Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (First sitting)
The Committee consisted of the following Members:
Chairs: Sir David Amess, †Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Benton, Scott (Blackpool South) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Butler, Rob (Aylesbury) (Con)
† Davies-Jones, Alex (Pontypridd) (Lab)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Eastwood, Colum (Foyle) (SDLP)
† Farry, Stephen (North Down) (Alliance)
Haigh, Louise (Sheffield, Heeley) (Lab)
† Hanna, Claire (Belfast South) (SDLP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Robbie (Keighley) (Con)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Robinson, Gavin (Belfast East) (DUP)
† Sunderland, James (Bracknell) (Con)
† Walker, Mr Robin (Minister of State, Northern Ireland Office)
Jo Dodd, Sarah Ioannou, Committee Clerks
† attended the Committee
Daniel Holder, Deputy Director, Committee on the Administration of Justice
Professor Jonathan Tonge, Professor of Politics, University of Liverpool
Lilah Howson-Smith, former special adviser to Julian Smith at the Northern Ireland Office
Public Bill Committee
Tuesday 29 June 2021
[Graham Stringer in the Chair]
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
Before we begin, I have a few preliminary announcements. Hon. Members will understand the need to respect social distancing guidance, in line with the House of Commons Commission decision. Face coverings should be worn in Committee unless Members are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to email@example.com. Please switch electronic devices to silent mode. I remind Members—sometimes people forget—that tea and coffee are not allowed during sittings.
Today we will first consider the programme motion on the amendment paper, then a motion to enable the reporting of written evidence for publication and then a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can deal with those matters formally, without debate.
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 29 June) meet—
(a) at 2.00 pm on Tuesday 29 June;
(b) at 9.25 am and 2.00 pm on Tuesday 6 July;
(c) at 11.30 am and 2.00 pm on Thursday 8 July;
2. the Committee shall hear oral evidence in accordance with the following Table:
Date Time Witness Tuesday 29 June Until no later than 10.30 am The Committee on the Administration of Justice; Professor Jonathan Tonge, University of Liverpool Tuesday 29 June Until no later than 11.25 am Lilah Howson-Smith Tuesday 29 June Until no later than 2.30 pm Sir Jonathan Stephens Tuesday 29 June Until no later than 3.15 pm Emma Little-Pengelly Tuesday 29 June Until no later than 4.00 pm Mark Durkan Tuesday 29 June Until no later than 4.45 pm Alex Maskey, Speaker of the Northern Ireland Assembly; Lesley Hogg, Clerk of the Northern Ireland Assembly; Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly
Tuesday 29 June
Until no later than 10.30 am
The Committee on the Administration of Justice;
Professor Jonathan Tonge, University of Liverpool
Tuesday 29 June
Until no later than 11.25 am
Tuesday 29 June
Until no later than 2.30 pm
Sir Jonathan Stephens
Tuesday 29 June
Until no later than 3.15 pm
Tuesday 29 June
Until no later than 4.00 pm
Tuesday 29 June
Until no later than 4.45 pm
Alex Maskey, Speaker of the Northern Ireland Assembly;
Lesley Hogg, Clerk of the Northern Ireland Assembly;
Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 8 July.—(Mr Robin Walker.)
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Robin Walker.)
Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Robin Walker.)
The Committee deliberated in private.
Examination of Witnesses
Daniel Holder and Professor Jonathan Tonge gave evidence.
We are now sitting in public again and the proceedings are being broadcast. Before we start to hear from the witnesses, do any Members wish to declare any interests in connection with the Bill? No. We will now hear oral evidence from Daniel Holder of the Committee on the Administration of Justice, and from Professor Jonathan Tonge of the University of Liverpool. Before calling the first Member to ask questions, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion to which the Committee has agreed. For this session, we have until 10.30 am. May I ask the witnesses to introduce themselves, starting with Daniel Holder?
Daniel Holder: Good morning. I am Daniel Holder, the Deputy Director of the Committee on the Administration of Justice, a Belfast-based human rights organisation.
Professor Tonge: Good morning, and thank you to the Committee for the invitation to be here. I am Professor Jon Tonge, Professor of British and Irish Politics at the University of Liverpool and author of various books on politics in Northern Ireland.
Thank you very much. Minister, would you like to ask the first question?
“the current bill will provide a level of legislative reform intended to return the Petition of Concern to its intended GFA purpose.”
Could you tell the Committee about the limitations with the current mechanism and how provisions within this Bill will return the petition of concern to its intended purpose, in your view?
Daniel Holder: If we look back at the intended purpose of the petition of concern, it was very much linked to a level of scrutiny of what would be objective rights and quality standards. Every time a petition of concern is tabled, unless there is a cross-community vote to the contrary, it was to be referred to a special committee, the Ad Hoc Committee on Conformity with Equality Requirements. This serves a similar function to the Joint Committee on Human Rights at Westminster in actually scrutinising provisions of a contested piece of legislation that has been referred to a petition of concern against standards that include the ECHR, but also the Northern Ireland Bill of Rights. There is obviously a significant gap there, as the Northern Ireland Bill of Rights has not been put into place.
One of the problems, however, is that a committee has never been established as a result of a petition of concern. Instead, what has essentially happened is that the original intention of the petition of concern has been turned on its head somewhat. At times, it has actually been used not just for party-political purposes but to block equality of rights initiatives rather than as an equality of rights-based tool. Therefore, we do welcome the reform that is within both the New Decade, New Approach agreement and the Bill.
However, my recommendations to the Committee have identified one weakness, which is that essentially what is in the Bill will replicate what is in the current primary legislation regarding the establishment of the Ad Hoc Committee on Conformity with Equality Requirements. Unfortunately, to date that has not proved sufficient to ensure that standing orders are drafted in a way that ensures that the ad hoc committee is convened every time a petition of concern is tabled, as the Belfast agreement originally intended. That is one area I wanted to draw to the attention of the Committee, so that it can deal with that codification in the primary legislation to ensure that the commitment in the NDNA agreement to return to the original purpose of the Good Friday agreement is met.
Daniel Holder: Yes, we have given evidence twice to that committee—once in the capacity of the CAJ and secondly as co-conveners of the Equality Coalition, which is a network of equality and rights non-Governmental organisations that we co-run with UNISON. It has been extremely important that that committee is established, and it is progressing its work. We keep coming back to our evidence that really the Bill of Rights was supposed to be a safeguard to prevent the type of abuse of power, rights deficits and discriminatory decision making that characterised not only the old Stormont Parliament but patterns and practices that re-emerged and were instrumental in the collapse of the institutions in 2017.
So it is in some senses to us not surprising that safeguards that were envisaged within the agreement that have not been put into place have led to a situation whereby Stormont becomes unworkable and dysfunctional. I think it is only if these safeguards over the exercise of both Executive and legislative powers are properly put into place that the institutions should begin to function as they were originally intended to.
Daniel Holder: It is the case that since NDNA not a single petition of concern has been tabled. Its use has become, it appears now at least, politically untenable. There is a significant risk that the problems that were associated with the petition of concern will simply be displaced and picked up by the use of other veto-type mechanisms.
So there are two vetoes: one is the St Andrews veto, which is whereby any significant or controversial decision that a Minister has taken must be referred to the full Executive unless it is already within an agreed programme for government, but, of course, despite the draft being in NDNA, we do not have an agreed programme, so at the moment it means practically any decision.
We have managed to obtain under freedom of information the amount of times this veto was used in the first 11 months of the current mandate. It was used six times. On each occasion it was invoked by DUP Ministers. On the first three occasions it was used to block provision for early medical abortion services and engagement with women’s reproductive rights. On two other occasions, which were quite public, it was used, again by DUP Ministers to block proposals from the Health Minister for public health measures to contain the pandemic. On a final occasion it was used to block an SDLP proposal seeking an Executive position on the extension of the Brexit timeframe. Those six occasions are the same number of occasions that that particular veto was exercised during the entirety of the 2007 to 2011 mandate, so there is a significant risk of displacement now.
The second veto that we have noticed has been readily used is a provision in the ministerial code whereby the First and Deputy First Ministers both must agree on agenda items for the Executive, which in practice gives either a veto. Although we do not have a full list of the occasions it has been used—that has been withheld from the freedom of information requests that we submitted—we certainly know that it has been used. For example—as referenced in a UK Government report to the Council of Europe—it was used to block a timeframe for adopting the Irish and Ulster Scots strategies, despite them being legal requirements. It was used to block the draft budget from being on the agenda for, I think, around a month and a half of the Executive. Most recently, this month, the communities Minister has stated that particular veto was used 17 times to prevent legislation to close loopholes in welfare legislation being tabled for the Executive.
The Justice Minister has also referenced occasions where perhaps one of the two vetoes, we do not know strictly which one, was used to block for a period of time the Justice Bill being introduced into the Assembly that dealt with issues around gender-based violence. Indeed, the Health Minister has publicly stated that the gender veto was used to prevent, until this week, I think, legislation being taken forward on opt-out for organ donations. So, there is a real issue whereby we could deal with the petition of concern but be left with the same problem simply being displaced on to other veto mechanisms that are well outside what was originally intended by the Belfast Agreement, which was that such mechanisms would be safeguards scrutinised against rights and equalities standards, which would bring a degree of objectivity as to their use into decision making.
Daniel Holder: Of course, we were not in the room during the negotiations. It is possible that those who most used those vetoes perhaps resisted reforms to them. We don’t know that. But I think another factor in this is that these types of vetoes have not had the public profile that the petition of concern has had. When a petition of concern is tabled, at least it is done in full public sight on the Floor of the Assembly, whereas with the St Andrews veto and indeed the Executive agenda veto it is done within what is usually the secret world of Cabinet confidentiality of the Executive, although I think the frustrations as to the use of these particular vetoes have spilled over in the last year, which is why a lot more information about them is in the public domain.
Also, while Ministers have the St Andrews veto, the concepts of significant and controversial are deeply subjective, of course these are ministerial decisions that are still subject to judicial review. They have to be compatible with convention rights. If the Bill of Rights was in place, they would need to be compatible with the provisions of the Bill of Rights. For example, the veto over public health measures to contain the pandemic and the context in which it was exercised, we consider would probably have been unlawful if the Bill of Rights had been in place with the right to the highest sustainable standard of health integrated within it.
There have been other occasions whereby in judicial proceedings the use of these vetoes have been drawn out, but quite often they occur in secret, so a lot less is known about them.
Professor Tonge: I think it is hugely important, because in successive surveys that we have done—I have directed the last four Economic and Social Research Council Northern Ireland election surveys—every time we have asked the question, “What is your preferred mode of governance?”, direct rule has never come above 15% as a preferred option. Devolved power sharing is overwhelmingly a preferred option that comes back from each of those surveys—never larger, it should be said, than in 2019, which might be seen as remarkable given the hiatus in devolution from January 2017 until just after the election in December 2019. So the public have never lost faith with devolved power sharing. They have continued to support it.
Moreover, there were substantial majorities, both in the main communities and among those who say they are neither Unionist nor nationalist, in favour of the principles of devolved power sharing, including that key decisions should be taken by concurrent majorities among Unionist and nationalist representatives. So I think you would also conclude from the 2019 election that part of the reason that DUP and Sinn Féin lost support was that they were being blamed for the absence of devolution.
When we asked, “What is the most important issue at this election?”, restoration of the Assembly was listed fourth. There were others that were higher—Brexit and the crisis in the health service pre-covid, which of course was a derivative of the absence of devolution—but restoration of the Assembly came fourth in terms of the importance of issues, and was above that among those who said they were neither Unionist nor nationalist. So clearly it is of seismic importance to keep the devolved power sharing show on the road, and that is why I endorse the vast bulk, but not everything, of what is in this Bill.
Professor Tonge: No, because I run the general election surveys in Northern Ireland, but the Northern Ireland life and times survey has subsequently shown continuing support for devolved power sharing. That is an annual survey run by Queen’s University and the University of Ulster, and it again showed substantial support for devolved power sharing. That survey work is limited in the sense that it does not ask what we should do about reforms of power sharing. We have just heard about petitions of concern. I would endorse a lot of what Daniel said in respect of that.
The explanatory notes to the Bill talk about the petition of concern mechanism having departed from its intended purpose,
“which was to ensure that all sections of the community are protected”.
I agree, but I think petitions of concern are the least important aspect of the vetoes that often frustrate the public in Northern Ireland. I am not saying that they are museum pieces, but I think petitions of concern were a product of their time. They were a big feature of the Assembly from 2011 to 2016, with 115 petitions of concern tabled, albeit across only 14 Bills. The petitions of concern in which the DUP was involved were solo runs in the vast bulk of cases—82 out of 86 petitions of concern that the DUP signed.
However, given the reduction in size of the Assembly from 108 to 90 Members in 2016-17, and given the fact that I do not think it is conceivable that any party will get to 30 Assembly seats in the near future, the legislation before us is to some extent closing the stable door after the horse has bolted. To be honest, much as I welcome what is in the Bill in terms of the 14-day consideration before a petition of concern is tabled and the fact that there has to be two or more parties, petitions of concern are less of an issue than the forms of veto that frustrate the public, as Daniel emphasised in his evidence.
One other point I would like to make about petitions of concern is that if they are not about just a single section of the community but are about protecting all the community, is there not a case for a petition of concern to have to be signed by two parties that are not from the same section of community? Why does it not have to be signed by two parties from different sections of the community—nationalists and others, or Unionists and others, or Unionists and nationalists? That would really turn petitions of concern from communal protection into what they were intended for, which was to protect all sections of the community. That does not appear in the Bill.
Professor Tonge: That is true, but there is nothing to prohibit, for example, the DUP and UUP, or on the other side Sinn Féin and the SDLP, combining to table a petition of concern, which keeps that sense of communal politics. You might think that is perfectly legitimate—that, frankly, you have to have communal protection—but the Good Friday agreement and the explanatory notes to the Bill state that petitions of concern are
“to ensure that all sections of the community are protected”.
You would still be permitting communal protection, and perhaps specifically communal protection, by allowing two parties from the same side—I use those terms advisedly, obviously—to table a petition of concern.
Sure, but I would take it as all sections of the community including those communities, but not exclusive to those communities, therefore allowing any two parties to come together, or indeed Members from some parties and none. That addresses that point. I see where you are coming from. I think you have already answered my supplementary questions in the extra information you provided on petitions of concern, so I am happy to hand over to the Opposition.
Thank you, Minister. Before I move on to the official Opposition, I remind members of the Committee of the point I made before we started—that tea and coffee cannot be consumed during Committee hearings.
Daniel Holder: Thank you very much. We have engaged both as CAJ and as part of the Equality Coalition, which represents a broad section of groups from across the sector. In 2013 we published a report called “Mapping the Rollback?” about the unimplemented commitments of the peace agreement, 15 years on from the Belfast agreement. It examined and produced a matrix of what had not been implemented and the problems that had caused in terms of a return to some of the patterns and practices—for example gerrymandering within housing—that had beset the previous, pre-troubles Stormont institutions.
We also produced in 2018, as a part of a coalition, what we call the “Manifesto for a Rights Based Return to Power Sharing,” which looked at the restoration of power sharing but in a manner that power sharing would not simply be restored only to collapse for exactly the same reasons that led to its implosion in 2017. That was largely beyond the renewable heat incentive issue; it was issues around rights deficits, sectarianism in decision making and a lack of safeguards to qualify Executive power in the way that the agreement originally intended.
This year, 23 years on from the agreement, we did a significant stocktake on the back of the “New Decade, New Approach” report. We again mapped the level of non-implementation of commitments in a matrix and pushed on a call to end this endless cycle where we have renegotiation and fresh agreements, then bodies reneging on the commitments and the agreements, and we end up going back into an almost endless cycle of renegotiation. We looked specifically at some of the decisions that had been instrumental in bringing down power sharing and how they could have been prevented, for example if the Bill of Rights had been in place.
Daniel Holder: I think the best way of answering that is to give a couple of examples. In 2017, when the Assembly collapsed, one of the straws that broke the camel’s back was what was called the líofa decision, from the Irish word for fluency. This was a decision made by the then Minister for Communities, who is currently the First Minister, to cut quite a small Irish language bursary scheme—I think it was around £50,000 —that enabled children from lower-income families to attend the summer gaeltacht schemes. That caused a huge outcry; the decision was widely seen as sectarian and it was one of the issues referenced in the Deputy First Minister’s resignation letter.
All we have to do is look back. In the same way that Ministers are very unlikely to breach the European convention on human rights because they know that would be unlawful, had the Bill of Rights been in place that decision would have been easily challengeable as unlawful. I am thinking about a Bill of Rights as in the advice of the Equality and Human Rights Commission that was delivered in 2008. A Bill of Rights that reflected that advice would have had a provision that outlawed discrimination, for example, on the basis of language. Given the background, such a Bill of Rights would have prevented such a decision from happening.
That was not the only Irish language decision that destabilised power sharing. There was a decision, again primarily by a number of Democratic Unionist party departments—the biggest impact was certainly from the Department of Education—to tear up a long-standing trilingualism policy that was in keeping with the United Kingdom’s human rights commitments under the European charter for regional or minority languages. That is the Council of Europe treaty that was signed as a result of the Belfast agreement, with specific provisions for the Irish language and the Ulster variant of Scots. The Bill of Rights would have made that enforceable in Northern Ireland, so decisions by DUP Ministers in, say, the Department of Education or the Department of Agriculture, to scrap those policies and introduce English-only policies would not have been compatible with the UK’s international human rights commitments and would have been directly enforceable through a Bill of Rights, so that would not have happened.
Equally, many discussions have sapped energy out of the Executive discussion, because we have an endless cycle of very basic things that are present elsewhere in the UK being blocked. An example would be single equality legislation. There are big gaps in the equality law framework in legislation to prevent age discrimination against children, for instance, or provisions around harassment in the workplace on the basis of sexual orientation. These types of things have been endlessly argued about and endlessly vetoed, yet they would have had to already be in place by virtue of the Bill of Rights. It would have taken contentious issues off the table and enshrined them in what would essentially be equivalent in other countries to a constitutional framework, or the equivalent to what the Human Rights Act provides for convention rights. We think that would have provided a much more solid basis for power sharing, where a lot of these misuses of power could not have taken place.
Daniel Holder: Yes, we need mechanisms that ensure implementation, whether they are legal mechanisms, dispute-resolution mechanisms and so on. As the two exercises that we conducted show, both in 2013 and more recently, we end up in the endless cycle where agreements are made, significant provisions are reneged on and not implemented, and we have to return to another negotiation, usually to water down what was originally agreed in a previous negotiation. It is incredibly frustrating and makes the institutions unworkable and dysfunctional.
Professor Tonge: Yes, I think that is a serious concern. New Decade, New Approach refers to “caretaker Ministers” but that term does not appear in the explanatory notes to the Bill. During the debate on Second Reading, the only definition of powers afforded to caretaker Ministers were those
“set out in the ministerial code and in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial and cross-cutting.”—[Official Report, 22 June 2021; Vol. 697, c. 821.]
That is an Executive Committee, please note. That definition begs far more questions than it answers. First, what ministerial decision is insignificant? That is an obvious question to ask. Secondly, the formation of the Executive Committee is a moot point. It is far from clear in the Bill whether there would simply be a collection of individual Ministers, remnants from the previous Assembly and Executive, left in place for up to 24 weeks after the election, but d’Hondt is not run to re-establish those Ministers post-election. Obviously, the composition of the Executive Committee may change substantially if there is a change in party fortunes at that election.
Let us assume that the pre-election Ministers are left in place for up to 24 weeks. First, there is a democratic element: is that correct, given that the electorate might have spoken in a different way? More substantively, in terms of powers, is the question you asked: which ministerial decisions will they be able to take that are significant, controversial or cross-cutting? Will they be able to take decisions with financial implications in a caretaker capacity? I would seek clarification of those points from the Minister, because I am far from clear. The right hon. Member for East Antrim used the phrase “lame duck Ministers” during that 24-week period. It would be interesting to see what specific powers they will be able to use during that period of up to 24 weeks.
“any material which, in whole or in part, appears to be designed to affect public support for a political party.”
The rules governing purdah in the UK Government are outlined in the Cabinet manual, and civil servants inform their permanent secretaries if any requests by Ministers raise issues. Do you think that the Bill will provide civil servants with enough legal scope to push back on Ministers making inappropriate requests during a caretaker Administration?
Professor Tonge: Yes, I am comfortable about the Bill’s provisions in that respect. Actually, I think the most comprehensive part of the Bill is the updating of the ministerial code. It makes clear the need for the separation of party political from ministerial matters. In that respect, I am quite sanguine about the Bill doing exactly what you suggest.
Professor Tonge: Therein lies a much bigger area: how the code of conduct will actually be enforced, what will happen and whether we will simply see the traditional divide on party lines over its implementation.
There is one phrase in the code of conduct that slightly alarms me:
“Ministers must…operate in a way conducive to promoting good community relations”.
No further definition is offered. What would constitute promoting bad or offensive community relations, as distinct from good community relations? To give one example, would a Minister who criticised Irish language provision while still implementing it be in breach of the code of conduct? Similarly, if a nationalist Minister praised aspects of a paramilitary campaign of the past, would that be seen as non-conducive to good community relations, and would sanctions against that Minister be available? It is far from clear, partly because it is ultimately a matter for the Assembly and the Executive to decide how to impose sanctions.
I think that what is contained in the Bill is very laudable in updating the ministerial code, but the devil will be in the detail of implementation. Whether implementation is actually possible in terms of sanction against a Minister who is seen to be in breach of the ministerial code—I think that that is where the difficulty will lie. I am not convinced that Westminster can necessarily resolve that difficulty.
“the Secretary of State may”—
only “may”, rather than “must”—
“issue a certificate”
outlining the date for a poll, even if the conditions for cross-community representation are not met. Do you think that that is a mistake? Is there a risk of undermining the principles of the Good Friday agreement if an Executive drawn from one community is able to limp on at the behest of the Secretary of State?
Professor Tonge: I think that there has been a lot of limping on in the Assembly and Executive over the years, and there has been an arbitrariness about when a poll should be called. We have had, in effect, two pieces of emergency legislation by previous Secretaries of State to prevent an election from being called and to update the rules because an election was due.
In a broader sense, I welcome the fact that the current time periods of either seven days or 14 days are being extended to either 24 weeks or 48 weeks, to keep the show on the road. You simply cannot afford another collapse. I understand the principles behind the Bill, so I do not think that we need to be too formulaic about giving the Secretary of State some discretion in that respect. The main purpose of the Bill is clear here: to allow greater cooling-off periods before another election is called. If that means giving the Secretary of State greater flexibility, so be it.
Professor Tonge: I think it is outdated. It may soon look very outdated, depending on the performance of Alliance in the Assembly election that has to take place by 5 May next year.
The communal designations more broadly are period pieces; they were of their time, and they were necessary in their time. Is the Assembly ready for the complete abolition of communal designations? It would be a bold step, but it would probably be laudable. You could still build in protections. The obvious way forward, if you get rid of communal designations, is to have qualified majority voting, where, for example, any controversial measure would have to be passed by 70% of the Assembly as an entirety. There is something horribly reductionist in requiring parties in the “centre ground” to designate as “Other”; I know that Alliance refuses to use the term “Other”, as reductionist, and use that term as a “community first” label.
Have the communal designations served their purpose? Yes, over time, but I think there is now a clear case for a fundamental review of Assembly rules to see whether it is still necessary to have those Unionist and nationalist designations. Particularly if you got to the position after the next Assembly election in which you had a First Minister from the largest party and the largest designation who may be nationalist, but for example, Alliance was to be the second largest party, but because it was not from the next largest designation it was not able to provide a Deputy First Minister, the case—which is already mounting—for a reappraisal of the rules would become quite overwhelming.
You can make the case against that by saying, “If you look at the recent Assembly elections, you’ve got 85% of voters still voting for Unionist or nationalist parties”, or certainly in excess of 80%. However, if you look at the electorate as a whole, when we have done the last four Northern Ireland election surveys, the largest single category of elector now—as distinct from voter—is a person saying they are neither Unionist nor nationalist. The life and times survey from two different universities shows exactly the same. That is the largest single category: bigger than the Unionist category, bigger than the nationalist category. The Assembly rules as they are are in denial of that.
You might say, “Well, the percentage of actual voters who are still Unionist or nationalist is still high”, but in terms of the electorate as a whole, there is a case for reform of the rules, and the fact that you have those communal designations is a deterrent to people voting in Northern Ireland who say they are neither Unionist nor nationalist. When we ask non-voters the question, “Why didn’t you vote in the last election?”, those communal rules come across loud and clear as one of the most significant deterrents to people participating in the electoral system, so in terms of the health of the body politic, I think there is a growing case for getting rid of the communal designations. Whether Unionist or nationalist politicians would concur with that is a very moot point.
Thank you. James Sunderland, and could you state which of the witnesses your question is to, or whether it is to both of them?
Professor Tonge: I am happy to go first. It clearly was used as a veto between 2011 and 2016. It was often used as a solo run: the DUP, because of its very considerable Assembly strength during that period, was in a position to veto not particularly the social and moral issues with which the veto is often associated—although they did use the veto for that—but welfare reform legislation. That was the most common form of veto; that was where the veto card was played the most. Some 115 petitions of concern were tabled, 86 from Unionist parties and another 29 from Sinn Féin and the SDLP, across just 14 Bills. When you think that during that period, something like 70 Bills were passed by the Assembly between 2011 and 2016, it was very much only a minority of Bills for which the veto card, if you want to call the petition of concern that, was used. Petitions of concern were tabled for only a relatively small percentage of Bills, but it was used quite extensively during that period.
Of course, as soon as the Assembly size was reduced from 108 to 90 and no party could get up to 30 seats, the petition of concern faded considerably in significance. The six-monthly reports that now have to be produced on petitions of concern show clearly that it is simply not a veto that can realistically be used these days by any single party anywhere.
Daniel Holder: I suppose all I can add to that is just to concur that, yes, the petition of concern was essentially used as a political veto, rather than—as alluded to earlier—a mechanism whereby a particular measure or piece of legislation would be scrutinised against rights and the European convention on human rights.
The only other point to add is that, of course, the actual use of the petition of concern and, indeed, the other vetoes, while they have not been used in large numbers, really is the tip of the iceberg as to the broader impact they actually have, particularly not just with the petition of concern but with the St Andrews and agenda vetoes. You will have a situation where Ministers simply will not progress particular initiatives or measures because they know that they are likely to be vetoed. What is in plain sight is perhaps the tip of the iceberg of a much broader problem in the way that what were supposed to be safeguards have been flipped on their head and are not used for their original, intended purpose.
Professor Tonge: Clearly, the Bill is laudable in how it deals will petitions of concern. It makes it much more difficult for parties, in one sense, to use petitions of concern, notwithstanding the fact that none of them has the Assembly strength to go solo in respect of petitions of concern. The message that comes from the Bill is quite clear: petitions of concern should be used only as a last resort and used to the benefit and for the protection of the entire community, not just communal interests. I return to the point that I made earlier: I would like to see petitions of concern confined to cross-community tabling, or at least having to go beyond your community, so it would have to be a POC from nationalists and others, or from Unionists and others, for example.
There is stuff in the Bill that is eminently sensible: the 14-day consideration stage before its deployment; the fact that the Speaker, or three Deputy Speakers, cannot be involved in tabling a petition of concern; the fact that a Minister would be in breach of the code of conduct if he or she supported a petition of concern, given that it went against Executive policy, so it encourages a sense of collective Executive responsibility—they cannot then go and grandstand on behalf of their party, which is a good thing—and the fact that a POC cannot be used at the second stage of a Bill, which is simply a discussion of general principles in the Assembly. All those things contained in the Bill are very laudable
Daniel Holder: From our perspective, the Bill represents significant progress in relation to the petition of concern. I reiterate the gap that I mentioned earlier, however: it does not appear to deal with codifying in primary legislation and ensuring that the Standing Orders will follow the procedure that was intended under the agreement for the special procedure committee being set up. Also, there is the broader risk that the problems associated with the petition of concern will simply be displaced elsewhere into, for example, the St Andrews veto.
Just to pick up on the caretaker Administration when the First Ministers are not in place, again, there is a significant risk of a legal lacuna and that Ministers will not be able to take any decisions that are significant, which, as Professor Tonge has said, could be practically anything, or indeed any decisions that are controversial, which is anything that anyone wants to make politically contentious. That could be particularly problematic where Ministers have to take steps to deal with legal obligations or human rights obligations, for example, but will be unable to do so, as those decisions would have to be deferred to the full Executive committee that essentially does not exist.
A further problem we have identified is that there are certain duties that were core elements of the peace agreement, such as the adoption, further to the legislation passed at St Andrews, of an anti-poverty strategy on the basis of objective need to deal with the patterns of deprivation that, in the past and present, have quite often fuelled conflict. That particular decision, and the strategies legislated for at the time of St Andrews to progress both the Irish language and Ulster Scots, are legal obligations on the full Northern Ireland Executive. Again, those obligations would go into limbo in the caretaker period where you have no Executive able to adopt them.
We welcome the provisions in the Bill that would strengthen the ministerial code. We would concur with Professor Tonge’s concerns, however, about the ambiguity in the term, “good community relations”, which is open to interpretation. In particular, it has been used in the past as a veto on, for example, new housing developments, on the grounds that the other community to that which has hitherto been dominant in that area may live in the house, and that is therefore not conducive to good community relations, which offends against the right to housing that should have been in place under the various peace agreements.
On the ministerial code and enforcement, it is worth noting that the private Member’s Bill of Jim Allister MLA, led to provisions whereby the Assembly standards commissioner now can deal with breaches of the ministerial code. I should declare an interest, in the sense that my organisation, along with another one, has already issued one such complaint that is under investigation, so it would not be appropriate to go into the details.
We have identified a potential ambiguity that may be of relevance to the Committee to the extent that the new provisions on enforceability just concern the code of conduct, not whether they also cover the pledge of office and broader provisions of the ministerial code. Our view certainly is, given the reference to the broader ministerial code in the code of conduct itself, that there should be a degree of enforceability of broader provisions. Others may take a different view, and that is possibly something worth exploring further.
Daniel Holder: Certainly. We have done a number of papers on this, which we have fed into the negotiations that led to the re-establishment of it. In summary, we think that what is in the Belfast agreement as the petition of concern was set up as a safeguard to ensure that all sections of the community are protected and can participate in the institutions. That was linked expressly to conformity with equality requirements, specifically, as I have said a number of times, the ECHR and the Northern Ireland Bill of Rights. The provision for cross-community voting was also linked to that.
The Good Friday agreement provides for a special procedure committee, which would be a committee with full powers. It would be established to examine and report on whether a measure or proposal was in conformity with equality requirements, including the ECHR and the Bill of Rights. That committee must be convened when a petition of concern is tabled, unless there is a cross-community vote to the contrary.
In our view, it is very clear that that was the original intention of the Belfast agreement. I do not think that the custom and practice of it not operating properly through this time is sufficient to suggest that that should be viewed differently. Essentially, the original intention of the agreement has been departed from. It is now, but was not supposed to be, essentially, a subjective political veto; it was supposed to be tied to more objective criteria.
We always go back to the fact that—plus sometimes the difference of views—you cannot just make up human rights, ECHR rights or the rights in the Bill of Rights. They would largely reflect the existing human rights commitments of the UK, albeit not in an enforceable format without the Bill of Rights. Therefore, you bring in a level of objectivity, with the same function that the Joint Committee on Human Rights would have, in that the special procedure committee may seek advice from the Human Rights and the Equality Commissions that were established under the Belfast agreement as to whether a measure or particular piece of legislation offends those standards.
Of course, there is a weakness, that a party or parties could just ignore the expert advice and the determination as to whether a particular measure breaches those equality standards and vote to the contrary anyway. However, the original intention was very much to make that linkage. It is expressly on the face of the agreement.
Daniel Holder: If you read paragraph 13 of strand 1 of the Good Friday agreement it says that, when a petition of concern is tabled,
“the Assembly shall vote to determine whether a measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis...the special procedure shall be followed.”
The agreement expressly says that the special procedure committee must be established each time a petition of concern is tabled, unless there is a cross-community vote to the contrary.
“The Assembly may appoint a special Committee”.
Is that correct?
Daniel Holder: I am fortunate to have the relevant paragraphs in front of me; yes, but—
You can take my word for it, Mr Holder. I will move on.
Daniel Holder: No, I do have the relevant paragraph in front of me but, Mr Robinson, that is referring to other occasions when the Assembly may establish this particular committee. For example, the special committee on equality requirements can be established for another reason. There is one example of its ever being established, for the Welfare Reform Bill. That was on the basis of a petition of concern, from a referral from the Bill Committee dealing with welfare reform. The Assembly can establish this Committee for other reasons, and you are right to point to that being permissive. However, it is not permissive when a petition of concern is tabled; it is mandatory, unless there is a cross-community vote to the contrary.
I have two Members indicating that they wish to ask questions, and there are nine minutes left, so I will move on.
If there is time at the end, but I want to see if we can get everybody in.
Professor Tonge: Briefly on that, the obvious solution to your last point would be to restrict the number of times any particular party can table a petition of concern. As I say, I do not think they will be key players anyway throughout the life of the next Assembly, or any Assemblies thereafter, because they have had their day. The obvious solution is simply to limit the number of times a POC can be played. There has been talk of limiting petitions of concern to certain types of legislation—I do not think that is a runner because it would very hard to define. However, why not only allow a party one or two opportunities to table a petition of concern during the lifetime of an Assembly? That would be a logical solution, so that only in extremis could any party play the veto card.
Daniel Holder: I think the risk of gaming the system is there, given what we have heard to date, and it would be helpful if that was constrained to an extent. At the same time, the time available will be helpful to allow the special procedure committee to sit and scrutinise a measure at that stage. Yes, certainly we would encourage a discussion on the broader reform of the provisions, including the designation provisions that have become a very crude instrument. Although they are termed as cross-community voting, they are of course not linked to any indicator of community background as such, but to Unionist or nationalist traditional political affiliation.
Sorry, Mr Farry. We are really running out of time. I am going to move to Colum Eastwood, so that every Member who has indicated that they wish to ask a question will have had the opportunity to do so.
We have another storm brewing around Irish language legislation, because whilst the Government here have said that they will introduce the legislation, that legislation is quite clear that some of its provisions will need to be implemented by the First Minister and the Deputy First Minister jointly. Do you see this as another potential crisis point in the process for the Executive and the Assembly, given the fact that it has already been touted as a potential bargaining chip to deal with some other issues?
Professor Tonge: Yes, I do see that as a problem, because the Ulster Scots/Ulster British commissioner and the Irish language commissioner have to be joint Office of the First Minister and Deputy First Minister appointments. One obvious stalling tactic would be disagreement, potentially from opponents of either, but more obviously from opponents of Irish language provision, to the appointment of an Irish language commissioner. An objection to the appointment of an Irish language commissioner could arise.
At the moment, there is not provision for the Secretary of State to intervene to make those appointments. I have already written that I can see a scenario in which legislation has to be passed again, assuming that the provisions of New Decade, New Approach on Irish language are formally accepted. I suspect that if the Secretary of State has to legislate for this come the autumn, the legislation would have to be amended to include the appointments, if necessary, of those two commissioners. Otherwise, there will be another Assembly impasse down the track.
Daniel Holder: My short answer is also yes, but it goes well beyond the issue of the appointment of the two commissioners. The Irish language commissioner, as envisaged by NDNA, draws on the Welsh model of a commissioner who produces language standards that are then, in the Welsh model, binding on public authorities. In the NDNA model, public authorities have to pay due regard to them, which is a weaker formulation. However, the language standards produced by the commissioner are subject to approval by the First Minister and the Deputy First Minister. Therefore, you again have the ongoing risk that they will simply be vetoed and not put into place, which will bring us straight back to the problem that we are trying to get past.
Certainly one particular area of focus could be looking at alternatives, such as whether the commissioner can approve their own standards, or whether they could be referred to Foras na Gaeilge, the body set up under the North South Ministerial Council language body under the agreement, to instead approve and formally incorporate those standards. Otherwise, yes, we could end up having commissioners appointed, including the Ulster Scots commissioner, who is set up in a different format.
Unfortunately, sometimes provisions for Ulster Scots are designed more around being a counterweight to Irish rather than thinking through what is actually needed to safeguard and preserve Ulster Scots linguistically. That in itself is a problem. That particular commissioner—rightly, because it would not be the right model—will not produce language standards. So, that concern over veto would not necessarily apply to that commissioner once appointed, but certainly in terms of the Irish language commissioner there is potential for, essentially, ministerial interference in the daily work of the commissioner, unless the legislation is amended.
Thank you. We have a matter of seconds left of the time allocated. So, may I take this opportunity, on behalf of the Committee, to thank the witnesses for the very valuable contributions that you have made?
Examination of Witness
Lilah Howson-Smith gave evidence.
Could you introduce yourself, please?
Lilah Howson-Smith: Hi. Good morning. My name is Lilah Howson-Smith. I was a special adviser in the Northern Ireland Office under Julian Smith, when he was Northern Ireland Secretary.
I will go to the Minister to ask the first questions.
Lilah Howson-Smith: Sure. I think that the most obvious impact was on public services delivery. You obviously had a situation where the civil service could authorise certain decisions, up to quite a low threshold, and authorise certain amounts of spending, but you basically had a situation where no new policy or structures could be pursued.
The way in which that impacted public services was basically most explicitly on the health service, with incredibly long waiting lists, but the impact also extended into education. We visited a number of schools, both at primary and secondary level, where there was just a sense of overall stasis. I think there was also a kind of frustration more widely about infrastructure issues, even extending to Belfast City Council, who we spoke to; they talked about issues around sewage that just had not been dealt with, because of the absence of Ministers.
So, I think it affected all aspects of life. It was very much the first thing that came up in all our meetings with civil society, business and border organisations throughout our time in Northern Ireland, before power sharing was restored.
Lilah Howson-Smith: Particularly with regard to the measures around elections and the sustainability measures, as they were characterised in the original agreement, I think they give the Executive and Ministers space and time to resolve various issues around power sharing, in advance of any need to bring forward an election.
As it is, at the current moment in time there is very little capacity for Ministers to work through even quite basic issues, in terms of policy programmes, in advance of an obligation falling on the Secretary of State to bring forward an election. So, I think the intention was specifically to give greater space and time for them to resolve those policy issues and personnel issues, to build some relationships in advance of an immediate decision by the Secretary of State to hold an election.
I also think that the measures around the petition of concern were specifically about building greater trust between the parties, in terms of the mechanics of policy making, as some of the other witnesses have spoken about. There was obviously a sense in which the petition of concern had been used as a veto or blocking measure by particular parties. While the new measures are maybe not as extensive as some of the parties wanted during the negotiations, the intention clearly is that the petition of concern once again becomes a measure of last resort, restored to its original purpose as it was conceived in the Good Friday agreement, rather than being a kind of blocking mechanism on moral or social issues, or even party political issues, such as welfare.
Lilah Howson-Smith: Of the measures introduced as part of the Bill, the petition of concern measures were the most discussed in the talks. I do not think they were necessarily controversial, but there was a disagreement or divergence of views between the parties on how far they wanted to go on that. It was not necessarily about any single party having a strong view on how they conceived the petition of concern being used in future, but there was a broader acknowledgment that the petition of concern had been used too much in the past, there was a need to reduce its use and therefore a need to signal that as part of the agreement.
Where the agreement landed and where the Bill is representative of that agreement is roughly where there was the most agreement between the parties, in that it could not be used on Second Reading votes and on standards motions, and that there is now a 14-day cooling-off period. That was all about basically making parties and individual MLAs consider whether it was an appropriate use of the petition of concern and whether it was the best way to do policy making, in terms of building credibility and trust between the parties.
Lilah Howson-Smith: Not at all. Definitely Julian and I worked alongside all the officials in the Northern Ireland Office—worked extremely hard to restore the institutions. I frequently reflect that, in the absence of an Executive, the covid pandemic and the public health crisis that has happened since is unthinkable. It is really difficult to think how the civil service in Northern Ireland would have been able to handle that with the limited powers it had at that time. That is not a reflection on their abilities, but the absence of ministerial decision making would have made it unthinkable. The fact that those institutions were restored in advance of the covid pandemic represents the fact that the Government took that extremely seriously, and that went right up to the Prime Minister.
Lilah Howson-Smith: It is exactly the point that you make in your question. We have had to rush bits of Northern Ireland-related legislation through, in part because of the absence of power sharing. You have the Executive formation legislation, which was always done on an incredibly tight timescale. I think rightly, some of the Northern Ireland parties objected to that, on the basis that perhaps there was not adequate scrutiny. More recent bits of legislation around victims’ payments and abortion, which we were involved in implementing, were also incredible difficult to implement because there was not broad consensus or buy-in from the other parties through a longer-term legislative process.
There is definitely an advantage to taking this bit of legislation through in slightly slower time, so that we can have discussions like this where we are able to discuss where things are missing or not clear, or can be clarified through implementation.
Lilah Howson-Smith: I understand that perhaps there is not total clarity about what that means. I think the point was that it was supposed to be agreed by the Executive once the legislation was taken forward by Westminster. The fact that the legislation is being taken forward by Westminster reflects the fact that amendments have to be made to the Northern Ireland Act 1998 and that this part falls within a reserved area, rather than the fact that there will not be an active process, I assume, with the Executive to discuss what this means in reality. I think there was tacit or implicit agreement between all the parties that there would clearly need to be clarity around that, and that there would be checks and balances on the fact that Ministers obviously would not be able to take decisions in a caretaker capacity that went beyond the normal remit of perhaps the types of decision that might be taken during a purdah period.
Howson-Smith: The intention was never that they would be able to make—yes, it depends how you define significant decisions, but the intention was always that there would be sufficient checks either within the Executive or by the Secretary of State that would mean that there was not the kind of significant decisions that would have broader implications for the cross-community nature of those decisions. I am concerned that you have characterised it as limping on. I take your point, but the reality is that it was supposed to just provide that bit of additional flexibility to the Ministers and in forming the Executive, where those decisions have been difficult to make or have not happened because the time periods are so short and perhaps it was not in everyone’s political interest to form an Executive within that short period of time. So yes, obviously, there is a flip side to that, but clearly there is also opportunity to avoid the type of situation that we fell into in 2017, where an Executive just is not formed for a long period of time because there is an election and then there has to be a series of talks processes to get the Executive and the Assembly back up and running.
Howson-Smith: In terms of the petition of concern, I do have some worries that perhaps we did not necessarily go far enough in ensuring that, for example, petitions of concern are not tabled on Bills that are allowing the Northern Ireland Executive to take border legislation that is compliant with human rights. For example, petitions of concern were previously used—or were likely to be used—on issues around abortion and that was a concern for me, that perhaps those measures did not give adequate protection. On that specific issue, Westminster is taking forward legislation and we are now in a process of implementation. However, there were some suggestions about potentially having more oversight from human rights bodies in that petition of concern process. I do not think that that necessarily would have been a bad thing. I think that would be quite valuable, given the previous types of things the petition of concern has been used for. However, I hopefully think that the changes that are in there will make parties and MLAs think twice about using petitions of concern in that way again.
Howson-Smith: As far as I understand it, there are no statutory limitations.
If there are no further questions from Members, I thank the witness for that interesting and valuable contribution.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Adjourned till this day at Two o’clock.
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Second sitting)
The Committee consisted of the following Members:
Chairs: †Sir David Amess, Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Benton, Scott (Blackpool South) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Butler, Rob (Aylesbury) (Con)
† Davies-Jones, Alex (Pontypridd) (Lab)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Eastwood, Colum (Foyle) (SDLP)
† Farry, Stephen (North Down) (Alliance)
† Haigh, Louise (Sheffield, Heeley) (Lab)
† Hanna, Claire (Belfast South) (SDLP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Robbie (Keighley) (Con)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Robinson, Gavin (Belfast East) (DUP)
† Sunderland, James (Bracknell) (Con)
† Walker, Mr Robin (Minister of State, Northern Ireland Office)
Jo Dodd, Sarah Ioannou, Committee Clerks
† attended the Committee
Sir Jonathan Stephens, Former Permanent Secretary at the Northern Ireland Office
Emma Little-Pengelly, Former DUP MP and former Northern Ireland Special Adviser
Mark Durkan, Former SDLP MP and Good Friday Agreement Negotiator
Alex Maskey, Speaker, Northern Ireland Assembly
Lesley Hogg, Clerk , Northern Ireland Assembly
Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly
Public Bill Committee
Tuesday 29 June 2021
[Sir David Amess in the Chair]
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
The Committee deliberated in private.
Examination of Witness
Sir Jonathan Stephens gave evidence.
We will now hear from Sir Jonathan Stephens, former permanent secretary at the Northern Ireland Office. Colleagues, we have until 2.30 pm. Sir Jonathan, I described you, but briefly please say something about yourself.
Sir Jonathan Stephens: Certainly. I am Jonathan Stephens. I was permanent secretary of the Northern Ireland Office from 2014 until February 2020, having previously worked in the Northern Ireland Office over a number of years from the mid-1980s.
Thank you. Colleagues, it is over to you to start the questioning.
Sir Jonathan Stephens: Fundamentally, there were no Ministers available to give direction and take critical decisions. The Northern Ireland civil service was left in a wholly unprecedented situation, which I know from talking to many of them they found intensely challenging and was not at all what they sought. Civil servants are trained to work for and support the Government of the day and Ministers and provide their advice to Ministers, who take decisions that civil servants then implement. Our colleagues in the Northern Ireland civil service were left trying to maintain the machinery of Government and trying to provide public services in the absence of ministerial decisions, and they found that increasingly uncomfortable as time went on.
Sir Jonathan Stephens: I think it does a number of important things. First, it fills in what you might think of as a number of loopholes in the original design of the Northern Ireland Act 1998, which simply did not contemplate the sort of situation in which we found ourselves in 2016.
Secondly, and perhaps most importantly, it provides time and space for the Executive or for party leaders to resolve fundamental differences, if and when they arise. As you will know, the previous scheme provided only for periods of either seven or 14 days for the formation of the Executive and the appointment of the First Minister and the Deputy First Minister. We went through those early deadlines very quickly indeed in 2016. We were left in the unprecedented situation of having no means of restoring the Executive without fresh legislation at Westminster.
It is important to say that these changes provide a number of mechanisms that will help in the resolution of fundamental differences, if they arise again. They provide greater assurance for continuity of decision making, but, of course, nothing is perfect. I have always thought that if there is absolute determination to bring about the collapse of the institutions, or such a deep and fundamental breakdown in trust between the parties that they cannot be restored, then no amount of clever constitutional provisions will get over such a fundamental breakdown.
Do you think it is fair to say that the New Decade, New Approach agreement was largely imposed by the two Governments at a very opportune moment in the political process? The three largest parties had had a difficult election. We had a nurses’ strike and then the two Governments struck, and got Stormont back up and running again. That goes to the heart of your point that if we do not have political parties willing to work the system and work together, no clever constitutional construct can stop them collapsing it. Do you think there is more that we could have done as part of those discussions? I am particularly thinking about the way in which the First Minister and the Deputy First Minister are appointed.
Sir Jonathan Stephens: I would not use the word “imposed” because, at the end of the day, it was the decision of all the main parties in Northern Ireland to re-form the Executive. Yes, it was on the basis of the proposals put forward in New Decade, New Approach, but each party was free to take its own decision on that. From my point of view, when the document was published there was no certainty as to how parties would react and whether it would provide a basis for forming the Executive. We very much hoped so, but there was no certainty.
It reflected extensive discussions, of which a number of people on the Committee will have close memories, over many years, but most recently over the period of months from the calling together of the most recent session of talks, following the tragic murder of Lyra McKee. Again, there was very strong input from the parties. Although the proposals were the proposals from the Governments, they reflected very considerably the input of the parties. They were our best judgment as to where agreement lay.
On the First and Deputy First Ministers, I am conscious that parties have a number of different views on that. There are a number of parties that think that the original arrangement under the Good Friday agreement for the election of the First and Deputy First Ministers on the basis of cross-community consent should not have been changed after the St Andrews agreement. Other parties who were critical of the St Andrews agreement formed and participated in devolved government on the basis of that.
The Good Friday agreement was now more than 20 years ago. It was designed with one situation and set of scenarios in mind. As ever, the world moves on and change comes. It is coming in Northern Ireland, and there will come a time when it will be right to look at some of the fundamental arrangements within that agreement and consider whether they still best serve the people of Northern Ireland and adequately reflect the current situation in Northern Ireland. However, that would be quite a major task to undertake, with possible renegotiation of key aspects of the agreement. It is not a task that, personally, I think is quite right for now.
Sir Jonathan Stephens: In a sense, I agree with you, Mr Farry. I was indicating earlier that there had been significant change in Northern Ireland. At the time of the Good Friday agreement, the assumption was that there was a Unionist majority community, a substantial nationalist minority community and a relatively small but steady component who did not identify with the others. Since then, the situation has changed. It is more like two substantial minorities with a much larger, more significant and growing number of people who choose not to identify with either.
Over time, I think that will mean that a number of the arrangements need to be looked at again and examined. I am just conscious, having participated in a number of those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, there is a lot to be said for anticipating, rather than reacting to, crises, but Governments across the world, not least in Northern Ireland, have a number of crises right now to respond to. I simply suggest that right now does not seem to me to be a good time to undertake that significant and mammoth task, but I would be surprised if at some point in the next 10 years it is not on the agenda.
I do not know whether you had the opportunity to hear the evidence session this morning. Some questions were raised about the lack of detail in the Bill as to what safeguards are in place if Ministers are in position and there is a difficulty in forming an Executive. You will know that the discussions during the negotiations focused on safeguards for issues that are significant, cross-cutting and controversial, which would ordinarily therefore go to the Executive, but with no Executive sitting, those decisions could not be made. It appears in one sense that there needs to be further detail in the Bill on what the pitfalls might be. One aspect that did not come out in the evidence this morning was the fact that Ministers normally operate after having gone through a process of reaching consensus on a programme for government. Any Minister without an Executive could therefore continue to bring forward decisions on that basis, and perhaps juxtapose that with an inability for Ministers to act and the difficulty that the Northern Ireland civil service found itself in during that three-year hiatus.
Sir Jonathan Stephens: The fundamental position is that the Bill essentially provides for a form of caretaker Administration in the absence of the formation of a full Executive. Without an Executive Committee or an Executive meeting—there cannot be an Executive without a First and Deputy First Minister—as you say, Mr Robinson, decisions cannot be taken on issues that are cross-cutting, significant or controversial. That in itself will be a significant constraint. During the absence of Ministers, cases were brought before the courts arguing that decisions had been reached without the required authority, and the courts policed that quite robustly. No doubt they will police these provisions equally robustly.
Although there might not be an Executive Committee meeting in place, there is likely to be agreement on a programme for government, even if it was of the previous Administration. That will provide an overview, as it were, of the direction of the Government under which a caretaker Administration would be able to continue to operate. I think there are protections in place, but I continue to come back to the point that no system is perfect, and there should be no doubt that the absence of a properly functioning Executive for the periods of time that could be possible under the Bill would itself have serious consequences, but at least we would not be in a situation where there was no direction and no decision making at all.
Sir Jonathan Stephens: I think that is where the provisions in the Bill for the Secretary of State to call an election in the event that he judges that there is no longer broad cross-community support are critical. That underpins the whole basis of government in the Good Friday agreement, which is that Government should have broad cross-community support. If one ended up in a situation in which there were Ministers of only one party, that would be very unlikely indeed to command broad cross-community support, and you would expect the Secretary of State to step in. I think there are protections against that.
I have also identified the fact that if there is no Executive Committee meeting, because there is no First or Deputy First Minister, the ability of Ministers to take significant, controversial or cross-cutting decisions is heavily constrained. They cannot take such decisions, and the courts have already demonstrated their readiness to step in if they think that that boundary has been crossed. So this sets up a mechanism in which this is a caretaker Administration keeping the business of government and public services going, but unable to take it in new, strategic directions. So I think there are protections in place.
Sir Jonathan Stephens: I think they are likely to be more effective than the existing provisions, which are seven days or 14 days respectively. As I indicated, where a fundamental disagreement arose, that was almost inadequate time even to get discussions going. Once that deadline was busted, there was nothing to fall back on. Of course, you may encounter a disagreement that is so fundamental that whatever amount of time you provide for it is inadequate, but the negotiations on the Stormont House agreement and the fresh start agreement both lasted roughly 12 to 16 weeks. I think that sort of period of time provides a reasonable window in which to seek to resolve fundamental disagreements, but at the end of the day it depends upon a willingness among the parties to get together to discuss, seek to understand and resolve those differences. More time helps, but it is not the complete answer
Sir Jonathan Stephens: The fundamental protection is the absence of an Executive if there is not a First Minister or a Deputy First Minister, meaning that significant, controversial, cross-cutting decisions cannot be taken by Ministers, as well as the readiness, as demonstrated already, of the courts to step in and rule that decisions are ultra vires—not valid—if they break that boundary.
If there are no other questions from colleagues, let me bring the Minister in again.
Sir Jonathan Stephens: Without the deal in place, although of course at the time we had no awareness that covid was just around the corner, it is absolutely inconceivable that Northern Ireland civil servants without ministerial direction could have responded to the covid crisis. I think it would have driven direct rule inevitably. Much of my career in the Northern Ireland Office has been about trying to find the basis on which devolution can be restored and leaders from within Northern Ireland can take decisions for Northern Ireland. I believe that that is a far better system of government for Northern Ireland, allowing Northern Ireland’s unique interests and concerns to be reflected by its own politicians and leaders.
Of course, over many years in the Northern Ireland Office I experienced direct rule, and direct rule Ministers from Westminster made the best of trying to take decisions for Northern Ireland, but I know they felt deeply uncomfortable at times taking decisions for a part of the UK from which they were not elected and where they did not reflect the local community. I do not think that I ever saw a Minister who did not believe that local politicians should be taking decisions for local matters in Northern Ireland.
The concern always was that, once direct rule were reinstituted, if it ever were, it would be enormously difficult and time-consuming to restore agreed institutions again. That would mean that there were real questions about the nature of Northern Ireland, how its society was reflected in its Government, and I think that would also be very bad for Northern Ireland. Although we did not know it at the time, it was incredibly fortunate timing that the agreement was reached just in time before covid hit, and meant that Northern Ireland was trying to respond to that crisis but with its own leaders and politicians, conscious of its own challenges and unique characteristics.
Sir Jonathan, were there any final remarks you wanted to make before we finish your evidence session and wish everyone well?
Sir Jonathan Stephens: No, thank you.
Thank you for our time; we are very grateful and it will help with our later deliberations. There will now be a 30-second break while we test the sound.
The Committee deliberated in private.
Examination of witness
Emma Little-Pengelly gave evidence.
Good afternoon, Emma, and welcome. Would you kindly introduce yourself to the Committee?
Emma Little-Pengelly: I am Emma Little-Pengelly. I have recently been a special adviser to the First Minister, but I am a barrister by training. I have been special adviser to various First Ministers since 2007, although I stepped out of that to be a public representative and Member of Parliament for a few years.
Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?
You know the Bill before us. Would you mind giving us your reflection on its provisions, the rationale for them as you see them, and whether you feel there are elements that have not been achieved or are worthy of consideration by the Committee?
Emma Little-Pengelly: My experience of the existing provisions comes from a more practical point of view, as well as the theoretical and legal aspects of the Belfast/Good Friday agreement and the Northern Ireland Act 1998. I had come in initially as a shadow special adviser to help prepare for the restoration of institutions back in 2007. That included working very closely with the drafters office and with machinery of Government elements within the Executive and the Departments in order to look at things such as the ministerial code, how the Executive should operate, and the guidance for Ministers and Departments in relation to what matters needed to come to the Executive. Also, it included issues such as the nomination of Ministers and the First and Deputy First Minister.
Over that period of time, from 2007, obviously we have had a number of significant issues and challenges. Very often they led to periods of negotiation. Much of those negotiations took place within the context of trying to talk about the technical details of the process in which we try to operate in Northern Ireland. It is a very challenging and difficult system to operate. It is a system where, at the very heart, arising from the Belfast/ Good Friday agreement, the key principle is consensus and inclusion. That is a very slow and difficult process for trying to come to decisions.
The key element to remember is that in Northern Ireland we do not have—and have never had for some considerable time since the Belfast agreement—a majoritarian system of government. Therefore, that principle is very much cooked into every part of the process, from the nomination of First and Deputy First Minister and what they can do, singly or acting jointly, to the way the Ministers operate in relation to the Executive. All of that is based on a process of consensus and a process of agreement. That of course means that at times we cannot get agreement, and that has been very, very difficult. Nevertheless, that is the system that we have had. It is the system that we have operated right up until very recently.
In more recent years, there has been a drive to change some of the elements of the Belfast/Good Friday agreement —in particular, around the concept of cross-community voting and consensus, and particularly around the safeguard mechanism of the petition of concern. When you look at the petition of concern, it is important to take a look, carefully, at the Belfast/Good Friday agreement. I listened to the evidence very carefully today. I strongly disagree with what was put across, for example, this morning by Daniel from the Committee on the Administration of Justice, in relation to the original intent of the petition of concern mechanism. I think that the proposal that this was supposed to be a very narrow issue, as opposed to it applying to all key issues, simply does not hold up to scrutiny.
I would ask everybody to take a look back at the Belfast/Good Friday agreement. The petition of concern is set out in the section referred to as Safeguards, and the Safeguards section that refers to the cross-community voting is entirely separate from the safeguard that sets out the ECHR and the equality protections. The cross-community component of that is set out in 5(d), under strand 1, and yet the ECHR and the equality severable obligations are set out in 5(c) of strand 1 of the Belfast agreement. Those are not conditional on each other; they are entirely separate. It was clear from the Belfast agreement and then the Northern Ireland Act 1998 that the cross-community consensus was to apply to all key decisions.
This is not just in terms of the basic reading of the Belfast/Good Friday agreement or the Northern Ireland Act. I think it is important also to look back at the Hansard for the passage of the Northern Ireland Bill in 1998 and the comments that were made about that Bill from all parties. I think the key thing here is that those commenting on that in the House of Commons were those who negotiated it. It was the Ulster Unionist party—David Trimble and others—along with the Social Democratic and Labour party representatives. It is very clear from reading the Hansard that no issues of concern were raised about the scope of the petition of concern and cross-community vote protections and safeguards as set down in the Safeguards section of the Belfast/Good Friday agreement.
Emma Little-Pengelly: When you look back to the operation of the petition of concern—again, I referenced, in terms of the passage of the Northern Ireland Bill, as it then was, in 1998, the fact that no concerns were raised about the scope of those particular provisions. But likewise, when the Northern Ireland Assembly was established under the First Minister and Deputy First Minister leadership of the Ulster Unionist party and the SDLP, no concerns were raised at that time about the petition of concern. It was still difficult. When you look back at the history of the Northern Ireland Assembly and the various crises that we have faced, of course it is difficult, because the ultimate aim of those provisions, and the provisions across the Northern Ireland Act, arising from the agreement, is that they are all based on consensus building.
We have heard some reference about the petition of concern being used as a veto, but in reality it is used in a way that reflects the fact that there is not yet, or no, consensus on particular issues, and those are key issues, so where a petition of concern is used, it is an indication that an issue has been pushed forward without consensus. That is why, when you look at the new provisions proposed in this Bill—the idea, for example, of a 14-day cooling-off period for a petition of concern is, I think, very welcome. Gavin will know as well as I do that—look, the sustainability procedures and processes as part of the New Decade, New Approach negotiations were something that the Democratic Unionist party pushed very, very hard. We pushed because we could see that it does not benefit the people of Northern Ireland to be in a situation of perpetual crisis, particularly if those crises are manufactured by, for example, the tactical resignation of a First or Deputy First Minister. Ultimately, we do need stability, and stability within a very difficult process to operate. I think the 14-day period, now within this proposed Bill, will allow a period for people to get together to try to find a consensus way forward. That may be through amendment if it is legislation, or it may be by some further or different agreement. But at the very heart of this is the idea that because the institutions were set up to be very inclusive, from the very beginning there was a concern that significant minorities should not be forced to be part of either an Executive or Government in Northern Ireland where they were subject to continual majority decision making.
That applied right up until the point at which Unionism was no longer the majority. We have since seen concerted moves to try to remove that safeguard for significant minorities. The concern there is that yes, it is a difficult and frustrating system, but in Northern Ireland ultimately this will only work if you have that maximum consensus. As I understand from those who negotiated the Belfast agreement, and right through to those who negotiated the St Andrews agreement that modified and built on some of those protections, that at the heart of that is the idea that significant minorities should not be excluded, and that consensus decision making is the priority over a quick and simple majority system, which would exclude those people.
Emma Little-Pengelly: I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.
I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.
In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.
Secondly, you and I will disagree about the purpose of the petition of concern and when it should be used and so on. You have said, now that Unionism is no longer a majority, there are moves to take away safeguards like the petition of concern. What did you think, then, when Arlene Foster suggested removing it as a mechanism altogether during the negotiations?
Emma Little-Pengelly: First, to be fair to the Democratic Unionist party, I should make it clear that I am not here as a spokesperson for the DUP, so I cannot comment on the particular issues of the current situation. What I can say is that the DUP, along with many others, has, over the years since the Belfast/Good Friday agreement, pushed for a better form of government, as you will be aware, very much around trying to put better democracy in that and a better system that is not so slow or difficult to try to get agreement through.
There is a real issue around protections and safeguards. It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. That is the system that was set up—purposely difficult, I suppose, one might say—to ensure that there was maximum buy-in. What we are rapidly seeing is that people now have a particular policy proposal, they get the majority for it and they want to push that forward, against the will of significant sections of the other community.
People need to get back better to fundamental consensus policy making. Potentially we have lost that over the years. As I said, it is slow but there is a benefit to that. When you look back to the original point about intent, it is important to point out that equality and human rights are very well protected, cooked in right across the system.
If you look back to the narrative around the Belfast/Good Friday agreement, including the discussions and the debates in the House of Commons on those matters, you will see that the key safeguards lay with the establishment, under the agreement, of the Equality Commission for Northern Ireland and the Human Rights Act, which at any time can give advice or perhaps even take a legal challenge against a Department or the Northern Ireland Assembly—certainly give advice on that.
Importantly, the Northern Ireland Assembly is set up but it does not have competence to deal with matters that would be in contravention of the European convention on human rights or equality legislation. I understand that your evidence will go on next to the Speaker. The Speaker will have a legal team, so it is not even a case of a discretion. The Northern Ireland Assembly, certainly even set down in the agreement and the Northern Ireland Act, emphasised and safeguarded even further in the Human Rights Act 1998, has no power to legislate in a way that is in violation of that. A piece of legislation should never be introduced where there is a decision by the Speaker’s legal panel that is in contravention of that.
What we have seen subsequently is that people will have a range of views about whether something is a breach of human rights, which is very different from whether it is legally a breach of human rights. Of course, that is an evolving issue. There are safeguards there already, but I would also point out that the party of which Mr Eastwood is a member did not raise any concerns about the scope of the petition of concern at the time of the passing of the Northern Ireland Act, nor in the first decade of the Northern Ireland Assembly’s operation, and the operation of the petition of concern. This is an issue that has emerged over the past number of years, on the briefing from the likes of CAJ and others. There was no indication on the record—Hansard or elsewhere—that there was a concern about this.
To go back to the Belfast/Good Friday agreement, the obligations under strand 1 5(d) are completely separate from the obligations under strand 1 5(c). They are severable. Of course, they can be linked through the special process, which has already been outlined to you, but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement that cross-community consensus was to apply to all key decisions.
If there are no further questions, I will bring in the Minister again.
Emma Little-Pengelly: Over the years, there has been some frustration about what some may perceive to be breaches of the ministerial code, and a lack of action against those. I think that the proposed changes are welcome, in that they really try to tighten up some of those provisions in relation to how they apply, but ultimately this comes down to two different issues, and I think this applies to all of the provisions in the Bill. These changes are designed to try to encourage better behaviour. For example, when you look at the move from seven days after a resignation to call an election to the rolling process of six weeks and six weeks, that is obviously something that was pushed for to try to encourage people to get around a table, with a series of deadlines to try to encourage a more structured process, I think to focus minds, and also to allow other people to come in and make their representations very clear to the parties that they want the Northern Ireland Assembly to continue, and about the issues that are important to them, as opposed to—as I have said—a tactical resignation.
However, ultimately, as some of the other witnesses have said, this will work only if there is a willingness for people to agree. We all have our issues that we feel very strongly about, and we will not always find consensus on those issues. Some of the people around the table will have been part of coalition Governments before. Coalition Government is frustrating: you will not always find agreement on the way forward, and therefore those issues cannot be progressed. Ultimately, it is about the willingness of people to compromise—to get together to try to find a solution that appeals to everybody across the community. If we try to get into a space where there are only solutions that appeal to the majority, to the exclusion of a significant minority or to the exclusion of a community in Northern Ireland, we would be in a very difficult space in terms of stability, not only of the institutions but of Northern Ireland. I think those who worked on the Belfast agreement and those who worked on the St Andrews agreement recognised that and saw the value in having those types of safeguards to ensure maximum inclusion, because once we go down the route of—for example—removing the safeguards of petition of concern and consensus decision making and moving towards majority decision making, there is the risk of exclusion, and I do not think that is good for people, certainly not on the key decisions. I think it is all about balance.
Emma Little-Pengelly: Absolutely. When you look back over the 20 years of the operation of these mechanisms, they were there to build trust and confidence in all of the parties across all of the communities to be part of the institutions in Northern Ireland. That is why I highlight the difference between what has happened in more recent elections, where we now have a number of quite significant minorities, and what had happened for the majority of that period of time, which is that there was a Unionist majority. I think that those who drafted these documents and those, including myself, who have worked on this over the years recognised that this was not a majority Government situation in which Unionists, when they were in the majority, simply got everything they wanted and others got nothing.
That is why there needs to be, I suppose, better reflection about why these provisions are there, and the dangers of simply dismissing them. Rather than people jumping up and down and saying, “We are really angry because you are vetoing what we want”, they should sit back and reflect and say, “Look, there is clearly not consensus for this proposal. How do we find a consensus way forward? How do we look at getting a balance within what is happening and try to find a way forward that includes the maximum number of people?” You will never get absolutely everybody on board, and we recognise that, but we have been through really difficult situations before, such as the devolution of policing and justice and trying to work through a programme for government. We have to remember that the parties in Northern Ireland are not just very different constitutionally speaking, but they are very different in that they come from across the political spectrum, from left to right and all things in between. Any coalition Government with parties that are quite diametrically different in political ideologies will always be challenging. That is the challenge that we have; we have got through it in previous years. But we only get through it by getting round a table and finding the consensus way forward, not by majoritarily forcing other people, through the removal of the veto’s protections and safeguards.
Perhaps as an example of that, could Emma just reflect on the fact that, to my knowledge, since the Assembly was created in 1999 there has been no instance whatever of it legislating successfully at all in the human rights or equalities sphere? That has never happened and it has always fallen to Westminster to address those issues.
Emma Little-Pengelly: In terms of the provisions, I am not sure that if you look back at how the petition of concern operated from the Belfast/Good Friday agreement onwards—so, from 1998—what you will see would back up your analysis that the petition of concern is used mainly by one particular side of the community.
I say that for this reason. If you look at the bare figures, it does look as if it has been used much more, of course, by the Unionist-designated bloc than by the nationalist-designated bloc. However, that really only changed quite recently, in terms of the Democratic Unionist party obtaining 30 seats, which was the threshold in terms of signing the petition of concern. Prior to that, by default no party had over 30 seats. Therefore, despite the fact that it was not explicit within the petition of concern, the way that the petition of concern practically operated was that you required more than one party to agree with it, and that was including within designations.
I think that what you see, for example within the nationalist designation, is that you do not have and you never had the ability of one party to sign a petition of concern. Therefore, I would suggest that to try to get 30 signatures within that designation on policy issues is much more challenging, because of course you will have significant policy differences between those two parties. However, when the DUP obtained 30 seats or votes in the election, that of course made it much easier to use the petition of concern, and I think that is when some of the issues and concerns arose.
Also, when you look, Dr Farry, at the types of issues for which the petition of concern has been used, you will see that a significant number of those petitions of concern were used, for example, in relation to welfare reform legislation. Again, I think it is important to look at the nature of this issue. For example, it was not the case that the Unionist bloc were not sympathetic to the arguments around welfare reform and that we are not sympathetic to, for example, the proposed welfare mitigations; in fact, I think the opposite is true and that people were very sympathetic. But the concern around that issue lay fundamentally with financial aspects of it.
As we know, with welfare reform happening in Westminster, that had a direct impact in relation to what was happening in Northern Ireland. We were not going to get the hundreds of millions of pounds that would have been required to do the mitigations put forward by a series of amendments by other parties. So, the consideration there in terms of the use of the petition of concern was around this argument: “Look, if this passed in the Assembly, or if these legislative changes are proposed without consensus”—and there was no consensus on those amendments—“there would be a cost to the Northern Ireland Executive of hundreds of millions of pounds of additional money, which would have to be found from the block grant”.
Now, if you look back at that time, you had a DUP Finance Minister, so of course they would have been very attuned to what the concerns were then. But that is a decision that is often used to say that this is a misuse of the petition of concern. In fact, if it had not been used, those hundreds of millions of pounds would have had to be found from across other Departments. Of course, it did include human rights and equality issues because it would have meant, for example, top-slicing or taking funding away from the health service at that time, before it had been reformed, when it required even more money, never mind a top-slicing. It would undoubtedly have required other programmes to stop completely, but without any analysis by the Assembly of what the impact of those changes would have been.
In my view, a decision was taken that it was the responsible thing to do to use the petition of concern in that way to prevent the Assembly from voting on something that was going to cost hundreds of millions of pounds across Departments and have a massive impact on the everyday lives of individuals. Of course, as you know, having been a Minister in the Government, these things are all about balance, but they are also about responsibility and trying to assess the best way to do those things by talking them through and by consensus, not by forcing amendments through where there is clearly no consensus behind them, for example.
Emma Little-Pengelly: The only thing I would want to reflect on, I suppose, is really where these proposals came from. As I have indicated, it was the DUP that pushed very hard for the sustainability aspects of the New Decade, New Approach agreement, and we did that very much because of the experience of the preceding three years, where Northern Ireland was left in a really appalling situation of not only having no local devolved Government, but having no real direct-rule Ministers either, so civil servants were left in the position where they had to try to make decisions with no accountability, no democratic accountability and no guidance.
I do not think the Bill is in any way perfect, but I do think it is progress. The key thing is to try to ensure that there is not that incentive for others to bring the institutions down and cause instability in a tactical way, and to recognise that at times there will be major constitutional issues—we are seeing that at the moment with protocol, for example—and other issues of serious concern that we have had before. In those situations, of course it is absolutely right for people to raise their personal concerns, their party concerns and their community concerns to say, “This is simply not sustainable as a way forward.”
I know that that cannot be prevented and should not be prevented, but ultimately, this is a step forward to try to encourage greater stability, which is much needed across Northern Ireland.
Thank you for your time today, Emma. I am sure that I speak for everyone when I say that I wish you well.
Colleagues, we are a little early. We were meant to hear from Mark Durkan at quarter past three, but we are trying to make contact with him. We are ready to go, so we will bring things forward. I am beginning to think that this is all to do with the football match, but I could be wrong.
Examination of Witness
Mark Durkan gave evidence.
Welcome, Mark. I think this is a conspiracy to do with the football because we seem to be getting through things very quickly. We have earmarked 45 minutes for your session. Would you explain to everyone who you are and what you do?
Mark Durkan: I am Mark Durkan, and I suppose the reason I may be of interest to these inquiries is that I was one of the people who negotiated the Good Friday agreement. I also served in the institutions and the Executive, as the Finance Minister in the first Executive and then as Deputy First Minister elected by the Assembly in 2001. Then the Assembly was suspended in 2002. I also served from 2001 to 2010 as SDLP leader and as Member of Parliament for Foyle from 2005 to 2017. I was involved in various negotiations, including St Andrews, Leeds Castle, all the various Hillsborough talks and all of the other impasse negotiations that were around difficulties about interpretation and implementation of the Good Friday agreement and some of the subsequent agreements.
You are most welcome, Mark, albeit virtually. Our first question today is from Alex Davies-Jones.
Mark Durkan: I think it has damaged it hugely. For too long, Governments and others have tried to pretend it is as though the tyre is only flat at the bottom whenever we do not have the rights, provisions and promises of the Good Friday agreement upheld and implemented. It is not just that the Bill of Rights has not been implemented; we have seen regression in recent years because there were absolutely explicit commitments in the Good Friday agreement to the European convention on human rights, of it being accessible in the domestic courts in Northern Ireland and that it could be used specifically to allow the courts to strike down legislation in the Assembly.
Mo Mowlam worked very hard as Secretary of State and the areas of the agreement that she concentrated on most were the areas to do with rights, equal rights, equality and other safeguards. The fact is that she ensured that we had a strong Equality Commission for Northern Ireland and a strong Northern Ireland Human Rights Commission, which would be a way of giving voice and reality to those commitments on rights. The fact is that subsequent Governments adopted a position that said: “Well, we’re not really going to move on a Bill of Rights unless there is total agreement among the parties.”
The way the Good Friday agreement was written, it charged Westminster with the responsibility to legislate for a Bill of Rights, on top of its commitment to ensure that the European convention on human rights would apply to all public authorities and bodies. We did not get to follow through on that as far as the additional provisions of a Bill of Rights alongside the European convention is concerned, but in the post-Brexit legislation, we have seen holes being drilled into the commitments that are made there to the European convention on human rights.
Now, Ministers of the Crown have powers—it is almost like a form of direct overrule—to supersede decisions and choices at the devolved level in the name, for instance, of protecting the internal market of the UK. Those decisions can completely ignore any concerns around the European convention on human rights and a public body is actually forbidden to cite concerns about the European convention on human rights as to why it would not comply with what a Minister of the Crown has said. We have gone well off-road in what was envisaged in the Good Friday agreement in respect of rights.
One other thing I would say about rights, because this Bill touches on the whole question of petition of concern, is that it was the thinking at the time we negotiated the agreement that the petition of concern was not a petition of veto, it was not even a petition of objection, but that it would be used to trigger a special proofing procedure during which a special Assembly committee would hear specifically from the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. So the petition of concern was very much rights and equality focused. It was to be there as a proofing procedure to ensure rights were upheld. It was never there to prevent rights being legislated for, which is how it has turned round to be abused.
Alex, if I could just interrupt you for a moment. Mark, we can all hear you very well indeed, but our technical team here is not hearing you very well and cannot do anything to turn up the volume. Of course, we are trying to record your evidence for Hansard purposes. If you can try and get as close to your microphone, wherever it is, that would be helpful for those trying to record things here.
Mark Durkan: I think again that it is a key bit of the architecture that is missing. The Civic Forum was agreed by the parties in the strand 1 negotiations. We recognised that the Assembly was going to have many challenges and difficulties and agreed that it would be useful to supplement the elected representation in the Assembly with a strong Civic Forum. The thinking that some of us had was that maybe a Civic Forum involving a variety of stakeholders and public policy interests would be an outrider on some of the more difficult structural challenges that we would face in Northern Ireland in trying to rebalance our economy and make sure that a rebalanced economy also went along with a better balanced region, and also in tackling issues of a shared future and some of the big structural problems that we needed to change.
The idea was that work could proceed in the Civic Forum in ways that could frame issues for debate and choice that could then be taken up by the Assembly and Executive themselves. The fact is that the Civic Forum, when it was in operation, did start to do some of that work in forward strategic thinking, but unfortunately, while the Assembly was restored some years after it collapsed in 2002 after Stormont-gate, spy-gate—whatever people want to call it—the Civic Forum never was, and that is a loss.
Mark Durkan: I think we need progress in relation to the Bill of Rights. We need to try to clarify exactly what damage may have been done to the standing of the European convention on human rights and the reliance that citizens can place on it. A very direct promise was made to citizens in Northern Ireland about the European convention on human rights, but several of the Acts on the foot of Brexit have diluted that quite significantly, so I think that needs to be improved. While this Bill makes some improvements to the petition of concern—it weeds out some of the abuses in terms of how quickly or easily people table a petition of concern, so it is more qualified—it does not actually fix the problem with the petition of concern, which goes right back to the original 1998 legislation.
This is not a criticism of Mo Mowlam or of Paul Murphy, who brought that Bill through at the time, but that Bill translated the Good Friday agreement into statute in pretty short order, and the fact is that it did not properly translate what was intended in terms of the petition of concern. As I said earlier, the petition of concern was never to be a petition of veto, or even a petition of objection. It was to be there to trigger a special procedure, which the Assembly would then use and which would also call in the Equality Commission and the Human Rights Commission. It was to be joined-up scrutiny for rights and equality.
Of course, that has not happened and instead we have had the petition of concern being abused as essentially a dead-end veto, played almost as wild, as a joker at times, even against censure motions on Ministers. It was never intended to be so used. Some of the provisions in the Bill weed some of those bad habits out, but they do not correct the basic architectural mistake that the 1998 legislation never properly provided for paragraphs 11, 12 and 13 of strand 1 of the Good Friday agreement to be put into statute.
Mark Durkan: Thank you for that question, Clare. First of all, there is a problem with what you describe as a pre-emptive veto—in the past, I have used the phrase “predictive veto”. That certainly stems from, first, the petition of concern itself, because once parties start to moot the possibility that a proposal or a part of a Bill might be the subject of a petition of concern, that very much helps to stop a lot of the preparation and a lot of the thinking.
Even at the prelegislative stage, issues end up staying inside Government Departments, or on the Executive table even, and not going to the Assembly because people sense that there will be a petition of concern, so we end up with a bit of a stand-off, or gridlock. Issues that should be the subject of clear, concrete proposals often find themselves remaining in hidden contemplation at Departments because people are afraid of triggering the petition of concern process. In that sense, it has ended up being like a predictive veto. The petition of concern was meant to be there so that issues could be properly considered and perused because of their equality and human rights implications. It was not there to stop proposals being tabled in the first place, but it has had that effect.
In terms of what Daniel seems to have said this morning about the St Andrews veto, that refers to the fact that, as part of the St Andrews agreement, an additional point of veto ended up being created explicitly at the Executive, whereby three Ministers could call in any measure—even one being dealt with by another Minister—to the Executive. They could also then subject that to a cross-community voting requirement at the Executive itself. Again, in this provision, there was no reference to equality, rights or any grounds on which such a veto or call-in power had to be selectively used. It was not there; it was just wide open and free range. At the time of the St Andrews negotiations, I referred to it as a “drive-by veto” that would be used on top of the difficulties that we already had with the petition of concern. Of course, again, this has meant that rather than giving due consideration to legitimate and much-needed proposals—often those that have been directed or requested by the courts—the Executive are not able to do that simply owing to this additional veto, which was created as part of the St Andrews negotiation.
Mark Durkan: I do not think there was a point in principle in that change as such. The reason why it was an imperative for the DUP to seek that change was because the DUP did not want to be in the voting lobby along with Sinn Féin to elect the First and Deputy First Ministers. The Good Friday agreement very deliberately provided for the joint election of the First and Deputy First Ministers by the Assembly on an open-nomination basis. Any two Members of the Assembly could have been proposed by any Member of the Assembly to be First Minister and Deputy First Minister, or, as we would have preferred to have the wording, joint First Ministers.
The DUP were afraid that if they were going to vote for Ian Paisley, they would have to vote for Ian Paisley and Martin McGuinness together, and they would be in the yes Lobby in the Assembly, possibly on their own. The first move that the DUP and the two Governments made to try to resolve that momentary issue—it would have been the 10 or 15 minutes of a Division—was to say, “Well, we will force all the other parties into the Lobby with you.” From December 2004, the whole way up until St Andrews, it was the position of Sinn Féin, the DUP and the two Governments that the agreement was going to be changed so that no other party would get to be nominating Ministers under the d’Hondt rules if they had not also voted for the First and Deputy First Minister. This was an attempt to oblige the SDLP and the UUP to be in the lobbies with the DUP voting for Ian Paisley and Martin McGuinness, as the price of being included in ministerial office.
We as a party were very clear. We had negotiated elective inclusion into the Good Friday agreement. We had negotiated it there for everybody. Nobody had to even support the agreement to be eligible for elective inclusion; nobody had to vote for the First and Deputy First Ministers to be eligible for inclusion. When Seamus Mallon and David Trimble were elected, the DUP voted against and Sinn Féin abstained but they still got appointed Ministers. The plan was to change the rules to force the SDLP and the UUP to vote for them.
Whenever the DUP realised that neither the SDLP nor the UUP would comply with those terms, and therefore they were going to be in the Lobby on their own, they came up with this other device instead, that said, “Well, we will pre-assign, on an exclusive basis, the nomination of First Minister to the biggest party of the biggest designation. We will also privatise the nomination of the Deputy First Minister to the biggest party of the second biggest designation.” It was purely to remove that 15 minutes of discomfort for the DUP on one day.
What has happened since then has been that that change has meant that the Assembly elections have been tribalised even more deeply than they would have been, because they have been turned into a first-past-the-post race for First Minister, with the DUP saying, “You have to back us to make sure we are the biggest Unionist party and the biggest party, otherwise you could have a Sinn Féin First Minister.” Similarly, Sinn Féin are using it on the other side, saying, “Rub the DUP’s nose in it. We can take First Minister off them if everybody piles in behind us.” That is not what having proportional representation elections for the Assembly was designed to produce.
It has also meant that the office has had less of an air of jointery around it. Remember, they are nominated separately; they are not nominated or elected jointly. More fundamentally, there has been a weakening of the sense of accountability of the First and Deputy First Ministers. When the First and Deputy First Ministers are not appointed by the Assembly, they may feel less accountable to the Assembly. We have seen that with changes in previous years in relation to levels of Budget scrutiny. We also saw it at other times. For instance, there was a motion by the leader of the SDLP in the Assembly back at the end of 2016 around the renewable heat incentive. It was a motion calling Arlene Foster to account.
Arlene Foster’s attitude as First Minister was that she resented being called into the Assembly and she just parroted that she had a mandate from the people of Northern Ireland. She did not have a mandate from the Assembly. Her only mandate was to those who voted for the DUP. The DUP, in that previous Assembly election, got a smaller share of the vote than the Labour party, then in opposition in Great Britain, had done. The idea that this was a mandate from the people of Northern Ireland, not from the Assembly, created some of the tensions and some of what I would say—maybe unfairly—was evidence of arrogance on the part of the holders of that office. It all stemmed back to those St Andrews changes, which essentially privatised those two appointments simply to two parties and gave other parties no say in the appointment of Ministers.
I would contrast that with my own experience. To be elected as First Minister and joint First Minister, David Trimble and I had to have the support of not just members of our own parties but members of other parties. Indeed, some members of other parties had to even stretch to redesignate themselves to so elect us. You were always conscious that you owed your election and your level of accountability to all parties—not just to be obsessed with your own party’s mandate.
Mark Durkan: As I understand it, the New Decade, New Approach negotiations involved a push by some parties to say that there was a need to lock in stability or sustainability, and that the way in which the Executive had fallen after the resignation of Martin McGuinness was something that needed to be corrected or avoided. I am not sure that the scheme provided for in this legislation really does lock in stability. In some cases, it may lock in what might be a pretty untenable situation of a caretaker set of Ministers limping on in office.
In fairness, we have to accept that every time we have tried to solve some of the conundrums that come up with the agreement, we find ourselves coming up against the same basic problem. It is a bit like, “There’s a hole in the bucket, dear Liza”. Every time we try to solve one procedural or structural problem, we find ourselves coming up against another one, and in many cases we find ourselves coming up against the same basic question: is there really the will and commitment to truly honour and uphold disparate power sharing, both in the joint office of First Minister and in a power-sharing Executive? I am not sure that the proposals adequately answer that.
You can see, I think, that there is planning permission in the proposals for roll-over periods of every six weeks, potentially, where you have caretaker Ministers. No doubt kites will be flown that there are proposals to break through the impasse, and then we will find that that does not work, and there are more recriminations and still more roll-over of caretaker Ministers. How credible that will be, I am not sure. Whether the public will regard that as sustainability in the way that the parties that wanted the changes in NDNA talked about, I am not sure.
Then, of course, there is the issue about what is called representation—that the Secretary of State may step in, notwithstanding provisions elsewhere in the Bill, to call an election because he thinks that there is not sufficient representation among the Ministers who are in office to enjoy cross-community support in the Assembly. I think that was the phrase used in NDNA, but it is not used in this legislation. I assume that that is to address the possibility that one of the First Ministers could resign, other Ministers might resign, and in essence a shell of an Executive would continue, but it does not seem to me that the issue is properly dealt with. It seems to me that we are looking at planning permission for new brinks to be brought to teeter on, which is what happened even with some of the St Andrews changes, and some of the other procedural adjustments that have been made.
There is the question of what powers the Ministers will have. The suggestion is that their powers will be qualified and limited—NDNA said, of course, nothing significant or controversial. The question then arises of how many weeks you can really go on for on that basis, and who is to judge what is controversial. Do you have an Executive Committee that is able to operate? If we are talking about a period of either 24 weeks or even, as the Bill provides for, up to 48 weeks, where you have this kind of zombie Executive, what happens to the North South Ministerial Council? The Good Friday agreement provided very clearly that the Assembly and the North South Ministerial Council are so interdependent and so interlinked that one cannot function without the other. It seems to me that we have come up with a scenario of a period, possibly of up to a year, where you could have an Assembly functioning in some sort of quasi-status form and Ministers in a shell of an Executive, but without a basis for NSMC meetings to take place. That is not the institutional, interdependent, interlinked balance that the Good Friday agreement specified. The Good Friday agreement is explicit on the interdependence of the strand 1 and strand 2 institutions, but NDNA seems to have come up with a way of sustaining strand 1 in a way that could not actually sustain strand 2 at the same time.
Mark Durkan: In terms of the agreement, the Bill is meant to uphold and follow through on understandings that were reached by five parties and the two Governments in the NDNA, and that was the price of getting devolution restored. I look at the Bill not as something that is going to directly damage the Good Friday agreement. I would say it is something that does not go far enough to restore and repair the Good Friday agreement, to correct its standing. What is missing is the true correction correcting the original architectural flaw in the original 1998 legislation around the petition of concern. What is in the Bill about qualifying the use of the petition of concern is helpful and good, but it does not go far enough to correct the basic architectural flaw about the absence of the special procedure and the focus on equality and human rights, so that is something that could be improved.
Likewise, in terms of the appointment of First Ministers, I would prefer legislation that restored the factory setting of the Good Friday agreement and allowed for the joint election by the Assembly of joint First Ministers. That is going to be particularly important coming up to the next Assembly election when there will be all sorts of speculation about the possible permutations of numerical strengths of different parties. The terms that were fixed at St Andrews say that the biggest party in the biggest designation gets one nomination, and the next nomination goes to the biggest party in the next biggest designation, but they also provide for the fact that if the biggest party is not in the biggest designation, it will get to appoint the First Minister, and then the Deputy First Minister will go to the biggest party in the biggest designation. So, you can see areas where parties will speculate that they might score very highly in the election in terms of seats but end up, because of St Andrews, being disqualified from the exclusive nominating rights that are fixed. It would be much better if the whole Assembly, as elected at the next Assembly election, had the responsibility of jointly electing First and Deputy First Ministers, and if all parties had responsibilities for making the Government work, rather than being able to say, “It’s the problem of those two parties,” which are preassigned those two nominating positions by the random results of the election. Nobody else can be nominated to anything without the First and Deputy First Ministers being nominated.
The repair work that could be done and the prevention of some pretty serious anomalies or absurdities that could potentially arise after the next election have not been achieved by the Bill. I do not think that we should be precluded from thinking that through further, in order to avoid an impasse after the next election.
Mark Durkan: I do not fully accept that. The whole point about the petition of concern at the time was to ensure that we had—I used this phrase earlier—joined-up scrutiny and that we would make sure that there could be a connection between the quality of Assembly consideration and the advice or evidence that might come from the Equality Commission, the Human Rights Commission or indeed others.
Remember that the whole promise of the Bill of Rights in the agreement was very much a promise to citizens. That is one of the reasons I lament the absence of a Bill of Rights. When we were negotiating the agreement, our thinking was that the reliance on things like the petition of concern would reduce in circumstances where you had a live Bill of Rights and the good custom and practice of people being able to exercise their own challenges. Parties would not then have to rely on some of these other designation-related devices. It was there for a reason. Yes, the agreement and the legislation are clear about the obligations around rights, including the European convention on human rights. But the logic and strength of that has been watered down by much of the legislation that has happened since Brexit, because the European convention on human rights does not have the same strength of standing in Northern Ireland after some of those bits of legislation as it did.
We are in a bizarre situation whereby a public authority can say to a Northern Ireland Minister, “You cannot ask us to breach the European convention on human rights,” and they are within their rights to do so and to challenge any request, demand or pressure by a Minister or Department to so do. But they will not be in a position to so challenge a demand or instruction from a Minister of the Crown under, for instance, the United Kingdom Internal Market Act 2020. Those instructions can apply directly to Departments in Northern Ireland or to other public bodies. What was envisaged in the Good Friday agreement, which Mo Mowlam in particular put so much work into the wording and strength of, is now diminished. I would like to see it restored.
Mark Durkan: Yes, and the courts in Northern Ireland are given under the agreement the power to strike down legislation of the Northern Ireland Assembly on the grounds of incompatibility. They do not have the power to strike down legislation from Westminster, for instance. They do not have the power to strike down decisions that might be taken by a Minister of the Crown under something like the United Kingdom Internal Market Act. The decisions of a Minister of the Crown cannot be challenged in the courts. The UK Internal Market Act specifically provided for there being no challenge in the courts of Northern Ireland, or indeed in any other courts, on that basis.
That knocks a pretty big hole in the intended effect of the commitments on the European convention on human rights, which was provided for as part of the Human Rights Act. When negotiating the agreement, one of the reasons we were able to agree that the work on the Bill of Rights was something that would be for the future—for the next few years—was that a bird in the hand was worth two in the bush. The promise of the European convention being available and accessible in the domestic courts in Northern Ireland, on the basis of the Human Rights Act, meant there was a starting point—there was already a starter for 10—as far as rights protections, alongside the institutions, was concerned. But the intent and the expectation was that there would also be some additional rights that would go alongside the European convention and that, together, those rights and the European convention would constitute a Northern Ireland Bill of Rights.
It would have been good to achieve that. I think it would also relieve the temptation that parties sometimes feel to use devices like the petition of concern and other structural blocks in the name of saying they are reserving or protecting rights, when they are actually preventing decisions. The more robust and articulate a Bill of Rights that can be taken to the courts, the better for the decision-making processes.
Mark Durkan: The word in the agreement is not “unique” but “particular”. From my memory, that was because one negotiator in particular and one party would have voice-activated apoplexy any time anybody said Northern Ireland was a “unique situation” or “unique”. George Mitchell, Ministers of both Governments and all sorts of people found themselves seized with this fierce reaction to the suggestion that we were unique. “Particular” was, apparently, allowed, so that is what is there.
In the wording of the agreement, we did not specify—we did not give lists of examples of the particularities—and that was simply because we did not want to turn that section of the agreement into a sort of sin sheet, whereby we would each record or voice sensibilities about rights breaches or perceived rights breaches that had been endured, either through governmental or non-governmental and other actions.
Obviously, Northern Ireland does have very particular circumstances. At the time we were negotiating the agreement, there was a lot of talk around group rights. For instance, people were talking about that in relation to the parades issues, from two different sides and two different senses of rights. They were partly being talked about there, but we were not writing that specifically into the agreement.
Obviously, there is a statement in the agreement that makes a commitment—a kind of “from here on in”, future-looking commitment—around certain rights in Northern Ireland. Some of those touch on some of the issues that maybe are not dealt with in this Bill but are dealt with in other aspects of NDNA.
Mark Durkan: I think you can have both—it does not have to be an either/or. The forum having its own standing is good—it can take on work, particularly long-term work that may need careful framing of options and choices, and scoping out some of the issues and potential problems. We saw the forum as something that could do that, but we do not think it is the only form of civic engagement or input that there should be.
Let us not forget part of the success of a different aspect of the agreement in terms of policing—the Patten plan. We think the role of the independent members of the Policing Board was part of the strength of making that new beginning for policing happen and succeed during some very challenging times in the early days of the Policing Board and some challenging issues, in terms of the Omagh bombing report and the issues around, “I’m retiring; no, I’m not retiring”, by the then Chief Constable. The independents had a key role alongside the elected representatives. That is something that we can replicate in other ways. When it comes to prelegislative scrutiny in the Assembly, for instance, there is no reason why members of the public with particular policy insider expertise and credibility in given policy communities should not be there alongside MLAs.
There are different models and options, but there is certainly a big appetite among the public for it to be not just politicians alone who decide those things—or, more often than not, fail to decide them—and then recriminate those who are to blame.
If there are no other questions from colleagues, I call the Minister.
You have talked about the importance of the Good Friday agreement institutions. I absolutely recognise that. Do you accept that, since the NDNA deal was reached, we have seen the restoration of devolution? We have seen meetings of the British Irish Council and the British-Irish Intergovernmental Conference. We have seen those institutions functioning. It required an agreement, as you say, with the input of both the British and the Irish Governments and all five parties to reach it.
I appreciate there are aspects of the Bill that you and your party might feel ought to be different, and aspects of the St Andrews agreement architecture that you may not like. Do you accept, however, that in order to get the devolved institutions restored and the institutions of the Good Friday agreement itself properly functioning, we needed to get the buy-in of all five parties and therefore reach a deal that was acceptable to all of them?
Mark Durkan: Yes, I do. I said that I recognised that NDNA was an agreement by all the parties and it was the price that had to be paid for getting the institutions restored. I am glad that it is the case, too, as you say, Minister, that it is not just the Assembly and the Executive who have been operating; obviously, this week we had the British-Irish Intergovernmental Conference and other things, and I am very glad of that.
I am at a loss to understand why there was a decade when the British-Irish Intergovernmental Conference did not meet. I think that the two Governments gave a very bad example as the supposed co-guarantors of the agreement. The one bit of the agreement that falls particularly to them was not being honoured. The Governments were not always in the strongest place by appearing to criticise either or both Sinn Féin and the DUP for the failure to restore the Assembly for three years, in circumstances where the two Governments had failed in their responsibilities.
Yes, I recognise the limitations in the NDNA. The problem is that some of those limitations are being translated into statute here. The promise is that this legislation is there to give stability and sustainability, but rather than blocking instability, there is a danger that it locks in a sort of zombie Executive and creates difficulties between parties, as well as creating difficulties in which the Secretary of State can be implicated. I think that the more we get into those sorts of difficulties, the harder things are.
This Bill does not rescue us from the sorts of absurdities that might emerge with possible election results at the next Assembly election. With a bit of speculation as to the different strengths of different parties, you could have very serious difficulties trying to appoint the First Minster and Deputy First Minister, as provided for in the St Andrews agreement, due to the random nature of the electoral results in terms of the number of Assembly seats. Those seats determine who has the prescribed right to nominate the First Minister and who has the prescribed right to nominate the Deputy First Minister. It becomes a real problem, and that will be a problem that discolours a lot of the election debate. It is going to bring people into all sorts of difficulties due to technical voting, tribalistic voting and all sorts of other things. We should be free of that. We should be trying to correct the St Andrews damage there, and I make no apology for that.
I think that proposed new paragraphs (e), (f) and (l), set out in clause 4(1), provide useful additions to the ministerial code in relation to good community relations and equality of opportunity, and also in relation to public appointments, civil service appointments and the code of conduct for special advisers. Those are useful additions, although I do not know whether there is a particular reason why some of the original terms of the code of conduct are now being omitted. For instance, one requires Ministers at all times to
“ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way”.
That seems to have been omitted for the first time, and I do not know why.
Similarly, there are references elsewhere in the original version to users of services, but there is now no reference to users of services in the ministerial code of conduct. Even some of the opening language in the original version has been changed. It had required Ministers
“to observe the highest standards of propriety and regularity involving impartiality, integrity and objectivity in relationship to the stewardship of public funds”.
The opening language in the new version is arguably weaker. I am not aware of which parties either argued for or agreed that weakening of language.
Overall, this should be a strengthening of the ministerial code, alongside some of the other mechanisms to enhance the stability of the Executive. This is about trying to support them. I would agree with your evidence and that of the former permanent secretary, but what we all want to see is good will from all parties to keep the Executive fully functioning and to avoid a situation in which these mechanisms are required. It is very important that we see that.
With regard to the possibility of what you called a zombie Executive—the Opposition talked about caretaker Ministers—do you accept, given the experience that we had during the long period of the absence of the Executive, with civil servants really being put in an impossible position, that it is useful during any potential period of interregnum to have a Minister in place who is able to take decisions within their departmental remit, to allow for some accountability within that, on the basis of the programme for government on which they were originally put in place? That would allow for continuity of departmental decisions and give some cover to their civil servants in a future period in which we might be without a First Minister and Deputy First Minister.
Mark Durkan: I take that point, Minister, but you said “some cover”. Given that the decisions are not meant to be on matters that are significant or controversial, some cover might be quite limited. Some of the difficulties and frustrations that the civil servants had in the previous period of abeyance could equally apply, but they would have Ministers who are not at full power or status and who may not have the benefit of actually operating inside an actual Executive, in those terms. It will be a pretty limp-along situation. It will be a sort of twilight zone, both politically and administratively.
I know you will say that, with the roll-over periods and things like that, there are options for the Assembly, and that if the position becomes completely unsustainable, in terms of cross-community support, there is the power for the Secretary of State to intervene to call an election. However, I think we need to recognise that we are providing for a series of episodic crises and anomalies that can happen under this legislation. In Northern Ireland, people have a habit of being able to conjure up all sorts of problems and interpretive misapplications of provisions to create particular problems. We have seen that previously in relation to provisions of the agreement or in subsequent legislation. As I say, I do not expect that there could ever be perfection in a Bill like this, because there is a hole in the bucket, dear Liza, and people keep coming up against some of the same problems, no matter how many patches or solutions we come up with.
However, I think we need to recognise that this imperfection means that it probably will not be very long after the next Assembly election until you will be looking at possibly more remedial legislation to deal with the probably untenable situation that might exist around the St Andrews provisions for the appointment of First Ministers. I think it would be better to correct that now. I think it is in all parties’ interests that that is corrected, in terms of equalising the title of the offices of First and Deputy First Ministers, and also restoring the joint election by the Assembly, and maybe relying not only on parallel consent but on other measures of cross-community support. I think that would safeguard the atmosphere around the election debate and would safeguard the choices of the public from being pulled into all sorts of tactical voting considerations owing to a pretty tribalistic agenda around the totemic significance, supposedly, of the title of First Minister, which should not be a singular title.
Mark, even though I dare say that the Minister wants to continue the questioning, we cannot; you have, in fact, used up the 15 minutes we gained, and we are due to finish hearing your evidence at 4 o’clock. We thank you very much indeed for the time you spent with us this afternoon. I know I speak for everyone when I say that I wish you well.
Mark Durkan: Thank you, Sir David.
We will have a two-minute pause.
The Committee deliberated in private.
Examination of Witnesses
Alex Maskey, Lesley Hogg and Dr Gareth McGrath gave evidence.
In our last session this afternoon we will hear from Alex Maskey, the Speaker of the Northern Ireland Assembly; Lesley Hogg, the Clerk of the Northern Ireland Assembly; and Dr Gareth McGrath, the director of parliamentary services at the Northern Ireland Assembly. This is just to prove that I can read what is in front of me. I have introduced our three witnesses, but would you expand on your jobs, please?
Alex Maskey: My name is Alex Maskey. I am the Speaker of the Assembly. I was elected to this position in January 2020, when the Assembly was reconstituted on the basis of the NDNA agreement.
Lesley Hogg: I am Lesley Hogg, Clerk and chief executive of the Assembly. I took up post in 2016.
Dr McGrath: I am Gareth McGrath, director of parliamentary services. I took up my post with the Assembly in 2008.
Thank you for your time this afternoon. Which colleague would like to ask the first question? I call Mr Stephen Farry.
Alex Maskey: Thanks, Stephen—it is good to talk to you again. You have been missed in the Assembly for a while, let me tell you. Thanks to you, Chair, and to the Committee, for allowing me and my two colleagues Lesley and Gareth to appear today. Obviously, we want to make a number of points on the procedures and potential unintended consequences, given the slight difference between the scenarios that exist within Westminster and what exists and is pertinent to ourselves in the Assembly.
As Speaker and as officials, we have no view on the substance of the NDNA, or indeed the content or intentions of any of the aspects of it, but we are obviously very much aware of the fact that this Assembly was reconstituted on the basis of that particular agreement being reached by the parties and the Governments involved in those discussions at the time. I would have been involved in some of those conversations myself but, as you all know, once I take up the role of Speaker, as is the case for all Speakers, we immediately adopt a position of impartiality and independence and take no opinion on any of these matters. I am dealing with this, and my colleagues are going to deal with this, on an exclusively procedural basis.
We had a number of concerns. They may well be on a little bit of a cautious basis, but we thought that we would draw them to the attention of the NIO in the first instance. That is why we wrote to them, and eventually met them as well, to discuss this matter. A number of the issues of concern that we had were around the procedural and technical aspects of it, as I have said. It is about supporting the day-to-day operation of the Assembly, so our concerns are exclusively about making sure that any changes that occur through the Bill are clear and can be delivered practically.
I will just touch on a couple of the issues that you have referred to, Stephen. For example, the Bill includes triggering a consideration period of 14 days when a petition of concern is presented by 30 Members. As currently drafted, it would appear that this period of 14 days cannot be shortened in any way, which could present a significant issue when a vote on a matter that is the subject of a petition is time-sensitive—for example, a statutory rule, a legislative consent motion or some other types of regulation. In a more malign sense, it could also be used to stymie business: if people want to upset some of those time-sensitive matters, they could put in a petition of concern.
That might seem outlandish or unreasonable, given the way that the petition of concern has been dealt with in the past couple of years, but nevertheless we thought we would draw attention to the fact that this 14-day period might actually lead to an issue. In fact, any shortened period or any number of days set beyond where we are at the minute could lead to some of these unintended consequences, so we just want to draw them to the attention of the Committee, as we did to the NIO.
People also need to understand that the Bill requires that the Assembly Standing Orders provide for the implementation of the new arrangements for the petition of concern, which include a 14-day consideration period. It is not yet clear if or when the Standing Orders required would be agreed by the Assembly, and consequently the existing Standing Orders would continue to apply. We already have an example of this. We had a Bill passed some time ago, and there was not the political agreement within the Assembly on a cross-community basis to put that into the Standing Orders. That was the John McCallister Opposition Bill, so these things can actually happen in reality.
Moving on to the proposal that outgoing Ministers would continue to be in office for an extended period following an election or since an Executive was in place, the only comment to note is that the Standing Orders of the Assembly are clear that Committees are not established after an election until all ministerial offices have been filled. Therefore, if Ministers remain in office, there is the proposal for Ministers to exercise some level of function without the normal accompanying Committee scrutiny.
Finally, I want to comment on the proposal to prohibit the Speaker and Deputy Speakers from signing a petition of concern throughout all of the mandate. In relation to the Speaker, Stephen, you will of course know that this simply puts existing practice into law, but in relation to the three Deputy Speakers, the position is different. As currently drafted, by prohibiting a Deputy Speaker from signing a petition of concern even if they would not be chairing that item in that capacity, there is the potential to deter Members from serving actively as a Deputy Speaker, and occasionally parties may be reluctant to allow one of their Members to serve as a Deputy Speaker if they cannot sign a petition of concern throughout the mandate.
Intentionally or unintentionally, that could impact on the inclusivity of the team of Deputy Speakers who work with the Speaker, on the basis that if Members cannot sign a petition of concern throughout the whole of the mandate, as I say, some individual Members may have some particular issues of interest on which they would wish to reserve the right to do that. It may put them off, or indeed it may put the parties off, given that we need 30 Members now to sign a petition of concern. No party at the moment can deliver those 30 signatures on its own.
Parties may be a bit reluctant to allow their Members to sign petitions of concern, which could affect the inclusive nature of having Deputy Speakers from across the current main parties. We were just trying to set out to the Committee and the Northern Ireland Office that we want to avoid situations where the Speaker and officials would have to resolve any ambiguity or deficiency in any of these provisions.
We are happy enough to come back in if there are any other issues that we have left out. Maybe I will ask Gareth, in the first instance, if he wants to add anything.
Dr McGrath: Mr Farry will recall from many discussions of petitions of concern over many years that the devil in these matters is in the detail. It is almost impossible to envisage all the scenarios that could be captured in relation to the 14-day period. As Mr Speaker mentioned, a number of matters would be obvious to us, such as statutory rules, prayers of annulment and legislative consent motions, but there may be a plethora of other statutory motions, as I would call them, in primary legislation throughout the statute book. It is quite difficult to say, “If it isn’t 14 days, is it 10 days or seven days? What is it?” From that perspective, some sort of mechanism that could take into account when a statutory deadline will impact on the 14-day period would be helpful. It would be almost impossible for me to get into defining that in more detail.
Alex Maskey: What we would be concerned about is that under our rules, once we have an election, we would appoint the Speaker and Deputy Speakers before anyone else. Then we would appoint Ministers and Committees. First, we need agreement on a cross-community basis in order to elect our Speakers. Secondly, if we were not to have new Ministers, and outgoing Ministers were caretakers, you could have a situation where there would be little scrutiny or accountability of the work that they were doing, albeit that they would still be operating on a caretaker basis. That would be a concern for us.
We would also have an issue on the question of sufficient representation, which we would like better clarified. I do not want to have to navigate undefined or ill-defined conditions, such as “sufficient representation”. The NIO is suggesting it would want flexibility in that case, which I can fully understand, but we are drawing attention to the fact that that could give us the issue of trying to navigate something that is not very well defined.
Alex Maskey: I would not necessarily say so, to be truthful with you. That is always a work in progress, I suppose. I would not necessarily say that that would create any further difficulties than we already have.
Alex Maskey: For me, as Speaker and as someone who will remain impartial on this, I am trying to draw out, as are our officials, what areas are not as clear as we might like, but we support the legislation, and we will support what the Assembly decides. At the end of the day, it is not for us to make specific proposals. We are certainly very happy for our officials to continue to liaise with the NIO on some of these matters, but for us, in our role, to put specific proposals probably would not help, and would be inadvisable.
Alex Maskey: Again, Claire, it would not be for me to put a proposal on the table on that, because as you know, people guard very jealously—I certainly do—the professional requirement to be independent and impartial. While I fully accept and appreciate that our Assembly is predicated and reconstituted on the basis of New Decade, New Approach and all its contents, I want to see them all delivered as a matter of integrity and public confidence-building. By the same token, the substance of each of those provisions is really a matter for all the parties and the Governments to work out, and we will service those diligently.
Lesley Hogg: Obviously, the ministerial code will now be monitored, and complaints against the ministerial code will be taken up by the Commissioner for Standards, but I think that is really as far as I would like to comment at this stage. As the Speaker says, we will obviously implement whatever decisions are taken. The code of conduct is embedded in the ministerial code and would therefore come under the remit of the Commissioner for Standards.
Dr McGrath: It has always been the case that the Speaker has no role in the code of conduct for Ministers.
Again, I suppose this is relatively moot in your term, Alex, because the POC has not been deployed while you have been in post, but what is your understanding of the requirement for those Committees to be established under the current framework?
Alex Maskey: You know that as part of the Good Friday agreement, that framework was agreed, but it was never, if you like, replicated in the Assembly. Speaking as someone involved in the Good Friday agreement, that was one of key areas people were focusing on to make sure we built the new instructions on a proper framework. However, it is a statement of fact that they are not there, not used and not in place at the moment. I spend every other week in the Chamber, busily telling people, “I have no role over that,” in terms of the code of conduct, for example.
On what you are requesting, Claire, I would have liked the provisions in the Good Friday agreement to have been faithfully implemented across the board, and that would have applied to these provisions as well. The fact they are not means that I have to deal with what is in place within the framework, the Northern Ireland Act, and our own Standing Orders, and I will faithfully deliver on those.
Alex Maskey: On one level, it could possibly help, because it would remove the issue. If you were to remove it, then you do not need to deal with any consequences. Gareth said earlier that we have identified a number of issues that could be impacted, such as the LCMs, but there are others we may not have detected yet. I suppose it could go some way towards solving it.
Lesley Hogg: We have really highlighted the problems; these are political solutions that are you are trying to identify. Many of these have been ongoing for a number of years. We have highlighted that there is an issue. There is no easy solution, but we are happy to continue to work with officials to see if we can come up with anything.
Dr McGrath: Mr Robinson, I would just add that former Speaker Hay wrote in 2009 that the tabling of a petition of concern is a serious and important procedural step that has the effect of raising the bar. From an Assembly perspective, you hope to avoid the law of unintended consequences with all of these. For example, you could imagine that making it easier for Members to withdraw a petition of concern could potentially increase the number tabled. Given that 116 petitions of concern were tabled in the 2011 to 2016 mandate, one in the 2016 to 2021 mandate and none in the last 18 months, the Committee will want to consider the law of unintended consequences.
Alex Maskey: First of all, as you know, the Speaker has the role of verifying or confirming whether a Bill is competent in the first instance, before it is introduced. Once it is introduced, I would refer that to the Human Rights Commission. The Assembly also has the right, which was exercised recently, to vote to make sure we do refer something; it is a bit of an additional belt-and-braces provision. The Assembly can vote to refer a Bill or a measure to the Human Rights Commission at the outset, so it would always be referred in the first instance to the legal team, who would look at it from a perspective of rights, as well as considering all other matters of competence. Of course, additionally, we then refer it to the Human Rights Commission. The provisions are there, and they are acted on in each and every case.
Alex Maskey: I certainly hope that anything that we do would lead to that outcome. As I said at our meeting, Minister, with the political will, we can resolve most of the matters, if not all of them. Unfortunately, occasionally we have not been able to resolve matters, including, as I said, when it came to an Opposition Bill passed a number of years ago; it was put forward by John McCallister. There was no cross-community agreement to enact a Standing Order to apply that. That might seem odd or unusual, and it probably is, but the fact of the matter is that we did not get an agreement.
At our meeting and in correspondence, we addressed the fact that the first item of business of an Assembly is electing the Speakers. With the six-week ruling, and the six-week period of delay envisaged in the Bill, theoretically, the Assembly could meet after six weeks, and if it could not be formed at that time or could not fill the offices, then it could close down for the next six weeks, but if we do not get a Speaker in place—if we do not have that agreement—we cannot even move to that point. With political agreement and common sense, you would imagine we could resolve these matters. We have only drawn attention to these matters on a cautionary basis because of our experiences; in the past, we have not even been able to pass a number of important matters on the basis of cross-community support.
Since taking up my post, I have routinely been on record reminding Members that we have a very important job to do, as guardians of the legislature, in holding the Executive to account. However, it is also by way of being our business to secure and try to maintain public confidence in the institutions. If we can do anything to maintain the sustainability of the institutions on the basis of the integrity of NDNA and previous agreements reached, I think we will be doing a good job. Anything that helps us to perform our duties in a way that maintains and builds public confidence, we need to embrace.
Alex Maskey: That is the conundrum that we have to face. I am absolutely certain that the very best way of conducting our business is by doing it ourselves and by the Assembly performing its duties on a mature basis. Unfortunately, on more than one occasion, that has not been able to happen on the basis that we would have liked, but that is politics. As you know, there are many issues that are quite divisive and polarising in our politics at times. I still would say that I have been very pleased, notwithstanding the very challenging difficulties that we have had to face in the past year and more, that the Assembly, for the most part, has performed its duties well and professionally and the level of debate and so on has been mature enough. There have been one or two breaches of good order and all the rest of that, but I think that, for the most part, the Assembly has come through the difficulties and trials pretty well. We have still a lot of work to do. Yes, I agree with that entirely, and I certainly want to work through the rest of this mandate on the basis that the Assembly parties are fully understanding of the need to build confidence among the general public by doing our work professionally and maturely.
“The Speaker and the three Deputy Speakers shall not sign a Petition.”
How do you interpret that? You expressed concern about being able to recruit Deputy Speakers. Can you give the Committee any further evidence as to that? Has that been a challenge? To what extent has the willingness of parties to put forward their Members as a Deputy Speaker been a challenge to date?
Alex Maskey: As I have said, no party at this moment in time can trigger a POC itself, because it does not have the 30 Members. Therefore, parties may be reluctant and there would be some little amount of chit-chat around the corridors—not that I have heard it recently. But when I was in the business of being involved in chit-chat around the corridors as a party activist—I do not operate on that basis now, of course—there would have been people thinking, “God, would you want to lose a Member”—people would describe it in those terms—“by putting them in as a Speaker if they are not able to sign a POC?” You also have some Members who would feel very passionate about particular issues and who might want to support a POC if one were to be deployed at some point in the future.
We are merely drawing attention to the fact that the Deputy Speakers in our Assembly function differently from how the Speakers in Westminster, for example, do, as I understand it. Our Deputy Speakers function as a Deputy Speaker when they are chairing a session; for the rest of the time, they actually operate as party political activists. It is only the Speaker in this case—in the Assembly—who would be prohibited, throughout the entire mandate, from signing any petition of concern; and that is as it should be, of course. I am just drawing that to your attention and that of the Committee today. It is just because we do not want to cause chill factors; we want to make sure we can draw on as wide a range of Members across the Assembly as possible, to make sure we have inclusive arrangements made, from the Speaker through to the Principal Deputy Speaker and the two Deputy Speakers.
Dr McGrath: I think that that self-evidently would be the case. It is also the case that uniquely in this mandate, and partially because of the reduction in the number of Members, no political party has the number of signatures required to table a petition of concern, so by definition, at the moment, a party requires the support of either independent Members or Members from another party to do that. It is the practice now—there have been no petitions of concern in the current mandate. I am not saying that the two are related, but I am saying that it is more difficult to see a scenario in future—obviously, without trying to forecast electoral outcomes—in which a party would have the required number of Members.
Dr McGrath: To revert to the issue that was originally raised by the Speaker, clearly the intention of the consideration period, as I understand it, is to allow a cooling-off period and room for manoeuvre among the political parties. It may well start off with that intention. However, there would be scenarios in which it could evidently be used to stymie progress on issues for which the petition of concern was not intended.
It is one thing to have the provision in the Act, but trying to implement it in Standing Orders is a different matter. Standing Orders have to be passed on a cross-community basis so there is no guarantee that just because this Bill requires Standing Orders to make provision for that, it will happen. That is a statement of fact on the basis of legislation, as Mr Speaker said previously, that the Assembly has passed requiring Standing Orders to make provision for, and that has not happened. In that situation, the Speaker will be required to rule on whatever is referred to as interim procedures. That will inevitably put the Speaker in a difficult position.
Alex Maskey: I just want to say thank you on behalf of the Assembly for giving us this opportunity. As I and my colleagues have said, we do not want to be over-cautious, but we feel obliged to draw attention to some of those issues that may lack a bit of clarity. That may help on one level, but if we do not have the political will then that could cause us some difficulties, purely from a procedural implications perspective.
We are not looking to see those situations arise again, but we want to make sure we have drawn some of these issues to your attention, given that we have experienced a number of these in the past and we do not want to have those matters resolved to create another unintended consequence or problem.
Other than that, we wish you well in your deliberations. As a Speaker and as officials, we will professionally and diligently put in place whatever comes our way as a result of the legislation, according to the will of the Assembly. Thank you.
On behalf of the Committee, I would like to thank our three witnesses very much indeed for the time they have spent with us. We are very grateful.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Adjourned till Tuesday 6 July at twenty-five minutes past Nine o’clock.
Written evidence reported to the House
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