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

Stephen Farry Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[Colum Eastwood (Foyle) (SDLP)]

Q It is a pleasure to serve under your chairmanship, Sir David. It is good to see you, Jonathan. I spent many long hours over that three-year period in your company, and thankfully we got there in the end.

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.

[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.

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[Mr Walker]

Q We have heard evidence from various witnesses and various speeches on Second Reading about the fact that many of these issues and, indeed, some of the issues beyond the scope of this Bill were hard negotiated on all sides. I wonder if you agree with what we have heard in some of the evidence earlier: what they have described as other vetoes, but I think you might describe as some of the balance within the process of working together in the Executive, would not have been signed up to by all the parties in NDNA if it had sought to go further on that front.

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.

[Stephen Farry]

Q A very warm welcome to Emma. I will ask a two-part question. The first part is this: would Emma recognise that the effect of a petition of concern, or the veto as such, is that in effect it works for those parties or that part of the community that are perhaps most comfortable with the status quo, and it probably frustrates those parties that have a desire to see change in society?

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.

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[The Chair]

Thank you for your time this afternoon. Which colleague would like to ask the first question? I call Mr Stephen Farry.

[Stephen Farry]

Q Thank you, Chair. I welcome my former colleagues from the Northern Ireland Assembly—it is great to see you all again. To facilitate the conversation, I will start with you, Mr Speaker. I am conscious that you have written to MPs setting out some particular concerns about micro-details on how some of the governance aspects of NDNA may impact the day-to-day working of the Assembly. Perhaps it would be useful if you set those out for the Committee.

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.

[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.