The government must decide whether to keep ignoring Northern Ireland

In the absence of devolution, a court ruling means that the government can no longer leave things to civil servants. What now?

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How should one govern Northern Ireland? If your name is Karen Bradley, you do it on a nod, a wink, and then a shrug. With Stormont into its 17th month without a devolved executive, civil servants are still being left to keep the show on the road.

Only there is no show. This is precisely the problem: with no government, and no immediate prospect of Sinn Fein and the DUP brokering a deal to restore one, the government’s preferred alternative has been to do next to nothing while indulging the tenuous fiction that devolution is coming back.

In the absence of a strategy, the Northern Ireland Office has set budgets, recited platitudes and wrung its hands. In the absence of ministerial direction from Stormont or Westminster, Northern Irish civil servants have done the bare minimum that this dysfunctional arrangement allows them to.

This abject drift should not be allowed to continue: the health service, education system, and survivors of institutional abuse, to name but three of a great many issues, desperately need attention that can only be given by ministers. Whether the issues are devolved – as Bradley frequently protests they are – is not the point. The government's hands are not tied, as ministers often pretend they are. They can legislate to untie them whenever they like. That they are not doing so is a conscious choice.

Distinct from that moral argument, however, is the question of whether it can be allowed to continue. The courts have effectively said no: both Belfast’s High Court and the Court of Appeal have ruled that civil servants were acting unlawfully when they stepped into the political vacuum and approved planning permission for a £240m incinerator in Co Antrim last year.

The civil service said yesterday that it would not appeal the ruling to the Supreme Court. Now the Northern Ireland Secretary faces, as she does with depressing regularity, an urgent political reckoning. The current constitutional settlement – or, rather, the conscious decision not to have one – is legally unsustainable. Civil servants cannot act as ministers. Something must be done. So what does she do?

History would suggest that the answer is nothing. Faced with calls to introduce direct rule, and to legislate on issues like equal marriage and abortion, the government has stuck resolutely to its essentially non-interventionist policy on Northern Ireland. There is a piquant irony here: despite the popular myth that Arlene Foster writes Theresa May’s script as far as the province is concerned, doing so has meant ignoring the DUP.

The speech the Prime Minister gave in Belfast earlier this month was widely interpreted as catnip to her parliamentary allies. On Brexit, it was – she repeated her pledge not to impose a border in the Irish Sea – but on the small issue of how exactly Northern Ireland should be governed, she offered nothing but the same wearying platitudes about restoring Stormont someday.

When parliament returns, however, May and Bradley will have to offer something more than vague statements of aspiration. They face two choices: appoint ministers to run things from Westminster, or let civil servants stagger on along the narrow path that the law allows, with the occasional act of what DUP MPs disparagingly refer to as “a la carte” direct rule to maintain a bare minimum of functionality.

Neither suits a government, or legislative timetable, that is choked by the demands of Brexit. Both mean gumming up the parliamentary agenda at the worst possible time. The latter arguably means ministers will continue to derelict their duty to ensure good government in Northern Ireland. That Bradley tells the Irish News today that she will do only “what needs to be done” implies that is the government's choice. But even if it chooses something more substantial, the backlog of knotty issues that have been ignored means its problems are only just beginning.

Patrick Maguire is the New Statesman's political correspondent.