CAIN Web Service

No one now seems to doubt the difficulty of resolving the complex problems of Northern Ireland. After 25 years of 'troubles' and 17 months of cease-fires have come and gone, many even believe that a 'solution' as such is impossible. The bleak, 'no-hope analysis' which the political scientist John Whyte identified as the most extreme of ten approaches to the problem^[1] is increasingly replacing the optimism the ceasefires engendered. Even among those who reject the view that, as Richard Rose puts it, "the problem is that there is no solution"^[2] there is a new uncertainty.

Two things do remain constant among the optimists, however. The first is that any lasting solution must be a political solution. A political deal must be struck which can square the circle of regional political enmities, accommodate minority aspirations, assuage majority anxieties and provide the political ground rules for governing a contested and conflict-ridden society.

The second certainty is that such a political solution will be extremely difficult to find. The irreconcilability of the opposing positions means that as the impetus provided by the ceasefires dies away the enormity of the task again appears. The aim of providing a 'solution' is reduced to one of arranging round-table talks.

It is time to question the received wisdom about the need for and value of a macro-political settlement, and to explore whether there are alternative ways forward to awaiting some illusory political 'big fix'.^[3]

The thinking behind the search for political agreement is that an historic moment of consensus could form the basis for a set of structures and institutions to provide for the government of Northern Ireland, and thus for the 'solution' of the problem. These institutions would, so it is thought, reflect the complexity of the political deal, which in turn would mirror the opposing positions of the main protagonists. It is obviously a tall order to produce such a deal, and then render it into lasting institutional form, but this has been the aim of all the political initiatives in the recent past. Indeed, the attempt to translate any fleeting moment of political consensus into constitutional structures has remained the chief aim and medium-to-long-term strategy of the British government.

At various times this search has been neglected, as the political and security situation has seemed to require. It has never disappeared, however, and the need for political agreement remains a touchstone, too, for all constitutional and would-be constitutional parties in Northern Ireland. To breathe life into the search for consensus, and to bring in and retain the various political factions, considerable ingenuity and some flexibility have been expended.

From the government side, a wide range of considerations have been factored in. The 'totality of relations' are to be considered. A range of persuaders from beyond the confines of Britain and Ireland have been recruited. Minority rights and power-sharing have been flagged. Constitutional guarantees have been restated and 'triple-lock' mechanisms installed. A whole range of acts, treaties and declarations have accompanied these initiatives.

Politics at regional level has been more reactive than positive, but here too (contrary to the stereotype) there has been some movement. Ideas of consent and 'parity of esteem' have been accepted. Long-term objectives have been recognised as such and, most importantly, if regrettably perhaps only temporarily, violence was removed from the political struggle.

But government - usually in London but often, too, in Dublin (and sometimes in Washington) - is regarded as the main force offering threats and inducements to bring in and retain the parties in talkswhere they will decide on the structures of government. This is a difficult trick to pull off: a concession made to one faction is usually viewed as being at the expense of another. The British government's role is akin to that of a starter at a race meeting - coaxing, cajoling and pushing the runners into some semblance of order, before choosing the optimum moment to set them off.

Of course the whole race, certainly from the British government point of view, is to be run on familiar ground. It has been, and continues to be, very much a 'Westminster-style' solution that is sought. Any political deal is intended to produce institutions, an overarching framework for government. Although many of the parties involved may hope for something else, from the perspective of the British authorities these institutions will probably be some form of devolved government. They will, however, contain some anti-majoritarian features and maybe even a bill of rights. It is accepted that there will need to be some sort of all-Ireland dimension and this will be given expression, again, through institutions.

All the features of the Westminster style of constitutionalism are thus present: there is the focus on structures of government at the expense of wider values in government. Of course, some aspects of classical Westminsterism, notably a two-party system, are not present, and this produces mutations of the standard position, such as guarantees of rights and 'power-sharing' structures. Such modifications can, however, be presented as evidence of the pragmatism held to be such a feature of the Westminster approach.

Notwithstanding the regional embellishments, the essential thrust is that of a Westminster system, such as Britain has sought to bequeath to a range of its former colonies worldwide. It is this that has provided the central direction of medium - and long-term policy. Within the traditional British approach, Westminsterism is the answer: the problem is the Irish.

So why is Westminsterism not working in Northern Ireland? Three answers suggest themselves. The first is the intractability argument - that Northern Ireland is too difficult. The second is that although it may be very difficult we are simply not trying hard enough.

Yet the items on the agenda of Westminsterism have been worked and reworked. Every partner for talks towards establishing regional structures is tried. When the politicians in the north fail to agree, or even talk to one another, the emphasis is put on an east-west axis, with co-operation between London and Dublin. Talks and preliminary talks, at different levels and in various strands, are tried. Blandishments are offered - an election to the unionists, increased Dublin involvement to the nationalists - in exchange for continued co-operation. The moment of agreement seems close but then recedes and never arrives. The structures that have been tried^[4] have not withstood the storms of a strongly polarised political climate, in which almost every detail of social life becomes connected with wider constitutional or tribal loyalties.

Against this background, it seems uncharitable to claim there has been a lack of endeavour. Indeed, when the search for constitutional activity is extended beyond the remit of official government action, it can be seen that there has been as much effort - and probably more ink^[5] - expended on this conflict as on any other. There have been a whole range of for a, commissions, reports and inquiries, with semi-official and unofficial status. Different methods of achieving the desired historic settlement - ranging from violence, argument, referenda and preferenda to initiatives by the British, Irish and us governments, or the United Nations - have all been urged.

The problem with all this undeniable effort is that it has been directed almost exclusively at the big fix - the idea that a grand-scale political settlement can be reached and that the resulting constitutional architecture will engineer out all the problems of Northern Ireland. Which brings us to the third possible explanation as to why Westminsterism is not working in Northern Ireland.

The remaining explanation is an obvious one, even if unpalatable to some: Northern Ireland is not like Great Britain and so is not amenable to a Westminster-style solution. Maybe Northern Ireland does not have the relatively homogeneous population and respect for time-honoured institutions that are supposed to mark political life in Britain. Perhaps the political traditions in Britain which gave birth to the Mother of Parliaments are absent in Ireland.

Although in many ways Northern Ireland does resemble Britain, perhaps the differences equally easily observed are more significant. Northern Ireland may be fundamentally different from the rest of the UK, and so the idea of giving the old Westminster machine one more tweak to get it to work in the region may be untenable. No matter how much energy is expended by constitutionalists - casting about for ever more elaborate, baroque structures to accommodate the irreconcilable - a Westminster solution of an agreed, large-scale, institutional mechanism for government may well be unattainable.

This judgment is perhaps a depressing one. It seems to return us to the 'no-hope' analysis or the 'too difficult' scenario. This might seem to suit the spirit of the times, with the 'peace process' faltering and the prospect of even getting to the negotiating table, let alone working out a framework for government, still distant.

But to join such thinking would be to overestimate what is lost by the failure of Westminsterism to work in this context. And it would be to underestimate the extent to which the simple fact of having to get the business of government done in Northern Ireland over the last 20-odd years, without any Westminsterist solution, has thrown up alternative structures which in many ways hold the key to moving Northern Ireland on - and suggest directions in which British constitutional thinking could move beyond the moribund parameters of Westminsterism.

As the nature of public power is changing, the notion that all exercises of power can and should be constrained within domestic institutions is becoming increasingly untenable. Instead of decrying the fact that Northern Ireland is not Great Britain, and so is not amenable to the Westminster solution, we should notice that more and more Great Britain is not Great Britain - at least in the sense required by the Westminster model. There has been a movement in the locus of power upwards to Europe and beyond and downwards to a newly constituted and vital civil society. Government of course still exists but, increasingly, it is government at a distance, operating by and through the market via a range of quangos and regulatory bodies.

Moreover, developments in the practice of government in Northern Ireland prefigure in important ways directions in Britain. The external dimension to the constitution, whereby a range of governments and agencies from outside the UK have a role, is developed in Northern Ireland to a greater extent. In the absence of any permanent political machine to carry out the business of government, the role of quangos and of the voluntary sector is more developed too. At the same time there are indications of some embryo attempts by government to steer the delivery of such government services - trying to use values, rather than simply the structures characteristic of the old Westminster approach.

There are many problems with orthodox British constitutionalism - as is perhaps indicated by the number and range of auditors, chartists and reformers providing an increasingly shrill chorus for constitutional reform. The target of most of the reformers' zeal is the institutions of government. These include not only 'the living dead of the constitution' - Parliament (in particular the Lords) and the monarchy - but also those governing principles, such as ministerial responsibility and civil service independence, which were the subject of the Scott inquiry into the arms-for-Iraq affair.

There is certainly much that is at fault in the day-to-day operation of Westminster and Whitehall. A constitution which is (nominally at least) oriented around the idea of Parliament providing a focus for accountable government, and sustained by ideas of historical continuity and the flexibility of the unwritten constitution, certainly leaves much scope for reform.

Indeed, the strongest case for reform of the British constitution generally lies in the present acceptance that what happens in Parliament and in Whitehall is the constitution. In the absence of rules about what ought to happen, the conduct and practice of the rulers have almost become the constitution itself. The reformers' best case is that constitutionalism ought to be about controlling power, not simply celebrating it, and that the constitution ought to be more than what some people say it is.

Yet changes to the formal constitution of Parliament and the other domestic institutions of government may not be enough. It is important to constrain the historical prerogatives of the crown, used by government with few formal checks. The mechanisms of accountability and representation in Parliament do need to be restructured and it would be helpful if all of this could be written down in one document, perhaps with a bill of rights. But such changes would simply reform the British constitution to a level other states generally achieved some time ago. At best, a 17th-century constitution would be updated to the 19th century. Changes in the scope, nature and site of public power have rendered inadequate a project of shoring up institutional controls on big government and reviving the role of Parliament.

While government certainly has not shrunk in the last few decades, its role has radically changed in scope and range. The state now appears as too small for some of the important issues of environment, defence, world trade and so on, and at the same time too big to accommodate identities that are defined not by geographical boundaries but along political, ethnic and sexual lines.

In the context of globalisation, on matters of economy and currency national governments now exert little independent control. Even on issues relating to security policy, social policy and justice, the state finds itself caught up in international and supranational webs of interconnectedness. There is a whole alphabet of world and European organisations which claim to limit and influence the capacity of government.^[6]

No one, except perhaps a Bosnian warlord (and then only temporarily), can act independently of the links which constrain the capacity of governments to act in any way other than in relation to powerful economic, defence and trade blocs. Even law-making, a defining element of a nation-state, is increasingly subject to a range of international and supranational bodies making law directly, claiming jurisdiction to resolve disputes or simply establishing standards for national law to reach.

This official, government-sanctioned network is accompanied by a parallel private, non-governmental set-up. The technological and communications revolution has facilitated transnational business groupings and corporations, often at least as significant as national governments.

At the same time there are new forms of civil society. The 'little platoons' described by Edmund Burke as so essential to democracy have regrouped into intermediate associations, social networks and social, political and economic groupings. As the political parties have declined in support, the third sector just below government has grown - the 'thousand points of light' as President Bush termed it. These bodies compete with the state not only as providers but also in offering a rival focus to traditional politics and its institutions.

Some of these are global, rather than national. There has been an enormous growth of pressure groups and non-governmental organisations pursing their own agenda - be it the environment, or ethnic politics or whatever - on an international scale. Some of this new civil society is very local and specific, but it too eschews the traditional politics of government and seeks to make an impact on a singe issue or range of issues.

At the same time as many intermediate groups are offering an alternative focus to national government, so government is distancing itself from many of its traditional roles. The privatisation of utilities and services has ushered in the regulatory state where government, rather than providing services itself, merely seeks to organise some aspects of provision while leaving delivery to quangos or charities in the third sector. Even in those areas where government retains responsibility, the civil service is reorganising itself into units that are managerially and constitutionally distant from ministers. There is a movement in government generally away from doing the work directly to merely organising how it is done - steering rather than rowing.

What is the impact in Northern Ire land of these new forms of government, below the 'nation-state'? How can these globalising trends affect Northern Ireland? Has the argument become merely a version of the well-known idea that 'we are all Europeans now, and so what is there to fight about anyway?'

The answer lies in exploring how politics, and more particularly government, has developed in the last 25 years or so. Northern Ireland may not be a political entity universally recognised for its sophistication. But while much of the story of government in the last two or three decades has been of failure to secure the political ground rules to allow the exercise of power, there are signs of something more than simple crisis management.

Indeed the very failure of the large-scale constitutional settlement has provided an impetus to ensure that mechanisms are developed to get the business of government done. As the requirement for direct rule continued, and became increasingly less easy to describe as 'temporary', a more sophisticated way of ensuring its legitimacy developed.

In part because of the continuing failure of the Westminsterist approach to secure the political deal necessary to usher in regional political arrangements for government, outside influences have become increasingly important and, in some circles at least, increasingly welcome. Formally denied in the context of a Westminster-style constitution with its emphasis on the domestic parliament, in Northern Ireland these external influences - so important in reality to government in Britain and everywhere else - are more apparent and developed.

At times, the lack of progress along the agenda of Westminsterism has encouraged a politics involving approaches to other authorities and other governments. The European Union and the United States have both had a role. Sometimes this has been directly related to the conflict - as when, for example, the European Parliament adopted the Haagerup report on Northern Ireland or when the us president has been lobbied by British and Irish politicians to underwrite a political initiative. Alternatively, the link to the conflict may be more indirect - for example, European Parliament elections are used in Northern Ireland to re-run domestic constitutional debates, while the MacBride Principles have been promoted in the us to try to influence sectarian work practices.

Above all, the contested nature of the polity itself in Northern Ireland has meant that the government of the republic has long had what, even its most hostile opponents must concede, is an interest. The nature of this interest, and the role that it might imply, have varied over time. Under the Anglo-Irish Agreement, this role was formalised and since then official machinery and more informal links have reinforced a bilateral approach to many issues.

The UN has also been lobbied by domestic non-governmental organisations, in the hope this might offer a more effective way of influencing government policy than is available within the domestic structure. And in the absence of a bill of rights and a constitutional court in the UK, the European Convention on Human Rights and the court at Strasbourg have provided another alternative forum to the British courts for disputes about the limits of British authority in policing the emergency.

Some of the influence from external sources is not linked to the conflict. The EU has become a well-recognised source of funding for Northern Ireland's developed voluntary sector. The US, particularly via the International Fund for Ireland and more recently moneys tied to the 'peace process', is also a source of assistance.

This willingness to use to use external authorities as the object of lobbying, the source of funding and as an authority capable of making judgment - as well as regarding other governments and organisations as more or less partners in any long-term solution - is antithetical to the Westminster approach. It is striking that in Northern Ireland sovereignty is attenuated and shared in many ways that are thought to be impossible within the mainstream of Westminsterism but are more suited to new conjunctions of power.

At the same time as there has been a (sometimes highly qualified) willingness to look to structures beyond the confines of the immediate nation-state, so too has there been a flexibility about how government has been carried out. This has taken place against the context of a supposedly temporary system of direct rule and, although the most notable feature of this mechanism has been its undemocratic nature, there are signs of a nascent 'new constitutionalism'.

An 'audit' of democracy in Northern Ireland, which involved examining the mechanisms of direct rule against a set of criteria (essentially stressing ideas of popular control and political equality), found much that was wrong with direct rule.^[7] Legislation is made by order-in-council, without the parliamentary debate that normally attends lawmaking, and the executive function is discharged by Westminster ministers, aided by the civil service and a plethora of quangos. The phrases 'consular rule', 'helicopter rule', and government by 'experts' and by the 'great and good' describe some of the obvious problems with such a system.

Yet direct rule was not found to be simply a 'black hole of democracy'. Indeed, in the effort to get the business of government done, some ingenuity has emerged. There have been various stages, and the process has been haphazard rather than planned, but some central themes do emerge.

In particular, there is the idea of depoliticising government. This has been pursued by removing issues that might have a political or constitutional character from the hands of regionally-based political processes. Of course, in Northern Ireland there are many issues - ranging from education and housing through to industrial investment and beyond - which can be interpreted as having political or constitutional significance. The result is that quangos have been given a whole range of jobs which elsewhere would be carried out through the political process.

Quangos are beyond the limits of constitutional control and so such a move may appear at first sight unequivocally undemocratic. But then the 'constitutional control' of the increasingly moribund Westminster system is not itself entirely satisfactory. Furthermore, the removal of such functions from the political process, and the placing of individuals by government in positions of importance in such a way as to reflect the political and religious composition of society, does at least provide access to power to many who would be (and have been) disempowered under more 'democratic' methods.

It is unfortunate (but of course a separate issue) that many of those placed on quangos have not used whatever power they may have and have failed to open up the operation of their quango to public scrutiny. But the quango remains a potentially more democratic mechanism than a straightforward election in an unevenly divided and polarised society

The objective of getting the business of government done has also led to an important role for the voluntary sector in Northern Ireland. From the government point of view, there are efficiency advantages and gains in legitimacy in empowering and funding community groups to perform functions which elsewhere would be carried out by central government or via the political process. Again, this use of the voluntary sector gives access to a range of people who might well be under-represented in traditional bodies. It also introduces the idea of a creative engagement between voluntary organisations and government who, while funding the work, require their continuing co-operation.

In Northern Ireland, as elsewhere in the UK, government has also relinquished some of its role to the private and semiprivate sector. Privatisation, compulsory competitive tendering and opting out are running behind developments in Britain but in other areas - for example, the delivery of personal social services through trusts - practice in Northern Ireland is in advance. This idea of government by contract, where the input of the formal institutions of government is restricted to setting standards and monitoring performance, again has obvious shortcomings in relation to the formal channels of accountability. But it also has advantages: ideas of equality or of there being 'two traditions' can provide strong normative guidance that would not be so easily factored in to a Westminster-style political structure.

These signs of a nascent 'new constitutionalism' in Northern Ireland mark an alternative way of thinking about government. Instead of focusing on big political solutions and institutions, and hoping that these will sort out all the political and constitutional conflicts in a highly-charged society, there is the idea that the real business of government is continuing.

The operation of public power in Northern Ireland, as elsewhere (and indeed even more than elsewhere), has moved to new sites and new levels. It seems unlikely it can ever be restored to a devolved branch of UK government or any other big domestic institutional structure. Perhaps this suggests that the struggle for political power and the search for constitutional settlement ought to move also to where the main issues will increasingly be found. Constitutionalism in future will be less about political deals leading to overarching structures of government, more about setting the ground rules and standards for the operation of power.

The influence of the 'external constitution', the downsizing of government and its replacement by quangos, the voluntary sector and other mechanisms has already provoked an early version of this changed paradigm. Yet expediency and the search for legitimacy have been more influential to date than any desire to democratise government or introduce normative standards.

The 'two traditions' ideology, which has been used as an organising principle, along with ideas of formal equality as contained in the fair employment and sex discrimination legislation, does however suggest some attention has been given to setting ground rules and standards. Further, the Targeting Social Need initiative and the Policy Appraisal and Fair Treatment guidelines suggest the possibility of introducing quite sophisticated normative elements into the detailed operation of government - as it is now taking place and will continue to take place well away from any institution that a political big fix might throw up.

If the operation of public power has moved on from anything that can be captured and returned to an assembly or parliament, it cannot be denied that there is still a role for constitutional talks and indeed the whole panoply of talks-about-talks. A big solution is still necessary, but not as important as many people believe.

The real work is to think about the values that should inform the practice of government as it is now going on and is likely to continue - come what may in the wider 'peace process'. After all, in contrast to the process towards a macro-constitutional settlement, we are not waiting for some moment when it will all start to happen: power is already being exercised in all the ways outlined. The processes discussed here are happening and will continue to happen, whether we control them or not.

Any discussion of the values that should inform government at this constitutional, yet sub-institutional, level might well include those that would appear on any roster of democratic values:

• equality,
• participation,
• accountability,
• transparency and
• subsidiarity.

Efficiency and value for money might also be appropriate inclusions.

This is not the place to develop fully how law can become the master tool of institutional imagination in a democratic society. But a few examples can be given of some of the forms this legal technology might take.

There is little point in simply bemoaning the existence of quangos, and the cronyism that surrounds their appointments, hoping that the functions they discharge can be returned to regional politics. This is unlikely to happen and would not in any event provide anything approaching a total solution. What is required, as in many other places, is a new series of rights, duties and criteria.

First, there is the possibility of introducing transparency rights - opening up the appointments process, the budgets and operation of quangos. Requirements for public meetings or public access can be imposed. Secondly, representativeness criteria, ensuring a true balance of interests across society (rather than a simplistic 'two traditions' balance), can be introduced. This would not be a substitute for elections but would ensure that a range of voices are heard.

Thirdly, quangos, especially regulators who are generally given very wide discretion, can be subjected to a formal procedure, detailing membership criteria and budget, reporting and accounting procedures. Furthermore, they can be made subject to 'sunset laws', whereby they are given certain tasks and must wind themselves up within a given period or satisfy fixed criteria for their continuation. Fourthly, quangos can be charged with clearly defined and agreed public duties to provide services, rather than vague discretions, and these should give rise to enforceable rights. Consultation requirements and minimum conditions of consensus can be imposed.

Government by contract is increasingly popular. Although not ideal for all relationships (contracts tend to flatten out decision-making), public service contracts are likely to remain a central part of government. Indeed, in many ways the project of government in future can be thought of as one of 'governance', whereby the elected authority increasingly has only a regulatory role over a huge number of rolling contracts. Again, there will be no return of direct responsibility to local authorities. That being so, it is important that contracts are regulated and controlled to the satisfaction of those they are intended to serve.

The terms of the contract must be closely scrutinised: this is not a wholly technical matter but one of considerable democratic significance. Contract law itself offers only a very limited range of remedies and these need to be augmented. Performance indicators, setting standards that consumers want (including perhaps those who can not actually pay), must be drawn up and monitoring machinery put in place. Licensing systems with appropriate and agreed criteria can be instituted.

There is scope for a large number of new rights to empower citizens and, more likely, intermediate or third-sector bodies to assert the interests of consumers and citizens and monitor those who spend public money. Many of these will be positive rights - transparency rights, immunity rights and market rights, which carry with them the possibility of courts granting complex, structural injunctions fundamentally to destabilise and reorder large organisations. Such mechanisms are required to break open concentrations of power. (As John Locke observed in the 17th century, "Liberty is power cut into pieces.") Other rights will be more negative, such as veto and consultation rights which require minimum conditions of consensus.

Consent and consensus are important and should be taken seriously. A whole range of mechanisms - such as citizens juries, preferenda, consensus conferences and surveys - can be deployed to ascertain consensus and mandate public authorities.^[8] Watchdog and whistle-blowing rights are also valuable in ensuring such mandates are carried out. All of these new rights will exist alongside formal laws ensuring equal treatment. Courts will need to be given new jurisdictions to enforce these new rights, with procedures for judicial review simplified and made at least as accessible and cheap as the small claims court.

What is required is a communicative constitution of values - a dynamic relationship between government in all its forms and those who are governed. The concepts of 'dialogic democracy' and empowerment of the dynamic civil society in Northern Ireland were central to the discussions out of which this chapter arose. What is required is a legal technology to help people to fight back against the flow of power from the top down and from the relatively uncontrolled market. We need serious restraints on government as it now operates through quangos and contracts and by funding, licensing and empowering other bodies and groups to discharge its functions.

These new forms of government are operating at all levels, from the international to the local, and in the public and private spheres as well as in the market. Parliaments and assemblies have only a very limited role to play in capturing and controlling such operations of power. The restraining mechanisms need to operate at the sites where power is exercised. There is a need for a series of rights to empower people to hold government, in all its diverse forms, to the values that we want it to follow as it directs and determines our lives.

Paradoxically, for a political situation that is characterised by conflict and by state repression, there is some evidence that such technology exists in nascent form. The task is now to take possession of this embryo legal technology and shape it to deliver a mechanism that can provide the detailed government that we want.

Big constitutional solutions can wait.

Footnotes