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

Claire Hanna Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[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.

[Claire Hanna]

Q I want to pick up on another change to the Good Friday agreement at St Andrews that is also covered, in part, in the Bill, which is the change from jointly electing First Ministers to the arrangement that we currently have. What was the point in principle of that change? Do you think it has been a factor in the recurring instability that we have seen over the last number of mandates and years?

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.

[Claire Hanna]

Q I do not want to hog all the time, but I want to ask what your assessment is of the Government impact of the potential period of caretaker Ministers. The phrase that has been in my head all day is the former First Minister’s phrase “rogues and renegades”. I am thinking of the issues around powers and scrutiny. What is your assessment of that?

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.

[James Sunderland (Bracknell) (Con)]

Q Mark, thank you for appearing before the Committee. Politicians generally agree that the Good Friday agreement was a good bit of work. It was successful, it has endured to the present day, and there is lots of confidence in it for the future as well. We know there are some relative threats to it at the moment, not least the Northern Ireland protocol and possibly the forthcoming statute of limitations on legacy—the list goes on. Can you assure the Committee that the Bill does not pose any threat to the Good Friday agreement? If there is a threat, can you explain what it is?

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.

--- Later in debate ---

[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.

[Claire Hanna]

Q Lesley or Gareth, would you have any suggestions on that? Should there perhaps be more power, or more definition of the scope of the Northern Ireland Assembly Commissioner for Standards?

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.

[Claire Hanna]

Q I want to pick up on an issue that has been discussed today by a number of witnesses: the processes that were envisaged originally regarding the use of the petition of concern, but that have not been regularly used, such as this Ad Hoc Committee on Conformity with Equality Requirements. I remember, from my time in the Assembly, a previous committee being in place for the POCs on welfare reform. What has been the thinking around those? There was a difference in opinion on whether they were required or discretionary. What is your analysis?

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.

[Gavin Robinson]

Q Good afternoon to all three of you. Alex, you mentioned that you did not want to engage in suggesting solutions, or do not see that as your role. You highlighted the issue of the 14-day consideration period for a petition of concern. Those are really issues that may arise in extreme circumstances where there is a legislative deadline, or there is some urgency to matters proceeding. From what you say, the frailty in the legislation is that there is no indication that the petition can be rescinded if a resolution is found, say, two, three, four, five or 13 days into that 14-day period. Would that option to withdraw the petition satisfy the concerns that have been raised either through your officials or the Office of the Legislative Counsel?

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.