Mystery over ministerial code delay amid rumours of another DUP rebellion

Three months ago, Arlene Foster suffered the biggest parliamentary rebellion in the DUP’s 50-year history when she rammed through the Assembly the Executive Committee (Functions) Bill – legislation which gave more power to individual ministers.

Despite the rebellion by 11 MLAs who actively abstained, and several others not showing up to vote, the legislation passed into law.

However, it required a second Assembly vote to change the Ministerial Code, the rules which govern which issues can be decided unilaterally by a minister and which issues need to be brought to the full Executive because there is now a conflict between the code and the bill which was rushed through the Assembly in July.

However, despite rushing the legislation through two and a half months ago and despite the fact that Stormont returned from its summer recess a month ago, there is still no sign of Mrs Foster and Ms O’Neill tabling a proposal to change the Ministerial Code.

In the final debate on the legislation in July, junior minister Declan Kearney was clear that “the ministerial code will be required to be amended” and he went on to say: “The ministerial code must be adjusted in order for the planning issues to proceed”.

However, Infrastructure Minister Nichola Mallon always disputed that the code needed to be changed for her to take major planning decisions and she has already taken three such decisions in recent weeks, including granting approval for the north-south interconnector.

The News Letter asked The Executvie office why there was a delay in changing the code, and when it would be happening. The department did not respond in any way.

Similarly, MLAs Jim Allister and Doug Beattie tabled Assembly questions last month asking about the issue. Again, there has not even been a response, despite the deadline for an answer having passed.

However, several unionist sources inside and outside the DUP have told the News Letter that there is the potential for a major rebellion against Mrs Foster if the issue is brought to the Assembly.

The Northern Ireland Act 1998 states that an amendment to the code “shall not be approved by the Assembly without cross-community support; and shall not take effect until so approved”.

Cross-community support requires either majority of nationalists and a majority of unionists, or the support of 60% of MLAs who voted as well as that of 40% of unionists and nationalists.

There are 40 unionist MLAs, but just 14 DUP MLAs voted for the bill in July. If that situation was replicated, it would mean that there Mrs Foster would only have 35% of unionist MLAs supporting her position – insufficient to even pass the second, lower bar to demonstrate cross-community support and the changes could not pass.

UUP MLA Doug Beattie, who led opposition to the bill in the Assembly, said that the situation was evidence of “dysfunctionality in The Executive Office”. He said that the UUP would “certainly not be supportive of a ministerial code which supports the position of the Executive Committee (Functions) Bill”.

He added: “The question is this: Would those DUP MLAs have that same moral courage which they showed the last time, and refuse to vote for this?”

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