Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
Public Bill Committee, 29 June 2021.
Graham Stringer (Labour, Blackley and Broughton)
Before we begin, I have a few preliminary announcements. Hon. Members will understand the need to respect social distancing guidance, in line with the House of Commons Commission decision. Face coverings should be worn in Committee unless Members are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. I remind Members—sometimes people forget—that tea and coffee are not allowed during sittings.
Today we will first consider the programme motion on the amendment paper, then a motion to enable the reporting of written evidence for publication and then a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can deal with those matters formally, without debate.
Graham Stringer (Labour, Blackley and Broughton)
Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.
Examination of Witnesses
Graham Stringer (Labour, Blackley and Broughton)
We are now sitting in public again and the proceedings are being broadcast. Before we start to hear from the witnesses, do any Members wish to declare any interests in connection with the Bill? No. We will now hear oral evidence from Daniel Holder of the Committee on the Administration of Justice, and from Professor Jonathan Tonge of the University of Liverpool. Before calling the first Member to ask questions, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion to which the Committee has agreed. For this session, we have until 10.30 am. May I ask the witnesses to introduce themselves, starting with Daniel Holder?
Graham Stringer (Labour, Blackley and Broughton)
Thank you very much. Minister, would you like to ask the first question?
Robin Walker (Conservative, Worcester)
Q Thank you. It is a pleasure to serve under your Chairmanship, Mr Stringer. This is a question for Daniel Holder. In the briefing note that your organisation prepared for the Second Reading of this Bill, you welcomed the fact that,
“the current bill will provide a level of legislative reform intended to return the Petition of Concern to its intended GFA purpose.”
Could you tell the Committee about the limitations with the current mechanism and how provisions within this Bill will return the petition of concern to its intended purpose, in your view?
Robin Walker (Conservative, Worcester)
Q Thank you. With regard to that second area, NDNA also committed to setting up a committee within the Assembly to look at the Bill of Rights and take that work forward. Are you following the work of that committee, and do you have any views as to how that is progressing?
Robin Walker (Conservative, Worcester)
Q You recommended that MPs examine changes to address the St Andrews veto. Can you explain what that is and how often it has been used?
Robin Walker (Conservative, Worcester)
Q Given the equivalence that you see between the petition of concern mechanism and these other mechanisms in the Executive, why do you think that those reforms were not included as part of the NDNA deals? Obviously, that was something that all parties had a say in and the Irish and British Governments worked together on. Why do you think that equivalence was not delivered as part of that deal itself?
Robin Walker (Conservative, Worcester)
Q Thank you. Professor Tonge, in your analysis of the 2017 and 2019 elections, you identified the restoration of the Assembly and its institutions as one of the key issues facing Northern Ireland at both elections. How important do you perceive it to be for the state of politics in Northern Ireland that the Executive and the Assembly have been restored and that the Assembly is again able to legislate for Northern Ireland?
Robin Walker (Conservative, Worcester)
Q In terms of what you have seen since then with the restoration of power sharing—obviously, the pandemic has meant that we have been living through extraordinary times; I think it is unimaginable what it would have been like to try and deal with it without the Executive in place—have you done any further research on the perceptions of the public of the period of government that we have seen?
Robin Walker (Conservative, Worcester)
Q The Bill does not do anything to stop that. It requires 30 Members from more than one party, so in theory could you not have various different parties getting together to put those forward, given the way the Bill is drafted?
Robin Walker (Conservative, Worcester)
Sure, but I would take it as all sections of the community including those communities, but not exclusive to those communities, therefore allowing any two parties to come together, or indeed Members from some parties and none. That addresses that point. I see where you are coming from. I think you have already answered my supplementary questions in the extra information you provided on petitions of concern, so I am happy to hand over to the Opposition.
Graham Stringer (Labour, Blackley and Broughton)
Thank you, Minister. Before I move on to the official Opposition, I remind members of the Committee of the point I made before we started—that tea and coffee cannot be consumed during Committee hearings.
Alex Davies-Jones (Labour, Pontypridd)
It is a pleasure to serve under your chairship, Mr Stringer. Mr Holder, I will come to you first, as the representative of the Committee on the Administration of Justice. The CAJ has done work in the past on the importance of the undelivered Good Friday agreement commitments and the role that, had they been implemented, they would have played in the stability of the Executive over two decades. Would you outline your thinking and your research on that?Q
Alex Davies-Jones (Labour, Pontypridd)
Q You mentioned the Bill of Rights, which is a reserved measure for Westminster. Why is it so important for the stability of the Assembly and the integrity of the Good Friday agreement?
Alex Davies-Jones (Labour, Pontypridd)
Q Thank you. This is my final question to you. NDNA is just the latest agreement that is easier to achieve than it is to implement. Should Ministers be accountable for implementing the agreements that act as the scaffolding for the peace process?
Alex Davies-Jones (Labour, Pontypridd)
Q Thank you, Mr Holder. Professor Tonge, I will come to you next. The briefing accompanying the Bill says that Ministers in the caretaker Executive would be operating within well-defined limits, but those limits are not outlined. Is that a concern? Are there examples of how those limits could be better identified?
Alex Davies-Jones (Labour, Pontypridd)
Q The purdah restrictions for local government operate under the Local Government Act 1986. They prevent the local authority from publishing
“any material which, in whole or in part, appears to be designed to affect public support for a political party.”
The rules governing purdah in the UK Government are outlined in the Cabinet manual, and civil servants inform their permanent secretaries if any requests by Ministers raise issues. Do you think that the Bill will provide civil servants with enough legal scope to push back on Ministers making inappropriate requests during a caretaker Administration?
Alex Davies-Jones (Labour, Pontypridd)
Q Do you think that the Bill should set out how the code of conduct should be enforced?
Alex Davies-Jones (Labour, Pontypridd)
Q Under the current wording,
“the Secretary of State may”—
only “may”, rather than “must”—
“issue a certificate”
outlining the date for a poll, even if the conditions for cross-community representation are not met. Do you think that that is a mistake? Is there a risk of undermining the principles of the Good Friday agreement if an Executive drawn from one community is able to limp on at the behest of the Secretary of State?
Alex Davies-Jones (Labour, Pontypridd)
Q A final question, Professor Tonge. At the moment, the First Minister and the Deputy First Minister must be drawn from the two traditions: Unionist and nationalist. Do you believe that this integral feature of the Good Friday agreement is at risk of becoming outdated if a party representing neither achieves sufficient support? What do you think could be done to remedy that?
Alex Davies-Jones (Labour, Pontypridd)
Thank you, witnesses; thank you, Chair. No more questions from me.
Graham Stringer (Labour, Blackley and Broughton)
Thank you. James Sunderland, and could you state which of the witnesses your question is to, or whether it is to both of them?
James Sunderland (Conservative, Bracknell)
ThankQ you, Mr Stringer; it is a great pleasure to serve under you as Chair. My question is to both witnesses in turn: would you comment on the extent to which the petition of concern has been used as a veto? Is this perception or reality?
James Sunderland (Conservative, Bracknell)
Q May I ask both witnesses to confirm the extent to which they believe that the Bill will achieve the aim of making communities and parties work more closely together without necessarily resorting to the use of the petition of concern as a veto?
James Sunderland (Conservative, Bracknell)
Thank you.
Gavin Robinson (DUP, Belfast East)
Good morning. Mr Holder, will you reflect on your repetition that these provisions will bring us back to what was intended on the petition of concern? You have tried to contextualise what you believe was intended, but may I ask you to provide us with your authority for what the Belfast agreement says on the intended purpose of the petition of concernQ ?
Gavin Robinson (DUP, Belfast East)
Q Although expressly on the face of the agreement, it states that a special agreement may be established, but there is no requirement—it was not mandated to be so. Do you accept that?
Gavin Robinson (DUP, Belfast East)
Q But, of course, we all know in Northern Ireland the good phrase, “cherry picking”, and you cannot outline the provisions of paragraph 13 without considering those of paragraph 11, which start:
“The Assembly may appoint a special Committee”.
Is that correct?
Gavin Robinson (DUP, Belfast East)
You can take my word for it, Mr Holder. I will move on.
Graham Stringer (Labour, Blackley and Broughton)
I have two Members indicating that they wish to ask questions, and there are nine minutes left, so I will move on.
Gavin Robinson (DUP, Belfast East)
Do you mind, Mr Stringer, if I ask one question of Professor Tonge?
Graham Stringer (Labour, Blackley and Broughton)
If there is time at the end, but I want to see if we can get everybody in.
Stephen Farry (Alliance, North Down)
Good morning, and it is a pleasure to serve under your chairmanship, Mr Stringer. As a strong advocate for reform of petitions of concern, I slightly wanted to play devil’s advocate in this scrutiny process on the Bill. Do both witnesses feel that the measures are in some ways too cumbersome, given the potential 16-day window in some circumstances between a petition being tabled and an actual vote? How will that work, particularly in things such as the Committee stage of a piece of legislation? Will that become a straitjacket for the Assembly? Are there alternative ways in which the same outcomes around petitions of concern could be achieved, rather than what is in the Bill? Is there a risk of parties somehow gaming the system by doing multiple petitions of concern on more or less the same item, time after time, which further delays reforms going through?Q
Stephen Farry (Alliance, North Down)
And the petitioners have the option of simply reconfirming—
Graham Stringer (Labour, Blackley and Broughton)
Sorry, Mr Farry. We are really running out of time. I am going to move to Colum Eastwood, so that every Member who has indicated that they wish to ask a question will have had the opportunity to do so.
Colum Eastwood (Social Democratic and Labour Party, Foyle)
Thank you, Mr Stringer. I thank the two witnesses. It is always difficult to pinpoint exactly why or how the Assembly collapsed on any of the times that it did. It is arguable, though, that a factor was the lack of progress and the inability of the Executive or Assembly to get things done because of the three vetoes that particularly Daniel has outlined, whether it is a petition of concern, the St Andrews veto, as you call it—it is well named—or the veto in terms of what goes on the Executive agenda.Q
We have another storm brewing around Irish language legislation, because whilst the Government here have said that they will introduce the legislation, that legislation is quite clear that some of its provisions will need to be implemented by the First Minister and the Deputy First Minister jointly. Do you see this as another potential crisis point in the process for the Executive and the Assembly, given the fact that it has already been touted as a potential bargaining chip to deal with some other issues?
Graham Stringer (Labour, Blackley and Broughton)
Thank you. We have a matter of seconds left of the time allocated. So, may I take this opportunity, on behalf of the Committee, to thank the witnesses for the very valuable contributions that you have made?
Examination of Witness
Graham Stringer (Labour, Blackley and Broughton)
Q We will now hear oral evidence from Lilah Howson-Smith, a former special adviser at the Northern Ireland Office. For this session, we have until 11.25 am.
Could you introduce yourself, please?
Graham Stringer (Labour, Blackley and Broughton)
I will go to the Minister to ask the first questions.
Robin Walker (Conservative, Worcester)
Q Thank you, Mr Stringer, and it is good to see you again, Lilah. You were working as a special adviser to the Secretary of State for Northern Ireland during the period when the Executive was not functioning, from 2019 to 2020. Can you give us your views on the real-life impact that that situation had on Northern Ireland’s citizens, and the importance of putting in place some mechanisms to make sure that it does not happen again?
Robin Walker (Conservative, Worcester)
Q On Second Reading, Julian Smith stated that the Bill provides for a number of important and practical measures. What do you think are the practical benefits of this legislation?
Robin Walker (Conservative, Worcester)
Q You just referred to the negotiations; obviously, they were pretty intense and, as you say, some of the parties pushed for things that they did not necessarily get. Was the issue of the border executive vetoes and other issues discussed in those negotiations? Did you have a clear view as to whether it would be acceptable to the parties to change that?
Robin Walker (Conservative, Worcester)
Q The Government have been criticised by the Opposition for treating Northern Ireland as an afterthought. Would you agree with that claim? Does it reflect your experience in Government?
Robin Walker (Conservative, Worcester)
Q Finally, as I want to give Members the opportunity to ask questions, you previously worked in the Chief Whip’s Office before coming to the Northern Ireland Office. What do you think are the benefits to introducing this legislation on non-emergency timings? Can you recall when we last had non-emergency legislation for Northern Ireland?
Alex Davies-Jones (Labour, Pontypridd)
Q Lilah, from your experience of the negotiations, was it envisaged that there would be ambiguity on what constituted sufficient cross-community representation in a caretaker Executive?
Alex Davies-Jones (Labour, Pontypridd)
Q Are you concerned that the scope of powers is not clearly defined, allowing for an Executive, for example, to limp on without broad cross-community support but still be able to make significant decisions?
Alex Davies-Jones (Labour, Pontypridd)
Q Is there anything, from your experience, that did not make the cut in NDNA that you think would have been valuable in terms of the sustainability of the Executive?
Alex Davies-Jones (Labour, Pontypridd)
Q Finally, as I also want to give other Members the opportunity to ask questions, what statutory provisions currently exist to prevent the misuse of powers available to caretaker Ministers?
Graham Stringer (Labour, Blackley and Broughton)
If there are no further questions from Members, I thank the witness for that interesting and valuable contribution.
Sir David Amess (Conservative, Southend West)
We will now hear from Sir Jonathan Stephens, former permanent secretary at the Northern Ireland Office. Colleagues, we have until 2.30 pm. Sir Jonathan, I described you, but briefly please say something about yourself.
Sir David Amess (Conservative, Southend West)
Thank you. Colleagues, it is over to you to start the questioning.
Robin Walker (Conservative, Worcester)
Sir Jonathan, it is very good to see you again. You were permanent secretary from 2014 to 2020, as we have heard, and that means you were at the heart of the Northern Ireland Office both before and during the period of the collapse of the Executive. In your view, how was the Northern Ireland civil service most hindered by the lack of ministerial accountability when the Executive was not functioning?Q33
Robin Walker (Conservative, Worcester)
Q How far do you feel this Bill goes to safeguard Executive stability and provide the civil service with the accountability mechanisms they require? Given some of the discussions we have had to date, both in the case of encouraging the Executive to stay together and to stay in place, but also in the case where you might have a First and Deputy First Minister step down and caretaker Ministers, as they have been described, remaining in place, how far do you feel the Bill creates the clarity needed for them to be able to carry out their role?
Colum Eastwood (Social Democratic and Labour Party, Foyle)
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.Q
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.
Stephen Farry (Alliance, North Down)
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?Q
Gavin Robinson (DUP, Belfast East)
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.Q
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.
Alex Davies-Jones (Labour, Pontypridd)
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 Q 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?
Alex Davies-Jones (Labour, Pontypridd)
Q On that point, Sir Jonathan, the Bill provides for up to 24 weeks for the appointment of new Ministers before the obligation to call an Assembly election is triggered. What assessment do you make of the potential effectiveness of those time provisions?
Alex Davies-Jones (Labour, Pontypridd)
Q Finally, what statutory provisions exist that you are aware of to prevent the misuse of the powers available to caretaker Ministers?
Sir David Amess (Conservative, Southend West)
If there are no other questions from colleagues, let me bring the Minister in again.
Robin Walker (Conservative, Worcester)
Q Thank you very much, Sir David, for your chairmanship. Sir Jonathan, you were permanent secretary at a time when, because of the political situation and the absence of an Executive, serious thought had to be given to the possibility of direct rule. Do you agree that we are in a much better situation to be legislating for a deal, rather than agreeing and implementing policy directly for Northern Ireland, and could you expand for the Committee on some of the risks and challenges that we would have faced had we not been able to get the NDNA deal in place?
Sir David Amess (Conservative, Southend West)
Sir Jonathan, were there any final remarks you wanted to make before we finish your evidence session and wish everyone well?
Sir David Amess (Conservative, Southend West)
Thank you for our time; we are very grateful and it will help with our later deliberations. There will now be a 30-second break while we test the sound.
Examination of witness
Sir David Amess (Conservative, Southend West)
Good afternoon, Emma, and welcome. Would you kindly introduce yourself to the Committee?
Sir David Amess (Conservative, Southend West)
Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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?
Colum Eastwood (Social Democratic and Labour Party, Foyle)
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?
Sir David Amess (Conservative, Southend West)
If there are no further questions, I will bring in the Minister again.
Robin Walker (Conservative, Worcester)
Q It is good to see you, Emma. As a former Minister within the Executive, and having worked as a special adviser, could you speak to the need for a ministerial code of conduct, and how you believe that could help to strengthen public confidence in elected representatives? I recognise that, with the changes that the Bill enshrines to the ministerial code of conduct, the Northern Ireland Office is acting as agents on behalf of what was already agreed within the Executive. Can you speak a bit to the process that has been gone through in looking at the ministerial code within the First Minister’s and Deputy First Minister’s office?
Robin Walker (Conservative, Worcester)
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.
Stephen Farry (Alliance, North Down)
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.
Sir David Amess (Conservative, Southend West)
Q If there are no other questions, Emma, do you want to make some closing remarks in your evidence before we say goodbye?
Sir David Amess (Conservative, Southend West)
Thank you for your time today, Emma. I am sure that I speak for everyone when I say that I wish you well.
Colleagues, we are a little early. We were meant to hear from Mark Durkan at quarter past three, but we are trying to make contact with him. We are ready to go, so we will bring things forward. I am beginning to think that this is all to do with the football match, but I could be wrong.
Examination of Witness
Sir David Amess (Conservative, Southend West)
Welcome, Mark. I think this is a conspiracy to do with the football because we seem to be getting through things very quickly. We have earmarked 45 minutes for your session. Would you explain to everyone who you are and what you do?
Sir David Amess (Conservative, Southend West)
You are most welcome, Mark, albeit virtually. Our first question today is from Alex Davies-Jones.
Alex Davies-Jones (Labour, Pontypridd)
Q Thank you, Sir David, and thank you, Mark, for joining us this afternoon. As you mentioned, so much of the Good Friday agreement, which you helped to negotiate, is still not implemented. How important do you believe that this failure to implement key elements such as a Bill of Rights has been to damaging the sustainability of the peace process?
Sir David Amess (Conservative, Southend West)
Alex, if I could just interrupt you for a moment. Mark, we can all hear you very well indeed, but our technical team here is not hearing you very well and cannot do anything to turn up the volume. Of course, we are trying to record your evidence for Hansard purposes. If you can try and get as close to your microphone, wherever it is, that would be helpful for those trying to record things here.
Alex Davies-Jones (Labour, Pontypridd)
Q The Good Friday agreement established a Civic Forum to give communities a voice and a proper consultative say in the democratic process. How important do you believe that was and has it set back progress on the Good Friday agreement that it is not currently in place?
Alex Davies-Jones (Labour, Pontypridd)
Q Finally, what key measures do you believe need to be implemented that are currently absent from the Bill?
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?Q
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?
James Sunderland (Conservative, Bracknell)
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?Q
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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.
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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?
Sir David Amess (Conservative, Southend West)
If there are no other questions from colleagues, I call the Minister.
Robin Walker (Conservative, Worcester)
Q Thank you, Sir David. It is a pleasure to see you again, Mark, as a much-valued former colleague in the Commons whom I enjoyed engaging with over many years. It is good to see you back.
You have talked about the importance of the Good Friday agreement institutions. I absolutely recognise that. Do you accept that, since the NDNA deal was reached, we have seen the restoration of devolution? We have seen meetings of the British Irish Council and the British-Irish Intergovernmental Conference. We have seen those institutions functioning. It required an agreement, as you say, with the input of both the British and the Irish Governments and all five parties to reach it.
I appreciate there are aspects of the Bill that you and your party might feel ought to be different, and aspects of the St Andrews agreement architecture that you may not like. Do you accept, however, that in order to get the devolved institutions restored and the institutions of the Good Friday agreement itself properly functioning, we needed to get the buy-in of all five parties and therefore reach a deal that was acceptable to all of them?
Robin Walker (Conservative, Worcester)
Q I must say that most of the evidence we have heard to date—this is certainly true of the submissions I have received from the parties individually—sees this as a strengthening of the ministerial code. It is the case that some aspects of the Spad code and the ministerial code would sit with the Assembly to manage. What we are seeking to do here is correct those bits of the Northern Ireland Act 1998 in relation to the ministerial code, in line with the agreement that was reached by the Executive and signed off by the Office of the First and Deputy First Minister.
Overall, this should be a strengthening of the ministerial code, alongside some of the other mechanisms to enhance the stability of the Executive. This is about trying to support them. I would agree with your evidence and that of the former permanent secretary, but what we all want to see is good will from all parties to keep the Executive fully functioning and to avoid a situation in which these mechanisms are required. It is very important that we see that.
With regard to the possibility of what you called a zombie Executive—the Opposition talked about caretaker Ministers—do you accept, given the experience that we had during the long period of the absence of the Executive, with civil servants really being put in an impossible position, that it is useful during any potential period of interregnum to have a Minister in place who is able to take decisions within their departmental remit, to allow for some accountability within that, on the basis of the programme for government on which they were originally put in place? That would allow for continuity of departmental decisions and give some cover to their civil servants in a future period in which we might be without a First Minister and Deputy First Minister.
Sir David Amess (Conservative, Southend West)
Mark, even though I dare say that the Minister wants to continue the questioning, we cannot; you have, in fact, used up the 15 minutes we gained, and we are due to finish hearing your evidence at 4 o’clock. We thank you very much indeed for the time you spent with us this afternoon. I know I speak for everyone when I say that I wish you well.
Sir David Amess (Conservative, Southend West)
We will have a two-minute pause.
Examination of Witnesses
Sir David Amess (Conservative, Southend West)
In our last session this afternoon we will hear from Alex Maskey, the Speaker of the Northern Ireland Assembly; Lesley Hogg, the Clerk of the Northern Ireland Assembly; and Dr Gareth McGrath, the director of parliamentary services at the Northern Ireland Assembly. This is just to prove that I can read what is in front of me. I have introduced our three witnesses, but would you expand on your jobs, please?
Sir David Amess (Conservative, Southend West)
Thank you for your time this afternoon. Which colleague would like to ask the first question? I call Mr Stephen Farry.
Stephen Farry (Alliance, North Down)
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.
Stephen Farry (Alliance, North Down)
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.
Alex Davies-Jones (Labour, Pontypridd)
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 Davies-Jones (Labour, Pontypridd)
Q In the Bill, it is not clear how the ministerial code will be enforceable. Do you think that will make it hard for Members of the Legislative Assembly to hold Ministers to account?
Alex Davies-Jones (Labour, Pontypridd)
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?
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?
Claire Hanna (Social Democratic and Labour Party, Belfast South)
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?
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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?
Gavin Robinson (DUP, Belfast East)
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?
Robin Walker (Conservative, Worcester)
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?
Robin Walker (Conservative, Worcester)
Q I wholly agree. Are you not concerned, though, that if we were to try to deal with matters relating to the Standing Orders of the Assembly in Westminster legislation, that would risk overriding some of the provisions made in the Good Friday agreement for Standing Orders to be agreed on a cross-community basis? I appreciate that there have been times when it has not been possible to agree Standing Orders, but is it not better for any changes required to be agreed within the committees of the Assembly, so that it shows that maturity and control over its own processes?
Robin Walker (Conservative, Worcester)
Q On the issue of the Deputy Speakers, the NDNA deal states clearly:
“The Speaker and the three Deputy Speakers shall not sign a Petition.”
How do you interpret that? You expressed concern about being able to recruit Deputy Speakers. Can you give the Committee any further evidence as to that? Has that been a challenge? To what extent has the willingness of parties to put forward their Members as a Deputy Speaker been a challenge to date?
Robin Walker (Conservative, Worcester)
Q Thank you. May I turn to Gareth McGrath and the contents of clause 5? The Bill will require petitions of concern to be signed and confirmed by at least 30 MLAs from two or more political parties. Do you agree that this will better ensure that the mechanism is used on a cross-party basis, reflecting concerns across the community?
Robin Walker (Conservative, Worcester)
Q We have heard some evidence today from witnesses that the 14-day consideration period is welcomed in terms of the opportunities it could provide for people to rethink a petition of concern or find other ways of resolving concern. To come back to the issue of how we ensure that it is not in any way misused, do you think that is something that could be resolved through changes to Standing Orders in the Assembly?
Robin Walker (Conservative, Worcester)
Q I am certainly happy for our officials to follow up with you on this and continue this conversation. It is important that we get the detail of this right. I am very grateful to all three of you for your input.
Sir David Amess (Conservative, Southend West)
Q Are there any other questions from colleagues? If there are no other questions, do our witnesses want to make any final comments?
Sir David Amess (Conservative, Southend West)
On behalf of the Committee, I would like to thank our three witnesses very much indeed for the time they have spent with us. We are very grateful.