Northern Ireland: Functioning of government without ministers

Why are there no ministers in Northern Ireland?

In May 2022, elections to the Northern Ireland assembly took place. Northern Ireland has a system of power-sharing that requires political parties from both the nationalist and the unionist communities to go into government together. However, the DUP refused to form a new executive in protest over the Northern Ireland protocol by preventing the appointment of a new speaker for the assembly – the first step in forming a government, which requires the support of parties from both communities and must be completed before new ministers can be appointed.

The Northern Ireland Act 1998, as amended in February 2022, allows caretaker ministers from before the election to remain in post for an ‘executive formation period’ of a maximum of 24 weeks. That period came to an end on 28 October and at midnight all ministers automatically ceased to hold office.

It should be noted that there has been no first minister or deputy first minister since February 2022, when the then DUP first minister Paul Givan resigned, causing the deputy first minister to cease to hold office automatically. (Had both been in position prior to the May elections they would also have been able to remain as caretakers, but the earlier resignation has meant that these positions remained vacant.) This has meant that the Executive Committee, comprised of ministers and convened by the first and deputy first minister, has not met and decisions that cut across portfolios and departments have not been made.

Who is running the government in Northern Ireland?

Northern Ireland institutions remain responsible for devolved matters. In the absence of local ministers, senior Northern Ireland civil servants are responsible for the day-to-day running of government. The UK secretary of state for Northern Ireland has confirmed that Westminster will pass new legislation to “enable Northern Ireland Departments to support public service delivery, make a small number of vital public appointments such as those to the Northern Ireland Policing Board, and address the serious budgetary concerns”. ¹³ hansard.parliament.uk/Commons/2022-11-09/debates/34B1DD39-AA71-450A-B56B-14CD9DB1EF89/details  However, civil servants can only operate within the context of existing policy directions set by Northern Ireland ministers when they were still in post, and cannot develop new policies or take decisions that may be considered political in nature.

The situation is similar to the period between 2017 and 2020 when Northern Ireland went for three years without ministers, meaning the assembly was unable to sit and therefore to pass legislation. However the UK parliament is still able to legislate on devolved matters in some circumstances and during that time it did so for Northern Ireland in a few limited areas – including setting budgets – but generally took a hand-off approach, creating a political vacuum.

As in 2017–20 the UK government has also not imposed direct rule – when devolution is formally suspended and UK ministers are given responsibility for directing Northern Ireland departments. Though this has happened several times during the first decade of power sharing the last occurrence ended  in 2007.

The UK government is likely to take continue this approach.

Will there be a new election?

At the end of the executive formation period, the Northern Ireland Act 1998 places an obligation on the Northern Ireland secretary to call fresh assembly elections and nominate a polling day within 12 weeks. Initially, Chris Heaton-Harris indicated that this would happen immediately after the period expired on 28 October, with a provisional date of 15 December. However, on 9 November, he announced the UK government would bring forward legislation to extend the executive formation period, and therefore delay an election. The period was extended for a maximum of 12 weeks (initially for six with a possibility of a further six) with an initial deadline of 19 January 2023. Under the Norther Ireland (Executive Formation and Organ and Tissue Donation) Act 2023, this period was extended, retrospectively to 18 January 2024. ¹⁴ www.publications.parliament.uk/pa/cm5804/cmselect/cmniaf/45/report.html, paragraph 39

The BBC reports that if no executive is formed by 18 January 2024, the Northern Ireland secretary falls under a legal duty to call an early assembly election. But Mr Heaton-Harris has pushed back this deadline several times before and has indicated he may do so again. He previously said he was "considering all options carefully" but was "not treating this date as a target”. ¹⁵ www.bbc.co.uk/news/uk-northern-ireland-politics-67957520

What is the impact of the absence of ministers?

In the absence of ministers, civil servants cannot take new policy decisions. This has had some immediate consequences, for example delaying the rollout of the £400 energy payment in Northern Ireland. But it will also have other longer-term consequences, such as on necessary public service reforms that require political input. This may exacerbate existing problems such as health care waiting lists and court backlogs – a result of Covid but also the previous period without government, when the head of the Northern Ireland Civil Service warned of “stagnation and decay” of public services.

As the assembly is not sitting no new primary legislation can be passed. There is also a lack of accountability, with assembly committees unable to meet to scrutinise the work of the departments or ask questions.

Northern Ireland has no political representation in intergovernmental meetings between the four governments of the UK, or the UK–EU joint committee responsible for discussing changes to the Northern Ireland protocol.

Will government be restored?

The leader of the DUP, Sir Jeffrey Donaldson, has said that the party will not return to government until issues around the Northern Ireland protocol are resolved. The party has set out seven ‘tests’ that it says any new arrangements must meet, including to avoid any diversions of trade, any checks on goods going GB–NI and staying there or any new regulatory borders. ¹⁶ mydup.com/news/dup-leader-announces-seven-tests-for-hmg-plans-on-ni-protocol

The UK and EU have each set out their own proposals for the protocol. While there is some common ground on issues like reducing customs and regulatory checks on goods moving GB–NI, there are outstanding areas of disagreement including on the role of the European Court of Justice. Talks in October after a long period of hiatus and there is renewed impetus to reach agreement. However, it is not clear whether either side is willing to make the compromises necessary to get a deal, nor whether that deal would be acceptable to the DUP.

In parallel with negotiations the UK government is also continuing with the passage of the Northern Ireland Protocol Bill, which would disapply parts of the UK–EU Withdrawal Agreement and unilaterally implement new arrangements for GB–NI trade. When introducing the bill, the UK government justified it on the basis of the need to restore devolved government in Northern Ireland. However, the bill is strongly opposed be the EU which is likely take retaliatory action if it becomes law. This could include suspending parts of the Trade and Cooperation Agreement with the potential to damage the UK economy. Business groups in Northern Ireland have also raised concerns about the workability of the UK’s proposal in practical terms.

The prime minister, Rishi Sunak, has said that his preference is a for a negotiated outcome on the Northern Ireland Protocol, but he remains under pressure from some in his party to pursue unilateral action.