Northern Ireland Functioning of Government Act 2021

What is the Functioning of Government Act?

The Functioning of Government Act 2021 is a law that reforms the rules surrounding ministers, special advisers, transparency and lobbying for Northern Ireland’s devolved government. It was introduced shortly after the restoration of the Stormont executive in January 2020, as a private member’s bill by member of the legislative assembly (MLA) Jim Allister.

On 2 February 2021, the bill passed final consideration, and on 21 March 2021 it received royal assent and became law.

What are the new requirements in the Functioning of Government Act?

The act introduces a series of new rules and restrictions. It specifies that special advisers be subject to the same disciplinary procedure as employees of the permanent Northern Ireland Civil Service (NICS) and that ministers are responsible and accountable for the conduct of their special advisers.

It also clarifies that special advisers must solely answer to their minister and that only official special advisers – i.e. not those who informally advise ministers, or members of the minister’s party – should be granted the due privileges by the NICS, such as access to buildings, information or resources. Special advisers cannot be paid higher than a civil servant in band 5 (£82,464 in 2019/20). The two junior ministers in the executive office will no longer be able to appoint special advisers.

The act also establishes new processes for investigating complaints made against ministers. While there had been proposals to establish a panel for ministerial standards, they are instead now subject to the commissioner for standards, the same person that oversees the conduct of MLAs.

The act also introduces a criminal offence, applicable only to ministers and special advisers, of communicating official information for the “improper benefit” of any individual. It is punishable by up to two years’ imprisonment. The act also requires that all ministers and special advisers must declare all interests for themselves and any immediate family members or partners.

Finally, civil servants must record all relevant meetings attended by either ministers or their special advisers. A minister or special adviser must record any lobbying, as defined in the act, in writing and submit it to the minister’s department.

Why was the Functioning of Government Act introduced?

The act is a response to the Renewable Heat Incentive (RHI), or ‘cash for ash’, scandal that contributed to the collapse of the Northern Ireland executive from January 2017 to January 2020. The ‘New Decade, New Approach’ agreement that led to the restoration of devolved government contains recommendations that the act seeks to implement.

The RHI was a scheme to subsidise the use of renewable fuel. However, concerns were raised about the scheme’s design and implementation, as well as the potential for abuse, and by the time it was ended in 2016 its cost had exceeded the budget by £700 million. The final report on the scandal, published in March 2020, recommended a clearer process for the appointment and conduct of special advisers, that ministers take greater responsibility for their advisers and the advice they provide, and that better notes be taken on ministers’ meetings.

It identified specific issues with the actions of the then minister for enterprise, trade and investment Arlene Foster, now first minister, and her then special adviser Andrew Crawford.

The report also documents at least one instance of a special adviser handing over confidential documents to third parties, and another of special advisers and a minister releasing emails relating to junior civil servants to divert scrutiny surrounding the scandal away from their party. It also found that there was a lack of record keeping of certain ministers’ and special advisers’ meetings around the scheme, leading to uncertainty over how decisions were taken.

Similarly, part of the New Decade, New Approach agreement to resume devolved government in Northern Ireland sets out reform proposals to restore public trust in government. These include clarifying the accountability of ministers to the Northern Ireland assembly, increasing their responsibility for special advisers, and ensuring that their meetings with any external organisations are published.

The act is designed to address these issues specifically. The hope is that by setting clear rules for the behaviour of ministers and their special advisers there should not be a repeat of the specific issues that caused the RHI scandal.

Why are these rules being introduced through legislation?

The act is an attempt to apply, via legislation, reforms that would usually be done through changes in codes of conduct. Some of the changes put into statute practices already in place. For example, no special advisers are currently paid at above band 5.

Other sections deal with conventions that were seen to have been broken during the RHI scandal. Record keeping of meetings was expected, but not enforced, before the scandal. However, there was a failure to document decision making on the RHI. As a result, the act clearly states when records should be taken and by whom.

The act was opposed by Sinn Féin, with minister for finance Conor Murphy arguing that these issues ought to be remedied by changes to the Ministerial Code and the relevant codes on the appointment of special advisers. However, the act’s sponsor Jim Allister has insisted that, given the failings of the codes in preventing the scandal and subsequent crisis, reform through legislation is the best approach.

How are the arrangements in Northern Ireland different to the rest of the UK?

Northern Ireland’s governance has historically diverged both from Westminster and the other devolved governments, with power-sharing between parties a requirement under the 1998 Belfast/Good Friday Agreement. As a result, there has traditionally been a need for more special advisers in the centre of government in Northern Ireland than Scotland or Wales. The text of the ministerial code is also very different to that of Westminster and the other devolved governments. It is a statutory document included in the 1998 Northern Ireland Act rather than just a set of rules and principals as is the case elsewhere in the UK.  

The act introduces further differences between how the ministerial codes are enforced in Northern Ireland and the rest of the UK. In Wales, Scotland and the UK central government, officials do not enforce the Ministerial Code, and in Westminster it is the final decision of the prime minister as to whether the code has been broken. Northern Ireland has historically diverged from this, with clear provisions on independent investigations into breaches of the code. As ministers are not appointed by the first minister, they can only be removed by either their party leader, or the Northern Ireland assembly. The new act’s provision that MLAs and ministers are investigated for complaints by the same body further strengthens enforcement of the ministerial code as compared to the UK model.