Sam McBride: In limbo, mandarins are not clear on obscure law

David Sterling after signing the agreement. Photo: Kelvin Boyes/Presseye
David Sterling after signing the agreement. Photo: Kelvin Boyes/Presseye

Just over a month ago, a line buried in a civil service press release announced that Stormont Castle had signed Memoranda of Understanding with two Chinese provinces establishing a “friendship province relationship” with each.

There have been no ministers at Stormont for the best part of a year, so who had signed an undertaking which committed Northern Ireland to cooperate with Hubei and Liaoning, and what exactly did it entail?

The press release neither stated who had signed the documents on behalf of Northern Ireland nor did it publish what had been signed.

After being asked for clarification, Stormont’s lead department, The Executive Office (TEO), told me that David Sterling, the interim head of the Northern Ireland Civil Service, had signed the agreements and released copies.

To a layman, the five-year agreements appear to be woolly pieces of diplomacy, committing the two sides “to make concerted effort, on the basis of equality and mutual benefit, to promote people-to-people friendly contacts and economic and trade interflow between the two provinces, and actively carry out exchanges and cooperation in the fields of economy, trade, science and technology, culture, sports, health, education, personnel, etc.”

But why was an unelected civil servant signing any agreement with a foreign country, and in this case a country about which human rights advocates express profound concerns, making the decision especially political?

Stormont Castle said that the agreements were a “statement of intent that the two sides will actively explore the areas of cooperation already agreed in the Executive’s Strategy for China” and said that it would not be unusual for a senior official to sign a Memorandum of Understanding on cooperation with another region. That is true – but in virtually every case, officials would be operating under the implicit or explicit direction of a minister.

Until now, we have understood that civil servants’ powers are very different to those of ministers. However, a fairly obscure piece of secondary legislation appears to give sweeping powers to mandarins in Northern Ireland which are not enjoyed by their Whitehall counterparts.

Article 4 of the Departments (NI) Order 1999 begins by setting out the traditional understanding of our democratic system, whereby “the functions of a department shall at all times be exercised subject to the direction and control of the minister”.

However, it goes on to state that “subject to the provisions of this Order, any functions of a department may be exercised by— (a) the minister; or (b) a senior officer of the department”.

In the absence of a minister, that latter provision appears to give Stormont mandarins all the authority of a minister in circumstances where legislation gives power to a department.

That is all the more significant because most Northern Ireland legislation confers powers on “the department”, whereas in Westminster it is generally the Secretary of State who is explicitly designated as the decision-maker.

But there remains huge uncertainty at Stormont about what officials can do in the current limbo between devolution and direct rule.

The Northern Ireland Office directed me to speak to the Northern Ireland Civil Service to get their assessment of the legal limits of their powers. In turn, Stormont officials said that article 4 of the order is “a key provision in the scheme of delegation” but “must be read in its totality”. They added that in the current situation officials “will take into account both the previous direction of ministers and the public interest” and “take legal advice where necessary”.

That confusion about who can take decisions is not the basis for responsive decision-making but there seems little urgency on the part of the Government to clarify the situation, leaving officials in a deeply unfair position.