By Steven McCaffery
LEGISLATION aimed at effectively banning ex-prisoners from becoming special advisers to Stormont ministers is facing fresh political difficulties.
It was withdrawn from the Assembly agenda today (Tuesday), with its author Traditional Unionist Voice (TUV) leader Jim Allister revealing the role of the Civil Service Commissioners as an appeal mechanism under the new rules will require the consent of the Secretary of State.
The bill remains on course to become law, though in addition the SDLP is continuing to seek amendments to the legislation, with an element in the party arguing for it to be blocked if controversial aspects cannot be altered.
The bill emerged following the outcry in 2011 when Sinn Féin Culture Minister Carál Ní Chuilín chose an adviser jailed over the murder of 22-year-old teacher Mary Travers, seen as one of the most shocking killings of the Troubles.
The proposals would prevent anyone sentenced to five years or more in jail for serious offences from becoming a special adviser – known in government circles as `Spads’.
Mr Allister has proposed that the Civil Service Commissioners could handle appeals from any individual affected by the new restrictions, but this aspect of his blueprint has now involved the Secretary of State Theresa Villiers because the commissioners’ office remains a reserved matter and is not devolved to the Assembly.
A spokesperson for the Northern Ireland Office (NIO) said: “By paragraph 16 of Schedule 3 to the 1998 Act, the functions and procedures of the Civil Service Commissioners for Northern Ireland are reserved, which means the Secretary of State’s consent will be needed for the bill.
“Before making a decision on consent, the Secretary of State would need to consult and take into account the views of the Civil Service Commissioners.”
Mr Allister believes his bill cannot be derailed by the Secretary of State’s involvement. He said he did not expect a rejection from the NIO, but if one came he could select a body other than the commissioners to arbitrate.
The TUV leader said he was aware of issues within the SDLP on the legislation, but said: “I would be amazed if after all they said, they signed a Petition of Concern and do Sinn Féin’s bidding.”
The SDLP has allowed the bill to proceed so far through the Assembly arguing that the needs of victims should be aired.
If members concluded they could not support the bill, their options include voting against the legislation – though in that instance unionist numbers would nevertheless push it through.
The party could block it by signing a Petition of Concern with Sinn Féin which would ensure the bill requires the support of both nationalists and unionists.
The SDLP tabled a series of amendments last week, including measures to alter the bill’s retrospective powers, but the proposed changes were dropped.
It is understood, however, that further amendments could be proposed in an effort to see if the legislation can be made acceptable to sceptics.
The party’s finance and personnel spokesman Dominic Bradley said of the internal party talks: “We are exploring all aspects of the bill and all of the avenues that are open to us.”
Following today’s events in the Assembly when the legislation was delayed, Sinn Féin’s Daithí McKay asked if the draft legislation had hit a serious roadblock.
Mr McKay highlighted the issue around the proposed role of the Civil Service Commissioners and their position being outside the responsibility of the Assembly.
He said: “The bill is now in serious trouble. The Speaker should immediately clarify whether the bill is legally competent and within the remit of the Assembly.”
In 1984 an IRA gang opened fire on magistrate Tom Travers as he and his family left Sunday Mass in Belfast , killing his 22-year-old daughter Mary.
In 2011 Sinn Féin‘s team of special advisers at Stormont was found to include Mary McArdle, jailed over the attack on the Travers’ family, a move which was heavily criticised by bereaved relatives.
At the height of the controversy Ms McArdle gave a newspaper interview where she expressed regret over the murder, describing it as a tragic mistake.
But the victim’s sister Ann Travers was highly critical of the appointment and revealed how she felt physically sick having heard the news.
She supported the bill brought forward by Mr Allister and gave evidence to the Stormont Finance committee which is scrutinising the legislation and spoke of the deep pain felt by victims whose needs she said often appeared to be low on the list of political priorities.
She now sits on the Victims’ Forum, a group advising on the services provided to those bereaved and injured by the Troubles.
Mr Allister drafted the bill after the furore that followed the appointment of the Sinn Féin special adviser to the Department of Culture.
It was due to reach its Further Consideration Stage today at the Assembly, having previously passed four legislative hurdles and leaving it within two stages of becoming law.
Since the Further Consideration Stage is the last point at which amendments can be made, it is understood the stage was delayed to allow time to determine what, if any, amendments might be necessary to clear the way for a role for the commissioners.
Attorney General John Larkin previously indicated that the retrospective nature of the bill could leave it open to legal challenge.
But under the latest terms of the bill the Civil Service Commissioners would allow individuals to appeal on a number of grounds including that they could show contrition, that they had taken the views of victims into account and that they had assisted the police.
When the controversy erupted in 2011 First Minister Peter Robinson asked Finance and Personnel Minister Sammy Wilson to review arrangements for the appointment of special advisers.
Mr Wilson subsequently issued fresh security clearance regulations, despite Sinn Féin objections.
Republicans have claimed that the bill is against the spirit of the Good Friday Agreement.
Deputy First Minister Martin McGuinness has previously said he sympathises with the Travers family, but believes former prisoners have played a key role in the peace process.
Ministers are entitled to appoint Special Advisers and the review of the issue by the Department of Finance found that while civil service appointments are made on merit and after open competition, the merit principle does not apply to the appointment of Spads, given “their unique role and the personal nature of their appointment”.
A code of practice for such appointments was drawn-up in 1999 and approved by the Executive, giving the minister alone the “appointing authority” for his/her adviser.
The vetting and character checking policy normally applied to new recruits to the Civil Service did not apply to Spads, but was included in the regulations introduced by Mr Wilson.