COMMITTEE ON THE
PREPARATION FOR GOVERNMENT

Monday 23 October 2006

Members in attendance for all or part of proceedings:
The Chairman, Mr Francie Molloy
Mr P J Bradley
Mrs Diane Dodds
Dr Seán Farren
Mr David Ford
Mr Danny Kennedy
Mr Kieran McCarthy
Mr Alan McFarland
Mr Alban Maginness
Lord Morrow
Mr Conor Murphy
Mr John O’Dowd
Mr Edwin Poots
Ms Caitríona Ruane

The Committee met at 2.07 pm.

(The Chairman (Mr Molloy) in the Chair.)

The Chairman (Mr Molloy): I remind members to switch off their mobile phones, which can disrupt the recording system. We shall begin with apologies. Who is standing in for whom?

Mr Murphy: John O’Dowd and Caitríona Ruane are standing in for Martin McGuinness and Michelle Gildernew.

Mr P J Bradley: I am here in place of Mark Durkan.

Mr Ford: Kieran McCarthy is standing in for Naomi Long.

Mr McFarland: I hope that Michael McGimpsey will shortly be here in place of David McNarry.

Lord Morrow: Edwin Poots is standing in for Ian Paisley Jnr, and Diane Dodds is here in place of William McCrea.

The Chairman (Mr Molloy): Are members content with the draft minutes of our meeting of 17 October?

Members indicated assent.

The Chairman (Mr Molloy): We move to matters arising. We have sent a letter to the Secretary of State about letters and documents that were given to parties at St Andrews. We have not yet received a reply.

Dr Farren: For the record, we agreed to meet last Friday. I heard nothing other than that the meeting had been postponed. Was there any particular reason for that postponement?

The Chairman (Mr Molloy): I believe that the DUP could not put forward any representatives. Is that correct?

Lord Morrow: I was not aware of that meeting.

The Chairman (Mr Molloy): The meeting was postponed because the DUP could not attend that day.

Lord Morrow: There is potential for some confusion, because we have two Committees whose names can be abbreviated to PFG. One is in the making, and this one is up and running. This Committee still appears to have life in it. Is this PFG I, and the other PFG II?

The Chairman (Mr Molloy): Perhaps we are better sticking to the principle that this is the Committee on the Preparation for Government, and the other is the Programme for Government Committee. Perhaps we should use full titles instead of shortened names.

Mr Kennedy: P1 and P2?

Mr McFarland: “Prog” and “Prep” — P1 and P2.

Mr A Maginness: Can we remember which is which?

The Chairman (Mr Molloy): The Subgroup on the Economic Challenges facing Northern Ireland is also part of the Preparation for Government Committee.

Dr Farren: I do not wish to make an issue of this, but Friday was not the first time when the largest party in the Assembly could not field a team. It seems rather strange that members do not know on a Tuesday whether they can or cannot field a team on a Friday. The rest of us seem to be able to do that. Diaries had to be rearranged. For whatever reason, I did not learn about the postponement until I received on Friday morning the draft minutes and papers, which stated that the next meeting was to be on Monday. I then telephoned to find out what had happened.

I do not wish to overstate my own case of being discommoded, but I expect parties to try to honour their commitments.

The Chairman (Mr Molloy): There was probably a certain amount of confusion last week.

Lord Morrow: There certainly was. I know nothing about that.

The Chairman (Mr Molloy): We set the meeting for Friday evening because everyone was working out arrangements. Through holding no meetings, we lost the rest of last week. It is important, given the short timescale within which we are working, that we try to get full attendance when possible.

Lord Morrow: We should move away from depending on the press to tell us whether meetings are happening or not.

Dr Farren: We told ourselves.

Lord Morrow: I was not told, and I am a member of the Committee.

Dr Farren: It is his party’s business to inform him, not ours.

The Chairman (Mr Molloy): Were parties told that the meeting was postponed?

The Committee Clerk: We telephoned the party offices to rearrange Friday’s meeting for today.

The Chairman (Mr Molloy): There are no other matters arising.

Members have been provided with a future work programme, which includes a table of issues in annex A to the St Andrews Agreement. The Committee Clerks have put together a draft programme of work, and it is for the Committee to decide whether we can work within that. The schedule is fairly hectic, but it has to be if we are to meet the deadline of 31 October that has been set. The Secretary of State requires information on that date as to what matters require legislation so that that can be dealt with before 10 November.

Mrs D Dodds: Perhaps we will come to this matter later, but it seems to me that the draft work programme gives us three and a half days to consider some extremely important issues. The Committee should seek clarification on why we have been set a deadline of 30 October when the parties have been told that their responses to the St Andrews proposals are due on 10 November. If parties respond by that date, that allows sufficient time to frame any legislation that may be required before 24 November. This is a very condensed and heavy programme of work, and I am not sure that the deadline of 30 October is realistic. That deadline is not in keeping with the deadline that the Secretary of State has set the parties, which is 10 November. If a deadline of 10 November allows sufficient time to frame legislation, surely we could have more time to consider the issues.

The Chairman (Mr Molloy): There are two issues, of which legislation is one. There are also unresolved matters that the Secretary of State wishes to take up with the parties before 10 November. The deadline is actually 31 October. After that, the Secretary of State will want to talk to the parties individually about the matters that are not resolved around this table. The reason for the 31 October deadline is more to do with that than with legislation.

Mr Murphy: There are probably two processes going on. The parties will give their responses on annex A to the St Andrews Agreement, the other annexes, and anything else that requires legislation. The purpose of our going through these matters is to see whether there is a different consensus in the Committee on any issue from what is already proposed in annex A. Having spent several months going through all these matters, I would be surprised if any new consensus were to emerge on any particular issue. However, that may happen, if we tease out some matters. I understand the reason for that approach.

2.15 pm

We are not here to discuss those issues in detail and give our party’s official response: we are here to see whether we can reach consensus on something that is contrary to what has been proposed. That would then be relayed back to the people drafting the legislation in time for inclusion.

At the risk of making the workload even heavier, Sinn Féin has a major conference all day tomorrow and will, therefore, have great difficulty attending a meeting of the Preparation for Government Committee. The Committee has already discussed the issues listed on the agenda for Wednesday 25 October. I do not sense that there are any real issues, although some require more detail than others. However, I am not sure whether that needs to be recorded here. I suggest that the agendas for Tuesday and Wednesday be combined for a single meeting on Wednesday.

Some issues, such as the repeal of the Northern Ireland Act 2000 and community designation, have being allocated a half day according to the draft work programme. For instance, we have already discussed community designation, and only a further five-minute discussion is needed to determine whether views have changed. I know that the Alliance Party has particular views on community designation.

Mr Ford: At least Conor has learnt that.

Mr Murphy: All parties have made their views known, and we have reached whatever consensus, or lack of consensus, that we can on those issues. Days are being filled with issues that will not take that long to discuss, unless we are prepared to re-examine and rehash them all entirely.

I am merely flagging that Sinn Féin has a serious difficulty all day tomorrow and trying to suggest a way in which to deal with all the issues this week without disrupting the agenda.

Mr McFarland: Conor is right. I thought that the Committee had stashed away some of the issues that are being listed for discussion. For example, I thought that we had agreed that the Committee of the Centre be put on a statutory footing — end of story. However, that issue has been given a chunk of time. I understood that the First Minister and the Deputy First Minister would discuss the functions of the Office of the First Minister and the Deputy First Minister (OFMDFM) after restoration.

There are some fairly major issues: discussion on the ministerial code may take longer than a day, if we ever get around to it. There is also the question of whether parties will try to sort out issues in a round-table format or intend to do so in bilateral discussions with the Government. It would be useful to know where the parties stand on that, because there is no point in us beavering away all day to discover that people cannot, or will not, agree amendments.

The Chairman (Mr Molloy): I would have thought that a number of issues that the Preparation for Government Committee have discussed could be marked as agreed or otherwise, and decisions taken on them quickly. There are a number of key issues, such as the ministerial code, on which the Committee must spend some time. We should, therefore, not scrub the other issues but make decisions on them. In cases in which a decision has already been made, that decision should be confirmed, or otherwise. If there is no change, let us not spend hours having the same debates.

Mr Ford: You have given an accurate summary, Chairman. I largely agree with Conor that there is no point in rehashing things. However, without trying to reopen last week’s discussion on the Secretary of State’s letter, there is an issue in that we will now be recording parties’ opinions on proposals as opposed to merely recording total consensus or otherwise. Parties may want to get issues back on the agenda in order to record the strength of opinion on them. However, that does not mean that we need to rehash the entire discussion.

The Chairman (Mr Molloy): We can lengthen our discussion on that matter. However, that would reduce the time we have to discuss other issues today. To do the latter may be more productive.

Mr Murphy: I mentioned Sinn Fein’s difficulty in attending a Preparation for Government Committee meeting tomorrow. I proposed trying to resolve that problem by condensing the programmes for Tuesday and Wednesday into one day. It may be possible for someone from Sinn Féin to attend tomorrow afternoon, but it would be a severe stretch.

The Chairman (Mr Molloy): Are there any other views on collapsing the two days into one? Is everyone happy to meet all day on Wednesday?

Members indicated assent.

The Chairman (Mr Molloy): We will have full attendance on Wednesday.

We propose to start at 10.00 am on Wednesday morning and work through until 4.00 pm. That is the initial stage, but what about the rest of the work programme? Will we set the number of days on which the Committee should sit between now and next week?

Lord Morrow: Mr Chairman, should we not be hearing soon from the Secretary of State about the letters and documents given to the parties at St Andrews? I suspect that that will have some influence on the speed of the Committee. However, perhaps the Secretary of State does not see it that way. Someone should telephone him.

The Chairman (Mr Molloy): The Committee Clerk will talk to his office. Some NIO officials are here today, and they will convey the urgency of the situation to the Secretary of State.

Are members OK to meet all day on Thursday 26 October?

Dr Farren: This week?

The Chairman (Mr Molloy): Yes, this week.

Lord Morrow: Should we not just stay overnight?

The Chairman (Mr Molloy): That is another idea. Is everyone happy to meet on Thursday?

Members indicated assent.

Ms Ruane: Is that for the day and the night, or just the day?

The Chairman (Mr Molloy): At this stage, it is just the day. We will see what is left after that when we plan for the following week. We can at least pencil in Monday 30 October.

Mr McFarland: Was Friday 27 October mentioned?

The Chairman (Mr Molloy): No. We will have Friday off — unless anyone wants to stay overnight. We will meet on Wednesday and Thursday.

Mr McFarland: Last week we touched on the unresolved policing and justice issues, and there was talk of dividing the Preparation for Government Committee into different groups, as we did before. Has that suggestion gone to the wall, or where are we at with it?

The Chairman (Mr Molloy): No. I assumed that that was agreed last week. Those issues are not being dealt with in this Committee.

Mr McFarland: Yes, but those issues do not feature in any of our planning. Logically, they would feature in meetings of the “Wednesday team”.

The Chairman (Mr Molloy): We are basically dealing with institutional issues. However, if a particular day should be set aside for this Committee to discuss law-and-order issues, we would need to discuss that and look for party representatives on policing and justice to attend.

Mr McFarland: Is it the intention to park law-and-order issues until after the Assembly gets up and running again? Someone somewhere must have given some thought to the outstanding issues in our law-and-order issues report. What thought has been given, and what are those thoughts?

The Chairman (Mr Molloy): The thinking is that we should deal with the institutional issues this week and policing and justice matters next week.

Mr McFarland: Therefore, they do not fall into the 31 October deadline for the Secretary of State to legislate on them?

The Chairman (Mr Molloy): We are dealing with the institutional issues in annex A. If there are issues that we need to bring to this Committee on policing and justice, we should do so. It is within the remit of this Committee to look at that; it falls within the remit of preparation for government.

Dr Farren: On a completely different issue, it was reported to our Assembly group this morning that the date for the promised meeting with the Chancellor following the St Andrews deal has been identified as Wednesday week, and that all parties will be represented at the same meeting. If that meeting is to have an effect we need to all sing from the same hymn sheet; otherwise, we will be divided and, therefore, conquered. Is it this Committee’s responsibility at least to alert itself to that need and see what might be done between now and the meeting? Otherwise, the meeting is likely to be unproductive, or certainly less productive, than it should be. It would be useful if the parties met — perhaps informally — and tossed the agenda around, so that at least some common understandings could be reached. It could be done formally in this Committee, since it has been responsible for the work that has been going on.

Mr McFarland: Would it not follow that the economic subgroup, which contains each party’s experts on the subject, would wish to have some sort of discussion?

The other question is how to get up to speed. It would be useful if the Department of Finance and Personnel could ensure that the subgroup has a grasp of the latest thinking before it approaches the Treasury. Otherwise, it may be blind to some of the issues that it might have to consider when getting an agreed package or agreeing what such a package should contain.

The Chairman (Mr Molloy): When will that meeting be held and what will its make-up be? Will Gordon Brown meet the parties individually?

Mr Murphy: He will meet the parties, as far as I know.

Mr McFarland: It will be a round-table meeting.

Dr Farren: He will meet the parties collectively. The personnel involved will be those who are most au fait with the issues. I am not suggesting that it will be the people who were nominated to the Preparation for Government Committee. It is up to the parties to decide who will be present.

The subgroup meets on Thursday of this week, and it might usefully take up the issue. The meeting is only 10 days away, and it is critical, if we are serious, that there be a concerted voice. If not, it will just be an exchange of views rather than a real attempt to achieve something collectively.

Mr Murphy: I agree with Seán that every effort should be made to get as common a platform as possible for that meeting. The economic subgroup has been talking about this and other economic issues. A job of work was done to assist the discussions at St Andrews, and this is a development from that meeting, so they are the people who should take it forward.

Thursday is a bit far away, and I am not sure that the subgroup can be convened any earlier. If the subgroup has done enough groundwork and can crunch down on the issues, the parties may reach a common view. There has been some convergence of views on a peace dividend or economic package to underpin the restoration of the institutions, and it would be a missed opportunity if we cannot take advantage of that in the meeting with Gordon Brown. There is an expectation on the British Government side that we will come with our act together and with a common set of demands, and every effort should be made to facilitate that.

Mr Ford: When I was talking to Sean Neeson earlier, we assumed that preparations for meeting the Chancellor would form a large part of the subgroup’s discussions on Thursday. It is unfortunate that it is meeting at the same time as this Committee, and therefore there will be no overlapping membership. Given that the subgroup has done the bulk of the work, it is logical that it should prepare for the meeting with the Chancellor and that it should build on the work that has already been done through consensus.

I am not sure whether the subgroup’s Committee Clerk and his team are yet aware that the Committee thinks that that should be the priority for Thursday’s meeting.

The Chairman (Mr Molloy): Perhaps after this meeting we should communicate the view to the Committee Clerk that the subgroup should meet before Thursday to prepare for the meeting with the Chancellor.

I also thought that what was being proposed was more a part of the work of the Programme for Government Committee.

Mr Ford: We cannot set it back.

Mr Murphy: The Programme for Government Committee has not got off the ground yet, and that meeting is scheduled for Wednesday 1 November. Given that the economic subgroup has done a substantial amount of work in that area, perhaps we should try to get whatever it can put together in advance of that meeting.

2.30 pm

The Chairman (Mr Molloy): Priority will go back to the subgroup, which will be asked to take it from there. This Committee will meet again on Thursday, which will give us an opportunity to tidy that up.

Alan, the issues that you wanted to raise on the Policing Board and other policing, justice and law-and-order issues have been listed for us to come back to. However, there are also issues with regard to rights, safeguards, equality and victims. Those will be part of the next stage of the programme.

Mr McFarland: Are we going to run out of time for this? If this Committee were to do this in a serious manner, it would fire off what it had done before, which, on Mondays, was institutions. There are no issues on rights and safeguards that need to be resolved, but there are on policing and justice. Logically, therefore, those matters should run side by side, because time is limited. As it is, this Committee will be right up against it. By the time that we start discussing the ministerial code in detail, it will probably be back into Wednesday.

The question is whether to consider those issues later. Perhaps it does not matter whether we make decisions on policing and justice issues, because they are not as critical. One could argue that that might need to wait until after a Sinn Féin Ard-Fheis or for 18 months or two years — however long it is before those matters are devolved. However, those issues were identified in the report and they remain unsolved. The question is whether there is a will to solve them now, or whether we are content to leave them until later, in which case it is not vital that we run parallel with those matters.

The Chairman (Mr Molloy): Annex A outlines the institutional issues on which the Committee on the Preparation for Government has been directed to give a response by 10 November.

Mr McFarland: I understand that. However, we had a different team working on Wednesdays on policing and justice. Do we want them running in parallel with the team that deals with institutions, or are we content to do them in succession?

The Chairman (Mr Molloy): Perhaps we should set a date for the team on law-and-order issues to meet. That will give them an opportunity to pull their views together beforehand. Does that seem sensible?

A number of members will be absent from Wednesday’s meeting because it coincides with the meeting with the Chancellor. However, would it not be possible to kick off discussion on law-and-order issues prior to that?

Mr McFarland: Chairman, I seem to be a lone voice in the wilderness. I am content for that to sit as no one else seems to be exercised by the matter. Let us leave the issue and deal with it further down the line.

The Chairman (Mr Molloy): Is there consensus on that?

Mr O’Dowd: On Alan’s being a voice in the wilderness or on his proposal?

The Chairman (Mr Molloy): Does anyone want there to be a meeting before that date?

Members indicated dissent.

The Chairman (Mr Molloy): We do not have consensus on that. You and I were voices in the wilderness, Alan.

Mr McFarland: Mañana.

The Chairman (Mr Molloy): We have a paper on the ministerial code. Members will be getting copies, which will give us something to read.

Mr Murphy: Are we dealing with the ministerial code per se or with the references in the annex for which legislation is proposed? One topic would require an hour’s discussion; the other a week. If this Committee’s priority is to deal with what is contained in annex A with regard to the ministerial code, it is helpful to have copies in front of us. However, I am not sure that we need to trawl our way through the entire code, but rather discuss our attitudes towards it.

The Chairman (Mr Molloy): What needs legislation?

Mr Murphy: The issues for which the British Government have proposed to legislate. Whether they need to be legislated for is another view. If we started to discuss those issues, we could be here for some time.

Dr Farren: I agree with Conor Murphy. We should discuss annex A, because at least one party has identified that it would like the issues in it to be somehow enshrined in legislation. If we agree to any issues in annex A and there are implications for the rest of the code as a result, they will be picked up and the necessary changes will be suggested to the Committee. Therefore we should go through annex A, which is what we set ourselves to do last week, rather than go through the whole draft ministerial code. That is what I understood Conor to be suggesting.

Mr McFarland: Where do we stand with the required task that the Secretary of State gave to this Committee of agreeing a ministerial code by the end of October? Has it been moved on?

The Chairman (Mr Molloy): There is no referral on that. At this stage, the referral relates to annex A.

Mr McFarland: Has the Secretary of State’s original requirement for the Committee on the Preparation for Government to report on the draft ministerial code and to agree it by the end of October fallen by the wayside?

Mr Murphy: My understanding was that all references to a new ministerial code would be agreed by the Executive and presented, post-restoration, to the Assembly by the First Minister and the Deputy First Minister.

Mr McFarland: Is that in the St Andrews Agreement?

Mr Murphy: That has been the case from the beginning. Certain clauses in the draft ministerial code would be legislated for, but an agreed ministerial code would be discussed by the Executive and proposed to the Assembly by the First Minister and the Deputy First Minister.

Mr McFarland: I understand that, but the Secretary of State originally tasked the Committee on the Preparation for Government with producing a ministerial code by the end of October.

Mr Murphy: That was not my understanding.

The Chairman (Mr Molloy): That was the original task.

Mr McFarland: The original task was to produce a draft ministerial code by the end of October.

Mr Murphy: That was ambitious.

Dr Farren: That was based on restoration occurring by 24 November, but that date has slipped to 26 March.

Mr Murphy: The clear passage for the draft ministerial code was to have it adopted post-restoration.

The Chairman (Mr Molloy): We will now proceed with discussing annex A.

Mr McFarland: Perhaps I am being dozy, but can you remind us what papers we are discussing?

The Chairman (Mr Molloy): We are discussing the provisions in the draft ministerial code that are to be placed on a statutory basis. That document, which is in the form of a table, has just been handed out. Members have also been given the draft ministerial code for reference. We went through it line by line, and it was bulky.

Mr McFarland: Are we discussing all or most parts of section 1 of the draft ministerial code? Does section 1 go straight into the Pledge of Office?

The Chairman (Mr Molloy): Section 1 remains unchanged.

Mr McFarland: On our programme, amendments to the Pledge of Office will be considered on Wednesday.

Mr Murphy: That is contrary to the programme that we have just adopted.

Mr McFarland: We are confused.

Mr Murphy: According to the programme, we are dealing with paragraphs 2 to 5 and paragraphs 16 to 18 of annex A of the St Andrews Agreement.

The Committee Clerk: Paragraph 2 of annex A of the St Andrews Agreement relates to the ministerial code.

Mr Murphy: Amendments to the Pledge of Office are not included in that, but they are included in the paper that has just been handed out.

Dr Farren: We should ignore those for the moment.

The Chairman (Mr Molloy): Do members wish to stick with the ministerial code at this stage?

Mr Murphy: If we stick to the agreed work programme, we will deal with paragraphs 2 to 5 and paragraphs 16 to 18.

The Chairman (Mr Molloy): OK, I am in members’ hands.

Dr Farren: Can we be clear about which paper is under discussion?

The Committee Clerk: The table that has just been handed out.

Dr Farren: So it is the paper that has just been distributed?

Mr McFarland: No. Everybody stop, nobody move. Let us get a grip on this; we shall return to the draft work programme for Monday 23 October, and we will deal with the ministerial code, which falls under paragraphs 2 to 5 and 16 to 18 of annex A to the St Andrews Agreement. Is everybody happy with that so far?

If we turn to the St Andrews Agreement, we will see what those amendments are. As Conor has just said, they contradict the piece of paper that has just been handed out. If we start with that piece of paper, we will never get anywhere.

The Chairman (Mr Molloy): I am being told to tell you to put away the paper that has just been handed out.

So which paper are we working off?

The Committee Clerk: We were working off the draft programme and the St Andrews Agreement.

Mr Kennedy: The encouraging thing is that the public will be able to read about this shambles.

The Chairman (Mr Molloy): It has already been agreed that we will turn to paragraph 2 of annex A to the St Andrews Agreement, which deals with the ministerial code. Does everyone have a copy of the St Andrews Agreement? What does it actually say about the ministerial code? Paragraphs 2 and 3 deal with what the Governments believe needs to be included in legislation. Are we agreed that what is included in that separate piece of paper is part and parcel of what we want?

Dr Farren: If we are talking about paragraphs 2 and 3, the code places a duty on Ministers to act in accordance with the accountability provisions. Is that what we are talking about?

The Chairman (Mr Molloy): We are discussing paragraphs 2 and 3 of annex A to the St Andrews Agreement.

Dr Farren: The first bullet point states:

“Discussion of and agreement on issues which cut across ministerial responsibilities”.

Will we be discussing those bullet points?

The Chairman (Mr Molloy): We are discussing paragraphs 2 and 3 of annex A of the St Andrews Agreement.

Dr Farren: We have a strong objection to the inclusion of the code in statute — and I underline the word “statute” — but not to the inclusion of such requirements in a code. We believe that a statutory ministerial code would create a degree of unwork­ability. It would create the potential to have recourse to the law on issues and requirements by which it is plainly necessary that Ministers should abide. Those matters are not enshrined in law in other places, where similar codes operate.

The argument seems to be that we are so dissimilar that these provisions must be enshrined in law. However, if there is a requirement in the Pledge of Office to abide by the ministerial code, putting the precise details of the code, such as those listed in this document, into law would create the potential for recourse to the law. It would be tantamount to creating a lawyers’ charter, rather than a set of operational rules that, common sense dictates, Ministers should respect and by which, under the Pledge of Office, Ministers would be required to abide. My party does not agree that those details should be enshrined in statute; that position may prevent further discussion.

2.45 pm

Mr Murphy: The ministerial code, ministerial accountability and all those issues were raised as part of the review of the Good Friday Agreement in 2002. Sinn Féin’s approach is premised on the line in paragraph 2 of annex A, which reads:

“executive authority in their areas of responsibility as defined in the Agreement”.

It is important to outline that.

The issues set out in paragraphs 2 and 3 of annex A were matters of practice in the previous Executive, some of which were abused, particularly by the First Minister, resulting in recourse to the courts. The First Minister was found to be acting unlawfully, but continued to act in that fashion. Whether these proposals increase the likelihood of recourse to the courts, time will tell; but recourse to the law was already available in respect of those matters.

The key factor is that ministerial authority is the same as it was under the Good Friday Agreement. Areas where collective decisions are required to be taken by the Executive are outlined in the agreement itself and in the ministerial code under the last Executive. This proposal would place them on the statute books. In Sinn Féin’s view, that would not substantially alter the position outlined in the agreement. Seán’s point is that, under these proposals, it will be more likely that Ministers will end up in court over those issues. The regrettable experience of the last Executive was that Ministers ended up in court over how the ministerial code was applied.

Mr McFarland: The problem in the previous Assembly was that there was no ministerial code; it evolved through custom and practice over its duration. The draft ministerial code contained in appendix 6 of the Committee on the Preparation for Government’s report represents a distillation of custom and best practice from that period. Therefore, there is, for the first time, a ministerial code that provides guidance as to how Ministers should operate. Recourse to the courts is available at any stage should one object to anything that the Executive does.

My party has difficulty with several aspects of this issue. If there are a ministerial code and a Pledge of Office, it is unclear why any aspect of those should end up being the subject of court proceedings. Parties will have a tendency to interfere with each others’ ministerial positions, and safeguards are required. However, if those safeguards result in gridlock, with parties constantly trying to outmanoeuvre other parties’ Ministers by bringing them before the Assembly or to court, it bodes ill for how we do business.

We certainly need a ministerial code and a robust Pledge of Office. A Minister may be taken to court at any stage if a party feels that he or she is not adhering to the ministerial code or the Pledge of Office.

The Chairman (Mr Molloy): A ministerial code was agreed in January 2000, and it was agreed that it would be reviewed every six months.

Mr McFarland: That did not come before the Assembly, although it was due to be debated just after suspension.

Mr Murphy: It was not shared with the Assembly.

Dr Farren: Suspension got in the way.

Mr McFarland: The ministerial code did not exist in any practical form other than that of the document on which the Executive were working. As members know from their work in the Committee on the Preparation for Government, substantial amendments and improvements have been made to the ministerial code. We have a state-of-the-art set of ministerial codes, which — if put before the Assembly and agreed — would provide substantial safeguards over those that existed in the first Assembly.

Mr Ford: I have sympathy with Seán Farren on the need not to have something so entrenched in legislation that it causes considerable difficulty if there is a wish to amend it. However, that is not the same as saying that we get away from the possibility that the courts might decide how the code applies. If the code is backed up by statute in any sense, it will always be possible for people to resort to the law if they wish to take action.

As long as we are working on the basis of a mandatory coalition in which four parties represented here expect to participate, that is how people will probably react to one another. Unless members propose that we move towards a voluntary coalition, it is inevitable that we will be faced with the potential of legal action in relation to the ministerial code.

Dr Farren: We will be faced with that anyway, will we not? The option of a judicial review will always be there.

Mr Poots: I am a little perplexed at the SDLP’s position, and I would like one of its representatives to expand on it and explain the logic and reason behind its suggestions. We have heard that that party is opposed to the statute, but we have not heard any reason for that. There are many statutes, concerning a range of elements relating to the operation of the previous Assembly, with which the SDLP was happy.

Mr A Maginness: The more that is put into the statute, the greater likelihood there is of people using that in order to litigate on issues that ought to be resolved politically. That is the problem. In other words, one will have Government by writ rather than by wit — a political wit by which problems are resolved through common sense and understanding. I agree that elements of the code should be put into statutory form, but not the whole shebang.

Mr Poots: I thank Alban for explaining that he wants to put the genie back in the bottle. Has he not heard about the judicial reviews against the appointment of the Interim Commissioner for Victims, the planning permission for the John Lewis store and the decision on water charging? Those have already happened.

Dr Farren: None of those matters requires that we have a ministerial code enshrined in law from A to Z. The opportunity for a judicial review already exists, and the SDLP is not opposed to a ministerial code. We operated for a time — as has been stated — within custom and practice. There was not time to bring the ministerial code before the Assembly, but the SDLP approved the code that is before the Committee today. I see no reason why we cannot continue — more or less — with the ministerial code as it stands.

We have reached only the second part of the paper that we are discussing, and we have not said whether the remainder of the proposals for inclusion in statute are acceptable or unacceptable. I do not see any strong reason that the elements in the discussion paper should be in statute. I have mentioned that to some of our NIO Ministers, and they have said that they would not recommend that any of that be applied in the Mother of Parliaments. We can be humble because it is not required there.

I am not sure why it is particularly required here.

Mr Poots: That muddies the waters even further. We are prepared to put everything into statute, but the member is not prepared to accept those two paragraphs.

Dr Farren: I did not say —

The Chairman (Mr Molloy): The Committee on the Preparation for Government had originally agreed to identify the elements that needed to be agreed. So far, we do not have agreement on the proposals on paragraphs 2 and 3 of annex A.

Mr Poots: We do not have agreement on their being included in the Pledge of Office; we have not yet reached that stage of discussion.

The Chairman (Mr Molloy): We are still dealing with the ministerial code; we are not dealing with the Pledge of Office.

Mr Murphy: There is no proposal to include either of those matters in the Pledge of Office.

The Chairman (Mr Molloy): We are talking about the ministerial code.

I think that we should move on, as we do not have agreement.

In keeping with the minutes of last week, we should indicate where we do not have agreement so that the Secretary of State can get a measure of the disagree­ment on a topic. Who is in favour of the measure?

Mr McFarland: Chairman, can you remind us of the proposal — that the ministerial code be put into statute — so that we are in no doubt about what we are voting on?

The Chairman (Mr Molloy): We are voting on paragraphs 2 and 3 and the issues listed therein.

Mr Murphy: Sinn Féin would not argue in favour of including paragraphs 2 and 3 in legislation. That said, however, we are relaxed about them, as they are already custom and practice: indeed, people have gone to court concerning the ministerial code. What would prompt people to go to court is misbehaviour in the Executive — although we hope that when a new Executive is up and running, there will be no misbehaviour. I am not swayed by the argument that putting the ministerial code into statute will make it more or less likely that people will resort to the courts. Sinn Féin did not seek to have a ministerial code included in legislation, but we are relaxed about paragraphs 2 and 3.

Mr Kennedy: Are you for or against the proposal?

Mr Murphy: The proposal is phrased in such a way that it almost seems as though someone was arguing that paragraphs 2 and 3 should be included in legislation. However, Sinn Féin is relaxed on the matter. There is not consensus that paragraphs 2 and 3 should be included in legislation. Hansard has recorded our views on the matter; therefore I am not sure that we need to take a formal vote.

The Chairman (Mr Molloy): We agreed last week that we would record the measure of disagreement in the Committee on the Preparation for Government on issues.

Mr Kennedy: It appears, Chairman, that there is a new designation: for, against, and relaxed.

Lord Morrow: David, would you be happy with the designation “relaxed” instead of “others”?

Mr Ford: Chairman, for Maurice’s benefit, I am happy to remain “united community”, but I am relaxed about it.

The Chairman (Mr Molloy): Who is against the proposal?

Mr McFarland: Mr Chairman, can we have clarification yet again? Is the proposal to put the ministerial code into statute?

The Chairman (Mr Molloy): The proposal is to put elements of the code into statute. Are members content with the proposal?

Members indicated dissent.

The Chairman (Mr Molloy): We come to paragraph 4, which states:

“The Code will also provide for the discussion of and agreement on any issue which is significant or controversial”.

Does that require changes to legislation? Is this Committee relaxed on that matter?

[Laughter.]

3.00 pm

Mr McFarland: What was the question?

The Chairman (Mr Molloy): I asked whether the Committee was relaxed about paragraph 4.

Lord Morrow: We could dance around the words “significant or controversial” for as long as we liked; what is significant or controversial for one person may not be for another.

Mr McFarland: I am slightly confused. Does the ministerial code not already include the provisions contained in paragraph 4?

Mr Murphy: It does, but the code is not in statute. This meeting is designed to ascertain whether the code should be enshrined in statute.

Mr McFarland: Are we saying that we can agree that the ministerial code does not need to be enshrined in statute?

Mr Murphy: No.

The Chairman (Mr Molloy): Would it be easier to state the elements in the code that need to be put in statute rather than to go through what does not need to be included?

Mr McFarland: That would clarify what we are voting on.

The Chairman (Mr Molloy): We will go through all the issues, but it does not seem to me that they should all be enshrined in statute. However, members have identified some elements that need to be included. Perhaps this task would be easier if we found out what those elements are.

Mr Murphy: I presumed that our function was to give our views on the issues that are outlined in annex A. We have already talked about paragraphs 2 and 3 of annex A, and the proposition is that paragraph 4 be included in legislation. People are simply giving their views as to whether and why they think that that is a good or a bad idea.

Mr McFarland: That is not what paragraph 4 is about. It says:

“The Code will also provide for”

various matters. That means that those matters will be in the ministerial code. We probably do not object to their being in the code, but the question is whether the code needs to be enshrined in statute.

Mr Murphy: The broad proposition is to enshrine in statute the elements of the code in paragraphs 2, 3 and 4.

Mr McFarland: Are those the only provisions that will be made statutory?

Dr Farren: Unless we agree others.

Mr Murphy: There are also some matters in paragraphs 16 to 18 of annex A that relate to the North/South Ministerial Council (NSMC) and the British-Irish Council (BIC).

Dr Farren: For clarity, if we did not agree that paragraph 3 should be put on a statutory footing, am I right to say that paragraph 4 should not be enshrined in statute either? Paragraph 4 seems to be contingent on the decision that the Committee took on paragraph 3. Paragraph 4 states:

“The Code will also provide for the discussion of and agreement on any issue which is significant or controversial”,

and paragraph 4(a) discusses matters that are “clearly outside” the remit of other areas. That deals with particular kinds of issues, not only those that are “significant or controversial”.

The Chairman (Mr Molloy): The issue is whether there is consensus in the Committee about those matters.

Dr Farren: I agree. We may end up with them being enshrined in statute.

The Chairman (Mr Molloy): Paragraph 3 could, in theory, be ruled out; however, the Secretary of State wants the Committee to give an opinion on each paragraph.

Dr Farren: The SDLP view is that paragraph 4, particularly paragraph 4(b), is an open door that could be seen to override the executive authority of Ministers, because it gives the First Minister and the Deputy First Minister complete discretion to agree on what should be brought to the Executive. Therefore, if Conor Murphy were a Minister, and the First Minister and the Deputy First Minister agreed that they regarded as controversial something that he did not, they can bring that matter to the Executive’s attention. It is an arbitrary and open-door provision that is not necessarily required to be put in statute. It seems odd that something such as that would be based in statute. The SDLP objects to paragraph 4.

The Chairman (Mr Molloy): The words “significant or controversial” may apply to just paragraphs 4(a) and 4(b) — and Seán stated that the SDLP opposes paragraph 4(b) — but, as Maurice has said, everyone’s interpretation of what is significant and controversial is different.

Mr Murphy: Any issue could be described as “significant or controversial”, down to the choice of coffee to buy for the restaurant downstairs. The “significant or controversial” provision in paragraph 4 is not a stand-alone clause as I read it; it must be matched up with either 4(a) or 4(b) as well.

I appreciate what Dr Farren says when he states that the SDLP would not be prepared to take the post of First Minister or Deputy First Minister in an Executive if people were minded to abuse those two offices or that office collectively. The First Minister and the Deputy First Minister agree the agenda for Executive discussion anyway. I imagine that the Executive would want to discuss collectively anything that was clearly outside the scope of the agreed Programme for Government. There are safeguards in the requirement for both the First Minister and the Deputy First Minister to agree anything else that Members feel should be brought to the attention of the Executive.

Dr Farren: I would have no objection if the First Minister and the Deputy First Minister were to agree that something was controversial and needed discussion and were to bring it to the Executive. However, to enshrine it in statute is to determine that anything that the First Minister and the Deputy First Minister considered controversial could be brought to the Executive. Therefore, there would be no recourse to the Executive discussing what is or is not controversial. If the First Minister and the Deputy First Minister were to decide that something is “significant or controversial”, the law would back them up.

That is the point. They may decide one week that something is serious and should be brought to the Executive. That is in the normal course of events in any organisation: when something comes to one’s attention, although someone else may have direct responsibility for it, if one wants to bring it to a committee’s attention, that is fine. However, to make it legally binding that matters must be brought to the Executive and that nothing can be said about whether those matters should be brought to their attention is to go too far with legal requirements.

The normal cut and thrust should allow for open discussion without there being a need to underpin paragraph 4 with a legal provision. Essentially, it is the legal provision, not the right to bring issues that the First Minister and the Deputy First Minister think are controversial to the attention of the Executive, to which I object.

Mr McFarland: If Martin McGuinness and Ian Paisley take an anti to Minister Farren here, they can target him.

Lord Morrow: Why not Minister McFarland?

Mr McFarland: Minister Kennedy, or whoever. The point is that the First Minister and the Deputy First Minister will not target their own Ministers but Ulster Unionist and SDLP Ministers. This provision is daft.

Mr Ford: The UUP is taking its seats in the Executive, then?

Lord Morrow: Chairman, I do not lay the blame for this at anyone’s door, but this document from the Office of the First Minister and the Deputy First Minister (OFMDFM) was handed to us a mere few minutes ago. I detect a degree of nervousness about the whole thing. It might have been better if all the parties had had at least 24 hours’ notice of this so that they could have discussed it with their colleagues or taken a steer. That might not have resolved every issue, but it would have brought a degree of clarity and swiftness to proceedings. If we are to go through this document line by line, and it looks as if we are doing so, the 24 November deadline will not be met — not this year anyway.

Mr Murphy: We have had the agenda for a couple of days and have known what issues would arise. It clearly indicates that we are to discuss paragraphs 2 to 5 and 16 to 18 today. Sinn Féin came here to do business on that basis.

Alan and Seán are operating on the basis that a First Minister and a Deputy First Minister will abuse their powers. There is not only a ministerial code but a code of conduct. Regrettably, it was the experience in the previous Executive that the First Minister abused his power. It is my firm understanding that if Sinn Féin should end up holding the position of Deputy First Minister, it would not be in the business of abusing powers, targeting Ministers or targeting parties.

Targeting individuals or their parties is not a solid basis on which to enter collective Government and to go forward. If many of those elements were included in a ministerial code and if there were reference in legislation to people following the ministerial code, there would be recourse to law in all these issues. I am not convinced that to enshrine paragraph 4 in statute makes it more likely that there would be recourse to law. Hounding and haranguing individuals through the Executive by measures such as this is not a firm basis on which to go forward.

Lord Morrow: Is the previous speaker telling us that the practices that happened under the Assembly’s Minister of Education and Minister of Health, Social Services and Public Safety are now stopped and will not be repeated? Is he giving that guarantee?

Mr Murphy: Maurice clearly does not understand what we are talking about.

Lord Morrow: No, I do not.

Mr Murphy: I will explain it to you. We are talking about provision in the ministerial code for discussion and agreement on any controversial issue that is clearly outside the scope of the agreed Programme for Government or which the First Minister and the Deputy First Minister agree should be brought to the Executive. We are not talking about ministerial decisions that were taken in the previous Executive.

Lord Morrow: We are talking about abuse; you used the word “abused”.

Mr Murphy: If you read the Good Friday Agreement and the basis on which you enter a power-sharing Executive — although perhaps you intend to tell us today that you will not enter such an Executive, in which case you would save us a great deal of time; however, we are operating on the basis that we might be moving forward — you will see that Ministers have authority in their own Executive positions. Cross-cutting and other matters require collective decision-making in the Executive.

There is an additional clause about issues that are clearly outside the scope of the Programme for Govern­ment, which anyone would think that a collective Executive would want to discuss, or that the First Minister and the Deputy First Minister agree should be brought to the Executive. That is what we are discussing, not individual decisions taken by Ministers on their own authority, which, in my view, remains unchanged from the time of the previous Executive.

Mr Kennedy: We are trying to decide whether paragraph 4 should become a statutory provision, and it is clear that there will not be consensus on that. I suggest that we register the views of the parties and move to the next matter for consideration.

The Chairman (Mr Molloy): That is probably the best way. Who is against the inclusion of paragraph 4? I see that the SDLP and the UUP are against that.

Members indicated dissent.

The Chairman (Mr Molloy): We come now to paragraph 5.

Dr Farren: You will be happy to hear that I am in favour of paragraph 5, Chairman.

Mr McFarland: This has nothing to do with statutory provision, has it?

Mr Poots: Dr Farren said “never, never, never” to the first three proposals, but not to the fourth.

The Chairman (Mr Molloy): Are we agreed on paragraph 5?

Mrs D Dodds: At the last meeting that I attended of the Preparation for Government Committee, some issues — the minutes that we received today reflect this — that are not in the St Andrews Agreement were raised for consideration for inclusion in a ministerial code. When should the Committee examine those issues? Will we merely record strictly yes and no answers to the provisions in the St Andrews Agreement? Peter Robinson tabled issues that the DUP regards as very important to the ministerial code. However, they are not reflected in the St Andrews Agreement or in any of the papers that we have received today.

The Committee Clerk: The table in the future work programme, which has the column headings “St Andrews Agreement Annex A”, “Changes required to legislation?” and “Note of previous agreements in PfG about these issues”, sets out under the third column issues that the Committee discussed and agreed on each of those matters. The Committee needs to decide what it wants to do about those.

Mrs D Dodds: Several issues that Peter Robinson tabled at the previous meeting are not reflected in any of the papers.

The Committee Clerk: That is because this is a note of previous agreements in the Preparation for Government Committee; Mr Robinson tabled issues that he wanted to discuss.

3.15 pm

Mrs D Dodds: I understand that. However, issues that are important to the DUP were also raised for discussion, but they are not reflected in the Committee papers. Before we move to paragraphs 16 to 18, we should clarify where those issues are and when the Preparation for Government Committee will deal with them.

The Chairman (Mr Molloy): Those issues may affect some of the paragraphs.

Dr Farren: Do you mean the list in the Committee’s report of items that were not agreed?

Mr McFarland: No. At the previous meeting, Peter introduced the idea that Ministers should sign up to putting “Northern Ireland first” and to other items that feed into the process. I do not know whether those issues have been written down.

Dr Farren: We must have a record of those.

Mrs D Dodds: I do not see them in any of the papers that we have in front of us, confusing as the amount of paperwork is.

The Chairman (Mr Molloy): The only place in which they would be recorded is the Hansard report, because they were not put forward as proposals at the meeting of the Committee on 17 October. Peter raised issues, which I assumed would be then raised by the DUP in these discussions at the appropriate times.

Mrs D Dodds: They were raised also for discussion in this forum, and not simply by the parties.

The Chairman (Mr Molloy): Yes.

Dr Farren: Issues such as?

Mr McFarland: When the Committee discusses the Pledge of Office on Wednesday, Peter — if he is present — will want to raise a further amendment to include a requirement that Ministers sign up to putting “Northern Ireland first”. I presume that the other issues will be raised in turn as we reach them.

The Committee Clerk: Mr Robinson raised issues that related specifically to gaps that were found. For example, if the First Minister’s or Deputy First Minister’s parties were excluded, there would be a “freeze” situation, as there would be no way in which to nominate another First Minister and Deputy First Minister. Peter raised a couple of issues like that in areas in which he saw problems with the constitutional arrangements.

We did not pick up that he wanted those issues tabled for discussion in the Preparation for Government Committee. He said that other matters would have to be looked at. However, we have not included any of them in members’ papers as we understood that they were to be raised separately because they were constitutional or legislative issues rather than issues to be raised in the Preparation for Government Committee.

The Chairman has already said that any other issues will have to be tabled for discussion in the Preparation for Government Committee.

The Chairman (Mr Molloy): The issues that Peter raised last week will have been recorded in Hansard. We should factor those back into the discussions so that the Preparation for Government Committee can deal with them. If parties want to raise other matters, they should write to the Committee Clerks, so that those issues can be tabled for discussion by the Committee at the appropriate time.

Mrs D Dodds: Can that be done for the next meeting on Wednesday? Peter raised very important issues, such as a Minister acting in the interests of “Northern Ireland first” and Ministers signing up to the rule of law.

The Chairman (Mr Molloy): Are both for inclusion in the Pledge of Office?

Mrs D Dodds: They could also be in the ministerial code. The issues were tabled for discussion, and they should be raised. They are not reflected in the Committee papers.

The Chairman (Mr Molloy): They will certainly be included for discussion.

Mr Murphy: For reasons of accuracy, the issues were not tabled for discussion. They were flagged as issues — and everyone is entitled to raise issues. In fact, my recollection is that the DUP did not flag the issue around the rule of law and the Pledge of Office. I do not think that there has been any objection to issues being tabled for discussion.

We have talked long and hard at these meetings, and our views are recorded. We do not expect the Committee Clerks to listen out for items that they may have to record for future discussion. If other issues need to be discussed, members should table them clearly for discussion rather than hope that they will be picked up and turned into a piece of paper.

The Chairman (Mr Molloy): Peter raised a longer-term issue concerning the structure of the Administration, and that requires further discussion. We will pick up on the issues raised. However, I repeat that if parties want items put on the agenda, they should send a paper to the Committee Clerks. It is open for parties to raise issues that relate to sections in the ministerial code or the Pledge of Office.

Mr Poots: To correct the last member who spoke, Chairman, in case he missed it, parties do not need to flag the rule of law as an issue, because paragraph 8 of annex A deals with it, and this Committee must also deal with part of it.

Mr Murphy: If Edwin checks Hansard, he will find that Peter Robinson raised a number of other issues that he thought should be incorporated in the Pledge of Office — the rule of law was not one of them. Peter Robinson talked about his “Northern Ireland first” clause. My memory does not serve me as to the rest, but it was quite clear that he did not raise the rule of law as an issue. It is open for Peter Robinson — or any member of the DUP or any other party — to come back on any of those issues. I make that point in the interests of accuracy.

Mr Poots: If the member reads paragraph 8 of annex A to the St Andrews Agreement, he will find that it states:

“Before the Government legislates on the pledge of office it will consider the outcome of further Preparation for Government Committee discussions on policing and the rule of law.”

The member will not need to flag that issue, because we will have to address it.

The Chairman (Mr Molloy): We will address different paragraphs as we work through the annex. We are at paragraph 5 at present, which deals with the ministerial code. Is there complete agreement on that?

Members indicated assent.

The Chairman (Mr Molloy): We move on to paragraphs 16 to 18 of annex A. Are members agreed?

Mr Poots: Agreed to what?

Dr Farren: Take it easy.

Lord Morrow: Paragraphs 16 to 18.

The Chairman (Mr Molloy): Do members have any comments?

Mr McFarland: A myth has been peddled for some time that the NSMC and BIC were not accountable bodies. I draw members’ attention to section 52 of the Northern Ireland Act 1998, which clearly sets out the rules relating to those bodies. That is all tied down in the draft ministerial code. During the previous Assembly, there was not a single incident where any member was unaccountable on North/South or east-west issues. It is not at all clear why we are busy trying to include aspects that will hinder the smooth working of some­thing that was working extremely well. The custom and practice is in the ministerial code, and parties do not need to mess around with it further by enshrining it in law.

Lord Morrow: Would that be because the BIC seldom, if ever, met?

Mr McFarland: I believe that the BIC met twice, but there was never an occasion when it went astray. The NSMC met regularly, and on no occasion did anything untoward take place.

Lord Morrow: I clearly remember my party leader asking about this very issue in the Chamber, and the then Speaker ruled that he was out of order. The Speaker told him that he had no right to ask anything — or anything political — about the North/South Ministerial Council.

Mr Poots: Will Mr McFarland confirm that, in meetings of the NSMC, he is happy with a Minister from a political party in this jurisdiction to meet a Minister from the same political party in another jurisdiction? Is he also happy with the possibility that they could agree a way forward on a particular issue to which the Assembly has no recourse?

Mr Kennedy: That circumstance would not arise.

Mr McFarland: It would not arise because the rules of the game for the NSMC are absolutely clear: Ministers are nominated by the First Minister and the Deputy First Minister for certain things, and they are always accompanied by a Minister from another jurisdiction. I cannot stop Peter Robinson going to Kerry and having a private natter with somebody, but the Executive certainly would not sanction that. The rules of the game concern issues that are sanctioned, and those are Executive issues. Currently, that is tied up in the draft ministerial code and in legislation. It is not at all clear why the Executive’s role in the preparation for NSMC and BIC meetings, and attendance at those meetings, is being raised, because nothing untoward happened on any occasion during the previous Assembly.

Dr Farren: I draw members’ attention to section 52 in part V of the Northern Ireland Act 1998, and to subsequent sections.

Section 54 deals with the British-Irish Intergovernmental Conference (BIIC), and section 52 with the North/South Ministerial Council and the British-Irish Council. Section 52(5) states:

“The First Minister and the deputy First Minister acting jointly shall, as far in advance of each meeting of either Council as is reasonably practicable, give to the Executive Committee and to the Assembly the following information in relation to the meeting—

(a)    the date;

(b)    the agenda; and

(c)            nominations made under subsection (1) for the purposes of the meeting.”

Subsection (6) continues:

“A Minister or junior Minister who participates in the meeting of either Council by reason of a nomination under this section shall, as soon as reasonably practicable after the meeting, make a report—

(a)    to the Executive Committee; and

(b)    to the Assembly.”

And so on. I fail to see what is required here in addition to what is already prescribed by law, and I think that the recommendations in paragraphs 16 to 18 are redundant.

Mr Poots: I am astonished that the Ulster Unionist Party would seek to ensure that we do not make those bodies more accountable than they currently are, on the basis of “We have not experienced problems, so we will never experience problems.” That party does not seem to realise that a train could be coming down the track some day with no mechanism to stop it. I am amazed that the Ulster Unionist Party is taking that line. That the NSMC and the BIC should be accountable is surely something that everyone would want. The Assembly and the Executive should also be able to control individual Ministers and their fiefdoms. Last time around, we had Ministers taking decisions, particularly on education, that the Ulster Unionist Party was appalled by, yet it seems to be happy enough to allow those kinds of decisions to be taken in the NSMC.

Mr Kennedy: Was that a North/South Ministerial —

Mr McFarland: Can we kill these canards once and for all? Minister de Brún was able to do what she did because, between November 1999 and March or April 2000, there was no Programme for Government. No one was signed up to anything. That was unfortunate, but those were the circumstances at the time. Martin McGuinness was able to do what he did because, in a fit of pique as he walked out the door, he signed off on the review of post-primary education. If the Assembly had not been suspended, Martin McGuinness would not have been able to do that, because he would have required authority from the Assembly and money to do what he did. Those are two examples that keep being hoisted —

Lord Morrow: But he did do it.

The Chairman (Mr Molloy): One at a time.

Mr McFarland: It happened in one case because there was no Programme for Government, and in the other case because there was no Assembly to stop it. I repeat: on no occasion was there any difficulty with the smooth working of the legislation.

Lord Morrow: But he did do it.

Mr McFarland: There is legislation for North/South arrangements here. On no occasion was there a hiccup with a Minister. It was all played absolutely properly, and to be busy trying to legislate for unfore­seen events that we do not have a clue about is really confusing.

Lord Morrow: Mr McFarland is saying that we should wait until something happens before we legislate. Is that right?

Mr McFarland: We do not know what will happen. What are we going to legislate for? The legislation is already in place.

Lord Morrow: Did Martin McGuinness not do what he did? Did he do it or not?

Mr McFarland: Only because, Mr Chairman, there was no Assembly.

The Chairman (Mr Molloy): We are here to deal with North/South and east-west issues.

Mr Kennedy: In respect of strand two and strand three — the NSMC and the BIC — we are satisfied that the current mechanisms will work as they have done in the past. That is what we are saying. We are not discussing strand one issues, on which, apparently, others are focusing.

Mr Poots: To be absolutely clear, the Ulster Unionists are opposed to strengthening accountability on strand two and strand three issues.

Mr Kennedy: I can tell you that we are probably more opposed to extending North/South ministerial co-operation than the DUP appears to be.

Mr Poots: You started it.

Mr Kennedy: Therefore, you will continue it and expand it.

Mr Poots: The legislation —

Mr Kennedy: We feel that the current legislation deals with the matter.

Mr Murphy: The question is whether paragraphs 16 and 17 provide more accountability or tie up Ministers in any way that existing legislation did not. If the DUP wants cover for entering into those processes, the answer is that they do not. The key sentence is in paragraph 17:

“Notwithstanding the lead Minister’s executive authority in his/her area of responsibility as defined in the Agreement”.

That means that the executive authority, as defined under the Good Friday Agreement, does not change.

3.30 pm

Those two paragraphs do not make any difference, and Seán Farren made the point that they are redundant. Those areas were covered in the ministerial code and legislation. The necessity to legislate for them here is probably a moot point. They do not substantially alter what was the practice in legislation or the principles of the Good Friday Agreement.

The difficulty with the way in which the Committee has gone about this is that parties are either for or against. Paragraphs 16 and 17 make no impact; it is not worth voting for or against them because they do not alter what already exists. Therefore, Sinn Féin’s view is that there is absolutely no necessity to include them. They do not strengthen or make more difficult the arrangements relating to NSMC and BIC.

The only difficulties in relation to NSMC are addressed in paragraph 18 and concern the entitlement to attend. However, that does not alter in any way the accountability mechanisms for NSMC or BIC.

The Chairman (Mr Molloy): Are there any other comments?

Dr Farren: If the Committee is simply taking what is already there and putting it into the ministerial code, there is not a great deal to be gained one way or the other. Given that Part V of the Northern Ireland Act 1998 is already law, I see no difficulty with including it in the ministerial code.

However, if the DUP is effectively seeking something other than what is here, it must be specific with respect to the 1998 legislation, rather than pretending that the provisions do not already exist: they do exist.

Mr Poots: The DUP is content, because that issue is linked to the previous paragraphs that were discussed. Should an individual Minister wish to go down a particular route to which the rest of the Executive, or a significant number of other parties within the Executive was opposed, there is now a means of resolving that. Previously, those Ministers could carry on and do as they wished without another party being able to stop a particular activity.

Mr McFarland: That is nonsense.

Mr Poots: It is not nonsense.

Mr McFarland: It is nonsense.

The Chairman (Mr Molloy): Alan —

Mr McFarland: Chairman, in essence there is a Programme for Government agreed by the Executive and all Ministers. A Pledge of Office and a code of conduct state that all Ministers must abide by the decisions of the Executive and the Programme for Government. Therefore, it is utter nonsense that Ministers could rush off and do their own thing. I outlined the two occasions on which that happened. I explained why it happened and how it cannot happen again because of the safeguards in the ministerial code that were introduced during the first Assembly.

To try to introduce legislation and make changes on grounds that are neither reasonable nor logical does not make any sense, other than allowing the DUP to claim, as a cover for going into Government with Sinn Féin, that it has made great changes.

The Chairman (Mr Molloy): Is there another issue along those lines? Paragraph 18 of annex A concerns the attendance at meetings of the NSMC and BIC, as opposed to the Executive’s role in preparation for NSMC and BIC meetings, which is covered in paragraphs 16 and 17.

Mr Murphy: Paragraph 18 is different. Paragraphs 16 and 17 detail the information that should be shared or the input that the Executive should have into decisions taken at the NSMC. Paragraph 18 concerns attendance at NSMC and BIC. It deals with the removal of a section of the 1998 Act that was abused under the last Executive and the tightening up of the procedure relating to attendance.

The Chairman (Mr Molloy): Therefore, you are saying that paragraphs 16 and 17 should be taken separately from paragraph 18.

Mr Murphy: For the record, this dispute is essentially between the two unionist parties. However, there were more than two controversial decisions, decisions with which Sinn Féin disagreed. I can think of some Department for Social Development (DSD) decisions, but we disagreed with other decisions taken by other Ministers. Executive authority in all of those things is specific and remains as defined in the terms of the Good Friday Agreement. All of these enhanced accountability mechanisms were already in the ministerial code, and I do not see any difference with what happened previously, other than to put some of them in statute.

Mr Poots: I am happy enough that others do not see the differences, and I am happy enough to point it out to the public. If the members in this room do not understand it, we will be able to demonstrate to the public, with a degree of clarity, what the differences are and take the public’s view.

Mr Kennedy: We will enjoy reading the press release.

The Chairman (Mr Molloy): Should paragraph 16 be included or not?

Members indicated dissent.

Mr Murphy: There is a difficulty with this proposition of supporting or not supporting issues. Sinn Féin’s views on the issues it agreed are recorded in Hansard. We have expressed the view that there is no need for this. There is the question of whether the British Government decide to include it and whether we go into the trenches over it. However, we certainly never argued for these measures to go in because we believe that there are sufficient accountability mechanisms for the North/South issues, and these amendments do not alter them; they just repeat what is already there.

Mr Kennedy: You are still relaxed.

Mr Murphy: I am even more relaxed. On those grounds it is a moot argument as to whether you agree for it to go in or not: they are already covered.

The Chairman (Mr Molloy): I will ask the question in another way. Is there a need for them or not?

Mr Murphy: That can be taken as an abstention, if you like.

The Chairman (Mr Molloy): OK. I am just trying to confirm the answers.

Mr Murphy: I appreciate your difficulty.

The Chairman (Mr Molloy): Can we record those against including paragraph 16? The SDLP and the Ulster Unionist Party. Sinn Féin is relaxed.

Mr Murphy: We are relaxed. The Alliance Party is relaxed as well. We are relaxing together.

Mr Ford: I did not say that.

The Chairman (Mr Molloy): We move on to paragraph 17.

Mr Kennedy: It will be the same argument again.

The Chairman (Mr Molloy): Who is against the inclusion of paragraph 17? The Ulster Unionist Party and the SDLP: Sinn Féin is relaxed.

We move on to paragraph 18, which refers to attendance at the NSMC and the BIC. Who is against its inclusion?

Mr McFarland: The Ulster Unionist Party believes that the current system for the authority for this, which comes from the First Minister and the Deputy First Minister, seems perfectly adequate. If we are now saying that everybody can go, regardless of whether they are the First Minister or the Deputy First Minister, we would be changing the practice dramatically.

Mr Murphy: The Good Friday agreement said that “the appropriate Minister” should attend. Paragraph 18 talks about the Minister with the lead departmental interest, which is essentially the same thing. The difficulty is that the previous First Minister decided to take it upon himself to decide who was appropriate and who was not. This would close down what was an abuse of the First Minister’s power — even though Alan or Danny might try to defend it or argue round it. The last time he decided not to send certain people along to the North/South Ministerial Council was not because the issues being discussed were their depart­mental responsibility, but because the First Minister had a political difficulty with the party attached. This removes that point of abuse and reaffirms what the agreement intended — and a High Court judge also agreed.

The person entitled to attend the meeting is the person with departmental interest, and that is quite clear. If there are issues where there is a dispute over that, it is up to First Minister and Deputy First Minister to adjudicate, which again is correct. However, in 90% of the cases where NSMC or BIC meetings were happening, it was quite clear who had the lead depart­mental interest from either side, and those people were entitled to attend. Paragraph 18 makes that clearer and removes the possibility of the abuse of the process that happened in the previous Executive.

Dr Farren: We do not think that a Minister’s refusal should impede the work of the NSMC. There are plenty of opportunities to discuss papers and proposals to be discussed at the meetings. If there were strong objections to any of the issues to be discussed, that would be the opportunity to discuss them and possibly prevent any discussion on matters where no agreement had been reached.

However, we should not provide for a Minister simply to refuse to go and, therefore, impede the work that would otherwise go ahead. The abuse that could arise should not be allowed, even in potentia, and there is a requirement on the First Minister and the Deputy First Minister to nominate in the absence, or failure, of a Minister to discharge what would normally be their responsibilities with regard to the NSMC.

Mr Ford: I comment on the final sentence of paragraph 18 of annex A of the St Andrews Agreement, and regret the ongoing petty sectarianism which assumes that Ministers fall into one designation or another. At the point in time when Alliance Party Ministers are involved, I will be delighted to see how the appropriate person to “match up” is interpreted.

Mr Murphy: Bob McCartney.

Mr Ford: He will refuse office.

The Chairman (Mr Molloy): Are there any objections to the inclusion of paragraph 18? Ulster Unionists?

Mr McFarland: Everyone else is relaxed.

The Chairman (Mr Molloy): The DUP objects.

Mr Kennedy: No. You are for it.

The Chairman (Mr Molloy): No? I am sorry. The Ulster Unionists are opposed.

Mr Poots: It is like an auction here.

Mr Kennedy: Are we the only ones against?

The Chairman (Mr Molloy): Yes.

Mr Kennedy: That will be another press release.

The Chairman (Mr Molloy): We have covered what we were to cover today. On Wednesday we will be dealing with paragraphs 6 to 15. If members wish to raise any additional items not covered in those paragraphs, they should inform the Committee Clerks by tomorrow. We will then examine table four, which details issues not covered by the St Andrews Agreement and which require legislation.

Mr Poots: Is there any other business?

The Chairman (Mr Molloy): There is a letter from the Consumer Council. All parties should have a copy. Perhaps members would like a few moments to read it.

Mr McFarland: We are in institutional format here, Mr Chairman. This matter would seem to lend itself to the far-famed “P1”, the Programme for Government Committee, which may well wish to address the issue of water reform in any future Programme for Government. It is hard to see how the item fits into discussions on institutions or policing and justice.

The Chairman (Mr Molloy): The Consumer Council contacted me in my role as Chairman. Its view is that there is no time to talk to the Programme for Government Committee, because if legislation is forced through in the near future, it would be very difficult for an Assembly, even through its Programme for Government, to deal with the matter.

That is why the Council is so concerned to talk to this Committee. It is asking this Committee to recommend to the Secretary of State that the legislation should be held back. Last week’s judicial review held up another stage in the legislation’s passage.

Mr Kennedy: Was it the case that there was an indication that the Government had withdrawn its current legislative proposal pending the outcome of the judicial review?

The Chairman (Mr Molloy): It is only delayed because of some other difficulties. It could still go ahead in November.

Mr Kennedy: It appears to be more an issue for the Programme for Government Committee. There is an economic background to the issue, so technically we could refer it to the Subgroup on the Economic Challenges facing Northern Ireland.

The Chairman (Mr Molloy): The Consumer Council has written to the subgroup. However, its main concern was the time factor.

Mr A Maginness: The request is for the Consumer Council to address the Committee on the Preparation for Government in some shape or form. It would be useful to hear from the Council. It has done a tremendous amount of work with regard to the issue of water charges, and brought a judicial review that has forced the Government to change its parliamentary timetable. Originally, the Government said in open court that the parliamentary timetable was immutable. Now, they have accepted that it is subject to change.

The debate on the issue is scheduled to take place in the House of Lords during the week. The new session of Parliament begins on 15 November. Any discussion of the issue in Parliament will, therefore, take place after that. The date of 15 November is a notional one: it is simply the date of the commencement of the next session of Parliament. The debate could take place much later than November.

3.45 pm

Certainly, the Consumer Council has brought the Government round to accepting that the judicial review should be heard before any parliamentary debate takes place. That does not mean, however, that any legislation will be altered or removed. I am a little disturbed that, throughout its submission, the Consumer Council talks about amending the proposed legislation. There is no way that the legislation can be amended as it stands. I believe that the Consumer Council accepts that and is not misled in that sense; but the only way to amend the legislation is to take it away from Parliament, rethink it and propose a new Order in Council. The effect of that would be to scrap the current legislation and move on. The problem from the Government’s point of view is that that would create a gap with regard to finances. If they do that, they must put the matter before the new Assembly and new Executive whenever they meet.

At St Andrews, the Government made it clear that they would keep the issue and see it through; they would not give it to the Assembly. It is a major issue for the Government and for us as politicians. It is important that — in whatever shape or form it takes place — the Consumer Council be given a hearing because of its expertise in the matter and its proposal of and leading role in the judicial review. The Consumer Council should receive an early hearing from the Committee, which will be useful because the issue could potentially come before the new Assembly and Executive.

Mr Ford: I agree with Alban that the issue must be examined in some detail. However, I am not sure what the correct forum is. Some of us have heard from the Consumer Council in different ways. I wonder whether, in the absence of the Programme for Government Committee, the appropriate body to deal with the issue is not the Subgroup on the Economic Challenges facing Northern Ireland. It has been doing more detailed work in that area and may be able to go into the matter in some measure. In view of next week’s meeting with the Chancellor, it might be more relevant to the subgroup than to the Committee on the Preparation for Govern­ment, which is currently focused on institutional rather than financial matters.

The Chairman (Mr Molloy): The issue is that the subgroup has concluded taking evidence.

Mr Ford: I appreciate that, Chairman. However, I suggest that in the context of the subgroup’s consider­ation of the matter, it should be asked in its meeting this week or even earlier to meet the Consumer Council in preparing for the meeting with the Chancellor on Wednesday 1 November.

Water charges will have a significant bearing on any economic package. I am not trying to brush the Consumer Council away from this Committee, but it would be more logical for the council to meet the economic challenges subgroup, as it examines financial matters.

Mr McFarland: Has the Secretary of State given any indication of a timetable for the Programme for Government Committee?

The Chairman (Mr Molloy): The Speaker has received a direction that it will meet this week, but there is no work programme yet.

Mr McFarland: If the Programme for Government Committee meets this week, its first challenge may be to consider water charges. If it cannot consider that issue, presumably the subgroup can.

The Chairman (Mr Molloy): My only concern is that, as the Programme for Government Committee formulates its work programme, the issue will be delayed, but the Consumer Council has indicated that this is an urgent issue that requires a response from the Programme for Government Committee.

Mr McFarland: If party leaders sit on the Programme for Government Committee, and the Executive will deal with such issues eventually, that Committee is a more powerful forum for the Consumer Council to address than our illustrious colleagues on the subgroup. However, if party leaders wish to hold off such matters until the Assembly is restored or whenever they agree, that would seem to be —

The Chairman (Mr Molloy): As David said, the issue of water charges should be included in the submission to the Chancellor, because if the issue will be delayed —

Mr Poots: Alban seems happy to operate by writ rather than wit on this matter. We support the issue’s being passed to the economic challenges subgroup. How­ever, if the Programme for Government Committee gets up and running and wishes to take over the issue, that would be fine. However, it is important that the Consumer Council should be given a positive hearing.

Mr Ford: Edwin does not contradict my point. The Committee on the Preparation for Government could ask the subgroup to meet the Consumer Council on or before Thursday, but we cannot speculate on whether a Programme for Government Committee will meet some time in the next fortnight.

Mr Murphy: The Consumer Council’s submission does not seem to have requested a meeting or an opportunity to give evidence to any Committee.

The Committee Clerk: There is no request for a hearing in the written submission, but request was sent by email.

Mr Murphy: Could this Committee forward that request to the subgroup for consideration?

Mr Ford: It should be more than consideration; this Committee should request that the subgroup deal with the issue.

The Chairman (Mr Molloy): Is there consensus to pass the Consumer Council’s request to the subgroup and ask it to report back to the Committee on the Preparation for Government on Monday? This Committee could still recommend that the matter be discussed during the meeting with the Chancellor.

Members indicated assent.

The Chairman (Mr Molloy): Do members have any other business?

Mr Kennedy: I do not know whether other members are encountering this problem. Committee agendas are being sent by registered post, which requires someone to be at the address to sign for them. That has proved inconvenient for me, as there is not always someone to sign for the post, which means that it must be collected from the local sorting office. Is there another solution? I am happy for agendas to be sent by first-class post, rather than having to sign for them.

The Chairman (Mr Molloy): I have the same problem. The problem with ordinary post is the speed of delivery. The matter should perhaps be raised with the Business Committee.

Mr Kennedy: If mail was sent by first-class post directly to members’ houses rather than to their pigeon­holes and then to the post office, that would be better.

The Committee Clerk: Members have made various arrangements: some members have instructed that their papers are left only in their pigeonholes; some have papers delivered to their party offices; some have them sent to their home addresses. We will do whatever individual members request.

The Chairman (Mr Molloy): If members have any problems, they can speak to the Committee Clerk.

The Committee will meet again on Wednesday morning.

Adjourned at 3.54 pm.

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