Sam McBride: The last fig leaf of scrutiny of NI civil servants is illusory; it is they who rule

In a week which raised profound questions about Karen Bradley’s ability to adequately fulfil the role of secretary for state, she has made multiple blunders, the most high profile of which – claiming that the 10% of Troubles killings by the security forces “were not crimes” – almost cost Ms Bradley her job.

The idea that her answer was a gaffe rather than some premeditated attempt to placate the Tory backbenchers angry at prosecutions of former soldiers is reinforced by Ms Bradley’s series of gaffes from the despatch box in little more than a 24-hour period this week.

On Tuesday, Ms Bradley brought Stormont budgetary legislation to Westminster. Just an hour into the debate, she made the constitutionally heretical claim that in the absence of devolution Stormont civil servants’ decisions do not need political scrutiny.

She told MPs: “We have to be very careful about the civil service’s separation and independence from scrutiny by political masters. It is the political decisions that need scrutiny, not the decisions of civil servants.”

Moments later, she was asked by Labour MP Jess Phillips how much money the multi-billion pound bill was authorising for childcare. Apparently unaware of the answer, Ms Bradley began her reply by obliquely saying: “I mean this is a very technical bill.”

The following day, under pressure at Northern Ireland Questions to increase the transparency of past political donations, Ms Bradley misled the Commons. Defending her refusal to open up past donations to scrutiny, she claimed that her stance had “the support of the five main political parties in Northern Ireland”.

Had she even a passing interest in the matter, Ms Bradley would have known that the Alliance Party does not support her stance and has for years argued for further transparency.

Just a few minutes later, Ms Bradley bungled on a much grander scale with her comments about killings by the security forces. That was compounded when she returned within an hour to clarify what she said but did not apologise, only doing so 24 hours later.

Taken together, the events of this week suggest a secretary of state who lacks the aptitude for what is now one of the Cabinet’s most challenging roles. But regardless of whether Ms Bradley remains or is replaced, another significant problem is crystalising.

Since the collapse of devolution and Theresa May’s reluctance to implement full direct rule, it has been clear that there is limited scrutiny of the individual acts of direct rule which with increasing regularity Ms Bradley is bringing to the Commons.

That problem is in part because every piece of direct rule Northern Ireland legislation is fast-tracked using Parliament’s emergency procedures to allow for all the stages of a bill to be debated in one Commons’ sitting – meaning in about three or four hours a piece of legislation which deals with billions of pounds of public expenditure passes through the entirety of its scrutiny by MPs.

But a pattern has emerged which reveals a further problem. Ms Bradley is now repeatedly leaving it until the last moment before bringing such legislation to the Commons.

The pretext on which she does so is that she has been holding out hope for the return of Stormont – despite the fact that for months there have not even been perfunctory talks to move that beyond the aspirational.

That claim met with deep scepticism in the Commons, with DUP MP Gavin Robinson asking her incredulously: “When in the past two months was there any genuine prospect of the Assembly being restored to go through this process?” In a circuitous answer, Ms Bradley eventually said that devolution had to be restored and that only Stormont could provide adequate scrutiny of Northern Ireland legislation.

The lateness with which the bills are being tabled by Ms Bradley then justify her request to pass them by emergency procedures, which reduces scrutiny time.

On Wednesday, MPs were even more vociferous in arguing that there were not being given sufficient time to pass complex and far-reaching legislation – this time about massive cuts to RHI subsidies which claimants were told by Stormont would be unalterable.

In a variation of her argument the previous day, Ms Bradley said that the legislation simply had to be passed urgently – or else boiler owners would from next month receive no payments at all.

Eventually that argument proved persuasive and – despite unusually vocal criticism of the legislation from all sides of the Commons chamber – the tariff cuts were unanimously agreed.

In effect, MPs had been told that they had no real choice. While it might have seemed that they were deciding whether to approve or reject the two pieces of legislation, in fact there was no credible alternative. Even though MPs were alarmed by multiple elements of the legislation, the NIO had left it so late in the day that, according to Ms Bradley, there would be a much worse outcome if they voted it down.

There is in this a very obvious perverse incentive for the NIO to bring such legislation at the last possible moment, knowing that Parliament then must pass it – regardless of the contents.

In doing so, there is the veneer of democratic scrutiny and authorisation, but it is surface-deep.

In the House of Lords on Thursday Lords Empey and Cormack, the latter a former Tory MP respected for his constitutional knowledge, expressed concern at how all Northern Ireland legislation now seems to be fast-tracked through Parliament. Lord Cormack said that Westminster scrutiny was “all the more important because [of] the fact that the Executive is not in being [and] the Assembly is not meeting”.

Whether by accident or design, Ms Bradley’s strategy is handing still more power to civil servants. If Parliament is only being consulted at the last moment and in circumstances where it is told that it has no realistic choice but to approve legislation, then it is not the democratic master of the civil service, but rather its servant. That is an inversion of centuries of democratic precedent.

There is reason to believe that while Ms Bradley’s first choice is for devolved scrutiny of civil servants, she is entirely comfortable with this latter reality if Stormont cannot be restored.

Ms Bradley has on multiple occasions hinted at her belief that civil servants should be able to take ministerial decisions. Last year, after Belfast’s High Court and Court of Appeal ruled that civil servants could not take ministerial decisions, Mrs Bradley openly expressed her disappointment at the ruling, telling Parliament that it was “not the decision that we wanted to see”. After civil servants decided not to appeal to the Supreme Court, Ms Bradley then legislated to effectively reverse the judgment, allowing what the judges had said was undemocratic.

On Tuesday, she effectively gave Stormont mandarins a blank cheque – approving 70% of next year’s budget without any clarity as to how it should be spent. At present, it seems to only be the restraint of most Stormont mandarins which is preventing them from abusing the free rein which they are being given.

It may be expedient for Ms Bradley not to have to spend days explaining and defending each piece of legislation she brings forward.

But if the current pattern persists it will further undermine what little democratic credibility remains for the basis on which Northern Ireland is being governed.