Finance Minister refuses to defend legality of Budget consultation process
25 January 2011
TUV Leader Jim Allister QC has claimed that Sammy Wilson MP, by refusing to defend the Budget Consultation process against challenges to its legality has conceded, by default, that it is legally deficient.
Last week Mr Allister wrote to the Minister inviting him to explain how a consultation process, truncated down to less than half the promised 8 week period, could meet the judicially approved expectations of a genuine consultation process. Quoting what the High Court had said about a genuine consultation process the TUV Leader challenged Mr Wilson to explain how the Executive’s highly delayed process could now meet that test.
In his letter Mr Allister wrote:-
Dear Minister,
When you announced elements of the budget back on 15 December 2010 you promised each department would publish their saving and spending plans within a week. It is a matter of historical record, of course, that this did not happen, that there was excessive delay and some plans when published were rather rudimentary.
In the context of the promised 8 week consultation period you were careful to say that this process would not be led by DFP but by the individual departments, conveying there would be an 8 week separate consultation on each. I would, therefore, be surprised if you sought to contend that in respect of each department the 8 week consultation period was triggered and running from 15th December, even though some did not publish for several more weeks. Such would make a farce of the consultation process. It would be wholly destructive of the ethos and bona fides of consultation if a Department which delayed for 4 weeks could piggy back on a consultation triggered by a more expeditious department, or the partial budget of 15th December, but in reality only gave half the promised period for comment on its proposals.
I am sure you are aware that in a Judicial review in 2007 Mr Justice Weatherup quoted with approval the four requirements for a genuine consultation process:
“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.”
If, as I’d expect, you wish the consultation process(es) to be bona fide and defensible in court, I’d be obliged to receive your considered assurance that what has unfolded is consistent with the above judicial expectation. If that is your considered view, then, I’d like a full explanation as to how you believe that position to be tenable.
Yours sincerely,
In his reply the Finance Minister, though specifically asked for assurance that the budgetary process was lawful, merely wrote:-
Thank you for your letter of 20 January 2011 referring to the draft budget consultation process.
I note your comments on the consultation process. As you will appreciate the agreement of a budget in respect of the responsibilities of the Northern Ireland Executive is a most complex matter and I outlined to the Assembly how the consultation process should proceed. Hwever it is for Ministers in the Executive and the elected representatives of the people in the Assembly to agree the final version of the budget and in my view it is our responsibility to provide the essential elements of accountability for government revenue and expenditure which our democratic system of government requires.
You will note that the Executive has subsequently agreed to extend the consultation period by a further week (closing on the 16 February 2011).
Yours sincerely
I note your comments on the consultation process. As you will appreciate the agreement of a budget in respect of the responsibilities of the Northern Ireland Executive is a most complex matter and I outlined to the Assembly how the consultation process should proceed. Hwever it is for Ministers in the Executive and the elected representatives of the people in the Assembly to agree the final version of the budget and in my view it is our responsibility to provide the essential elements of accountability for government revenue and expenditure which our democratic system of government requires.
You will note that the Executive has subsequently agreed to extend the consultation period by a further week (closing on the 16 February 2011).
Yours sincerely
Commenting Mr Allister said:-
“It is very clear the Finance Minister cannot and will not defend the legality of the consultation process for his own Budget. I laid out the legal testwhich a genuine consultation process has to meet and asked him for assurance that the Executive’s current process meets it. He was utterly unable to give that assurance, because he knows it is flawed and is proceeding on a wing and a prayer that no one challenges it in the courts. All the Minister could say is “I note your comments on the consultation process.” There was no defence of it or no attempt to reconcile it with what the courts expect.
“It is clear to me therefore that DFP knows the budgetary process is hopelessly flawed, but wishes to close their eyes to this reality. It is surely DFP’s obligation to ensure that the budgetary process which they launch and oversee is indeed lawful, as the validity of years of future expenditure depends on it. It is not enough for the Minister to wash his hands by saying “I outlined to the Assembly how the consultation process should proceed.” It didn’t proceed as he outlined, so who now is going to take responsibility for that?
“Nor, is it enough for the Minister to say “in my view it is our responsibility to provide the essential elements of accountability for government revenue and accountability”, when he knows that a genuine consultation process is an “essential element” of accountability, and has not been provided. This may be the minister distancing himself from the delays and failures of his colleagues, but as Finance Minister he doesn’t have that luxury. It is his budget. The buck stops with him, unless he wants to plead the Nurembourg defence that he’s only doing what the Joint First Ministers tell him!
“The fact that the Finance Minister does not even attempt to justify what is passing for consultation, knowing that goes to the heart of the legality of his budget, is a commentary in itself, either on how shambolic things have become in this dysfunctional executive or how arrogance has so taken over that the requirements of the law are beneath them. Either way, this is a scandalous situation, but one which will never be addressed in this Assembly because all are in and of government and any Opposition is outlawed.”
