Special Advisers face new rules when they take up their posts, but recruitment process remains in hands of Ministers

This afternoon finance minister Conor Murphy published a new Code of Conduct for Special Advisers and a code governing their appointment, and details of the paybands. These documents were discussed by the parties within the transparency and governance working group during the recent talks.

Special advisers will continue to be personal appointments by Ministers, with the Civil Service only becoming involved once the chosen name has been supplied by the Minister. Normal employment law applies to how a Minister recruits their special adviser.

Officials within the Department of Finance will determine which payband applies to each special adviser, with salaries in the two higher bands normally starting on the minimum.

1. up to £54,999
2. £55,000 – 69,999
3. £70,000 – 85,000

The lower overall maximum ensures that a special adviser cannot be paid more than their minister. A special advisor’s specialist knowledge about their new departmental portfolio will affect their level of salary. A list of the new special advisers and the salaries of those in paybands 2 and 3 will be published by the department when the recruitment and appointment processes finish.

Paragraph 13 of the new Code of Conduct is an example of going further than other UK jurisdictions:

13. Special Advisers must keep accurate official records, including minutes of relevant meetings, and handle information as openly and transparently as possible within the legal framework. Special Advisers must use official email systems for communications relating to official business. Exceptionally, where this is not possible, the Special Adviser must copy any message to their official email account. Information generated in the course of government business must be handled in accordance with the requirements of the law (including the Freedom of Information Act (FoI), GDPR and Public Records Act), regardless of how it is communicated.

15. Special advisers are required to declare details of gifts and hospitality received in accordance with the rules set out in the NICS Handbook. Departments will publish, on a quarterly basis, information about gifts and hospitality received by their departmental special advisers and details of special advisers’ meetings with external organisations / individuals.

16. Information will be published annually about the number and cost of special advisers, including salaries and any severance payments.

(emphasis added)

The Code of Conduct also explains what special advisers can and cannot do.

5. In working with other civil servants, special advisers can, on behalf of their Minister:

• convey to officials Ministers’ views, instructions and priorities, including on issues of presentation. In doing so, they must take account of any priorities Ministers have set;

• request officials to prepare and provide information and data for Ministers, including internal analyses and papers; and

• review and comment on – but not change, suppress or supplant – advice submitted to Ministers by civil servants

6. But special advisers must not:

• authorise the expenditure of public funds;

• exercise any power in relation to the management of any part of the Northern Ireland Civil Service, except in relation to another special adviser;otherwise exercise any power conferred by or under any statutory provision, or any power under the prerogative;

• be involved in the line management of civil servants or in matters affecting a civil servant’s career such as recruitment, promotion, reward and discipline; or

• ask civil servants to do anything which is inconsistent with their obligations under the Northern Ireland Civil Service Code of Ethics or behave in away which would be inconsistent with standards set by their employing department

Paragraph 12 forbids special advisers from leaking confidential information and says that “the preparation or dissemination of inappropriate material or personal attacks has no part to play in the job of being a special adviser as it has no part to play in the conduct of public life”.

The Code of Conduct emphasises that “the responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment. It is also the appointing Minister’s responsibility to ensure that their special adviser(s) adhere to this Code of Conduct.”

The Terms and Conditions for special advisers also make clear that severance pay will have to be repaid if reappointed as a Special Adviser or any other paid public role within the time span to which the payment covers.

Once approved by the NI Executive, an updated Ministerial Code and Enforcement processes are expected to be published soon as outlined in New Decade New Approach. In the future, the work of special advisers may be judged against the NI Civil Service Code of Ethics and the Standards of Conduct in the NICS Staff Handbook (with its associated complaints and disciplinary process), the future enforcement processes, and enforcement against their Minister who will be accountable for the actions of their special adviser.

TUV MLA Jim Allister plans to introduce a Private Members Bill to legislate for improved scrutiny and accountability for special advisers. He reacted to the finance minister’s written statement saying:

“I am firstly disappointed that the minister choose to issue this as a written statement, rather than making an oral statement to the House where relevant issues could have been explored through questions.

“Much of the content of changes to the Code of Conduct I do not disagree with, but the fundamental point remains: for a Code of Conduct to be given bite it needs to be complemented by legislation underscoring its provisions and providing for enforcement. My pending Bill affords the opportunity to turn the intent of the Code into reality.

“One area where I am disappointed with the minister’s statement is the retreat which it makes in the Code for Appointment. The requirement for the appointing minister to consider a widely based pool of candidates has been removed. This means the non-transparent DUP approach, as enunciated by Jonathan Bell to the RHI Inquiry, namely that the party told him who his adviser would be, is validated. This is a retrograde step which aids, not addresses, the party hack culture attending Spad appointments.

“I look forward to engagement on all these issues when my proposed Bill comes up for debate, but certainly nothing I see in Mr Murphy’s statement dissipates the need for my Bill.”

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Don’t forget that you can join me along with three ex-SPADs on Saturday afternoon in The Dark Horse to discuss this and the other issues facing the new Assembly and Executive. Tickets still available.