Has the DUP accepted the Belfast Agreement?
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 (see DUP website).
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”.
On 8 December 2004, the
British and Irish Governments jointly published proposals
for a “comprehensive agreement”, which included a proposal that the
decommissioning of IRA weapons be photographed. The latter was included at the insistence of the DUP, but without
the agreement of the IRA, and as a result the “comprehensive agreement” didn’t
come to fruition.
However, all parties, including the DUP, seem to have been
happy with the political aspects of the proposals by the two Governments. The question is: did the DUP achieve their
stated goal of putting ministers under the control of the Assembly in these
proposals? They say so. The proposals document contains in Annex E a
statement which 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.
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, 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 it the 2 SDLP members vote in favour of the
motion.
(This assumes that in 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.)
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.
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, the
cross-community voting mechanism will severely restrict 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 seems to be a meaningless sop to the DUP, which gives
the impression that the Executive as a whole is accountable to the Assembly,
when in fact the departmental ministers are a product of party mandate, and
largely autonomous, and it’s next to impossible for the Assembly to unseat any
one of them.
This Assembly “vote of confidence” in the Executive is
rendered even more artificial 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.
Amendments are proposed to
the Pledge of Office for ministers, which is laid down in Schedule 4 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 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.
Irish Political Review
January 2005