Abstract
Do consociations suffer an immobilism problem and under what conditions? In this article, I contrast two perspectives: consociation’s propensity to ‘get things done’ versus its tendency to ‘kick the can down the road’. Employing a case-study approach to the Northern Ireland Assembly, I present a threefold measurement of consociation’s decision load capacity, assessing the issues which receive legislative assent, those blocked by formal vetoes in the legislative process, and those issues which do not make it onto the legislative agenda at all, whether due to non-decision-making or to outsourcing to actors outside the system. Consociations, I argue, are prone to deliver a sparse legislative agenda, characterised by the resolution of ‘safe issues’, and the evasion of more contentious issues.
Introduction
Consociationalism is a system of government committed to the inclusion of all major ethnopolitical actors in key political decision-making positions in divided places and has been adopted in countries as diverse as Burundi, Bosnia and Herzegovina, Belgium, Iraq, Lebanon, Northern Ireland, North Macedonia, Switzerland, South Sudan, and South Tyrol. It continues to be recommended as a strategy for ending protracted conflict in some of the world’s most divided places. Yet, recent practice has begun to call ‘consociation as political prescription’ (McGarry and O’Leary, 2007) into question. From government formation gridlocks to legislative logjams to complete government standstills, the contemporary consociational record is regularly marked by crisis. This includes the 3-year suspension of the power-sharing institutions in Northern Ireland in the wake of the Brexit referendum and a record-breaking 653 days of coalition talks in Belgium to sustained mass street protests in Lebanon and Iraq calling for the end of the sectarian regimes and the superseding of several consociational aspects of the constitution in Burundi through extra-constitutional means. This is suggestive of, as Donald Horowitz (2014) describes it, an ‘immobilism problem’ in consociations.
How frequently are consociations beset by immobilism? Under what conditions? And on which issues? There is ongoing debate on this topic, with some scholars acknowledging a proneness to immobilism and others seeing it as an intrinsic feature. Horowitz (2014: 15) anticipates that while ‘stalemate, inability to get things done, and serious immobilism’ are the expected outcomes in consociations, ‘no one seems able to break the shackles of immobilism’. Timothy Sisk and Christoph Stefes (2005: 317) write about the ‘immobilism it [consociationalism] inevitably creates’, framing it as a form of ‘mutual hostage-taking’. Melani Cammett and Edmund Malesky argue that power-sharing is likely to produce legislative stalemate and deep disagreements about how the national pie should be divided. With so many in-built opportunities to veto governmental decisions, the system encourages inefficiency and rigidity, leading to poor governance and inferior public goods provision (Cammett and Malesky, 2012: 986).
Even Arend Lijphart (1969: 219) acknowledges that ‘decision-making that entails accommodation among all subcultures is a difficult process, and consociational democracies are always threatened by a degree of immobilism’. Case-based research shares Lijphart’s contingent view on the immobilism problem. In the case of Lebanon, Hannes Baumann (2024) shows how the consociational state can vacillate between moments of agility and immobilism. In analysing the claim that vetoes are prone to excessive use and abuse, Allison McCulloch and Stef Vandeginste (2019) find that vetoes do not always generate legislative gridlock; in some instances, they are hardly used at all. The ‘immobilism problem’ is thus worthy of further empirical investigation.
In addition to the empirical question, there is also an issue of conceptualisation (Fakhoury and McCulloch, 2023). The literature is characterised by a variety of terms used to capture what may amount to the same phenomenon. Some authors write about ‘gridlock’ or ‘deadlock’, others describe the same state of affairs as ‘stalemate’ or ‘paralysis’ (Bahtić-Kunrath, 2011; Bochsler and Juon, 2021; Cammett and Malesky, 2012; O’Dowd, 2014; Salloukh, 2024; Zahar, 2005). John Nagle (2020) coins the term ‘zombie power-sharing’ to describe this phenomenon. While these terms all suggest something about the pace of decision-making, that is, it is slow and sluggish, if not sometimes at a complete standstill, they do not effectively explore the conditions under which it occurs nor the issue-areas most prone to gridlock. The challenge of defining immobilism beyond a loose conception of ‘an inability to get things done’ remains.
This article seeks to make two contributions. First, it develops a framework for assessing the extent of immobilism in consociations, with a specific focus on the legislative agenda. What does it mean to ‘get things done’ in a consociation? I propose that by assessing the combination of those issues which receive legislative assent, those which are subject to veto powers, and those which do not make it into the legislative realm at all can offer a more robust assessment of a consociation’s decision-making capacity and its proneness to immobilism. States do more than just make and pass legislation, but the legislative record is an important site of investigation, above all because it tells us something both about ‘the success of that system in treating public problems’ (Charles Jones, quote in Binder, 2003: 35) and, about citizen perceptions that it can do so. As part of this approach, I also assess the consequences of moments of immobilism by considering what happens to evaded decisions, highlighting the tendency to ‘outsource’ difficult or ‘wicked’ issues to other political actors.
Second, employing a case study approach, the article tests the ‘immobilism problem’ thesis in the case of Northern Ireland through an examination of the system’s decision load capacity. Once considered ‘the brightest star in the consociational universe’, the region has encountered a series of shocks – not least of all, Brexit – which have thrown open the question of this status (Guelke, 2021; Taylor, 2009: 7). Nonetheless, it retains some favourable factors. It arrived at power-sharing through an inclusive peace process, the outcome of which was confirmed by referendum, suggesting an initial baseline of process legitimacy. It has also turned to the British and Irish governments to mediate moments of impasse (on how effectively these governments perform this role, see Walsh, 2024). If the Northern Irish government can ‘get things done’, then it may serve to challenge the ‘immobilism problem’ (Horowitz, 2014). If it cannot, then it may serve to call into question ‘consociation as political prescription’ (McGarry and O’Leary, 2007).
In what follows, I first consider some of the factors that might account for consociation’s proneness to immobilism as well as some of the consequences. From there, I present an analytical framework for assessing immobilism in the legislative arena. How do consociations fare in terms of their legislative scope? On what issues do they make decisions? Are there obvious ‘no-go’ areas on which parties opt to defer decision-making common across cases? I then apply the framework to the work of the Northern Ireland Assembly, finding that the ability to ‘get things done’ is contingent on the specific policy area under consideration. Using Horowitz’s (2014: 12) description of what he sees as the possible consequences of consociationalism – ‘stalemate, inability to get things done, and serious immobilism’ – as a baseline, I suggest that consociations are prone to deliver a sparse legislative agenda, characterised by the resolution of ‘safe issues’, and the evasion of more contentious issues. In the conclusion, I assess the implications of these findings for consociation as political prescription and outline some areas for future research.
Proneness to immobilism
A consociation typically consists of four concurrently adopted institutions: a grand coalition in government (executive power-sharing), proportionality, group autonomy, and mutual vetoes (Lijphart, 1977). The impetus for sharing power is that it is thought to provide the security and self-sufficiency to the different segments of a divided society to jointly address issues of common concern, encouraging them to govern with a ‘spirit of accommodation’ (Lijphart, 1968). In the new wave post-conflict cases, however, consociationalism is likely to face two constraining features that might induce a course towards immobilism: first, consociation is rarely a first preference for either majorities or minorities (Horowitz, 2014), meaning that political actors often only share power reluctantly. This kind of ‘forced marriage’ means alongside the presence of veto players, government partners will lack a shared political vision (Durac and Fakhoury, 2023). Second, state capacity is especially weak in the immediate post-war period, challenging the state’s ability to meet citizen needs (Dagher, 2018). Moreover, it is often thought that democracies face a trade-off between inclusion and the efficiency of decision-making processes, or between ‘the quality and effectiveness of democratic government’ (Lijphart, 2012: 255). As Lijphart describes it, there is the implicit assumption that a democracy can either offer accurate societal representation and minority protections or it can offer decisive and effective policy-making but it cannot do both. If faced with such a trade-off, consociations will prioritise inclusion over efficiency, potentially setting a course towards immobilism. After all, a degree of slowness is intentionally built into the system. Bearing in mind that gridlock is not the sole domain of any single institutional design, what specific causal role might consociation play in the promotion of political immobilism?
We see this, first, in executive power-sharing, which brings together parties divided not only by ethnicity but also by ideology. Consociational theory assumes that inclusion in government incentivises parties to promote the stability of the system. Consider Lijphart’s (1977: 100) notion of the self-negating prediction: despite their deep differences and mutual distrust, political elites will agree to cooperate and share power with one another, knowing that the failure to do so may result in a worse fate for all. Under such conditions, it is anticipated that statesmanship will prevail and that political leaders will conduct themselves with forbearance, with their interactions intended to bolster democratic stability. Beyond statesmanship, there is a pragmatic impetus to commit to power-sharing: once parties take up their executive posts, they are incentivised to support the smooth functioning of the system; to exit cabinet entails a reduction in their group’s share of power and their ability to protect group interests as well as the potential reallocation of that power to their rivals (McGarry and O’Leary, 2006: 61).
Rather than coming together in joint decision-making efforts for the good of all, grand coalitions may instead encourage decision-evasion (i.e. where power-sharing partners opt to leave decision-making on specific issues to the side). There are several reasons why this might occur. First, as parties come to power based on support from a single ethnic group, they will be tempted to govern in the name of that group only, rather than for all citizens in society. They will tend to see all political issues in ethnic terms and this may pit them against their power-sharing partners who, as well, will be tempted to ethnicise the legislative agenda, making it difficult to find common ground (Fakhoury and McCulloch, 2023: 4). Second, even when they do agree on ethnic issues, they may still be divided ideologically on classic left-right issues, such as social welfare and other public service provisions, and on moral/cultural issues, such as abortion or LGBTQ+ rights. This ideological divergence will further challenge the ability to reach common ground. For example, the 7-party ‘Vivaldi coalition’ in Belgium – formed in 2021 after a record-breaking 653 days of coalition negotiations – spans the ideological spectrum, with socialists, liberals, Christian democrats, and Greens all represented in cabinet. In Northern Ireland, government has been jointly helmed by the Democratic Unionist Party (DUP), a socially conservative right-wing party, and Sinn Féin, which espouses a socialist platform.
Third, in addition to these ethnopolitical and ideological divisions, parties may also be unhappy with the share of power they have been allocated either vis-à-vis the ‘other side’ or to other parties from within their own community. Indeed, they may be unhappy with the need to share power at all. As such, they may attempt to outmanoeuvre their power-sharing partners by outbidding parties from their own community or by trying to undermine the power-sharing provisions themselves. The presidency in Bosnia and Herzegovina is shared by three different constituent peoples and is also very often represented by three different ideological perspectives. For example, between 2018 and 2022, the three positions were taken up, respectively, by conservative, social democratic, and fiscally centrist but socially conservative parties. As importantly, the three members are divided over the very contours of the state, with some Bosniak parties preferring a majoritarian conception of democracy without power-sharing and some Bosnian Serb parties wishing to extricate the Republika Srpska from the common state-level institutions.
If consensus between reluctant and disparate partners is a requirement to move decisions forward, then actual political decisions may be rare. This is where the second possible source of gridlock – veto power – comes in. Lijphart (1977: 37) suggests that vetoes can have a moderating influence, as minorities will avoid regularly using their veto power knowing such rules can also be turned against their own interests. The empirical record, however, is mixed. Veto power is rarely used in, for example, Belgium, South Tyrol, North Macedonia, and Burundi, while in other places, vetoes are used with far greater frequency, as in Bosnia and Herzegovina and Northern Ireland, jeopardising cooperation and possibly paralysing the legislative agenda. It is for this latter reason that Timothy Sisk (2003: 140) likens vetoes to ‘political blackmail’. In addition to directly curtailing the legislative agenda, vetoes can also have an indirect effect by closing off debate that might have supported resolution (Murtagh, 2021). The shadow of the veto means that some issues may not even make it onto the legislative agenda in the first place. Instead, parties may make use of any non-decision-making power they possess to suppress ‘a latent or manifest challenge to the values or interests of the decision-maker’ (Bachrach and Baratz, 1962: 949). Especially fraught issues are unlikely to get to the stage of proposed legislation at all, having been shut down at earlier stages, either formally when parties work in a spirit of accommodation or informally, by circumventing formal rules.
A sparse legislative agenda – with more kept off it than on – can have mixed consequences for consociational performance. That is, sometimes decision-evasion can undermine functionality while at others, it may work to avoid immobilism. On one hand, keeping to relatively ‘safe’ issues can help to consolidate power-sharing gains, particularly in the immediate post-conflict period. Overloading the legislative agenda in the early going, especially with issues known to be flashpoints between communities, may portend failure with decision-making of any kind brought to a standstill. In such a context, it may make sense to focus on those areas where common ground is achievable and to temporarily set aside issues fraught with contention. Doing so can have a positive effect on state legitimacy: as parties make progress and cooperate on ‘safe issues’ it not only presents an image of getting things done (performance legitimacy) but also sends a message that power-sharing can deliver (process legitimacy). 1
Yet, decision-evasion can have perverse outcomes, turning Lijphart’s notion of ‘a relatively low total load on the decision-making apparatus’ on its head. Having made the original decision not to decide, power-sharing partners become adjusted to the sparse legislative agenda and are incentivised to not make decisions they consider ‘unsafe’. As non-decisions begin to mount, quality of life suffers, and citizens become increasingly disenchanted with the government’s inability to get things done (McEvoy, 2017). This frustration with performance is likely to impact perceptions of process legitimacy.
What happens to issues evaded by the power-sharing partners? Parties may wish that contentious issues resolve themselves or fall from the public’s list of priorities, but this is seldom the case. Rather than dissipating, such ‘wicked problems’ pile up, compounding one another, as protracted crises in Lebanon suggest. If formal power-sharing channels close off resolution, parties might turn to more informal means. Sometimes, this takes the form of ad hoc and mediated all-party talks, where parties attempt to negotiate a compromise outside the bounds of normal parliamentary procedure, as has been the case in Northern Ireland and Bosnia and Herzegovina. In many cases, however, the parties may opt to outsource the decision-making responsibility to another authoritative body. In extreme form, this might mean there are ‘hidden possessors of power who control the agenda’ (O’Leary, 2013: 1) behind the scenes. This came to pass in Burundi, especially so during Pierre Nkurunziza’s third term as president (2015–2020). Important decisions were taken neither by parliament nor by the government, but by the so-called ‘regime’, increasingly composed of a group of (exclusively) Hutu generals (McCulloch and Vandeginste, 2019). Alongside institutional rules on party formation, which served to spread minority representation across different parties, minority veto power has been curtailed. Some of the consociational provisions adopted as part of the Arusha peace process have also subsequently been rolled back in a new constitution, the adoption of which bypassed parliament outside the established rules (Raffoul and Ndayiragije, 2020).
In some cases, the ‘hidden possessors of power’ are integral members of the power-sharing government, though their legitimacy derives not from their participation in government but from their opposition to, and circumvention of, it. This has been the experience in Lebanon, where, according to Carmen Geha (2019: 130), ‘the Lebanese zu’ama have designed and maintained a web of clientelistic networks through the provision of welfare and have systematically appropriated public and state institutions to serve their own interests and constituencies’. Consider, for example, Hezbollah’s ability to meet the basic needs of its constituency – social and health services, vocational training, reconstruction assistance – ‘in response to the vacuum left behind by the state’ (Dagher, 2018: 96). An illustrative example is the party’s ability, in 2021, to deliver more than 1 million gallons of diesel, imported into the country via Iran and Syria, amid ongoing fuel and gas shortages brought about by a devastating financial crisis. As described in the New York Times, the party could present itself as ‘a national savior, stepping in where the Lebanese government and its Western backers had failed’. 2 This is despite the fact that the party has been a key partner in the power-sharing government overseeing financial collapse. The party enhances its performance legitimacy, doing so at the expense of the system’s process legitimacy.
In other situations, it may be external actors who step in when the power-sharing partners reach a stalemate. This has been a frequent role played by the Office of the High Representative in Bosnia and Herzegovina. Early on, the High Representative made executive decisions on a host of issues, including state symbols such as the country’s flag, its national anthem, common currency, passports and licence plates. And while this tendency to impose decisions on the power-sharing partners declined over time, one of Valentin Inzko’s last acts before stepping down as High Representative in 2021 was to ban genocide denial in the country, a move meant to push back against divisive rhetoric and historical revisionism propagated by some of the political parties. Yet, the move has not been well received in Republika Srpska, where politicians have attempted to legislate the ‘non-application of Inzko’s law’, 3 seeing it as a manifestation of the state’s illegitimacy. The decision of the new High Representative, Christian Schmidt, to change key features of the electoral system on election day produced similar backlash. 4 In Northern Ireland, periodic suspension of the power-sharing institutions has seen some decision-making authority revert to Westminster. These periods have been utilised to push forward legislation on issues evaded by the power-sharing partners due to stalemate, including abortion rights and marriage equality (Murtagh, 2021). At other times, the parties have willingly relinquished their decision-making authority to Westminster, as with austerity welfare reform measures. 5
While outsourcing may help to ‘get things done’ when the power-sharing partners are at loggerheads, it also contains perverse incentives. First, it relieves parties of the opportunity to (re)learn consensual and cooperative behaviour, which is, after all, a central purpose of consociation. It also means that they do not have to shift from their original position and can maintain hardline stances, letting outside actors take the hit for what might be unpopular opinions with their base. Thus, these interventions can have an immediate dividend – helping to shore up peace and stability – but they can also create a ‘vicious circle’ where, as Adis Merdzanovic argues, international involvement is continually ‘justified by claiming that consociationalism produces deadlocks while being structurally incapable of autonomously overcoming them’. This ‘leads to domestic dependency, incapacitating local politicians from taking political ownership’ (Merdzanovic, 2017: 23). A second issue is that outsourcing potentially creates ‘new objects of legitimacy’ (Dagher, 2018). Service delivery is often a first point of contact with the state and is an essential first way to rebuild relations with citizens after war. Yet, ‘performance legitimacy is earned by the object that provides for the welfare of citizens’ (Dagher, 2018: 91), and there is no guarantee that it will be the state that will accrue this legitimacy. Indeed, this can be captured by non-state actors, including political parties, NGOs, and international agencies, serving to lessen the expectation that citizens can rely on the state. Outsourcing contentious decisions may lessen the decision load on the power-sharing partners, but doing so has consequences for system legitimacy.
Consociational institutions, like executive power-sharing and mutual vetoes are intended to slow the decision-making process to ensure all voices are heard, minority rights are protected, and that some degree of consensus is available. Beyond slowing the pace of decision-making, these features might also limit agenda diversity and increase the temptation towards decision-evasion. While decision-evasion may prove helpful in specific issue-based instances, it can spiral into a pattern of generalised policy paralysis, manifesting not only in the outsourcing of decisions but in a wider immobilism problem.
How should immobilism in consociations be measured?
As suggested above, a loose conception of immobilism as the ‘inability to get things done’ prevails. Yet, which ‘things’ do we have in mind? Here, I propose that a first place to start is the legislative arena. In developing a framework for the analysis of immobilism in consociations, I was inspired, first, by Sarah Binder’s work on the US Congress. She calculates gridlock scores by generating ‘a list of agenda items each Congress between 1947 and 2000 and determin[ing] whether or not each agenda item was resolved by enactment of legislation in that Congress’ (Binder, 2003: 135). She then compares the numerator (number of failed agenda items per Congress) with the denominator (all agenda items per Congress) (Binder, 2003: 40), finding an upward trend towards stalemate in Congress, with gridlock on salient issues in the 1990s double what it was in the 1940s. She singles out the first term of Bill Clinton’s presidency as particularly deadlocked; indeed, the 105th Congress was noted for the ‘barrenness of the legislative record’. 6 Gridlock, she suggests ‘is best viewed as the share of salient issues on the nation’s agenda that is left in limbo at the close of a Congress’ (Binder, 2003: 35).
Mounir Mahmalat also studies the legislative record, seeing it as ‘a measure of political attention’, with a specific focus on Lebanon. Based on an innovative dataset of primary and secondary legislation between 1950 and 2016, Mahmalat (2020: 419) shows how the Lebanese legislative agenda experiences periods of ebb and flow: legislative activity stalled during the civil war, experienced an uptick in the post-war period, reaching a height of activity in 2006, after which legislative activity stalled again, before increasing again between 2011 and 2016. Mahmalat’s dataset also analyzes agenda diversity, that is, which issue-areas attract legislative attention, and shows that financial matters, taxation, property and real estate, and international affairs attract the highest levels of attention whereas bread and butter matters received less attention. His approach is geared towards agenda-setting and understanding the ‘temporal dynamics of political attention across issues’ (Mahmalat, 2020: 419).
The approach proffered here combines Binder’s focus on the quantity of legislation passed in a given legislative session with Mahmalat’s consideration of agenda diversity. It then also incorporates the enactment of veto rights, a key consociational device. Specifically, it asks: which issues receive legislative assent? Which issues are vetoed by parties in the legislative process? Which issues are subject to non-decision? The first question can be assessed by considering the width and depth of the legislative agenda. Legislative depth refers to the total number of laws passed, whereas legislative width considers the extent and variety of issue areas on which legislation is passed (e.g. agenda diversity). As some consociations operate on a regional basis – such as Northern Ireland – considerations of legislative depth and width should be assessed alongside the areas for which the legislature has decision-making authority. The second question can be answered by a focus on legislative veto points, an important consociational feature. As discussed above, while vetoes are often singled out as a primary source of immobilism, their track record is more variable than this assumes. The third question can be studied by assessing those issues which garner public attention, but which do not enter onto the legislative agenda. Binder, for example, utilises New York Times editorials, coding those which mention, advocated for, or opposed legislative consideration. This threefold approach analyzes legislative capacity and agenda diversity and determines the balance between decision-making and decision-evasion. If ‘getting things done’ is the inverse of immobilism, then what ‘things’ should be on the agenda? In post-conflict settings, this would include not only the ‘most visible and common outputs, such as health, water, sanitation, electricity, education, traffic, roads, security, and justice’ but also more substantive issues such as ‘citizens’ demands for historical justice, the addressing of unequal and inequitable distribution of services, the mediation of grievances and conflicts’ (Dagher, 2018: 91–92).
Where immobilism and decision-evasion obtain, we can anticipate a sparse legislative agenda, that is, we can infer that only a small number of legislative acts will receive promulgation. Moreover, we might also anticipate that the scope of legislation will be contained to seemingly ‘safe issues’ on which the parties are prepared to reach agreement. The risk is that this may give way to ‘generalized policy paralysis’, whereby ‘lack of progress does not merely hamper progress in one policy field but entails broad and generalized blockages of the wider decision-making process’ (Jans, 2001: 44). More contentious issues or ‘wicked problems’ are likely to be deferred or left to others to resolve. Where immobilism is circumvented, the legislative agenda is more active, with legislative activity across a range of fields.
Kicking the can down the road: Process and performance in Northern Ireland
In this section, I turn to the case of Northern Ireland to illustrate some of the issues surrounding process, performance, and decision-evasion. Briefly, power has been shared between British unionists and Irish nationalists since 1998 under the terms of the Good Friday Agreement. Cabinet ministers are selected through a system known as sequential portfolio allocation (SPA). Using the d’Hondt formula, portfolios are allocated to any party above a specified threshold calculated ‘by the joint impact of the number of ministries and the divisor rule’ (McGarry and O’Leary, 2017: 67). Parties do not need to consult or bargain with one another over portfolios. The party with the largest seat-share gets the first choice of portfolios, the second party gets second choice, and so on until all are assigned. Veto rights, meanwhile, are ascribed in a legislative mechanism called the petition of concern. A petition requires the signatures of any 30 Members of the Legislative Assembly (MLAs) to activate cross-community voting rules; the proposed legislation must then receive consent from both nationalist and unionist parties (McEvoy, 2013).
There are contradictory assessments of the legislative record. Christopher McCrudden et al. (2016), in comparing the total number of laws passed in the Northern Ireland Assembly against its devolved counterpart in Scotland, found that the Assembly passed only eight fewer pieces of legislation over the same time period despite the fact that the Scottish Parliament has a wider array of competences, no institutional mechanism equivalent to the petition of concern, and, unlike the power-sharing government at Stormont, the Scottish Parliament functions as a single party cabinet, with the Scottish National Party commanding a majority. Accordingly, they suggest that ‘this is hardly the picture of gridlock that the critics like to depict’ (McCrudden et al., 2016: 34; see also Conley and Dahan, 2013). Yet, in a study by Anne-Marie Gray and Derek Birrell (2011: 16–17), a limited legislative record is traced to ‘difficulties in obtaining agreement on social policies’ and to the need to obtain cross-community consent in the Assembly. Rick Wilford (2010: 147) also sees a ‘dearth of policy initiatives and something of a legislative famine’ in the Assembly as well as ‘continuing impasse over a number of wicked issues’. Others point to the system’s ‘proneness to deadlock’ (Guelke, 2021; see also McEvoy, 2017) and suggest that ‘gridlock is a particularly pressing problem in Northern Ireland’ (Garry and et al., 2021: 534).
The framework introduced earlier allows us to assess these divergent claims. In applying the framework, I draw on three main data sources: the Legislation.gov.uk site, where all Acts of the Northern Ireland Assembly are listed; the Northern Ireland Assembly Information Management System (AIMS) portal where all uses of the Petition of Concern are documented; and the series of Peace Monitoring Reports (PMRs) published by the Community Relations Council in Northern Ireland, which details the issues over which the governing partners struggle to maintain cohesion, what the reports refer to as ‘logjams’. This allows me to calculate what issues are legislated, which are vetoed, and which are evaded. Combined, they offer empirical insights on the extent of immobilism in the Assembly.
First, however, is the question of devolved powers and the extent of decision-making authority for the Assembly. Northern Ireland has a set of transferred powers, including in health, agriculture, education, justice, and housing, with all other matters reserved at Westminster. The executive is made up of a First Minister, deputy First Minister, and eight ministers. Its devolved status, which limits its decision-making competences, aligns with Lijphart’s assumptions about total decision-making load.
Turning to the framework, I start with an assessment of legislative depth and width. How many laws are promulgated by the Assembly? Table 1 shows the number of laws passed since the Assembly’s inception in 1998. The first term was cut short by protracted stalemate between the parties on conflict legacy issues, including arms decommissioning and police reform; this led to a 3-year period of direct rule. The resumption of power-sharing in 2007 was also tied to these legacy issues: the DUP would only share power with Sinn Féin if the latter acknowledged the legitimacy of the police service; such an acknowledgement could only be forthcoming after significant police restructuring. A 10-year period of uninterrupted power-sharing, in which parties began to talk of ‘normalisation’, took hold and the legislative record began to expand (Murtagh and McCulloch, 2021). Then, Brexit happened. With parties deeply divided over the United Kingdom’s membership in the European Union as well as disputes over a renewable heating scheme in which Arlene Foster, the DUP leader, was implicated, the power-sharing institutions were suspended again from January 2017 to January 2020. Between its return – which coincided with the start of the global COVID-19 pandemic – and May 2022, the Assembly passed 45 pieces of legislation (see Table 1).
Acts of Northern Ireland Assembly, 1999–2022.
Calculated from https://www.legislation.gov.uk/nia.
As suggested by McCrudden et al. (2016), the level of legislative activity in the 2007–2016 period is on par with the Scottish Parliament, which passed 72 acts in 2011–2016 and 79 in 2012–2016. The Northern Ireland Assembly also outpaced the Welsh Assembly (now Parliament) which passed 28 acts between 2012 and 2016. 7 In addition to the total number of new legislative acts, we can also compare the legislative record against what the parties said they would prioritise in their mandate. This can be done by assessing the Programme for Government (PfG), where the coalition members lay out their priorities and objectives for their term in office, against what they got done in that time frame. Seventy percent of the PfG was completed in the 2007–2011 period, and, according to then-deputy First Minister Martin McGuinness, by September 2015, the executive had delivered 81% of its mandate for the 2012–2016 period. 8
If legislative depth is neither too shallow nor especially deep, what about legislative width? On what issues did they legislate? The record suggests a mix of bread-and-butter issues were legislated, from health and personal social services, water and sewerage services to animal welfare, single-use carrier bags, and sunbeds. 9 In fact, acts on public service provisions (health, housing, pensions, etc.) along with economic development (e.g. business improvement districts, construction contracts, tourism) 10 and transport/infrastructure (e.g. roadworks, rail safety) tend to occupy the legislative agenda. For example, 10 legislative acts passed in 2015, of which five focused on bread-and-butter issues (children’s services cooperation, pensions, work and family leave, off-street parking, and reservoirs), two were budgetary acts, and three were justice bills (human trafficking, amendment to the ombudsman and commission for complaints, and single jurisdiction for country and magistrate courts). In 2022, which is thus far the year with the most legislative activity – 31 bills were approved by the Assembly – 23 were bread-and-butter type issues, three were justice focused, and four related to economic and budgetary matters. One bill in 2022 has an education focus (in this case, on integrated education). Indeed, issues of education, culture, and sport have been less frequently legislated overall (e.g. shared education, bullying in schools). Issues specific to Northern Ireland’s conflict legacy appear minimally on the legislative record (of note is the establishment of the Commission for Victims and Survivors in 2008). Assembly operations constitute a relatively small part of the overall agenda but do appear more frequently than the immobilism problem would suggest. This includes changes to the total number of MLAs (reduced from 108 to 90), the creation of an official opposition, financial assistance to parties and member allowances, the role of special advisers, changes to names and numbers of departments, and provisions on how decisions are taken in the executive committee.
While the legislative agenda includes issues both mundane (e.g. high hedges, sunbeds) and extraordinary (e.g. inquiry into historical institutional abuse, the Commission for Victims and Survivors), it should also be read alongside a consideration of the issues on which the Assembly failed to reach consensus. Here, we can look to the petition of concern. As noted above, this is a legislative mechanism which, when enacted, requires legislation to receive cross-community support (e.g. support from nationalists and unionists). The petition of concern is permissive: ‘there is no topic, however mundane, that cannot be the subject of a Petition of Concern’ (Schwartz, 2015). Up until 2020 when significant reforms were agreed as part of the New Decade, New Approach deal, the petition was open to all legislative proposals, including primary legislation, private members bills, legislative consent motions, as well as to individual clauses and amendments to bills, and could be enacted at any stage of the legislative process. Consider the 2011–2016 period, where the petition was used a full 118 times. When petitions on individual clauses are considered, it amounts to 33 bills. For example, the Welfare Reform bill was subject to 48 petitions, of which 46 came from the DUP alone (McCulloch, 2018).
Moreover, parties did not have to justify their use of the petition nor was it subject to any kind of adjudication. The only constraining feature was the need to garner 30 signatures, but parties with more than 30 seats could enact it on their own. In the 1999–2002 period, no party met the threshold, which meant that all petitions had support from at least two parties. After 2007, however, the DUP returned more than 30 MLAs, the only party to do so. Reaching the 30-signature threshold meant that the DUP could now deploy a veto on any legislation – indeed any legislative clause – with which they disagreed. Whereas in the 1999–2003 session, the DUP co-signed one petition, it initiated 82 petitions between 2012 and 2016, of which only one was co-signed by another party (McCulloch and Zdeb, 2022).
What issues did parties evade with the petition of concern? Issues of identity (issues perceived as vital interests to the two communities) and legacy (those having to do with the Troubles) have taken centre stage. In the 1999–2002 period, vetoes were used on issues of identity (e.g. Union flag, Easter lilies in Parliament buildings) or on the power-sharing rules (e.g. election of First Minister/deputy First Minister). In the 2007–2011 period, identity and legacy issues retained salience (Irish language, Irish-medium schooling, anniversary of the disbanding of the B-specials, victims, and survivors) as did the new institutions associated with the Good Friday Agreement (Civic Forum, North-South Ministerial Council). The 2012–2016 mandate, however, stands out: while 70% of all petitions deployed were identity and legacy issues (e.g. Union flag on drivers’ licences, investigation into the murder of Pat Finucane), vetoes also applied to equality issues beyond the vital interests of nationalists and unionists (e.g. marriage equality, abortion, and welfare reform) some 12% of the time and to issues that would not pertain to the vital interests of communities (e.g. investigations into complaints of MLA behaviour) 18% of the time (McCulloch, 2018). One petition was enacted in January 2017 just before the collapse of the Assembly (vote of no confidence in the speaker) and none were enacted since the resumption of power-sharing – and veto reforms – between January 2020 and May 2022 (see Table 2).
Petition of concern, 1999–2020.
Calculated from http://aims.niassembly.gov.uk/plenary/search.aspx.
What about issues subject to non-decision-making? After all, ‘the functioning of any democratic forum should not be judged simply by the volume of legislation’ (Peace Monitoring Report, 2012: 148). The Community Relations Council in Northern Ireland issues regular PMRs – six in total – tracking how far the parties have progressed on the ‘shared goal of a peaceful and inclusive society’. As part of the reports, they identify a series of political ‘logjams’, or issues which the parties fail to move forward (see Table 3).
11
Many of the issues appearing consistently in the reports are conflict legacy issues, such as the Long Kesh/Maze prison site redevelopment, or identity issues, such as the introduction of an Irish Language Act and academic selection. As noted in the 2013 report: it is often said that if politicians focused on ‘bread and butter’ issues they would find much more agreement and connect much better with the electorate. The recent experience of the Assembly in developing economic and social policy supports the thesis that common ground can be found when the agenda moves on from those issues that mark cultural differences (Peace Monitoring Report, 2013: 157).
Political ‘Logjams’, 2012–2023.
A first notable trend is that several issues appear on more than one report (e.g. the Irish Language Act appears on five of the six PMRs). Yet, a ‘logjam’ is not necessarily destined to remain so in perpetuity, with some of the issues identified by the PMRs eventually finding some form of resolution. Per PMR no. 4, ‘in the March 2014 monitoring report, six logjams were identified as stymieing progress. On three of them, standoffs ended in the intervening period’ (Peace Monitoring Report, 2016: 147). This included the outsourcing of welfare reform to Westminster, the establishment of an Education Authority, and the retention of the Housing Executive. Yet, decision-evasion persists on three issues, which as the PMR notes, all have more ‘symbolic charge’: academic selection, the Irish Language Act, and the Maze/Long Kesh redevelopment. The Irish language logjam, meanwhile, found some measure of resolution with the passage of the Identity and Language (Northern Ireland) Act 2022 at Westminster which afforded both Irish and Ulster Scots official recognition (Costello, 2024).
This helps to encapsulate the overall pattern of how logjams might be addressed. Some issues over which the parties were at loggerheads eventually find their way to the Assembly for some form of legislative resolution (e.g. Education Authority). Other issues find their way to the Assembly, only to be the subject of veto powers (e.g. welfare reform, marriage equality). Some of these especially contentious issues (e.g. welfare reform, abortion, marriage equality, Irish Language Act) are later outsourced to Westminster for decision-making, or are dealt with via ad hoc high-level talks, like the reforms to the Petition of Concern as part of the New Decade, New Approach deal. Yet, some logjams, such as the introduction of a Bill of Rights or the Maze/Long Kesh redevelopment, persist as non-decisions. 12
Parties in consociations – especially when they have only reluctantly agreed to share power – often mobilise voter support by openly contesting the constitutional order. Yet, even when voters accord (tacit) support to such tactics, they still expect government to get things done. People in Northern Ireland, for example, are ‘twenty times more likely to think about jobs, education, health, and welfare than they are about constitutional issues’ (Fealty, 2021). Recent survey data suggest that voters still support power-sharing, but that they also recognise that more could be done to improve the functionality and accountability of the power-sharing institutions. 13 As the analysis illustrates, parties can often – though not always – reach consensus on bread-and-butter issues. Where gridlock obtains, it is frequently over conflict legacy or identity issues, known to be flashpoints between communities. This record suggests a partial confirmation of the ‘immobilism problem’. Where the decision load is relatively light, the government can get (some) things done. On so-called ‘wicked issues’, consensus is more difficult.
Conclusion
Consociationalism, it is said, is ‘difficult to love’ (O’Leary, 2005: 36). Indeed, it asks a great deal of its participants: to forgo their first preferences and to compromise with their perceived antagonists. It also slows – sometimes stalls – the legislative agenda, impeding performance legitimacy. Here, it is useful to recall two points. First, power-sharing arrangements are adopted in situations of deep, often violent, divisions. Conflict legacies endure and it is thus not unexpected that large disagreements and protracted political crises would occur, especially on sensitive or contentious topics. Second, we should not overstate the extent of immobilism on ideological issues or imagine it as a uniquely consociational phenomenon. Some of the issues in Northern Ireland over which the parties are divided and which dominated the legislative agenda of late – namely, abortion, welfare, and LGBTQ+ rights – have deadlocked parties elsewhere, the United States being the obvious example. However, alongside the adverse effects for those for whom their rights become sources of antagonism between the parties, the stakes are often much higher in the face of perceived immobilism in post-conflict settings than perhaps would be the case elsewhere. Games of brinkmanship, where parties tussle to extract concessions from one another, can lead to institutional collapse and violence more easily in divided settings.
To come back to the loose conception of immobilism as the ‘inability to get things done’, the threefold approach suggested here (issues which receive legislative assent, issues vetoed in the legislature, and issues kept off the legislative agenda) helps to give empirical weight to understandings of immobilism, especially in relation to the work of power-sharing legislatures. While I have analysed the test case of Northern Ireland, the framework could be further refined with comparative data. We know, for example, that the Lebanese parliament has limited agenda diversity, with more focus on financial matters, taxation, property and real estate, and international affairs than on public service issues (Mahmalat, 2020). Likewise, the so-called Entity-voting rule in Bosnia and Herzegovina has resulted in some ‘institutional gridlock’; by some estimates, ‘only about 30% of the planned legislation for the legislative period 2006-2010 was actually adopted, while the rest either never reached the parliament, or failed during the legislative process’ (Bahtić-Kunrath, 2011: 899). While vetoes have not had a gridlock effect in Burundi, it also does not mean that vital interests are effectively protected or that the legislative agenda is especially robust (McCulloch and Vandeginste, 2019). The analysis thus invites further comparison across a wider set of cases in order to gauge the kinds of issues that confront immobilism tendencies.
Beyond extending the framework to other consociations, another important line of inquiry would be to compare legislative immobilism to other sources of deadlock, including in relation to government formation processes. In the case of Northern Ireland, this could entail consideration of the decision to boycott the Assembly by different parties and the ensuring suspension of the institutions. Government formation is a fraught process in Lebanon, with protracted vacancies in the post of president and time lags between election and the confirmation of the Council of Ministers. Bosnia and Belgium, too, experience extended periods of bargaining over government posts. Legislative capacity and ‘getting things done’ presuppose the ability to form government in the first instance.
Finally, legislative capacity tells us something about consociation’s suitability as a post-conflict institutional arrangement and whether we should continue to think of it as a prescriptive device at war’s end. What, then, might this analysis portend for ‘consociation as political prescription’? As Neophytos Loizides (2015: 74) argues, ‘power-sharing arrangements should first carry the promise of functioning smoothly’, and this includes a legislative agenda that responds to citizen needs. Legislative gridlock on so-called wicked issues confounds all governments, but where the state’s legitimacy is already low, as is often the case in post-conflict settings and especially so in consociations, an inability to ‘get things done’ on these issues can have deadly consequences. As such, how consociations handle difficult decisions, and the different kinds of deadlock-breaking mechanisms available to parties as they work through such issues, requires further consideration at the design stage as well as over the life of the power-sharing agreement.
There may be compelling reasons to opt for the kind of inclusive government consociation offers, not least of all an end to minority exclusion and repression. Yet, the failure to deliver a full legislative agenda raises important questions about consociation’s ‘shelf-life’ (Vandeginste, 2022). That is, it remains a source of debate as to whether it should be seen as a temporary or longer lasting form of government, and if the former, how states might begin to move beyond it. Institutional developments in Northern Ireland – from the introduction of an official opposition to the reforms to the Petition of Concern agreed as part of the New Decade, New Approach deal – might yet portend steps towards the ‘unwinding’ of consociationalism. The analysis presented here invites further critical reflection on how to modify and reform consociational institutions in support of a legislative agenda that has the capacity to ‘get things done’ for all its citizens.
