Accountability of The Empowered Space
This category concerns the extent to which those in power are answerable for the decisions they make. Our indicators include: party political membership, transparency of party funding, independence of oversight bodies, public confidence in the integrity of public life, negotiation and consultation on government plans, oversight of the criminal justice system, the distance between the political class and the citizen, adequacy of arrangements for freedom of information, citizen challenges to authority and empowerment of local communities.
A key avenue for accountability of government to the citizen should be via political-party membership and branch structures. Political parties are however under no legal obligation to publish membership statistics. There is no uniformly recognised definition of membership, nor is there an established method or body to monitor it. Nevertheless, a House of Commons briefing paper issued in August 2016, Membership of UK Political Parties, provided some informed guesswork. Despite the ‘UK’ in the title the paper does not provide any data on Northern Ireland. It does however indicate one very clear historic trend, which has been characteristic of western Europe (Mair, 2006) and is likely also to be present in Northern Ireland, and that is the hollowing out of party structures. In 1970 the combined membership of the Conservative, Labour and Liberal parties was around 5.5 per cent of the electorate. An historic low was reached in 2013 when membership of the three main parties fell to 0.8 per cent. The past two years have seen an unexpected upswing, taking the percentage up to 1.1 per cent, but this is thanks to two developments: the flood of Jeremy Corbyn supporters into the Labour Party, and the rise of the United Kingdom Independence Party as a mass party. Northern Ireland parties have not seen the regeneration of their base. One close observer of the regional political scene, who attends all the party conferences, said that these were becoming increasingly choreographed events for media consumption, with any interventions from the floor controlled by the leadership.
Populist politics is lubricated by patronage—in the 1930s the Ministry of Finance accused the then Stormont premier, James Craig, of having a policy of ‘distributing bones’ to supporters within the Protestant community, offending its Treasury-supervised concern for fiscal prudence (Bew, Gibbon and Patterson, 1995: 59). Under the current devolved regime, concerns about clientelism include the issue of transparency of party funding. Anonymity of party donors has been maintained in Northern Ireland, purportedly out of ‘security’ considerations for the safety of donors—arguments which wear much thinner as the ‘troubles’ recede into history. In 2014, Westminster passed legislation enabling, but not requiring, parties in the region to disclose their donors, initiated by the current Alliance leader, Naomi Long. Alliance meets the requirement of the legislation otherwise applying in Great Britain, to name donors of more than £7,500. The Green Party of Northern Ireland names all those above £500 (and refuses corporate donations). In January 2017 the Northern Ireland secretary, James Brokenshire, wrote to the parties to invite them to say whether they thought the time was right for ‘full transparency’ and Belfast City Council passed a motion in support of transparency for large donations. In response, a spokesperson for Transparency International said:
‘The potential for hidden payments is a serious corruption risk in politics and should end as soon as possible.’ Friends of the Earth has similarly campaigned on this issue for years in Northern Ireland, concerned in particular that development projects raising environmental concerns might be endorsed nevertheless by government because of connections between the developer and a powerful political party.
In terms of the independence of oversight bodies on expenses and parliamentary standards, since 2011 the assembly has had a commissioner of complaints, working to its committee on standards and privileges, which is made up of 11 members selected in the same manner (the d’Hondt rule) as other assembly committees. There are no lay members. This makes the Northern Ireland arrangements quite different from those in Holyrood, Cardiff and Westminster (and, indeed from the official complaints mechanisms concerned with the conduct of other professions such as solicitors, doctors and teachers). The House of Commons committee on standards comprises seven MPs and seven lay members, giving confidence that there is some independent scrutiny of MPs’ behaviour. No such confidence exists in relation to the Northern Ireland Assembly. In fact, in his final 2015-16 report, the outgoing commissioner, Douglas Bain, attributed a drop-off in complaints (from 54 the previous year to 14) in part to the ‘perception that members are marking their own homework’. Ninety per cent of complaints were rejected that particular year.
The commissioner also lamented that the work of the committee had become highly politicised, with members deciding on complaints in line with party affiliation, and on occasion invoking the PoC mechanism to frustrate any attempt to sanction breaches of the code of conduct. Thus, in 2014 the SDLP supported an SF petition as a result of which no sanction was imposed on the latter’s MLA Gerry Kelly, for conduct which the commissioner had found to be in breach of the code. A subsequent attempt to impose a sanction on Sammy Wilson MLA in 2015 was blocked by a DUP PoC, despite the commissioner having found Wilson similarly in breach. The then chair of the committee, the DUP MLA Jimmy Spratt, and Wilson made derogatory personal comments about the commissioner. Far from offering reassurance that standards are upheld, the affair seemed, in the words of the speaker, to
‘have done significant damage to the reputation of the assembly’.
In deference to the public hostility created by these controversies, the Fresh Start agreement included in an appendix an explicit commitment to limit the scope for the use of PoCs in the hearing of complaints. In addition, the assembly accepted a new code of conduct and a new general-procedures direction drafted by the outgoing commissioner. But it rejected his strong recommendation for greater transparency. His proposal, which would have brought the assembly into line with Westminster and other legislatures, was that the names of the person making the complaint and the minister against whom the complaint was made should be published on the assembly website, along with a very brief description of the general nature of the complaint. The assembly voted instead for secrecy.
These controversies and the constant wrangling at Stormont have led to an erosion of public confidence in the integrity of political life. A survey published in the Belfast Telegraph in December 2016 showed that politicians had the lowest trust rating in a list of 13 professions. The most trusted were doctors, nurses and teachers, with ratings between 72 and 79 per cent. Politicians generally were given a rating of 33 per cent, but Northern Ireland Assembly politicians were rated lowest of all, at 26 per cent. This finding is consistent with other surveys. The 2014 Northern Ireland Life and Times Survey found that two thirds of respondents were dissatisfied with the region’s politicians: 21 per cent expressed themselves ‘fairly dissatisfied’ while 45 per cent were ‘very dissatisfied’.
The Programme for Government (PfG) of the devolved executive, a substantial, annually iterated document with a framing narrative during the first period of devolution, became attenuated to a multi-annual list of actions when devolution was renewed with the DUP and SF at the helm in 2007. Ministerial anxiety about the public image of the assembly’s ‘delivery’ thus grew in the second, post-2011 term, raising questions about the adequacy of PfG negotiation and consultation. Into the breach stepped the Carnegie Trust, with a project to foster a new approach to the PfG, focusing on real-world outcomes rather than merely the outputs of government departments—an established modus operandi for the Scottish devolved government, which does not even have separate departments as such. Not only that, but in the process the priority of the government would shift from, as hitherto, ‘the economy’ (conceived in conventional terms) to social ‘wellbeing’.
The subsequent process was, however, heavily influenced by a former US maths teacher called Mark Friedman, who runs an institute he founded in Santa Fé promoting his (trademarked) notion of ‘results- [or outcomes-]based accountability’. This essentially applies the notion of the ‘principal-agent dilemma’ found in American business thinking on ‘shareholder value’ to government, with the ‘principal’ changing from shareholder to public and the ‘agent’ from company management to senior public officials. By committing designated officials to deliver particular outcomes, the PfG thus envisages they be rendered accountable for success or failure. What is missing in this is any consideration of the policies necessary for any social outcome to be realised, and the draft PfG agreed after the 2015 election by the DUP and SF thus contains merely bullet-point lists of actions under each outcome heading, falling some way short of the policy levers required. An economic strategy, a social strategy and an investment strategy are, separately, to follow. An insider to the Carnegie process dismissed it as ‘a thin version’ of what had been envisaged.
An issue of View online magazine in June 2016 contained an interview with the Newcastle University academic Dr Toby Lowe who described himself as ‘shocked’ to discover how Stormont had bought the outcomes-based accountability approach, despite the weak support for it in academic studies, as well as an excoriating review of Friedman’s book on the subject, placing it in the superficial tradition of US can-do self-help guides. A critique by the veteran public-management expert at Ulster University, Prof Derek Birrell, described the Friedman-driven approach as ‘an ill-informed exercise’ producing a plan ‘very light on policies’. A former senior civil servant said that the quality of the service at senior level had deteriorated over the years—making it vulnerable to such consultancy-led fads, as he described it—owing to formulaic recruitment processes (compliant with fair-employment legislation) and the long-term UK-wide outworking of the 1968 Fulton review into the civil service, which had elevated the generalist amateur over the technical expert. This assessment was borne out by the evidence of the senior civil servant Andrew McCormick to the assembly public accounts committee at meetings on 28 September 2016 and 18 January 2017, when it was trying to get to the bottom of the RHI scandal: there simply wasn’t enough technical expertise to allow the civil servants to understand the flaws which contributed to the overspend. Reviewing the sequence of events at the end of January, the journalist central to exposing the scandal, Sam McBride of the News Letter, wrote that the performance of the civil service was
‘evidence of a Stormont system which cannot satisfactorily perform what are the basic tasks of government’.
In terms of oversight of the criminal-justice system, Northern Ireland has a strong regulatory framework designed to provide both transparency and accountability. The PSNI is first of all accountable to the Northern Ireland Policing Board, made up of ten political appointees and nine independent members, the latter appointed through an open-application system administered by the Department of Justice. The board is responsible for overall policing strategy and oversight of police performance. In addition, it retains the services of a human-rights lawyer to ensure human-rights standards are observed in policing practice. The performance of the PSNI is also scrutinised each year by Her Majesty’s Inspectorate of Constabulary and this allows comparisons to be made with police forces across the UK. In addition, special inquiries can be set up to investigate particular areas of concern. For instance, in 2016 Operation Kenova was established to investigate the activities of the double agent known as Stakeknife. This is projected to run for five years at a cost estimated at some £50 million.
Complaints against the police are heard by the Office of the Police Ombudsman. This is an independent body which under its first ombudsman in 2001-08 achieved a reputation for ‘speaking truth to power’ through a series of robust reports. The Public Prosecution Service is also an independent body which makes all its prosecution decisions independently of the police. The post of prisoner ombudsman was established in 2005 and is completely independent of the Northern Ireland Prison Service. The prisoner ombudsman, who is appointed by the minister for justice, is empowered to hear all complaints from prisoners dissatisfied by the way in which their complaints have been dealt with internally. The monitoring and oversight of all aspects of the criminal-justice system (apart from the judiciary) is provided by the Criminal Justice Inspectorate, the only integrated scrutiny service in the UK. This allows for a degree of ‘joined-upness’ on issues where inter-organisational good practice has developed, such as domestic violence, youth offending and child sexual abuse.
Northern Ireland is a small place but that does not prevent a large disconnect being manifest between Stormont and the public sphere. This distance between the political class and the citizen is clearly an important area of concern. It is of course not confined to Northern Ireland: across the developed world there is a perceived crisis of representation, facilitating the rise of populist politics, as discussed in the literature review. But Northern Ireland has three additional features that make for alienation: politicians are mainly defined by sectarian affiliation, which immediately distances them from those, from the ‘other’ community, who do not feel represented by them; there is still a tinge of paramilitarism in the political system, which adds a dark and intimidating element; and, thirdly, both these aspects work to make politics in the region even more male-dominated than elsewhere in Europe. Hence the comments made on this issue in our ‘Is government delivering?’ discussion group. Typical were:
‘The system is so poisonous people don’t engage’, ‘We’re not getting the right people into power’ and ‘Politicians and paramilitaries make it very hard to operate at the political level’. One interviewee said: ‘There’s a massive disconnect … but in Northern Ireland it is even more tribalistic.’
Accountability depends heavily on the willingness of officialdom to divulge information, raising the question of the adequacy of arrangements for freedom of information (FoI) and assembly questions. On the former, the Northern Ireland administration treats this as a UK-wide issue which does not need special scrutiny. On the latter, there have been persistent complaints about the time taken for questions to be answered by ministers. In the year from July 2013 to June 2014, of 420 assembly questions put to the then OFMDFM, 329 (78 per cent) were answered after the ten-day deadline for so doing. This information itself only emerged because of an assembly question seeking it from the Green Party leader, Steven Agnew. In a Kafkaesque twist, the answer he received took nearly eight months to appear. Yet that is not unusual: in August 2014 it emerged that the OFMDFM had failed to respond properly to a letter sent eight months earlier by Northern Ireland's top judge, the lord chief justice, Declan Morgan. What’s more, the situation is getting worse: in 2006 over 93 per cent of responses were processed within the legal maximum time, but a report by the News Letter showed that by 2015 this had dropped to 73 per cent. The chief offender was the OFMDFM and in 2014 the Information Commissioner’s Office took the rare step of placing it under formal monitoring because of its poor performance.
At the heart in Northern Ireland of citizen challenges to authority is the public service ombudsman. Initially a product of the civil-rights movement, her office received 170 written complaints in 2015-16, the bulk of them (115) against government departments with most (56 per cent) succeeding. Since 2004, some 70 complaints have been made against elected officials specifically. Resort to judicial review of executive action grew under direct rule but has not diminished with devolution. The office takes a sanguine view of this challenging and litigating, perceiving it as a healthy lack of deference and a hallmark of a functioning democracy. The office itself enjoys wide acceptance and has never faced any political threat to its independence—unlike in Poland and one African state, apparently, it does not have to work under armed guard.
Citizen challenges to authority are also played out on the streets and Northern Ireland, famously or infamously, is associated with large-scale public protest. During the peak of the loyalist flag protest, from December 2012 to March 2013, the PSNI recorded 2,980 ‘occurrences’, with 84 ‘seats of protest’ on one night alone. During the week of 17-23 December, the police estimate, there were 10,000 people out on protests of one kind or another (Nolan et al, 2014). Flags and parades tend to be the main triggers for street demonstrations, and in publicity terms at least they crowd out other forms of protest. Protests on woodland paths do not have the same sort of visibility, but when an oil drilling operation began at Woodburn Forest, near Carrickfergus in Co Antrim, a sustained campaign of protest was organised by Friends of the Earth. The oil company Infrastata eventually called off the drill for lack of results, but the regional director of FoE, James Orr, said:
‘The democratic meltdown that allowed exploratory drilling in Woodburn can never be repeated.’
While the level of citizen challenge to authority in Northern Ireland may be healthy, there is no legislative framework to empower local communities. This contrasts with the situation in Scotland where community empowerment is more than just a slogan. In 2015 the Scottish Parliament passed the Community Empowerment (Scotland) Act. This provides a range of new powers for communities to get involved in the ownership of land and other assets, in decision-making and in securing better outcomes through public services. These powers include a community right to buy, as well as requests for asset transfer and participation. Tackling inequalities is a priority and Community Planning Partnerships (CPPs) will produce locality plans for areas experiencing particular disadvantage. A follow-up piece of legislation, the Land Reform (Scotland) Act 2016, provides for more information to be made available about land ownership and places a duty on Scottish ministers to produce a ‘land rights and responsibilities’ statement. The intended effect is to give communities a say in the transfer of land ownership.
Taken in the round, it is clear there are a range of robust institutions in Northern Ireland calling the system to account—particularly the historically highly sensitive criminal-justice system—organised on transparent, defensible principles. But this network of ombudspeople and inspectors is polluted by a political culture of personalism and brokerage, favouring informal transactions away from the spotlight. Meanwhile, the inability of that political culture to stimulate impersonal policy development through deliberation has left officials clutching at the flimsy straw of ‘results-based accountability’—in the vain hope that they could then perhaps at least be made accountable to each other.