. Briefing Period 19/07. Belfast: Stationery Office. NIAC (Northern Ireland Affairs Committee) (1999a) Fifth Special Report: Response to the Fourth Report from Northern Ireland Affairs Committee Operation of the Fair Employment Act. HC837. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (1999b) Fourth Report: The Operation of the Fair Employment (Northern Ireland) Act 1989 – Ten Years on HC. London: Stationery Office. NIAC (Northern Ireland Affairs Committee) (2001a) Annual Report for 1999– 2000. HC 148. London: Stationery Office. NIAC (Northern Ireland Affairs Committee) (2001b) Government Response to the First Report of the Committee: The Northern Ireland Prison Service. HC 443. London: Stationery Office. NIAC (Northern Ireland Affairs Committee) (2003a) Peace II: Seventh Report of the Session 2002–03. HC 653. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2003b) Government Response to the Committee’s First Report: The Impact in Northern Ireland of Cross Border Road Fuel Price Differences. HC 412. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2004a) Work of the Committee in 2003: Government Response to Committees First Report. HC 510. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2004b) Third Special Report: The Separation of Paramilitary Prisoners at HMP Magheraberry. Government’s Response to the Committees second report 2002–4. HC 583. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2004c) Fifth Special Report: ‘Hate Crime’ the draft Criminal Justice (Northern Ireland) Order 2004. Government Response. HC 954. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2005a) The Work of the Committee in 2004. HC 262. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2005b) The Work of the Committee in 2004: Government Response to the Committee’s Fourth Report of Session 2004–05. HC 393. London: House of Commons.

BDR_REF.indd 261

3/23/2009 4:15:10 PM

262

References

NIAC (Northern Ireland Affairs Committee) (2005c) The Function of the Office of the Police Ombudsman for Northern Ireland. HC 344. London: House of Commons. NIAC (Northern Ireland Affairs Committee) (2008) The Work of the Committee in 2007. HC 286. London: Stationery Office. NIAO (Northern Ireland Audit Office) (2004) Use of Consultants. HC 641. Belfast: Stationery Office. NIAO (Northern Ireland Audit Office) (2007a) Good Governance: Effective Relationships between Departments and their Arms-length Bodies. HC 469. London: Stationery Office. NIAO (Northern Ireland Audit Office) (2007b) The Exercise by Local Government Auditors of Their Functions. London: Stationery Office. NICCY (Northern Ireland Commissioner for Children and Young People) (2007) Moving Forward: Report on the Second Year of Activity from NICCY. 2005–6. HC 413. London: Stationery Office. NICSC (Northern Ireland Civil Service Commission) (1984) Annual Report 1983. Belfast. Northern Ireland Court Service (2007) Annual Report 2006–7. Belfast. NIEC (Northern Ireland Economic Council) (1981) Public Expenditure Comparisons between Northern Ireland and Great Britain. No.18. Belfast. NIEC (Northern Ireland Economic Council) (1984) Public Expenditure Priorities Overall Review. Report 42. Belfast. NIEC (Northern Ireland Economic Council) (1995) The Economic Implications of Peace and Political Stability for Northern Ireland. Occasional Paper No. 4. Belfast. NIEC (Northern Ireland Economic Council) (1996) Decentralised Government and Economic Performance in Northern Ireland. Occasional Paper No. 7. Belfast. NIE (Northern Ireland Executive) (2001a) Programme for Government: Making a Difference. Belfast: Office of First Minister and Deputy First Minister. Belfast. NIE (Northern Ireland Executive) (2001b) Preparation for 2002–03: Developing the Programme for Government and the Budget for 2003–03. Belfast. NIE (Northern Ireland Executive) (2002) Making a Difference: Northern Ireland Executive Annual Report 2001–2. Belfast. NIE (Northern Ireland Executive) (2007) Building a Better Future: Draft Programme for Government 2008–2011. Belfast. Northern Ireland Grand Committee (2005) Reports on Proceedings Draft Higher Education Order, 20 January 2005 available at www.publications.parliament. uk/pa/cm200405. Northern Ireland Grand Committee (2006) Reports of Proceedings, Review of Public Administration 28 March 2006. available at www.publications .parliament.uk/pa/cm200506. Northern Ireland Grand Committee (2007) Northern Ireland Grand Committee Debates. available at www.publications.parliament,uk/pa/cm200607.

BDR_REF.indd 262

3/23/2009 4:15:11 PM

References

263

NIHE (Northern Ireland Housing Executive) (1984) Thirteenth Annual Report, 1983–84. Belfast. NIHRC (Northern Ireland Human Rights Commission) (2004) Annual Report 2004. Belfast. NIHRC (Northern Ireland Human Rights Commission) (2007) Annual Report and Accounts 2006–2007 HC 141. London: Stationery Office. NIIS (Northern Ireland Information Service) (1987) Public Expenditure 1988/89 to 1990/91, 24 November 1987. Belfast. NIIS (Northern Ireland Information Service) (1989): Ministerial Responsibilities, 26 July 1989. Belfast. NIIS (Northern Ireland Information Service) (1996) Subvention Figures 1989/90 to 1993/94, 15 August 1996. Belfast. NIO (Northern Ireland Office) (1972a) Northern Ireland Financial Arrangements and Legislation. Cm 4998. Belfast: HMSO. NIO (Northern Ireland Office) (1972b) The Future of Northern Ireland: A Paper for Discussion. Belfast: HMSO. NIO (Northern Ireland Office) (1974) Northern Ireland Discussion Paper, Finance and the Economy. Belfast: HMSO. NIO (Northern Ireland Office) (1975) Government of Northern Ireland: A Society Divided. Discussion paper 3. London: HMSO. NIO (Northern Ireland Office) (1992) The Citizens Charter for Northern Ireland. Belfast: HMSO. NIO (Northern Ireland Office) (1997) Annual Report. London: Stationery Office. NIO (Northern Ireland Office) (1998) Partnership for Equality. Cm 3890. Belfast: Stationery Office. NIO (Northern Ireland Office) (1998) Northern Ireland Act 1998. London: Stationery Office. NIO (Northern Ireland Office) (2005) Statement by the Secretary of State for Northern Ireland on the outcome of the Review of Public Administration. 22 November 2005. Belfast: Stationery Office. NIO (Northern Ireland Office) (2006a) The St Andrew’s Agreement available at www.standrewsagreement.org/anney_a.lem. NIO (Northern Ireland Office) (2006b) Departmental Report 2006. Cm 6836. London: Stationery Office. Northern Ireland Ombudsman (2007) Annual Report for 2006–07. NIA 37. Belfast: Stationery Office. Northern Ireland Ombudsman (2008) Annual Report of 2007–08. NIA 182. Belfast: Stationery Office. Northern Ireland Statutes (1921–2006). Belfast: HMSO/Stationery Office. NSMC (North–South Ministerial Council) (2002) Plenary Joint Communiqué 28 June 2002. NSMC (North–South Ministerial Council) (2003) Annual Report 2003. London: Stationery Office.

BDR_REF.indd 263

3/23/2009 4:15:11 PM

264

References

NSMC (North–South Ministerial Council) (2004) Annual Report 2004. London: Stationery Office. NSMC (North–South Ministerial Council) (2008) Plenary Joint Communiqué 7 February 2008 available at www.North-South ministerial council.org. O’Dowd, L. (2006) ‘The Future of Cross-border Cooperation: Issues of Sustainability’, Journal of Cross-Border Studies in Ireland, 1, 4–19. O’Dowd, L. and Corrigan, T. (1995) ‘Buffer Zone or Bridge: Local Responses to Cross-border Economic Cooperation in the Irish Border Region’, Administration, 42(4), 335–51. OCPA (Office of Commissioner for Public Appointments) (1998) Third Report 1997–98. Belfast. OCPA (Office of Commissioner for Public Appointments) (2005) Tenth Report 2004–05. Belfast. OCPA (Office of Commissioner for Public Appointments) (2006) Eleventh Report. 2005–06 available at www.ocpani.gov.uk. OFMDFM (Office of First Minister and Deputy First Minister) (2004) Taking our Place in Europe: Northern Ireland Strategy 2004–2008. Belfast. OFMDFM (Office of the First Minister and Deputy First Minister) (2005) Five Year Review of the Equality Commission for Northern Ireland. Belfast. OFMDFM (Office of First Minister and Deputy First Minister) (2007a) Public Appointments Annual Report 2006/07. Belfast. OFMDFM (Office of the First Minister and Deputy First Minister) (2007b) Review of the Commissioner for Children and Young People for Northern Ireland. Belfast available at www.allchildrenni.gov.uk. Office of the Prime Minister (1981) Efficency and Effectiveness in the Civil Service. Cm 8616. London: HMSO. Office of the Prime Minister (1988) Improving Management in Government: The Next Steps. Ibbs Report. London: HMSO. O’Leary, B. (1987) ‘The Anglo-Irish Agreement: Meaning, Explanations, Results and a Defence’ in P. Teague (ed.), Beyond the Rhetoric: Politics, the Economy and Social Policy in Northern Ireland. London: Lawrence and Wishart. O’Leary, B. and McGarry, J. (1996) The Politics of Antagonism: Understanding, Northern Ireland. London: Athlone Press. O’Leary, C., Elliott, S. and Wilford, R.A. (1988) The Northern Ireland Assembly 1982–1986. London: C. Hurst. Oliver, J. (1978) Working at Stormont, Dublin: Institute of Public Administration. Oliver, Q. (1990) ‘Community Development in Areas of Political and Social Conflict: The Case of Northern Ireland’, Community Development Journal, 25(4), 370–6. OPSI (Office of Public Sector Information) (2007a) Acts of the UK Parliament available at www.opsi.gov.uk/acts.htm. OPSI (Office of Public Sector Information) (2007b) Northern Ireland Legislation available at www.opsi.gov.uk/legislation/northernireland.

BDR_REF.indd 264

3/23/2009 4:15:11 PM

References

265

O’ Rawe, M. and Moore, L. (2000) ‘Accountability and Police Complaints in Northern Ireland. Leaving the past behind’ in J. Godsmith and C. Lewis (eds), Civilian Oversight of Policing. Oxford: Hart Publishing. Osborne, R. (1996) ‘Policy Dilemmas in Belfast’, Journal of Social Policy, 25(2), 161–99. Osborne, R. (2002) ‘Making a Difference: The Role of Statutory Committees in the Northern Ireland Assembly’, Public Administration, 80(2), 283–99. Osborne, R. (2003) ‘Processing the Equality Agenda in Northern Ireland’, Journal of Social Policy, 32(3), 334–60. Osborne, R. (2007), ‘Evidence and Equality in Northern Ireland’, Evidence and Policy, 3(1), 79–97. Osborne, R. and Cormack, R.J. (1989) ‘Fair Employment: Towards Reform in Northern Ireland’, Policy and Politics, 17(4), 287–94. Osborne, R. and Shuttleworth, I. (2004) Fair Employment in Northern Ireland: A Generation On. Belfast: Blackstaff Press. Ouseley Review (2002) Review of the Appointment and Promotion Procedures for the Senior Civil Service of the Northern Ireland Civil Service. Belfast: DFP. PAC (Public Accounts Committee) (1984) Financial Assistance to DeLorean Motor Cars Ltd. HC 127. London: PAC (Public Accounts Committee) (1987) Seventh Report from the Public Accounts Committee. London: HMSO. PAC (Public Accounts Committee) (2005a) Tenth Report, Job Skills. HC 564. London: Stationery Office. PAC (Public Accounts Committee) (2005b) The use of operating theatres in the Northern Ireland Health and Personal Social Services. HC 414. London: Stationery Office. PAC (Public Accounts Committee) (2006a) Forty-sixth Report Governance issues in the Department of Enterprise, Trade and Investment. HC 918. London: Stationery Office. PAC (Public Accounts Committee) (2006b) Improving Literacy and Numeracy in Schools (Northern Ireland). HC 108. London: Stationery Office. Paris, C. (2008) ‘The Changing Housing System in Northern Ireland, 1998– 2007’, Ethnopolitics, 7(1), 119–36. Parry, R. (2005) ‘The Civil Service Response to Modernisation in the Devolved Administrations’, Financial Accountability and Management, 21(1), 57–74. Parry, R. and McDougal, A. (2005) Civil Service Reform Post-Devolution: The Scottish and Welsh Experience. Devolution Briefing no. 37 available at www .devolution.ac.uk/briefing_papers.htm. PCA (Parliamentary Commissioner for Administration) (1974) First Annual Report of the Parliamentary Commissioner for Administration. London: HMSO. PCA (Parliamentary Commissioner for Administration) (1986) Annual report of the Ombudsman Northern Ireland 1985. London: HMSO. PCA (Parliamentary Commissioner for Administration) (1987) Annual Report of the Ombudsman. Northern Ireland 1986. London: HMSO.

BDR_REF.indd 265

3/23/2009 4:15:11 PM

266

References

PCA (Parliamentary Commissioner for Administration) (1994). Annual Report of the Ombudsman, Northern Ireland 1993. HC 245. London: HMSO. Permanent Secretary Group (2007) policy delivery capability, Minutes of Meeting, 7 December 2007 available at www.ofmdfm.gov.uk. Plaitsky, L. (1980) Report on Non-Departmental Public Bodies. Cmnd 7797. London: HMSO. Police Ombudsman for Northern Ireland (2007). Developments in Police Complaints: 7 Years On. Belfast. Prior, J. (1986) A Balance of Power. London: Hamilton. Prisoner Ombudsman for Administration (2007) Annual Report April 2006–March 2007. Belfast. PSIU (Public Service Improvement Unit) (2000) Northern Ireland Executive Non-departmental Public Bodies 1999 Report. London: Stationery Office. PSIU (Public Service Improvement Unit) (2007) Northern Ireland Public Bodies. London: Stationery Office. Public Service Alliance (1972) First Annual Report of the Northern Ireland Public Service Alliance. Belfast. Purdy, M. (1996) ‘Inside Ulster’s Quangoland’, Belfast Telegraph (11 December). Quigley, W.G.H. (1987) ‘The Public Expenditure System in Northern Ireland’, Business Outlook and Economic Review, 2(2), 27–32. Quirk, P. and McLaughlin, E. (1996) ‘Targeting Social Need’ in E. McLaughlin and P. Quirk (eds), Policy Aspects of Employment Equality in Northern Ireland. Belfast: Standing Advisory Commission on Human Rights. Rees, M. (1985) Northern Ireland: A Personal Perspective. London: Methuen. RPA (Review of Public Administration) (2003a) The Review of Public Administration in Northern Ireland. Belfast. RPA (Review of Public Administration) (2003b) Analysis of Review of Public Administration Omnibus Survey Attitudinal Research. Final report. Belfast. RPA (Review of Public Administration in Northern Ireland) (2005) Further Consultation. Belfast. RPA (Review of Public Administration in Northern Ireland) (2006) Better Government for Northern Ireland. Belfast. Rhodes, R.A.W., Carmichael, P., McMillan, J. and Massey, A. (2003) A ‘Decentralizating The Civil Service’ Buckingham: Open University Press. Rolston, W. (1985) ‘Community services in Northern Ireland: the last ten years’, Critical Social Policy, 5(14), 83–92. Rose, R. (1982) Understanding the United Kingdom: The Territorial Dimension in Government. London: Longman. Secretary of State (1973) Northern Ireland Constitutional Proposals. Cmnd 5259. London: HMSO. Secretary of State (1974) The Northern Ireland Constitution. Cmnd 5675. London: HMSO. Secretary of State (1982) Northern Ireland: A Framework for Devolution. Cmnd 8541. London: HMSO.

BDR_REF.indd 266

3/23/2009 4:15:11 PM

References

267

Secretary of State (1997) First Annual Report on Public Appointments 1996–97. Belfast: Stationery Office. Secretary of State (2005) Review of Public Administration November 2005. Secretary of State (2006) Statement on St Andrew’s Agreement 18 October 2006 available at www.nio.gov/uk/media.detail.hem3news10. Select Committee on Constitution (2002) Devolution: Inter-institutional Relations in the United Kingdom. HL 28. London: Stationery Office. Select Committee on Office of Deputy Prime Minister (2004) Minutes of Evidence. HC 45. London: Stationery Office. Select Committee on Procedure (1990) Second Report from the Select Committee on Procedure 1889–90: The Workings of the Select Committee System. HC 19. London: HMSO. Select Committee on Public Administration (1998). Report of the Northern Ireland Ombudsman for 1997. HC 630. HMSO: Stationery Office. Spence, R. (1997) ‘The Department of Environment Experience’ in Review of Northern Ireland Administrative Arrangements. Belfast: Chief Executives Forum. SACHR (Standing Advisory Commission on Human Rights) (1987) Religious and Political Discrimination and Equality of Opportunity in Northern Ireland: Report on Fair Employment. Cm 237. Belfast: HMSO. SACHR (Standing Advisory Commission on Human Rights) (1990) Religious and Political Discrimination and Equality of Opportunity in Northern Ireland. Second Report. Cm HM20. Belfast: HMSO. SACHR (Standing Advisory Commission on Human Rights) (1997) Employment Equality: Building for the Future. Cm 3684. Belfast: Stationery Office. Tannam, E. (1999) Cross-border Cooperation in the Republic of Ireland and Northern Ireland. Basingstoke: Macmillan. Tannam, E. (2006a) ‘The European Union Model and Administration Cooperation: The Case of Northern Ireland and the Republic of Ireland’, Public Administration, 84(2), 407–22. Tannam, E. (2006b) ‘Cross-border Cooperation between Northern Ireland and the Republic of Ireland: Neo-functionalism Revisited’, British Journal of Politics and International Relations, 8(2), 256–76. Tannam, E. (2007) ‘Public Policy, the EU and the Good Friday Agreement’ in J. Coakley and L. O’Dowd (eds), Crossing the Border. Dublin: Irish Academic Press. Taylor, N. and Walker, C. (1997) ‘British–Irish Inter-parliamentary Body’, Northern Ireland Legal Quarterly, 48(4), 338–62. Teague, P. and Wilson, R. (1999) Towards an Exclusive Society: Social Exclusion Report No.2. Belfast: Democratic Dialogue. Thain, C. (1998) ‘Squaring the Circle in Public Spending’, Parliamentary Brief, 5(3), 23–5. Thain, C. and Wright, M. (1995) The Treasury and Whitehall: The Planning and Control of Public Expenditure, 1976–1993. Oxford: Clarendon. Thatcher, M. (1985) Interview, Belfast Telegraph (17 December).

BDR_REF.indd 267

3/23/2009 4:15:11 PM

268

References

Thatcher, M. (1995) Margaret Thatcher: The Downing Street Years. London: Harper Collins. Thorp, A. (1999) The Sexual Offences (Amendment) Bill. House of Commons Research Paper 99/4. London: House of Commons Library. Tomlinson, M. (2000) ‘Targeting Social Need, Social Exclusion and the Use of Social Security Statistics,’ in Department of Social Development, Measuring Exclusion and Poverty. Proceedings of Joint Seminar. Belfast. Tonge, J. (2005) The New Northern Ireland Politics? Basingstoke: Palgrave Macmillan. Treasury (1996) Northern Ireland Expenditure Plans and Priorities. Cm 3216. London: HMSO. Treasury (1998a) Spending Review 1998 Report, Ch. 20. Northern Ireland Office. London: Stationery Office. Treasury (1998b) Public Services for the Future: Modernisation: Reform and Accountability. Cm 4181. London: HMSO. Treasury (2005) Analysis of Public Expenditure by Country and Region. London: Stationery Office. Treasury (2007a) Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. London: Stationery Office. Treasury (2007b) Public Expenditure Statistical Analysis of Public Expenditure by Country and Region. London: Stationery Office. Trench, A. (2004) ‘The More Things Change, The More They Stay The Same: Intergovernmental Relations. Four Years On’ in A. Trench (ed.), Has Devolution made a Difference. Exeter: Imprint Academic. Trimble, M.J. (1989) ‘The Impact of European Community Policy on N. Ireland Agriculture, in J.V. Simpson (ed.), N. Ireland and the European Community: An Economic Assessment. Belfast: Commission of the European Communities. Twigger, R. (1998) The Barnett Formula. House of Commons. Research Paper 98/8. London: House of Commons Library. UK Government (1985) Agreement between the Government of the United Kingdom and the Government of the Republic of Ireland. Cmnd 9690. London: HMSO. UK Government/Irish Government (1993) Downing Street: Joint Declaration. London and Dublin, 15 December 1993. Belfast. UK Government/Irish Government (1995) The Framework Document 22 February 1995: A New Framework for Agreement. London. UK Government/Irish Government (1998) The Agreement: The Agreement Reached in the Multi-party Negotiations. Cmnd 3883. London: Stationery Office. UK Government/Irish Government (2002) Exchange of Notes concerning Certain Decisions of the North–South Ministerial Council Established by the Agreement between the Two Governments Signed at Dublin on 8 March 1999 and Related Matters. Cm 5708. London: Stationery Office.

BDR_REF.indd 268

3/23/2009 4:15:11 PM

References

269

United Kingdom Parliament (2007) Territorial Coverage of Bills available at www.parliament.uk/works/notes_on_parliament and_consitituion/re-2006 -07. Varney, D. (2007) Review of Tax Policy in Northern Ireland. London: Treasury. Walker, G. (2001) ‘The British–Irish Council’ in R. Wilford (ed.), Aspects of the Belfast Agreement. Oxford: Oxford University Press. Walter, C. (2001) ‘The Patten Report and Post-sovereignty Policing in Northern Ireland’ in R. Wilford (ed.), Aspects of the Belfast Agreement. Oxford: Oxford University Press. Whitelaw, W. (1989) Whitelaw Memoirs. London: Aurium Press. Wilford, R. and Elliott, S. (1995) ‘The Northern Ireland Affairs Select Committee’, Irish Political Studies, 10, 216–24. Wilford, R. and Wilson, R. (2005a) The Dynamis of Devolution: Quarterly Monitoring Report Northern Ireland, April 2005 available at www.ucl.ac.uk/ constitution-unit. Wilford, R. and Wilson, R. (2005b) ‘Northern Ireland: While You Take the High Road’ in A. Trench (ed.), The Dynamics of Devolution: The State of the Nations. Exeter: Imprint Academic. Wilford, R. and Wilson, R. (2006) Northern Ireland Devolution Monitoring Report. May 2006 available at www.ucl.ac.uk/constitution-unit. Wilford, R. and Wilson, R. (2008) Northern Ireland Devolution Monitoring Report May 2008 available at www.ucl.ac.uk/constitution-unit. Windlesham, Lord (1973) ‘Ministers in Ulster: The Machinery of Direct Rule’, Public Administration, 51(3), 261–72.

BDR_REF.indd 269

3/23/2009 4:15:11 PM

Index

abortion 235 academic selection 235, 237 administrative devolution 2 advisory bodies 105 Alliance party 137 Anglo-Irish Agreement 2, 26, 37, 82, 109, 135, 169–72 Anglo-Irish Intergovernmental Conference 170, 179 Anglo-Irish Intergovernmental Council 34, 166–7 Annually Managed Expenditure 151–2 Arts Council of Northern Ireland 77, 115 Atkins, H. 34, 35, 36 Barnett formula 5, 147–9, 156, 165–6 Best Value 134 Bill of Rights 216 Blair, T. 36-7, 36, 183 Blease, B. (Lord) 66 Bloomfield, K. 30, 39, 99, 148, 218 Border poll 7 British–Irish Council 181–4 British–Irish Intergovernmental Council 16, 79–80 British–Irish Inter-Parliamentary Body 185–7 British–Irish Council 181–4 Brooke, P. 24, 34, 35 Cabinet committees 23, 26 Carmichael, P. 82, 96, 93 Central Community Relations Unit 80

BDR_Index.indd 270

Central Secretariat 80 Citizens Charter 94 Coakley, J. 175, 178 Commissioner for Complaints 198, 201–3 Commission for Racial Equality 212 Comprehensive Spending Review 95, 151–2, 159 Conservative Party 3, 246 Consolidated Fund for Northern Ireland 145–6, 152–3 Constitutional Convention 10, 24 Constitution Select Committee 66 Cooperation and Working Together 188 Council of Ireland 9, 12, 165–66 Criminal Justice 229 Criminal Justice Inspection 228 Cross-border cooperation 167–96, 238 Cunningham, M. 35, 234 Delegated Legislative Committees 44–5, 65 DeLorean 63 democratic deficit 244 Democratic Unionist Party 187, 241 Denton, J (Baroness) 100 d’Hont Rule 15 Department of Constitutional Affairs 29 Departmental Expenditure Limit 151–2, 164 Department of Finance and Personnel 27, 86, 131, 151

3/23/2009 4:15:26 PM

Index Derry City Council 138 Devolution 1, 5, 11, 178, 152, 243–7 discrimination, see also equal opportunities Downing Street Joint Declaration 13, 39 emergency legislation 232 Equal opportunities 79, 89–90, 109–11, 120, 198, 203, 207–10, 214, 226, 233 Equal Opportunities Commission 212 Equality Commission for Northern Ireland 213–14, 227 European Union 28, 84, 128–9, 161, 195 additionality 164 Common Chapter 191–2 directives 237 funding 152, 161–5, 182, 191–3, 195 policy 84–5 Examiner of Statutory Rules 45 excepted powers 8, 16 executive agencies 90–3 fair employment 198, 207–10, 233, 239 Fair Employment Agency 89 Fair Employment Commission 209–10 fair employment legislation 209 Farren, S. 149 Faulkner, Brian 9, 99 Financial Management Initiative 94 Fitzgerald, G. 171 Framework Document 14, 172 Gershon Review 95 Good Friday Agreement 14, 24, 194 Government of Ireland Act 1920 6, 8, 19 Governor of Northern Ireland 6, 9, 21 Hadfield, B. 67 Hain, P. 18, 22, 24, 39, 236 Hayes, M. 39, 98, 198, 221

BDR_Index.indd 271

271

Head of NICS 81, 99 Heald, D. 148–9, 154, 159 Health Services Commissioner 198, 203 Heath, E. 1, 6 Home Civil Service 79, 88, 95 House of Commons Select Committees 60–2, 67 House of Lords 27, 64–7, 185 human rights 170 Hume, J. 170 Hurd, D. 21 Imperial Contribution 143–4 Independent Assessor of Military Complaints 224–5 Independent Commissioner for Holding Centres 225–6 Independent Commissioner for Police Complaints 220 Industrial Development Board 77 Interreg 191 Intertrade Ireland 175, IRA 18, 159 Irish Civil Service 195 Irish Government 12, 15, 20, 36, 167, 171, 237–8 Joint Committee on Human Rights 66, 217 Joint Committee on Statutory Instruments 43 Joint Exchequer Board 144 Judicial Appointments Ombudsman 226 King, T. 13, 31, 35, 36 Labour Government 11, 236, 246 Liaison Committee 59–60 local government 120–42 central control 133–4 cross-border cooperation 189–91 finance 130–3 functions 122 history 120–2 lobbying 128 politics 135–8

3/23/2009 4:15:27 PM

272

Index

reform 138–41 representative role 126–8 Local Government Staff Commission 134 Loughran, G. 100 maladministration 197–207 Mandelson, P. 35, 38 Major, J. 23, 24, 36, 94, 173 Mason, R. 35–6 Mayhew, P. 22, 32, 36 McBride principles 209, 238 Merits of Statutory Instruments Committee 65, 66 Modernising government 96 Mowlam, M. 24, 32–3, 35, 100 Murphy, P. 32 National Insurance Fund 146 Needham, R. 25, 30, 32 neo-liberalism 240 Nolan Standards 120, 176 Northern Ireland Acts (UK) 42, 46 Northern Ireland Act 1972 6, 10, 86 Northern Ireland Assembly Act 1973 7, 8, 10, 144 Northern Ireland Constitution Act 1973 9 Northern Ireland Act 1974 9–11 Northern Ireland Act 1984 11 Northern Ireland Act 1998 15, 17, 37, 229 Northern Ireland Act 2000 171, 19 Northern Ireland St Andrew’s Agreement Act 2006 36, 47, 65 Northern Ireland Affairs Committee 57–60, 67–8, 235 Northern Ireland Assembly 1980–86 11–12 Northern Ireland Assembly 1999 15–18, 45, 240–1, 246 Northern Ireland Audit Office 62, 112, 134, 239

BDR_Index.indd 272

Northern Ireland Civil Service 69–101 code of ethics 86, 99 equal opportunities 79, 89–90 decentralisation 94 departments 76, 78, 246 numbers 73 political role 98 policy role 238–9 reform agenda 96–8 senior civil service 86, 88 Northern Ireland Civil Service Commissioners 85–6 Northern Ireland Committee 52, 56 Northern Ireland Commissioner for Children and Young People 218–20 Northern Ireland Court Service 80 Northern Ireland Economic Council 139, 156, 158 Northern Ireland Estimates 153 Northern Ireland Executive 11–12, 15, 18, 240–1, 246 Northern Ireland Grand Committee 52–3, 55 Northern Ireland Home Civil Service 72, 79–80 Northern Ireland Housing Executive 103, 108, 116, 158, 201–2, 235 Northern Ireland Housing Trust 102 Northern Ireland Human Rights Commission 216–18 Northern Ireland Office 25, 27–9, 58, 69–70, 80, 153 structure and functions 69–75 relationship with Northern Ireland departments 80–4 sponsored quangos 106–7, 110 Northern Ireland Parliamentary Commissioner for Administration 197–201, 206–7 North–South implementation bodies 174–8 North–South Ministerial Council 173, 176–8

3/23/2009 4:15:27 PM

Index North–South relations 12, 14, 36–7 see also cross-border cooperation, Anglo-Irish Agreement, North–South ministerial council Office of Commissioner for Public Appointments 110 Office of First and Deputy First Minister 29, 78, 83 Office of Prisoner Ombudsman 223–4 Official Unionist Party 137 Oliver, J. 102, 109 orders in council 40, 42, 45, 48, 65 Osborne, R. 214, 233–4 Ousely Report 86, 89, 90 parity 143–4, 156, 229–31 Parliamentary questions 53–5 Parry, R. 149 partnerships 128–9 Patten reforms 129 peace dividend 154 permanent secretary group 238 Police Ombudsman 221–3, 227 Police Service of Northern Ireland 47 Policy Coordinating Committee 82 Powell, J. 36 pre-legislative consultation 50–2, 67 Prior, J. 21, 33, 34, 36 Private Finance Initiative 158 Private Members Bill 50 programmes for government 39, 245 Public Accounts Committee 62–4, 98, 111 public bodies see Quangos Public Expenditure 106, 144, 149–65 Public Expenditure Statistical Analysis 153–6 Public Services Agreements 95, 152 Pym, F. 22 Quangos 102–19 abolition 106 accountability 102, 111–13 composition 108–11, 118 history 102–3

BDR_Index.indd 273

273 NIO sponsored 107 review 113–16, 118, 246 types of 104–6

Rates reforms 131–3, 161 Rees, M 30, 33, 35, 231 reserved powers 8, 16, 229 Review of Public Administration 95, 236, 113–18, 138–42, 178 role of ministers 25–34, 181–3, 206, 219 RUC 170, 221 St Andrews Agreement 19, 24, 101, 237, 242 Scotland, governance of 2, 18, 25, 56, 77, 118, 133, 149, 154, 165–6 Standing Advisory Commission on Human Rights 212–13, 215–16 SDLP 137, 185 Section 75 90, 213–14, 234 Secretary of State for Northern Ireland 8, 26, 32–4, 37–9, 113, 150–1, 159–60, 185 Select Committee on the Constitution 97 Semple, J. 100 Sinn Fein 129, 141, 185–6, 241, 242 Standing Committees on Delegated Legislation 44 Standing Committee on Statutory Instruments 44 suspension of devolution 5, 17, 19 Targeting Social Need 158, 233 Taylor, P. 25 Thatcher, M. 13, 36 Tourism Ireland 177–8 transferred powers 8, 11, 16, 38 Treasury 144, 148, 153, 159, 165, 235 Trimble, D. 17, 35, 194 UK Civil Service Commission 85–6 UK Legislation for Northern Ireland 47–50

3/23/2009 4:15:27 PM

274

Index

UK Parliamentary Commissioner for Administration 198, 204 UK Statutory Instruments 48 UK subvention 144–7 Ulster Workers Council 9 Varney Review 235 Victims Commissioner 218 Voluntary Sector 124, 234, 239 Wales, governance of 2, 18, 22, 25, 119, 154, 165–6, 181–3, 206, 219 Westminster Hall 59–68

BDR_Index.indd 274

Westminster Parliament 2, 6, 40, 245 Legislative process 40–53 Scrunity role 53–64 Reform 67–8 see also House of Commons, House of Lords, parliamentary questions, Public Accounts committee, Northern Ireland Committees, departmental select committees Whitelaw, W. 31 Windlesham, D. (Lord) 27, 33 Woodward, S. 23

3/23/2009 4:15:27 PM