ANALYIS: DUP’s “Key Brain” behind St Andrews Agreement urges the party not to risk giving unfettered power to Sinn Fein Ministers
By Richard Bullick
On Friday, the Belfast News Letter published an article setting out my concerns about a clause in the Executive Committee (Functions) Bill. It was my contention that the bill rolls back some of the key safeguards that were part of the Northern Ireland (St Andrews Agreement) Act 2006.
The full article can be found at https://www.newsletter.co.uk/news/opinion/columnists/richard-bullick-dup-won-key-safeguards-unionism-st-andrews-yet-now-party-seems-be-sleepwalking-removing-them-2923348 and should be read in conjunction with this note.
To date while I have set out my concerns about the legislation there has been relatively little said publicly in defence of the legislation.
In the interests of balance, I have set out in full what I understand to be a briefing note by the DUP on the bill. This is italicised below. I have also added my own commentary to the briefing note. This can be found in square brackets.
In summary from the briefing note it is now clear that;
- Those who have proposed the provisions in relation to cross cutting do not understand the purpose of the 2006 Act on this issue. The fundamental premise of this bill with regard to cross cutting is to legislate for what happens in practice. This is the wrong approach and from it all of the legal advice and analysis flows. The purpose of the safeguards created by virtue of the Northern Ireland (St Andrews Agreement) Act 2006 was not to overwhelm the Executive with routine decisions, it was to give unionists the capacity to require a Minister to bring a matter to the Executive to be decided in exceptional cases. That is how it has operated in practice.
- The suggestion that there is a stand alone statutory three Minister rule has disappeared altogether. This is to be welcomed, but crucially at the time the bill was originally being drafted it is clear that the existence of this additional safeguard was the rock on which the new clauses were founded.
Briefing Note on The Executive Committee (Functions) Bill
This is an amending bill with only one substantive clause. This clause is created to do three things;
• Strengthen the requirement to bring “controversial or significant” matters to the Executive;
• To ensure decisions on planning continue to be made by the Planning Minister;
• And to clarify and put into legislation the existing cross-cutting requirement on Ministers which applied since St Andrews up until the Buick case decision.
[I only take issue with the issues raised in the third bullet point. See below]
Extensive and senior legal advice has been sought and received on these complex issues. In light of the Buick judgement doing nothing and not introducing this Bill is not an option.
It is not the objective or intention of the bill, either directly or indirectly, to lessen, reduce or weaken the collective decision making of the Executive. Nor will it diminish the requirements of Ministers to bring matters to the Executive for consideration or decision.
[I have not seen the legal advice nor the instructions or understanding on which it is based and therefore make no comment on this assertion. I do not agree that doing nothing is not an option. That after all has been the position since the Executive was appointed in January, yet this matter is only now being rushed through the Assembly. I support the central purpose of the bill which is to allow the DFI Minister to take decisions without recourse to the Executive. However, there is a perfectly respectable argument that the Executive Committee should be responsible for such important decisions. Even if one accepts that the Executive needs to act in relation to planning matters there is no such compunction in relation to the provision in the bill which deals with decision making generally. The issue is not whether it is the intention to weaken the collective decision making of the Executive or diminish the requirements of Ministers to being matters to the Executive for consideration or decision. The issue is whether that is the effect that it will have.]
The requirement to bring all “significant or controversial” matters to the Executive is not only protected but also strengthened by clarifying that this requirement exists regardless of whether or not a Programme for Government is in place. This will address an issue that has been this far unclear and has been the subject to legal consideration in the courts for some time.
[I agree that this is a modest improvement on the present situation.]
This requirement to bring “significant and controversial” matters to the Executive remains and continues to be a “stand alone” ground on which Ministers must operate.
[The ‘significant or controversial’ test remains and is separate from the ‘cross-cutting test’. The short hand of significant or controversial does not however set out the full test. It is provided for at section 20(4) of the Northern Ireland Act 1998 which states,
(4) The Committee shall also have the function of discussing and agreeing upon—
(a) significant or controversial matters that are clearly outside the scope of the agreed programme referred to in paragraph 20 of Strand One of that Agreement;
(b) significant or controversial matters that the First Minister and deputy First Minister acting jointly have determined to be matters that should be considered by the Executive Committee.
The key point to note here is the important qualification that the matter must also be clearly outside the scope of the agreed programme (for government). It is not a stand-alone ‘significant or controversial test’. Especially in the context of an ‘outcomes’ based programme for government there is significant scope for a Minister to argue that even a significant decision is not ‘clearly outside’ the programme for government. It was because of the uncertainty about this test that it was believed that the additional cross-cutting test was required in 2006. That position is even more clearly the case today.]
The bill facilitates planning issues to continue to be made by the Planning Minister. Planning issues have not traditionally been brought to the Executive. This is for good reason, as planning decisions must be made only in accordance with strict planning considerations.
[I support the objectives of the bill in this regard but it’s worth noting that at council level planning decisions are taken by a committee.]
The case of Buick appeared to replace the Planning Minister decision-making power on this with the Executive, which would create legal risk with such planning decisions. This bill therefore, rightly addresses this to ensure planning decisions are made in the most robust and risk-free way.
[To be clear it wasn’t the Buick decision but the application of the Northern Ireland (St Andrews Agreement) Act 2006 and the interpretation urged by the DUP, that compel this outcome. Decisions taken properly by the Executive would also obviate the legal risk. However, I agree with the policy decision at the heart of this provision.]
As planning decisions did not previously come to the Executive, this will not lessen in any way the collective decision making of the Executive from that, which was in place pre-Buick.
[As a description of the practice, this is correct but irrelevant to the matter in dispute.]
Lastly the Bill clarifies what is intended by the term “cross – cutting”.
[Clarifies in the sense of re-writes. It cannot credibly be argued that the law means the same with the new definition as (a) it did without it, (b) suggested by the case law pre Buick or (c) the position advocated by the DUP]
It is still the case that cross-cutting matters are subject to Executive approval. It is only where the matter affects the exercise of the statutory responsibilities of another minister or ministers “incidentally” that it will not come to the Executive.
[Yes, there is still a cross-cutting test, but it is a higher bar than previously existed meaning fewer issues will be required to come to the Executive. To illustrate this we need only consider one example. In JR 65 Mr Justice Treacy held that the cross-cutting test was satisfied merely because, “it touches on equality issues”. Demonstrably this would not satisfy the new “more than incidentally” test.
The requirement that ‘statutory’ responsibilities are affected also further limits the range of decisions which are for the Executive to take. There are many areas where a department’s responsibilities are not based in statute and these would be therefore fall outside the new test.]
This amendment simply reflects how “cross-cutting” is interpreted in practice. It has NEVER been the case that matters that simply “touch” on other departmental responsibilities have been required to come to the Executive. Even the most cursory of examinations of Executive business and individual Ministerial decisions would demonstrate this.
[This paragraph represents the single most significant misunderstanding of the purpose of the legislation. The issue is not what routinely comes to the Executive in practice, it is what decisions unionists can require to come to the Executive in circumstances where they disagree with what a Minister is planning to do. This was exactly the case in the Judicial Review application taken by the DUP Minister of Finance relating to a decision by the Sinn Fein Agriculture Minister in relation to European Funding in 2013.
In that case it was argued on behalf of the Sinn Fein Minister,
- The Respondent submits that the Applicant’s argument that this matter engages the terms of section 2.4 of the Ministerial Code is misconceived. As Mr Lavery has averred on behalf of the DARD Minister, a working practice has developed at inter-Departmental level as to when matters require to be referred to the Executive Committee. Not all matters that engage the interest of the DFP require to be referred to the Executive Committee. If this were correct (and it is the logic advanced by the Applicant) then virtually every putative decision that involved expenditure would fall to be referred to the Executive Committtee. Moreover, if this approach were adopted, every failure to refer a matter to the Executive Committee could be the subject of a judicial review challenge between Ministers.
29. Such an undesirable scenario has been avoided to date by the application of the sensible convention that a matter only requires to be referred to the Executive Committee if it engages the statutory powers or spending authority of another Department.
- DARD have made other similar re-allocation decisions without reference to the Executive Committee. For example, Mr Lavery avers to the Department’s decision to reduce a transfer of 9% to 0% in 2012 in order to assist farmers with difficult market conditions. This matter did not require Executive approval and DFP did not seek to challenge the legality of the decision.
From these representations we can discern that Sinn Fein are making the argument at para 37 that similar decisions have been made in the past without recourse to the Executive. That was absolutely correct but irrelevant to the question of whether the court has the power to strike down a decision when it does not come to the Executive. The position put forward in the DUP briefing note is exactly the same as the Sinn Fein argument in that case namely because such matters do not normally come before the Executive there should be no power to strike them down. Given the DUP successfully persuaded the High Court to strike down the decision of a Sinn Fein Minister in such circumstances it is hard to see how or why they are making that argument now.
On the basis that it is now clear that the issue is not what routinely comes to the Executive but can be required to come, it is worth dealing with the assertion that “matters that simply touch on others departmental responsibilities have never been required to come to the Executive.”
I make the simple point that the DUP have used exactly this standard to suggest that Executive consideration is required.
To illustrate this, I quote directly from the skeleton argument made on behalf of the (then) Minister for Enterprise, Trade and Investment in 2015.
“47. In relation to cross-cutting matters, it is clear that a decision which involves or touches upon the responsibility of another Minister should be referred to the Executive; and that the complexity of government makes it inevitable that this will arise frequently.”
One need not be a senior practicing lawyer to recognise that the argument made in the briefing note is directly contradicted by the facts.]
It is necessary to put this provision into legislation in order to avoid, post the Buick case, a huge number of additional issues having to come to the Executive AND to avoid issues being subject to legal challenge due to uncertainty or ambiguity arising from the Buick case.
[This assertion is predicated on the view that ‘Buick’ widened the law in relation to what is cross cutting. In light of the ‘touches on’ test cited above I believe that this view is unsustainable. There is no evidence that the Lord Chief Justice in Buick believed that he was doing anything other than following the existing case law. It should also be noted that the senior counsel for Mr Buick in the Court of Appeal who argued for a broad interpretation of cross-cutting was the same senior counsel who made the same argument on behalf of DUP Ministers in several successful Judicial Review applications.
A number of other observations are worth noting.
- The argument that the floodgates would be opened is also exactly the argument made by Sinn Fein in the EU Funding case quoted in paragraph 28 of the skeleton argument above.
- This is not a new argument. Since 2007 there have been concerns about the Executive being overwhelmed by the requirement to take decisions. This has never proven to be a problem in practice.
- In 2007 recognising this danger the Executive agreed procedural guidance to the Ministerial Code to seek to limit non-controversial matters coming to the Executive.
- Even today the Ministerial Code at paragraph 2.16 makes specific provision to allow this matter to be addressed.
- Where an aggrieved individual would seek to take issue with a mere procedural defect of an otherwise uncontroversial decisions which has not gone to the Executive it is open for the Executive to retrospectively approve a Ministerial decision by virtue of paragraph 2.15 of the Ministerial Code.
- In any event in the past the courts have refused to grant a remedy to an applicant simply by virtue of the fact that there had been a technical breach of the Ministerial Code.
In summary I cannot improve on the argument made on behalf of the Minister for Enterprise, Trade and Investment in the BMAP case,
“45. These decisions all support an expansive interpretation of the matters which must be referred to the Executive for discussion and agreement. This is surely consistent with the statutory purposes, namely that the Executive should be kept abreast and retain control of matters which might fall to it for agreement; and that Ministers cannot take decisions without recourse to Executive colleagues where other Ministers may object or be affected by the decision. This is tempered by the practical consideration that very often such matters will not give rise to any controversy (as in the draft PPS5 case) and the mechanisms designed to mitigate the practical burden of the requirements, for instance the availability of an urgent procedure and the possibility of retrospective Executive approval.”
To be absolutely clear, it is intended that ALL MATTERS that previously would have been required to come to the Executive prior to the Buick case must continue to be brought to the Executive.
[One takes at face value what the intention of the legislation may be however it should now be readily apparent that this is not the effect of the proposed legislation.]
Three final points.
Firstly, over the past few days I have heard from multiple sources the suggestion that my reason for criticism of the bill is in fact related to commercial clients. I make the rather obvious point that the clauses to which I take exception are unrelated to planning.
Secondly, there are others who have raised different concerns about the bill, publicly and privately, relating to the planning provisions, most notably solicitor Maria O’Loan in last Tuesday’s Irish News.
Thirdly, by this stage it must be clear beyond any doubt that at the very least there are serious issues with this bill that have not been given the proper scrutiny. There is no compelling reason that it should be rushed through this week. I am sure that any urgent planning matters can be agreed by the Executive to give more time for the full implications of the legislation to be considered. There is no political embarrassment in taking more time.
If this bill is passed in its present form then unionists can be certain that they will never be able to reverse what they have agreed to. They will ‘own’ every decision taken by Sinn Fein Ministers and no doubt political opponents will be only too happy to capitalise on this at election time.
Such a decision may not come in the next week or month or even year, but when it does there will be no one else to blame.
Time should be taken to take stock and rethink. To allow this the Further Consideration Stage should not be moved on Monday but if it is then the amendments tabled in the name of Doug Beattie should be supported.