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

Gavin Robinson Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[Stephen Farry (North Down) (Alliance)]

Q It is a pleasure to serve under your chairmanship, Sir David. A very warm welcome to you, Sir Jonathan. I will largely pick up on your answer to the questions posed by Colum Eastwood. You are one of the very rare officials with long experience of Northern Ireland over several different stints in office, so you have that wider perspective. You indicated that there might be a need to revise the rules around the institutions at some stage. Do you feel there is a danger of the Northern Ireland Office almost operating on a reactive basis after a problem has actually arisen and then trying to patch it up, amend it and move on for a few more years before going back to the next crisis? Is there not an argument for trying to be a little bit more proactive and anticipate where pressure points are likely to emerge, to assess how society is changing and to act accordingly? In that regard, should we look at some of the rules around the election of the First Minister and Deputy First Minister, particularly in the light of the democratic change that we are seeing in society?

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.

[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.

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[The Chair]

Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?

[Gavin Robinson]

Q Good afternoon, Emma. Members will know you well from your time here, but those of us from Northern Ireland will know that you have been integrally involved in numerous iterations and negotiations over the years.

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.

[Gavin Robinson]

Q Thank you for that. To draw on some of the issues that were brought out this morning, there was a suggestion from Professor Tonge, for example, that the petition of concern could benefit from being amended so that you had support across the community designations, so that one community wishing to table a petition of concern would require support from another or the other designation, if I can put it that way. Do you have any reflections on that contribution or suggestion that was made this morning?

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.

[Gavin Robinson]

Q Perhaps just one final question from me, Sir David, if you have a rake of colleagues now hoping to jump in. Questions have been raised around the lack of detail on safeguards for Ministers who find themselves remaining in position where the Executive is not fully functioning. Do you have any concerns about the provisions as drafted in the Bill, or do you feel that the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are sufficient in the circumstances?

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.

[Colum Eastwood]

Q Thanks for your evidence, Emma. You are absolutely right that the Democratic Unionist party pushed very hard for a lot of the provisions around sustainability during the negotiations, and some of us had some concerns about it, but I absolutely agree with you that there have to be some mechanisms for keeping the show on the road. Nobody should be threatening to pull down institutions. Of course, it was Sinn Féin that walked out the last time. Does that go as well for the DUP when it comes to issues like the protocol?

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.

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[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.

[Gavin Robinson]

Q Good afternoon, Mark. I do not agree with all of your evidence, but I certainly enjoy the fact that you have not lost your unique turn of phrase. I have been following very closely. On some of your comments concerning human rights and equality, you will remember the negotiations that led to the deal that was not a deal, which you and I were involved in around Stormont Castle. We had interesting discussions about the petition of concern and so on. Do you still accept that it is impossible for the Assembly to consider a Bill that has not been screened for equality and human rights impacts, and that the Assembly cannot progress or pass a Bill that is in conflict with human rights or equality legislation?

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.

[Gavin Robinson]

Q You know that the European convention on human rights is there in the Belfast agreement, and the Human Rights Act in the UK was passed some months after and came into operation in 2000. As part of that, for any challenge that is brought within Northern Ireland, our courts have to consider the jurisprudence of the European Court of Human Rights in assessing the application of the Human Rights Act. Does that diminish your concerns in any way? Does that give you more reassurance? You mentioned earlier in your evidence that you could not go to court and rely on the convention, but you seemed to not ignore but maybe not reflect on the Human Rights Act and the part of it that specifically requires our courts in Northern Ireland to consider the jurisprudence and case law of the European Court of Human Rights.

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.

[Gavin Robinson]

Q This is perhaps slightly outside the scope of the Bill—Sir David, you can strike me down if you wish—but on the issue of a Bill of Rights, as you know, Mark, the agreement provided that the Human Rights Commission would bring forward proposals at the request of the Government, and it did and you reflected that there was not consensus at that time. What it was asked to bring forward was additional rights framed particularly because of the unique circumstances of Northern Ireland. It may fall outside the scope of your remit or interest, but what sort of issues do you think fall within that category of being unique issues to the circumstances of Northern Ireland now, in 2021, today’s era?

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.

[Gavin Robinson]

Q Finally, Mark, you reflected on your disappointment with the Civic Forum. I think you know that we are probably in a different space from that, but as part of New Decade, New Approach there was an agreement, outside this Bill, to incorporate civic co-design in policy making and so on. Do you think that that was a useful step forward as part of the overall discussions in New Decade, New Approach, although I recognise that you still want to see the re-establishment of the forum itself?

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.

[The Chair]

If there are no other questions from colleagues, I call the Minister.

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[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.

[Gavin Robinson]

Q May I ask Lesley or Gareth if those are discussions that you have had with the NIO? Or as Mr Speaker says, are you highlighting the problems as you see them and looking to the NIO to bring solutions?

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.

[Gavin Robinson]

Q Alex, I hope you do not mind, but the hon. Member for Belfast South asked you about the petition of concern and some of the equality and human rights aspects. Leaving aside the petition of concern, if legislation was passing through the Assembly, and somebody raised an issue to do with the declaration that it is compatible with human rights and equality legislation, how would you deal with that, procedurally? If someone raises the concern that the declaration on the face of the Bill is erroneous, do you have a process that you can use, or can the Office of the Legislative Counsel look at it?

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.

[Mr Walker]

Q It is good to see you and your team again, Mr Speaker. As Speaker of the Northern Ireland Assembly, you will be better placed than most to appreciate the importance of having the Assembly up and running and legislating again after three years of absence. In your opinion, overall, does the Bill safeguard the institutions in Northern Ireland, and support them in working collectively for the benefit of the people whom they are there to represent?

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.