Bill explainer: Functioning of Government (Miscellaneous Provisions) Bill
As a Private Member’s Bill, the Functioning of Government (Miscellaneous Provisions) Bill is one of just two bills since the return of the Executive and Assembly not to be given accelerated passage. Brought forward by Traditional Unionist Voice MLA Jim Allister, it seeks to address issues of governance highlighted by the RHI scandal.
Jim Allister’s Bill seeks to amend sections seven and eight of the Civil Service (Special Advisers) Act (Northern Ireland) 2013 and Article 3 of the Civil Service Commissioners (Northern Ireland) Order 1999 in relation to the role of special advisers (SPADs) in the Civil Service, to repeal the Civil Service Commissioners (Amendment) Order (Northern Ireland) 2016, amend section 17 of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011, and to make “additional provision” for the functioning of government.
Overall, the Bill has 14 objectives, the most notable of which is a halving of the number of SPADs in the Executive Office, from eight to four. Primarily focused on curbing the power of SPADs, which was such a central part of the RHI scandal, the Bill also seeks to nullify any SPAD appointment that does not comply with the Stormont code of conduct for appointments, to make SPADs subject to the disciplinary code and processes of the Civil Service, to restrict SPAD pay so that it cannot be higher than Grade 5 of the Civil Service pay band and to create a register of interests for ministers and special advisers.
The Bill also seeks to enshrine two criminal offences into law: if passed, it would be a crime for a minister, civil servant or SPAD to use a personal account for the purpose of electronic communication with regard to government business and also an offence for any minister or SPAD to communicate confidential government information to a third party. Its passage would also require the First Minister and deputy First Minister to act to improve governance and to report biennially on the functioning of government.
In the explanatory and financial memorandum for the Bill, Allister says that “controversy about the number, cost and disciplinary regime applicable to special advisers” caused him to investigate how SPAD arrangements work in the devolved institutions of Scotland and Wales. Seven SPADs are employed full time by the Welsh Parliament, with a further two employed part time, and 14 are employed by the Scottish Parliament, compared to the 16 of the Northern Ireland Assembly.
The last full year of data for SPAD costs (2015/16) shows that the overall cost to the Assembly was £2,027,835.05, while the latest figures for Scotland (2017/18) and Wales (2018/19) show costs of £1,045,486 and £814,009 (plus a further £119,636 in severance payments) respectively. The memorandum says that it is “also notable” that half of Scottish SPADs are paid on the lowest Civil Service pay band.
The memorandum specifically cites the Redsky affair when mentioning disciplinary measures. Noting that a minister was able to cancel advised disciplinary action against their SPAD, it says that this raised for Allister the “adequacy” of current procedures. The controversial appointment of David Gordon as Executive Press Secretary is also singled out within, with it referred to as an “unpublicised exercise of prerogative powers” that “provoked controversy and unease” in 2016. Allister also says that the passage of the Bill would bring forward the last motion passed without division before the Executive collapsed in 2017, where the Assembly endorsed the expansion of the Standards Commissioner’s powers to include breaches of the Ministerial Code.
Minister for Finance Conor Murphy has proposed a new code for how SPADs are appointed, but Allister has repeatedly insisted that it is only through legislation that effective change will be arrived at.
Relating to the RHI affair, Allister alleges that the inquiry into the matter “exposed a number of matters directly relevant to the positions and conduct of special advisers and the functioning of government”. These include: appointments of SPADs in breach of the code for appointments; failure to accept ministerial responsibility for SPAD behaviour; lack of record keeping within the Civil Service with regard to ministerial decisions; evidence of attempted deliberate circumvention of the arrangements governing the control of SPADs; use of non-governmental email systems; unwarranted passing of information to third parties; and the direction of SPADs across departments under a hierarchy of SPADs.
As an attempt to answer the outcry regarding SPAD behaviour following the revelations of the RHI inquiry, Minister for Finance Conor Murphy has proposed a new code for how SPADs are appointed, but Allister has repeatedly insisted that it is only through legislation that effective change will be arrived at. The Head of the Civil Service, David Sterling, has previously told two Stormont committees that the First Minister and deputy First Minister believe that the issues Allister seeks to address with his Bill would be better dealt with through these new non-statutory codes of conduct.
In June, Allister told the Executive Office Committee of the “inadequacy of simply relying on codes” and said that RHI had exposed a “lamentable failure, demonstratable failure of codes”. “Why put your faith in them again?” he asked. “What is there to fear from legislation?”
Doubts have been cast over the Bill’s likelihood to pass, with neither Sinn Féin nor the DUP expected to support it. Sinn Féin MLA Pat Sheehan has argued that the governance of Stormont is “unique” due to its history of division and the delicacy of power sharing. He referred to Allister’s Bill as a “nuclear button”. Also speaking at the Executive Office Committee, former Alliance Party Chairman and now independent MLA Trevor Lunn said that there were “undercurrents” suggesting the Bill will not pass through the Assembly.
The Executive initially appointed six SPADs, two shy of the maximum allowed, however, following the resignation of Kim Ashton in early May, it operated with five for much of the Covid-19 pandemic, a fact that Allister has repeatedly used to argue against the necessity of the number of SPADs available to the office. Concerns have been raised about the criminalisation of sharing information with third parties within the Bill as RHI was only exposed by the kind of whistleblowing that would be outlawed should the Bill pass, but the likelihood of that currently seems remote.
