The following paper was presented at the recent political talks to restore devolved government in Northern Ireland.
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Alliance Party of Northern Ireland
Expanded Proposals: Accountability
22 September 2004
Alliance believes that there are substantive issues regarding accountability that must be addressed.
In virtually every liberal democracy, accountability is achieved through a single party or voluntary coalition government that operates on the basis of collective responsibility. Full accountability and co-ordination is achieved within that Executive, which is in turn answerable to the legislature. Indeed, it is through finding majority (or in certain situations weighted majority) support in the legislature that the Executive derives its mandate to govern. Individual ministers do exercise considerable authority but only within a particular context. Where a minister exceeds his brief or takes repeated action that goes against the overall programme of that administration, the chief minister can remove that minister from office. In rare circumstances, the entire Executive can be removed through a vote of no-confidence.
Under the Good Friday Agreement regime, we do not have that system. Instead, an involuntary or mandatory coalition is established. Ministers do not serve at the will of the Assembly but rather on the basis of a semi proportional formula that allocates places on the Executive in rough proportion to overall strength in the Assembly. Ministers serve at the behest of their party leader (nominating officer), and are not directly mandated by or accountable to the Assembly as a whole. With parties guaranteed their number of ministries, there is little incentive to co-operate or moderate positions within government, nor penalties for failure to do so. The Executive as a whole can not itself be brought down either.
There are some mechanisms that provide a degree of accountability and collectivity that essentially impose a degree of co-operation from the top down.
Ø The Executive must agree a draft Programme for Government and Budget, which must be approved by the Assembly on a cross-community vote.
Ø Many ministerial decisions involving primary or secondary legislation must be approved by the Assembly. Where a Petition of Concern is invoked, the approval must be on the basis of a cross-community vote.
Ø The Pledge of Office requires Ministers to act in accordance with the Executive and Assembly decisions. In the case of the NSMC and BIC, this is an explicit statutory duty, as is the report to the Assembly which Ministers must make after such meetings.
Ø The current ministerial code requires Ministers to bring to the Executive certain matters, including those cutting across ministerial responsibilities, requiring agreement on prioritisation or adoption of a common position, or having implications for the Programme for Government. This Code is not, however, agreed by the Assembly at present.
Ø Committees of the Assembly have a right to summon and question Ministers on any aspect of their responsibilities.
In addition, Ministers must operate within the context of a wider legislative framework, including human rights, equality and rural-proofing. Ministerial decisions can be judicially reviewed, in the event that they are taken outside the law.
There are a number of problems with the above. First, it is unclear who, in the event of a dispute over what is or is not a decision that requires executive approval, decides what action is required.
Second, the pledge of office has proven to be a toothless device. During the 1998-2003 Assembly, the terms of the pledge were arguably breached on numerous occasions. However, no action was taken. There was a reluctance of parties to sanction other parties, in part for political reasons, but also in recognition of the strength of the only sanction – that of temporary exclusion – which is disproportionate to most breaches.
Third, an over-dependence upon costly and timely legal remedies in the courts to problems should be avoided. Priority should be given to finding political solutions to political problems.
In particular, it is clear that at present Ministers otherwise have full authority within their respective areas of responsibility. (This is clearly acknowledged in the Accountability Paper from the Governments). In this regard, Ministers are essentially in a majority-rule situation within the areas of their own direct competence. Under the vagaries of d’Hondt, there is an element of uncertainty over which parties will obtain Departments. Parties end up with substantial degrees of control in certain areas, but next to nothing in others.
Political parties and Ministers do not just have an interest in the departmental areas that they control, but in all areas of government – their constituents are affected by decisions that take place under every portfolio.
Logic would suggest that every party would have an interest in ceding a little of the absolute authority that they have in certain respects of their portfolios in exchange for some degree of influence over the areas where they have little or none at present.
An argument put up is that accountability measures dependent upon the votes of Assembly members will entail that there will an asymmetrical application against those in a minority position. Safeguards can be readily put in place to ensure that there will be a level playing field.
This approach runs contrary to the spirit of power-sharing. Alliance’s understanding of the concept of power-sharing is that all parties have some share in the decision-making process on all key issues. In a deeply divided society, this is important to ensure that such decisions are not taken by Ministers from one tradition that favour persons associated with that tradition over others. Nevertheless, Alliance does recognise that there are a range of routine and administrative matters in which ministers should retain full authority.
A multi-faceted solution to the problem of accountability is required, with the creation of safeguards both within the Executive, within the Assembly, and within the wider law.
All our proposals are entirely consistent with the fundamental principles of the Agreement, and preserve the crucial underlying balance and equilibrium between its different elements.
Priority should be given to solutions within the Executive, but Alliance also firmly believes that there is a need for a backstop power within the Assembly itself.
Alliance believes that a number of options can be considered as part of an overall package of measures to address the accountability issue within Strand One.
1. The legislative framework in which ministerial decisions are taken should be expanded. For example, additional forms of policy-proofing could be introduced such as Policy Appraisal for Sharing over Separation (PASS). This would ensure that decisions made do not exacerbate the divisions within Northern Ireland.
2. The range of sanctions available to the Assembly have already been expanded through the Agreement between the British and Irish Governments on Monitoring and Compliance. These intermediate steps short of exclusion from office can be deployed by the Assembly against ministers for breaches of the Pledge of Office. In addition, the parties should be encouraged to devise other measures in this regard.
3. A revised Ministerial Code which is placed on a statutory basis through amendment of the Northern Ireland (1998) Act should be made. This should be endorsed by the Assembly on a cross-community basis. Clear powers of interpretation of what requires or does not require Executive approval should be vested within the Executive as a whole.
4. Advance notice of decision papers should be given to all members of the Executive. They would have the right to question, comment, and request consultations. Notwithstanding the lead Minister’s particular authority in his/her respective area of responsibility, the Code would specify that every effort should be made to ensure that draft decision papers would enjoy the support of all members of the Executive.
5. There should be scope for other members of the Executive to challenge ministerial decisions. A written letter, signed by at least three members of the Executive, should be tabled to the First Minister and Deputy First Minister, requesting the opportunity to discuss a matter. This letter must cite the grounds under which a challenge is being made. These grounds should be tightly limited. Grounds could include:
Ø Acting contrary to the agreed Programme for Government and budget;
Ø Acting contrary to human rights and equality legislation, or any form of policy-proofing;
Ø Undermining community relations; and
Ø Significant misallocation of resources (the Executive could agree on an annual basis a formula that would establish thresholds in this regard).
The First Minister and Deputy First Minister should rule on whether or not a proposal to refer a matter to the Executive is competent. This could be judicially reviewed at the request of either the minister affected, or the petitioners. The Executive must debate any referral within the space of one week. The votes of 2/3 of the members of the Executive would be required to overturn a decision.
6. There would also be circumstances where the Assembly would wish to challenge a Ministerial decision.
A motion, signed by 20 MLAs, should be lodged with the business office. As in the Executive, the motion must cite the grounds under which a challenge is being made. These grounds should be tightly limited. Grounds could be similar to those applying to the Executive.
In the first instance, the Speaker should consider whether or not the matter is vexatious. The Business Committee would then prioritise any debate. On the basis of a cross-community vote, the Assembly could vote to overturn a ministerial decision. A second motion on the same matter should not be permitted.
These measures should be applicable to decisions made in Strand Two, in addition to any other particular safeguards that nay be deployed there.