THE TRANSITIONAL ASSEMBLY

Tuesday 20 March 2007

The Assembly met at 12.00 noon (Madam Speaker in the Chair).

Members observed two minutes’ silence.

Assembly Business

Point of Order: Security Review

Rev Dr Ian Paisley: On a point of order, Madam Speaker. I have raised a series of points of order on security in the Assembly. I want to record my party’s best thanks to you and to the Commission for the Transitional Assembly for the work that has been done on that issue. My party welcomes what it knows of the report at present and hopes that we can soon discuss the report and any representations fully, and that the decisions that have been made are put into operation for the full security of every Member of the House.

Madam Speaker: On behalf of the Commission for the Transitional Assembly and the people who have carried out the security review, I thank Dr Paisley for his point of order and his remarks. Party leaders and Members will be informed of the outcomes of the review within the next couple of days. The report will be presented to the House in due course.

Roll of Membership

Madam Speaker: I have had an opportunity to scrutinise the entries in the Roll of Membership and am satisfied that 103 Members have taken their seats in accordance with Standing Orders.

Regarding designations of identity, eight Members entered designations that I have deemed to be “Other” for the purposes of Standing Orders. Members will find details of the designations in the Minutes of Proceedings for the sitting on 13 March.

As not all Members have yet signed the Roll of Membership, there will now be an opportunity for any Member present who has not yet done so to come forward to sign the Roll. I shall invite Members to come forward in alphabetical order by the name of their party

I invite Mr Edwin Poots of the Democratic Unionist Party to come forward to sign the Roll of Membership.

The following Member signed the Roll of Membership:

Poots, Edwin           Unionist

Madam Speaker: I invite Mr Pat Doherty, Mr Fra McCann and Mr Barry McElduff of Sinn Féin to come forward to sign the Roll of Membership.

The following Members signed the Roll of Membership:

Doherty, Pat            Nationalist

McCann, Fra          Nationalist

McElduff, Barry      Nationalist

Madam Speaker: I thank Members for their co-operation and patience during the signing of the Roll of Membership. I am satisfied that the Members have signed the Roll and have confirmed their designations. Mr Edwin Poots, Mr Pat Doherty, Mr Barry McElduff and Mr Fra McCann have now taken their seats.

The Roll will be placed in the Chamber on sitting days to enable any other Member who has not yet signed the Roll to do so.

Standing Orders of the Transitional Assembly

Madam Speaker: I wish to inform the House that I have received a letter from the Secretary of State advising that a direction has been made under paragraph 9(3) of schedule 1 to the Northern Ireland (St Andrews Agreement) Act 2006, amending Standing Orders 20 and 21 of the initial Standing Orders of the Transitional Assembly. A copy of that direction was issued to Members last Friday.

Mr Ford: On a point of order, Madam Speaker. Further to the information that you have just given us, I note that the revised Standing Order 20(d) states that:

“the Secretary of State shall notify the Speaker when persons have accepted nomination”.

Has the Secretary of State given you any indication of whether he will supply copies of those acceptances so that we can avoid the situation that arose on 24 November and that Members will have the opportunity to judge whether those acceptances have been given in a wholehearted manner?

Madam Speaker: Thank you, Mr Ford. As I said, I have issued a copy of the letter to all Members. That is the only direction that I have received. If I receive any further information, I will inform the House as soon as possible.

Committee Business

Draft Ministerial Code

Madam Speaker: The Business Committee has agreed that each contribution to this debate will be limited to a maximum of 10 minutes.

I wish to outline how I propose to conduct the proceedings. I will call the Chairperson of the Committee on the Programme for Government to move the motion. I then propose to ask the Assembly to consider the draft ministerial code, paragraph by paragraph, in numerical sequence, either individually or, where no amendment appears on the Marshalled List, in groups.

Decisions in respect of these questions will be decided by simple majority, as provided for in Standing Order 17 of the Transitional Assembly. At the end of this process, the question on the draft ministerial code, as a whole, will be put. However, as there is an amendment to that question itself on the Marshalled List, it will also be put then and an opportunity for debate will be provided at that time.

The Chairperson of the Committee on the Programme for Government (Mr Wells): I beg to move

That this Assembly takes note of the draft Ministerial Code.

This is an extremely important debate and one to which many Members attach a great deal of significance.

At its first meeting on 27 November 2006, the Committee on the Programme for Government recognised the importance of this issue and agreed that the Committee itself would deal with this matter. Since then, the Committee has discussed and considered the draft ministerial code on a number of occasions, and considerable work has been undertaken by party advisers and officials from the Office of the First Minister and Deputy First Minister. I pay tribute to all those who were involved in that quite complicated process.

Members will be aware of paragraph 4 sub-paragraphs (1) to (3) of schedule 1 of the Northern Ireland (St Andrews Agreement) Act 2006 which state that:

“(1) The proceedings to be conducted by the Transitional Assembly shall include the preparation and consideration of a draft Ministerial Code.

(2) If the Transitional Assembly approves the draft Ministerial Code (with or without amendments) before 24 March 2007, the approved draft Ministerial Code shall become the Ministerial Code for the purposes of section 28A of the 1998 Act on 26 March 2007.

(3) Any approval under sub-paragraph (2) requires cross-community support”.

The Northern Ireland (St Andrews Agreement) Act 2006 also states that, without prejudice to section 24 of the Northern Ireland Act 1998, a Minister or junior Minister shall act in accordance with the provisions of the ministerial code.

It also requires that the draft ministerial code must include provision for requiring Ministers or junior Ministers to bring to the attention of the Executive Committee any issue which ought, by virtue of section 20(3) or (4) of the 1998 Act, to be considered by that Committee. That is reflected in paragraph 2.4 of the draft code.

The Act also establishes a procedure to enable any Minister or junior Minister to ask the Executive Committee to determine where any decisions that he or she is proposing to take, or has taken, relates to a matter that ought, by virtue of section 20(3) or (4), to be considered by that Committee. This is reflected in paragraph 2.5 of the draft code.

The Act states that the ministerial code must also include provision for procedures of the Executive Committee in relation to: the taking of decisions — that is provided for in paragraph 2.12 of the draft code; and consideration by the Executive Committee of decision papers that are to be considered by the North/South Ministerial Council (NSMC) or the British-Irish Council. This is provided for in paragraphs 2.13 of the draft code. Paragraphs 3.1 to 3.22 of the draft code also set out in detail procedures relating to the North/South Ministerial Council and the British-Irish Council.

12.15 pm

In addition, the ministerial code must provide: that it is the duty of the chairman or chairwoman of the Executive Committee to seek to ensure that decisions of the Executive Committee are reached by consensus where possible; that if consensus cannot be reached, a vote must be taken; and that, if any three Members of the Executive Committee require a vote on a matter that is to be voted on by the Executive Committee to require cross-community support, any vote on that matter shall require cross-community support in the Executive Committee. Those matters are dealt with in paragraph 2.12 of the draft ministerial code.

Members should be aware that if the Transitional Assembly has not approved the draft ministerial code, with or without amendments, before 24 March 2007 — which is Friday — then the Secretary of State must prepare a draft ministerial code, which will become the ministerial code for the purposes of the Northern Ireland Act 1998, section 28(a). The draft ministerial code must — so far as is practicable — be in the form of any parts of the draft ministerial code that have been approved by the Transitional Assembly before 24 March, or of the former ministerial code, and must make the provisions that I have outlined.

Members should note that if the draft ministerial code does not include all the provisions set out in the Northern Ireland (St Andrews Agreement) Act 2006, it will not comply with the legislation, and will be supplemented by procedural guidance, which will be a matter for the Executive Committee to consider.

To conclude, Madam Speaker, as Committee Chairperson it would not be appropriate for me to comment on the amendments that have been tabled. I commend the motion to the House.

Madam Speaker: We will return to the debate on the substantive question when we have disposed of the text of the draft ministerial code, which we will now proceed to consider paragraph by paragraph. First, we will deal with section 1, which contains the preamble, the Pledge of Office, the ministerial code of conduct and the seven principles of public life.

Paragraphs 1.1 to 1.2 agreed to.

Madam Speaker: I understand that there may be some objection to paragraphs 1.3 to 1.6. Mr Attwood has asked to speak on those paragraphs, and I invite him to do so.

Mr P Robinson: Does Mr Attwood have an amendment?

Madam Speaker: Before Mr Attwood begins, I remind Members that he is not speaking to an amendment. He has merely asked to speak, and, as is the tradition and convention, I permit him to do so.

Mr Attwood: Madam Speaker, I thank you for giving me the opportunity to speak.

Mr Weir: On a point of order, Madam Speaker. We have already voted on approving those.

Madam Speaker: We are now discussing paragraphs 1.3 to 1.6.

Mr Weir: Have we not approved section 1?

Mr Attwood: Madam Speaker, thank you for the opportunity to speak on this matter. However, it would have been more productive if Members had been given the opportunity to speak on the amendment tabled by the SDLP. That would have given all Members an opportunity to address this matter by way of —

Mr P Robinson: On a point of order, Madam Speaker. Can you indicate whether any amendment was received but not called by you, or is the Member speaking on the motion that the paragraphs be agreed?

Madam Speaker: Thank you, Mr Robinson. The amendment was deleted. Every Member has an opportunity to speak to this motion, and they may put their names in the usual manner to the Clerk.

Mr Attwood: I reiterate my thanks at being given the opportunity to comment on paragraphs 1.3 to 1.6 of the draft ministerial code.

Mr Weir: On a further point of order, Madam Speaker. Was an amendment put down and then withdrawn, or was it not accepted?

Madam Speaker: The amendment was received and deleted.

Mr Weir: Deleted, as in not accepted?

Madam Speaker: It was not accepted.

I have called Mr Attwood to speak — any Member is entitled to speak. We are now on paragraph 1.3, not section 1. Members have already agreed paragraphs 1.1 and 1.2, and we are now discussing paragraphs 1.3 to 1.6.

Mr Attwood: Thank you for the opportunity to speak on this matter, Madam Speaker. Will you confirm that I have 10 minutes?

Madam Speaker: That is your allocated time.

Mr Attwood: I wish to comment on the Pledge of Office. Unlike one or two other parties in the Assembly, the SDLP has never had any difficulty in living up to the requirements of the Pledge of Office and the ministerial code. It is somewhat ironic to the SDLP that those Members who argue most vigorously and relentlessly for collectivity on the one hand and accountability on the other are some of those people who, in a previous Assembly, failed to live up to the requirements outlined in the Pledge of Office and the ministerial code.

The SDLP welcomes those who have come late to the realisation that to be involved in power sharing in this part of Ireland, and if Government is to work to its best and if the community is to be served to the maximum, then there are requirements to live by collective decision-making and to live up to ministerial responsibility.

Secondly, compared with where this issue was going a matter of days, weeks and months ago, as regards binding and shackling Ministers and putting Ministers and Government into a straitjacket, the SDLP welcomes and acknowledges that some of the worst intentions of people in the Assembly have been reversed. Some of the damage that could have been done to the power of Ministers to govern and the Executive to fulfil its responsibility to the community have been lessened.

The SDLP welcomes that and the fact that, within a week, it may be the case that parties in the Chamber will go into Government and share power on behalf of the people in the North. However, the SDLP sends out one gentle warning. Power sharing is not power splitting. If Government is to work to its best, and if the people’s needs on the issues that have been identified in the election campaign and over the years of suspension are to be addressed, it cannot be done on the basis of splitting power between parties and Ministers. It must be done on the basis of sharing power and responsibility for those decisions. If parties go into Government next week, the SDLP trusts that that will be the ethic, the essential value, that will inform parties when sharing Government, and that no other ethic, least of all that of separation, will dominate.

I wish to address the issue of the Pledge of Office because the SDLP believes that those who negotiated the matter, to the point that we now face in the ministerial code, have over-negotiated their hand, and will end up regretting and living in error on the basis of what they may decide at the end of this debate.

The SDLP’s proposed amendment was designed to remove the Pledge of Office from the ministerial code. It is not that the SDLP does not support the Pledge of Office — as I emphasised at the beginning of my speech, the SDLP supports it emphatically. In Government, the SDLP has always abided by it, and will continue to do so if in Government again, but we are opposed to making the Pledge of Office legally enforceable. If Members cast their minds back to the Northern Ireland Assembly, the Pledge of Office was enforceable by the Assembly — there were all manner of sanctions that that Assembly could apply to a Minister who did not comply with the Pledge of Office. Those sanctions were significant and expansive. They included censure, reduction in financial support and, ultimately, exclusion.

Not only did the Assembly have power in respect of the Pledge of Office, but such power also existed outside the Assembly. In the event of the Independent Monitoring Commission upholding a complaint that the Pledge of Office had been breached, it was in the gift of the Secretary of State for Northern Ireland to take appropriate action. Ensuring that Ministers abided by the Pledge of Office was not something warm and meaningless; rather, it was precise and demanding. The Assembly, and authority outside of the Assembly, had power to act in the event of the pledge being breached.

Now, however, the Pledge of Office will become legally enforceable. My party believes that, in the event that an Executive is formed and endures, that will have consequences for Ministers and for the Executive in years to come. What happens when the transition is made from a Pledge of Office that is political in nature, subject to the sanction of the Assembly and external authority, to a pledge that is legally enforceable? It is something that other parties in the Chamber have failed to appreciate until the damage has been done.

When the pledge becomes legally enforceable, the courts are dragged into the functions of the Assembly. [Interruption.]

Yes, it happened before.

A power that is legally enforceable creates license not just for Members, but also for organisations outside the Chamber, to challenge, by way of judicial review, decisions taken by an Executive or by a Minister. It opens a gate that the Assembly will take a long time in closing. It is a recipe for litigation and for the impairment of good government in this part of Ireland.

That which happened rarely in the previous Assembly could happen much more regularly and routinely, so that any decision about funding for a hospital or a road — or any other decision that might emanate from a Minister — could be subject to challenge. That challenge would be more broadly based and would be taken more seriously by the courts, given that the Pledge of Office was legally enforceable.

It also has consequences for every Member who tables a motion in the Assembly. The consequence of the new ministerial code and a legally enforceable Pledge of Office is that when the leader of the Alliance Party, the Ulster Unionist Party or Sinn Féin tables a motion in the Assembly, he or she must be mindful that the motion can have the weight of law, in that it could be legally enforceable. When any Member tables a motion in order to give a sense of the Assembly, or to reflect a matter of public concern that has arisen in the wider community, that Member, that Party, and the Assembly will have to draft that motion so that it is unambiguous and absolutely certain and clear as to what is intended. If that does not put a straitjacket on Members, I do not know what does.

My party wishes that its proposed amendment relating to the Pledge of Office motion had been debated, so that, even at this late hour, those who idly accepted the DUP approach — which creates a straitjacket around the Assembly and the Executive — might have appreciated the error of their ways and recanted.

12.30pm

Mr P Robinson:I had not intended to speak, until I heard the Member’s remarks. Today has just got longer.

As I understand the Member’s position he supports the Pledge of Office, which is the reason he wants it removed from the ministerial code. He seems to think that if it is removed it will somehow disappear. He presumably did not listen to the proposer of the motion, who said very clearly that this matter is governed by legislation — if the ministerial code is not passed here it will be directed elsewhere by the Secretary of State.

Let me deal with the substance of the Member’s remarks. I had thought that he had something of a legal background. It is slightly strange that someone who has something of a legal background should be so much against having legal sanctions. The requirement that a ministerial Pledge of Office should be justiciable seems to me entirely proper in an Assembly where, quite frankly, there is not the level of trust that allows normal conventions to operate. Why is that the case? Because we have seen it in practice. This is not something that has been drawn out for the first run of an Assembly. These are changes that are coming about because of the bitter experiences that many of us have had of previous processes. It is very clear that within the previous structures there was not the accountability that there can now be within this one.

Any Assembly will work — or not work — depending on the determination of the Members of that Assembly. It sails past me that we have the attack from the Member opposite because we did not abide by his understanding of a ministerial code on a previous occasion. Lest he has forgotten, the DUP was opposed to the previous structures, and one of the reasons we were opposed to them was because of the very lack of accountability that this ministerial code produces on this occasion. His attack misses the DUP entirely. I suspect that his real target is not the DUP but perhaps the party to his right, Sinn Féin. If he wants to have a rerun of the election, so be it. Usually, however, replays happen if there is a draw, and I got the impression that the election was not exactly a draw, so he may not have the right of a replay.

It is very clear: the election has passed, and he should leave the politicking behind. Let us get down to the serious business of trying to move forward in a sensible way, taking account of the failures of the past and ensuring that we have in place the kind of ministerial code that will ensure that people can be confident that they are not going to be bypassed and that there is going to be full accountability within the Executive and the Assembly. That, I would have thought, is a democratic principle, never mind a legal principle, that everybody in this House would want to uphold.

I hope that the Member opposite will recognise that this debate took place in the House of Commons and the legislation was passed in the House of Commons; he cannot change that legislation here in this Assembly. This Assembly is a creature of statute set up by the United Kingdom Parliament, which is the sovereign Parliament in Northern Ireland, and no matter what he whistles at this time he is wasting his breath. He should save it for blowing his porridge in the morning, because it will not make the least change to the legislation. This House has not the power to do that.

Some Members: Hear, hear.

Mr Murphy: Go raibh maith agat, a Cheann Comhairle.

I would like to speak briefly in relation to the entire debate, although we are dealing with this paragraph by paragraph. Our objective in dealing with all of these issues, which goes right back to the time when there was a formal review of the Good Friday Agreement under the review procedures contained within it, has been to ensure that the fundamentals of the Good Friday Agreement were adhered to in any review or reworking of the rules and regulations that govern any of the institutions that flow from the Good Friday Agreement. We maintained that approach in all our discussions subsequent to that review, right up to and including the St Andrews discussions. We are satisfied that that objective has been achieved and that the principles of the Good Friday Agreement, as reflected in the original ministerial code and in the Standing Orders that cover this Assembly and the rules and regulations that cover the other institutions, are protected in this ministerial code.

I listened to Alex Attwood’s concerns in relation to the Pledge of Office. I have heard them reflected in some of the committee meetings that we have had.

I am glad that Mr Attwood took a broader approach to the subject, as opposed to the ongoing SDLP approach, which has been one of sound bites and talk of drive-by vetoes and so forth. Whatever that meant was lost on almost everyone else.

The SDLP claims to be the architect, certainly of strand one, of the Good Friday Agreement, which includes arrangements for the operation of the Assembly, and the Pledge of Office is included in the 1998 Act. Mr Attwood has been reminded, and indeed he mentioned this, that the inclusion of such arrangements did not stop Ministers ending up in court in relation to responsibility for their decisions, such as where to site the new maternity hospital.

During the last Executive, the Minster of Education and the Minister of Health, Social Services and Public Safety had to take the First Minister to court to enable them to carry out their functions under the NSMC arrangements. The court found that the First Minister had acted unlawfully, but that did not alter his behaviour. Nonetheless, the fact that Ministers ended up in court shows that the safeguards and mechanisms built into the Good Friday Agreement guarantee all Members’ rights. However, there are enough mechanisms to enable Members to trip each other up every day of the week if they wish to play that game.

The Assembly will work only if parties agree to do the sensible thing and get on with providing a Government and Administration that are concerned with the needs of the people who have elected us to this institution. That is the objective that will govern Sinn Féin’s approach to this debate and its attitude to any amendment.

Given that the SDLP supported the establishment of the Independent Monitoring Commission (IMC) and the powers given to it, I am somewhat bemused by Alex Attwood’s lament about the powers of the commission and the Secretary of State to intervene in the operation of this institution. If the SDLP is so exercised by the subject, it will have the opportunity, during the debate on Standing Orders, paragraph 42 (d) of which reflects those powers, to join Sinn Féin in opposing them.

Madam Speaker: May I point out, Mr Murphy, that the current debate is on paragraphs 1 to 3 of the ministerial code. Perhaps you would stick to those. You will have the opportunity to debate the IMC and related subjects later.

Mr Murphy: Go raibh maith agat, a Cheann Comhairle.

The Member who introduced the debate referred to — and expressed some alarm about — the powers of the IMC and the Secretary of State to intervene in the Assembly. I am merely responding to that by saying that it is somewhat late for Mr Attwood to come to the Assembly with such concerns. The SDLP supported the establishment of the IMC and its powers to intervene in the political process and did not defend other parties when they were unjustly punished by the IMC.

Madam Speaker: Before you give way to Mr Durkan, may I say that you may well be right, Mr Murphy, as I was having problems with hearing all of what Mr Attwood was saying. However, I am sure that Mr Attwood is content with what he said.

Mr Durkan: On a point of order, Madam Speaker. You have ruled that Mr Murphy has been speaking off the subject that is before the House. I wish to add that he is also misinforming the House. The SDLP supported the establishment of a monitoring body: it did not support that body having the power of political sanction. The SDLP is on record as having opposed that at Hillsborough and at Westminster.

Mr Murphy: I thank the Member for his intervention. However, when the SDLP supported the establishment of the IMC, what did he honestly think that its role would be other than to interfere in the institutions? David Trimble called for the IMC to be established precisely so that it could interfere in the institutions, because he could not get his way through the democratic process of the Assembly.

Sinn Féin’s objective has been to ensure that the fundamentals of the Good Friday Agreement are faithfully reflected, and that objective has been secured. Sinn Féin will support the amendments that are consistent with that and oppose those that are not. Go raibh maith agat.

Rev Dr Ian Paisley: I am amazed at the statement made by the SDLP’s spokesman, Mr Attwood. In any contact that the SDLP had with the DUP at St Andrews, it preached that pledges formed an essential part of any agreement, and I wholly agreed with that. In fact, at a meeting with the Prime Minister, the details of which have already been leaked to the press, the SDLP leader, Mr Durkan, told the Prime Minister that he acknowledged the controversy that was raging over pledges at that time.

Those are the facts of the situation. I was absolutely flabbergasted when I sat in the House and heard the SDLP spokesman trying to say that they would have nothing to do with it. Everybody knows that there was controversy over the pledges, and that there was strong discussion and argument. However, at that time the SDLP was on the side I was on, namely that the issue of pledges should be in this document.

That was debated in the House of Commons and made part of the law of this country. Members do not have any power to change something that is already law; we cannot have anything in this that goes against the recent law of our country. The issue stands, and I believe that everyone who wants to take part in the Government of Northern Ireland should agree with those pledges and do the best they can to keep them so that the people will know those pledges are realities and not just playthings.

Madam Speaker: Thank you, Dr Paisley. You are the last of the Members who indicated that they wished to speak on the issue.

Paragraphs 1.3 to 1.6 agreed to.

Madam Speaker: Members will now move to section 2 of the draft ministerial code. It deals with the Executive Committee. No amendments to paragraphs 2.1 to 2.7 are proposed.

Paragraphs 2.1 to 2.7 agreed to.

Madam Speaker: I understand that there may be some objections to paragraph 2.8. I call Mr David McNarry.

Mr McNarry: Madam Speaker, neither the Ulster Unionist Party nor I have any objections to paragraph 2.8.

Madam Speaker: I thank Mr McNarry. Before I put the vote on paragraph 2.8 I will give Mr Attwood the opportunity to speak.

Mr Attwood: I thank Madam Speaker for calling me again. I wish to emphasis a point and put it on record in respect to paragraph 2.8 of the draft ministerial code, and in particular the last line of that paragraph, whereby Ministers would pledge:

“to support, and to act in accordance with, all decisions of the Executive Committee and Assembly”.

I repeat that point for all Members of the Assembly. The draft says to “support” and “ to act in accordance with” all decisions of the Assembly. Given that decisions would be interpreted to include matters such as resolutions passed by the Assembly, that has consequences for how the Assembly does its business. We can comment later on how the Executive does or does not do its business; however, we must consider the implications for how the Assembly does its business.

Madam Speaker: Mr Attwood, I am having difficulty hearing you. I have asked to get the sound checked out; however, for the meantime, please address your comments through the Chair.

12.45 pm

Mr Attwood: Thank you, Madam Speaker. As I was saying, the likely consequence will be that all decisions will be interpreted as being inclusive of, for example, resolutions of this Assembly, which Executive Ministers will be obliged to uphold. The consequence of that could be significant for Assembly staff giving advice to Members about how to draft motions.

In the first Assembly, as far as I recall, there may have been only one example of a Private Member’s Bill being drafted so as to ensure legal certainty and precise definition. That was a particularly onerous undertaking. As a result, when it comes to motions of this Assembly, Members will have a heightened responsibility to ensure that their intentions are absolutely clear, that there is no reason for doubt and that there is certainty. The consequence of that for decisions of the House on matters that might arise is significant and substantial.

Mr Weir: Unless I picked him up wrong a few minutes ago, Mr Attwood seemed to be suggesting that one of his main objections to the first set of proposals was that it would lead to power being divided between parties rather than shared. He now appears to be complaining that that might lead to collective decisions being made by the Executive. I am sure that Mr Attwood can make an argument for one case or the other, but it seems entirely strange to me that he is arguing two completely contradictory positions. I would be grateful if Mr Attwood would enlighten the House on the true position of the SDLP on this matter.

Mr Attwood: I thank Mr Weir for his intervention. It is not the first time that he has missed the wood for the trees. Let me repeat the point that I made earlier. We welcome the fact that, within a week, a collective Executive may be formed that may live up to the responsibility of being a collective Executive on behalf of the people of the North. However, as Mr Weir will recall, we gently made the point that when the parties went into Government the danger was that it would lead to a culture of power splitting rather than power sharing. That was the broad political thrust of the point that I made on behalf of the SDLP, and I will make it again.

The ethic of power sharing is difficult and demanding, and it is a value that requires great attention and dedication. Given the inevitable turbulence that will inform politics in the North over the coming months, it is important that that ethic and value is at the core of what the Government stand for. Given the past history of parties — although we have travelled a long road over many years — there is a danger that a power-splitting culture may yet inform elements of the Government. We all trust that that will not happen, but if anyone, including Mr Weir, disregards that, or does not consider it a serious threat, I suggest that he should think again.

That is different from the fact that under the influence of the DUP, various mechanisms were negotiated into the draft ministerial code that put into law and practice elements that had the potential to damage the ability of Ministers to carry out their business and impede the Executive in the fulfilment of their collective responsibilities. That was negotiated into the draft ministerial code, which, as the member for East Belfast Mr P Robinson rightly pointed out, is now in law. The Pledge of Office is not necessarily in law, but the ministerial code is in law —

Mr Weir: It is in the Act.

Mr Attwood: It is referred to in the Northern Ireland (St Andrews Agreement) Act 2006. [Interruption.] Go and check the legislation. Let me explain it to the Member for East Belfast, Mr P Robinson. The draft ministerial code, which includes the Pledge of Office, is legally binding. Consequently, there is a danger that the Pledge of Office also becomes legally binding.

The problem with Mr Weir’s point is that the ministerial code obliges Ministers to uphold Assembly and Executive decisions; those decisions, therefore, would also become legally binding on Ministers. This can get a bit technocratic sometimes, but in the real world, when the Assembly is up and running, Members will have to face those issues.

Mr McFarland: I understand why there might be a wish to collectively bind the Executive. Is it that the Member is concerned about the debates on motions from individual Members on Tuesday afternoons at 5.00 pm, which see two men and a dog sitting in the Chamber, demanding to have a resolution passed on a new hospital for Ballymena? Members who served in the first Assembly will be familiar with that. Is the Member suggesting that a few Members on a Tuesday afternoon could pass a resolution in the Chamber on a matter of local interest that, as a result of the ministerial code, would be binding on the Minister?

Mr Attwood: That intervention captures what would happen in the real world. A motion debated at 5.00 pm on a Tuesday afternoon — subject to there being a quorum in the Chamber — would have to be drafted with legal clarity, and, if the motion were agreed to, it would be binding on the Executive. That would have consequences, and Members should have their eyes open to those consequences.

It would frustrate Members of the Assembly from passing resolutions that create a sense about some issue — whether in North Down or more regionally — that do not have the intention to bind people, but rather to give expression to public concern or public disquiet in a way that the electorate would expect of parties fulfilling their democratic responsibilities. [Interruption.]

Madam Speaker: Order. None of us at the Table can hear what Mr Attwood is saying. He is doing his best; however, I would be grateful if Members could conduct their conversations as quietly as possible or outside the Chamber.

Mr Attwood: Thank you, Madam Speaker. I have made my point.

Mr P Robinson: Of what I heard — and I suffered to a lesser extent than you, Madam Speaker — I understand that the Member would prefer to remove the last bullet point in paragraph 2.8 of the draft ministerial code, which is an affirmation that Ministers have:

“to support, and to act in accordance with, all decisions of the Executive Committee and Assembly”.

However, that is normal democracy: it is what happens every day in our national Parliament at Westminster. Any decision that is taken at Westminster is binding on the Government. If, for some reason, the Government do not have their Whips in order, or if they are not earning their money and a resolution goes through that they do not like, then it is up to the Government to put forward another resolution to rectify the situation.

As for the two or three people sitting in the dead of night in the House of Commons or in this Assembly, those would be Adjournment debates that are not legally binding as they are made on the motion that the House does now adjourn. That does not bind the Executive or the Assembly in any way.

Regarding Mr Attwood’s point about the Pledge of Office, I direct him to the Northern Ireland Act 1998, schedule 4, where he will find under the heading “Pledge of Office” — which might have been a clue for him — the original Pledge of Office.

He will also see the additions to that Pledge of Office in section 7 of the Northern Ireland (St Andrews Agreement) Act 2006. It is in the legislation and therefore binding on Ministers.

I understand that Members might have concerns. The basis of the proposition in the ministerial code is to get greater collectivity and to encourage the Executive to act as a collective body. I should have thought that even the SDLP would want that. I cannot understand quite why its members want to remove that obligation from Ministers.

The nonsense that some decisions might be taken that the Executive might be forced to abide by indicates either some lack of knowledge about how Governments can rectify such situations should they occur, or less faith than I have in the whipping systems of the Assembly. Certainly, the DUP Whip would have our Members out if there were any resolution in the Order Paper that was injurious to the good health of his ministerial colleagues or the Assembly itself. I am sure that other parties would do the same.

Mr Ford: I am also puzzled by Mr Attwood’s line. He appears to be concerned that there would be consequences for a motion passed in this Assembly — or rather in the Assembly as we hope it to be in a week’s time. I understood that we were elected to the Assembly to make a difference to the people of Northern Ireland and that resolutions passed here should have consequences.

When Kieran McCarthy proposed a motion in favour of free personal care for those who required it, the House supported it unanimously. The fact that everyone but the Alliance Party back-pedalled a year later when there was a Bill that could have made a difference on the issue illustrates what might happen in the future. However, if this is really to be a legislature, we must accept that there will be consequences for what we say. Mr Attwood’s suggestion that we should not want that to be the case is puzzling.

Mr Peter Robinson has pointed out that Mr McFarland’s example of an adjournment debate between two men and a dog — and these days at least one of them should be a woman, at least from my party’s point of view — would not be binding on the Assembly.

Mr Attwood has spoken on at least two occasions about the necessity of seeing power sharing, and not power splitting, in the Chamber. I entirely share the concerns that others might have as to whether the two largest parties are fully committed to the concept of power sharing. However, I would have to ask the SDLP Member where he was between 1999 and 2002 when we were supposed to have power sharing in this place. We clearly did not; Ministers operated in silos, doing their own thing and having very little regard for anyone else — whether in the Assembly or in the Executive. Principled complaints were directed from the unionist side of the Chamber at the Minister for Health, Social Services and Public Safety and the Minister for Education, but they were not the only Ministers to behave like that.

I have wonderful memories of the day when I successfully defeated a Minister 3:1 in an amendment to the Game Preservation (Amendment) Bill. I remember not just the victory, but the sight of Ministers sitting in their seats in the Chamber while their Executive colleagues went through one lobby and Members of their own parties went through the other lobby. Is that a recipe for coherent Government? Can that give any opportunity for this society to move forward? If we cannot enhance collectivity, there will be a further period of very bad Government, with people doing their own thing in their own silos and no movement forward.

Of course the problem was not down only to individual Ministers. The Office of the First Minister and the Deputy First Minister was set up to provide a collective lead. At least in those days we elected the First Minister and the Deputy First Minister jointly, as opposed to the Secretary of State determining whether people had given pledges. Nevertheless, on something as fundamental to the future of this society as the policy on a shared future, we could get no agreement from a First Minister and a Deputy First Minister elected collectively with the remit to carry through that policy.

Therefore, when talking about concerns about ensuring greater collectivity, it ill behoves a member of the SDLP — or, indeed, the Ulster Unionist Party — to lecture other Members of this House.

1.00 pm

Mr Durkan: As Mr Attwood said, our main concern with paragraph 2.8 lies in the potential implications from giving full legal effect to the requirement that any decision of this Assembly be binding on Ministers and on the Executive. We have no problem with the Pledge of Office itself; we negotiated the Pledge of Office into the agreement and fully supported its inclusion in the Northern Ireland Act 1998.

The Pledge of Office exists as a tool of this House and of its Members to ensure that Ministers perform to certain standards and in a certain, clear spirit. However, by incorporating the Pledge of Office into a ministerial code that has full statutory effect, it would become not just a tool in the hands of Members but a potential weapon in the hands of people outside. Various interests might want to challenge or delay decisions that have been made or planned by Ministers —

Madam Speaker: Mr Durkan, I must point out that there has already been a vote on the Pledge of Office. We have moved on to the section of the report that deals with the Executive Committee. I appreciate that paragraph 2.8 states that:

“Ministers have affirmed the Pledge of Office”,

but we are discussing the bullet points in paragraph 2.8.

Mr Durkan: I am referring specifically to the fourth bullet point in paragraph 2.8.

The fact is that a relatively innocent expression of concern or hope on the part of Members could be taken by somebody else who wanted to challenge or obstruct a decision that had been made or was pending and incorporated into a judicial review. We need to be aware of the consequences of that. Things will not operate quite as innocently as Members might want.

We want to make sure that Ministers appear before this House more often. In the review of the workings of the agreement, and at the negotiations at Leeds Castle, we put forward more proposals to improve accountability and add transparency than any other party. We want the Assembly to have a much stronger role and, again, we put forward proposals to that effect.

We are concerned that the provision could work in two ways, one of which has been described very well by Alan McFarland. However, the provision could also end up being used to intimidate Members against expressing their views. Committees could be intimidated from putting forward resolutions on issues that they wanted addressed. Ministers will be told by their civil servants to tell the Assembly that if a loosely worded motion is passed it will create difficulties for them. We might end up with less debate and fewer expressions of interest.

We are asking Members to think about the consequences of the provision. When those consequences arise, and Members want to revise things, they will know what we were talking about.

Madam Speaker: I have received no indications from any other Members that they wish to speak, so I shall put the Questions.

Paragraph 2.8 agreed to.

Paragraphs 2.9 to 2.13 agreed to.

Madam Speaker: Amendment No.1 on the Marshalled List relates to paragraph 2.14.

Ms Ritchie: I beg to move amendment No.1: In paragraph 2.14 leave out from after the first “meeting” to end of paragraph and insert:

“the responsible minister, or ministers in the case of the First Minister and Deputy First Minister, should as far as practicable set out in writing to all ministers and the Secretary to the Executive –

1.   the decision to be taken;

2.   the background to the issue;

3.   the views of any other ministers with a relevant interest;

4.   the position of any other interested administrations; and

5.   the consequences of deferring the decision in question pending the next Executive Committee meeting and of not taking it at all.

A matter dealt with in this way will be deemed to have been dealt with in accordance with paragraph 2.4 of this Code. Ministers should communicate their responses to the Secretary to the Executive within the time limit specified by him – and failure to do so will be taken as assent. Decision making under this written procedure shall be as under paragraph 2.12 and the Secretary to the Executive shall notify the responsible minister of the outcome.

Where it is not practicable for reasons of genuine urgency to follow the procedure above, the responsible minister, or ministers in the case of the First Minister and Deputy First Minister, should notify the Secretary to the Executive of the decision taken and, so far as practicable, the matters set out at 2. to 5. above. A matter dealt with in this way will be deemed to have been dealt with in accordance with paragraph 2.4 of this code.”

The SDLP seriously and anxiously wants the restoration of the political institutions, namely the Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council.

An essential requirement of the Executive is their ability to deliver good Government for the people of Northern Ireland. That is something to which the SDLP earnestly wants everyone in the Chamber — all 108 Assembly Members — to subscribe. Hence, the SDLP’s amendment is designed to ensure that proper procedures for emergency decisions be introduced. Such procedures are essential to good Government.

The Member for East Belfast Mr Robinson referred to the failures of the previous Administration. However, I refer Members to the good Government of the previous Administration. Members will recall the 2001foot-and-mouth crisis. On one day in particular, the then Minister of Agriculture and Rural Development had to act quickly and, if she had not chosen to close our ports by the end of that day, way back in February 2001, Northern Ireland — indeed, the island of Ireland — would have been left in a very vulnerable position.

Mr Paisley Jnr: The Member referred to there having been a good Government. Was that the same Government that had their First Minister in court facing their Health Minister, other Ministers in court with the First Minister and the Deputy First Minister and, indeed, at one point, most of their Executive’s business being conducted at the High Court in Belfast? Is that the good Government to which the Member is referring?

Ms Ritchie: I thank the Member for his point of destructive information. Obviously, he has forgotten that the DUP was happy to act out the game of charades and enter the Executive with various Ministers executing the same portfolios and enjoying those ministerial roles.

I am talking about good Government decisions that were taken in the best interests of all the people of Northern Ireland, including those in the farming industry, farming families and the food industry. The Minister of Agriculture took such decisions at that time.

Rev Dr Ian Paisley: On a point of order, Madam Speaker. Is it right for the hon Lady to completely mislead the House by saying that members of the DUP worked in the Executive? DUP MLAs did not sit on the Executive and did not take part in Executive meetings. The Member should read the real history of the Northern Ireland Assembly.

Some Members: Hear, hear.

Madam Speaker: Dr Paisley, that was not a point of order.

Ms Ritchie: I thank the hon Member for his contribution. I am sure that he will agree that the DUP Ministers corresponded freely with the Executive and acted out their ministerial roles.

A Member: Are you sure?

Ms Ritchie: Yes, I am sure that they did. In fact, I know that they did because the then Deputy First Minister told me that that was what happened — [Interruption.]

I wish to continue because this is an important issue. The proposed amendment is designed to ensure better Government for the people of Northern Ireland.

That is why during all the negotiations, whether at Leeds Castle, St Andrews or during the various meetings of the Programme for Government Committee, the SDLP has emphasised the importance of Ministers retaining the power to take emergency decisions.

Unfortunately, the St Andrews legislation — which was sought by the DUP — does not provide an emergency procedure; so the SDLP suggested inserting an emergency provision into the ministerial code. However, as officials have freely conceded, we cannot be sure that the courts would allow a decision made under an emergency procedure to stand. We earnestly hope that the courts would allow such a decision to stand, but, because the legislation contains no clear provision for an emergency procedure, we cannot be sure.

The SDLP is pleased that there is an emergency decisions procedure in paragraph 2.14 of the ministerial code; however, the problem is that it is insufficient. Paragraph 2.14 allows the First Minister and the Deputy First Minister to approve any emergency matter, but as the St Andrews legislation does not give the First Minister and the Deputy First Minister that power, the SDLP cannot see any merit in giving it to them in the ministerial code. The power should rest with the responsible Minister, who would be best placed to decide on how to cope with a genuine emergency because he or she will know their Department and will have been fully briefed on the issues. That is what the SDLP amendment provides. However, we are clear that the power should be used only in genuine emergencies.

Mr P Robinson: Will the Member give way?

Ms Ritchie: No, I will not, because I have little time left and I wish to continue.

Madam Speaker, I recognise that the DUP is trying to obfuscate this debate, but it has failed to recognise the realities of the situation.

If matters are less urgent, but cannot await the next Executive meeting —

Rev Dr Ian Paisley: On a point of order, Madam Speaker. I do not know whether you heard the accusation that was just made that we are not having a fair debate, as you were being advised at the time. You are responsible for ensuring fairness in this House, Madam Speaker.

Madam Speaker: I am trying to make the proceedings as fair as possible and to ensure that every Member gets an opportunity to speak. I heard the Member say the word “debate”, but I am not sure that she was inferring that the debate was unfair. However, I am sure that the Member will clarify that.

Ms Ritchie: I shall clarify the situation for Members; I know that the DUP earnestly wishes that I would clarify it. I said that the DUP was trying to obfuscate the situation. I did not mention anything about fairness. If you check the record, as I am sure you will, you will read my comments and see what they referred to. I shall now continue.

If matters are less urgent but cannot await the next Executive meeting, a written procedure should be used to clear Executive papers. The procedure is clearly outlined in the SDLP amendment. Allowing the Minister to make a decision would therefore be reserved for only the most urgent cases. It is emphatically not a carte blanche for Ministers to do what they like, when they like.

There may be some suggestion that it would be illegal for a Minister to make a decision on an issue alone. There is some legal uncertainty about that assertion, but there is even more legal uncertainty about giving the First Minister and the Deputy First Minister the veto powers of paragraph 2.14, as currently drafted. We believe that the ministerial code is an Executive decision and that through the code, the Executive can decide to delegate emergency decisions to individual Ministers.

Some Members might suggest that Ministers already have the power to retrospectively bring matters to the attention of the Executive under paragraph 2.15. I concur with that, but the SDLP believes that it would be far better to ensure from the start that a Minister has the power to act in the best interests of everybody in Northern Ireland, and in the best interests of good government, to ensure the best delivery for the people of Northern Ireland on the issues that matter to them. That is what our amendment provides.

Mr McNarry: We are considering a report on the draft ministerial code on a take-note basis. Under the Hain rules — in what is, after all, still the Hain Assembly — the Secretary of State’s preference was that the Assembly should vote today on a motion tabled by the Chairman of the Programme for Government Committee that the Assembly approves the draft report on the ministerial code.

1.15 pm

This side of the House is grateful for the amendment to replace “takes notes of” with “approves”. That will enable the House to decide to what extent the ministerial code will operate as a direct result of the efforts of those parties that are likely to provide the Ministers who will ultimately be bound by that code.

I am sure that we are all aware that failure on our part to approve a ministerial code will add to the already convoluted atmosphere of the debate. Not only will we relinquish approval and the opportunity to decide for ourselves —

Madam Speaker: Mr McNarry, you are talking about “approval”; you are not talking about “urgent decisions”. Please keep your remarks to paragraph 2.14.

Mr McNarry: Far be it from me to enter into an argument with you, Madam Speaker — I would not win it. I realise that I was begging your indulgence. An amendment was properly tabled by my party, although you decided in your wisdom that it would not be put to the House. We have accepted —

Madam Speaker: Please keep to paragraph 2.14, Mr McNarry, and speak to your amendment, even though it was not accepted.

Mr McNarry: Madam Speaker, it will be appreciatively difficult for us to give our seal of approval to a ministerial code should paragraph 2.14 be retained. We could be persuaded to support an amendment that we understand is to be tabled to paragraph 2.15 because that is relevant to paragraph 2.14. Paragraph 2.15 deals with the retrospective consideration of ministerial decisions in accordance with the duty to inform the Executive as detailed in paragraph 2.4.

How would a Minister define a matter of urgency that necessitated the taking of action outside an Executive meeting. Does “urgent” not mean emergency? Do “urgency” and “emergency” mean the same thing in ministerial terms? If so, surely we can envisage an emergency requiring an urgent ministerial decision. The draft ministerial code makes no specific reference to the provision of emergency Executive meetings. If an emergency demanded an urgent decision, why should we want to hamper a Minister by implementing paragraph 2.14? If it was all right for the Office of the First Minister and the Deputy First Minister to act on an urgent decision without consulting, why should we shackle departmental Ministers by compelling them to write to the First Minister and the Deputy First Minister and to the secretary to the Executive in the detailed way described and then oblige them to meet the First Minister and the Deputy First Minister to consult on what action they would take in an emergency?

Of course there will be occasions — not of an urgent nature, I am sure — when a Minister might wish to consult the First Minister and the Deputy First Minister, especially, I suspect, if the Minister belongs to the same party as either the First Minister or the Deputy First Minister. I am sure, too, that if an emergency arose, the Minister concerned would welcome being able to share the problem. However, the problem facing a Minister is not to whom to go for a chat; the problem is this: when faced with an emergency could he or she deal with it urgently when bound by the restrictions of paragraph 2.14? That is what would happen when a Minister faced an emergency that could be dealt with only by urgent action.

Under paragraph 2.14, a Minister faced with an emergency would be restricted from acting swiftly. He or she would be delayed by the code’s protocol, which is preventive. The paragraph is of no useful assistance, although we fully understand the points that the SDLP has made. We understand from where they are coming.

The House should reject paragraph 2.14 in order to allow for it to be reconsidered, either by the incoming Executive or in another sitting of the Assembly. The issue is not being dealt with fully, because paragraph 2.14 does not meet the necessary requirements for “good government”.

Say that the First Minister and the Deputy First Minister could not agree on an urgent decision or that, heaven forbid, that they were not on speaking terms, would we use chaperones, or junior Ministers who might be speaking to each other, to deal with the situation? The paragraph is flawed. What if industrial action were paralysing the country, or an outbreak of avian flu or another virus were affecting our livestock? What if there were a serious health scare, a freak weather situation or an environmental catastrophe? I could cite examples that do not even stretch reality to take in alarmist situations. I do not wish to use alarmist situations as examples, because those really would be emergencies, the resolution of which would totally rely on ministerial competence.

Paragraph 2.14 would place a burden on any Minister. It is too restrictive; it is unnecessary, especially with paragraph 2.15 in place. For the good reasons that I have outlined, it makes no sense to adopt paragraph 2.14.

There are also legal complications, which this debate has yet to unearth. Those complications will surely be unearthed in the days to come, and they must be properly addressed. For that reason, I again ask Members not to support paragraph 2.14, in order to allow for the Executive to deal with the ramifications of those legal complications.

The report on the draft ministerial code makes no specific reference to any provision for the Executive to deal with an emergency. In such circumstances, I suspect that an Executive would gather, by urgent request, to hear first-hand how the Minister concerned was dealing with the immediate needs of the situation. Thereafter, the Executive would be required to give regular, informed updates on how the Minister responsible was dealing with the emergency.

Madam Speaker, that is how urgent decisions should be taken, and that is how they can be taken. We see no reason why urgent decisions cannot be taken in the way in which I have outlined; therefore we ask that paragraph 2.14 be set aside for further consideration by an Executive.

Mrs Foster: I wish to raise several points about paragraph 2.14, the first of which is the key issue of who decides whether a matter is urgent. If a Minister can decide on his or her own that an issue is urgent, many issues will be called into question. What may be urgent to one Minister may not be urgent to the rest of the Executive. That should be borne in mind when looking at paragraph 2.14, and that is precisely why I support that paragraph as it stands in the draft ministerial code. It states:

“The First Minister and deputy First Minister, acting jointly, will consider the decision in consultation with the responsible Minister, and notify him/her of the outcome of their consideration of the matter.”

One huge deficiency in the SDLP’s proposed amendment to the code is that it contains no approval mechanism. According to its amendment, the Minister responsible would take the urgent decision, after which it would be deemed to have been dealt with in accordance with paragraph 2.4 of the code.

I find the debate strange — as I am sure do others outside the House — given that the two parties that are speaking against the draft ministerial code are the champions of collectivity. To me, collectivity is about sharing the burden of decision making, and surely if one has an urgent decision to make, one would want to seek one’s ministerial colleagues’ advice and share with them the burden of approval. That is why my party believes that paragraph 2.14 as it currently stands is the way forward. It is for the SDLP and the Ulster Unionist Party to explain why they are now against collectivity.

Mr Ford: I listened with interest to Margaret Ritchie speak to amendment No 1. I had considerable sympathy with the ideas behind that amendment, but I am not sure that my sympathy necessarily extends to its entire wording. The difficulty is that we now seem to have two different classes of urgency: genuine and non-genuine. Those of us who saw how Ministers behaved in the past may have doubts about the potential to exploit the loophole that those categories create.

Mr McNarry made some entirely reasonable points about what would happen if a First Minister were not speaking to a Deputy First Minister. However, he should not judge the future entirely by his own experience. [Laughter.] Even so, Mr McNarry’s points illustrate the conflict that the different views in the Chamber represent. As well as paragraph 2.14, we are now talking to some extent about paragraph 2.15 and its proposed amendment. There are dangers in adopting an approach that allows a Minister to make a decision single-handedly, without reference to anyone else, including, logically, the First Minister and the Deputy First Minister. However, examples such as the one significant urgent event of the previous working Assembly have been cited. As I understand it, on that occasion Bríd Rodgers used her ministerial authority to decide off her own bat to close the ports. Any delay, other than that caused by the courtesy of informing the First Minister and the Deputy First Minister that she was taking that action, would have put our agriculture industry at serious risk. Therefore we must be careful not to institute procedures that cramp Ministers’ ability to make those really urgent decisions that may need to be made at an hour or two’s notice.

At the same time, there may be a danger that some issues that had not been mentioned a few hours earlier suddenly became matters of urgency on a Thursday evening, whenever the Executive would not meet for another fortnight. Until the House can collectively decide that it is confident that a First Minister and a Deputy First Minister will act jointly and that an Executive will have collectivity, we will not resolve that issue. That may mean that the ministerial code, regardless of whatever is decided this afternoon, will have to be revisited.

There is a need to ensure greater collectivity; therefore, amendment No 2 to paragraph 2.15 would ensure at least retrospective collectivity, even if it were not possible to have it when a decision is made.

However, I am keen for Ms Ritchie or Mr Attwood to explain the difference between genuine and non-genuine urgency. Such an explanation would help to clarify the amendment in my mind.

Mr P Robinson: Mr Ford is right to suggest that we may have to revisit paragraph 2.14. However, of the options that are available to us, there is more safety in holding to the draft code rather than deleting paragraph 2.14, or amending it, as the SDLP would have us do.

I have a further category to add to the two — genuine and non-genuine urgency — that Mr Ford suggested. Mine concerns those matters that a Department deliberately leaves, which are consequently made urgent by that delay. It is conceivable that a Minister who wants to bypass the Executive’s collective procedures could hold back on making a decision until it urgently needed to be taken. That would mean that, outside of the Executive, Ministers could make such a decision, thereby bypassing the process of collectivity.

Therefore paragraph 2.14, as it stands in the draft ministerial code, is a safer outcome than the SDLP amendment, which would effectively allow the Minister to get off with it; or the silent option, which would leave us with no route to deal with an urgent situation, should it arise.

1.30 pm

I rather suspect that an Executive would make efforts to avoid ever having to use that part of its code. If an emergency arose, I should hope that the Minister, the First Minister and the Deputy First Minister would discuss the issue and attempt to bring colleagues together in a meeting of the Executive. None of us are so far away that we could not get back in those circumstances, so, in the event of an emergency, it might well be possible to get the Executive together at that time rather than waiting until their normal weekly or fortnightly meeting. If that were not possible and an urgent major issue had to be dealt with, I agree entirely with the Member for Fermanagh and South Tyrone Mrs Foster that as a Minister I would want the support of ministerial colleagues and of as broad-based a group as possible in the Assembly for the important decision that I needed to take.

I suspect that the Minister responsible for agriculture in the last Executive did not hide in a hole and take decisions herself without reference to others. Of course ministerial colleagues have to be brought along; however, there is no decision that requires an instant as opposed to an urgent response. I hope that normal processes would be brought in whereby an emergency meeting could be called; otherwise, there would be a fallback position.

Sir Reg Empey: The Member gave the example of the Minister with responsibility for agriculture. As I recall, the Executive met in emergency session on a number of occasions. That is not quite our concern here. The terminology of paragraph 2.14 is as follows:

“and notify him/her of the outcome of their consideration of the matter.”

That refers to the First Minister and the Deputy First Minister. First, a legal point is raised because that phrase implies that the legal power of decision in a Department is being transferred to the First Minister and the Deputy First Minister. That requires further clarification. Secondly, there is a difficulty if the First Minister and the Deputy First Minister disagree. Where does that leave the Minister? As the Member said in his opening remarks, we can imagine all sorts of scenarios but things generally work if the will is there. I understand that. However, there is a flaw in this that could be challenged legally. One can envisage circumstances in which decisions would have to be more or less instantaneous — health and safety issues, for example. The difficulty that we have is this: does the legal power reside with the Minister ultimately, after consultation, or is it being transferred? That is not entirely clear.

Mr P Robinson: I take the Member’s point. The issue is, I suppose, in the definition of what the decision is that the First Minister and the Deputy First Minister are taking. Are they taking a decision that would ordinarily be taken by the Minister or are they taking the decision that the matter should be deferred until the Executive meet? I suspect that it is the latter rather than the former. It is untidy, which is why I indicated that we would probably have to return to the issue. It is safer to have it in the ministerial code in the present circumstances with the very clear caveat that if it is not dealt with urgently, experience will force us to look at this again.

Mr Attwood: I wish to make three or four points. First, it is important that it has been acknowledged that there is an issue here that must be addressed. Whatever happens today, it may have to be reviewed again and re-examined.

This matter did not form part of the outcome of the St Andrews negotiations so all of the parties have been trying to work their way through it in the Programme for Government Committee and at staff level.

The DUP argues that it would prefer the particular model in question. To characterise that preference, that party has invoked issues such as a Minister’s holding papers back so as to bring about an emergency procedure. A better argument, and one that the community in the North would acknowledge more readily, would be on the grounds of public safety, as outlined by the UUP and others, including David Ford. Owing to the nature of emergencies per se, the SDLP feels that it would be better to err on the side of public safety and public welfare, rather than introduce a procedure that could legislate in extreme against both.

When one bores down into the various suggestions, it is clear that the issue is about which mechanism parties believe will legislate in favour of public safety and public welfare and whether there is a risk of any other procedure — innocently or otherwise — impeding that outcome.

I suggest to the DUP that, even at this stage, and given that all parties acknowledge that the matter might need to be re-examined, the safer, sounder course of action would be to err on the side of public safety, rather than on the side of the risks outlined by Peter Robinson. No one is suggesting that the DUP’s argument — that a Minister could deliberately hold back papers to avail of an emergency procedure — is invalid. However, in the current circumstances in which we could have a Government within a week, and in which — as stated by David McNarry — there are all sorts of safety and security threats that might arise, would it not be better to go one way rather than the other, acknowledging that all of this will have to be looked at again?

Arlene Foster mentioned collectivity. The record demonstrates that the SDLP has outlined more mechanisms than any other single party to enhance collectivity during the years of the first Executive, and since. The record of proposals made during the review of this matter at Leeds Castle, at St Andrews, and since, shows that a body of proposals for collectivity has been proposed by the SDLP, some of which have been adopted.

The SDLP proposed Executive subcommittees on key policy priorities, and proposed that the Executive should have the power to call for people and papers. The SDLP also argued for better ways to implement the Programme for Government.

I suggest that I have presented an evidence-based argument as to why the SDLP is in favour of mechanisms that will enhance collectivity, rather than those that could end up frustrating it.

Question put, That amendment No 1 be made.

The Assembly divided: Ayes 14; Noes 79.

Ayes

Alex Attwood, Mary Bradley, P J Bradley, Thomas Burns, John Dallat, Mark Durkan, Tommy Gallagher, Carmel Hanna, Dolores Kelly, Alban Maginness, Alasdair McDonnell, Patsy McGlone, Declan O’Loan, Margaret Ritchie.

Tellers for the Ayes: Thomas Burns and Carmel Hanna

Noes

Gerry Adams, Martina Anderson, Billy Armstrong, Roy Beggs, Cathal Boylan, Mickey Brady, Allan Bresland, Francis Brolly, Lord Browne, Thomas Buchanan, Paul Butler, Gregory Campbell, Trevor Clarke, Willie Clarke, Robert Coulter, Jonathan Craig, Leslie Cree, Kieran Deeny, Pat Doherty, Jeffrey Donaldson, Alex Easton, Reg Empey, Stephen Farry, David Ford, Arlene Foster, Samuel Gardiner, Michelle Gildernew, Simon Hamilton, David Hilditch, William Irwin, Danny Kennedy, Anna Lo, Naomi Long, Alex Maskey, Paul Maskey, John McCallister, Fra McCann, Jennifer McCann, Kieran McCarthy, Raymond McCartney, Nelson McCausland, David McClarty, Basil McCrea, Ian McCrea, William McCrea, Barry McElduff, Alan McFarland, Claire McGill, Michael McGimpsey, Martin McGuinness, Gerry McHugh, Michelle McIlveen, Mitchel McLaughlin, David McNarry, Adrian McQuillan, Lord Morrow, Stephen Moutray, Conor Murphy, Sean Neeson, Robin Newton, Carál Ní Chuilín, John O’Dowd, Michelle O’Neill, Ian Paisley Jnr, Ian R K Paisley, Edwin Poots, Dawn Purvis, Sue Ramsey, George Robinson, Iris Robinson, Peter Robinson, Caitríona Ruane, George Savage, Jim Shannon, David Simpson, Jimmy Spratt, Mervyn Storey, Peter Weir, Brian Wilson.

Tellers for the Noes: Carál Ní Chuilín and Jim Shannon

Amendment accordingly negatived.

Question, that paragraph 2.14 be agreed, put and agreed to.

Madam Speaker: Two amendments to paragraph 2.15 have been selected and published on the Marshalled List of Amendments.

Mr P Robinson: I beg to move amendment No 2: Leave out paragraph 2.15 and insert

“Where, by virtue of paragraph 2.4 of the Code, a Minister, including the First and Deputy First Minister acting jointly, or junior Minister, is required to bring to the attention of the Executive Committee any matter which ought by virtue of section 20(3) or 20(4) of the Act to be considered by the Executive Committee, the Executive Committee may, subsequent to a decision being taken, nonetheless determine that the decision has been taken in accordance with paragraph 2.4 of the Code.”

I am moving the amendment in the name of my friend Lord Morrow of Clogher Valley and myself. Today’s debate represents an important milestone in the path towards devolution. For my colleagues and I in the Democratic Unionist Party, it is the culmination of our campaign to make ministerial decisions accountable and a necessary precondition to any return to devolution.

A statutory ministerial code of the kind set out in the Northern Ireland (St Andrews Agreement) Act 2006 represents the fulfilment of the DUP’s long-held manifesto commitment to create accountability for decision-making in Northern Ireland. Today will not determine whether there will be a statutory ministerial code in place upon the restoration of devolution, but as Jim Wells said earlier, the question is whether the ministerial code will be determined by the Assembly or by the Secretary of State for Northern Ireland. If the Assembly cannot agree a ministerial code today, the Secretary of State — pursuant to schedule 1 of the Act — is legally required to prepare a draft ministerial code that is satisfactory to my colleagues and myself, as already stated in legislation.

While the imposed code would satisfy the needs and agenda of the DUP, it is in the best interests of the Assembly and of the Executive to agree its own code. I hope that this will prove possible, and I am keen that the new arrangements will not only provide the safeguards we require but will allow for the efficient running of Executive business.

Agreement would not only send out the signal that the Assembly can agree vital operating procedures for the Executive, but it would produce a more tailored solution for the Executive to work with and for it to face the challenges which will lie ahead.

2.00 pm

Today is not a day, and this is not an amendment, that allows me to dwell on the reasons for a statutory code being so necessary or on the failings of the last Executive. It is a time to look forward and to try to create the best possible arrangements.

I believe that the draft code produced by the Programme for Government Committee offers a positive way forward. However, there is a particular issue that is of some significance to my colleagues and me and for which we have tabled a constructive amendment for consideration. The issue addressed by this amendment must be resolved. If it is not resolved today, then my colleagues and I could not support the ministerial code and would instead rely on the Secretary of State’s exercising his function.

First, I will address the issue on which we require change. Paragraph 2.15 in the Report on the Draft Ministerial Code deals with retrospective approval for ministerial decisions. It should be noted that there is no requirement in The Northern Ireland (St Andrews Agreement) Act 2006 for such a paragraph to be inserted in the Northern Ireland Assembly’s code, and, in the event that Members cannot agree today, it would not be in the code imposed by the Secretary of State. However, the DUP believes that there is value in having a paragraph that deals with such an eventuality, though not in the precise terms that are suggested in the Report on the Draft Ministerial Code that is before the Assembly today. That flows from the structure of the legislation. Section 28A (10) states that:

“Without prejudice to the operation of section 24, a Minister or junior Minister has no Ministerial authority to take any decision in contravention of a provision of the Ministerial Code made under subsection (5).”

Section 28A (5) states:

“The Ministerial Code must include provision for requiring Ministers or junior Ministers to bring to the attention of the Executive Committee any matter that ought, by virtue of section 20(3) or (4), to be considered by the Committee.”

As David Hanson confirmed in the House of Commons during the passage of the Bill, the combination of those two provisions means:

“that a decision that by virtue of section 20(3) or (4) ought to be brought to the attention of, and considered by, the Executive committee, is not validly taken without the approval of the Executive committee, and that without such approval, a Minister has no ministerial authority to take such a decision.”

He went on to confirm that a decision taken without Ministerial authority:

“would have been taken in contravention of the code itself. As such, it would not be a legitimate decision and would be open to legal challenge.”

That is a vital safeguard for the Assembly and the Executive, but one can imagine circumstances in which, in good faith, a Minister might inadvertently or through some other reason not bring a matter to the Executive that he or she was required to bring.

In the absence of a procedure to retrospectively approve of such a decision, there would be significant adverse legal implications. I am sure that all Members are keen to avoid such an eventuality. However, the provision, as it is presently drafted, runs the risk of undermining its own intention. For those Members who do not have a copy of the Report on the Draft Ministerial Code to hand, it states that:

“Where a Minister, including the First Minister and deputy First Minister acting jointly, or junior Minister takes a decision and subsequently brings that decision to the attention of the Executive Committee for its consideration, the decision will be deemed to have been dealt with in accordance with paragraph 2.4 of this Code.”

The difficulty with the provision is that it is not sufficiently clear that the decision would need to receive the approval of the Executive as well as merely be brought to the Executive to avoid legal challenge. Bringing the provision to the Executive alone is clearly no safeguard, and again as David Hanson said:

“such matters are for the Executive committee.”

A Minister cannot discharge his or her obligations subsequently by merely telling the Executive about the decision that he or she has taken. The DUP has tabled an amendment to replace the current provision with a new draft. I assume that Members have read the amendment on the Marshalled List, and I believe that that will give the Executive the ability to approve a decision retrospectively. It will not, however, create the presumption, or allow any argument, that bringing the matter was, of itself, sufficient.

For my party, it is critical that the amendment is passed. There is no reason why it should be opposed, and I am not aware of any fundamental objection to the principle it contains.

Mr Durkan: The SDLP opposes the amendment. Paragraph 2.15 allows the Executive to consider decisions that have already been taken. A Minister can bring to the attention of the Executive a decision that he or she has already made. Under paragraph 2.15, as it stands, the decision is deemed to have been brought to the attention of the Executive at the time that it was taken. That provision protects such decisions from being invalidated by the courts.

This relates to a point that my colleagues and I made earlier. The SDLP’s intention is not to constrain or limit ministerial accountability in this House or to this House. We want to maximise accountability. We are trying to ensure that competent decisions, properly taken, are not imperilled in the courts.

The DUP amendment to paragraph 2.15 would change that. It would result in a decision’s being deemed to have been brought to the attention of the Executive only if the Executive were to agree on it. To my party that makes no sense. The SDLP is endeavouring to prevent ministerial decisions from being found to be invalid by the courts. The amendment — and certain other provisions — will work only to heighten the risk of Ministers and decisions being challenged, on these procedural grounds, in the courts and beyond the control of anyone in this House.

If tighter rules are needed to enable Ministers to carry out their duties, the SDLP is open to considering that option. Members should note that compared with the current ministerial code, the draft ministerial code is a very slim volume. It was recognised correctly that it would be wrong to transfer all the previous ministerial code into a new statutory ministerial code, thus giving it all the force of law. If it is wrong to give the new ministerial code all the force of law, Members should be judicious in deciding what provisions are given that force. The force of law potentially puts leverage into the hands of other, sometimes vested, interests who might be out to prevent or overturn decisions taken in the public interest.

All the other material that was in the old ministerial code is to be included in new procedural guidance. Tighter rules can be included in that procedural guidance, which is being drafted by officials at the moment. As with the previous ministerial code, that procedural guidance will be binding upon Ministers, and the Assembly will be able to hold Ministers to that procedural guidance and punish Ministers who do not complying with it. However, as it is not legally enforceable in the courts, those outside the Assembly will be unable to use legal action to overturn a decision that the majority of Members have accepted.

The SDLP is not in favour of an approach, whereby failure to comply with some procedural mechanism would lead to a decision’s being invalidated and, possibly, compromise the public interest, which might suffer as a result.

The DUP’s response to that issue is to make paragraph 2.15 more onerous. That makes it more likely that perfectly sensible decisions could be struck down by the courts, with the risk of damage to the public interest. For that reason, the SDLP opposes the amendment.

Mrs Foster: I would like to bring up a very brief matter in response to Mr Durkan’s comments in relation to this mechanism; a difficulty.

As the code currently stands, under Paragraph 2.4, there is a duty to bring matters to the attention of the Executive Committee if it falls into one of several categories, such as crosscutting responsibilities or requiring agreement on prioritisation. If the proper channels are gone through for that, it has to be agreed and approved by the Executive.

However, if a Minister comes through under the mechanism for retrospective consideration of ministerial decisions under paragraph 2.15, the decision does not require approval by the Executive; it has simply to be brought to the attention of the Executive Committee for its consideration.

I contend that there is a direct contravention between paragraph 2.4 and paragraph 2.15. This is not a procedural mechanism. It could become a very substantive mechanism if people were taking decisions and then coming for retrospective consideration. It is not an approval mechanism as it currently stands.

Mr P Robinson: Is the key issue not that there is no provision of this type in the Act of Parliament? Therefore, if it is left to the Secretary of State, there will be no provision for retrospective decisions. If we do not have agreement regarding retrospective decisions in the Assembly, there will be no provision at all. This side of the House will only support a measure that ensures that if a Minister takes a decision which should have gone before the Executive, the Executive should deal with it as it would have had it properly been brought to the Executive and had not been taken by the Minister beforehand.

In opposing this, the SDLP needs to be clear that the only option they leave to the DUP is to vote against the whole of the ministerial code and leave it all to the Secretary of State to bring in.

Mrs Foster: Yes, indeed. If the SDLP proceeds in this manner, the DUP will not be able to approve the draft ministerial code, and the Secretary of State will impose a ministerial code without a mechanism to deal with retrospective decisions. To the DUP, this is not a procedural mechanism; it is a substantive matter, and therefore the amendment should be taken as it is laid before the House.

Mr Attwood: Let us take a step back from the comments of the Deputy Leader of the DUP that it is this or nothing; it is either this or what the Secretary of State decides. The Assembly should make a decision about what is in the best interests of the Assembly and the Executive. The Assembly should say to the DUP that what came out of the Programme for Government Committee was a proposal that dealt with the issue of retrospective decision-making: the best model that we have come up with to date in order to deal with that.

2.15 pm

I suggest that, rather than thumping the table, the DUP adopts the same approach that it adopted to emergency decision-making and allow the retrospective consideration of ministerial decisions. If it becomes necessary to revisit the subject because Arlene Foster’s worst fears of Ministers making decisions and using the retrospective procedure are realised —

Mr P Robinson: If the DUP were to do that, every Minister could take every decision retrospectively and simply notify the Executive later. Decisions would be taken for which the Executive would have no collective responsibility.

Mr Attwood: That was another expression of the worst-fears argument. Earlier in the debate, however, the DUP clearly indicated that when all the systems are in place, collectivity will transcend all the internal, narrow party differences. The DUP berated the SDLP for, arguably, opposing collectivity, while that party made collectivity its goal, yet Peter Robinson is telling us that the Assembly must ensure that no single party or group of Ministers can go into a huddle to make decisions and rush them through using retrospective procedure.

I suggest that there is a tension within the DUP: on one hand, it argues for legislating against its worst fears by creating a model that will face all sorts of potential legal challenges; on the other hand, it says that everything will work out because the mechanisms of collective decision-making are all in place.

The Assembly should base its decision on the correct approach to retrospective decision-making rather than basing its decision on the DUP’s assertion that if the Assembly does not agree to a certain approach, the Secretary of State can do his worst. I suggest that all parties that will have ministerial responsibilities probe what all that might mean.

It is interesting that the DUP makes retrospective decision-making the issue over which it would die in a ditch. It is revealing that, in his opening remarks, Peter Robinson said that there would be consequences if the issue were not resolved. He later intervened during Arlene Foster’s speech and said that the resolution of this issue “critical” in shaping what happens next week and thereafter.

I ask Members to consider why retrospective decision-making is the issue over which the DUP is prepared to die in a ditch. Having successfully negotiated — as I acknowledge — the reworking of so much of the Good Friday Agreement in respect of North/South operations, Executive responsibility and ministerial power, through the comprehensive agreement and the negotiations up to and including those at St Andrews, why is the DUP making so much of this issue now?

Mr P Robinson: Will the Member allow me to answer?

Mr Attwood: I will let Mr Robinson respond later.

Returning to the core point, the SDLP suggests that the Programme for Government Committee’s proposal provides a more appropriate mechanism, whereby any decision for which a Minister required retrospective approval would be brought before the Executive. By that stage, the Minister’s actions would, in the best way that can be devised, be legally validated.

Not to adopt that approach would mean that any refusal by the Executive to retrospectively validate a decision taken by a Minster would open the door to legal action. At that stage, all sorts of people would begin to argue that decisions had been taken without due process or legal authority and were therefore invalid. The consequences of that would be claims for compensation, legal action and judicial review. The SDLP suggests that the model proposed by Programme for Government Committee is better.

The model proposed by the DUP would open the Executive Minister and the Assembly to all sorts of legal challenges. Equally important is the political point about why the DUP is so dogmatic about this particular matter. Other parties’ reasonable concerns were dealt with in the findings of the Committee on the Programme for Government.

Madam Speaker: I have no indication that any other Member wishes to speak on the issue.

Question put, That amendment No 2 be made.

The Assembly divided: Ayes 74; Noes 14.

Ayes

Martina Anderson, Billy Armstrong, Roy Beggs, Cathal Boylan, Mickey Brady, Allan Bresland, Francis Brolly, Lord Browne, Thomas Buchanan, Paul Butler, Gregory Campbell, Trevor Clarke, Willie Clarke, Robert Coulter, Jonathan Craig, Leslie Cree, Pat Doherty, Jeffrey Donaldson, Alex Easton, Stephen Farry, David Ford, Arlene Foster, Samuel Gardiner, Michelle Gildernew, Simon Hamilton, William Hay, David Hilditch, William Irwin, Danny Kennedy, Naomi Long, Alex Maskey, Paul Maskey, John McCallister, Fra McCann, Jennifer McCann, Kieran McCarthy, Raymond McCartney, Nelson McCausland, David McClarty, Basil McCrea, Ian McCrea, William McCrea, Barry McElduff, Alan McFarland, Claire McGill, Michael McGimpsey, Gerry McHugh, Michelle McIlveen, Daithí McKay, David McNarry, Adrian McQuillan, Lord Morrow, Stephen Moutray, Conor Murphy, Sean Neeson, Robin Newton, Carál Ní Chuilín, John O’Dowd, Michelle O’Neill, Ian Paisley Jnr, Ian R K Paisley, Edwin Poots, Sue Ramsey, George Robinson, Iris Robinson, Peter Robinson, Caitríona Ruane, George Savage, Jim Shannon, David Simpson, Jimmy Spratt, Mervyn Storey, Peter Weir, Brian Wilson.

Tellers for the Ayes: Robin Newton and Jim Shannon

Noes

Alex Attwood, Mary Bradley, P J Bradley, Thomas Burns, John Dallat, Mark Durkan, Tommy Gallagher, Carmel Hanna, Dolores Kelly, Alban Maginness, Alasdair McDonnell, Patsy McGlone, Declan O’Loan, Margaret Ritchie.

Tellers for the Noes: John Dallat and Alban Maginness

Question accordingly agreed to.

Paragraph 2.15, as amended, agreed to.

Mrs Foster: I beg to move amendment No 3: Insert a new paragraph after 2.15:

“The Executive Committee may make additional provision to enable the duty set out in paragraph 2.4 of the Code to be satisfied.”

I am pleased to speak to amendment No 3, which is in the names of my noble and hon colleagues The Lord Morrow of Clogher Valley and Mr Peter Robinson, a Member from East Belfast.

Today, we have heard much about Ministers being unduly shackled, and, hopefully, amendment No 3 will deal with some of those concerns. Indeed, Members have heard a lot from the SDLP about what will happen if the draft ministerial code is adopted as it stands. We have heard of dire consequences, such as the possible intimidation of Members who table private Members’ Bills. Indeed, at one stage, I was reminded of Private Fraser from ‘Dad’s Army’ whose catchphrase was “We’re all doomed”. The SDLP seems to believe that we are doomed if the draft ministerial code is adopted.

The key to the draft ministerial code is accountability. The lack of effective accountability in the pre-2002 Administration should be instructive to all Members. The DUP will have more Ministers than any other party in the new Administration. Therefore, the DUP will be held to account more than any other party. However, it is the party — [Interruption.]

Madam Speaker: Order.

Mrs Foster: However, it is the party that will have the fewest Ministers that is making the most noise about accountability.

Amendment No 3 is a straightforward way of adding an enabling power for:

“the duty set out in paragraph 2.4 of the Code”.

The amendment will allow the Executive the freedom to deal with other issues should the need arise. In full, it states that:

“The Executive Committee may make additional provision to enable the duty set out in paragraph 2.4 of the Code to be satisfied.”

It will give the Executive the freedom to create procedures to deal with many eventualities. It will have no immediate impact but will merely allow the Executive to react appropriately, without the need for subsequent changes to the ministerial code.

Essentially, this part of the ministerial code will provide a mechanism to filter out every-day, non-controversial matters, and, as amendment No 3 states, it will provide an enabling power that will help Ministers to avoid the danger of legal challenges, of which there has been much discussion today.

One can only try to avoid legal challenges; one can never be sure that a legal challenge will not be made. This House — even those in the SDLP — knows full well the creativeness and ingenuity of lawyers. Members can but try to make adequate provision.

I hope that the House will support the amendment.

Madam Speaker: As I have been given no indication that any other Member wishes to speak, I shall put the Question.

Question, That amendment No 3 be made, put and agreed to.

Rev Dr Ian Paisley: I do not know what is wrong with this House today. There have been difficulties with the recording machines, and there is a clock that does not know whether it is working. There is also a breath of what I call “stepmother’s air” in this Building today. I draw your attention to that, Madam Speaker. You would be more comfortable if you could hear all the nice things that are being said, and Members would be more comfortable if the draught could be stopped and there could be some hot air in the Chamber.

Madam Speaker: Even I would like some hot air, Dr Paisley. It is very cold in the Chamber, and I have asked that enquiries be made about the temperature. As regards my hearing the proceedings, I can hear them now, provided that Members do not whisper among themselves when other Members are speaking. I have asked the Whips whether we can adjourn for 30 minutes after the debate on the draft ministerial code has been concluded to allow the engineers to investigate the heating problem. It is very cold in the Chamber, and we must make sure that it does not affect the debate. Be as hot as you can, Members — do not put that in Hansard. [Laughter.]

We now move to paragraph 2.16.

Paragraph 2.16 agreed to.

Madam Speaker: We shall proceed to consideration of paragraphs 3.1 to 3.22 of the draft ministerial code, which relate to the North/South Ministerial Council and the British-Irish Council (BIC).

Paragraphs 3.1 to 3.22 agreed to.

Madam Speaker: That concludes the consideration of the draft ministerial code. One amendment to the substantive motion has been selected and is published in the Marshalled List of Amendments.

Mrs Foster: I beg to move amendment No 4: Leave out ‘takes note of’ and insert ‘approves’.”

We have all been made aware that for this ministerial code to become the ministerial code for the new Assembly and Executive it must be actively approved by the Transitional Assembly. Otherwise, the Secretary of State holds the power to impose a ministerial code. Much reference has been made to that today, and it would be a good signal to send to the community in Northern Ireland for the Assembly to approve the ministerial code in totality.

Madam Speaker: I have received no indication from any other Members that they wish to speak. Before I put the Question, I call the Chairman of the Committee on the Programme for Government to wind up the debate.

The Chairman of the Committee on the Programme for Government (Mr Wells): There is a website that offers our constituents a free service whereby, every time one of their Assembly Members rises in the Chamber, they receive text messages outlining what we have said.

2.45 pm

There are some poor, sad people in South Down who have received at least 15 text messages stating that all that I have said is: “Moved, Madam Speaker.” I shall not add to their pain by saying those words again, but I would like to thank Members for their contributions.

As I said during my opening remarks, and as has been evidenced by the comments of Members, this is a matter that Members consider to be extremely important and one on which they have strongly held views. The various views on what should and should not be included in the draft ministerial code were reflected during the debate and mirrored those of the parties on the Programme for Government Committee. Members will note that the Committee’s report on the draft ministerial code did not state a view on the contents of the draft that is before the House. Nevertheless, the Committee considered it extremely important that the Transitional Assembly should have the opportunity to consider and debate the draft ministerial code, and Members have availed themselves of that opportunity, some more so than others. We have had a successful outcome to today’s business, and it now remains for the Question to be put.

Question, That amendment No 4 be made, put and agreed to.

Madam Speaker: Approval of the draft ministerial code requires cross-community support in accordance with paragraph 5 of schedule 1 to the Northern Ireland (St Andrews Agreement) Act 2006. I therefore intend to divide the House.

Question put and agreed to nemine contradicente.

Resolved (with cross-community support):

That this Assembly approves the draft Ministerial Code.

The sitting was suspended at 2.50 pm.

On resuming (Madam Speaker in the Chair) —

3.25 pm

Draft Standing Orders for the
Northern Ireland Assembly

Madam Speaker: The Business Committee has agreed that each contribution will be limited to a maximum of five minutes. It has also been agreed that amendments appearing on the Marshalled List will be treated similarly to amendments to Bills. In other words, Members will be entitled to make one contribution on each question.

I shall say something about how I propose to conduct proceedings. I shall call the Chairman of the Subgroup on Standing Orders to move the motion, and I shall then propose to ask the Assembly to approve the draft Standing Orders in numerical sequence either individually or, where they are unchanged from the current Northern Ireland Assembly Standing Orders, and no amendment appears on the Marshalled List, in groups.

Where a draft Standing Order contains only a consequential change as a result of a substantive change to another, later draft Standing Order, I intend to conduct proceedings so that that consequential change will be provisional and can be made formally later only when that substantive change has been made.

Decisions on those Questions will be decided by simple majority, as provided for in draft Standing Order 17. At the end of the process, the Question on the approval of the draft Standing Orders will be put as it appears in the Order Paper. That decision will require cross-community support in accordance with schedule 1(5) to the Northern Ireland (St Andrews Agreement) Act 2006.

Members will appreciate the complexities of the procedure that is required, and, if matters are unclear, I urge them to seek guidance from the Table at any time during the debate. The process may become less confusing as we proceed so we shall make a start.

The Chairperson of the Subgroup on Standing Orders (Mr Poots): I beg to move

That this Assembly approves the draft Standing Orders for the Northern Ireland Assembly (dated 13 March 2007).

I can see the headlines of tomorrow’s papers: “Poots proposes Standing Orders report”.

The considerable work underlying the motion was carried out by the Transitional Assembly’s Subgroup on Standing Orders. That subgroup differed from the Assembly’s other subgroups in that it was a subset of the Business Committee and not of the Programme for Government Committee.

Following a decision of the Business Committee, the subgroup was formed on 11 December 2006 to take on the responsibility of meeting the requirements of schedule 1(5) to the Northern Ireland (St Andrews Agreement) Act 2006. To that end, at its meeting of 5 December 2006 the Business Committee established the subgroup and agreed the following terms of reference:

“A subgroup of the Business Committee should consider draft Standing Orders for the Northern Ireland Assembly;

The subgroup’s membership should reflect the party strengths on the Business Committee (2 members each for DUP, Sinn Féin, UUP and SDLP and 1 member from Alliance);

Membership should be drawn from those who were members of, and alternate attendees at, the Business Committee;

The subgroup should seek representations on Standing Orders through written correspondence with those members not represented on the Business Committee;

The subgroup’s quorum would be 5 members;

The subgroup would agree its own chairing arrangements;”

and that the subgroup should report to the Business Committee by Tuesday, 16 January 2007.

The subgroup comprised nine members, with a quorum of five, and its first meeting took place on 11 December 2006. It was agreed at the meeting that voting would be made on the basis of consensus, and where that could not be reached, voting would be carried out on the basis of party strengths in the Assembly. The Chairman would have a casting vote. It was also agreed that deputies could attend if members of the subgroup were unable to do so.

The subgroup met on eight occasions between 11 December 2006 and 15 January 2007 and operated under the following arrangements: meetings were chaired in rotation by parties with more than one member on the subgroup.

It is this arrangement that has dictated that I carry out my function today as Chair.

3.30 pm

We wrote to the Independent Members seeking representations or contributions. We took the existing Standing Orders of the Northern Ireland Assembly as a base document. A programme based on an assessment of the essential burden of work on Standing Orders imposed by the Northern Ireland (St Andrews Agreement) Act 2006 was agreed. In addition, the Committee noted that some other amendments to existing Standing Orders would be desirable and undertook to consider those, where time permitted. We decided that the services of the Office of the Official Report would not be used, as the work of the subgroup was largely deliberative and discursive. Drafts of revised Standing Orders were prepared under its direction and subsequently formally agreed.

During the course of our work we were contacted by the Chairperson of the Programme for Government subgroup dealing with policing and justice, who asked that the Standing Orders subgroup take on board some of its concerns — those relating to potential conflicts of interest with the establishment of a new policing and justice Committee. That resulted in the drafting of a single Standing Order and advice note.

I should also say that we addressed the requirement of section 11 of the Northern Ireland (St Andrews Agreement) Act 2006 to establish an institutional review mechanism. In considering that, we came to the view that in this area in particular the legislation did not appear to be fully consistent with the terms of the agreement on which it was based. We concluded that the matter would be best taken forward if and when the Standing Orders of the next Assembly were debated in a plenary sitting. It was the subgroup’s recommendation that the Standing Orders, as amended, be considered as the Standing Orders of the Northern Ireland Assembly in accordance with paragraph 5 of schedule 1 to the Northern Ireland (St Andrews Agreement) Act 2006. There were some very minor amendments to drafts upon referral to the Business Committee.

I would like to express my appreciation to all those who worked hard and with enthusiasm and for the experience that they brought to bear, in particular the Committee Clerk and the staff for their diligence and expertise in bringing our task to a conclusion here today.

These Standing Orders will come into play only if the Assembly comes into play. Therefore the basic rules of democracy would need to be adhered to by all parties and accepted by all parties.

Mr O’Dowd: On a point of order. Is it appropriate for a Chair of a Committee presenting a report on behalf of the Committee to make a political statement during that presentation?

Mr Poots: Madam Speaker, in drawing my remarks to a conclusion, I can say that I received a threatening letter from the Secretary of State regarding the position that we are in.

Madam Speaker: Order.

Mr Poots: This may well be the last debate in the Assembly —

Madam Speaker: Order.

Mr Poots: I wish to move —

Madam Speaker: Order. I must respond to Mr O’Dowd. That was not a point of order, but if you think that Mr Poots’s remarks were political, I will examine the Hansard report to see if that is the case. I do not think that his comments were political, but I will look into the matter and give my ruling at the next sitting of the Assembly.

Lord Morrow: Further to that point of order.

Madam Speaker: As I said, Lord Morrow, that was not a point of order.[Interruption.]

Order. Please address remarks through the Chair.

Mr Poots, have you concluded your remarks?

Mr Poots: Yes, thank you, Madam Speaker.

Madam Speaker: We will now proceed to the consideration of the draft Standing Orders. We will deal, first of all, with draft Standing Orders 1 and 2, which are unchanged from the Northern Ireland Assembly Standing Orders. I propose to take these en bloc.

Mr Storey: I welcome the opportunity, as does my party, to speak in what is the first day of debate after the recent election. All returning Members who have demonstrated their commitment to solely democratic means are to be congratulated on their electoral success. I hope that in the not-too-distant future those who have some work to do to catch up with the rest of us with regard to their democratic credentials will be able to deliver. We look forward with interest to see how that will be achieved.

This House must, of course, have adequate Standing Orders so that debates can be regulated in a way that is appropriate and the issues that are brought before it dealt with effectively.

My party’s position was very clear in the negotiations that took place at St Andrews and in the arrangements that followed. The DUP entered into those negotiations in order to help to bring about the changes that could rectify the problems that so fundamentally undermined the operation of devolution under the terms of the Belfast Agreement. That is why it is so important that those arrangements are reflected now, as it is to be hoped that they will make up yet another element of the foundation that is required for a stable and lasting devolved Administration to operate.

The DUP in particular pressed for the need for accountability arrangements to be built into the working of any new Administration, given the problems that dogged the previous Assembly. In the House today, we have heard ample examples of the problems that the previous Executive faced when proper rules and regulations were not in place. Therefore, proper rules and regulations are an imperative, given the fact that the SDLP has given us a glaring example of its desire not to have rules and regulations that benefit the good governance of the people of Northern Ireland.

The Subgroup on Standing Orders has been careful, and has worked extremely hard on the detail. I, along with the Chairman, Edwin Poots, wish to thank subgroup members and staff for the work that they undertook. They deserve credit for the hard work that has been carried out to date. The subgroup was able to settle on most of the areas that required attention and would be broadly content with the work that was done.

It is never possible to foresee everything that could happen; therefore it is necessary to retain the possibility of reviewing Standing Orders. They should be considered a work in progress. That would give the House flexibility to adapt Standing Orders to meet its needs and challenges in the coming months and years. I hope that we will move forward with the job of legislating for the people of Northern Ireland when the conditions have been met.

Although the initial Standing Orders will give us a platform from which to start that work, changes to them will need to be made over time, and it is important that the opportunity exists for those changes to occur.

In conclusion, this debate is unlikely to provide any controversy. However, given the happenings earlier, I may have to eat my words — I trust that that will not be the case. It is important that Standing Orders be agreed for the House. It is also important to ensure that all parties, even the party that still has considerable work to do in order to measure up to the democratic credentials, have rules and regulations placed on them. Rules, and the rule of law, have been glaringly missing from the party that sits opposite.

Draft Standing Orders 1 and 2 agreed to.

Madam Speaker: Draft Standing Order 3 reflects the requirements of section 13 of the Northern Ireland (St Andrews Agreement) Act 2006 under which circumstances a Member may change his or her community designation. I call Mr David Ford.

Some Members: Hear, hear.

Mr Ford: Good gracious. It is good to know that some people still have a sense of irony despite all that this society has been through over the past few years. It will come as no great surprise that I view draft Standing Order 3(8) with supreme indifference.

As one of only three Members who have gone through the process of changing his or her designation for the good of society and to enable other people to take opportunities, which, sadly, they did not take, to make this a better place some years ago, I have no intention — and nor does any of my Colleagues — of making any use whatsoever of Standing Order 3 (8).

However, I want to draw Standing Order 3(7) to your attention, Madam Speaker, and to the attention of those who will form the Committee on Standing Orders. The announcement that you made earlier about the designation of Members who have signed into the Assembly proves that that Standing Order is actually out of line with the 1998 agreement and the Act which is supposed to be based on it. The agreement refers specifically to Members choosing a designation of “nationalist, unionist or other” — with those words appearing entirely in lower case and without quotations marks. However, Standing Orders has given each of those designations a capital letter and has placed them inside quotation marks.

Last week, my seven Colleagues and I signed into the Chamber with the designation “United Community”. That is our designation — not “Other”. The rules may require you, Madam Speaker, to regard us as “Others”. However, they certainly do not — according to the 1998 agreement — require that we sign the Roll as such. Therefore, we did not. It is incorrect for Standing Orders to pretend that we should have. If Standing Orders were correct, you would have had to rule that we had not validly signed the Roll of Membership, because we had not used the term “Other”. That issue must be dealt with.

When those points were being discussed during the past couple of years, members of the four main parties said that it would be good if we could move away from those divisive designations and that we must do so sometime. However, the mood was always that the time was not quite right. Some day, the Assembly must become a normal legislature in a normal society. We must move away from the utterly bogus and fictional view that we are a society of two divided groups that do not relate to each other or have any crossovers. That is patently not the case, as anyone who looks at the breadth of backgrounds in my party can see clearly.

Let us accept that if, as Mr Storey says, we must regard Standing Orders as a work in progress, a key starting point is to recognise that Standing Order 3(7) is at variance with the 1998 agreement and actively discriminates against a small group of MLAs. Rather than delivering platitudes about how they wish we could move away from those designations, it is time that Members were prepared to do something about them.

Madam Speaker: I have received no further indications from Members that they wish to speak on draft Standing Order 3.

Draft Standing Order 3 agreed to.

Madam Speaker: Draft Standing Orders 4 to 11 are unchanged from the Northern Ireland Assembly Standing Orders.

Mr Beggs: I want to put on record my appreciation of the committee clerks and staff for their efforts during a concentrated period. We were all under a great deal of pressure at that time. Without the use of email to speed up communications, we would have been lost.

I rise to speak on the motion. I want to highlight one issue that came out of the work of the Subgroup on Standing Orders. After the St Andrews Agreement, one party claimed that it had won a great victory by increasing the reporting of North/South Ministerial Council meetings. Section 52C was added to the Northern Ireland Act 1998. Subsection (3) states that:

“A report under subsection (2)(b) shall be made orally unless standing orders authorise it to be made in writing.”

However, when the subgroup examined the existing Standing Orders —

Madam Speaker: Mr Beggs, I ask you to clarify what you are speaking to in this instance. The discussion is on Standing Orders 4 to 11. You have indicated to me that you wish to speak on Standing Orders 5, 6 and 8, which are included in that.

Mr Beggs: I apologise. I did not ask to be called to speak to draft Standing Order 4; I thought that we had moved on to draft Standing Order 5.

3.45 pm

Madam Speaker: We are dealing with draft Standing Orders 4 to 11.

Mr Beggs: These draft Standing Orders cover Standing Order 18(1) of the Standing Orders of the Northern Ireland Assembly, under which —

Madam Speaker: We are dealing with draft Standing Orders 4 to 11.

Mr Beggs: I want to clarify that I did not ask to speak to those draft Standing Orders; therefore, there must have been an oversight.

Madam Speaker: I shall query that. We shall move on and let Mr Beggs speak later.

Draft Standing Orders 4 to 11 agreed to.

Madam Speaker: Draft Standing Order 12 contains a consequential change. We shall not consider that consequential change until we consider the substantive change that gives rise to it at draft Standing Order 45.

Draft Standing Order 12 agreed to (subject to any change which may be required to it as a consequence of any decision on draft Standing Order 45).

Madam Speaker: Draft standing orders 13 to 25 are unchanged from the Northern Ireland Assembly Standing Orders.

Does Mr Beggs wish to make a statement?

Mr Beggs: I indicated in writing the debates on which I wanted to speak, rather than the Standing Order numbers. I wrote that I wanted to speak on debate number five, so there was a misunderstanding.

At St Andrews one party claimed a great victory in increasing the reporting of North/South Ministerial Council meetings. New section 52C was added to the Northern Ireland Act 1998, and that took parliamentary time and the time of legislative draughtsmen to put together. New section 52C(3) states:

“A report under subsection (2)(b) shall be made orally unless standing orders authorise it to be made in writing.”

When the Standing Orders Committee examined this aspect of the legislation it referred to Standing Order 18(1) of the Northern Ireland Assembly, which states that the Minister:

“shall where possible make a written copy available to Members as early as possible before delivering the statement in the Assembly.”

In the previous Assembly that was the custom and practice. Legislation on this matter was unnecessary; therefore, there is no need to change existing procedures. Some people claim that there has been a wonderful change in the reporting mechanism, but in fact, none has occurred. I wish simply to put that on the record.

Mr Storey: Earlier we saw some infighting in the nationalist family, and it is not my place to start infighting among the unionist family. However, the election results made it abundantly clear that our electorate understood what we achieved in negotiations with the Government where Mr Beggs’s party had failed abysmally.

Some Members: Hear, hear.

Madam Speaker: I have no indication that any other Members wish to speak.

Draft Standing Orders 13 to 25 agreed to.

Madam Speaker: We move to a new draft Standing Order, draft Standing Order 25A, which reflects the provisions of section 17 of the Northern Ireland (St Andrews Agreement) Act 2006 and provides for the exercise of a vote in the event of a vacancy in the membership of the Assembly.

Mr Beggs: The provision, in effect, allows dead Members to vote, which is regrettable. The draft Standing Order allows for a vote to be exercised in the case of a vacancy. I therefore oppose draft Standing Order 25A.

Mr Ford: I concur with Mr Beggs’ comments, having supported him on the matter in Committee meetings. The provision may have been imposed upon us in the Standing Orders of the Transitional Assembly, but there is no reason whatsoever for us to continue that practice.

Draft Standing Order 25A negatived.

Madam Speaker: Draft Standing Orders 26 and 27 are unchanged from the Northern Ireland Assembly Standing Orders. I propose to take them en bloc.

Draft Standing Orders 26 and 27 agreed to.

Madam Speaker: We now move to another new draft Standing Order, draft Standing Order 27A, which deals with the referral of ministerial decisions to the Executive Committee.

This new Standing Order arises from the require­ments of section 6 of the Northern Ireland (St Andrews Agreement) Act 2006. It envisages a situation whereby a large number of Members consider that a ministerial decision either breaches the ministerial code or relates to a matter of public importance. In circumstances where at least 30 Members sign a petition to that effect, the Speaker will consult the parties in considering whether to refer the matter to the Executive Committee. The Standing Order lays out the procedure for such a circumstance.

Mr Beggs: I appreciate that this Standing Order reflects the Northern Ireland (St Andrews Agreement) Act 2006. Nevertheless, it is very bureaucratic. If 30 Members sign a petition of concern, it would be handed to the Speaker, who would consult the parties, and then decide whether the ministerial decision is a matter of public concern. However, if 30 Members have signed a petition and at least one party has indicated its concern during a consultation period, when would the Speaker ever say that a matter is not one of public concern? I wish to highlight the fact that the process is quite bureaucratic and has not been well thought out, but it reflects the legislation.

Mr Weir: This draft Standing Order allows the Speaker to act as a filter in circumstances where one party, or a group of parties, wants to act in a disruptive manner by repeatedly submitting frivolous petitions.

One hopes that that attitude will not be taken by any parties. However, there must be some degree of provision in the Standing Orders to ensure that one party or a group of parties does not try to gum up the machinery by consistently putting in petitions on frivolous issues. That is the reason for the inclusion of Standing Order 27A.

Draft Standing Order 27A agreed to.

Madam Speaker: Draft Standing Orders 28, 29 and 30 are unchanged from the Northern Ireland Assembly Standing Orders. I propose to take those en bloc.

Draft Standing Orders 28 to 30 agreed to.

Madam Speaker: We will now consider draft Standing Order 31, which contains a consequential change. The consequential change appears in your draft. We will not consider the consequential change until we consider the substantive change that gives rise to it at draft Standing Order 45.

Draft Standing Order 31 agreed to (subject to any change which may be required to it as a consequence of any decision on draft Standing Order 45).

Madam Speaker: Drafts Standing Orders 32 to 40 are unchanged from the Northern Ireland Assembly Standing Orders. I propose to take those en bloc.

Draft Standing Orders 32 to 40 agreed to.

Madam Speaker: We will now consider draft Standing Order 41, which contains a consequential change. The consequential change appears in your draft. We shall not consider the consequential change until we consider the substantive change that gives rise to it at draft Standing Order 45.

Draft Standing Order 41 agreed to (subject to any change which may be required to it as a consequence of any decision on draft Standing Order 45).

Madam Speaker: Standing Order 41A deals with the taking up of office by the First Minister and Deputy First Minister.

Mr Beggs: I wish to speak on the motion, and, once again, I note that the Standing Order has been adjusted to reflect legislation. I appreciate that that limits what can be done, however, there are flaws in that legislation, and I was disappointed that the amendment that I tabled in that regard was not accepted. However, I respect the decision of the Speaker.

Standing Order 41A refers to sections 16A and 16B of the Northern Ireland Act 1998, but section 16C is more significant, because, on occasions, it overrides sections 16A and 16B.

4.00 pm

That has created a destabilising effect. It has created a rat race to become the biggest political party in Northern Ireland. That, in turn, encourages voters to go to the extremes to stop the other political extreme from being top dog. There are flaws in draft Standing Order 41A and the associated legislation. It is bad for community relations and for Northern Ireland. It is also detrimental to the unionist community, because ultimately we will have no say in who is appointed to the position of Deputy First Minister. That is a gift that has been handed entirely to another party.

How did this happen? Interestingly, it is not in the St Andrews Agreement. However, when it came to passing the legislation in Westminster, that additional clause was somehow slipped in, and it appears that neither Sinn Féin nor the DUP decided to make a stand on the issue. I believe that they have an advantage from it. They have, therefore, taken a political advantage for themselves over the long-term interests of the entire community in Northern Ireland. The Ulster Unionist Party MP, Lady Sylvia Hermon, moved amendments, but they were defeated by filibustering. Ulster Unionist peers also attempted to change the Northern Ireland (St Andrews Agreement) Act 2006 at Westminster but were unsuccessful. Essentially, the extreme political parties are looking after their narrow self-interest rather than the interests of the entire community in Northern Ireland.

Mr Donaldson: I must respond to the points made by the Member for East Antrim, because I am curious as to what it is that makes me extreme in comparison to him. Is it because I am a unionist? Maybe it is because, like him, I am a Presbyterian or a member of the Orange Institution. I would be interested in knowing what it is that makes my colleagues and me extreme. If we are, then the majority of the unionist population is extreme, because the majority of the unionist population voted for this Assembly.

Mr Weir: Perhaps it is the fact that this party is extremely popular? [Laughter.]

Mr Donaldson: I thank the Member for North Down for that intervention — he stole my punch line. He is absolutely right.

This is not about extremes; if it were, rather than seeking to move Northern Ireland forward, the electorate would be dragging it backwards in the way that it has voted in these elections. The reality is that the electorate in Northern Ireland voted for progress.

The DUP will take no lectures from the Ulster Unionist Party on the structures in this Assembly. It was the Ulster Unionist Party leadership — and Mr Beggs supported that leadership — which introduced the voting systems that we have in this Assembly, the idea of designations and so on. The Ulster Unionist Party need not try to wash its hands of what it did in the past. The consequences of that are there, and every day of every week they rise up to bite that party because it made those mistakes. The changes that are being introduced are about putting right what was done wrong and fixing the mistakes made by the Ulster Unionist Party. That is why I am proud to be on these Benches and I am glad I am not on those Benches. [Interruption.]

Do not worry, I will be staying here. I hope that in time the Member for Newry and Armagh will catch himself on and come and join us. [Laughter.]

Madam Speaker: Order. Please keep to the issue.

Mr Donaldson: These changes are for the good of the operation of this Assembly, and I believe that hon Members should support these amendments because they are about progress, not going back to the past that the Member for East Antrim would try to drag us back to.

Draft Standing Order 41A agreed to.

Madam Speaker: We will now consider draft Standing Order 42, which contains several changes to the Northern Ireland Assembly Standing Orders.

Mr O’Dowd: Go raibh maith agat, a Cheann Comhairle. As has already been stated, there are three changes to Standing Order 42. Standing Order 42(2)(e) reflects the Independent Monitoring Commission (IMC) legislation that was introduced in the British Parliament in 2003, giving authority to the Secretary of State over the elected Members of this Chamber and also over the electorate, which a fortnight ago went to the polls and, in the words of Mr Donaldson, voted for progress.

At the stroke of a pen, Standing Order 42 and the legislation from which it derives gives the British Secretary of State the right to exclude any Minister from the Executive and to reinstate that Minister after a period of exclusion. Sinn Féin can endorse neither the IMC legislation nor Standing Order 42(2)(e) and will vote against this provision. If 42(2)(e) is included in Standing Orders, Sinn Féin will vote against all the Standing Orders at the cross-community vote. Sinn Féin cannot endorse the role of the IMC, which allows securocrats to override elected representatives of the Assembly and the wishes of the electorate.

I am joint Chairperson of the Standing Orders Subgroup. I was asked to present the report and refused because I wanted to make some political statements to the House and I did not wish to undermine the position of Cathaoirleach — the Chairperson — by doing so. It is unfortunate that that happened this morning. However, I am not about getting my name in the headlines of the local newspaper; I am about trying to ensure that we make progress in the Assembly and that next week we have a fully functioning, up-and-running Executive.

DUP Members must remember one important thing: they are not the gatekeepers to democracy; they do not have not the qualifications for that task. If we make progress together, we can make change in people’s daily lives and create the society that David Ford spoke about earlier. However, the DUP must not put itself on a pedestal or claim to be the gatekeepers to democracy.

(Mr Deputy Speaker [Mr Wells] in the Chair).

Mr Storey: I find it strange to come to the House and be lectured by a party whose sole mandate for 35 years was to undermine democracy, which was quite happy to endorse the murder of our constituents, and which was quite happy to tear the heart out of the economy of Northern Ireland. Although some would like us to forget what happened in the past, that will not happen. Sinn Féin has a long way to go to prove to my constituency that it can measure up to the credentials of democracy.

Mr O’Dowd: I thank Mr Storey for his intervention. Neither my party nor I ask anyone to forget the past; however, I will not engage in a debate that we have had many times in the Chamber and which, no doubt, we will have many times in future. Everyone has their own pain from the past. As one of Mr Storey’s colleagues said, the electorate voted a fortnight ago for progress. Let us all move forward towards that progress for the sake of the whole of society.

A Leas-Cheann Comhairle, Sinn Féin will not support Standing Order 42(2)(e).

Mr Ford: Mr O’Dowd and his colleagues have made their position on the IMC legislation clear; doubtless they will continue to do so. However, if they vote against Standing Order 42(2)(e), they run the risk of removing any opportunity for people to re-enter ministerial office after a period of exclusion has ended. They are in danger of cutting off their nose to spite their collective face. They might not like the primary legislation — many of us do not like aspects of primary legislation that affect Standing Orders — but Mr O’Dowd’s argument does his case no good.

Mr O’Dowd: Our stance is that we do not give anyone the right to exclude us in the first place, never mind include us. The only people who can exclude us, as far as we are concerned, are the electorate — and the electorate has spoken.

In relation to this Standing Order we do not have the power to change the primary legislation, because that is set in Westminster. Sinn Féin accepts that. But we do have the power to say to the British Government that the IMC legislation is wrong, and this is our only way to show opposition. If this is not included, Sinn Féin accepts the fact that primary legislation still governs us, and that the Secretary of State will still have the power to exclude and reinstate Ministers.

Mr Weir: This Standing Order refers to section 18(1)(d) of the 1998 Act, which actually pre-dates the IMC. Sinn Féin is obviously in a constant state of paranoia about so-called securocrats. One wonders why it is concerned about spies; it seems at times to be riven with them. The reality is that if Sinn Féin is doing nothing wrong it has nothing to fear from exclusion.

The Standing Order refers to the 1998 Act, which derives from the Belfast Agreement, of which Sinn Féin is supposedly an enthusiastic supporter. If it is going to reject Standing Orders, it should at least do it on the correct basis. If Sinn Féin wants to join us in the lobbies against the Belfast Agreement, we will all welcome its conversion. Sinn Féin is actually rejecting something that is 9 years old. It is an attempt at political point-scoring rather than any objection with a degree of substance.

Draft Standing Order 42 agreed to.

Draft Standing Orders 43 and 44 agreed to.

Mr Deputy Speaker: We move to draft Standing Order 45, which contains a number of changes. For example, there is the need to change the status of the Committee of the Centre and restrictions on membership of the Committee of the Assembly responsible for policing and justice. I would also like to draw Members’ attention to draft Standing Order 45, which if approved will necessitate consequential amendments to draft Standing Orders 12(1), 31(1), 31(2) and 41(8).

Mr Poots: Section 10 of the Northern Ireland (St Andrews Agreement) Act 2006 facilitates a necessary status change for the Committee of the Centre. As a former Chairman of that Committee, I particularly recognise the need to bring it into line with the other Statutory Committees. The minor changes to Standing Order 45 and the deletion of the existing Standing Order 54 satisfactorily facilitate this and create a Statutory Committee to scrutinise the important work of the Office of the First Minister and the Deputy First Minister. The Committee is free standing and cannot be combined with any other scrutiny Committee, and therefore cannot be ignored as it was in the past by the First Minister.

Mr Beggs: I believe that the proposals are in line with the legislation. The DUP Chairman of the Subgroup on Policing and Justice wrote to the Standing Orders Committee on 12 December 2006, requesting that the potential conflict of interest between membership of the Policing Board and any Assembly policing and justice Committee should be avoided. This Standing Order will clearly achieve that. If policing and justice is not going to be devolved between Standing Orders —

4.15 pm

Mr Poots: Perhaps Mr Beggs’s comments relate to the next item on the Order Paper, as opposed to the one concerning the Committee of the Centre.

Mr Beggs: The proposal to add wording to Standing Order 45 will clearly bring about the avoidance of conflict between the two groups. The Ulster Unionist Party does not believe that the Assembly is ready for the devolution of policing and justice or that it should debate such divisive issues, as that could have a destabilising effect. The unionist community is not ready for the devolution of those powers.

Draft Standing Order 45, and the consequential amendments to draft Standing Orders 12(1), 31 (1) and (2) and 41(8), agreed to.

Draft Standing Order 46 agreed to.

Mr Deputy Speaker: Draft Standing Orders 47, 48 and 49 remain unchanged. However, I draw Members’ attention to a printing error in the draft version, which incorrectly indicates that there is an amendment to draft Standing Order 47. That is simply a duplication of the text already inserted in draft Standing Order 45. I propose to take draft Standing Orders 47, 48 and 49 en bloc.

Draft Standing Orders 47 to 49 agreed to.

Mr Deputy Speaker: Draft Standing Order 50 reflects a change from the Northern Ireland Assembly’s Standing Orders in paragraph 5 relating to substitutes and voting rights on the Business Committee and in paragraph 6 as a consequence of the new Standing Order 25A.

Mr Ford: I thought that the motion to create a new Standing Order 25A was defeated.

Mr Deputy Speaker: Yes, that is correct. Consequently, that has been deleted.

Mr Beggs now wishes to speak.

Mr Beggs: I appreciate that Members previously chose not to give a dead person the ability to vote. My amendment intends to deal with a similar situation that arises under Standing Order 50(6).

I beg to move

In Standing Order 50 (6) leave out all after the second “party.”

I want to ensure that anything that allows dead people to vote does not end up in Standing Orders. If that can be resolved without my having to move an amendment, I am happy. However, I wish to get a ruling, because I would not like such a provision to appear in Standing Orders. Therefore, I leave Members to make a decision.

Question, that the amendment be made, put and agreed to.

Draft Standing Order 50, as amended, agreed to.

Mr Deputy Speaker: As draft Standing Orders 51 to 53 remain unchanged from the Northern Ireland Assembly Standing Orders, I propose to take them en bloc.

Draft Standing Orders 51 to 53 agreed to.

Mr Deputy Speaker: We moved to draft Standing Order 54.

Mr Beggs: Although the proposal reflects the legislation, I wish to comment on it. In light of the experience of the previous Assembly, Members could easily have agreed how they should be regulated without the need for legislation, and it is unfortunate that legislation has been used. Regulation could have been achieved under Assembly rules.

There could well be a need for cross-community support if there is to be an outcome as a result of the proposal. No one crowed about that aspect of the review when this powerful review mechanism was achieved. I wish to highlight the fact that it seems very powerful on paper, however, unless there is subsequent cross-community consensus, it might amount to nothing.

Draft Standing Order 54 agreed to.

Mr Deputy Speaker: Draft Standing Orders 55 to 75 are unchanged from the Northern Ireland Assembly Standing Orders. I propose to take them en bloc.

Draft Standing Orders 55 to 75 agreed to.

Mr Deputy Speaker: That concludes the consideration of the draft Standing Orders. I call the Chairman of the Subgroup on Standing Orders to wind the debate.

The Chairperson of the Subgroup on Standing Orders (Mr Poots): I thank the Deputy Speaker for his assistance and my democratic colleagues for bringing the matter to a conclusion. I am disappointed that one party veered away from the issues during the discussion and introduced some that indicated that they still have problems with fulfilling the democratic requirement in Northern Ireland. Ultimately Mr Speaker, I trust that those rules will be in place in the new Northern Ireland Assembly and that Members will be in a position to carry out the work of the Assembly for the good of the public. The draft Standing Orders will give us a template to work from. I trust that everyone else will fulfil all other rules to ensure that happens.

(Madam Speaker in the Chair)

Madam Speaker: Do any other Members wish to speak?

As approval for the draft Standing Orders requires cross-community support in accordance with schedule 1(5) to the Northern Ireland (St Andrews Agreement) Act 2006, I intend to divide the House.

Question put.

The Assembly divided: Ayes 58; Noes 23.

Ayes

Nationalist:

Mary Bradley, P J Bradley, Thomas Burns, John Dallat, Mark Durkan, Tommy Gallagher, Carmel Hanna, Dolores Kelly, Alban Maginness, Alasdair McDonnell, Patsy McGlone, Declan O’Loan, Margaret Ritchie.

Unionist:

Billy Armstrong, Roy Beggs, Allan Bresland, Lord Browne, Thomas Buchanan, Trevor Clarke, Fred Cobain, Robert Coulter, Jonathan Craig, Leslie Cree, Jeffrey Donaldson, Alex Easton, Reg Empey, Arlene Foster, Samuel Gardiner, Simon Hamilton, William Hay, Danny Kennedy, John McCallister, Nelson McCausland, Basil McCrea, Ian McCrea, Alan McFarland, Michael McGimpsey, Michelle McIlveen, David McNarry, Adrian McQuillan, Lord Morrow, Stephen Moutray, Robin Newton, Ian Paisley Jnr, Edwin Poots, George Robinson, Iris Robinson, Peter Robinson, Jim Shannon, David Simpson, Jimmy Spratt, Mervyn Storey, Peter Weir.

Other:

Stephen Farry, David Ford, Anna Lo, Kieran McCarthy, Brian Wilson.

Tellers for the Ayes: Robin Newton and Jim Shannon

Noes

Nationalist:

Martina Anderson, Cathal Boylan, Mickey Brady, Francis Brolly, Paul Butler, Willie Clarke, Pat Doherty, Michelle Gildernew, Alex Maskey, Paul Maskey, Fra McCann, Jennifer McCann, Raymond McCartney, Barry McElduff, Claire McGill, Gerry McHugh, Daithí McKay, Conor Murphy, Carál Ní Chuilín, John O’Dowd, Michelle O’Neill, Sue Ramsey, Caitríona Ruane.

Tellers for the Noes: Paul Maskey and Carál Ní Chuilí

Total Votes               81              Total Ayes                 58 ( 71.6%)

Nationalist Votes    36              Nationalist Ayes       13 ( 36.1%)

Unionist Votes        40              Unionist Ayes            40 ( 100.0%)

Question accordingly negatived.

Mr Kennedy: On a point of order, Madam Speaker. As the Secretary of State has the authority to impose Standing Orders on the Assembly, can you confirm that the amended Standing Orders will be referred to him? That being so, will the Speaker reflect to the Secretary of State the minor, yet important, changes to which the Assembly has agreed?

Madam Speaker: I cannot confirm that the amended Standing Orders will be referred to the Secretary of State. He will have access to Hansard, and it is up to him as to whether he imposes the Standing Orders. He will inform my office of his decision, and I will pass on that information to Members at the next plenary sitting.

I wish to remind members of the Business Committee that it will meet in Room 106 half an hour after the sitting is adjourned, which will be at approximately 5.00 pm.

Mr P J Bradley: On a point of order, Madam Speaker. Must the Business Committee meet 30 minutes after the House is adjourned? Can it not meet earlier than that?

Madam Speaker: The Committee is scheduled to meet at 5.00 pm. My officials and I have to do a few things before then, and I am sure that the Committee’s members will be glad of a short break.

Adjourned at 4.39 pm.

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