COMMITTEE ON THE Wednesday 13 September 2006 Members in attendance for all or part of proceedings: The Committee met at 2.07 pm. (The Chairman (Mr Wells) in the Chair.) The Chairman (Mr Wells): We will start with Sinn Féin. Mr O’Dowd, who is representing whom today? Mr O’Dowd: I represent Michelle Gildernew. Conor Murphy will join us shortly. Ms Lewsley: I am here on behalf of Mark Durkan. Mr McNarry: There are quite a few cross-dressers. Ms Lewsley: We are looking for gender balance. The Chairman (Mr Wells): Will Ian Paisley Jnr be here? Mr P Robinson: No;Tom Buchanan will be coming. The Chairman (Mr Wells): Members will have received copies of the minutes of our 4 September meeting. Until recently, the minutes went through on the nod; however, last week we had quite a discussion on one set of minutes. Have members any additions or corrections? Is everyone happy? Mr O’Dowd: I was not present at the last meeting, so I will just note the minutes on this occasion. The Chairman (Mr Wells): Is everyone else content? Members indicated assent. The Chairman (Mr Wells): Much of today’s discussion will be on the draft ministerial code. Before that, however, I wish to alert members to a matter that Mr Robinson raised during this morning’s meeting of the PFG Committee dealing with policing and justice. We will meet the Secretary of State for a public, televised session in the Senate Chamber at 10.00 am on Monday 18 September. The point was made that although we have agreed the five headings and the sets of questions that will be asked on policing and justice, issues may be raised on the institutional strand. There are two ways of doing that: we could ask the Secretary of State to address them in his opening remarks; or we could ask separate questions at the end of the questions on policing and justice. If members feel that there are burning issues arising from our consideration of the report, we need to flag them up now and agree that they be put to the Secretary of State. That will make sense to those who were at this morning’s meeting. Perhaps it will come as something of a surprise to those who are fresh to the Committee. Mr P Robinson: Most, but not all of the institutional issues need to be resolved among the parties. Therefore, there is probably less of a requirement to raise those matters with the Secretary of State. The most worthwhile matter to raise — and to get the Secretary of State’s response on — is the Government’s intentions on a draft Bill on the institutional issues, and the extent to which matters considered by the Committee would inform that drafting. We could ask when the draft Bill might be available to the parties and what the process might be for taking it forward. The answers to those questions would more or less inform the Committee’s further debate and the negotiations that will follow in October. The Chairman (Mr Wells): Do members feel that that issue is of such importance that it should be tabled for consideration on Monday? Mr McFarland: At this morning’s meeting of the PFG Committee, Mr Robinson pointed out that the Secretary of State might wish to make some opening remarks, and that he might be encouraged to include such enlightenments. That would seem to be the sensible way forward. The Chairman (Mr Wells): That could be the substance of his opening remarks, and we could draw out the other issues. However, the meeting will last for only 90 minutes. First, are members happy to accept that as an important issue to be raised with Mr Hain on Monday, and, secondly — and I am probably tempting fate — are there any other burning issues that members feel must be raised as a matter of priority? Mr Murphy: I apologise for being late, Chairman. The Committee with responsibility for policing and justice invited Peter Hain on the basis of his Glenties speech and to tease out some of those issues. I have no wish to restrict anyone’s opportunity to ask questions, but there is a time limit. We should try to build in a small degree of flexibility as to what issues can be raised, without the meeting being left open. The purpose of the discussion — as originally intended — might be lost, along with a whole range of other issues. All parties have the opportunity to talk to Peter Hain and his officials or to the Irish Government on those matters. I would not want the meeting to be too rigid, but one in which people could introduce an important topic, within reason. Mrs Long: The Committee had a long debate about that issue this morning. Five topics relating to policing and justice issues were firmed up, and there is quite a lot of meat in those issues. Unless members have specific issues that they can identify now, which the Secretary of State could address in his opening remarks, we should not deviate from the five topics. If the meeting were opened up, it would be difficult not to allow anything that was discussed in the PFG Committee to be part of the agenda. An hour and a half with the Secretary of State would not allow us to do justice to any of the issues. If justice is to be done to the issues already on the agenda, we must be specific about raising issues outside the policing and justice arena, and any such discussion should be very brief. The Chairman (Mr Wells): We could put a time limit on the Secretary of State’s opening comments, if that were helpful. I could give him some advice as to our time frame. I detect that there are no other issues, so we are down to one that seems relevant, if not matching particularly well with the other issues. However, the best way to deal with that would be to ask the Secretary of State if he could give us five minutes on that issue before we lead into questions. Dr Farren: We cannot write the opening script for the Secretary of State. However, out of deference to the range of issues that have been discussed —institutional issues; policing and justice; human rights; and economic issues — it would be helpful if, without going into detail, he could provide some sense of how he has acknowledged or taken account of the work of the PFG Committee in its various forms. The Committee should know whether that work is of significance, and whether there is a determination to take account of it, insofar as it is necessary, whether by legislative or other means. If the Secretary of State can be prompted to encapsulate that in some way in his opening remarks, I am sure that the wordsmiths will be well able to accommodate him. That would be helpful and — dare I say it — encouraging. 2.15 pm The Chairman (Mr Wells): The PFG Committee dealing with law and order issues decided that there should be no opening statement from the Secretary of State, therefore the Committee should be able to go straight into the issues for discussion. If we were to ask him to make an opening statement, that would be a way of getting that issue onto the agenda without disrupting the questioning on the other issues. Dr Farren: How long will the session be? Mr P Robinson: It is impossible for the Secretary of State not to make an opening speech. He will do it regardless of whether he is given a slot in which to do so, or when he is asked his first question. The NIO will prepare his remarks for him — or at least the bits that are to be publicly spun. The Chairman (Mr Wells): The Secretary of State will not be invited to make an official opening statement, but I am sure, as Mr Robinson says, he will take the opportunity to do so. There must be consensus on this. Are members content that the Secretary of State is given five minutes to speak on that issue at the beginning of the session, and for that to be followed by discussion on law and order? Mr P Robinson: I do not think that he needs five minutes. The Committee Clerk should inform the Secretary of State’s staff that it would be useful for us to have some indication of what he is planning to do. For instance, will any draft Bill that is being worked on be ready for the negotiations that are to be held in Scotland, or wherever they might be? The Chairman (Mr Wells): I presume that the Committee Clerk should give the Secretary of State some indication of what is expected of him and remind him to keep his comments to a minimum. Are members content for the Secretary of State to get three minutes to speak at the beginning of the session? Members indicated assent. The Chairman (Mr Wells): Following the Secretary of State’s opening remarks, we will go into questions and answers. I raise that now, but some other burning issues might arise as we go through the report. I hope that is not the case, but at least members have been alerted to that. Mr P Robinson: Is that next Monday? The Chairman (Mr Wells): Yes. It will be next Monday at 10.00 am. I presume that some representatives here today will be at the question and answer session with Mr Hain. The big issue before the Committee today — before we come to the report — is the draft ministerial code. At the last meeting, members agreed to defer consideration of the code until today to enable the Office of the First Minister and the Deputy First Minister (OFMDFM) to provide information on proposed amendments and additions. That information is at tabs 3 and 4 of members’ packs. As members can see, there is a lot to it. It is a fair bit of work. The DUP has also submitted a position paper on the code, and Peter Robinson, as spokesman on the issue, will speak to that. A decision must be made before we begin this discussion, otherwise we could be here for a long time. Do members want to plough through the ministerial code line by line and try to reach agreement on what should be put on a statutory basis and what should not? Or, should we agree the issues that are required to be put on the statutory basis and those that can be decided upon later? Those are the available options. I am happy to go down either route. At some stage today, we must decide what to do with all this material. I suggest that Mr Robinson lead off with the DUP submission on the draft ministerial code — an issue considered by the DUP to be of great importance, and one that it has flagged up in various discussions. Members will then be given an opportunity to comment and ask questions on his presentation. They will speak in alphabetical order of party, starting with the Alliance Party. Are members content? Mr Murphy: Will the Committee decide first what to do with the ministerial draft code, or will we take the DUP presentation and then resolve the code? The Chairman (Mr Wells): I will take the presentation first, and when we are clear on the DUP paper we will discuss how we are going to deal with the draft ministerial code before we get into the meat of it. We could have a half-hour session on it, or we could have a two- or three-hour session. Mr P Robinson: A lot of us might be voting for the half-hour session. I feel as if I have gone through this on at least two or three occasions already. I do not feel particularly compelled to do so again. I am keener that we make a more realistic assessment of the extent to which we need to resolve these issues at this stage and the extent to which it is a matter for the negotiations. Whatever we decide will determine what is included in the report. Judging by the amount of material that we have already received from OFMDFM, I think that the ministerial code will be a significant and voluminous document. The Committee agreed that some elements of the code should be put on a statutory basis in any amendment to the legislation. All we need to do is examine the extent of our agreement on the matters that should be included in the statutory section. The remainder will be a matter for an Executive and will be one of the first items of business after devolution. With regard to impediments to the restoration of devolution, we need to examine only the statutory elements. The rest can be done when devolution is up and running. Perhaps we do not need to agree all the details of the items that need to be put on a statutory basis. As far as the report is concerned, if we can agree the broad subject matters, we will have gone a fair bit of the way. The statutory elements of the code will be written in legal language, and I am not particularly equipped to deal with such language. Our paper contains some of the key issues that we think should be included in a statutory ministerial code. We will hold fire on the dozens — if not hundreds — of issues that should be included in the full ministerial code. The Chairman (Mr Wells): I can confirm that the Committee did agree that the ministerial code should be put on a statutory basis. Some members may have agreed to that before they realised how complex the document would be. It would be more feasible to put some elements of it on a statutory basis. Mr McFarland: Perhaps it was not clear. Technically, the document being put on a statutory basis means that it is an Assembly document. No ministerial code has ever gone before the Assembly. I am not sure that when we discussed whether it should be on a statutory basis that we spoke about it being a document that went before the Assembly and, therefore, brought forward on a statutory basis, rather than as an involuntary code and custom and practice, in the Executive. The legal aspect is not clear. This concerns the sovereignty of the Assembly and the Executive. These are Assembly issues. Putting elements on a statutory basis could mean that we come to the stage of running to the courts every time that we had a row. It would be absolutely daft if, say, Danny and I ended up being Ministers and rowed with Seán Farren, and our first port of call was the High Court. Mr P Robinson: Why, then, did you do that in 1998? Mr McFarland: I did not do anything in 1998. Mr P Robinson: The Northern Ireland Act 1998 has a schedule that includes the Pledge of Office and a code of conduct. Mr McFarland: They are there as part of the system for the Assembly. Mr P Robinson: What would be the difference? Mr McFarland: A code of conduct for Ministers will proceed, presumably, as part of the Assembly’s rules of the game. Mr P Robinson: There is no distinction to be drawn. The schedule to the 1998 Act included the Pledge of Office, which put that on a statutory basis, and a code of conduct. Certain matters have a key importance and, therefore, should be included in that. In the same way, the Local Government Act (Northern Ireland) 1972 contains standing orders that state that every council — or almost every council; perhaps Antrim Borough Council does not have standing orders — Dr Farren: Moyle District Council does not have standing orders. Mr Ford: Neither does Antrim Borough Council. Dr Farren: Therefore, two councils do not have standing orders. Mr P Robinson: Most councils create their own standing orders, but they must be consistent with the standing orders that are laid down in section 10 of the Local Government Act (Northern Ireland) 1972. There is nothing unusual about having key features in the legislation and a body building upon those, as long as they are consistent with the 1972 Act. The Chairman (Mr Wells): I will regard this as a questioning of Peter Robinson’s opening remarks in the DUP submission. That is a wide remit. Dr Farren: To some extent, I have fallen into the trap of commenting on the statutory requirement. There is no problem with a statutory requirement for a ministerial code, but we must be careful about how much of that code is enshrined in statute. We need to make clear distinctions, because I share Alan’s concerns that we are an Assembly and a political body that makes political decisions, and we do not want to find ourselves working under the threat of judicial action, save that which is always present by virtue of judicial review on decisions that are taken. When the Committee previously discussed the draft ministerial code, I tried to be careful about identifying sections of it that would be placed on a statutory footing. Those sections that would not be placed on a statutory footing would act as a powerful guide to how to proceed in the Executive and to its relationship with outside bodies, notably the Assembly, the North/South Ministerial Council (NSMC), the British-Irish Council, and so on. We need to go through a major exercise to ensure that we do not fall into the traps that Alan pointed to, but that we have a statutory basis to some requirements in the ministerial code, where it is appropriate and where there is agreement. Mr Murphy: We also agreed that we would consider the idea of putting the ministerial code on a statutory basis. The only issue on which we expressed a desire for legislation in relation to ministerial behaviour, was around the automatic entitlement of Ministers to represent their Departments or their sectoral interests — The Chairman (Mr Wells): I have to stop you, Mr Murphy. A mobile phone is still switched on. I am not targeting anyone in particular, but could they please turn it off? It interferes with the recording equipment and we do not want to miss any members’ comments. Mr Murphy: Unfortunately, the area of automatic entitlement was abused by the previous First Minister: the automatic entitlement of Ministers to represent their sectoral interests, whether on the North/South Ministerial Council, the British-Irish Council or any other meeting at which the Executive are represented. We are happy to consider some of the issues, but it is a matter for the Committee to decide whether we wish to identify what would be placed on a statutory footing. Sinn Féin takes issue with the suggestion in the DUP’s paper that the Independent Monitoring Commission (IMC) should identify a breach of the Pledge of Office. We would not put ourselves in hock to a body that we feel is fairly discredited. However, we are happy to discuss any of the issues. It would be helpful to ascertain whether we intend to negotiate the details of the ministerial code now or postpone the discussion until our negotiations. I know that they have yet to come up, but it is difficult to consider the DUP’s proposals in isolation from an all-encompassing discussion on the ministerial code and on other measures that people seek to have inserted, such as accountability and other institutional issues. 2.30 pm The Chairman (Mr Wells): That brings us to the crucial point: will we decide this afternoon which elements of the ministerial code are put on a statutory basis, or do we merely agree the principle that some elements have to be put on such a basis and leave the decision to negotiations? That is entirely the Committee’s call. Are members feeling up to that task? Mr P Robinson: To the extent that those questions were all directed to me, you might want me to respond. The Chairman (Mr Wells): Certainly, but perhaps you will indicate what you feel is the best way to deal with that. Mr P Robinson: First, the Assembly is not a sovereign body: it is a creature of statute. Its Members and Executive are creatures of statute. Therefore they and everything that they do are subject to legislation. On that basis, there is nothing unusual in the conditions set out in the legislation. We can increase accountability in one of two ways, and either is equally satisfactory. We can make massive changes to the Northern Ireland Act 1998 and insert new sections to deal with all the accountability and other matters. Alternatively, we can deal with it through the ministerial code, which was a comprehensive agreement proposal. I recall that that was not our preferred course in 2004; we would have preferred to add new sections to the legislation. Those would have made dramatic and significant changes to the legislation, if it had to be done on a line-to-line basis. However, there is nothing unusual in increasing accountability through a ministerial code; that procedure is consistent with the purpose of the 1998 Act, which is to set out the modus operandi of the Assembly and all its elements. As far as what is achievable is concerned, I am inclined to agree that a great deal of it will be a matter for October when negotiations begin. I do not believe that we will get a high level of instant agreement on those issues. Therefore we are perhaps only wasting our time covering them now when they will be dealt with more comprehensively later. However, I hope that there is general agreement that we can deal with them. One way or the other, we have to deal with them; therefore, it is a case of whether that is done through a statutory ministerial code or whether the legislation is changed. The Chairman (Mr Wells): Obviously, we discussed the ministerial code at previous meetings, but we had parked a series of issues. I thought that it might be useful to remind members of those before we reach the important decision of how to proceed with them. First, the code should be used to increase collectivity and ensure that ministerial colleagues inform one another of major decisions. Accountability between the Executive and the Assembly was covered at previous meetings, at which there were discussions on issues such as Assembly referral to the Executive where power is vested, and options for the Assembly to reverse ministerial decisions in certain circumstances. Accountability of Ministers to the Assembly on the North/South Ministerial Council (NSMC) was also discussed, as were requirements or entitlements of Ministers to attend meetings of that body. An obligation for Ministers to attend Executive meetings, the North/South Ministerial Council and the British-Irish Council (BIC) should be included in the Pledge of Office, which should also include a commitment to uphold the rule of law. Agenda item 4 is relevant to that point. Those issues have been parked, and as I do not detect that Mr Robinson has any further questions to ask, we will now discuss exactly how we should handle this matter. Mr Robinson has indicated that he does not wish to plough through the entire ministerial code this afternoon. That is one party’s view; what do others think? Mr P Robinson: Is it possible for us to reach consensus on a proposal that the parties and others should consider further the adoption of a statutory ministerial code and that consideration should be given to all those matters in that context? That does not tie any of us down, does it? We can leave the matter until October. The Chairman (Mr Wells): Did members grasp that? Dr Farren: I want to be clear about what Peter said. Our position is that there should be a statutory requirement to have a ministerial code. We are now being asked to identify whether parts of, or all of, or, indeed, none of, the ministerial code should be in statute. Mr P Robinson: I wish to draw to your attention why simply having a statutory requirement to have a ministerial code would do nothing. Let us take the issue of accountability, which is a deal-breaker — as Alan refers to it — as far as the DUP is concerned. Were the accountability issue to be dealt with in the ministerial code, a statutory requirement to have a ministerial code would not give us comfort that the issue would be satisfactorily dealt with when the code is ultimately produced. Therefore, if there were a statutory ministerial code, or elements of the ministerial code were put on a statutory basis, we would know, as part of an overall agreement in October or whenever, the basis on which accountability would be managed. Dr Farren: I am not anticipating that we would wait until the code exists in statute before agreeing which parts of the code should, or should not, be put on a statutory basis. It would be totally unsatisfactory to simply agree that we should have a code and put off having the code. I understand that that would be fatuous. Therefore, we must address the issues that have already been identified, and any other elements of the ministerial code that parties feel should be placed on a statutory basis. We are not terribly far apart in our thinking. Mr P Robinson: Let us be clear: the DUP will be seeking a higher degree of certainty on the measures that will ensure accountability than parties that simply believe that these matters should be addressed in a ministerial code after devolution has been restored. Dr Farren: I am not saying that. Mr P Robinson: Those elements would not be in place when devolution is restored. Dr Farren: I wish to make it clear that I am addressing my remarks through the Chair, so that people do not think that we are having a chat across the table. Those matters will form part of the negotiations in October, and we are committing ourselves to discussing them in the negotiations. When it comes to the bit, some parties may say that they believe that certain issues should be included in the ministerial code but not placed on a statutory footing. Other parties may say precisely the opposite, and we must tease that out. Is the member saying that we must commit ourselves today to making a clear decision about what might be laid down in statute about accountability? I do not think that he is saying that. Mr P Robinson: My proposal was that further consideration should be given to the matter in October. Mr McFarland: According to the Secretary of State’s timetable, we are due to examine this matter in October. Is that correct? The Committee is timetabled to examine and produce a ministerial code in October. Thus, based on the Secretary of State’s timetable, we are quite far ahead of ourselves. Can we check that? Mr P Robinson: That is right, but I think that the Secretary of State has little idea of what that entails. It will take weeks of work to agree a full ministerial code. Mr McFarland: I have looked through the ministerial code; most if it is sensible and based on experience from the previous Assembly. One or two parts of it may be contentious. However, most of it is fairly sensible good practice. We have been busy and have tried to have the report ready for debate on 3 or 4 October. We must head to Scotland. We will, therefore, have until 16 October to meet the time frame that the Secretary of State has laid out for examination of the ministerial code. The Chairman (Mr Wells): It would be wonderful if there were a ministerial code subcommittee. However, there is not. Therefore, we are stuck with it. Mr McFarland: Perhaps we should concentrate on the report. The code would fall into place in October. The contentious issues would clearly require negotiation then. The Chairman (Mr Wells): There are several options. The Committee could approve Mr Robinson’s proposal; we could go through the draft ministerial code, line by line, and decide which parts must be statutory or non-statutory. The alternative is to accept Mr McFarland’s proposal. I am content to continue with this as long as time permits. There is time available because of the way that other reports have developed. Mr McFarland: Is this the last of the reports? The Chairman (Mr Wells): Yes. The report on law-and-order issues is ready for the Assembly and the report on rights, safeguards, equality issues and victims is well ahead of schedule. Therefore, we can spend some time on the code, although I suspect that we could spend days going through it. Mr McFarland: Most of the code is obvious and sensible, because it is the result of sensible actions taken since the first Assembly. However, there are particular issues on accountability that will require a fair amount of debate. It will not necessarily be new debate; it is the same debate that we have had from the start of this process — about how heavy a hand should be put on Ministers with regard to their relationships with the Assembly and the NSMC. Perhaps those issues will end up being negotiated. The question is whether parties want to set aside a day next week to identify and discuss their contentious issues. I believe that most of the code is not contentious. Thank goodness that we have obtained a copy of the rewritten draft ministerial code; much of the original has been improved. The Chairman (Mr Wells): I will ask each party what it believes is the way forward. I will start with Mr Murphy and continue round the table. Mr Murphy: A substantial part of the code probably is not contentious. The difficulty is that propositions have been made on accountability, efficiency, and so on that are not contained in the code, but will change aspects of how the Assembly does business. Those will have a bearing on discussion on the draft code. It is difficult to deal with the code in isolation from other issues that parties might raise during negotiations. Discussion on the ministerial code might address certain issues, but not all of them. For example, it is difficult to consider the proposals set out in items 3 and 4 of today’s agenda in isolation from a broader discussion of the code and how it will fit in with Members’ notions of how some of the Assembly’s operations must be altered. That does not offer much of a suggestion on how to proceed. It is difficult to deal with the ministerial code in isolation from discussion on other matters. Dr Farren: Unless Conor is referring to every paragraph in the draft code, we could, either today or at our next meeting, go through as much of it as possible and identify the parts that are non-contentious or that do not appear to be contentious. The paragraphs and sections that may need further consideration could be identified also, and such a ground-clearing exercise would be helpful to us later. I am content that we proceed today. 2.45 pm Mr Ford: I am particularly conscious of the Alliance Party’s position when discussing a ministerial code. There is no point in starting a six or eight-week discussion on the minutiae of the code at this point, not least because, as Conor said, there are so many other areas that interlink with the code and where issues inevitably seem to be discussed together. I am not sure how to pick out those elements of a ministerial code that should be included in statute, other than those relating to the broad principles of the obligations of Ministers, whether individually or collectively. Presumably, at this stage, a potential Westminster Bill or Order would be required prior to restoration. The Assembly would pass the rest of the code as secondary legislation based on that primary legislation. However, surely the Assembly must be in a position to amend the code, on an ongoing basis, through an appropriate voting mechanism. Therefore, it is difficult to enshrine much of it in Westminster statute. On that basis, we can make little progress now, beyond the broad generalities. We can talk about pledges to uphold the law, etc, but we will not get into the detail that occupies so many pages within the code. Mr McFarland: It strikes me that fairly substantial swathes of the ministerial code concern sensible custom and practice. For example, it states that a paper on a certain subject should go to a particular place, and so forth. I cannot see any of that being contentious. However, there are contentious areas, such as the obligations of Ministers and their ability to do their own thing, etc. Perhaps we should take time out and bring the issues that parties identify as contentious to the meeting next week or the week after that. Conor has a point: we may end up discussing many issues that impinge on a ministerial code before we have even got past first base in the negotiations on identifying those issues and whether they can be resolved. Once identified, those issues may have to be included in the ministerial code. I am trying to dig out the areas that parties will have to deal with in negotiations and produce a list, as the PFG Committee discussing law and order did earlier today. Parties can then sit down in October with a list of areas to examine. That list will dovetail with the list of issues that we have already identified for negotiation in October, which would simplify matters. The problem is that the draft ministerial code is quite a chunky document and takes a long time to wade through. However, if we can extract from it the key issues for negotiation that tie in with the other issues that need to be negotiated, it may be more simple to make progress. Mr P Robinson: Members thought that they had agreed something at earlier meetings. However, what was agreed clearly meant different things to different people. When it was agreed that the ministerial code, or elements of it, be put on a statutory basis, some people thought that the term “statutory basis” referred to primary legislation, which is the basis on which the Assembly has its standing. Others presumed that to mean that the code would be included in legislation enacted by the Assembly. That was the first difficulty, and I can see how that misunderstanding arose. If the code is not dealt with in primary legislation, we are back to “buts” in relation to the list of issues that need to be resolved. The issues that we had assumed could be dealt with within the ministerial code must still be dealt with through amendments to primary legislation. I wonder whether it is possible to reach agreement on a proposition that we agree that further consideration be given, prior to the restoration of devolution, to the ministerial code, or elements of it, being given a statutory basis and the extent to which it should comprise issues, which we will decide later. That proposal would simply allow for further consideration to be given to the issue, allowing us to deal with it in October. It does not bind us either to putting a ministerial code on a statutory footing or to including in it the specific matters that have been outlined. The Chairman (Mr Wells): That is a slightly beefed-up version of your previous proposal, based on the views that have been expressed. Mr Ford: Could Peter read his proposal again, please? The Chairman: Yes; I think that it is important that he does so. Mr P Robinson: The Committee agrees that, prior to the restoration of devolution, we should give further consideration to putting the ministerial code, or elements of it, on a statutory footing and give further consideration to the extent to which the ministerial code should comprise issues such as those that the Chairman has listed. The Chairman (Mr Wells): That refers to the six issues that we have parked. I shall put Mr Robinson’s proposal to the Committee. I will then be open to further proposals. If Mr Robinson’s proposal has fallen, there could be a further proposal that we plough through the ministerial code. If his proposal succeeds, however, we shall not plough through it. Do we have consensus on Mr Robinson’s proposal? Mr Murphy: May I seek some clarification? I have no issue with the ministerial code being given further consideration. There is no doubt that we shall give it further consideration. However, because of the way in which the proposal is phrased, it could be construed that further consideration of the issues listed is a prerequisite for restoration. I would not accept that. I accept that this Committee, in the course of its work, should give further consideration to all the issues. I do not have difficulty with the proposal, other than to make the point that were it to be interpreted as a prerequisite for restoration, I do not accept it. However, if that is not the understanding, Sinn Féin can support the proposal. The Chairman (Mr Wells): Mr Robinson has stated that this is a big issue for the DUP. Mr P Robinson: All that the proposal states is that further consideration be given prior to restoration. Mrs Long: Peter’s response partly clarifies the proposal. How the proposal is reported is an issue, and we encountered that this morning in the PFG Committee dealing with law-and-order issues. We noted in one instance that Sinn Féin did not accept something to be a precondition, yet the position of at least one party was that it was. Parties are therefore not consenting to something being a precondition but are recognising that for some people it may be. I think that that was how we got around that this morning. The fact that the proposal only asks that further consideration be given and not that agreement be reached means that it is not an issue. The Chairman (Mr Wells): With that one reservation in mind, do we have consensus on this proposal? Members indicated assent. Mr P Robinson: Can we go now? The Chairman (Mr Wells): We have much more business to do, but that certainly cuts out about three hours of discussion. Mr McFarland: Most of the code is not contentious, but it might be a useful exercise if we were to meet for an hour or two to identify those issues in the full ministerial code that are likely to be contentious. It would be useful for the Committee to have those at hand rather than wade through the entire code. We could extract the issues that will require negotiation, but we would not necessarily need to discuss them, because they will form part of October’s negotiations. However, by holding a meeting, we could acknowledge that one party or another has a difficulty with a particular part of the code. The Chairman (Mr Wells): Parties can do that by submitting papers to the Committee. If each party were to take away the ministerial code and return with a list of its difficulties, we could circulate that. Each of the five parties would then know where the others stood. It might be that only a dozen issues would emerge. Mr McFarland: Do we see a need for that list — however large — to be included in our report, or as an annex to it? As we discussed at length in the PFG Committee dealing with law-and-order issues this morning, logic dictates that it would be handy for people entering the negotiations to have a ready reckoner of the key issues. To help the parties and the Committee, would we want that clarity included? The report could state that we are happy with the ministerial code, except for the issues listed, which will be subject to negotiation. The Chairman (Mr Wells): We could do that, but that would require consensus in order for it to be included in the report. Mr McFarland: I understand that, but it might help to take an initial look at the ministerial code in Committee some day. If parties have 200 issues with which they are uncomfortable, there is no point in putting those in the report other than as one-liners. It would be better to discuss the whole report. However, if there are a small number of such issues, discussing those might help to clarify the position. The Chairman (Mr Wells): That would have to be agreed at the next Committee meeting so as not to hold up the report. However, the Committee has not yet agreed the principle of whether parties submit the report to the Clerks for circulation. Mr McFarland: We could do that, or we could have a meeting about it to which we come armed with our knowledge. We have managed to stay away — thank goodness — from endless party papers and thick files that have to be read and made sense of. However, if we meet face-to-face, we can come to an agreement quite quickly because we are able to ask one another: “Why are you doing that?” and to respond immediately: “That is nonsense” and so on. If we had an hour or two, either next week or the following week, before the report is submitted, we could dig out the issues. We do not need to debate them; we just need to identify them. We can do that by either circulating papers or by sorting it out at a meeting. The Chairman (Mr Wells): Given the nature of the problem, it would be best to have at least a piece of paper with a list of what members agree and disagree. The Clerks could distil that list into areas of concern. However, members must agree that they are happy to do that. Mr McFarland: It would be useful to ensure that each party produces such a paper so that none will state later that it would have liked to have included something but had not got around to it, or that some issue has not been fully covered. We will then all know with what each party is happy or unhappy. Furthermore, it will be recorded. Mr P Robinson: Given our experiences to date, anyone who thinks that the Committee can go through that volume of paper in a few hours is mistaken. We are capable of taking a very long time over each paragraph. My problem is that we are dealing with a ministerial code. The normal, and the best, procedure is that the Executive agree the ministerial code and propose it to the Assembly on behalf of the First Minister and the Deputy First Minister. However, there are elements of the code that we want put on a statutory footing; the rest of it can be left to the Executive to propose to the Assembly. The Chairman (Mr Wells): Are you not in favour of obtaining a tabulated statement from each party? Mr P Robinson: We will weary ourselves unnecessarily. None of those issues, except for those that we have identified as priorities, is an obstacle to devolution. Mr McFarland: It is clearly the intention that parts of the code be negotiated. Bits of it will end up on the negotiating table in Scotland in October — Mr P Robinson: We have extracted those items. Mr McFarland: Yes. However, you need to identify them. Mr P Robinson: We already have. The Chairman (Mr Wells): They are the six items that I read out about half an hour ago. Mr McFarland: Where did that list come from? The Chairman (Mr Wells): They came from the various discussions among parties. They are the parked issues. Mr McFarland: My point is that there is a proposal, which members may not have read, to substantially modify the ministerial code. We heard that for the first time today. However, once the implications of that proposal have been examined, the list may include 12 items. If we compile a list from the first code and produce the proposed new code, with modified sections, we need to identify the areas with which parties have trouble so that, when we start negotiating in October, we at least have some idea of where difficulties lie. Dr Farren: The phrase “such as” in the proposal allows for additions. Mr P Robinson: Yes; if they are issues that need to be resolved prior to restoration. Dr Farren: If we can circulate those in the next few days, that is fine. I do not think that the proposal excludes anything but the six items. That is why I am happy to endorse it. The Chairman (Mr Wells): I will let Mr Murphy speak, but I think that we can see a way through this. We need to move on, because we have a number of other items to deal with. Mr Murphy: I have reservations about each party producing another paper. We can all talk through this now and examine the six items that have been identified. I am not sure from which document that list was taken; if it were circulated, it might be helpful. I sense that, in trying to find common ground on all the issues, we are giving the Clerks more work for no real reason. During future discussions we might find that there are issues on which we agree and that there are issues that provoke further disagreement. Therefore, I do not know how serving papers early would aid the discussion. If each party comes back with its problems with, and attitudes to, the various sections of the code, members could discuss them as the issues arise. 3.00 pm The Chairman (Mr Wells): The Assistant Committee Clerk will distribute a copy of the six points to members for reference. We have consensus on Mr Robinson’s proposal. The phrase “such as” will enable others to add issues that they feel are important and that have not been highlighted at this stage. Ian Paisley Jnr’s proposal is on the Pledge of Office. He is not here, but I assume that others will be able to speak to his proposal, which is that: “This Committee believes that a breach of the Ministerial Pledge of Office should be actionable in the courts and followed by disqualification from office”. I presume that that disqualification would happen upon conviction. This proposal has been hanging around since 30 August. It has been referred to the PFG Committee, and, therefore, members need to try to reach a decision on it. Mr P Robinson: Where is it? The Chairman (Mr Wells): It is item 3 on the agenda. Mr Murphy: This might help to short-circuit the discussion. None of these proposals can be considered in isolation from a full discussion of the draft ministerial code and any other aspects of accountability mechanisms that members want to debate. I will not agree the proposals at this stage, although whether Sinn Féin consents to them at all is another matter. Therefore, rather than have an hour-long discussion on the merits of the proposals, it might be best to deal with them with all the other issues that the Committee is required to consider. The Chairman (Mr Wells): I will let the DUP answer that point. Mr P Robinson: It is not my proposal, but I am inclined to think that, as it is in schedule 4 to the Northern Ireland Act 1998, the ministerial Pledge of Office is already actionable in the courts. The Chairman (Mr Wells): Yes, the ministerial Pledge of Office is contained in the 1998 Act. Therefore, as it is on a statutory basis, it can presumably be subject to judicial review. Mr Ford: There is also the minor point that the sentence: “and followed by disqualification from office” could, perhaps, be concluded with “if appropriate”. The Chairman (Mr Wells): Yes, a Minister would have to have been convicted before that could apply. Mr Ford: Indeed, but that does not appear to have occurred to Mr Paisley Jnr when he drafted the proposal. Mr Murphy: Under the agreement, is it not the case that the Assembly, by cross-community vote, decides on disqualification from office? Perhaps the purpose of the proposal — and I am not privy to the reasoning behind it — was for a judge to decide whether a Minister should be disqualified from office. However, the broad point remains that it is impossible to consider either proposal in isolation from a full discussion of the draft ministerial code and other aspects of accountability. Mr P Robinson: Parties have experience of going to the courts when they believe that there has been a breach of ministerial responsibility. This is not a new issue; it has a history. There is also a history of the courts requiring Ministers either to do certain things or suffer the consequences. If the ministerial code were part of the statute, there would be a mechanism that people could use. However, I agree that the matter is tied up with other issues that the Committee has yet to discuss. If responsibilities were put on a statutory basis, people would have the right to seek judicial reviews. Mr Ford: I almost thought that Peter was, on behalf of the DUP, withdrawing item 3 on the agenda. Mr P Robinson: The purpose of the proposal at item 3 is dealt with by my proposal, which has already been passed. Mr Ford: Nevertheless, Peter’s proposal encompasses the issues around the draft ministerial code. Conor pointed out, quite rightly, that the Pledge of Office cannot be discussed without a discussion of the draft ministerial code. Whether I agree with Conor’s take on proposal 4 is not the point; it is not relevant to discuss that proposal now. The Chairman (Mr Wells): Do members wish to make any further comments? It seems that members are content not to deal with proposal 4 at this stage. Mr P Robinson: There is also the issue of whether it is a ministerial Pledge of Office or a ministerial code. The Chairman (Mr Wells): Yes, I noticed that. I am not quite certain. The difficulty is that Ian is not here. Mr P Robinson: Members appear to be content that those issues can be considered alongside, and are consistent with, the proposal that has been agreed. The Chairman (Mr Wells): The proposal is, in effect, withdrawn. It has not been dealt with. Does the same view apply to agenda item 4? Mr P Robinson: Is that one of the “such as” matters? The Chairman (Mr Wells): It could be. Mr P Robinson: It is probably in paragraph 70 or 71 of the — Ms Lewsley: Law-and-order report. The Chairman (Mr Wells): That report has been agreed. As the issue has been dealt with, I do not think that there is a need for debate. Having got the preliminaries out of the way, we move on to the main part of the meeting: the initial consideration of the draft report on institutional issues, which will be discussed in private session. The Committee met in private session from 3.06 pm to 4.05 pm. Adjourned at 4.05 pm. |