“A totally different animal to that which we have had in the past”….’s

More on the GUBU events at Stormont. Reg Empey and Gregory Campbell: ‘dancing on the head of a procedural pin’ (that would read ‘Jesuitical’ in old money – ed), or a subtle return to ‘Majority Rule’? A couple of things worth highlighting from today’s Politics Show:Fitzpatrick reads out the original statement from OFMDFM in July:

“The First and Deputy First Minister have seen and read your submission and they have agreed that the paper does not contain a decision for the Executive to take, therefore it follows that they do not feel that the issue should be brought before the Executive for their consideration.”

Martina Purdy quotes Robinson’s interview on Friday’s Newline:

“We at St Andrews sought to give the Executive the power so that if they took decisions Ministers couldn’t take a decision which was not in accordance with the Executives view on a matter. Now, this will test whether that has been sound. And that will be a lesson to us all.”

Indeed.

Adds: It might be useful to backcheck Campbell’s argument against Ritchie’s original statement.

,

  • Nevin

    “your submission” at the beginning of July isn’t necessarily closely related to Ritchie’s subsequent actions. Poots portrayed the submission as ‘no change’.

    ‘dancing on the head of a pin’ is a trite comment; it presumably used in a Paxman-like – or should that be -lite – manner.

  • Mick Fealty

    It was a quotation from Jim Allister.

  • joeCanuck

    Balderdash Nevin.

  • Nevin

    It’s, er, still trite – from Jim Allister or a Paxman-lite interviewer. Do you suppose there could be something of the Jesuit about Jim? 😉

  • Nevin

    Thanks, Joe.

  • brendan,belfast

    Hang on Nevin:

    1. in July she is told “you’re on your own here – we don’t want to know.”

    2. October – she stops funding murderers

    3. DUP politicans claim they wanted a say after all, while SF clearly haven’t got a position or a clue.

    and you are OK with all this?

  • Mick Fealty

    Can we keep this civil Joe?

    I’ve gone back and listened to that section of the YouTube recording you highlighted Nev. All Poots actually says is ‘no change’. What does that mean?

    And surely that communication from OFMDFM cedes action to the Minister?

  • Nevin

    “in July she is told “you’re on your own here – we don’t want to know.””

    Brendan, we now have the helpful statement from the FMDFM. What would we useful would be Ritchie’s July contribution to the Executive.

  • Nevin

    It certainly does cede options proposed by Ritchie in July, Mick. Perhaps the legal eagles didn’t have sight of Ritchie’s intentions at that stage. There’s still a great lack of clarity about who said and did what and when. Perhaps it will be teased out during the course of the week, other squalls permitting.

  • Nevin

    “All Poots actually says is ‘no change’. What does that mean?”

    Mick, it could mean that her July proposals still lay within the Chuckle Brothers ‘comfort zone’. Did she later wander off into no-women’s-land, wittingly or unwittingly?

  • Smithsonian

    Nevin
    The key point made by Reg Empey was that procedures in the executive were completely extraordinary and represented a fundamental change in the relationship between members of the executive.

    An exit from the executive by both the UUP and the SDLP, may not be imminent but it is all but inevitable.

    Obviously, this will have wider implications for the Assembly project.

  • joeCanuck

    Yes we can Mick.
    I in no way impugned Nevin. I have had quite a bit of discussion with him recently and it has all been civil.
    But his assertion is clearly balderdash – reread, if you need to, the first sentence of his post which spawned my response.
    Ritchie has not wavered an iota from July.
    If your policy now is that you can not challenge what you consider to be a factual error, it’s news to me.

  • Mick Fealty

    Nevertheless Nev, it establishes clearly that the Minister could not have been seen to have acted ultra vires in any of her statements.

    Until, that is, the controversial meeting the day before her 60 day deadline expired; the disputed minutes for which only finally turned up with Empey on that Tuesday morning. It was that meeting alone that, apparently, changed everything.

    Poots and Campbell both say that she came to the Executive (well, yes, she was there). But she did not raise the issue. Empey said that the agenda item pertaining to that discussion had been added at the very last minute.

    Doesn’t this sound a bit odd? Three ministers don’t appear to have noticed that that such a transfer had happened? And it’s hardly the kind of trivial detail that a minister would need a scribbled note that he had maybe left at home to jog his memory for.

    Or am I reading into it too heavily?

  • Mick Fealty

    If it was a challenge, then some content to that effect would help the rest of us. No change in policy Joe.

  • Mick Fealty

    It’s late. I’m off. Night all.

  • joeCanuck

    Sleep tight Mick.

  • DC

    Dare it be said that the Clerk of the Assembly in conjunction with his Civil Service and Mssrs Paisley and McGuinness are all at fault for not providing, at the earliest opportunity, a clear and agreed policy framework for operating a form of collective responsibility in line with what was envisaged at St Andrews.

    Surely the Civil Service had an anticipatory duty to draw up a framework and its associated guidelines on what would constitute a collective decision and how to go about exercising that form of decision making.

    The failure is not with the minister but with the FM and DFM, as the head of goverment, to see to it that before embarking upon devolved administration that, at the very least within a month of its start, some thought had been given to this matter of providing protocols around collective responsibility.

    The onus seems to be on Margaret Ritchie to explain herself for going solo, whenever months into devolution and having her attempt to invoke a form of shared decision making spurned, both the DUP and SF go into overdrive whenever, clearly, its two leaders of the Executive have failed to anticipate a framework by which to give leadership to their very own Executive colleagues.

    Ultimately, reference the contract, are we all to assume that direct rule decisions have primacy over a democratically elected minister who has been elected by the people of Northern Ireland.

    Are we to honour undemocratic direct rule or democracy? The argument legal or among the public is that had devolution been in place would such contractual arrangements been agreed?

  • Rubicon

    DC – a protocol would have been a good idea and one imagines there may be one after this little fiasco. A pity the civil servant given the task and hell may be frozen by the time it’d be agreed.

    You mention the Clerk to the Assembly – who’d have absolutely no role in such an affair. The Assembly has its own rules – Standing Orders – and how the Executive does its business is up to them.

    The confusion is easily understood after Robinson’s point of order last Tuesday. His point should have been dismissed immediately since it had nothing to do with the rules of the house. It was a simple procedural matter but the Speaker needed to call a 20 minute recess because of it (that turned out to be 30 minutes).

    Once the Speaker returned he added to the confusion by referring to the Head of the Civil Service – who he had no business in discussing a point or order with! It was the Clerk he should have been discussing the issue with.

  • DC

    In terms of the Clerk and Civil Service, I didn’t give them any primacy as to fault, I lumped them in with Paisley and McGuinness as all to blame for not conjuring up something sooner and put to and agreed by the Executive and Assembly if needs be.

    It seems that as has been referred to before on slugger that the good ship ‘NI ’07 Executive’ has left the harbour with the bow doors open.

    Therefore, to solely blame a minister is wholly inappropriate in respect of the non-submission of agreed guidelines over how collective responsibility ought to work.

  • USA

    Well said Rubicon.
    Also, Gregory Cambell is going on about how the DUP support the stopping of funding, just not the way Ritchie did it. Then how come Ian Paisly Sr (and MMcG) sent the report back down to the minister saying their was nothing for the executive to discuss? She tried the concensus route but the OFMDFM didn’t want to know. She was right to do what she did.
    I really think Paisley Sr is an incompetent fool. Sinn Fein messed up too by trying to score cheap points against the SDLP.

  • DC

    “I really think Paisley Sr is an incompetent fool.”

    Well you could also draw that conclusion from watching his deliveries from the dispatch box in regards to questions put to him during First Minister’s Questions.

    To watch an old man struggle is embarrassing and unnecessary, and struggle he does, even Peter Weir forces a snicker while Paisley Jnr shuffles out the responses on behalf of his father beside him. It’s a bit sad.

  • Nevin

    “Ritchie has not wavered an iota from July.”

    Joe, we’ve not seen the alleged options she put to the FMDFM(?) at the beginning of July. She claimed that ‘they didn’t want to know’ in the piss-poor interview conducted by Thompson in Hearts and Minds. Why couldn’t he have worked his way chronologically through the process rather than hop about trying to trip the Minister up?

  • Nevin

    “Nevertheless Nev, it establishes clearly that the Minister could not have been seen to have acted ultra vires in any of her statements.”

    Was the Minister permitted to act independently of the Executive on this issue – a legacy of a decision taken by the diect rule ministers, Mick?

    From the FMDFM statement in July it appears that she put some options to the office of the FMDFM and was told that, as ITO there was no decision to take, there was really no point in putting the proposals before the Executive. If her statement in mid-August was not cleared by the FMDFM and so not presented to the Executive then presumably she had moved beyond the protection of the Executive.

  • Briso

    Posted by DC on Oct 22, 2007 @ 01:11 AM
    …operating a form of collective responsibility in line with what was envisaged at St Andrews.

    I hope this is useful:

    2. A statutory ministerial Code. An amendment to the Northern Ireland Act 1998 would provide for a statutory ministerial Code, and place a duty upon Ministers (including junior Ministers), notwithstanding their executive authority in their areas of responsibility as defined in the Agreement, to act in accordance with the provisions on ministerial accountability of the Code. The Code would reflect a requirement for safeguards to ensure that all sections of the community could participate and work together successfully in the operation of these institutions and that all sections of the community were protected. There would be arrangements to ensure that, where a decision of the Executive could not be achieved by consensus and a vote was required, any three members of the Executive could require it to be taken on a cross-community basis.
    3. The 1998 Act would be amended to require inclusion in the Code of agreed provisions in relation to ministerial accountability. Consistent with paragraphs 19 and 20 of the Agreement, this would provide for the Executive to be the forum for:
    (i) the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, including in particular those that are the responsibility of the Minister of Finance and Personnel.
    (ii) prioritising executive proposals;
    (iii) prioritising legislative proposals;
    (iv) recommending a common position where necessary – for instance, on matters which
    concern the response of the Northern Ireland administration to external relationships;
    (v) agreement each year on (and review as necessary of) a programme incorporating an agreed budget linked to policies and programmes (Programme for Government).
    4. The Code will also provide for the discussion of and agreement on any issue which is significant or controversial and:
    (a) clearly outside the scope of the agreed Programme for Government or
    (b) which the First Minister and Deputy First Minister agree should be brought to the Executive.
    5. The new Code would be discussed by the parties and agreed by the Executive when formed. The First Minister and Deputy First Minister would propose the Code to the Assembly. It would have effect once endorsed by cross-community support there. Any amendments to the Code would require cross-community support in the Assembly.

    This is what this row is all about. Either Robbo can stop Ritchie (in which case she’s out) or he can’t (in which case the executive will soon after die on one pretext or another). Just one thing though, does section 5 mean there is no code?

  • Mick

    Nev, Briso,

    I think we should be told. But I think you are wrong about it dying. These guys have invested too much in keeping it going. And they have no other homes to go to. Persistent vegetative state, perhaps.

  • Nevin

    “I offered a CTI options paper to my Executive colleagues in early July. They indicated that they were content for me to decide the way forward on this challenging issue.” .. Ritchie’s statement to the Assembly.

    Her statement and the short quote from the FMDFM don’t seem to match up. Is the ‘they’ in her statement the Executive or the office of the FMDFM?

    Then we have Poots: “.. what Margaret Ritchie brought to the Executive in July was basically no change .. she brought to [the Oct 8] meeting that she might be minded to end the CTI initiative(sic) and there was a discussion around that and she was advised that she should take legal advice in this matter to ensure that she was not acting ultra vires and she assured us she would do that that and that her decision would be brought back to the Executive and it hasn’t been brought back to the Executive as there hasn’t been another Executive meeting.”

    Another bloody ‘minded’ 🙂

    It’s all very muddled.

  • Briso

    Posted by Mick on Oct 22, 2007 @ 07:54 AM
    Nev, Briso,

    >I think we should be told. But I think you are wrong about it dying. These guys have invested
    >too much in keeping it going. And they have no other homes to go to. Persistent vegetative state, perhaps.

    You might of course be right Mick, but the problem for the DUP if they ‘lose’ this one, is that solo runs are possible. That opens up a can of worms for them. I think they would think seriously about a return to direct rule in those circumstances because they would fundamentally have achieved nothing from St Andrews on the governance issues.

    “Now, this will test whether that has been sound. And that will be a lesson to us all.” As you rather elegantly said yourself, “Indeed.”

  • Nevin

    Once again the Ministerial Code.

    If Ritchie submitted both parts of the legal advice to the FMDFM and to Robinson should she not have awaited their replies before going to the Assembly?

  • Mick

    It’s from their office Nev. ‘They’ refers to the FM and DFM.

    Thanks for the transcription. That Poots quote is fascinating since it implies that the mere presence of a legal challenge would put her ultra vires, whereas the way we can read it now is that she was only Ultra Vires because she made the announcement before talking to the excutive. That sounds like spin to me.

    It’s nonsensical spin too, since a legal challenge was pending either way! This may not be as muddled as you fear.

  • Briso

    Another bloody ‘minded’ 🙂

    It’s all very muddled.

    Posted by Nevin on Oct 22, 2007 @ 08:19 AM

    No Nevin, a “might be minded”! 😉

  • Nevin

    Mick, have you noted the confusion between the use of ‘Executive’ and ‘FMDFM’? Of course, the Chuckle Brothers might think they are the Executive … and (the dour) Robbo might think he is one of the Chuckle Brothers.

    If Poots recollection is accurate then the FMDFM and Ritchie may be spinning – out of control. Of course, Poots might not be distinguishing between the Executive and FMDFM.

  • Mick

    Fascinating elision Nev. Probably worth a post later.

    The role of the Finance Minister here is fascinating too. It’s almost as though he were Prime Minister (ie, primus inter pares of the Executive) and Martin and Ian were the joint Presidency.

    That is not the way the Agreement was supposed to work, but is perhaps the way it has to work with Dr Paisley unable/unwilling to get involved in such complex issues.

    Of course, whilst they may be complex, they also betoken where the real powerlines lie.

  • Nevin

    Sorry to repeat the words of the Dourman:

    “The Executive agreed, without any division, at its meeting last week [October 8] how a decision on this matter should be taken. It was agreed that certain actions were required before she would even decide the matter, never mind make an announcement on it. The DSD Minister did not act in accordance with the Executive’s decision. She rushed to make her statement without keeping the conditions set out by the Executive.

    Before she made her statement the Minister was warned by Officials she would be breaching the Ministerial Code but chose to dismiss the advice.

    Under the new Ministerial Code every Minister is bound by Executive decisions and must act in accordance with those decisions. The Ministerial Code has statutory authority. The DSD Minister has therefore breached the Ministerial Code.

    The Minister was asked to take legal advice from the recognised official source – the Departmental Solicitor’s Office (she did not have such legal advice prior to the Executive meeting in spite of the advanced stage of the process).

    The Minister claims her decision has been underpinned and supported by both the Departmental Solicitor’s Office legal opinion and that of “independent” legal advice she also received. One is entitled to wonder why the Minister would have sought a second opinion if the Official legal advice was supporting her position.

    The official legal advice the Minister received not only warned her she was vulnerable to a successful legal challenge but it helpfully set out the process to be followed in order that a lawful decision could be taken on such matters.

    Before she made her statement the Minister was warned by Officials that she was not acting in accordance with legal advice but chose to dismiss the advice.

    Robbo says it was her decision to make and announce following ‘certain actions’. What precisely were these actions? Poots certainly expected her to honour her ‘promise’ and bring the matter back to the Executive, not just the FMDFM.

    The Executive provides a forum for ‘discussion of and agreement upon significant or controversial matters that the First Minister and deputy First Minister acting jointly have determined to be matters that should be considered by the Executive Committee.’ (Ministerial Code)

    Did the Chuckle Brothers, abetted by the Dourman, (deliberately) inhibit the proper functioning of the Executive in what is obviously a significant and controversial topic?

  • Nevin

    “Dr Paisley unable/unwilling to get involved in such complex issues.”

    Elision, Mick? “Dr Paisley and Doc Martin ….” 😉

  • Mick

    ‘Certain actions’ would related to that ‘Mickey Finn’ clause, surely? It was that that changed their ‘expectations’ of the Minister’s action.

    It’s certainly on-message with his own party, but remember half the parties in the Executive have no clear recollection of that ‘change in expectation’ having been agreed.

  • Nevin

    I think I’ll stay clear of a ‘Mickey Finn’ – of whatever hue.

    Knowing what we sort of know now, Ritchie should not have acted without Executive sanction, irrespective of the opinions of the FMDFM or Robinson. If she couldn’t get the item on the Executive agenda then, presumably, she could have raised it under Any Other Business. Now that would have tested the mettle of the ministers around the Executive table. Presumably, Poots (or 2d McGuinness) would have seconded her motion?

    PS I’m not that familiar with these procedures but I did observe Dallat submit a motion at a recent meeting of Coleraine Borough Council – and then shake my head as Council officials spent another few minutes translating the motion into something that Dallat probably meant to say 🙂

  • URQUHART

    Nevin: “Knowing what we sort of know now, Ritchie should not have acted without Executive sanction, irrespective of the opinions of the FMDFM or Robinson”

    Why? Surely, having been told that something is a matter for their department, a minister should be allowed to get on with it. The alternative, that all decisions need Execuitve approval, would make SDLP and UUP presence on the Executive pointless?

  • Ahem

    Can we drop this nonsense that Robinson is acting like a ‘Prime Minister’? He’s acting like a finance minister. Which in every parliamentary system there has ever been, even our own gerrymandered, sectarian killer-infested variant, means that the cove who controls what everyone else is spending *is* the Man. Seriously, Sluggerdom, for once lift your eyes above our drear provincial level.

  • Nevin

    Urquhart, it appears that that ‘something’ only came from FMDFM in July and that she subsequently decided to take a chance on the ‘external’ legal advice ie she went 50/50 rather than ask the (Executive) audience – at the next meeting, following the one on October 8.

    You’ll find the answer to ‘why’ under ‘controversial’ in the Ministerial Code.

  • Ian

    Nevin:

    “Urquhart, it appears that that ‘something’ only came from FMDFM in July and that she subsequently decided to take a chance on the ‘external’ legal advice ie she went 50/50 rather than ask the (Executive) audience – at the next meeting, following the one on October 8.

    You’ll find the answer to ‘why’ under ‘controversial’ in the Ministerial Code.”

    Are you suggesting that if the in-house solicitor gives the opinion that a decision [i]could[/i] be open to legal challenge (surely the same could be said of almost all Ministerial decisions?), then that decision is [b]automatically[/b] classed as a [i]controversial[/i] decision, and as such it falls to be taken by the Executive collectively, [b]even if[/b] the Executive has previously determined that that decision is not one that should come to them to decide, but is an appropriate decision for the relevant Minister to make alone?

  • Briso

    Under D’Hondt, who gets the extra seat if the SDLP pull out?

  • Nevin

    The DUP, Briso …

    Online d’Hondt calculator

  • Nevin

    Ian, you appear to be assuming that Ritchie’s options at the beginning of July included the decision she made and then announced to the Assembly.

  • lib2016

    “…if the SDLP pull out?”

    Not a chance! They are committed to jaw-jaw rather than war-war and in any case their electorate wouldn’t stand for it.

  • joeCanuck

    Nevin
    The assumption that you’re assuming Ian took (and myself earlier) is surely a reasonable one.
    Otherwise the current Stormont row would be much bigger (I assume).

  • Nevin

    It’s a reasonable assumption, Joe, but remember that UDA ‘misdemeanours’ had built up during July and the beginning of August – and then there was a little bit of election fever at the beginning of August

    “Gordon Brown has been urged to pursue a “shock attack strategy” for an election in the autumn or early spring, according to a secret memo that was leaked to the press.

    The PM was urged to take advantage of ‘bounce’

    The document, written by Labour party strategist Philip Gould, lays out the challenges facing the Prime Minister and gives a strong indication that there will be an early election.

    The memo, leaked to the Daily Mirror, sets out in detail how the “muscular” leader should meet a national yearning for change.

    It read: “We have to have a strategy of audacious advance. The best way of achieving this is to hold an early election after a short period of intense and compelling activity.”

    So many points to ponder, Joe.

  • joeCanuck

    True, Nevin.

  • Ian

    “Ian, you appear to be assuming that Ritchie’s options at the beginning of July included the decision she made and then announced to the Assembly.”

    I wasn’t assuming anything, I was just trying to ascertain where you were coming from when you made reference to the Ministerial Code’s definition of ‘controversial’.

  • Nevin

    Ian, I think this is the relevant passage from the MC:

    Duty to bring matters to the attention of the
    executive Committee

    2.4 Any matter which:-

    (i) cuts across the responsibilities of two or more Ministers;
    (ii) requires agreement on prioritisation;
    (iii) requires the adoption of a common position;
    (iv) has implications for the Programme for Government;
    (v) is significant or controversial and is clearly outside the scope of the agreed programme referred to in paragraph 20 of Strand One of the Agreement; or
    (vi) is significant or controversial and which has been determined by the First Minister and
    deputy First Minister acting jointly to be a matter that should be considered by the Executive Committee

    shall be brought to the attention of the Executive Committee by the responsible Minister to be considered by the Committee.

    For example, Dodds made a decision and Foster was minded so IMO they breached the MC 2.4 (i) (and perhaps other sections) when they failed/chose not to bring the GC Visitor Centre project to the Executive.

    IMO that CTI funding should also have been sorted out in the Executive, even though Ritchie was told in the beginning of July that she could proceed on the basis of the options she presented. I also believe that a brief range of legal opinions should have been solicited prior to the July meeting. The debacle brought the whole process into disrepute.

    Perhaps the Chuckle Brothers, and their henchmen, are more concerned about controlling the ministers than optimising the process.