Commentary on Sections Ministerial conduct Section 5: The Executive Committee and the Ministerial Code
34.Section 20 of the 1998 Act makes provision for there to be an Executive Committee of the Northern Ireland Assembly and specifies that the functions of that Committee shall be those set out in paragraphs 19 and 20 of Strand One of the Belfast Agreement. This means that the Executive Committee is to provide the forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, for prioritising executive and legislative proposals and for recommending a common position where necessary (e.g., in dealing with external relationships). It is also charged with seeking to agree each year, and review as necessary, a programme for government incorporating an agreed budget linked to policies and programmes.
35.Consistent with the St Andrews Agreement, section 5(1) adds a new subsection to section 20 to provide that the Committee shall also be the forum for discussion and agreement on significant or controversial matters that are clearly outside the scope of the programme of government agreed by the Committee, or significant or controversial matters that the First and deputy First Ministers acting jointly have determined to be matters that should fall to the Executive Committee.
36.Subsection (2) of section 5 inserts a new section 28A into the 1998 Act. The new section provides for a statutory Ministerial Code and places a duty on all Ministers and junior Ministers to act in accordance with the provisions of that Code (new section 28A(1)). In this new section, “Ministerial Code” refers either to the Ministerial Code prepared by the Transitional Assembly under paragraph 4 of Schedule 1 to this Act or to any replacement Code prepared and approved by the Northern Ireland Assembly in accordance with section 28A. Subsections (3) and (4) of section 28A set out that any draft amendments to the Code, or any draft replacement Code prepared by the Executive Committee, must be laid before the Assembly for approval and shall only have effect once approved by a cross-community vote in the Assembly.
37.Breach of the duty to act in accordance with the Ministerial Code would constitute a breach of the pledge of office, and so where a Minister or junior Minister has not acted in accordance with the Code it would be open to the Assembly to impose any sanction available to them for breach of the pledge. The available sanctions are censure, reduction of remuneration and financial assistance, and exclusion from Ministerial office.
38.Subsections (5) to (9) of new section 28A relate to the content of the Code, and specify that the Code must contain certain provisions in relation to Ministerial accountability to the Executive.
39.Subsection (5) of new section 28A sets out that the Code must contain a provision to require all Ministers and junior Ministers to bring to the attention of the Executive Committee any matter that ought to be considered by the Committee under subsection (3) or (4) of section 20 of the 1998 Act. This new provision is not intended to alter an individual Minister’s authority in his area of responsibility, but rather to ensure that Ministerial decisions do not contravene any collective position agreed by the Executive Committee on a matter that falls to them by virtue of section 20 of the 1998 Act.
40.Subsection (6) of new section 28A builds on subsection (5) and requires the Code to set out a procedure to enable a Minister to determine whether any Ministerial decision that he has taken or is about to take relates to a matter that ought to be considered by the Executive Committee under section 20 of the 1998 Act. It is intended to provide clarity for Ministers, primarily to avoid them breaching the provisions of the Code inadvertently. It does not affect the Executive’s competence at the expense of individual Ministers’ executive authority within their areas of responsibility. The Code, as at present, will determine what is and is not, for the Executive, in line with the provision of paragraphs 19 and 20 of Strand One of the Belfast Agreement and the new section 20(4) of the 1998 Act.
41.Subsection (7) of new section 28A requires the Code to put in place procedures for the Executive Committee in relation to the taking of decisions and in relation to the Committee’s consideration of decision papers that are due for consideration by the North-South Ministerial Council or by the British-Irish Council.
42.Subsection (8) of new section 28A requires the Code to place a duty on the First and deputy First Ministers, as chairmen of the Executive Committee, to seek to facilitate and encourage consensus within that Committee where possible. Where consensus cannot be reached on a given issue a vote may be taken and it will be open to any three members of the Committee to require that the vote should require cross-community support in the Committee.
43.Subsection (9) of new section 28A provides that the Code may also include other provisions that the Executive Committee thinks fit (subject, of course, to any Assembly cross-community approval required under subsection (4)).
44.Subsection (10) provides that a Minister or junior Minister does not have authority to take any decision outwith the procedures set out in the Ministerial Code under subsection (5).