“creating consistency between each of the devolved institutions across the United Kingdom”

While the bullshit distraction that is the DUP/Sinn Féin “Building a United Community” paper [pdf file] was being paraded across the airwaves last week –

Think of it as a revamped Contested Space Programme [Don’t tell the International Fund for Ireland – Ed], pre-empting consultation on area-based planning, and Girdwood times 10.  [And another non-working working group? – Ed]  With 3 representatives from the DUP, 3 from Sinn Féin and 2 each from the other 3 Executive parties…

ANYhoo…  The NI Secretary of State, Theresa Villiers, took the opportunity to announce the publication of the Northern Ireland (Miscellaneous Provisions) Bill [pdf file].

Describing its purpose as “[making] some important technical reforms to improve how politics and the Assembly function”, the Secretary of State emphasised that “[The Bill] is not about re-opening the Belfast Agreement or its successors.”  Indeed.

However, it does change a number of “excepted” matters to “reserved” matters – meaning that the NI Assembly will be able to legislate on those matters, with the consent of the Secretary of State.  Among the matters to be newly reserved is the number of MLAs in the NI Assembly.

Back to that in a  moment. 

Of the other provisions there are a couple, in particular, worth highlighting.

The BBC reported one of them – “Northern Ireland Assembly elections put back to 2016“.  But whilst the end result might be “consistency over the current electoral cycle across the United Kingdom”, the Bill’s explanatory notes show a different pathway to that conclusion here compared with elsewhere.  From the Explanatory Notes [pdf file]

40. The Fixed Term Parliaments Act 2011 introduced fixed-term elections to the Westminster parliament. As a result, the next Westminster election will be in May 2015, then every five years thereafter.

41. The Scottish Parliament and National Assembly for Wales raised concerns that the May 2015 date clashed with elections to their respective institutions. During Second Reading in the House of Lords on 29 March 2011, Lord Wallace of Tankerness commented on the position of the devolved legislatures: ‘Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May this year before deciding whether special provision would be needed for Northern Ireland.’ 1 March 2011 Hansard 934

42. The Scottish Parliament and National Assembly for Wales subsequently passed resolutions (on 3 March 2011 and 16 March 2011, respectively) calling for the rescheduling of the elections to 5 May 2016. The Government introduced provision in the Fixed Term Parliament Act to lengthen the term of the Scottish Parliament and Welsh Assembly elected in 2011 until 2016. No legislative provision was made at that time in relation to the Northern Ireland Assembly.

43. On 12 June 2012 Northern Ireland’s First Minister Peter Robinson, deputy First Minister Martin McGuinness and Justice Minister David Ford wrote to then-Secretary of State Owen Paterson making clear their view that they wished to see the current term of the Northern Ireland Assembly extended until May 2016, in common with the Scottish Parliament and Welsh Assembly elections. That position was confirmed in a letter to the current Secretary of State dated 15 April 2013 from the First Minister and deputy First Minister. [added emphasis]

The other, possibly related, provision relates to the ‘sticking plaster’ solution for the appointment of the NI Minister of Justice.  If you recall, the ‘sticking plaster’ was re-applied before the sunset clause expired.  From the Explanatory Notes [pdf file]

47. The 1998 Act sets out the majority of the devolution settlement with Northern Ireland. Whilst certain matters were transferred to the competence of the Assembly in 1998, other matters were transferred later. Of particular note, was the transfer of policing and justice to the Assembly in 2010. This transfer is not straightforward, with related national security matters continuing to be excepted and therefore largely outside the competence of the Assembly. Given this complexity, and the fact that policing and justice remains a politically sensitive issue, the provisions in the 1998 Act for the appointment of the Justice Minister are complex and the Justice Minister is not dealt with in the same way as the other Northern Ireland Ministers.

48. The Justice Minister is not appointed by the d’Hondt procedure, but through nomination by one or more members of the Assembly and approval by crosscommunity vote. Currently, the incumbent can be removed if a motion is raised to that effect by either the First Minister and deputy First Minister (the “FM/dFM”) acting together, or 30 or more Assembly members, followed by a majority cross-community vote. The Bill amends this process to give the Justice Minister the same security of tenure as that of the other Ministerial posts, although the process is not exactly the same due to the different appointment system.

Existing law

49. Section 21A of the 1998 Act sets out a number of possible appointment mechanisms for the Justice Minister, one of which may be selected and provided for by an Act of the Assembly. The Assembly enacted legislation in 2010 (the Department of Justice Act (Northern Ireland) 2010) which opted for the mechanism set out in section 21A(3A) of the 1998 Act. The Justice Minister is appointed by virtue of a nomination made by one or more members of the Assembly, and approved by a cross-community vote. Part 1A of Schedule 4A to the 1998 Act applies to this appointment, creating certain differences between this appointment and the appointment of other Northern Ireland Ministers.

50. First, the Justice Minister is appointed after the other Northern Ireland Ministers. The d’Hondt procedure, which ensures that each party is responsible for appointing a number of Ministers in proportion to the number of seats they hold in the Assembly, governs all Ministerial appointments, save for that of the Justice Minister.  The Justice Minister’s appointment is made outside the parameters of the d’Hondt procedure, which means that the party from which the Justice Minister is appointed will have an ‘extra’ Ministerial post.

51. Second, the incumbent Justice Minister can be removed if a motion is raised to that effect by either the FM/dFM acting together, or 30 or more Assembly members, followed by a majority cross-community vote. This is in contrast to other Ministers, who are appointed by their party’s Nominating Officer, who has the power to dismiss the incumbent and refill the Ministerial position. The effect of the current provisions is that the position of the Justice Minister is less secure than that of the other Ministers in the Assembly.

52. The Bill amends the appointment procedure to give the Justice Minister the same security of tenure as that of the other Ministerial posts, and to rectify the anomaly in respect of the relationship between the representation of parties in the Assembly and appointment to Ministerial office. [added emphasis]

Specifically,

56. First, subsections (2) and (5) provide for the order in which Ministerial positions are filled. The Justice Minister will now be appointed immediately after the First Minister and deputy First Minister. This change means that the formula for working out the number of Ministerial offices to which each party is entitled can be amended (subsection (3)) to take into account the position of Justice Minister. The effect of this amendment is that the party of which the Justice Minister is a member will no longer have an ‘extra’ Ministerial position: the Justice Minister post will now be factored into the d’Hondt allocation.

57. Second, subsections (2) and (6) give a power of veto to the nominating Officer for the political party to which a person nominated for the post of Justice Minister belongs, by providing that the Nominating Officer must consent to the nomination.

58. Subsection (7) provides for security of tenure. Where the appointed Justice Minister is a member of a political party who was nominated with the consent of a Nominating Officer, that official can now remove the Justice Minister. However, where the Justice Minister is not be a member of a political party, the incumbent can be removed if a motion is raised to that effect by either the FM/dFM acting together, or 30 or more Assembly members, followed by a majority cross-community vote. [added emphasis throughout]

Back to Clause 6 – “Reduction in the size of the Assembly” [requiring the consent of the Secretary of State]. What’s interesting at this point is what is not mentioned, and still not agreed.  From the Explanatory Notes again [pdf file]

38. The Government consulted on the size of the Assembly in August 2012, noting that in serving a population of around 1.8 million people, there appeared to be a reasonable case for a reduction in the numbers of MLAs. However, as the size of the Assembly flowed from the 1998 Agreement, the Government has been clear that any changes would require sufficient agreement amongst the Northern Ireland parties. While there seem to be reasonable prospects for such agreement at some point in the future, at this stage the parties have not signalled that they have agreed on a reduction in the size of the Assembly. [added emphasis]

However, when the ‘sticking plaster’ was re-applied, in Jan 2012, we were reminded of certain Programme for Government commitments.

• Notwithstanding this resolution, alternative options including incorporating the allocation of the Justice Ministry by d’Hondt with a reduction in the number of government departments could be given particular consideration. The post election position should be considered as a matter of urgency as part of the PFG commitment to agree changes to the post 2015 structures in 2012 to allow for the introduction of any necessary legislation at Stormont or at Westminster. [added emphasis]

And, as I pointed out then, the then-draft Programme for Government? [Page 52 of 55 (pdf file)]

Agree any changes to post-2015 structures of Government in 2012 (OFMDFM) (To be carried out in consultation with political parties) [added emphasis]

That remained a “Key Commitment” in the final Programme for Government [pdf file]…

Pete Baker