Hamilton v. O’Neill

Press Eye - Belfast - Northern Ireland - Saturday 27th April 2013 -

Democratic Unionist Party's Spring Conference at the Killyhevlin Hotel in Enniskillen this afternoon.

Picture by Kelvin Boyes / Press Eye Collective responsibility broke down in December when two Executive ministers went to court. Peter Cheney examines the recent case and the importance of this basic norm of government.

The prospect of two government ministers – even in a coalition – going to court is inconceivable in London, Dublin and most other capital cities. Collective responsibility keeps disputes around the Cabinet table. Finance Minister Simon Hamilton’s decision to take Agriculture Minister Michelle O’Neill to court therefore demonstrates the absence of collective responsibility at Stormont and is well outside British or Irish norms for government.

It was, as Lord Chief Justice Sir Declan Morgan stated, “a case about political failure”. O’Neill had planned to transfer £100 million in Common Agricultural Policy funding to rural development projects. Hamilton maintained that this was a “significant and controversial issue” which should have been brought before the Executive under the ministerial code.

The court found in his favour and O’Neill decided against launching an appeal. Costs for the case have not yet been disclosed but both departments spent public money on instructing opposing teams of barristers.

The judgment has a clear political value for the DUP as support for farmers is one of its main messages in the European election campaign. Sinn Féin, meanwhile, wants to increase funds for rural development grants which are naturally popular among rural voters.

In this case, though, the DUP was seeking to apply a principle which was established in a case against one of its own ministers.

On 11 October last year, Mr Justice Treacy ruled against Health Minister Edwin Poots and his department’s lifetime ban on blood donations from gay men.

The judgment found that Poots had breached the ministerial code. The issue was controversial – having “generated much publicity and public debate” – and also cross-cutting as it involved equality issues and a European Directive.

Four days later, Enterprise Minister Arlene Foster used Mr Justice Treacy’s words to warn Environment Minister Mark H Durkan against imposing a ban on fracking.

Foster described fracking as a “novel and controversial issue” and added: “Therefore, it will be taken to the Executive and will be a matter for the Executive as a whole to decide on.” She continued: “I have known that for some considerable time but it has been really underlined for me by the judgment of Mr Justice Treacy last Friday, where he said that these issues need to be taken to the Executive.”

280513WC2_015 St Andrews

The DUP’s insistence on bringing issues to the Executive goes back to the 2006 St Andrews Agreement. The party knew that it was about to become the largest party in government but also that the code allowed smaller parties considerable autonomy. Its ministers had defied the 1999-2002 Executive by refusing to attend its meetings.

The revised code required ministers to bring “any issue which is significant or controversial” to the Executive table. This takes the matter out of the hands of the departmental Minister but it does not guarantee that the largest party will get its way.

The DUP can get proposals through the Executive when it works with other parties to get a majority. Sinn Féin, though, can demand a cross-community vote which can effectively block a DUP proposal.

Later in October, DUP MLA Maurice Morrow used the Treacy judgment to accuse Durkan of breaking the ministerial code; he had not referred his decision to suspend the Planning Bill to the Executive. Durkan pointed out the First and deputy First ministers had not consulted the Executive – or indeed their party members – on their amendments to the Bill.

Likewise, his party colleague Jonathan Craig has labelled David Ford as being a “little Nero” for announcing changes to the recruitment criteria for the Chief Constable. “One does not simply wander into such an area and start making arbitrary changes at whim,” Craig added. “They need to be discussed and agreed upon in a consensual fashion among the parties.”

The Executive discussed the matter and decided that it, rather than the Justice Minister, must make the final decision. Ford said that he would follow this ruling but suggested that the DUP and Sinn Féin had caused the controversy for “only political reasons.”

Collective responsibility is a constitutional norm for the UK and Irish governments. Ministers from different parties criticise each other in private – and sometimes in the media – but not in the courts.

Westminster’s ministerial code defines collective responsibility as ministers being able to “argue freely in private while maintaining a united front when decisions have been reached.” Cabinet decisions are “binding on all members of the Government.”

The Hamilton v. O’Neill case underlines the lack of trust between the DUP and Sinn Féin. Another telling point is Martin McGuinness’ claim – in an interview with the Irish News – that three-quarters of DUP MLAs do not acknowledge him in the corridors of Parliament Buildings almost seven years after devolution.

The Executive has another two years left in office. It is highly unlikely that it will collapse, as that would be in neither party’s interest, but the outcome of the case suggests that ministers may take (or threaten) similar High Court actions in future when they fail to agree at Stormont Castle.

A poor relationship between the two parties inevitably results in deadlock, slow delivery and more public cynicism about politics. Taking political disputes to court also damages the image of a united power-sharing government which the Executive attempts to present to external investors and the wider world.

Related Posts