Allister steps up pressure on Special Advisors
04 October 2007
Statement by Jim Allister MEP:
"I have been pressing the new regime for months on the issue of publicly-funded special advisers. After almost 5 months, and a complaint to the Ombudsman, I have now received a partial reply.
It is clear from this response that no checks have been conducted on criminal records and no security-vetting whatever has been carried out. Thus we have Party appointees, with the status of civil servants, running around exempt from the restraints applicable to all other civil servants and immune from having to declare if they are convicted criminals, even convicted terrorists. This is disgraceful, though on a par with a regime which itself embraces unrepentant terrorists at its very heart. Bearing in mind the scandal of "Stormontgate", what possible justification is there for exempting these individuals from any form of security vetting?
I note that despite me specifically asking as to "the protocols and arrangements" which exist in respect of the appointment of special advisers, OFMDFM tried to conceal the existence of a DFP Code of Practice on the subject, issued in March 2007. Why was this? Surely, this is a most pertinent document, which happily I had discovered in an earlier FOI application.
It is my belief that key requirements of this Code have been breached in several of the appointments, particularly by Sinn Fein. Among the rigorous requirements of the Code are that Ministers should consider "a wide field of candidates", that a job description should exist, that the process is documented, and that selection is made on sustainable and lawful grounds.
I have, therefore, written further to the Head of the Civil Service in searching terms. I have invited him to agree, in light of the Code, that it would not be acceptable if a political party either compiled the pool of candidates or made the choice? I continue, "Are you satisfied, in particular, that such did not happen in the case of Sinn Fein? I ask this, not least, because of the apparent lack of expertise in agricultural issues of the person appointed to advise the minister at DARD."
I am also pressing to know the full salary package of these 18 special advisers. As is clear from OFMDFM's letter this is something they are anxious to conceal. I trust I don't have to wait another 5 months for reply, not least since it has recently been confirmed by OFMDFM that the target date for replies is 10 working days!"
ORIGINAL LETTER OF 1 MAY 2007 ON SPECIAL ADVISERS:
1 May 2007
Dear Mr Hamilton
Please advise me of the protocols and arrangements which exist in respect of specialist/political advisers appointed by ministers of the incoming Executive.
Is their appointment in the gift of the individual minister, or are there any objective criteria applied and, if so, by whom. Are there any prohibitions, for example, criminal convictions or family relationship? Moreover, are they subjected to security vetting, or do they have to declare if they have ever been convicted of a criminal offence? Are they required to sign the Official Secrets Act? Is there information to which they can be denied access, and, if so, on what basis? What is the nature of their tenure of office and by what process, if any, and on what basis can they be removed?
Further, please identify each and every such adviser, along with their date of appointment, and advise me of the financial package relating to each, including salary, allowances (including travel), benefits in kind and pension costs and rights. In addition, can you describe the facilities afforded to each in terms of offices etc and advise the cost to the public purse of equipping and running same.
In so far as it is necessary, I rely on the Freedom of Information Act to ground this request.
Yours sincerely
James H Allister QC MEP
REPLY OF 20 SEPTEMBER 2007 FROM OFMDFM:
Mr James H Allister QC MEP
139 Holywood Road
BELFAST
BT 4 3BE
Dear Mr Allister
You wrote to the Head of the Northern Ireland Civil Service on 1 May requesting information about the Appointment of Special Advisers.
Special Advisers are appointed by Ministers, as the Appointing Authority, under the provisions of the Civil Service Commissioners (Northern Ireland) Order 1999. An Adviser is appointed to a situation in the Northern Ireland Civil Service (NICS) for the purpose only of providing advice to the Appointing Authority. Article 3(2) of the Civil Service Commissioners Order disapplies the principle of selection on merit on the basis of fair and open competition and it is ultimately for the Minister to decide how they select their Advisers.
In addition, you will wish to be aware that there are no prohibitions such as you describe attaching to the appointments. In particular, we wish to confirm that appointees are not security-vetted because their Ministers are not themselves vetted and Advisers are seen as an extension of the Minister; their contract binds them to the Official Secrets Acts 1911-1989. The main terms and conditions of Special Advisers are set out in the NICS Pay and Conditions of Service Code, the NICS Staff Handbook and related Civil Service Circulars.
All Special Adviser appointments are pensionable under the Civil Service Pension arrangements, although appointees may choose to opt out and be covered instead by a personal pension or the State Second Pension Scheme. Unless terminated earlier, Special Advisers' employment will terminate on the day on which the Appointing Authority, for any reason, ceases to be a Minister.
Details of any equipment and facilities provided to each Adviser is set out in the attached table. We can also advise you that the 8th May has been designated as the effective date of the appointment of all Advisers, with the exception of the Adviser to the Minister for Health and Social Services and Public Safety (4 June 2007) and the Advisers to the Junior Ministers
(25 July 2007). Salaries of the Advisers are currently being determined by each Department in the context of a remuneration policy for the Advisers which has been agreed by the Executive.
You also wrote to Nigel Hamilton on 14 June to ask about the role of civil servants and special advisers in issuing directions and instructions. This followed the release into the public domain of an e-mail sent by a member of the Minister for Regional Development's Private Office.
You asked first if the request relayed in the message would have been considered acceptable if received from a permanent civil servant. It has been the traditional and accepted role of staff employed in the Private Offices of Ministers to convey the views of Ministers to the Department and in this case it would have been acceptable for a civil servant to have directly conveyed the preferences expressed by the Minister to other staff.
You also asked whether special advisers have authority to directly instruct civil servants to undertake specific tasks, such as issuing the e-mail in question. Special advisers have no executive power to instruct civil servants directly, although it is not evident that this was in fact the case in the example you cite. It is, however, entirely appropriate for a special adviser to convey the views and requests of Ministers to other civil servants.
Yours sincerely
LETTER OF REPLY TO HEAD OF CIVIL SERVICE:
To Head of Civil Service
Dear Mr Hamilton:
Re: Special Advisers
As you are aware I wrote to you on this subject on 1 May 2005. Almost 5 months later I received a reply, though not from you.
Since the First Minister is one of those who may qualify as an "appointing authority", and since there are issues of oversight and how these appointments were made, I take the view that greater propriety would be seen to result if I communicated with you on this specific subject, rather than someone with a vested interest.
I have two preliminary queries. First, what was the reason for the inordinate delay in responding to my correspondence, something which, as a courtesy, I thought would have been dealt with in the "reply". Second, is the First Minister himself an "appointing authority", or in the case of OFMDFM is it a shared responsibility with the deputy First Minister? In other words who in fact and law appointed the special advisers in OFMDFM?
In regard to the reply, I am disappointed and somewhat surprised to note that, despite me specifically asking as to "the protocols and arrangements" which exist in respect of the appointment of special advisers, no mention was made of DFP's Code of Practice on the subject, issued in March 2007. Why was this? Surely, this is a most pertinent document. My first substantive enquiry of you, therefore, given your position as Head of the Civil Service, is whether you are satisfied that in each and every appointment the procedures, guidance and processes of this Code were followed.
In regard to the above substantive enquiry I direct you in particular, though not exclusively, to the following extracts from the Code of Practice:-
• The appointment of Special advisers is subject to Northern Ireland's employment legislation including anti-discrimination legislation.
• Its aim is to identify good practice and provide Ministers...with guidance on the provision of equality of opportunity and the avoidance of unlawful discrimination.
• it would be prudent for Ministers not to be overly prescriptive in their candidate field. They should take account, for example, of any potential imbalance of religious belief ..in the circles from which they are minded to draw someone for an appointment.
• The key element of this issue is that arrangements made and actions taken by the Minister as appointing authority are justifiable and untainted by practices which are discriminatory, either directly or indirectly, either consciously or unconsciously.
• Ministers should be careful therefore to make the selection on justifiable grounds, and to consider potential candidates on their merits.
• Ministers should ensure that they consider a wide field of candidates.
• each stage of the recruitment should be documented.
• a job description and person specification is a logical first step in the appointment process.
• the Minister should set out the requirements to be met by the person selected to fill the job...it is critical to ensure that objectivity is maintained and all the requirements are justifiable.
• In Northern Ireland it is unlawful to discriminate on the grounds of political opinion. While that is subject to the "essential nature of the job" exemption, Ministers are advised that the exemption is likely to be given a very narrow construction by the courts.
• a requirement that a candidate must be a member of the Minister's political party may be unnecessary and unlawful.
• The key is that the pool (of candidates) should be broadly based.
• When the Minister makes a selection from the pool...it is important that the selection is made on sustainable and lawful grounds and that the Minister's reasons are recorded.
• the Minister's Permanent Secretary should be informed of the choice, along with the reasons for it, in writing.
Do you agree, arising from the requirements of the Code of Practice, that it is imperative that each appointment is not only personally made by the Minister, but that the Minister is personally involved in compilation of the pool of candidates and in freely and exclusively making the choice from that pool? Thus, would you agree that it would not be acceptable if a political party either compiled the pool of candidates or made the choice? Are you satisfied, in particular, that such did not happen in the case of Sinn Fein? I ask this, not least, because of the apparent lack of expertise in agricultural issues of the person appointed to advise the minister at DARD.
Turning now to the content of the reply of 20 September 2007, whereas you say there are no prohibitions as to criminal convictions or family relationship, can you please tell me if any of the appointees in fact have criminal convictions and if any have family relationships to Ministers? If so, who are they, what convictions are involved and what is the nature of the relationship?
I note with dismay that the appointees are not security vetted, particularly if some might be convicted criminals. Since special advisers enjoy the status of civil servants (thus, they are more than "an extension to the Minister"), apparently with unrestricted access to papers, and bearing in mind the scandal of "Stormontgate", what possible justification is there for exempting these individuals from any form of security vetting?
I had asked about the salary and allowance package for each. I note salaries are currently being determined. Presumably, though, they have not been without salary and allowances since 8 May 2007, so please advise how much each has been paid and please undertake to furnish me with details of the package ultimately agreed for each. I would have thought the salary payable would have been set out in the letter of appointment of each special adviser. Is this not correct?
I had asked if there was information to which special advisers can be denied access and, if so, on what basis. Could I please have a clear answer to this question?
As civil servants, is there anything which distinguishes their ultimate accountability to you as Head of the Civil Service? In this regard do you consider it compatible with your position as their "head" if you do not know and are not entitled to know if any of them have criminal convictions, if this is the case? Wouldn't you know this of other civil servants?
Yours sincerely,
James H Allister QC MEP
