by David Morrison

The DUP became the largest Unionist party at the 2003 Assembly election on a platform of opposition to the Belfast Agreement. The Agreement was "fatally flawed", they said: a "new" Agreement was required. In a document published in 2003, entitled Towards A New Agreement, they set out what was wrong with it, and laid down principles and tests for a new one.

Their criticism of the old Agreement fell into two broad categories, first, the familiar Unionist objection that IRA decommissioning was not a pre-condition for Sinn Fein having Executive posts and, second, that departmental Ministers could make decisions contrary to the wishes of the Assembly, providing these decisions didn’t require changes in the law.

Two famous examples of the latter are cited by the DUP in Towards a New Agreement:

"This unaccountable power enabled the Sinn Fein/IRA Health Minister to site maternity services, within her own constituency, at the Royal Victoria Hospital, even in the face of opposition from the Assembly Health Committee and a vote by the Assembly as a whole. Nevertheless, the Jubilee Maternity Hospital was closed and services transferred to the Royal. The Assembly was powerless to act to hold the Minister to account.

"With suspension of the institutions due to take place on the 14th October 2002, the Sinn Fein/IRA Minister of Education took executive action on 11th October 2002 to end the 11 plus examination. Neither the Assembly nor its Education Committee had agreed to the decision being taken" (page 12).

The ministerial authority to take these decisions is derived from paragraph 24 of the Belfast Agreement, which says:

"Ministers will have full executive authority in their respective areas of responsibility, within any broad programme agreed by the Executive Committee and endorsed by the Assembly as a whole."

As the DUP wrote in Towards a New Agreement, this means:

"Under the Belfast Agreement Northern Ireland is therefore administered by autonomous Ministers who make decisions over their policy areas within the budgetary levels granted by the Assembly. Each individual Minister can take any executive decision over the department he controls without recourse to or the consent of the Assembly. …

"Devolution of power to Ministers rather than the Assembly creates undemocratic and unaccountable government where the will of a Minister representing less than 25% of the community can make important policy decisions unchecked and unfettered" (ibid, page 13).

This is true, but devolving power to Ministers rather than the Assembly is a fundamental aspect of the Agreement. It is there to prevent a Unionist majority in the Assembly overturning decisions of Nationalist Ministers at will.

The DUP concluded:

"The Belfast Agreement is not a democratic settlement. …This situation must change" (ibid, page 13).
And the second of their seven tests stated emphatically that "executive power must be fully accountable to the Assembly".

Have the DUP achieved their goal in the proposals published jointly by the British and Irish Governments on 8th December 2004, and apparently agreed by all parties? They say so. The Proposals document contains in Annex E a statement the DUP had agreed to issue in the event of final agreement. This states boldly:

"During the Assembly election campaign we published policy papers and in our manifesto we set out seven Principles and seven Tests which would govern our negotiating stance. … We believe our position in the talks and the outcome of the negotiations has been completely consistent with these mandated policies, principles and tests."

However, the DUP statement is noticeably reticent about how their demand that Ministers be accountable to the Assembly has been satisfied. Understandably so, because it hasn’t: it is still the case that "each individual Minister can take any executive decision over the department he controls without recourse to or the consent of the Assembly"; the two Governments do not propose to change the original Agreement so that ministerial decisions can be countermanded by a vote of the Assembly.

In a real sense, therefore, the DUP has accepted the basic principles of the Belfast Agreement.

It is true, as we will see, that a new mechanism is proposed whereby what are described as "important ministerial decisions" may be referred from the Assembly for "review" by the Executive.

The proposed changes to the Agreement are described in Annex B of the Governments’ document, in some instances not very clearly. The implementation of these changes would require the amendment of the Northern Ireland Act (1998), which put the original Agreement into law. Until this Act is amended—if it is ever amended—it will be impossible to be certain what these changes would mean in practice, and perhaps not even then.

What follows is an examination of the proposed changes to Strand One of the Agreement, that is, the Northern Ireland institutions. It should be regarded as a preliminary evaluation, based on the text in Annex B.

(Annex B also proposes changes to Strand Two and Strand Three, which are not examined here.)

Assembly Referrals For Executive Review

The mechanism for Assembly referrals of "important ministerial decisions" to the Executive is described in paragraph 6 of Annex B, which says:

"An amendment to the 1998 Act would provide for referrals from the Assembly to the Executive of important ministerial decisions. Thirty members of the Assembly might initiate such a referral, within seven days of a ministerial decision or notification of the decision, where appropriate. Before he could pass the referral to the Executive, the Presiding Officer, following consultation with the parties in the Assembly, would be required to certify that it concerned an issue of public importance. The Executive would consider the issue within seven days. A second referral could not be made by the Assembly in respect of the same matter. Only matters covered by the Ministerial Code, as set out above, would require a collective decision by the Executive."

In the Assembly elected a year ago, the DUP itself has 33 Assembly members (30 elected plus 3 defections from the UUP). So, they could initiate this process on their own in respect of a decision by any Minister, including a UUP Minister. Sinn Fein, which has 24 members, would require the support of another party.

Clearly, the DUP could use this mechanism to engage in continual challenges to the decisions of Ministers other than their own. But, whether these or other challenges reach the Executive depends on the rules to be applied by the Presiding Officer to decide whether the decision in question "concerned an issue of public importance". Presumably, those rules will be laid down in legislation, and presumably the legislation will seek to limit these referrals.

But what happens if the Presiding Officer refers a ministerial decision to the Executive for consideration? Can the Executive overturn a ministerial decision? The answer to that appears to be in principle YES, but in practice such an event would be very rare, given the political makeup of the present and any conceivable future Assembly.

I assume that a ministerial decision referred to the Executive would stand unless the Executive passed a resolution overturning it. That would be difficult to achieve given the following:

"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" (Annex B, paragraph 3).

This rule, which wasn’t in the original Agreement, means that, for example, Sinn Fein would be able to bloc any attempt by the DUP to overturn a decision of a Sinn Fein, or any other, Minister, if an Executive were formed from the present Assembly.

Presumably a similar safeguard as applies in the Assembly on contentious matters, which are subject to a special vote under Article 5.d.ii of the Belfast Agreement, would then apply:

"(ii) or a weighted majority (60%) of members present and voting, including at least 40% of each of the nationalist and unionist designations present and voting."

But it must be assumed that in such a cross-community vote in the Executive a majority of each designation, and not, for example, merely 40%, would be required to carry a resolution. This is not made clear in paragraph 3.

The present Assembly has a 59-strong Unionist bloc (33 DUP, 24 UUP and 2 others) and a 42-strong Nationalist bloc (24 Sinn Fein and 18 SDLP). This means that the DUP will nominate the First Minister and Sinn Fein the Deputy First Minister, and the 10 departmental ministries assigned by the d’Hondt process would give 4 to the DUP, and 2 each to the UUP, Sinn Fein and the SDLP. (Without the defection of 3 UUP members to the DUP, the DUP and the UUP would each have had 3 ministries). Overall, therefore, and including the First and Deputy Firist Ministers, the DUP will have 5 members of the 12-member Executive, Sinn Fein 3, the UUP 2 and the SDLP 2.

On its own, therefore, Sinn Fein is in a position to bloc any potential Executive decision (a) because it has the 3 members that are sufficient to require a "cross-community" vote on the Executive, and (b) because its 3 members represent a majority of the 5 Nationalist members and are therefore in a position to stop the passing of any motion before the Executive, even if the 2 SDLP members vote in favour of the motion.

In theory, it would be possible for decisions of UUP Ministers to be overturned by a vote of the Executive, since on its own the UUP with 2 members has insufficient strength to require a "cross-community" vote (and is also a minority in the Unionist bloc). However, if the DUP were to attempt to overturn such a decision, Sinn Fein would have to acquiesce for the decision to be overturned. This is an unlikely eventuality. In theory, the decisions of SDLP Ministers could also be overturned by the DUP with the acquiescence of Sinn Fein.

Statutory Ministerial Code

Another proposed change is potentially relevant to ministerial ability to take executive decisions. This is the introduction of a statutory Ministerial Code (see paragraphs 3-5 of Annex B). This is to be drawn up by the First Minister and Deputy First Minister after an Executive is formed—which may provide another opportunity for the process to be stalled—and must be approved by the Assembly on a cross-community vote.

Paragraph 3 says:

"The 1998 Act would be amended to require inclusion in the Code of agreed provisions in relation to ministerial accountability."

It goes on to list the matters to be decided collectively by Ministers in the Executive, which it says would be a 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);

(vi) discussion of and agreement on any issue which is significant or controversial and is clearly outside the scope of the agreed Programme for Government or which the First Minister and Deputy First Minister agree should be brought to the Executive."

Matters (i) to (v) are an accurate reflection of paragraphs 19 and 20 of the original Agreement, which, according to Section 20(3) of the Northern Ireland Act 1998, define the functions of the Executive.

But, both aspects of (vi) are new. However, it is not obvious that (vi) represents a major extension of what can be placed on the agenda of the Executive. For example, does the first part of (vi) go further than a review of the agreed Programme of Government, which is already allowed for in (v)? And, it doesn’t seem unreasonable to allow a matter to be put on the agenda of the Executive, if the First Minister and the Deputy First Minister agree that it should be.

(Strangely, there is no specific mention in this list of the Executive being obliged to consider "referrals" passed on by the Presiding Officer from the Assembly.)

Presumably, Section 20(3) of the Act will be amended to reflect the addition of (vi). Until that is done, it is difficult to judge the degree to which this represents an extension of the functions of the Executive, with the potential to infringe upon the sovereignty of Ministers within their own departments.

However, even if what can be placed on the agenda of the Executive is marginally extended, as we have noted earlier, the cross-community voting mechanism severely restricts the degree to which Ministers’ sovereignty can be overridden in practice by the Executive.

One thing is certain: the Assembly will not be able to countermand ministerial decisions that do not involve legislation, and the DUP’s complaint that under the original Agreement "each individual Minister can take any executive decision over the department he controls without recourse to or the consent of the Assembly" will continue to be operative.

Assembly Approval Of Ministers In The Executive.

The method of choosing the First Minister and the Deputy First Minister is to be changed. The largest Unionist party would nominate the First Minister and the largest Nationalist party will nominate the Deputy First Minister (unless there are more Nationalist Assembly members than Unionist Assembly members, in which case the roles would be reversed). Then the departmental members will be chosen as before using the d’Hondt procedure. The whole Executive has then to be approved by a majority of Unionist Assembly members and a majority of Nationalist Assembly members (see Annex B, paragraph 9).

(Previously, only the First Minister and the Deputy First Minister were subject to such approval by the Assembly.)

This Assembly "vote of confidence" in the Executive is bolstered by the following proposal:

"No minister would be allowed to remain in the Executive if he or she had not voted in favour of the Executive Declaration [to approve the Executive], and if the nominating officer of his or her party did not nominate another MLA [Assembly member] who had done so, d’Hondt would be re-run excluding that party." (Annex B, paragraph 9)

So, parties with a sufficiently large number of seats to gain Ministers by the d’Hondt procedure have very little option but to vote to approve the Executive.

Other Strand One Changes

Amendments are proposed to the Pledge of Office for Ministers, which is laid down in Schedule 4 of the 1998 Act. Ministers would now be required to "participate fully in the Executive and North South Ministerial Council/British Irish Council" and to "observe the joint nature of the office of First Minister and Deputy First Minister" (Annex B, paragraph 8).

The first requirement would prevent the kind of opting out from the North South institutions that DUP Ministers engaged in previously.

The Northern Ireland Act (2000) is to be repealed, so it will no longer be possible to suspend the institutions (Annex B, paragraph 13)—unless Westminster passes another Act allowing suspension.

The Northern Ireland Act (1998) is to be amended so that Assembly members can no longer change their designation (as Unionist, Nationalist or Other) within an Assembly term, except when they change party membership (Annex B, paragraph 14). In November 2001, a number of Alliance Assembly members as well as a Women's Coalition member re-designated themselves temporarily as Unionist (instead of Other) in order to get David Trimble re-elected First Minister, when there wasn’t a majority in the actual Unionist bloc for his re-election. This will no longer be possible.