Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Second sitting)

Alex Davies-Jones Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[Gavin Robinson (Belfast East) (DUP)]

Q Good afternoon, Jonathan. I will reflect on the question from the hon. Member for North Down. Of course, the Assembly and Executive Review Committee is the sort of place where you would ordinarily think these discussions at the moment should occur. Going to the NIO and expecting the Government to sort these issues out should be the last resort; it should be something that is foreseen and considered among parties.

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.

[Alex Davies-Jones (Pontypridd) (Lab)]

Q It is a pleasure to serve under your chairmanship, Sir David. Sir Jonathan, thank you for joining us this afternoon. Given your experience from the negotiations, are you concerned that the scope of powers is not clearly defined in the Bill and an Executive could essentially limp on without any broad cross-community support, but still would be able to make significant decisions?

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.

[Alex Davies-Jones]

Q On that point, Sir Jonathan, the Bill provides for up to 24 weeks for the appointment of new Ministers before the obligation to call an Assembly election is triggered. What assessment do you make of the potential effectiveness of those time provisions?

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

[Alex Davies-Jones]

Q Finally, what statutory provisions exist that you are aware of to prevent the misuse of the powers available to caretaker Ministers?

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.

[The Chair]

If there are no other questions from colleagues, let me bring the Minister in again.

--- Later in debate ---

[Alex Davies-Jones]

Q Thank you, Sir David, and thank you, Mark, for joining us this afternoon. As you mentioned, so much of the Good Friday agreement, which you helped to negotiate, is still not implemented. How important do you believe that this failure to implement key elements such as a Bill of Rights has been to damaging the sustainability of the peace process?

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.

[The Chair]

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.

[Alex Davies-Jones]

Q The Good Friday agreement established a Civic Forum to give communities a voice and a proper consultative say in the democratic process. How important do you believe that was and has it set back progress on the Good Friday agreement that it is not currently in place?

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.

[Alex Davies-Jones]

Q Finally, what key measures do you believe need to be implemented that are currently absent from the Bill?

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.

[Claire Hanna (Belfast South) (SDLP)]

Q It is a pleasure to serve under your chairmanship, Sir David. Thanks for your evidence, Mark. You commented briefly on the original intent of the Good Friday agreement versus how it has latterly been used as a way to, I suppose, thwart minority rights rather than protect them. Could you give an assessment of what Daniel Holder this morning called the St Andrews veto, deployed at the Executive, and the extent to which it is being used as a pre-emptive veto that prevents proposals and legislation from even reaching the floor of the Assembly?

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.

--- Later in debate ---

[Stephen Farry]

Q Gareth might be able to elaborate on this. Essentially, Mr Speaker, you are outlining three broad issues. One is the removal of the bar on Deputy Speakers with regard to a petition of concern. The second is the ability to establish Committees if there is a long period after an Assembly election in which Ministers are still in place on a caretaker basis. Perhaps we could ask Gareth to elaborate on the third point, which is around the potential lowering of the 14-day threshold in very limited circumstances. Maybe he could give us an idea of how that could be achieved in primary legislation—there are some enabling issue—and in Standing Orders. There may well be issues around those circumstances are defined.

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 Davies-Jones]

Q I thank the witnesses for joining us. Mr Speaker, are you concerned that the limits of the power of Ministers during the caretaker period are not set out?

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 Davies-Jones]

Q In the Bill, it is not clear how the ministerial code will be enforceable. Do you think that will make it hard for Members of the Legislative Assembly to hold Ministers to account?

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 Davies-Jones]

Q Do you think it would be wiser for the definition of “cross-community confidence” to be outlined in clause 213 in relation to a caretaker Executive?

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.

[Claire Hanna]

Q A previous speaker addressed some my questions around the code of conduct. By the way, it is very good to see you all, if only virtually. On the provisions on enforcement of the code of conduct, do you think the Bill needs to specify who should be the arbiter of those provisions?

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.