The First and deputy First Ministers acted jointly, using prerogative powers which they exercise on behalf of the Queen, in order to ensure that they could appoint leading journalist David Gordon as their top spin doctor without advertising the £75,400-a-year post.
The change to the law — of which MLAs, the Civil Service Commissioners, the committee which scrutinises Mrs Foster and Mr McGuinness’s department were unaware — was so difficult to find that even the highly regarded Assembly library could not find a copy of the legislation on Wednesday, the day after Mr Gordon’s appointment.
Responding to a News Letter request, Stormont Castle has now released a copy of the two-page order which was signed by the two ministers on 8 September and became law the following day It is headed: “Order of the First Minister and Deputy First Minister acting jointly”.
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Because the change made under what is effectively delegated Royal authority, the ‘Civil Service Commissioners (Amendment) Order (Northern Ireland) 2016’ will not even come before the Assembly’s Examiner of Statutory Rules, a watchdog who examines secondary legislation.
The law change was passed under the same principle which allowed medieval kings to issue decrees without consultation, something which the 18th century English jurist Sir William Blackstone defined as “that special pre-eminence which the King hath, over and above all other persons...in right of his regal dignity”.
Last night Opposition MLAs expressed shock at what has happened.
But The Executive Office (TEO) defended the process, insisting that what it had done was entirely in line with what the powers conferred on the ministers by the Northern Ireland Act 1998 – the law which implemented the Belfast Agreement by setting up the Executive.
Mike Nesbitt, who is chairman of the Assembly committee which scrutinises TEO, said that neither he nor the committee had been made aware of the order being amended.
The Opposition leader said that Brian Rowntree, chairman of the Civil Service Commissioners, had told him that he had written to the Head of the Civil Service seeking clarification about the employment status of Mr Gordon and asking for details of the law under which he was appointed.
In a brief statement last night, the commissioners – who oversee civil service appointments and ensure that they are in accordance with the law – said that they “have not been informed about the appointment of The Executive Press Secretary in The Executive Office or consulted on the appointment process used”.
The Public Appointments Commissioner – who oversees non-Civil Service public sector appointments – has already said that she learnt of the appointment through the media.
TUV leader and QC Jim Allister said: “I am astounded by the audacity of the First Ministers in purporting to use ‘prerogative powers’ to arbitrarily amend legislation to give themselves power to make a civil service appointment, which circumvents the application of ‘the merit principle’, so that they can have a hand-picked spin doctor to add to the legions of press officers already in place. This, in my view, is a brazen abuse of power.
“The First Ministers in purporting to use prerogative powers to decree amendment to legislation...are flagrantly breaching due process. They have purported to amend the [existing law] to add a power for themselves to make the subject appointment.
“Section 23(3) of the Northern Ireland Act 1998 bestows the Royal prerogative powers in respect of the NI Civil Service on the First Ministers, but to then purport to use those powers to amend legislation to gift themselves a power of appointment not anticipated in that legislation, seems to me to be an abuse of power and process.
“How many spin doctors does Stormont need? They already have 161. How ironic that the latest appointee is the very person who hitherto would have railed against and exposed the contrived process by which he was appointed.”
Yesterday the News Letter asked Stormont Castle whether anyone outside of the department with the exception of Mr Gordon had been aware of the change to the law before it came into effect.
In response, a spokeswoman for TEO said: “Ministers are entitled to make this Order under the powers conferred on them by section 23 (3) of the Northern Ireland Act 1998. The Civil Service Commissioners (Amendment) Order (Northern Ireland) 2016 is not subject to scrutiny by the Assembly.
“It is interesting to note the panic and hysteria of Mr Allister and other opposition MLAs following the appointment of the Executive Press Secretary. Their reaction, though not surprising, is to be expected from parties who are unable to communicate in an open, clear and transparent way.”
• Ben Lowry, page 17