Assembly and Executive Review Committee
Review of
Petitions of Concern
Together with the Minutes of Proceedings of the Committee Relating to the Report,
Minutes of Evidence, Written Submissions and Research Papers
Ordered by the Assembly and Executive Review Committee to be printed 25 March 2014
Report: NIA 166/11-15 (Assembly and Executive Review Committee)
REPORT EMBARGOED
UNTIL COMMENCEMENT OF
THE DEBATE IN PLENARY
- Mandate 2011/15
- Fifth Report
Powers and Membership
Powers and Membership
Powers
The Assembly and Executive Review Committee is a Standing Committee established in accordance with Section 29A and 29B of the Northern Ireland Act 1998 and Standing Order 59 which states:
“(1) There shall be a standing committee of the Assembly to be known as the
Assembly and Executive Review Committee.
(2)
(3)
The committee may - (a) (b) exercise the power in section 44(1) of the Northern Ireland Act 1998; report from time to time to the Assembly and the Executive Committee.
The committee shall consider - (a)
(b) such matters relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998 as enable it to make the report referred to in section 29A(3) of that Act; and
such other matters relating to the functioning of the Assembly or the Executive Committee as may be referred to it by the Assembly.”
Membership
The Committee has eleven members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows:
■ Stephen Moutray (Chairperson) ■ Pat Sheehan (Deputy Chairperson) ■ Alex Attwood1 ■ Roy Beggs ■ Paula Bradley2 ■ Gregory Campbell ■ Paul Givan ■ Trevor Lunn3 ■ Raymond McCartney ■ Seán Rogers 4 5 6 ■ Caitríona Ruane 7 8
- 1
- With effect from 4 September 2013 Mr Conall McDevitt resigned as a Member; with effect from 7 October 2013
Mr Alex Attwood replaced Mr Conall McDevitt
23456
With effect from 3 February 2014 Ms Paula Bradley replaced Mr Simon Hamilton With effect from 1 October 2013 Mr Trevor Lunn replaced Mr Stewart Dickson With effect from 26 September 2011 Mrs Sandra Overend replaced Mr Mike Nesbitt With effect from 23 April 2011 Mr John McCallister replaced Mrs Sandra Overend With effect from 04 March 2013 Mr Seán Rogers filled the vacancy created by the departure of Mr John McCallister from the Committee
78
With effect from 12 September 2011 Mr Pat Doherty replaced Mr Paul Maskey With effect from 10 September 2012 Ms Caitríona Ruane filled the vacancy created by the resignation of Mr Pat Doherty from the Assembly
- i
- ii
Table of Contents
Table of Contents
Review of Petitions of Concern
- Executive Summary
- 1
- 3
- Introduction
The Committee’s Approach to the Review Committee Consideration
57
- Committee Analysis and Conclusions
- 16
Appendices
Appendix 1
- Minutes of Proceedings
- 23
47
Appendix 2
Minutes of Evidence
Appendix 3
Options Paper on Petitions of Concern:
- Ad Hoc Committee on Conformity with Equality Requirements
- 113
Appendix 4
- Options Paper — Party Responses:
- 127
128 130 131 133 134
Alliance Party Democratic Unionist Party (DUP) Sinn Féin (SF) Social Democratic and Labour Party (SDLP) Ulster Unionist Party (UUP)
Appendix 5
- Correspondence and other papers relating to the Review
- 137
181
Appendix 6
Assembly Research Papers iii
Review of Petitions of Concern
iv
Executive Summary
Executive Summary
- 1.
- The Assembly and Executive Review Committee is a Standing Committee of the Northern
Ireland Assembly that was established to:
■ make a report to the Secretary of State, the Assembly and the Executive Committee, by no later than 1 May 2015, on the operation of Parts III and IV of the Northern Ireland Act 1998; and
■ consider such other matters relating to the functioning of the Assembly or the Executive as may be referred to it by the Assembly.
2.
3.
On 14th January 2014, the Committee agreed the Terms of Reference for its Review of Petitions of Concern.
The Committee considered relevant sections of the evidence received from its previous
Review of D’Hondt, Community, Designation and Provisions for Opposition, as part of this
directly addressed the Review of Petitions of Concern. One of the conclusions in the
Committee’s Report on this Review stated that ‘further detailed work on Petitions of Concern
needs to be carried out’. The Committee also commissioned and considered three Assembly Research Papers that informed Members’ discussions and views on the issues arising from this Review.
- 4.
- As set out in the Terms of Reference, the Review considered evidence on Petitions of
Concern in relation to:
■ provisions for voting on an Ad Hoc Committee on Conformity with Equality Requirements prior to the vote on a Petition of Concern.
■ the possibility of restricting the use of Petitions of Concern to certain key areas, and mechanisms that might facilitate this.
■ whether the current threshold of 30 signatures required for a Petition of Concern should be adjusted.
■ whether the Petitions of Concern mechanism should be replaced with an alternative mechanism, such as a weighted-majority vote.
The Committee concluded that:
5.
While there was support among some Parties on the Committee for the use of the alternative mechanism of a weighted-majority vote for matters subject to a Petition of Concern, there was no consensus on this issue. Therefore, in this context, the Committee reaffirmed the following conclusion from its previous Report: “…there was no consensus for replacement of community designation [and Petitions of Concern] by, for example, a weighted-majority vote in the Assembly of 65%.”
6. 7. 8.
Although there was some support among the Parties represented on the Committee for restricting the use of Petitions of Concern to key areas, there was no consensus among the Committee on how that would operate.
The Committee agreed that, should the number of MLAs in the Assembly be reduced, there should be a proportional change in the number of MLA signatures required to trigger a Petition of Concern.
While there was some support among the Committee for taking a vote on the establishment of an ACER only when a Petition of Concern relates to legislation, there was no consensus on this issue.
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Review of Petitions of Concern
9.
Even though there was some support for the establishment of a Standing Committee on Equality and Human Rights Conformity to replace the Ad Hoc Committee mechanism referred to in Standing Orders 35 and 60, there was no consensus on this issue.
10.
It is important to highlight that although the Committee did not achieve consensus for most of its conclusions on this complex subject, the Report sets out in some detail the options considered together with the individual Party positions on specific options. The Committee therefore sees that this Report provides valuable information for the Assembly to reach a way forward on this matter.
2
Introduction
Introduction
Background to the Review
- 11.
- In September 2013, the Committee agreed that its next area of work would be a Review of
Petitions of Concern. The Committee then spent some time considering the scope of the Review and key issues related to the Review – in particular, the issue of Ad Hoc Committees on Conformity with Equality requirements and Petitions of Concern.
12.
13.
In January 2014, the Committee agreed the Terms of Reference for its Review of Petitions of Concern. The terms of reference and the Committee’s approach to the Review are set out in the next section of this Report.
The Committee had raised the issue of Petitions of Concern in the course of its ‘Review of
D’Hondt, Community Designation and Provisions for Opposition’, which was published on
18th June 2013. In the ‘Community Designation’ section of the ‘Call for Evidence’ paper for that Review, which was issued on 12th February 2013, the Committee asked:
Do you believe that there should be changes to the “rules” governing Petitions of Concern? If so, what changes do you propose?
There were 22 responses to this ‘Call for Evidence’, and respondents included Political Parties, academics and others. Relevant extracts from these responses can be found at Appendix 5.
14.
15.
There was a wide range of opinions expressed regarding the Petitions of Concern mechanism and a number of responses on specific issues are highlighted in the ‘Committee Consideration’ section of this Report. Professor Cochrane, from the University of Kent, stated
that the “Petitions of Concern provide some much needed room for manoeuvre in my view and should be retained in their current form . ” In contrast, the TUV response to the ‘Call for Evidence’ described the mechanism as “a perverse instrument which is open to abuse . ”
Several of the stakeholder responses referred to how the Petition of Concern mechanism was used. The UUP observed that the Petition of Concern mechanism was “being used on an increasingly frequent basis”, and that statement was echoed by the Centre for Opposition Studies, which suggested that the Petition of Concern “seems now to be a feature of
regular Assembly politics, rather than a signal of exceptional concern . ” However, Professors McCrudden and O’Leary et al argued that “the procedure has been used relatively sparingly . ” Nevertheless, they also observed that “the Petition of Concern has occasionally been abused to block decisions which have nothing to do with community-specific vital nationalist or unionist interests . ” This concern was echoed by Professor Cochrane, who highlighted “the continuing danger that Petitions of Concern are being over-used for the purpose of obstructing the business of government”.
16. 17.
Professor Galligan stated that “There is some disagreement as to the extent to which the practice of employing Petitions of Concern has conformed to the underpinning intention of the provision . ” The UUP response also referred to “the original intent of providing this mechanism”,
and the Centre for Opposition Studies suggested that “The invoking of community
designations on a regular basis in this way reinforces sectarian divisions, and seems to go beyond the intended purpose of the mechanism . ”
During the ‘Review of D’Hondt, Community Designation and Provisions for Opposition’, the
Committee also received correspondence from the Committee on Procedures dated 22nd April 2013 (see Appendix 5), which highlighted an important issue relating to Petitions of Concern. This information referred to the issue of whether a “measure” against which a
Petition of Concern is tabled “can proceed or should be referred to an Ad Hoc Committee on Conformity with Equality Requirements (ACER) every time there is a Petition of Concern . ”
3
Review of Petitions of Concern
- 18.
- Given the complexities involved and the range of issues raised in the ‘Call for Evidence’
responses and in the information from the Committee on Procedures, the Committee agreed
the following conclusion in its Report on the ‘Review of D’Hondt, Community Designation and Provisions for Opposition’ (see Appendix 5):
Following the evidence that was presented to the Committee regarding Petitions of Concern, the Committee concluded that further detailed work in relation to Petitions of Concern needs to be carried out.
- 19.
- The issue of Petitions of Concern also arose during the House of Commons consideration of
the Northern Ireland (Miscellaneous Provisions) Bill 2013. During the Report Stage of the
Northern Ireland (Miscellaneous Provisions) Bill 2013 in the House of Commons on 18th November 2013, Mr Mark Durkan, MP, proposed an amendment (see Appendix 5) that would:
“… amend the Northern Ireland Act 1998 to reflect the terms and intent of paragraphs 11, 12 and 13 of strand 1 of the Belfast Agreement. It would qualify the exercise of veto powers, via petitions of concern in the Assembly, through the consideration of possible equality or human rights implications . ”
- 20.
- During the debate, Mr Durkan stated:
“The new clause and amendments are intended to return the position to what was intended in the Good Friday, or Belfast, agreement of 1998. New clause 2 seeks to reflect properly what was in paragraphs 11, 12 and 13 of the strand 1 paper, which provide for a petition of concern in respect of a measure or a proposal in the Assembly. Those paragraphs make clear that the petition of concern was not meant to be used as an open veto to be played like a joker at any time . ”
21. 22.
A further amendment (see Appendix 5) was proposed by the DUP, which would:
“… apply to Northern Ireland, the clarification provided in the Equality Act 2010 to restrict the good relation duty being cited against fulfilling equality obligations based on objective need . ”
During the debate, Mr Nigel Dodds MP stated:
“I understand that the Assembly and Executive Review Committee is dealing with this matter, among others, and I believe that that is the right and proper place for the issue to be decided on. It is for the parties in the Northern Ireland Assembly to agree or disagree to such matters relating to petitions of concern. I understand that 40% of the petitions of concern tabled in the Northern Ireland Assembly have been tabled by the nationalist parties, so this is not a question of one party tabling petitions in a way that abuses the process. This has happened right across the board . ”
- 23.
- It was acknowledged during the debate that the Assembly and Executive Review Committee
was undertaking a review of Petitions of Concern, so the proposed new clause was withdrawn, as Members expressed a hope that the issue would be resolved through the Assembly (see Hansard report of debate: http://www.publications.parliament.uk/pa/cm201314/cmhansrd/ cm131118/debtext/131118-0003.htm#13111834000098)
4
The Committee’s Approach to the Review
The Committee’s Approach to the Review
24. 25.
In September 2013, the Committee agreed that its next Review would look at Petitions of Concern, as one of the conclusions in its June 2013 Report on its ‘Review of D’Hondt,
Community Designation and Provisions for Opposition’ stated: Following the evidence that was presented to the Committee regarding Petitions of Concern, the Committee concluded that further detailed work in relation to Petitions of Concern needs to be carried out.
At its 24th September 2013 meeting, the Committee heard evidence from the Assembly Research and Information Service and Assembly Legal Service. Following these briefings, the Committee discussed its initial approach to the Review and agreed to draft a specific ‘Options Paper’ (Appendix 3) to be sent to the Leaders of the Parties represented on the Committee to directly inform its Review of Petitions of Concern. The Options Paper related specifically to the issue of voting on the establishment of an Ad Hoc Committee on Conformity with Equality Requirements (ACER) prior to a vote on a Petition of Concern.
26.
27.
The Options Paper was issued to the Leaders of the Parties represented on the Committee on 22nd October 2013, and the Committee considered and discussed the Party responses (Appendix 4) at its November and December 2013 meetings.
The Committee considered whether it wished to focus its Review specifically on the issue of Ad Hoc Committees and Petitions of Concern, or whether it wished to conduct a wider Review of Petitions of Concern. At its 10th December 2013 meeting, the Committee agreed to have a wider review of Petitions of Concern, and the Terms of Reference for this Review were agreed at the 14th January 2014 Committee meeting.
28.
The Terms of Reference for the Review are as follows:
The Assembly and Executive Review Committee will review Petitions of Concern, taking into account how the Petition of Concern has been used to date and the fact that the mechanism was designed as part of the safeguards to ensure that all sections of the community are protected and can participate and work together successfully in the operation of these institutions. The Committee will:
1.
Examine provisions for an Ad Hoc Committee on Conformity with Equality Requirements in relation to Petitions of Concern, including alternative procedures, e.g. the Westminster Joint Committee on Human Rights.
2.
3. 4.
Examine the possibility of restricting the use of Petitions of Concern to certain key areas, and consider mechanisms that might facilitate this.
Consider whether the current threshold of 30 signatures required for a Petition of Concern should be adjusted.
Consider whether the Petitions of Concern mechanism should be replaced with an alternative mechanism, such as a weighted-majority vote.
- 29.
- Rather than issuing a fresh ‘Call for Evidence’ for this Review, the Committee agreed that
it would consider relevant sections of the submissions to its Review of D’Hondt, Community
Designation and Provisions for Opposition to inform this Review of Petitions of Concern (see Appendix 5 – ‘Call for Evidence - Extracts of Relevant Responses’), as the ‘Call for Evidence’
paper for that Review specifically addressed the issue of Petitions of Concern (see paragraph 13 above).
5
Review of Petitions of Concern
30.
Similarly, the Committee agreed to consider relevant sections of the Hansard reports of
the oral evidence sessions taken during the Review of D’Hondt, Community Designation
and Provisions for Opposition to inform the Review of Petitions of Concern, as some of the evidence directly referred to this issue (see Appendix 2).
31.
The following oral evidence sessions were held as part of the Review of D’Hondt, Community Designation and Provisions for Opposition: Professor Rick Wilford, Queen’s University Belfast on 26th February 2013, Professor Christopher McCrudden, University of Oxford and Professor Brendan O’Leary, University of Pennsylvania on 5th March 2013, Professor Derek Birrell, University of Ulster on 19th March 2013, Professor Yvonne Galligan, Queen’s University Belfast on 23rd April 2013 and Dr Robin Wilson and Ms Eileen Cairnduff from Platform for Change on 7th May 2013. The Minutes of Evidence (Hansards) for these oral evidence sessions are at Appendix 2.
32. 33.
All Minutes of Proceedings relevant to the Committee’s Review are included at Appendix 1. As part of the Committee consideration, at the Committee meeting of 24th September, the Assembly Research and Information Service (RaISe) presented a briefing paper, ‘Additional information on Petitions of Concern’ which provided information on Petitions of Concern, which had previously been presented to the Committee on 7th May 2013 (including an extract from
an earlier briefing), as part of its Review of D’Hondt, Community Designation and Provisions for
Opposition. This Research Briefing Paper included various analyses of Petitions of Concern submitted since the establishment of the Assembly in 1998, with Table 3 giving the subject and date of each petition, whether it was brought by a Nationalist or Unionist and the Party or Parties who signed the petition. Further Research briefings were provided to the Committee on 14th January 2014 and 11th February 2014, providing information on conformity with human rights and equality issues. The Research Briefing Papers listed below are set out in full in Appendix 6 (and can also be found at: http://www.niassembly.gov.uk/assembly-business/
research-and-information-service-raise/research-publications/publications-2012/).
■ Opposition, community designation and D’Hondt – Extract (4 December 2012) ■ Additional information on Petitions of Concern (2 May 2013) ■ Standing Committees that examine conformity with human rights and equality issues in legislatures in the UK and Ireland (9 January 2014)
■ Human Rights and Equality Proofing of Public Bills (10 February 2014)
34.
The ‘Committee Consideration’ section of this Report — immediately below — is structured into four subsections that specifically address in turn the four key issues set out in the Terms of Reference of this Review. Similarly, the ‘Committee Analysis and Conclusions’ section is divided into these four subsections, with four specific Committee Papers on each issue drawn up to assist in the Committee’s deliberations. The four papers include options for draft conclusions of this Review, which were considered by the Committee at its 11th, 25th February and 11th March 2014 meetings — the papers can be found at Appendix 5.