As the jurisdiction settles listlessly into its second consecutive year without a functional government or a functional legislature, this post briefly explores the background to this latest crisis before exploring some consequent problems for environmental law and the jurisdiction’s ambitious climate change legislation.
The current crisis began in February 2022, when former First Minister Paul Givan MLA resigned his office in accordance with his party (the Democratic Unionist Party or DUP) policy to protest the Ireland/Northern Ireland Protocol. The Protocol (to the UK-EU Withdrawal Agreement) keeps Northern Ireland within the customs and regulatory orbit of the European Union, at least to the extent of the latter’s single market on goods, to prevent a hard border on the island of Ireland. Givan’s resignation triggered the automatic end of term for deputy First Minister Michelle O’Neill MLA, as the First and deputy First Ministers always hold office jointly. When, after the May 2022 Assembly elections the DUP lost its position as the largest party in the Assembly – to Sinn Féin – the DUP refused to nominate a candidate for the deputy First Minister position (to which the party is entitled by its strength in the Assembly) and to take part in the election of the Assembly Speaker. Emergency legislation allowed a caretaker Executive (with its pre-election occupants but without the First and deputy First Ministers) to continue until October 2022, but with no Assembly to hold them to account.
At the expiry of this unsatisfactory arrangement, Northern Ireland returned to a system of ‘governance’ which it had experienced between 2018 and 2020 – empowering senior civil servants to take some key decisions under the guidance (but not direction) of the Secretary of State for Northern Ireland, while the UK Parliament has intervened when strictly necessary. An example was Northern Ireland’s recent budget, which imposed deep cuts to public services in some of the UK’s most deprived areas and earned the ire of almost the entire political spectrum in Northern Ireland. Meanwhile, a package of measures agreed by the UK and the EU dubbed the ‘Windsor Framework’ – designed to mitigate some of the concerns around the existing Protocol – did not succeed in convincing the DUP to end its boycott.
Two Big Problems for the Environment
Whatever one’s opinion is of the political crisis which resulted in the current state of affairs, governing without a government brings with it a host of extremely difficult problems. This is true for every aspect of governance in Northern Ireland, but the focus of this post is on the environment and climate change. Two issues in this field reveal just how systemic the problems are.
First, Northern Ireland has not had fully compliant diesel emissions testing for light vehicles for almost two decades. This may come as an unpleasant surprise, given that such testing is a legal requirement, and vehicle testing fees may increase in the near future. First introduced in 2006 as part of Northern Ireland’s obligations under the EU Roadworthiness Directive, these tests were discontinued 12 weeks later due to concerns about health and safety at testing centres. A lack of investment throughout the years was exacerbated by the instability of devolved government itself, with a three-year interruption between 2017 and 2020. During this time, a brief crisis threatened to bring almost all governance to a complete halt when the Northern Ireland High Court followed by the Northern Ireland Court of Appeal ruled (for different reasons) that departmental Permanent Secretaries were precluded from making decisions in the absence of Ministers. A rushed and heavily criticised statute enacted by the UK Parliament attempted to mitigate the impact of these decisions by giving Northern Ireland departments the thin cover of guidance from the Northern Ireland Secretary in order to make decisions otherwise reserved for devolved Ministers. In the event, the guidance was restrictive enough not to be used for any major investment decisions – certainly not on a scale needed for reintroducing compliant diesel emissions testing.
Following the return of devolved government in January 2020, the worldwide Covid-19 pandemic diverted almost every resource of government to mitigating its impact. In August 2021, then Infrastructure Minister Nichola Mallon MLA initiated a public consultation on a suggestion to move from annual to biennial testing to provide capacity to resume compliant testing for light vehicles. The response to this consultation was largely in favour of biennial testing. But any decision to invest in the infrastructure required to resume fully compliant diesel emissions tests was overtaken by the start of the political crisis and Givan’s resignation (as discussed above). The continued failure has been challenged in the High Court by Friends of the Earth NI, with a substantive hearing of the challenge scheduled for the new term.
Of course, diesel emissions testing is not simply a legal obligation without a broader public good behind it. Air quality in Northern Ireland is far from optimum: air pollution killed over 500 people in 2011 and the nitrogen dioxide levels in the Greater Belfast Area exceeded limits in the EU Air Quality Directive, with the Northern Ireland Department for Agriculture, Environment and Rural Affairs admitting: ‘It had been known for some time that emissions of NOx from (diesel) vehicles were higher than those stated by Euro Standards.’ This makes the failure to fully test diesel emissions for almost two decades a considerable public health and environmental issue.
The second problem is the implementation of Northern Ireland’s ambitious climate change statute, the Climate Change Act (NI) 2022 (hereafter ‘the Act’). Among the more prescriptive of such statutes in the UK or Ireland, I have covered the detail of the statute in a previous post on this blog. The Act contains a number of duties set to specific timescales which present a problem with a non-functional Assembly. Among these duties is the duty to set out carbon budgets (the maximum net emissions account for Northern Ireland) corresponding to defined budgetary periods generally lasting 5 years each. The problem with these budgets is that they are required to be set out in draft affirmative regulations. Draft affirmative regulations are regulations which do not take effect unless a draft is approved by the Assembly, which cannot happen while the Assembly is unable to sit. But the problem with the carbon budget duty is also an urgent one: the first three carbon budgets (for 2023-2027, 2028-2032 and 2033-2037) are required to be made before the end of 2023. Meanwhile, there has been no indication so far that the Assembly will return in time.
But draft affirmative regulations are also the principal type of regulation governing all of the time-sensitive duties under the Act. Among the most important such duties are the duty to make regulations for climate reporting by public bodies and duties to make regulations establishing the Climate Commissioner. While the former duty mandates that the corresponding regulations come into force within 18 months of royal assent, the latter duty requires only that the relevant regulations be laid in draft before the Assembly within 2 years of royal assent. This means that the Assembly needs to sit for the first duty to be discharged, while the act of laying draft regulations does not require the Assembly to sit (only to exist).
Moreover, these regulations address crucial aspects of the Act. Climate reporting is essential to obtain a detailed account of efforts being made to realise the Act’s ambitious net-zero goal and the duty to ensure emissions do not exceed their corresponding carbon budget. This account is also essential to the work of the UK Committee on Climate Change – which has a plethora of reporting duties detailing the progress towards meeting the Act’s emissions targets. Meanwhile, the Climate Commissioner is a key pillar of the oversight mandated by the Act, whose primary function is to oversee and report on the operation of the Act itself.
Given Northern Ireland’s increasingly frequent periods of political turmoil and devolution collapse, one may wonder whether providing for draft affirmative regulations was appropriate. After all, negative resolutions take effect unless negatived by the Assembly, meaning that they are not at all impacted by an empty legislative chamber – quite the contrary. But I would argue that draft affirmative regulations are preferable for the kinds of regulations authorised by the Act – details such as the establishment, powers and financing of an oversight agency are more than mere technical matters and should, on principle, only come into force after debate and scrutiny, rather than effectively being able to fly under the Assembly’s radar.
Indeed, the problem is not the type of regulations (in terms of their being draft affirmative), but the Assembly’s capacity to examine them and determine whether to affirm or negative them on its (hopefully imminent) return. Professor Colin Murray (Newcastle University) and I submitted written evidence in January 2023 to the Northern Ireland Affairs Committee of the House of Commons in its inquiry on the effectiveness of the institutions of the Belfast/Good Friday Agreement 1998. In our evidence, we highlighted (among other things) the serious capacity issues in relation to secondary legislation which faced the Assembly on its return in 2020, after lying empty for 3 years. This is a problem which grows with each day the Assembly remains empty and which it will have to confront immediately upon its return.
The Wider Systemic Problems
In some earlier periods of devolution collapse, the UK Government had taken direct control of Northern Ireland, with the Northern Ireland Secretary in control of the devolved departments and directly accountable in Parliament for the jurisdiction’s governance. But matters took a turn in 2017, when direct rule did not return and instead the Northern Ireland Civil Service was statutorily supercharged with the powers to take certain decisions which would otherwise be solely within the purview of Ministers. This is, at least, the theory of the statutory provisions under which Northern Ireland is presently governed. In practice, senior civil servants in Northern Ireland are required to have regard to guidance which is concerned almost solely with public financial health and preserving the status quo. The bar for permitting civil servants to act is set quite high: the guidance generally only recommends action where the failure to do so would result in a litany of significant detriments, whether to public safety or in relation to civil contingencies. In other words, the guidance asks Northern Ireland’s administrators to plod along, within the confines of a punishing budget (as above). But matters like fully compliant emissions testing and the effective and proper implementation of the Climate Change Act require significant action and capital investment. The latter point is especially important in circumstances where Whitehall has started to frequently remind Stormont to be financially sustainable.
These points demonstrate the UK Government having adopted a curious role in relation to Northern Ireland: simultaneously refusing to take more responsibility for governance and keeping a tight financial leash on the jurisdiction. Little surprise, then, that Whitehall’s popularity in Northern Ireland (as a whole) is practically non-existent.
But of course, it would be a considerable exaggeration to attribute the continued failure to resume compliant diesel emissions testing or the difficulties in implementing the Climate Change Act solely to the current problems around devolution. After all, Northern Ireland experienced an uninterrupted period of devolved government which lasted almost ten full years (May 2007 – January 2017) when the issues around diesel emissions testing could have been solved and climate change legislation enacted and implemented. The point, however, is that systemic issues of this kind, which demonstrate both a failure of public investment and a consequent and wide-ranging impact on public health and the environment, are exacerbated when there is no government which could remedy the situation and no government willing to remedy the situation. What Northern Ireland needs, more urgently than scrutinising past failures, is to prevent future ones.
Anurag Deb is an aspiring barrister, a paralegal at KRW LAW LLP specialising in public law, and a PhD candidate and Law Tutor at Queen's University Belfast. His research, like his practice, is in public law, focussing specifically on the work of parliamentary and legislative counsel in the UK.
This blog post is based on the content of a talk given on 20 April 2023 at the Environmental Law Blog’s 2nd Anniversary Seminar.
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