Joint authority: a way forward?

Amid political stasis at Stormont, former SDLP Special Advisor Michael McKernan unpacks the potential benefits of a joint authority direct rule interim solution.

In the growing pessimism around the likelihood of the Stormont Parties re-establishing the Assembly and Executive in the near future, attention has turned to the obvious alternative – direct rule – and what particular form it might take. Many commentators believe that should Northern Ireland return to direct rule it will be of a variety not seen before, with an enhanced role for the Irish Government.

Certainly, Irish Foreign Minister Simon Coveney thinks so: last month he stated flatly that in the event of the parties failing to restore the institutions and a subsequent return to direct rule. “There can be no British-only direct rule. That is the Irish Government’s position.”

Although he had not referred explicitly to joint authority, Coveney received an immediate and fairly waspish response. The UK Government statement stated that it was “for the UK Government to provide the certainty over delivery of public services and good governance in Northern Ireland.”

And Prime Minister Theresa May answering an oral question from DUP MP Nigel Dodds added, “I am happy to confirm that we will not be looking at joint authority…”

Nationalists have criticised the UK Government response. Sinn Féin Northern leader Michelle O’Neill argued that both Governments have “a joint and equal role in the process, in safeguarding rights and implementing the Agreements.”

Although joint authority has been mentioned for many years as a possible constitutional option for Northern Ireland, the concept has yet to be properly developed or even clearly defined. The reason is perhaps because no advocate or even opponent of joint authority has ever regarded it as a final constitutional destination.

Joint authority was first brought forward by the New Ireland Forum in 1984. The Forum comprised the three main constitutional parties in the Republic, along with the SDLP and set out to identify the optimal constitution for Northern Ireland’s future. It produced three options, all unsurprisingly nationalist in character (a) a unitary state (b) a federal Ireland and (c) joint authority. In hundreds of pages of proceedings published there was little more than one page describing joint authority and the words on it were vague although it was clear that joint authority meant equal authority between London and Dublin. Interestingly, under the Forum’s proposal, joint authority would continue even if devolution was established further down the line.

The then UK Prime Minister Margaret Thatcher rejected all three options in a manner described by Taoiseach Garret FitzGerald as “gratuitously offensive”. Referring to the Forum Report she said: “A third solution was joint authority. That is out. That is a derogation from sovereignty.”

Indeed, Thatcher’s basic analysis is difficult to dismiss as the hugely totemic issue of UK sovereignty over Northern Ireland does indeed lie at the heart of any proposal on joint authority.

It is worth noting that despite the formal consultative role the 1985 Anglo-Irish Agreement gave to the Irish Government in relation to Northern Ireland matters, there was no transfer of sovereignty. Similarly, the UK has remained in sole charge of legislating for Northern Ireland’s political evolution and even the Good Friday Agreement of which the Irish government was co-guarantor, relies entirely on Westminster’s Northern Ireland Act to have effect.

Indeed, many will recall Ian Paisley’s explanation that it was the threat of joint authority (by the UK Government) that drove his decision, after years of opposition to power-sharing, to enter the current phase of devolution with partners Sinn Féin in 2007. Taking him at his word he was more prepared to join in a devolved power-sharing administration with his sworn enemies than witness a formal sharing of UK sovereignty over Northern Ireland with the Republic.

However, all of that is now largely water under the bridge. After 30 years of persuading and cajoling the often unreasonable (as they see it) Northern Ireland parties into working together, the UK and Irish governments have never been closer. They have moved way beyond the early 1980s rapprochement. They are capable, therefore, of developing a joint position in the current impasse which sees the dishing out of strong medicine.

Despite Theresa May’s recent words, this could include joint authority in some form. Indeed, such is the involvement of the Irish Government, after so much cooperative endeavour with the UK Government, that a ‘British-only’ direct rule is highly unlikely. As Simon Coveney suggested: “It would be very difficult to contemplate how direct rule would function in that context.”

So, while there is no doubt that any movement toward joint authority would be seen as progress for nationalists it is hard to see how the Irish Government would not continue to have real and growing influence during any new phase of direct rule. The likely outcome may be some version of ‘joint authority-lite’. Not perhaps the 50/50 arrangement proposed by the New Ireland Forum 33 years ago, but a more pragmatic formula with the UK still the senior partner. (After all, the UK Government picks up the tab for the £8 billion+ annual subvention needed to run Northern Ireland).

Tribal gains aside, advocates of joint authority see some clear advantages to such an arrangement.

Firstly, it ends all the instability and lurching from crisis to crisis that has dogged devolution at Stormont since it was restored in 1998. Stormont can return when it is ready to return.

“These are very substantial gains over time but there are short term advantages also. A period of joint authority/direct rule in the near future is more likely to achieve better outcomes for Northern Ireland in the context of Brexit.”

Secondly, it finally ends all the constitutional pussyfooting around the role of the Irish Government in Northern Ireland. Dublin has, over time, clearly outgrown the ‘consultative’ role or the formal remits extended to the North South Ministerial Council or other North South institutions or its supposed exclusion from Strand One (Internal affairs of Northern Ireland). Joint authority effectively means shared sovereignty.

Thirdly, joint authority finally puts the British and Irish traditions in Northern Ireland on a totally equal footing without one prevailing over the other.

Fourthly, with the two Governments at the helm together, North South cooperation and social and economic integration can really take off. This can include much better all-island infrastructure planning and delivery. In reality North South cooperation has been heavily constrained within the current devolved arrangements.

Finally, the Governments could process difficult social policy issues (equal marriage etc) currently dividing the local parties.

These are very substantial gains over time but there are short term advantages also. A period of joint authority/direct rule in the near future is more likely to achieve better outcomes for Northern Ireland in the context of Brexit. At present Northern Ireland has little influence or leverage.

Also, joint authority/direct rule for the next few years can provide reassurance that the coming rationalisations in health and education and other sectors, which are necessary but potentially very painful, can be delivered under a form of Government which is demonstrably fair to all communities.

So, while joint authority may, at the emotional level, please nationalists and cause anxiety to unionists, it is possible to design it in a pragmatic form which is not a takeover by Dublin but which guarantees the rights of all traditions in the absence of viable devolution.

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