Rick Wilford: Why revived talks process and a period of direct rule are not mutually exclusive
In fact, negotiations between the NI parties under temporary rule from Westminster have been the norm rather than the exception since the signing of the Good Friday Agreement, writes Rick Wilford
On Wednesday last, the Secretary of State, Karen Bradley, appeared before the Northern Ireland Affairs Select Committee at Westminster to update its members on the current state of play in relation to a variety of pressing matters, including, of course, the restoration of devolution, which, she stated, is the only sustainable option for Northern Ireland.
However, she also acknowledged that there was no immediate prospect of restoring the institutions, because of the absence of trust between and among the parties, which, to use a technical phrase, is a statement of the bleeding obvious.
That admission prompted the committee chair, Dr Andrew Murrison, to inquire at what point she would be minded to act in order to tackle the mounting volume of strategic decisions, inaction on which is hindering the good governance of Northern Ireland - it was, in effect, an invitation to the SoS to contemplate the reintroduction of direct rule, which, from the NIO's perspective, seems to be the sin, rather than love, that dare not speak its name.
Mrs Bradley is clearly reluctant to take that step, appearing to believe that even a "direct rule lite" regime (admittedly, a vague notion) would compromise the likelihood of a renewed talks process, given the antipathy to direct rule shared by the SDLP, Sinn Fein and the Irish government.
But are direct rule and a talks process mutually exclusive? Not necessarily. Indeed, negotiations within a direct rule context have been the norm in the post-Good Friday era.
Her reluctance to take a decision on this matter she felt was lent added force by the-then pending outcome of the Northern Ireland Court of Appeal's ruling on the earlier decision in the High Court that the Permanent Secretary at the Department of Infrastructure did not have the legal authority to grant planning permission for the proposed waste incinerator at Mallusk.
Mrs Bradley did not have to wait for very long. Just 48 hours after her appearance at the committee, the Court of Appeal upheld the High Court ruling.
This came as no surprise - least of all to Northern Ireland civil servants - since the whole system of government throughout the UK, including the devolved administrations, relies upon the constitutional principle that decisions require the authority of a minister: the role of senior civil servants is to advise and implement those decisions, not to take them.
We shouldn't leap to the conclusion that officials were intent on some sort of power-grab in the absence of ministers, rather that the appeal sought clarity on the parameters within which they could act in the public interest to give effect to the intentions of the last Executive.
But there were two further problems that impeded civil service decision-making on that basis. Firstly, that the Programme for Government (PfG) of the Executive elected in 2016 enjoyed only draft, not final agreed, status and, secondly, that a new Assembly was elected in 2017 and no fresh Executive had been appointed with the task of agreeing a new PfG, which may well differ from its precursor, if only in degree rather than kind.
The key point of the ruling was, though, that civil servants do not enjoy an equivalent power to ministers to make and take decisions, including on significant, controversial and cross-cutting matters.
The reasoning of the three Appeal Court judges is, constitutionally, impeccable: to decide otherwise, in the words of one of the judges, Lord Justice Treacy, would have been "radical and anti-democratic".
Other than taking its case by way of appeal to the Supreme Court, which is highly unlikely and would be ill-advised, the Northern Ireland Civil Service must now regard this ruling as the end of the matter. In effect, the ball is now well and truly in Mrs Bradley's court.
While she can no longer pray-in-aid the Appeal Court's pending decision - its collective view is now emphatically clear - will she be nudged, perhaps jostled is more accurate, into reintroducing direct rule? I think not.
At the committee hearing, she stated that, in the absence of an Assembly and an Executive: "We will take decisions that need to be taken in Westminster as we need to take them, but I am extraordinarily reluctant to move towards a situation where we give up on the institutions set up by the Belfast Agreement and decide that they are no longer fit for purpose."
In effect, the SoS equates the reintroduction of direct rule with giving up on the devolved institutions which, frankly, is not the case. A period of direct rule would press the pause, not the delete, button and create an opportunity space for further inter-party talks: the two are not mutually exclusive.
However, whether the nationalist parties and the Irish government would participate in such talks within a direct rule context is doubtful. Cue the reconvening in London of the British-Irish Intergovernmental Conference (BIIGC) later this month, the first such meeting since 2007.
That meeting, long sought by the SDLP, Sinn Fein and the Irish government, may help to move the stalled talks process on and may also enable the Irish government to voice the need for the UK Government to act on matters of current controversy, including same-sex marriage, abortion and an Irish Language Act.
But we need to be clear: the conference is not an executive agency in respect of otherwise devolved matters. Dublin can - and, no doubt, will - express its views on such issues, but short of direct rule, the UK parliament - where sovereignty lies - will be reluctant to act, not least because of the UK Government's "confidence and supply" agreement with the DUP and also because it cleaves to the view that such matters must be resolved at Stormont. Outcome? Impasse.
The key test for the conference is whether or not it proves capable of injecting momentum towards a fresh round of inter-party talks, primarily but not exclusively between the DUP and Sinn Fein. That would represent something of an achievement, certainly in terms of process, though there is, of course, no guarantee of a successful outcome.
A sceptic might well observe that the revitalisation of the BIIGC is something of an extravagance or, even worse, a sop to Irish nationalists of whatever hue: after all, an Anglo-Irish initiative designed to get talks up and running does not require a meeting of the conference. But we are where we are: in limbo, if not purgatory.
We could, of course, be put out of our current collective misery by a fresh Assembly election. The Appeal Court noted on Friday that proceedings have been initiated by someone as yet unknown challenging the SoS that she has "unlawfully failed to act in accordance with her duty under section 32 (3) of the 1998 Act" (ie to call an election within what her predecessors have termed "a reasonable period").
Would that end the misery, or merely postpone further political pain? While we await that court case, enjoy the summer: our MLAs will, since they are still being paid the full rate.
Rick Wilford is Professor of Politics at Queen's University, Belfast