PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

NORTHERN IRELAND (MINISTERS, ELECTIONS AND PETITIONS OF CONCERN) BILL

First Sitting

Tuesday 29 June 2021

(Morning)

CONTENTS Programme motion agreed to. Written evidence (Reporting to the House) motion agreed to. Motion to sit in private agreed to. Examination of witnesses. Adjourned till this day at Two o’clock.

PBC (Bill 7) 2021 - 2022 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Saturday 3 July 2021

© Parliamentary Copyright House of Commons 2021 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 2 and Petitions of Concern) Bill

The Committee consisted of the following Members:

Chairs: SIR DAVID AMESS, †GRAHAM STRINGER

† Anderson, Stuart (Wolverhampton South West) † Mann, Scott (Lord Commissioner of Her Majesty’s (Con) Treasury) † Benton, Scott (Blackpool South) (Con) † Marson, Julie (Hertford and Stortford) (Con) † Brereton, Jack (Stoke-on-Trent South) (Con) † Moore, Robbie (Keighley) (Con) † Owatemi, Taiwo (Coventry North West) (Lab) † Butler, Rob (Con) (Aylesbury) † Robinson, Gavin (Belfast East) (DUP) † Davies-Jones, Alex (Pontypridd) (Lab) † Sunderland, James (Bracknell) (Con) † Dines, Miss Sarah (Derbyshire Dales) (Con) † Walker, Mr Robin (Minister of State, Northern † Eastwood, Colum (Foyle) (SDLP) Ireland Office) † Farry, Stephen (North Down) (Alliance) Jo Dodd, Sarah Ioannou, Haigh, Louise (Sheffield, Heeley) (Lab) Committee Clerks † Hanna, Claire (Belfast South) (SDLP) † attended the Committee

Witnesses

Daniel Holder, Deputy Director, Committee on the Administration of Justice

Professor Jonathan Tonge, Professor of Politics, University of Liverpool

Lilah Howson-Smith, former special adviser to Julian Smith at the Northern Ireland Office 3 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 4 and Petitions of Concern) Bill 3. the proceedings shall (so far as not previously concluded) be Public Bill Committee brought to a conclusion at 5.00 pm on Thursday 8 July.—(Mr Robin Walker.) Tuesday 29 June 2021 Resolved, (Morning) That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Robin Walker.) [GRAHAM STRINGER in the Chair]

Northern Ireland (Ministers, Elections and The Chair: Copies of written evidence that the Committee Petitions of Concern) Bill receives will be made available in the Committee Room and circulated to Members by email. 9.25 am Resolved, The Chair: Before we begin, I have a few preliminary That, at this and any subsequent meeting at which oral evidence announcements. Hon. Members will understand the is to be heard, the Committee shall sit in private until the need to respect social distancing guidance, in line witnesses are admitted.—(Mr Robin Walker.) with the House of Commons Commission decision. Face coverings should be worn in Committee unless 9.27 am Members are speaking or medically exempt. Hansard The Committee deliberated in private. colleagues would be grateful if Members emailed their speaking notes to [email protected]. Please switch electronic devices to silent mode. I remind Examination of Witnesses Members—sometimes people forget—that tea and coffee Daniel Holder and Professor Jonathan Tonge gave are not allowed during sittings. evidence. Today we will first consider the programme motion on the amendment paper, then a motion to enable the 9.28 am reporting of written evidence for publication and then a motion to allow us to deliberate in private about our The Chair: We are now sitting in public again and the questions before the oral evidence session. In view of proceedings are being broadcast. Before we start to hear the time available, I hope that we can deal with those from the witnesses, do any Members wish to declare any matters formally, without debate. interests in connection with the Bill? No. We will now Ordered, hear oral evidence from Daniel Holder of the Committee That— on the Administration of Justice, and from Professor 1. the Committee shall (in addition to its first meeting at Jonathan Tonge of the University of Liverpool. Before 9.25 am on Tuesday 29 June) meet— calling the first Member to ask questions, I remind all (a) at 2.00 pm on Tuesday 29 June; Members that questions should be limited to matters (b) at 9.25 am and 2.00 pm on Tuesday 6 July; within the scope of the Bill and that we must stick to the (c) at 11.30 am and 2.00 pm on Thursday 8 July; timings in the programme motion to which the Committee 2. the Committee shall hear oral evidence in accordance with has agreed. For this session, we have until 10.30 am. the following Table: May I ask the witnesses to introduce themselves, starting with Daniel Holder? Date Time Witness Daniel Holder: Good morning. I am Daniel Holder, Tuesday 29 June Until no later The Committee on the Deputy Director of the Committee on the than 10.30 am the Administration Administration of Justice, a Belfast-based human rights of Justice; organisation. Professor Jonathan Professor Tonge: Good morning, and thank you to Tonge, University of the Committee for the invitation to be here. I am Liverpool Professor Jon Tonge, Professor of British and Irish Tuesday 29 June Until no later Lilah Howson-Smith Politics at the University of Liverpool and author of than 11.25 am various books on politics in Northern Ireland. Tuesday 29 June Until no later Sir Jonathan than 2.30 pm Stephens Tuesday 29 June Until no later Emma Little- The Chair: Thank you very much. Minister, would than 3.15 pm Pengelly you like to ask the first question? Tuesday 29 June Until no later Mark Durkan than 4.00 pm Q1 The Minister of State, Northern Ireland Office Tuesday 29 June Until no later Alex Maskey, (Mr Robin Walker): Thank you. It is a pleasure to serve than 4.45 pm Speaker of the Northern Ireland under your Chairmanship, Mr Stringer. This is a question Assembly; for Daniel Holder. In the briefing note that your Lesley Hogg, Clerk organisation prepared for the Second Reading of this of the Northern Bill, you welcomed the fact that, Ireland Assembly; “the current bill will provide a level of legislative reform intended Dr Gareth McGrath, to return the Petition of Concern to its intended GFA purpose.” Director of Could you tell the Committee about the limitations Parliamentary with the current mechanism and how provisions within Services, Northern Ireland Assembly this Bill will return the petition of concern to its intended purpose, in your view? 5 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 6 and Petitions of Concern) Bill Daniel Holder: If we look back at the intended purpose both Executive and legislative powers are properly put of the petition of concern, it was very much linked to a into place that the institutions should begin to function level of scrutiny of what would be objective rights and as they were originally intended to. quality standards. Every time a petition of concern is tabled, unless there is a cross-community vote to the Q3 Mr Walker: Yourecommended that MPs examine contrary, it was to be referred to a special committee, changes to address the St Andrews veto. Can you explain the Ad Hoc Committee on Conformity with Equality what that is and how often it has been used? Requirements. This serves a similar function to the Daniel Holder: It is the case that since NDNA not a Joint Committee on Human Rights at Westminster in single petition of concern has been tabled. Its use has actually scrutinising provisions of a contested piece of become, it appears now at least, politically untenable. legislation that has been referred to a petition of concern There is a significant risk that the problems that were against standards that include the ECHR, but also the associated with the petition of concern will simply be Northern Ireland Bill of Rights. There is obviously a displaced and picked up by the use of other veto-type significant gap there, as the Northern Ireland Bill of mechanisms. Rights has not been put into place. So there are two vetoes: one is the St Andrews veto, One of the problems, however, is that a committee which is whereby any significant or controversial decision has never been established as a result of a petition of that a Minister has taken must be referred to the full concern. Instead, what has essentially happened is that Executive unless it is already within an agreed programme the original intention of the petition of concern has for government, but, of course, despite the draft being been turned on its head somewhat. At times, it has in NDNA, we do not have an agreed programme, so at actually been used not just for party-political purposes the moment it means practically any decision. but to block equality of rights initiatives rather than as an equality of rights-based tool. Therefore, we do welcome We have managed to obtain under freedom of the reform that is within both the New Decade, New information the amount of times this veto was used in Approach agreement and the Bill. the first 11 months of the current mandate. It was used six times. On each occasion it was invoked by DUP However, my recommendations to the Committee Ministers. On the first three occasions it was used to have identified one weakness, which is that essentially block provision for early medical abortion services and what is in the Bill will replicate what is in the current engagement with women’s reproductive rights. On two primary legislation regarding the establishment of the other occasions, which were quite public, it was used, Ad Hoc Committee on Conformity with Equality again by DUP Ministers to block proposals from the Requirements. Unfortunately, to date that has not proved Health Minister for public health measures to contain sufficient to ensure that standing orders are drafted in a the pandemic. On a final occasion it was used to block way that ensures that the ad hoc committee is convened an SDLP proposal seeking an Executive position on the every time a petition of concern is tabled, as the Belfast extension of the Brexit timeframe. Those six occasions agreement originally intended. That is one area I wanted are the same number of occasions that that particular to draw to the attention of the Committee, so that it can veto was exercised during the entirety of the 2007 to deal with that codification in the primary legislation to 2011 mandate, so there is a significant risk of displacement ensure that the commitment in the NDNA agreement now. to return to the original purpose of the Good Friday agreement is met. The second veto that we have noticed has been readily used is a provision in the ministerial code whereby the First and Deputy First Ministers both must agree on Q2 Mr Walker: Thank you. With regard to that agenda items for the Executive, which in practice gives second area, NDNA also committed to setting up a either a veto. Although we do not have a full list of the committee within the Assembly to look at the Bill of occasions it has been used—that has been withheld Rights and take that work forward. Are you following from the freedom of information requests that we the work of that committee, and do you have any views submitted—we certainly know that it has been used. as to how that is progressing? For example—as referenced in a UK Government report Daniel Holder: Yes, we have given evidence twice to to the Council of Europe—it was used to block a that committee—once in the capacity of the CAJ and timeframe for adopting the Irish and Ulster Scots strategies, secondly as co-conveners of the Equality Coalition, despite them being legal requirements. It was used to which is a network of equality and rights non-Governmental block the draft budget from being on the agenda for, I organisations that we co-run with UNISON. It has think, around a month and a half of the Executive. been extremely important that that committee is Most recently, this month, the communities Minister established, and it is progressing its work. We keep has stated that particular veto was used 17 times to coming back to our evidence that really the Bill of prevent legislation to close loopholes in welfare legislation Rights was supposed to be a safeguard to prevent the being tabled for the Executive. type of abuse of power, rights deficits and discriminatory The Justice Minister has also referenced occasions decision making that characterised not only the old where perhaps one of the two vetoes, we do not know Stormont Parliament but patterns and practices that strictly which one, was used to block for a period of re-emerged and were instrumental in the collapse of the time the Justice Bill being introduced into the Assembly institutions in 2017. that dealt with issues around gender-based violence. So it is in some senses to us not surprising that Indeed, the Health Minister has publicly stated that the safeguards that were envisaged within the agreement gender veto was used to prevent, until this week, I that have not been put into place have led to a situation think, legislation being taken forward on opt-out for whereby Stormont becomes unworkable and dysfunctional. organ donations. So, there is a real issue whereby we I think it is only if these safeguards over the exercise of could deal with the petition of concern but be left with 7 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 8 and Petitions of Concern) Bill the same problem simply being displaced on to other just after the election in December 2019. So the public veto mechanisms that are well outside what was originally have never lost faith with devolved power sharing. They intended by the Belfast Agreement, which was that such have continued to support it. mechanisms would be safeguards scrutinised against Moreover, there were substantial majorities, both in rights and equalities standards, which would bring a the main communities and among those who say they degree of objectivity as to their use into decision making. are neither Unionist nor nationalist, in favour of the principles of devolved power sharing, including that Q4 Mr Walker: Given the equivalence that you see key decisions should be taken by concurrent majorities between the petition of concern mechanism and these among Unionist and nationalist representatives. So I other mechanisms in the Executive, why do you think think you would also conclude from the 2019 election that those reforms were not included as part of the that part of the reason that DUP and Sinn Féin lost NDNA deals? Obviously, that was something that all support was that they were being blamed for the absence parties had a say in and the Irish and British Governments of devolution. worked together on. Why do you think that equivalence When we asked, “What is the most important issue at was not delivered as part of that deal itself? this election?”, restoration of the Assembly was listed Daniel Holder: Of course, we were not in the room fourth. There were others that were higher—Brexit and during the negotiations. It is possible that those who the crisis in the health service pre-covid, which of course most used those vetoes perhaps resisted reforms to was a derivative of the absence of devolution—but them. We don’t know that. But I think another factor in restoration of the Assembly came fourth in terms of the this is that these types of vetoes have not had the public importance of issues, and was above that among those profile that the petition of concern has had. When a who said they were neither Unionist nor nationalist. So petition of concern is tabled, at least it is done in full clearly it is of seismic importance to keep the devolved public sight on the Floor of the Assembly, whereas with power sharing show on the road, and that is why I the St Andrews veto and indeed the Executive agenda endorse the vast bulk, but not everything, of what is in veto it is done within what is usually the secret world of this Bill. Cabinet confidentiality of the Executive, although I think the frustrations as to the use of these particular Q6 Mr Walker: In terms of what you have seen since vetoes have spilled over in the last year, which is why a then with the restoration of power sharing—obviously, lot more information about them is in the public domain. the pandemic has meant that we have been living through Also, while Ministers have the St Andrews veto, the extraordinary times; I think it is unimaginable what it concepts of significant and controversial are deeply would have been like to try and deal with it without the subjective, of course these are ministerial decisions that Executive in place—have you done any further research are still subject to judicial review. They have to be on the perceptions of the public of the period of government compatible with convention rights. If the Bill of Rights that we have seen? was in place, they would need to be compatible with the Professor Tonge: No, because I run the general election provisions of the Bill of Rights. For example, the veto surveys in Northern Ireland, but the Northern Ireland over public health measures to contain the pandemic life and times survey has subsequently shown continuing and the context in which it was exercised, we consider support for devolved power sharing. That is an annual would probably have been unlawful if the Bill of Rights survey run by Queen’s University and the University of had been in place with the right to the highest sustainable Ulster, and it again showed substantial support for standard of health integrated within it. devolved power sharing. That survey work is limited in There have been other occasions whereby in judicial the sense that it does not ask what we should do about proceedings the use of these vetoes have been drawn reforms of power sharing. We have just heard about out, but quite often they occur in secret, so a lot less is petitions of concern. I would endorse a lot of what known about them. Daniel said in respect of that. The explanatory notes to the Bill talk about the Q5 Mr Walker: Thank you. Professor Tonge, in your petition of concern mechanism having departed from analysis of the 2017 and 2019 elections, you identified its intended purpose, the restoration of the Assembly and its institutions as “which was to ensure that all sections of the community are one of the key issues facing Northern Ireland at both protected”. elections. How important do you perceive it to be for I agree, but I think petitions of concern are the least the state of politics in Northern Ireland that the Executive important aspect of the vetoes that often frustrate the and the Assembly have been restored and that the public in Northern Ireland. I am not saying that they Assembly is again able to legislate for Northern Ireland? are museum pieces, but I think petitions of concern Professor Tonge: I think it is hugely important, because were a product of their time. They were a big feature of in successive surveys that we have done—I have directed the Assembly from 2011 to 2016, with 115 petitions of the last four Economic and Social Research Council concern tabled, albeit across only 14 Bills. The petitions Northern Ireland election surveys—every time we have of concern in which the DUP was involved were solo asked the question, “What is your preferred mode of runs in the vast bulk of cases—82 out of 86 petitions of governance?”, direct rule has never come above 15% as concern that the DUP signed. a preferred option. Devolved power sharing is However, given the reduction in size of the Assembly overwhelmingly a preferred option that comes back from 108 to 90 Members in 2016-17, and given the fact from each of those surveys—never larger, it should be that I do not think it is conceivable that any party will said, than in 2019, which might be seen as remarkable get to 30 Assembly seats in the near future, the legislation given the hiatus in devolution from January 2017 until before us is to some extent closing the stable door after 9 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 10 and Petitions of Concern) Bill the horse has bolted. To be honest, much as I welcome Daniel Holder: Thank you very much. Wehave engaged what is in the Bill in terms of the 14-day consideration both as CAJ and as part of the Equality Coalition, before a petition of concern is tabled and the fact that which represents a broad section of groups from across there has to be two or more parties, petitions of concern the sector. In 2013 we published a report called “Mapping are less of an issue than the forms of veto that frustrate the Rollback?” about the unimplemented commitments the public, as Daniel emphasised in his evidence. of the peace agreement, 15 years on from the Belfast One other point I would like to make about petitions agreement. It examined and produced a matrix of what of concern is that if they are not about just a single had not been implemented and the problems that had section of the community but are about protecting all caused in terms of a return to some of the patterns and the community, is there not a case for a petition of practices—for example gerrymandering within housing— concern to have to be signed by two parties that are not that had beset the previous, pre-troubles Stormont from the same section of community? Why does it not institutions. have to be signed by two parties from different sections We also produced in 2018, as a part of a coalition, of the community—nationalists and others, or Unionists what we call the “Manifesto for a Rights Based Return and others, or Unionists and nationalists? That would to Power Sharing,” which looked at the restoration of really turn petitions of concern from communal protection power sharing but in a manner that power sharing into what they were intended for, which was to protect would not simply be restored only to collapse for all sections of the community. That does not appear in exactly the same reasons that led to its implosion in the Bill. 2017. That was largely beyond the renewable heat incentive issue; it was issues around rights deficits, sectarianism Q7 Mr Walker: The Bill does not do anything to stop in decision making and a lack of safeguards to qualify that. It requires 30 Members from more than one party, Executive power in the way that the agreement originally so in theory could you not have various different parties intended. getting together to put those forward, given the way the This year, 23 years on from the agreement, we did a Bill is drafted? significant stocktake on the back of the “New Decade, Professor Tonge: That is true, but there is nothing to New Approach” report. We again mapped the level of prohibit, for example, the DUP and UUP, or on the non-implementation of commitments in a matrix and other side Sinn Féin and the SDLP, combining to table pushed on a call to end this endless cycle where we have a petition of concern, which keeps that sense of communal renegotiation and fresh agreements, then bodies reneging politics. You might think that is perfectly legitimate—that, on the commitments and the agreements, and we end up frankly, you have to have communal protection—but going back into an almost endless cycle of renegotiation. the Good Friday agreement and the explanatory notes We looked specifically at some of the decisions that had to the Bill state that petitions of concern are been instrumental in bringing down power sharing and how they could have been prevented, for example if the “to ensure that all sections of the community are protected”. Bill of Rights had been in place. You would still be permitting communal protection, and perhaps specifically communal protection, by allowing two parties from the same side—I use those terms advisedly, obviously—to table a petition of concern. Q9 Alex Davies-Jones: You mentioned the Bill of Rights, which is a reserved measure for Westminster. Why is it so important for the stability of the Assembly Mr Walker: Sure, but I would take it as all sections of and the integrity of the Good Friday agreement? the community including those communities, but not Daniel Holder: I think the best way of answering that exclusive to those communities, therefore allowing any is to give a couple of examples. In 2017, when the two parties to come together, or indeed Members from Assembly collapsed, one of the straws that broke the some parties and none. That addresses that point. I see camel’s back was what was called the líofa decision, where you are coming from. I think you have already from the Irish word for fluency. This was a decision answered my supplementary questions in the extra made by the then Minister for Communities, who is information you provided on petitions of concern, so I currently the First Minister, to cut quite a small Irish am happy to hand over to the Opposition. language bursary scheme—I think it was around £50,000 —that enabled children from lower-income families to The Chair: Thank you, Minister. Before I move on attend the summer gaeltacht schemes. That caused a to the official Opposition, I remind members of the huge outcry; the decision was widely seen as sectarian Committee of the point I made before we started—that and it was one of the issues referenced in the Deputy tea and coffee cannot be consumed during Committee First Minister’s resignation letter. hearings. All we have to do is look back. In the same way that Ministers are very unlikely to breach the European Q8 Alex Davies-Jones (Pontypridd) (Lab): It is a convention on human rights because they know that pleasure to serve under your chairship, Mr Stringer. would be unlawful, had the Bill of Rights been in place Mr Holder, I will come to you first, as the representative that decision would have been easily challengeable as of the Committee on the Administration of Justice. The unlawful. I am thinking about a Bill of Rights as in the CAJ has done work in the past on the importance of advice of the Equality and Human Rights Commission the undelivered Good Friday agreement commitments that was delivered in 2008. A Bill of Rights that reflected and the role that, had they been implemented, they that advice would have had a provision that outlawed would have played in the stability of the Executive over discrimination, for example, on the basis of language. two decades. Would you outline your thinking and your Given the background, such a Bill of Rights would have research on that? prevented such a decision from happening. 11 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 12 and Petitions of Concern) Bill That was not the only Irish language decision that “set out in the ministerial code and in accordance with the destabilised power sharing. There was a decision, again requirement for an Executive Committee to consider any decisions primarily by a number of Democratic Unionist party that are significant, controversial and cross-cutting.”—[Official departments—the biggest impact was certainly from Report, 22 June 2021; Vol. 697, c. 821.] the Department of Education—to tear up a long-standing That is an Executive Committee, please note. That trilingualism policy that was in keeping with the United definition begs far more questions than it answers. Kingdom’shuman rights commitments under the European First, what ministerial decision is insignificant? That is charter for regional or minority languages. That is the an obvious question to ask. Secondly, the formation of Council of Europe treaty that was signed as a result of the Executive Committee is a moot point. It is far from the Belfast agreement, with specific provisions for the clear in the Bill whether there would simply be a collection Irish language and the Ulster variant of Scots. The of individual Ministers, remnants from the previous Bill of Rights would have made that enforceable in Assembly and Executive, left in place for up to 24 weeks Northern Ireland, so decisions by DUP Ministers in, after the election, but d’Hondt is not run to re-establish say, the Department of Education or the Department those Ministers post-election. Obviously, the composition of Agriculture, to scrap those policies and introduce of the Executive Committee may change substantially if English-only policies would not have been compatible there is a change in party fortunes at that election. with the UK’s international human rights commitments Let us assume that the pre-election Ministers are left and would have been directly enforceable through a Bill in place for up to 24 weeks. First, there is a democratic of Rights, so that would not have happened. element: is that correct, given that the electorate might Equally, many discussions have sapped energy out of have spoken in a different way? More substantively, in the Executive discussion, because we have an endless terms of powers, is the question you asked: which cycle of very basic things that are present elsewhere in ministerial decisions will they be able to take that are the UK being blocked. An example would be single significant, controversial or cross-cutting? Will they be equality legislation. There are big gaps in the equality able to take decisions with financial implications in a law framework in legislation to prevent age discrimination caretaker capacity? I would seek clarification of those against children, for instance, or provisions around points from the Minister, because I am far from clear. harassment in the workplace on the basis of sexual The right hon. Member for East Antrim used the phrase orientation. These types of things have been endlessly “lame duck Ministers” during that 24-week period. It argued about and endlessly vetoed, yet they would have would be interesting to see what specific powers they had to already be in place by virtue of the Bill of Rights. will be able to use during that period of up to 24 weeks. It would have taken contentious issues off the table and enshrined them in what would essentially be equivalent Q12 Alex Davies-Jones: The purdah restrictions for in other countries to a constitutional framework, or the local government operate under the Local Government equivalent to what the Human Rights Act provides for Act 1986. They prevent the local authority from publishing convention rights. We think that would have provided a much more solid basis for power sharing, where a lot of “any material which, in whole or in part, appears to be designed to affect public support for a political party.” these misuses of power could not have taken place. The rules governing purdah in the UK Government are Q10 Alex Davies-Jones: Thank you. This is my final outlined in the Cabinet manual, and civil servants inform question to you. NDNA is just the latest agreement that their permanent secretaries if any requests by Ministers is easier to achieve than it is to implement. Should raise issues. Do you think that the Bill will provide civil Ministers be accountable for implementing the agreements servants with enough legal scope to push back on that act as the scaffolding for the peace process? Ministers making inappropriate requests during a caretaker Daniel Holder: Yes, we need mechanisms that ensure Administration? implementation, whether they are legal mechanisms, Professor Tonge: Yes, I am comfortable about the dispute-resolution mechanisms and so on. As the two Bill’s provisions in that respect. Actually, I think the exercises that we conducted show, both in 2013 and most comprehensive part of the Bill is the updating of more recently, we end up in the endless cycle where the ministerial code. It makes clear the need for the agreements are made, significant provisions are reneged separation of party political from ministerial matters. on and not implemented, and we have to return to In that respect, I am quite sanguine about the Bill doing another negotiation, usually to water down what was exactly what you suggest. originally agreed in a previous negotiation. It is incredibly frustrating and makes the institutions unworkable and Q13 Alex Davies-Jones: Do you think that the Bill dysfunctional. should set out how the code of conduct should be enforced? Q11 AlexDavies-Jones: Thank you, Mr Holder.Professor Tonge, I will come to you next. The briefing accompanying Professor Tonge: Therein lies a much bigger area: the Bill says that Ministers in the caretaker Executive how the code of conduct will actually be enforced, what would be operating within well-defined limits, but those will happen and whether we will simply see the traditional limits are not outlined. Is that a concern? Are there divide on party lines over its implementation. examples of how those limits could be better identified? There is one phrase in the code of conduct that Professor Tonge: Yes, I think that is a serious concern. slightly alarms me: New Decade,New Approach refers to “caretaker Ministers” “Ministers must…operate in a way conducive to promoting but that term does not appear in the explanatory notes good community relations”. to the Bill. During the debate on Second Reading, the No further definition is offered. What would constitute only definition of powers afforded to caretaker Ministers promoting bad or offensive community relations, as were those distinct from good community relations? To give one 13 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 14 and Petitions of Concern) Bill example, would a Minister who criticised Irish language majority voting, where, for example, any controversial provision while still implementing it be in breach of the measure would have to be passed by 70% of the Assembly code of conduct? Similarly, if a nationalist Minister as an entirety. There is something horribly reductionist praised aspects of a paramilitary campaign of the past, in requiring parties in the “centre ground” to designate would that be seen as non-conducive to good community as “Other”; I know that Alliance refuses to use the term relations, and would sanctions against that Minister be “Other”, as reductionist, and use that term as a “community available? It is far from clear,partly because it is ultimately first” label. a matter for the Assembly and the Executive to decide Have the communal designations served their purpose? how to impose sanctions. Yes, over time, but I think there is now a clear case for a I think that what is contained in the Bill is very fundamental review of Assembly rules to see whether it laudable in updating the ministerial code, but the devil is still necessary to have those Unionist and nationalist will be in the detail of implementation. Whether designations. Particularly if you got to the position implementation is actually possible in terms of sanction after the next Assembly election in which you had a against a Minister who is seen to be in breach of the First Minister from the largest party and the largest ministerial code—I think that that is where the difficulty designation who may be nationalist, but for example, will lie.I am not convinced that Westminster can necessarily Alliance was to be the second largest party, but because resolve that difficulty. it was not from the next largest designation it was not able to provide a Deputy First Minister, the case—which Q14 Alex Davies-Jones: Under the current wording, is already mounting—for a reappraisal of the rules “the Secretary of State may”— would become quite overwhelming. only “may”, rather than “must”— You can make the case against that by saying, “If you “issue a certificate” look at the recent Assembly elections, you’ve got 85% of outlining the date for a poll, even if the conditions for voters still voting for Unionist or nationalist parties”, cross-community representation are not met. Do you or certainly in excess of 80%. However, if you look at think that that is a mistake? Is there a risk of undermining the electorate as a whole, when we have done the last the principles of the Good Friday agreement if an four Northern Ireland election surveys, the largest single Executive drawn from one community is able to limp on category of elector now—as distinct from voter—is a at the behest of the Secretary of State? person saying they are neither Unionist nor nationalist. The life and times survey from two different universities Professor Tonge: I think that there has been a lot of shows exactly the same. That is the largest single category: limping on in the Assembly and Executive over the bigger than the Unionist category, bigger than the years, and there has been an arbitrariness about when a nationalist category. The Assembly rules as they are are poll should be called. We have had, in effect, two pieces in denial of that. of emergency legislation by previous Secretaries of State to prevent an election from being called and to update You might say, “Well, the percentage of actual voters the rules because an election was due. who are still Unionist or nationalist is still high”, but in terms of the electorate as a whole, there is a case for In a broader sense, I welcome the fact that the current reform of the rules, and the fact that you have those time periods of either seven days or 14 days are being communal designations is a deterrent to people voting extended to either 24 weeks or 48 weeks, to keep the in Northern Ireland who say they are neither Unionist show on the road. You simply cannot afford another nor nationalist. When we ask non-voters the question, collapse. I understand the principles behind the Bill, so “Whydidn’t you vote in the last election?”, those communal I do not think that we need to be too formulaic about rules come across loud and clear as one of the most giving the Secretary of State some discretion in that significant deterrents to people participating in the respect. The main purpose of the Bill is clear here: to electoral system, so in terms of the health of the body allow greater cooling-off periods before another election politic, I think there is a growing case for getting rid is called. If that means giving the Secretary of State of the communal designations. Whether Unionist or greater flexibility, so be it. nationalist politicians would concur with that is a very moot point. Q15 Alex Davies-Jones: A final question, Professor Tonge. At the moment, the First Minister and the Deputy First Minister must be drawn from the two Alex Davies-Jones: Thank you, witnesses; thank you, traditions: Unionist and nationalist. Do you believe Chair. No more questions from me. that this integral feature of the Good Friday agreement is at risk of becoming outdated if a party representing The Chair: Thank you. James Sunderland, and could neither achieves sufficient support? What do you think you state which of the witnesses your question is to, or could be done to remedy that? whether it is to both of them? Professor Tonge: I think it is outdated. It may soon look very outdated, depending on the performance of Q16 James Sunderland (Bracknell) (Con): Thank you, Alliance in the Assembly election that has to take place Mr Stringer; it is a great pleasure to serve under you as by 5 May next year. Chair. My question is to both witnesses in turn: would The communal designations more broadly are period you comment on the extent to which the petition of pieces; they were of their time, and they were necessary concern has been used as a veto? Is this perception or in their time. Is the Assembly ready for the complete reality? abolition of communal designations? It would be a bold Professor Tonge: I am happy to go first. It clearly was step, but it would probably be laudable. You could still used as a veto between 2011 and 2016. It was often used build in protections. The obvious way forward, if you as a solo run: the DUP, because of its very considerable get rid of communal designations, is to have qualified Assembly strength during that period, was in a position 15 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 16 and Petitions of Concern) Bill to veto not particularly the social and moral issues with that a Minister would be in breach of the code of which the veto is often associated—although they did conduct if he or she supported a petition of concern, use the veto for that—but welfare reform legislation. given that it went against Executive policy,so it encourages That was the most common form of veto; that was a sense of collective Executive responsibility—they cannot where the veto card was played the most. Some 115 petitions then go and grandstand on behalf of their party, which of concern were tabled, 86 from Unionist parties and is a good thing—and the fact that a POC cannot be another 29 from Sinn Féin and the SDLP, across just used at the second stage of a Bill, which is simply a 14 Bills.When you think that during that period, something discussion of general principles in the Assembly. All like 70 Bills were passed by the Assembly between 2011 those things contained in the Bill are very laudable and 2016, it was very much only a minority of Bills for Daniel Holder: From our perspective, the Bill represents which the veto card, if you want to call the petition of significant progress in relation to the petition of concern. concern that, was used. Petitions of concern were tabled I reiterate the gap that I mentioned earlier, however: it for only a relatively small percentage of Bills, but it was does not appear to deal with codifying in primary used quite extensively during that period. legislation and ensuring that the Standing Orders will Of course, as soon as the Assembly size was reduced follow the procedure that was intended under the agreement from 108 to 90 and no party could get up to 30 seats, the for the special procedure committee being set up. Also, petition of concern faded considerably in significance. there is the broader risk that the problems associated The six-monthly reports that now have to be produced with the petition of concern will simply be displaced on petitions of concern show clearly that it is simply not elsewhere into, for example, the St Andrews veto. a veto that can realistically be used these days by any Just to pick up on the caretaker Administration when single party anywhere. the First Ministers are not in place, again, there is a Daniel Holder: I suppose all I can add to that is just significant risk of a legal lacuna and that Ministers will to concur that, yes, the petition of concern was essentially not be able to take any decisions that are significant, used as a political veto, rather than—as alluded to which, as Professor Tonge has said, could be practically earlier—a mechanism whereby a particular measure or anything, or indeed any decisions that are controversial, piece of legislation would be scrutinised against rights which is anything that anyone wants to make politically and the European convention on human rights. contentious. That could be particularly problematic The only other point to add is that, of course, the where Ministers have to take steps to deal with legal actual use of the petition of concern and, indeed, the obligations or human rights obligations, for example, other vetoes, while they have not been used in large but will be unable to do so, as those decisions would numbers, really is the tip of the iceberg as to the broader have to be deferred to the full Executive committee that impact they actually have, particularly not just with the essentially does not exist. petition of concern but with the St Andrews and agenda vetoes. You will have a situation where Ministers simply A further problem we have identified is that there are will not progress particular initiatives or measures because certain duties that were core elements of the peace they know that they are likely to be vetoed. What is in agreement, such as the adoption, further to the legislation plain sight is perhaps the tip of the iceberg of a much passed at St Andrews, of an anti-poverty strategy on the broader problem in the way that what were supposed to basis of objective need to deal with the patterns of be safeguards have been flipped on their head and are deprivation that, in the past and present, have quite not used for their original, intended purpose. often fuelled conflict. That particular decision, and the strategies legislated for at the time of St Andrews to progress both the Irish language and Ulster Scots, are legal obligations on the full Northern Ireland Executive. Q17 James Sunderland: May I ask both witnesses to Again, those obligations would go into limbo in the confirm the extent to which they believe that the Bill caretaker period where you have no Executive able to will achieve the aim of making communities and parties adopt them. work more closely together without necessarily resorting to the use of the petition of concern as a veto? We welcome the provisions in the Bill that would Professor Tonge: Clearly, the Bill is laudable in how it strengthen the ministerial code. We would concur with deals will petitions of concern. It makes it much more Professor Tonge’s concerns, however,about the ambiguity difficult for parties, in one sense, to use petitions of in the term, “good community relations”, which is open concern, notwithstanding the fact that none of them to interpretation. In particular, it has been used in the has the Assembly strength to go solo in respect of past as a veto on, for example, new housing developments, petitions of concern. The message that comes from the on the grounds that the other community to that which Bill is quite clear: petitions of concern should be used has hitherto been dominant in that area may live in the only as a last resort and used to the benefit and for the house, and that is therefore not conducive to good protection of the entire community, not just communal community relations, which offends against the right to interests. I return to the point that I made earlier: I housing that should have been in place under the various would like to see petitions of concern confined to peace agreements. cross-community tabling, or at least having to go beyond On the ministerial code and enforcement, it is worth your community, so it would have to be a POC from noting that the private Member’s Bill of Jim Allister nationalists and others, or from Unionists and others, MLA, led to provisions whereby the Assembly standards for example. commissioner now can deal with breaches of the ministerial There is stuff in the Bill that is eminently sensible: the code. I should declare an interest, in the sense that my 14-day consideration stage before its deployment; the organisation, along with another one, has already issued fact that the Speaker, or three Deputy Speakers, cannot one such complaint that is under investigation, so it be involved in tabling a petition of concern; the fact would not be appropriate to go into the details. 17 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 18 and Petitions of Concern) Bill We have identified a potential ambiguity that may be Q19 Gavin Robinson: Although expressly on the face of relevance to the Committee to the extent that the of the agreement, it states that a special agreement may new provisions on enforceability just concern the code be established, but there is no requirement—it was not of conduct, not whether they also cover the pledge of mandated to be so. Do you accept that? office and broader provisions of the ministerial code. Daniel Holder: If you read paragraph 13 of strand 1 Our view certainly is, given the reference to the broader of the Good Friday agreement it says that, when a ministerial code in the code of conduct itself, that there petition of concern is tabled, should be a degree of enforceability of broader provisions. “the Assembly shall vote to determine whether a measure may Others may take a different view, and that is possibly proceed without reference to this special procedure. If this fails to something worth exploring further. achieve support on a cross-community basis...the special procedure shall be followed.” James Sunderland: Thank you. The agreement expressly says that the special procedure committee must be established each time a petition of Q18 Gavin Robinson (Belfast East) (DUP): Good concern is tabled, unless there is a cross-community morning. Mr Holder, will you reflect on your repetition vote to the contrary. that these provisions will bring us back to what was intended on the petition of concern? You have tried to Q20 Gavin Robinson: But, of course, we all know in contextualise what you believe was intended, but may I Northern Ireland the good phrase, “cherry picking”, ask you to provide us with your authority for what the and you cannot outline the provisions of paragraph 13 Belfast agreement says on the intended purpose of the without considering those of paragraph 11, which start: petition of concern? “The Assembly may appoint a special Committee”. Daniel Holder: Certainly. We have done a number of Is that correct? papers on this, which we have fed into the negotiations Daniel Holder: I am fortunate to have the relevant that led to the re-establishment of it. In summary, we paragraphs in front of me; yes, but— think that what is in the Belfast agreement as the petition of concern was set up as a safeguard to ensure Gavin Robinson: You can take my word for it, Mr Holder. that all sections of the community are protected and I will move on. can participate in the institutions. That was linked Daniel Holder: No, I do have the relevant paragraph expressly to conformity with equality requirements, in front of me but, Mr Robinson, that is referring to specifically, as I have said a number of times, the ECHR other occasions when the Assembly may establish this and the Northern Ireland Bill of Rights. The provision particular committee. For example, the special committee for cross-community voting was also linked to that. on equality requirements can be established for another The Good Friday agreement provides for a special reason. There is one example of its ever being established, procedure committee, which would be a committee with for the Welfare Reform Bill. That was on the basis of a full powers. It would be established to examine and petition of concern, from a referral from the Bill Committee report on whether a measure or proposal was in conformity dealing with welfare reform. The Assembly can establish with equality requirements, including the ECHR and this Committee for other reasons, and you are right to the Bill of Rights. That committee must be convened point to that being permissive. However,it is not permissive when a petition of concern is tabled, unless there is a when a petition of concern is tabled; it is mandatory, cross-community vote to the contrary. unless there is a cross-community vote to the contrary. In our view, it is very clear that that was the original intention of the Belfast agreement. I do not think that The Chair: I have two Members indicating that they the custom and practice of it not operating properly wish to ask questions, and there are nine minutes left, so through this time is sufficient to suggest that that should I will move on. be viewed differently. Essentially, the original intention of the agreement has been departed from. It is now, but Gavin Robinson: Do you mind, Mr Stringer, if I ask was not supposed to be, essentially, a subjective political one question of Professor Tonge? veto; it was supposed to be tied to more objective criteria. The Chair: If there is time at the end, but I want to see We always go back to the fact that—plus sometimes if we can get everybody in. the difference of views—you cannot just make up human rights, ECHR rights or the rights in the Bill of Rights. Q21 Stephen Farry (North Down) (Alliance): Good They would largely reflect the existing human rights morning, and it is a pleasure to serve under your commitments of the UK, albeit not in an enforceable chairmanship, Mr Stringer. As a strong advocate for format without the Bill of Rights. Therefore, you bring reform of petitions of concern, I slightly wanted to play in a level of objectivity, with the same function that the devil’s advocate in this scrutiny process on the Bill. Do Joint Committee on Human Rights would have, in that both witnesses feel that the measures are in some ways the special procedure committee may seek advice from too cumbersome, given the potential 16-day window in the Human Rights and the Equality Commissions that some circumstances between a petition being tabled and were established under the Belfast agreement as to an actual vote? How will that work, particularly in whether a measure or particular piece of legislation things such as the Committee stage of a piece of legislation? offends those standards. Will that become a straitjacket for the Assembly? Are Of course, there is a weakness, that a party or parties there alternative ways in which the same outcomes could just ignore the expert advice and the determination around petitions of concern could be achieved, rather as to whether a particular measure breaches those equality than what is in the Bill? Is there a risk of parties standards and vote to the contrary anyway. However, somehow gaming the system by doing multiple petitions the original intention was very much to make that of concern on more or less the same item, time after linkage. It is expressly on the face of the agreement. time, which further delays reforms going through? 19 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 20 and Petitions of Concern) Bill Professor Tonge: Briefly on that, the obvious solution At the moment, there is not provision for the Secretary to your last point would be to restrict the number of of State to intervene to make those appointments. I times any particular party can table a petition of concern. have already written that I can see a scenario in which As I say, I do not think they will be key players anyway legislation has to be passed again, assuming that the throughout the life of the next Assembly,or any Assemblies provisions of New Decade, New Approach on Irish thereafter, because they have had their day. The obvious language are formally accepted. I suspect that if the solution is simply to limit the number of times a POC Secretary of State has to legislate for this come the can be played. There has been talk of limiting petitions autumn, the legislation would have to be amended to of concern to certain types of legislation—I do not include the appointments, if necessary, of those two think that is a runner because it would very hard to commissioners. Otherwise, there will be another Assembly define. However, why not only allow a party one or two impasse down the track. opportunities to table a petition of concern during the Daniel Holder: My short answer is also yes, but it lifetime of an Assembly? That would be a logical solution, goes well beyond the issue of the appointment of the so that only in extremis could any party play the veto card. two commissioners. The Irish language commissioner, as envisaged by NDNA, draws on the Welsh model of a Daniel Holder: I think the risk of gaming the system commissioner who produces language standards that is there, given what we have heard to date, and it would are then, in the Welsh model, binding on public authorities. be helpful if that was constrained to an extent. At the In the NDNA model, public authorities have to pay due same time, the time available will be helpful to allow the regard to them, which is a weaker formulation. However, special procedure committee to sit and scrutinise a the language standards produced by the commissioner measure at that stage. Yes, certainly we would encourage are subject to approval by the First Minister and the a discussion on the broader reform of the provisions, Deputy First Minister. Therefore, you again have the including the designation provisions that have become a ongoing risk that they will simply be vetoed and not put very crude instrument. Although they are termed as into place, which will bring us straight back to the cross-community voting, they are of course not linked problem that we are trying to get past. to any indicator of community background as such, but to Unionist or nationalist traditional political affiliation. Certainly one particular area of focus could be looking at alternatives, such as whether the commissioner can approve their own standards, or whether they could be Stephen Farry: And the petitioners have the option of referred to Foras na Gaeilge, the body set up under the simply reconfirming— North South Ministerial Council language body under the agreement, to instead approve and formally incorporate The Chair: Sorry, Mr Farry. We are really running out those standards. Otherwise, yes, we could end up having of time. I am going to move to Colum Eastwood, so commissioners appointed, including the Ulster Scots that every Member who has indicated that they wish to commissioner, who is set up in a different format. ask a question will have had the opportunity to do so. Unfortunately, sometimes provisions for Ulster Scots are designed more around being a counterweight to Q22 Colum Eastwood (Foyle) (SDLP): Thank you, Irish rather than thinking through what is actually Mr Stringer. I thank the two witnesses. It is always needed to safeguard and preserve Ulster Scots linguistically. difficult to pinpoint exactly why or how the Assembly That in itself is a problem. That particular commissioner— collapsed on any of the times that it did. It is arguable, rightly, because it would not be the right model—will though, that a factor was the lack of progress and the not produce language standards. So, that concern over inability of the Executive or Assembly to get things veto would not necessarily apply to that commissioner done because of the three vetoes that particularly Daniel once appointed, but certainly in terms of the Irish has outlined, whether it is a petition of concern, the language commissioner there is potential for, essentially, St Andrews veto, as you call it—it is well named—or ministerial interference in the daily work of the the veto in terms of what goes on the Executive agenda. commissioner, unless the legislation is amended. We have another storm brewing around Irish language legislation, because whilst the Government here have The Chair: Thank you. We have a matter of seconds said that they will introduce the legislation, that legislation left of the time allocated. So, may I take this opportunity, is quite clear that some of its provisions will need to be on behalf of the Committee, to thank the witnesses for implemented by the First Minister and the Deputy First the very valuable contributions that you have made? 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 Examination of Witness as a potential bargaining chip to deal with some other Lilah Howson-Smith gave evidence. issues? 10.30 am Professor Tonge: Yes, I do see that as a problem, because the Ulster Scots/Ulster British commissioner Q23 The Chair: We will now hear oral evidence from and the Irish language commissioner have to be joint Lilah Howson-Smith, a former special adviser at the Office of the First Minister and Deputy First Minister Northern Ireland Office. For this session, we have until appointments. One obvious stalling tactic would be 11.25 am. disagreement, potentially from opponents of either, but Could you introduce yourself, please? more obviously from opponents of Irish language provision, Lilah Howson-Smith: Hi. Good morning. My name to the appointment of an Irish language commissioner. is Lilah Howson-Smith. I was a special adviser in the An objection to the appointment of an Irish language Northern Ireland Office under Julian Smith, when he commissioner could arise. was Northern Ireland Secretary. 21 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 22 and Petitions of Concern) Bill The Chair: I will go to the Minister to ask the first the Good Friday agreement, rather than being a kind of questions. blocking mechanism on moral or social issues, or even party political issues, such as welfare. Q24 Mr Walker: Thank you, Mr Stringer, and it is good to see you again, Lilah. You were working as a Q26 Mr Walker: You just referred to the negotiations; special adviser to the Secretary of State for Northern obviously, they were pretty intense and, as you say, Ireland during the period when the Executive was not some of the parties pushed for things that they did not functioning, from 2019 to 2020. Can you give us your necessarily get. Was the issue of the border executive views on the real-life impact that that situation had on vetoes and other issues discussed in those negotiations? Northern Ireland’s citizens, and the importance of putting Did you have a clear view as to whether it would be in place some mechanisms to make sure that it does not acceptable to the parties to change that? happen again? Lilah Howson-Smith: Of the measures introduced as Lilah Howson-Smith: Sure. I think that the most part of the Bill, the petition of concern measures were obvious impact was on public services delivery. You the most discussed in the talks. I do not think they were obviously had a situation where the civil service could necessarily controversial, but there was a disagreement authorise certain decisions, up to quite a low threshold, or divergence of views between the parties on how far and authorise certain amounts of spending, but you they wanted to go on that. It was not necessarily about basically had a situation where no new policy or structures any single party having a strong view on how they could be pursued. conceived the petition of concern being used in future, The way in which that impacted public services was but there was a broader acknowledgment that the petition basically most explicitly on the health service, with of concern had been used too much in the past, there incredibly long waiting lists, but the impact also extended was a need to reduce its use and therefore a need to into education. We visited a number of schools, both at signal that as part of the agreement. primary and secondary level, where there was just a Where the agreement landed and where the Bill is sense of overall stasis. I think there was also a kind of representative of that agreement is roughly where there frustration more widely about infrastructure issues, even was the most agreement between the parties, in that it extending to Belfast City Council, who we spoke to; could not be used on Second Reading votes and on they talked about issues around sewage that just had standards motions, and that there is now a 14-day not been dealt with, because of the absence of Ministers. cooling-off period. That was all about basically making So, I think it affected all aspects of life. It was very parties and individual MLAs consider whether it was much the first thing that came up in all our meetings an appropriate use of the petition of concern and with civil society, business and border organisations whether it was the best way to do policy making, in throughout our time in Northern Ireland, before power terms of building credibility and trust between the sharing was restored. parties.

Q25 Mr Walker: On Second Reading, Julian Smith Q27 Mr Walker: The Government have been criticised stated that the Bill provides for a number of important by the Opposition for treating Northern Ireland as an and practical measures. What do you think are the afterthought. Would you agree with that claim? Does it practical benefits of this legislation? reflect your experience in Government? Lilah Howson-Smith: Particularly with regard to the Lilah Howson-Smith: Not at all. Definitely Julian and measures around elections and the sustainability measures, I worked alongside all the officials in the Northern as they were characterised in the original agreement, I Ireland Office—worked extremely hard to restore the think they give the Executive and Ministers space and institutions. I frequently reflect that, in the absence of time to resolve various issues around power sharing, in an Executive, the covid pandemic and the public health advance of any need to bring forward an election. crisis that has happened since is unthinkable. It is really difficult to think how the civil service in Northern As it is, at the current moment in time there is very Ireland would have been able to handle that with the little capacity for Ministers to work through even quite limited powers it had at that time. That is not a reflection basic issues, in terms of policy programmes, in advance on their abilities, but the absence of ministerial decision of an obligation falling on the Secretary of State to making would have made it unthinkable. The fact that bring forward an election. So, I think the intention was those institutions were restored in advance of the covid specifically to give greater space and time for them to pandemic represents the fact that the Government took resolve those policy issues and personnel issues, to build that extremely seriously, and that went right up to the some relationships in advance of an immediate decision Prime Minister. by the Secretary of State to hold an election. I also think that the measures around the petition of concern were specifically about building greater trust Q28 Mr Walker: Finally, as I want to give Members between the parties, in terms of the mechanics of policy the opportunity to ask questions, you previously worked making, as some of the other witnesses have spoken in the Chief Whip’s Office before coming to the Northern about. There was obviously a sense in which the petition Ireland Office. What do you think are the benefits to of concern had been used as a veto or blocking measure introducing this legislation on non-emergency timings? by particular parties. While the new measures are maybe Can you recall when we last had non-emergency legislation not as extensive as some of the parties wanted during for Northern Ireland? the negotiations, the intention clearly is that the petition Lilah Howson-Smith: It is exactly the point that you of concern once again becomes a measure of last resort, make in your question. We have had to rush bits of restored to its original purpose as it was conceived in Northern Ireland-related legislation through, in part 23 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 24 and Petitions of Concern) Bill because of the absence of power sharing. You have the additional flexibility to the Ministers and in forming Executive formation legislation, which was always done the Executive, where those decisions have been difficult on an incredibly tight timescale. I think rightly, some of to make or have not happened because the time periods the Northern Ireland parties objected to that, on the are so short and perhaps it was not in everyone’s political basis that perhaps there was not adequate scrutiny. interest to form an Executive within that short period of More recent bits of legislation around victims’ payments time. So yes, obviously, there is a flip side to that, but and abortion, which we were involved in implementing, clearly there is also opportunity to avoid the type of were also incredible difficult to implement because there situation that we fell into in 2017, where an Executive was not broad consensus or buy-in from the other just is not formed for a long period of time because parties through a longer-term legislative process. there is an election and then there has to be a series of There is definitely an advantage to taking this bit of talks processes to get the Executive and the Assembly legislation through in slightly slower time, so that we back up and running. can have discussions like this where we are able to discuss where things are missing or not clear, or can be Q31 Alex Davies-Jones: Is there anything, from your clarified through implementation. experience, that did not make the cut in NDNA that you think would have been valuable in terms of the sustainability of the Executive? Q29 Alex Davies-Jones: Lilah, from your experience of the negotiations, was it envisaged that there would be Howson-Smith: In terms of the petition of concern, I ambiguity on what constituted sufficient cross-community do have some worries that perhaps we did not necessarily representation in a caretaker Executive? go far enough in ensuring that, for example, petitions of concern are not tabled on Bills that are allowing the Lilah Howson-Smith: I understand that perhaps there Northern Ireland Executive to take border legislation is not total clarity about what that means. I think the that is compliant with human rights. For example, point was that it was supposed to be agreed by the petitions of concern were previously used—or were Executive once the legislation was taken forward by likely to be used—on issues around abortion and that Westminster. The fact that the legislation is being taken was a concern for me, that perhaps those measures did forward by Westminster reflects the fact that amendments not give adequate protection. On that specific issue, have to be made to the Northern Ireland Act 1998 and Westminster is taking forward legislation and we are that this part falls within a reserved area, rather than now in a process of implementation. However, there the fact that there will not be an active process, I were some suggestions about potentially having more assume, with the Executive to discuss what this means oversight from human rights bodies in that petition of in reality. I think there was tacit or implicit agreement concern process. I do not think that that necessarily between all the parties that there would clearly need to would have been a bad thing. I think that would be be clarity around that, and that there would be checks quite valuable, given the previous types of things the and balances on the fact that Ministers obviously would petition of concern has been used for. However,I hopefully not be able to take decisions in a caretaker capacity that think that the changes that are in there will make parties went beyond the normal remit of perhaps the types of and MLAs think twice about using petitions of concern decision that might be taken during a purdah period. in that way again.

Q30 Alex Davies-Jones: Are you concerned that the Q32 Alex Davies-Jones: Finally, as I also want to give scope of powers is not clearly defined, allowing for an other Members the opportunity to ask questions, what Executive, for example, to limp on without broad cross- statutory provisions currently exist to prevent the misuse community support but still be able to make significant of powers available to caretaker Ministers? decisions? Howson-Smith: As far as I understand it, there are no Howson-Smith: The intention was never that they statutory limitations. would be able to make—yes, it depends how you define significant decisions, but the intention was always that The Chair: If there are no further questions from there would be sufficient checks either within the Executive Members, I thank the witness for that interesting and or by the Secretary of State that would mean that there valuable contribution. was not the kind of significant decisions that would Ordered, That further consideration be now adjourned. have broader implications for the cross-community nature —(Scott Mann.) of those decisions. I am concerned that you have characterised it as limping on. I take your point, but the 10.44 am reality is that it was supposed to just provide that bit of Adjourned till this day at Two o’clock. PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

NORTHERN IRELAND (MINISTERS, ELECTIONS AND PETITIONS OF CONCERN) BILL

Second Sitting

Tuesday 29 June 2021

(Afternoon)

CONTENTS Examination of witnesses. Adjourned till Tuesday 6 July at twenty-five minutes past Nine o’clock. Written evidence reported to the House.

PBC (Bill 7) 2021 - 2022 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Saturday 3 July 2021

© Parliamentary Copyright House of Commons 2021 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 25 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 26 and Petitions of Concern) Bill

The Committee consisted of the following Members:

Chairs: †SIR DAVID AMESS,GRAHAM STRINGER

† Anderson, Stuart (Wolverhampton South West) † Mann, Scott (Lord Commissioner of Her Majesty’s (Con) Treasury) † Benton, Scott (Blackpool South) (Con) † Marson, Julie (Hertford and Stortford) (Con) † Brereton, Jack (Stoke-on-Trent South) (Con) † Moore, Robbie (Keighley) (Con) † Owatemi, Taiwo (Coventry North West) (Lab) † Butler, Rob (Con) (Aylesbury) † Robinson, Gavin (Belfast East) (DUP) † Davies-Jones, Alex (Pontypridd) (Lab) † Sunderland, James (Bracknell) (Con) † Dines, Miss Sarah (Derbyshire Dales) (Con) † Walker, Mr Robin (Minister of State, Northern † Eastwood, Colum (Foyle) (SDLP) Ireland Office) † Farry, Stephen (North Down) (Alliance) Jo Dodd, Sarah Ioannou, † Haigh, Louise (Sheffield, Heeley) (Lab) Committee Clerks † Hanna, Claire (Belfast South) (SDLP) † attended the Committee

Witnesses

Sir Jonathan Stephens, Former Permanent Secretary at the Northern Ireland Office

Emma Little-Pengelly, Former DUP MP and former Northern Ireland Special Adviser

Mark Durkan, Former SDLP MP and Good Friday Agreement Negotiator

Alex Maskey, Speaker, Northern Ireland Assembly

Lesley Hogg, Clerk , Northern Ireland Assembly

Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly 27 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 28 and Petitions of Concern) Bill Sir Jonathan Stephens: I think it does a number of Public Bill Committee important things. First, it fills in what you might think of as a number of loopholes in the original design of Tuesday 29 June 2021 the Northern Ireland Act 1998, which simply did not contemplate the sort of situation in which we found (Afternoon) ourselves in 2016. Secondly, and perhaps most importantly, it provides [SIR DAVID AMESS in the Chair] time and space for the Executive or for party leaders to resolve fundamental differences, if and when they arise. Northern Ireland (Ministers, Elections and As you will know, the previous scheme provided only Petitions of Concern) Bill for periods of either seven or 14 days for the formation of the Executive and the appointment of the First 2 pm Minister and the Deputy First Minister. We went through The Committee deliberated in private. those early deadlines very quickly indeed in 2016. We were left in the unprecedented situation of having no Examination of Witness means of restoring the Executive without fresh legislation Sir Jonathan Stephens gave evidence. at Westminster. It is important to say that these changes provide a 2.2 pm number of mechanisms that will help in the resolution The Chair: We will now hear from Sir Jonathan of fundamental differences,if they arise again. They provide Stephens, former permanent secretary at the Northern greater assurance for continuity of decision making, Ireland Office. Colleagues, we have until 2.30 pm. Sir but, of course, nothing is perfect. I have always thought Jonathan, I described you, but briefly please say something that if there is absolute determination to bring about about yourself. the collapse of the institutions, or such a deep and Sir Jonathan Stephens: Certainly.I am Jonathan Stephens. fundamental breakdown in trust between the parties I was permanent secretary of the Northern Ireland that they cannot be restored, then no amount of clever Office from 2014 until February 2020, having previously constitutional provisions will get over such a fundamental worked in the Northern Ireland Office over a number of breakdown. years from the mid-1980s. Q35 Colum Eastwood (Foyle) (SDLP): It is a pleasure The Chair: Thank you. Colleagues, it is over to you to to serve under your chairmanship, Sir David. It is good start the questioning. to see you, Jonathan. I spent many long hours over that three-year period in your company, and thankfully we Q33 The Minister of State, Northern Ireland Office got there in the end. (Mr Robin Walker): Sir Jonathan, it is very good to see you again. You were permanent secretary from 2014 to Do you think it is fair to say that the New Decade, 2020, as we have heard, and that means you were at the New Approach agreement was largely imposed by the heart of the Northern Ireland Office both before and two Governments at a very opportune moment in the during the period of the collapse of the Executive. In political process? The three largest parties had had a your view, how was the Northern Ireland civil service difficult election. We had a nurses’ strike and then the most hindered by the lack of ministerial accountability two Governments struck, and got Stormont back up when the Executive was not functioning? and running again. That goes to the heart of your point that if we do not have political parties willing to work Sir Jonathan Stephens: Fundamentally, there were no the system and work together, no clever constitutional Ministers available to give direction and take critical construct can stop them collapsing it. Do you think decisions. The Northern Ireland civil service was left in there is more that we could have done as part of those a wholly unprecedented situation, which I know from discussions? I am particularly thinking about the way in talking to many of them they found intensely challenging which the First Minister and the Deputy First Minister and was not at all what they sought. Civil servants are are appointed. trained to work for and support the Government of the day and Ministers and provide their advice to Ministers, Sir Jonathan Stephens: I would not use the word who take decisions that civil servants then implement. “imposed” because, at the end of the day, it was the Our colleagues in the Northern Ireland civil service decision of all the main parties in Northern Ireland to were left trying to maintain the machinery of Government re-form the Executive. Yes, it was on the basis of the and trying to provide public services in the absence of proposals put forward in New Decade, New Approach, ministerial decisions, and they found that increasingly but each party was free to take its own decision on that. uncomfortable as time went on. From my point of view,when the document was published there was no certainty as to how parties would react Q34 Mr Walker: How far do you feel this Bill goes to and whether it would provide a basis for forming the safeguard Executive stability and provide the civil service Executive. We very much hoped so, but there was no with the accountability mechanisms they require? Given certainty. some of the discussions we have had to date, both in the It reflected extensive discussions, of which a number case of encouraging the Executive to stay together and of people on the Committee will have close memories, to stay in place, but also in the case where you might over many years, but most recently over the period of have a First and Deputy First Minister step down and months from the calling together of the most recent caretaker Ministers, as they have been described, remaining session of talks,following the tragic murder of Lyra McKee. in place, how far do you feel the Bill creates the clarity Again, there was very strong input from the parties. needed for them to be able to carry out their role? Although the proposals were the proposals from the 29 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 30 and Petitions of Concern) Bill Governments, they reflected very considerably the input right now to respond to. I simply suggest that right now of the parties. They were our best judgment as to where does not seem to me to be a good time to undertake that agreement lay. significant and mammoth task, but I would be surprised On the First and Deputy First Ministers, I am conscious if at some point in the next 10 years it is not on the that parties have a number of different views on that. agenda. There are a number of parties that think that the original arrangement under the Good Friday agreement Q37 Gavin Robinson (Belfast East) (DUP): Good for the election of the First and Deputy First Ministers afternoon, Jonathan. I will reflect on the question from on the basis of cross-community consent should not the hon. Member for North Down. Of course, the have been changed after the St Andrews agreement. Assembly and Executive Review Committee is the sort Other parties who were critical of the St Andrews of place where you would ordinarily think these discussions agreement formed and participated in devolved government at the moment should occur. Going to the NIO and on the basis of that. expecting the Government to sort these issues out should be the last resort; it should be something that is foreseen The Good Friday agreement was now more than and considered among parties. 20 years ago. It was designed with one situation and set of scenarios in mind. As ever, the world moves on and I do not know whether you had the opportunity to change comes. It is coming in Northern Ireland, and hear the evidence session this morning. Some questions there will come a time when it will be right to look at were raised about the lack of detail in the Bill as to what some of the fundamental arrangements within that safeguards are in place if Ministers are in position and agreement and consider whether they still best serve the there is a difficulty in forming an Executive. You will people of Northern Ireland and adequately reflect the know that the discussions during the negotiations focused current situation in Northern Ireland. However, that on safeguards for issues that are significant, cross-cutting would be quite a major task to undertake, with possible and controversial, which would ordinarily therefore go renegotiation of key aspects of the agreement. It is not to the Executive, but with no Executive sitting, those a task that, personally, I think is quite right for now. 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 Q36 Stephen Farry (North Down) (Alliance): It is a in the evidence this morning was the fact that Ministers pleasure to serve under your chairmanship, Sir David. normally operate after having gone through a process A very warm welcome to you, Sir Jonathan. I will of reaching consensus on a programme for government. largely pick up on your answer to the questions posed Any Minister without an Executive could therefore by Colum Eastwood. You are one of the very rare continue to bring forward decisions on that basis, and officials with long experience of Northern Ireland over perhaps juxtapose that with an inability for Ministers to several different stints in office, so you have that wider act and the difficulty that the Northern Ireland civil perspective. You indicated that there might be a need to service found itself in during that three-year hiatus. revise the rules around the institutions at some stage. Sir Jonathan Stephens: The fundamental position is Do you feel there is a danger of the Northern Ireland that the Bill essentially provides for a form of caretaker Office almost operating on a reactive basis after a Administration in the absence of the formation of a full problem has actually arisen and then trying to patch it Executive.Without an Executive Committee or an Executive up, amend it and move on for a few more years before meeting—there cannot be an Executive without a First going back to the next crisis? Is there not an argument and Deputy First Minister—as you say, Mr Robinson, for trying to be a little bit more proactive and anticipate decisions cannot be taken on issues that are cross-cutting, where pressure points are likely to emerge, to assess how significant or controversial. That in itself will be a society is changing and to act accordingly? In that significant constraint. During the absence of Ministers, regard, should we look at some of the rules around the cases were brought before the courts arguing that decisions election of the First Minister and Deputy First Minister, had been reached without the required authority, and particularly in the light of the democratic change that the courts policed that quite robustly. No doubt they we are seeing in society? will police these provisions equally robustly. Sir Jonathan Stephens: In a sense, I agree with you, Although there might not be an Executive Committee Mr Farry. I was indicating earlier that there had been meeting in place, there is likely to be agreement on a significant change in Northern Ireland. At the time of programme for government, even if it was of the previous the Good Friday agreement, the assumption was that Administration. That will provide an overview, as it there was a Unionist majority community, a substantial were, of the direction of the Government under which a nationalist minority community and a relatively small caretaker Administration would be able to continue to but steady component who did not identify with the operate. I think there are protections in place, but I others. Since then, the situation has changed. It is more continue to come back to the point that no system is like two substantial minorities with a much larger, more perfect, and there should be no doubt that the absence significant and growing number of people who choose of a properly functioning Executive for the periods of not to identify with either. time that could be possible under the Bill would itself Over time, I think that will mean that a number of have serious consequences, but at least we would not be the arrangements need to be looked at again and examined. in a situation where there was no direction and no I am just conscious, having participated in a number of decision making at all. those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, Q38 Alex Davies-Jones (Pontypridd) (Lab): It is a there is a lot to be said for anticipating, rather than pleasure to serve under your chairmanship, Sir David. reacting to, crises, but Governments across the world, Sir Jonathan, thank you for joining us this afternoon. not least in Northern Ireland, have a number of crises Given your experience from the negotiations, are you 31 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 32 and Petitions of Concern) Bill [Alex Davies-Jones] Q41 Mr Walker: Thank you very much, Sir David, for your chairmanship. Sir Jonathan, you were permanent concerned that the scope of powers is not clearly defined secretary at a time when, because of the political situation in the Bill and an Executive could essentially limp on and the absence of an Executive, serious thought had to without any broad cross-community support, but still be given to the possibility of direct rule. Do you agree would be able to make significant decisions? that we are in a much better situation to be legislating Sir Jonathan Stephens: I think that is where the for a deal, rather than agreeing and implementing policy provisions in the Bill for the Secretary of State to call an directly for Northern Ireland, and could you expand for election in the event that he judges that there is no the Committee on some of the risks and challenges that longer broad cross-community support are critical. That we would have faced had we not been able to get the underpins the whole basis of government in the Good NDNA deal in place? Friday agreement, which is that Government should Sir Jonathan Stephens: Without the deal in place, have broad cross-community support. If one ended up although of course at the time we had no awareness that in a situation in which there were Ministers of only one covid was just around the corner, it is absolutely party, that would be very unlikely indeed to command inconceivable that Northern Ireland civil servants without broad cross-community support, and you would expect ministerial direction could have responded to the covid the Secretary of State to step in. I think there are crisis. I think it would have driven direct rule inevitably. protections against that. Much of my career in the Northern Ireland Office has I have also identified the fact that if there is no been about trying to find the basis on which devolution Executive Committee meeting, because there is no First can be restored and leaders from within Northern Ireland or Deputy First Minister, the ability of Ministers to can take decisions for Northern Ireland. I believe that take significant, controversial or cross-cutting decisions that is a far better system of government for Northern is heavily constrained. They cannot take such decisions, Ireland, allowing Northern Ireland’s unique interests and and the courts have already demonstrated their readiness concerns to be reflected by its own politicians and leaders. to step in if they think that that boundary has been Of course, over many years in the Northern Ireland crossed. So this sets up a mechanism in which this is a Office I experienced direct rule, and direct rule Ministers caretaker Administration keeping the business of from Westminster made the best of trying to take government and public services going, but unable to decisions for Northern Ireland, but I know they felt take it in new, strategic directions. So I think there are deeply uncomfortable at times taking decisions for a protections in place. part of the UK from which they were not elected and where they did not reflect the local community. I do not Q39 Alex Davies-Jones: On that point, Sir Jonathan, think that I ever saw a Minister who did not believe that the Bill provides for up to 24 weeks for the appointment local politicians should be taking decisions for local of new Ministers before the obligation to call an Assembly matters in Northern Ireland. election is triggered. What assessment do you make of The concern always was that, once direct rule were the potential effectiveness of those time provisions? reinstituted, if it ever were, it would be enormously Sir Jonathan Stephens: I think they are likely to be difficult and time-consuming to restore agreed institutions more effective than the existing provisions, which are again. That would mean that there were real questions seven days or 14 days respectively. As I indicated, where about the nature of Northern Ireland, how its society a fundamental disagreement arose, that was almost was reflected in its Government, and I think that would inadequate time even to get discussions going. Once also be very bad for Northern Ireland. Although we did that deadline was busted, there was nothing to fall back not know it at the time, it was incredibly fortunate on. Of course, you may encounter a disagreement that timing that the agreement was reached just in time is so fundamental that whatever amount of time you before covid hit, and meant that Northern Ireland was provide for it is inadequate, but the negotiations on the trying to respond to that crisis but with its own leaders Stormont House agreement and the fresh start agreement and politicians, conscious of its own challenges and both lasted roughly 12 to 16 weeks. I think that sort of unique characteristics. period of time provides a reasonable window in which to seek to resolve fundamental disagreements, but at the The Chair: Sir Jonathan, were there any final remarks end of the day it depends upon a willingness among the you wanted to make before we finish your evidence session parties to get together to discuss, seek to understand and wish everyone well? and resolve those differences. More time helps, but it is Sir Jonathan Stephens: No, thank you. not the complete answer The Chair: Thank you for our time; we are very Q40 Alex Davies-Jones: Finally,what statutory provisions grateful and it will help with our later deliberations. exist that you are aware of to prevent the misuse of the There will now be a 30-second break while we test the powers available to caretaker Ministers? sound. Sir Jonathan Stephens: The fundamental protection is the absence of an Executive if there is not a First 2.26 pm Minister or a Deputy First Minister, meaning that The Committee deliberated in private. significant, controversial, cross-cutting decisions cannot be taken by Ministers, as well as the readiness, as Examination of witness demonstrated already, of the courts to step in and rule Emma Little-Pengelly gave evidence. that decisions are ultra vires—not valid—if they break that boundary. 2.21 pm The Chair: If there are no other questions from The Chair: Good afternoon, Emma, and welcome.Would colleagues, let me bring the Minister in again. you kindly introduce yourself to the Committee? 33 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 34 and Petitions of Concern) Bill Emma Little-Pengelly: I am Emma Little-Pengelly. I mechanism of the petition of concern. When you look have recently been a special adviser to the First Minister, at the petition of concern, it is important to take a look, but I am a barrister by training. I have been special carefully, at the Belfast/Good Friday agreement. I listened adviser to various First Ministers since 2007, although I to the evidence very carefully today. I strongly disagree stepped out of that to be a public representative and with what was put across, for example, this morning by Member of Parliament for a few years. Daniel from the Committee on the Administration of Justice, in relation to the original intent of the petition The Chair: Colleagues, we have scheduled 45 minutes of concern mechanism. I think that the proposal that for this session. Who would like to ask the first question? this was supposed to be a very narrow issue, as opposed to it applying to all key issues, simply does not hold up to scrutiny. Q42 Gavin Robinson: Good afternoon, Emma. Members will know you well from your time here, but those of us I would ask everybody to take a look back at the from Northern Ireland will know that you have been Belfast/Good Friday agreement. The petition of concern integrally involved in numerous iterations and negotiations is set out in the section referred to as Safeguards, and over the years. the Safeguards section that refers to the cross-community voting is entirely separate from the safeguard that sets You know the Bill before us. Would you mind giving out the ECHR and the equality protections. The cross- us your reflection on its provisions, the rationale for community component of that is set out in 5(d), under them as you see them, and whether you feel there are strand 1, and yet the ECHR and the equality severable elements that have not been achieved or are worthy of obligations are set out in 5(c) of strand 1 of the Belfast consideration by the Committee? agreement. Those are not conditional on each other; Emma Little-Pengelly: My experience of the existing they are entirely separate. It was clear from the Belfast provisions comes from a more practical point of view, agreement and then the Northern Ireland Act 1998 that as well as the theoretical and legal aspects of the Belfast/ the cross-community consensus was to apply to all key Good Friday agreement and the Northern Ireland Act decisions. 1998. I had come in initially as a shadow special adviser This is not just in terms of the basic reading of the to help prepare for the restoration of institutions back Belfast/Good Friday agreement or the Northern Ireland in 2007. That included working very closely with the Act. I think it is important also to look back at the drafters office and with machinery of Government elements Hansard for the passage of the Northern Ireland Bill in within the Executive and the Departments in order to 1998 and the comments that were made about that Bill look at things such as the ministerial code, how the from all parties. I think the key thing here is that those Executive should operate, and the guidance for Ministers commenting on that in the House of Commons were and Departments in relation to what matters needed to those who negotiated it. It was the Ulster Unionist come to the Executive. Also, it included issues such as party—David Trimble and others—along with the Social the nomination of Ministers and the First and Deputy Democratic and Labour party representatives. It is very First Minister. clear from reading the Hansard that no issues of concern were raised about the scope of the petition of concern Over that period of time, from 2007, obviously we and cross-community vote protections and safeguards have had a number of significant issues and challenges. as set down in the Safeguards section of the Belfast/Good Very often they led to periods of negotiation. Much of Friday agreement. those negotiations took place within the context of trying to talk about the technical details of the process in Q43 Gavin Robinson: Thank you for that. To draw on which we try to operate in Northern Ireland. It is a very some of the issues that were brought out this morning, challenging and difficult system to operate. It is a system there was a suggestion from Professor Tonge, for example, where, at the very heart, arising from the Belfast/ Good that the petition of concern could benefit from being Friday agreement, the key principle is consensus and amended so that you had support across the community inclusion. That is a very slow and difficult process for designations, so that one community wishing to table a trying to come to decisions. petition of concern would require support from another The key element to remember is that in Northern or the other designation, if I can put it that way. Do you Ireland we do not have—and have never had for some have any reflections on that contribution or suggestion considerable time since the Belfast agreement—a that was made this morning? majoritarian system of government. Therefore, that Emma Little-Pengelly: When you look back to the principle is very much cooked into every part of the operation of the petition of concern—again, I referenced, process, from the nomination of First and Deputy First in terms of the passage of the Northern Ireland Bill, as Minister and what they can do, singly or acting jointly, it then was, in 1998, the fact that no concerns were to the way the Ministers operate in relation to the raised about the scope of those particular provisions. Executive. All of that is based on a process of consensus But likewise, when the Northern Ireland Assembly was and a process of agreement. That of course means that established under the First Minister and Deputy First at times we cannot get agreement, and that has been Minister leadership of the Ulster Unionist party and very, very difficult. Nevertheless, that is the system that the SDLP, no concerns were raised at that time about we have had. It is the system that we have operated right the petition of concern. It was still difficult. When you up until very recently. look back at the history of the Northern Ireland Assembly and the various crises that we have faced, of course it is In more recent years, there has been a drive to change difficult, because the ultimate aim of those provisions, some of the elements of the Belfast/Good Friday agreement and the provisions across the Northern Ireland Act, —in particular, around the concept of cross-community arising from the agreement, is that they are all based on voting and consensus,and particularly around the safeguard consensus building. 35 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 36 and Petitions of Concern) Bill We have heard some reference about the petition of I would have thought, though, that there is an additional concern being used as a veto, but in reality it is used in a safeguard in that Ministers in Northern Ireland are way that reflects the fact that there is not yet, or no, required to operate lawfully—they cannot step outside consensus on particular issues, and those are key issues, of that. If a Minister wanted to take a decision that was so where a petition of concern is used, it is an indication significant or controversial or cross-cutting, it is very that an issue has been pushed forward without consensus. clear from both the jurisprudence and the legal cases on That is why, when you look at the new provisions this, and in terms of what was said at the time of the proposed in this Bill—the idea, for example, of a 14-day passing of the Northern Ireland (St Andrews Agreement) cooling-off period for a petition of concern is, I think, Act 2006, that a Minister has no power—there is no vires very welcome. Gavin will know as well as I do that—look, for a Minister to take a decision that ought to have the sustainability procedures and processes as part of come to the Executive under the terms of the St Andrews the New Decade, New Approach negotiations were Act amendments. Therefore, a Minister could not take something that the Democratic Unionist party pushed a decision on a significant, controversial or cross-cutting very, very hard. We pushed because we could see that it matter,unless that had already been agreed by the Executive. does not benefit the people of Northern Ireland to be in In the situation that you have outlined, Gavin, there a situation of perpetual crisis, particularly if those would be no way to form an Executive. Without the crises are manufactured by, for example, the tactical First Minister and Deputy First Minister, you cannot resignation of a First or Deputy First Minister. Ultimately, have an Executive meeting and therefore those decisions we do need stability, and stability within a very difficult cannot be decided on because an individual Minister process to operate. I think the 14-day period, now does not have the power or the vires to do that. Therefore, within this proposed Bill, will allow a period for people he would be operating ultra vires. I presume that the to get together to try to find a consensus way forward. permanent secretary or the accounting officer of that That may be through amendment if it is legislation, or it Department would advise the Minister of that, and that may be by some further or different agreement. But the Minister could not proceed because that would be at the very heart of this is the idea that because the unlawful under those circumstances. institutions were set up to be very inclusive, from the very beginning there was a concern that significant Q45 Colum Eastwood: Thanks for your evidence, minorities should not be forced to be part of either an Emma. You are absolutely right that the Democratic Executive or Government in Northern Ireland where Unionist party pushed very hard for a lot of the provisions they were subject to continual majority decision making. around sustainability during the negotiations, and some That applied right up until the point at which Unionism of us had some concerns about it, but I absolutely agree was no longer the majority. We have since seen concerted with you that there have to be some mechanisms for keeping moves to try to remove that safeguard for significant the show on the road. Nobody should be threatening to minorities. The concern there is that yes, it is a difficult pull down institutions. Of course, it was Sinn Féin that and frustrating system, but in Northern Ireland ultimately walked out the last time. Does that go as well for the this will only work if you have that maximum consensus. DUP when it comes to issues like the protocol? As I understand from those who negotiated the Belfast Secondly, you and I will disagree about the purpose agreement, and right through to those who negotiated of the petition of concern and when it should be used the St Andrews agreement that modified and built on and so on. You have said, now that Unionism is no some of those protections, that at the heart of that is the longer a majority, there are moves to take away safeguards idea that significant minorities should not be excluded, like the petition of concern. What did you think, then, and that consensus decision making is the priority over when Arlene Foster suggested removing it as a mechanism a quick and simple majority system, which would exclude altogether during the negotiations? those people. Emma Little-Pengelly: First, to be fair to the Democratic Unionist party, I should make it clear that I am not here as a spokesperson for the DUP, so I cannot comment Q44 Gavin Robinson: Perhaps just one final question on the particular issues of the current situation. What I from me, Sir David, if you have a rake of colleagues now can say is that the DUP, along with many others, has, hoping to jump in. Questions have been raised around over the years since the Belfast/Good Friday agreement, the lack of detail on safeguards for Ministers who find pushed for a better form of government, as you will be themselves remaining in position where the Executive is aware, very much around trying to put better democracy not fully functioning. Do you have any concerns about in that and a better system that is not so slow or difficult the provisions as drafted in the Bill, or do you feel that to try to get agreement through. the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are There is a real issue around protections and safeguards. sufficient in the circumstances? It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. Emma Little-Pengelly: I think that Northern Ireland That is the system that was set up—purposely difficult, have found themselves in this position on previous I suppose, one might say—to ensure that there was occasions, and in fairness, on those occasions all Ministers maximum buy-in. What we are rapidly seeing is that have respected that an Executive is not in place, and people now have a particular policy proposal, they get largely abided by and operated under the decisions the majority for it and they want to push that forward, previously agreed by it. I agree completely with what Sir against the will of significant sections of the other Jonathan Stephens said on the safeguard of the courts, community. but as we know, the court process is long; it requires People need to get back better to fundamental consensus somebody to take a challenge and often ends up in policy making. Potentially we have lost that over the Ministers taking legal challenges against Ministers. years. As I said, it is slow but there is a benefit to that. 37 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 38 and Petitions of Concern) Bill When you look back to the original point about intent, Emma Little-Pengelly: Over the years, there has been it is important to point out that equality and human some frustration about what some may perceive to be rights are very well protected, cooked in right across the breaches of the ministerial code, and a lack of action system. against those. I think that the proposed changes are If you look back to the narrative around the Belfast/ welcome, in that they really try to tighten up some of Good Friday agreement, including the discussions and those provisions in relation to how they apply, but the debates in the House of Commons on those matters, ultimately this comes down to two different issues, and I you will see that the key safeguards lay with the think this applies to all of the provisions in the Bill. establishment, under the agreement, of the Equality These changes are designed to try to encourage better Commission for Northern Ireland and the Human Rights behaviour. For example, when you look at the move Act, which at any time can give advice or perhaps even from seven days after a resignation to call an election to take a legal challenge against a Department or the the rolling process of six weeks and six weeks, that is Northern Ireland Assembly—certainly give advice on that. obviously something that was pushed for to try to Importantly, the Northern Ireland Assembly is set up encourage people to get around a table, with a series of but it does not have competence to deal with matters deadlines to try to encourage a more structured process, that would be in contravention of the European convention I think to focus minds, and also to allow other people to on human rights or equality legislation. I understand come in and make their representations very clear to the that your evidence will go on next to the Speaker. The parties that they want the Northern Ireland Assembly Speaker will have a legal team, so it is not even a case of to continue, and about the issues that are important to a discretion. The Northern Ireland Assembly, certainly them, as opposed to—as I have said—a tactical resignation. even set down in the agreement and the Northern However, ultimately, as some of the other witnesses Ireland Act, emphasised and safeguarded even further have said, this will work only if there is a willingness for in the Human Rights Act 1998, has no power to legislate people to agree. We all have our issues that we feel very in a way that is in violation of that. A piece of legislation strongly about, and we will not always find consensus should never be introduced where there is a decision by on those issues. Some of the people around the table the Speaker’s legal panel that is in contravention of that. will have been part of coalition Governments before. What we have seen subsequently is that people will have Coalition Government is frustrating: you will not always a range of views about whether something is a breach of find agreement on the way forward, and therefore those human rights, which is very different from whether it is issues cannot be progressed. Ultimately, it is about the legally a breach of human rights. Of course, that is an willingness of people to compromise—to get together evolving issue. There are safeguards there already, but I to try to find a solution that appeals to everybody would also point out that the party of which Mr Eastwood across the community. If we try to get into a space is a member did not raise any concerns about the scope where there are only solutions that appeal to the majority, of the petition of concern at the time of the passing of to the exclusion of a significant minority or to the the Northern Ireland Act, nor in the first decade of the exclusion of a community in Northern Ireland, we Northern Ireland Assembly’soperation, and the operation would be in a very difficult space in terms of stability, of the petition of concern. This is an issue that has not only of the institutions but of Northern Ireland. I emerged over the past number of years, on the briefing think those who worked on the Belfast agreement and from the likes of CAJ and others. There was no indication those who worked on the St Andrews agreement recognised on the record—Hansard or elsewhere—that there was a that and saw the value in having those types of safeguards concern about this. to ensure maximum inclusion, because once we go down the route of—for example—removing the safeguards To go back to the Belfast/Good Friday agreement, of petition of concern and consensus decision making the obligations under strand 1 5(d) are completely separate and moving towards majority decision making, there is from the obligations under strand 1 5(c). They are the risk of exclusion, and I do not think that is good for severable. Of course, they can be linked through the people, certainly not on the key decisions. I think it is all special process, which has already been outlined to you, about balance. but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement Q47 Mr Walker: We have heard evidence from various that cross-community consensus was to apply to all key witnesses and various speeches on Second Reading decisions. about the fact that many of these issues and, indeed, some of the issues beyond the scope of this Bill were The Chair: If there are no further questions, I will hard negotiated on all sides. I wonder if you agree with bring in the Minister again. what we have heard in some of the evidence earlier: what they have described as other vetoes, but I think Q46 Mr Walker: It is good to see you, Emma. As a you might describe as some of the balance within the former Minister within the Executive, and having worked process of working together in the Executive, would not as a special adviser, could you speak to the need for a have been signed up to by all the parties in NDNA if it ministerial code of conduct, and how you believe that had sought to go further on that front. could help to strengthen public confidence in elected Emma Little-Pengelly: Absolutely. When you look representatives? I recognise that, with the changes that back over the 20 years of the operation of these the Bill enshrines to the ministerial code of conduct, the mechanisms, they were there to build trust and confidence Northern Ireland Office is acting as agents on behalf of in all of the parties across all of the communities to be what was already agreed within the Executive. Can you part of the institutions in Northern Ireland. That is why speak a bit to the process that has been gone through in I highlight the difference between what has happened in looking at the ministerial code within the First Minister’s more recent elections, where we now have a number of and Deputy First Minister’s office? quite significant minorities, and what had happened for 39 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 40 and Petitions of Concern) Bill the majority of that period of time, which is that there concern, the way that the petition of concern practically was a Unionist majority. I think that those who drafted operated was that you required more than one party to these documents and those, including myself, who have agree with it, and that was including within designations. worked on this over the years recognised that this was I think that what you see, for example within the not a majority Government situation in which Unionists, nationalist designation, is that you do not have and you when they were in the majority, simply got everything never had the ability of one party to sign a petition of they wanted and others got nothing. concern. Therefore, I would suggest that to try to get 30 signatures within that designation on policy issues is That is why there needs to be, I suppose, better much more challenging, because of course you will have reflection about why these provisions are there, and the significant policy differences between those two parties. dangers of simply dismissing them. Rather than people However, when the DUP obtained 30 seats or votes in jumping up and down and saying, “We are really angry the election, that of course made it much easier to use because you are vetoing what we want”, they should sit the petition of concern, and I think that is when some back and reflect and say, “Look, there is clearly not of the issues and concerns arose. consensus for this proposal. How do we find a consensus Also, when you look, Dr Farry, at the types of issues way forward? How do we look at getting a balance for which the petition of concern has been used, you within what is happening and try to find a way forward will see that a significant number of those petitions of that includes the maximum number of people?” You concern were used, for example, in relation to welfare will never get absolutely everybody on board, and we reform legislation. Again, I think it is important to look recognise that, but we have been through really difficult at the nature of this issue. For example, it was not the situations before, such as the devolution of policing and case that the Unionist bloc were not sympathetic to the justice and trying to work through a programme for arguments around welfare reform and that we are not government. We have to remember that the parties in sympathetic to, for example, the proposed welfare Northern Ireland are not just very different constitutionally mitigations; in fact, I think the opposite is true and that speaking, but they are very different in that they come people were very sympathetic. But the concern around from across the political spectrum, from left to right that issue lay fundamentally with financial aspects of it. and all things in between. Any coalition Government As we know, with welfare reform happening in with parties that are quite diametrically different in Westminster, that had a direct impact in relation to political ideologies will always be challenging. That is what was happening in Northern Ireland. We were not the challenge that we have; we have got through it in going to get the hundreds of millions of pounds that previous years. But we only get through it by getting would have been required to do the mitigations put round a table and finding the consensus way forward, forward by a series of amendments by other parties. So, not by majoritarily forcing other people, through the the consideration there in terms of the use of the petition removal of the veto’s protections and safeguards. of concern was around this argument: “Look, if this passed in the Assembly, or if these legislative changes Q48 Stephen Farry: A very warm welcome to Emma. are proposed without consensus”—and there was no I will ask a two-part question. The first part is this: consensus on those amendments—“there would be a would Emma recognise that the effect of a petition of cost to the Northern Ireland Executive of hundreds of concern, or the veto as such, is that in effect it works for millions of pounds of additional money, which would those parties or that part of the community that are have to be found from the block grant”. perhaps most comfortable with the status quo, and it Now, if you look back at that time, you had a DUP probably frustrates those parties that have a desire to Finance Minister, so of course they would have been see change in society? very attuned to what the concerns were then. But that is a decision that is often used to say that this is a misuse Perhaps as an example of that, could Emma just of the petition of concern. In fact, if it had not been reflect on the fact that, to my knowledge, since the used, those hundreds of millions of pounds would have Assembly was created in 1999 there has been no instance had to be found from across other Departments. Of whatever of it legislating successfully at all in the human course, it did include human rights and equality issues rights or equalities sphere? That has never happened because it would have meant, for example, top-slicing or and it has always fallen to Westminster to address those taking funding away from the health service at that issues. time, before it had been reformed, when it required even Emma Little-Pengelly: In terms of the provisions, I more money,never mind a top-slicing. It would undoubtedly am not sure that if you look back at how the petition of have required other programmes to stop completely, but concern operated from the Belfast/Good Friday agreement without any analysis by the Assembly of what the onwards—so, from 1998—what you will see would back impact of those changes would have been. up your analysis that the petition of concern is used In my view, a decision was taken that it was the mainly by one particular side of the community. responsible thing to do to use the petition of concern in that way to prevent the Assembly from voting on something I say that for this reason. If you look at the bare that was going to cost hundreds of millions of pounds figures, it does look as if it has been used much more, of across Departments and have a massive impact on the course, by the Unionist-designated bloc than by the everyday lives of individuals. Of course, as you know, nationalist-designated bloc. However, that really only having been a Minister in the Government, these things changed quite recently, in terms of the Democratic are all about balance, but they are also about responsibility Unionist party obtaining 30 seats, which was the threshold and trying to assess the best way to do those things by in terms of signing the petition of concern. Prior to that, talking them through and by consensus, not by forcing by default no party had over 30 seats. Therefore, despite amendments through where there is clearly no consensus the fact that it was not explicit within the petition of behind them, for example. 41 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 42 and Petitions of Concern) Bill Q49 The Chair: If there are no other questions, Q50 Alex Davies-Jones: Thank you, Sir David, and Emma, do you want to make some closing remarks in thank you, Mark, for joining us this afternoon. As you your evidence before we say goodbye? mentioned, so much of the Good Friday agreement, which Emma Little-Pengelly: The only thing I would want you helped to negotiate, is still not implemented. How to reflect on, I suppose, is really where these proposals important do you believe that this failure to implement came from. As I have indicated, it was the DUP that key elements such as a Bill of Rights has been to pushed very hard for the sustainability aspects of the damaging the sustainability of the peace process? New Decade, New Approach agreement, and we did Mark Durkan: I think it has damaged it hugely. For that very much because of the experience of the preceding too long, Governments and others have tried to pretend three years, where Northern Ireland was left in a really it is as though the tyre is only flat at the bottom appalling situation of not only having no local devolved whenever we do not have the rights, provisions and Government, but having no real direct-rule Ministers promises of the Good Friday agreement upheld and either, so civil servants were left in the position where implemented. It is not just that the Bill of Rights has they had to try to make decisions with no accountability, not been implemented; we have seen regression in recent no democratic accountability and no guidance. years because there were absolutely explicit commitments I do not think the Bill is in any way perfect, but I do in the Good Friday agreement to the European convention think it is progress. The key thing is to try to ensure that on human rights, of it being accessible in the domestic there is not that incentive for others to bring the institutions courts in Northern Ireland and that it could be used down and cause instability in a tactical way, and to specifically to allow the courts to strike down legislation recognise that at times there will be major constitutional in the Assembly. issues—we are seeing that at the moment with protocol, Mo Mowlam worked very hard as Secretary of State for example—and other issues of serious concern that and the areas of the agreement that she concentrated on we have had before. In those situations, of course it is most were the areas to do with rights, equal rights, absolutely right for people to raise their personal concerns, equality and other safeguards. The fact is that she their party concerns and their community concerns to ensured that we had a strong Equality Commission for say, “This is simply not sustainable as a way forward.” Northern Ireland and a strong Northern Ireland Human I know that that cannot be prevented and should not Rights Commission, which would be a way of giving be prevented, but ultimately, this is a step forward to try voice and reality to those commitments on rights. The to encourage greater stability, which is much needed fact is that subsequent Governments adopted a position across Northern Ireland. that said: “Well, we’re not really going to move on a Bill of Rights unless there is total agreement among the The Chair: Thank you for your time today, Emma. I parties.” am sure that I speak for everyone when I say that I wish you well. The way the Good Friday agreement was written, it Colleagues, we are a little early. We were meant to charged Westminster with the responsibility to legislate hear from Mark Durkan at quarter past three, but we for a Bill of Rights, on top of its commitment to ensure are trying to make contact with him. We are ready to that the European convention on human rights would go, so we will bring things forward. I am beginning to apply to all public authorities and bodies. We did not think that this is all to do with the football match, but I get to follow through on that as far as the additional could be wrong. provisions of a Bill of Rights alongside the European convention is concerned, but in the post-Brexit legislation, Examination of Witness we have seen holes being drilled into the commitments Mark Durkan gave evidence. that are made there to the European convention on human rights. 3.4 pm Now, Ministers of the Crown have powers—it is The Chair: Welcome, Mark. I think this is a conspiracy almost like a form of direct overrule—to supersede to do with the football because we seem to be getting decisions and choices at the devolved level in the name, through things very quickly.Wehave earmarked 45 minutes for instance, of protecting the internal market of the for your session. Would you explain to everyone who UK. Those decisions can completely ignore any concerns you are and what you do? around the European convention on human rights and Mark Durkan: I am Mark Durkan, and I suppose the a public body is actually forbidden to cite concerns reason I may be of interest to these inquiries is that I about the European convention on human rights as to was one of the people who negotiated the Good Friday why it would not comply with what a Minister of the agreement. I also served in the institutions and the Crown has said. We have gone well off-road in what was Executive, as the Finance Minister in the first Executive envisaged in the Good Friday agreement in respect of and then as Deputy First Minister elected by the Assembly rights. in 2001. Then the Assembly was suspended in 2002. I One other thing I would say about rights, because also served from 2001 to 2010 as SDLP leader and as this Bill touches on the whole question of petition of Member of Parliament for Foyle from 2005 to 2017. I concern, is that it was the thinking at the time we was involved in various negotiations, including St Andrews, negotiated the agreement that the petition of concern Leeds Castle, all the various Hillsborough talks and all was not a petition of veto, it was not even a petition of of the other impasse negotiations that were around objection, but that it would be used to trigger a special difficulties about interpretation and implementation of proofing procedure during which a special Assembly the Good Friday agreement and some of the subsequent committee would hear specifically from the Equality agreements. Commission for Northern Ireland and the Northern The Chair: You are most welcome, Mark, albeit virtually. Ireland Human Rights Commission. So the petition of Our first question today is from Alex Davies-Jones. concern was very much rights and equality focused. 43 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 44 and Petitions of Concern) Bill It was to be there as a proofing procedure to ensure This is not a criticism of Mo Mowlam or of Paul rights were upheld. It was never there to prevent rights Murphy, who brought that Bill through at the time, but being legislated for, which is how it has turned round to that Bill translated the Good Friday agreement into be abused. statute in pretty short order, and the fact is that it did not properly translate what was intended in terms of The Chair: Alex, if I could just interrupt you for a the petition of concern. As I said earlier, the petition of moment. Mark, we can all hear you very well indeed, concern was never to be a petition of veto, or even a but our technical team here is not hearing you very well petition of objection. It was to be there to trigger a and cannot do anything to turn up the volume. Of special procedure, which the Assembly would then use course, we are trying to record your evidence for Hansard and which would also call in the Equality Commission purposes. If you can try and get as close to your and the Human Rights Commission. It was to be joined-up microphone, wherever it is, that would be helpful for scrutiny for rights and equality. those trying to record things here. Of course, that has not happened and instead we have had the petition of concern being abused as essentially a dead-end veto, played almost as wild, as a joker at Q51 Alex Davies-Jones: The Good Friday agreement times, even against censure motions on Ministers. It was established a Civic Forum to give communities a voice never intended to be so used. Some of the provisions in and a proper consultative say in the democratic process. the Bill weed some of those bad habits out, but they do How important do you believe that was and has it set not correct the basic architectural mistake that the 1998 back progress on the Good Friday agreement that it is legislation never properly provided for paragraphs 11, not currently in place? 12 and 13 of strand 1 of the Good Friday agreement to Mark Durkan: I think again that it is a key bit of the be put into statute. architecture that is missing. The Civic Forum was agreed by the parties in the strand 1 negotiations. We recognised that the Assembly was going to have many challenges Q53 Claire Hanna (Belfast South) (SDLP): It is a and difficulties and agreed that it would be useful to pleasure to serve under your chairmanship, Sir David. supplement the elected representation in the Assembly Thanks for your evidence, Mark. You commented briefly with a strong Civic Forum. The thinking that some of on the original intent of the Good Friday agreement us had was that maybe a Civic Forum involving a versus how it has latterly been used as a way to, I variety of stakeholders and public policy interests would suppose, thwart minority rights rather than protect be an outrider on some of the more difficult structural them. Could you give an assessment of what Daniel challenges that we would face in Northern Ireland in Holder this morning called the St Andrews veto, deployed trying to rebalance our economy and make sure that a at the Executive, and the extent to which it is being used rebalanced economy also went along with a better as a pre-emptive veto that prevents proposals and legislation balanced region, and also in tackling issues of a shared from even reaching the floor of the Assembly? future and some of the big structural problems that we Mark Durkan: Thank you for that question, Clare. needed to change. First of all, there is a problem with what you describe as a pre-emptive veto—in the past, I have used the phrase The idea was that work could proceed in the Civic “predictive veto”. That certainly stems from, first, the Forum in ways that could frame issues for debate and petition of concern itself, because once parties start to choice that could then be taken up by the Assembly and moot the possibility that a proposal or a part of a Bill Executive themselves. The fact is that the Civic Forum, might be the subject of a petition of concern, that very when it was in operation, did start to do some of that much helps to stop a lot of the preparation and a lot of work in forward strategic thinking, but unfortunately, the thinking. while the Assembly was restored some years after it Even at the prelegislative stage, issues end up staying collapsed in 2002 after Stormont-gate, spy-gate—whatever inside Government Departments, or on the Executive people want to call it—the Civic Forum never was, and table even, and not going to the Assembly because that is a loss. people sense that there will be a petition of concern, so we end up with a bit of a stand-off, or gridlock. Issues Q52 Alex Davies-Jones: Finally, what key measures that should be the subject of clear, concrete proposals do you believe need to be implemented that are currently often find themselves remaining in hidden contemplation absent from the Bill? at Departments because people are afraid of triggering Mark Durkan: I think we need progress in relation to the petition of concern process. In that sense, it has the Bill of Rights. We need to try to clarify exactly what ended up being like a predictive veto. The petition of damage may have been done to the standing of the concern was meant to be there so that issues could be European convention on human rights and the reliance properly considered and perused because of their equality that citizens can place on it. A very direct promise was and human rights implications. It was not there to stop made to citizens in Northern Ireland about the European proposals being tabled in the first place, but it has had convention on human rights, but several of the Acts on that effect. the foot of Brexit have diluted that quite significantly, In terms of what Daniel seems to have said this so I think that needs to be improved. While this Bill morning about the St Andrews veto, that refers to the makes some improvements to the petition of concern—it fact that, as part of the St Andrews agreement, an weeds out some of the abuses in terms of how quickly additional point of veto ended up being created explicitly or easily people table a petition of concern, so it is more at the Executive, whereby three Ministers could call in qualified—it does not actually fix the problem with the any measure—even one being dealt with by another petition of concern, which goes right back to the original Minister—to the Executive. They could also then subject 1998 legislation. that to a cross-community voting requirement at the 45 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 46 and Petitions of Concern) Bill Executive itself. Again, in this provision, there was no “Well, we will pre-assign, on an exclusive basis, the reference to equality, rights or any grounds on which nomination of First Minister to the biggest party of the such a veto or call-in power had to be selectively used. It biggest designation. We will also privatise the nomination was not there; it was just wide open and free range. At of the Deputy First Minister to the biggest party of the the time of the St Andrews negotiations, I referred to it second biggest designation.” It was purely to remove as a “drive-by veto” that would be used on top of the that 15 minutes of discomfort for the DUP on one day. difficulties that we already had with the petition of What has happened since then has been that that change concern. Of course, again, this has meant that rather has meant that the Assembly elections have been tribalised than giving due consideration to legitimate and much- even more deeply than they would have been, because needed proposals—often those that have been directed they have been turned into a first-past-the-post race for or requested by the courts—the Executive are not able First Minister, with the DUP saying, “You have to back to do that simply owing to this additional veto, which us to make sure we are the biggest Unionist party and was created as part of the St Andrews negotiation. the biggest party, otherwise you could have a Sinn Féin First Minister.” Similarly, Sinn Féin are using it on the Q54 Claire Hanna: I want to pick up on another other side, saying, “Rub the DUP’s nose in it. We can change to the Good Friday agreement at St Andrews take First Minister off them if everybody piles in behind that is also covered, in part, in the Bill, which is the us.” That is not what having proportional representation change from jointly electing First Ministers to the elections for the Assembly was designed to produce. arrangement that we currently have. What was the point It has also meant that the office has had less of an air in principle of that change? Do you think it has been a of jointery around it. Remember, they are nominated factor in the recurring instability that we have seen over separately; they are not nominated or elected jointly. the last number of mandates and years? More fundamentally, there has been a weakening of the Mark Durkan: I do not think there was a point in sense of accountability of the First and Deputy First principle in that change as such. The reason why it was Ministers. When the First and Deputy First Ministers an imperative for the DUP to seek that change was are not appointed by the Assembly, they may feel less because the DUP did not want to be in the voting lobby accountable to the Assembly. We have seen that with along with Sinn Féin to elect the First and Deputy First changes in previous years in relation to levels of Budget Ministers. The Good Friday agreement very deliberately scrutiny. We also saw it at other times. For instance, there provided for the joint election of the First and Deputy was a motion by the leader of the SDLP in the Assembly First Ministers by the Assembly on an open-nomination back at the end of 2016 around the renewable heat incentive. basis. Any two Members of the Assembly could have It was a motion calling Arlene Foster to account. been proposed by any Member of the Assembly to be Arlene Foster’s attitude as First Minister was that she First Minister and Deputy First Minister, or, as we resented being called into the Assembly and she just would have preferred to have the wording, joint First parroted that she had a mandate from the people of Ministers. Northern Ireland. She did not have a mandate from the The DUP were afraid that if they were going to vote Assembly. Her only mandate was to those who voted for Ian Paisley, they would have to vote for Ian Paisley for the DUP. The DUP, in that previous Assembly and Martin McGuinness together, and they would be in election, got a smaller share of the vote than the Labour the yes Lobby in the Assembly, possibly on their own. party, then in opposition in Great Britain, had done. The first move that the DUP and the two Governments The idea that this was a mandate from the people of made to try to resolve that momentary issue—it would Northern Ireland, not from the Assembly, created some have been the 10 or 15 minutes of a Division—was to of the tensions and some of what I would say—maybe say, “Well, we will force all the other parties into the unfairly—was evidence of arrogance on the part of the Lobby with you.” From December 2004, the whole way holders of that office. It all stemmed back to those up until St Andrews, it was the position of Sinn Féin, St Andrews changes, which essentially privatised those the DUP and the two Governments that the agreement two appointments simply to two parties and gave other was going to be changed so that no other party would parties no say in the appointment of Ministers. get to be nominating Ministers under the d’Hondt rules I would contrast that with my own experience. To if they had not also voted for the First and Deputy First be elected as First Minister and joint First Minister, Minister. This was an attempt to oblige the SDLP and David Trimble and I had to have the support of not just the UUP to be in the lobbies with the DUP voting for members of our own parties but members of other Ian Paisley and Martin McGuinness, as the price of parties. Indeed, some members of other parties had to being included in ministerial office. even stretch to redesignate themselves to so elect us. We as a party were very clear. We had negotiated You were always conscious that you owed your election elective inclusion into the Good Friday agreement. We and your level of accountability to all parties—not just had negotiated it there for everybody. Nobody had to to be obsessed with your own party’s mandate. even support the agreement to be eligible for elective inclusion; nobody had to vote for the First and Deputy Q55 Claire Hanna: I do not want to hog all the time, First Ministers to be eligible for inclusion. When Seamus but I want to ask what your assessment is of the Mallon and David Trimble were elected, the DUP voted Government impact of the potential period of caretaker against and Sinn Féin abstained but they still got appointed Ministers. The phrase that has been in my head all day Ministers. The plan was to change the rules to force the is the former First Minister’sphrase “rogues and renegades”. SDLP and the UUP to vote for them. I am thinking of the issues around powers and scrutiny. Whenever the DUP realised that neither the SDLP What is your assessment of that? nor the UUP would comply with those terms, and Mark Durkan: As I understand it, the New Decade, therefore they were going to be in the Lobby on their own, New Approach negotiations involved a push by some they came up with this other device instead, that said, parties to say that there was a need to lock in stability or 47 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 48 and Petitions of Concern) Bill sustainability, and that the way in which the Executive is not the institutional, interdependent, interlinked balance had fallen after the resignation of Martin McGuinness that the Good Friday agreement specified. The Good was something that needed to be corrected or avoided. I Friday agreement is explicit on the interdependence of am not sure that the scheme provided for in this legislation the strand 1 and strand 2 institutions, but NDNA seems really does lock in stability. In some cases, it may lock in to have come up with a way of sustaining strand 1 in a what might be a pretty untenable situation of a caretaker way that could not actually sustain strand 2 at the set of Ministers limping on in office. same time. In fairness, we have to accept that every time we have tried to solve some of the conundrums that come up Q56 James Sunderland (Bracknell) (Con): Mark, thank with the agreement, we find ourselves coming up against you for appearing before the Committee. Politicians the same basic problem. It is a bit like, “There’s a hole in generally agree that the Good Friday agreement was a the bucket, dear Liza”. Every time we try to solve one good bit of work. It was successful, it has endured to procedural or structural problem, we find ourselves the present day, and there is lots of confidence in it for coming up against another one, and in many cases we the future as well. We know there are some relative find ourselves coming up against the same basic question: threats to it at the moment, not least the Northern is there really the will and commitment to truly honour Ireland protocol and possibly the forthcoming statute and uphold disparate power sharing, both in the joint of limitations on legacy—the list goes on. Can you office of First Minister and in a power-sharing Executive? assure the Committee that the Bill does not pose any I am not sure that the proposals adequately answer that. threat to the Good Friday agreement? If there is a Youcan see, I think, that there is planning permission threat, can you explain what it is? in the proposals for roll-over periods of every six weeks, Mark Durkan: In terms of the agreement, the Bill is potentially, where you have caretaker Ministers. No meant to uphold and follow through on understandings doubt kites will be flown that there are proposals to that were reached by five parties and the two Governments break through the impasse, and then we will find that in the NDNA, and that was the price of getting devolution that does not work, and there are more recriminations restored. I look at the Bill not as something that is going and still more roll-over of caretaker Ministers. How to directly damage the Good Friday agreement. I would credible that will be, I am not sure. Whether the public say it is something that does not go far enough to will regard that as sustainability in the way that the restore and repair the Good Friday agreement, to correct parties that wanted the changes in NDNA talked about, its standing. What is missing is the true correction I am not sure. correcting the original architectural flaw in the original 1998 legislation around the petition of concern. What is Then, of course, there is the issue about what is called in the Bill about qualifying the use of the petition of representation—that the Secretary of State may step in, concern is helpful and good, but it does not go far notwithstanding provisions elsewhere in the Bill, to call enough to correct the basic architectural flaw about the an election because he thinks that there is not sufficient absence of the special procedure and the focus on representation among the Ministers who are in office to equality and human rights, so that is something that enjoy cross-community support in the Assembly. I think could be improved. that was the phrase used in NDNA, but it is not used in this legislation. I assume that that is to address the Likewise, in terms of the appointment of First Ministers, possibility that one of the First Ministers could resign, I would prefer legislation that restored the factory setting other Ministers might resign, and in essence a shell of of the Good Friday agreement and allowed for the joint an Executive would continue, but it does not seem to me election by the Assembly of joint First Ministers. That that the issue is properly dealt with. It seems to me that is going to be particularly important coming up to the we are looking at planning permission for new brinks to next Assembly election when there will be all sorts of be brought to teeter on, which is what happened even speculation about the possible permutations of numerical with some of the St Andrews changes, and some of the strengths of different parties. The terms that were fixed other procedural adjustments that have been made. at St Andrews say that the biggest party in the biggest designation gets one nomination, and the next nomination There is the question of what powers the Ministers goes to the biggest party in the next biggest designation, will have. The suggestion is that their powers will be but they also provide for the fact that if the biggest qualified and limited—NDNA said, of course, nothing party is not in the biggest designation, it will get to significant or controversial. The question then arises of appoint the First Minister, and then the Deputy First how many weeks you can really go on for on that basis, Minister will go to the biggest party in the biggest and who is to judge what is controversial. Do you have designation. So, you can see areas where parties will an Executive Committee that is able to operate? If we speculate that they might score very highly in the election are talking about a period of either 24 weeks or even, as in terms of seats but end up, because of St Andrews, the Bill provides for, up to 48 weeks, where you have this being disqualified from the exclusive nominating rights kind of zombie Executive, what happens to the North that are fixed. It would be much better if the whole South Ministerial Council? The Good Friday agreement Assembly, as elected at the next Assembly election, had provided very clearly that the Assembly and the North the responsibility of jointly electing First and Deputy South Ministerial Council are so interdependent and so First Ministers, and if all parties had responsibilities for interlinked that one cannot function without the other. making the Government work, rather than being able to It seems to me that we have come up with a scenario of say, “It’s the problem of those two parties,” which are a period, possibly of up to a year, where you could have preassigned those two nominating positions by the random an Assembly functioning in some sort of quasi-status results of the election. Nobody else can be nominated form and Ministers in a shell of an Executive, but to anything without the First and Deputy First Ministers without a basis for NSMC meetings to take place. That being nominated. 49 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 50 and Petitions of Concern) Bill The repair work that could be done and the prevention in 2000. As part of that, for any challenge that is of some pretty serious anomalies or absurdities that brought within Northern Ireland, our courts have to could potentially arise after the next election have not consider the jurisprudence of the European Court of been achieved by the Bill. I do not think that we should Human Rights in assessing the application of the Human be precluded from thinking that through further, in Rights Act. Does that diminish your concerns in any order to avoid an impasse after the next election. way? Does that give you more reassurance? You mentioned earlier in your evidence that you could not go to court Q57 Gavin Robinson: Good afternoon, Mark. I do and rely on the convention, but you seemed to not not agree with all of your evidence, but I certainly enjoy ignore but maybe not reflect on the Human Rights Act the fact that you have not lost your unique turn of and the part of it that specifically requires our courts in phrase. I have been following very closely. On some of Northern Ireland to consider the jurisprudence and your comments concerning human rights and equality, case law of the European Court of Human Rights. you will remember the negotiations that led to the deal Mark Durkan: Yes, and the courts in Northern Ireland that was not a deal, which you and I were involved in are given under the agreement the power to strike down around Stormont Castle. We had interesting discussions legislation of the Northern Ireland Assembly on the about the petition of concern and so on. Do you still grounds of incompatibility. They do not have the power accept that it is impossible for the Assembly to consider to strike down legislation from Westminster, for instance. a Bill that has not been screened for equality and They do not have the power to strike down decisions human rights impacts, and that the Assembly cannot that might be taken by a Minister of the Crown under progress or pass a Bill that is in conflict with human something like the United Kingdom Internal Market rights or equality legislation? Act. The decisions of a Minister of the Crown cannot Mark Durkan: I do not fully accept that. The whole be challenged in the courts. The UK Internal Market point about the petition of concern at the time was to Act specifically provided for there being no challenge in ensure that we had—I used this phrase earlier—joined-up the courts of Northern Ireland, or indeed in any other scrutiny and that we would make sure that there could courts, on that basis. be a connection between the quality of Assembly That knocks a pretty big hole in the intended effect of consideration and the advice or evidence that might the commitments on the European convention on human come from the Equality Commission, the Human Rights rights, which was provided for as part of the Human Commission or indeed others. Rights Act. When negotiating the agreement, one of Remember that the whole promise of the Bill of the reasons we were able to agree that the work on the Rights in the agreement was very much a promise to Bill of Rights was something that would be for the future— citizens. That is one of the reasons I lament the absence for the next few years—was that a bird in the hand was of a Bill of Rights. When we were negotiating the worth two in the bush. The promise of the European agreement, our thinking was that the reliance on things convention being available and accessible in the domestic like the petition of concern would reduce in circumstances courts in Northern Ireland, on the basis of the Human where you had a live Bill of Rights and the good custom Rights Act, meant there was a starting point—there and practice of people being able to exercise their own was already a starter for 10—as far as rights protections, challenges. Parties would not then have to rely on some alongside the institutions, was concerned. But the intent of these other designation-related devices. It was there and the expectation was that there would also be some for a reason. Yes, the agreement and the legislation are additional rights that would go alongside the European clear about the obligations around rights, including the convention and that, together, those rights and the European convention on human rights. But the logic European convention would constitute a Northern Ireland and strength of that has been watered down by much of Bill of Rights. the legislation that has happened since Brexit, because It would have been good to achieve that. I think it the European convention on human rights does not would also relieve the temptation that parties sometimes have the same strength of standing in Northern Ireland feel to use devices like the petition of concern and other after some of those bits of legislation as it did. structural blocks in the name of saying they are reserving Weare in a bizarre situation whereby a public authority or protecting rights, when they are actually preventing can say to a Northern Ireland Minister, “You cannot decisions. The more robust and articulate a Bill of ask us to breach the European convention on human Rights that can be taken to the courts, the better for the rights,” and they are within their rights to do so and to decision-making processes. challenge any request, demand or pressure by a Minister or Department to so do. But they will not be in a Q59 Gavin Robinson: This is perhaps slightly outside position to so challenge a demand or instruction from a the scope of the Bill—Sir David, you can strike me Minister of the Crown under, for instance, the United down if you wish—but on the issue of a Bill of Rights, Kingdom Internal Market Act 2020. Those instructions as you know, Mark, the agreement provided that the can apply directly to Departments in Northern Ireland Human Rights Commission would bring forward proposals or to other public bodies. What was envisaged in the at the request of the Government, and it did and you Good Friday agreement, which Mo Mowlam in particular reflected that there was not consensus at that time. put so much work into the wording and strength of, is What it was asked to bring forward was additional now diminished. I would like to see it restored. rights framed particularly because of the unique circumstances of Northern Ireland. It may fall outside Q58 Gavin Robinson: You know that the European the scope of your remit or interest, but what sort of convention on human rights is there in the Belfast issues do you think fall within that category of being agreement, and the Human Rights Act in the UK unique issues to the circumstances of Northern Ireland was passed some months after and came into operation now, in 2021, today’s era? 51 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 52 and Petitions of Concern) Bill Mark Durkan: The word in the agreement is not “unique” There are different models and options, but there is but “particular”. From my memory, that was because certainly a big appetite among the public for it to be not one negotiator in particular and one party would have just politicians alone who decide those things—or, more voice-activated apoplexy any time anybody said Northern often than not, fail to decide them—and then recriminate Ireland was a “unique situation” or “unique”. George those who are to blame. Mitchell, Ministers of both Governments and all sorts of people found themselves seized with this fierce reaction The Chair: If there are no other questions from to the suggestion that we were unique. “Particular” was, colleagues, I call the Minister. apparently, allowed, so that is what is there. Q61 Mr Walker: Thank you, Sir David. It is a pleasure In the wording of the agreement, we did not specify—we to see you again, Mark, as a much-valued former colleague did not give lists of examples of the particularities—and in the Commons whom I enjoyed engaging with over that was simply because we did not want to turn that many years. It is good to see you back. section of the agreement into a sort of sin sheet, whereby You have talked about the importance of the Good we would each record or voice sensibilities about rights Friday agreement institutions. I absolutely recognise breaches or perceived rights breaches that had been that. Do you accept that, since the NDNA deal was endured, either through governmental or non-governmental reached, we have seen the restoration of devolution? We and other actions. have seen meetings of the British Irish Council and the Obviously, Northern Ireland does have very particular British-Irish Intergovernmental Conference. We have circumstances. At the time we were negotiating the seen those institutions functioning. It required an agreement, agreement, there was a lot of talk around group rights. as you say, with the input of both the British and the For instance, people were talking about that in relation Irish Governments and all five parties to reach it. to the parades issues, from two different sides and two I appreciate there are aspects of the Bill that you and different senses of rights. They were partly being talked your party might feel ought to be different, and aspects about there, but we were not writing that specifically of the St Andrews agreement architecture that you may into the agreement. not like. Do you accept, however, that in order to get the Obviously, there is a statement in the agreement that devolved institutions restored and the institutions of makes a commitment—a kind of “from here on in”, the Good Friday agreement itself properly functioning, future-looking commitment—around certain rights in we needed to get the buy-in of all five parties and Northern Ireland. Some of those touch on some of the therefore reach a deal that was acceptable to all of them? issues that maybe are not dealt with in this Bill but are Mark Durkan: Yes, I do. I said that I recognised that dealt with in other aspects of NDNA. NDNA was an agreement by all the parties and it was the price that had to be paid for getting the institutions Q60 Gavin Robinson: Finally, Mark, you reflected on restored. I am glad that it is the case, too, as you say, your disappointment with the Civic Forum. I think you Minister,that it is not just the Assembly and the Executive know that we are probably in a different space from who have been operating; obviously, this week we had that, but as part of New Decade, New Approach there the British-Irish Intergovernmental Conference and other was an agreement, outside this Bill, to incorporate civic things, and I am very glad of that. co-design in policy making and so on. Do you think I am at a loss to understand why there was a decade that that was a useful step forward as part of the overall when the British-Irish Intergovernmental Conference discussions in New Decade, New Approach, although I did not meet. I think that the two Governments gave a recognise that you still want to see the re-establishment very bad example as the supposed co-guarantors of of the forum itself? the agreement. The one bit of the agreement that falls Mark Durkan: I think you can have both—it does not particularly to them was not being honoured. The have to be an either/or. The forum having its own Governments were not always in the strongest place by standing is good—it can take on work, particularly appearing to criticise either or both Sinn Féin and the long-term work that may need careful framing of options DUP for the failure to restore the Assembly for three and choices, and scoping out some of the issues and years, in circumstances where the two Governments potential problems. We saw the forum as something had failed in their responsibilities. that could do that, but we do not think it is the only Yes, I recognise the limitations in the NDNA. The form of civic engagement or input that there should be. problem is that some of those limitations are being Let us not forget part of the success of a different translated into statute here. The promise is that this aspect of the agreement in terms of policing—the Patten legislation is there to give stability and sustainability, plan. We think the role of the independent members of but rather than blocking instability, there is a danger the Policing Board was part of the strength of making that it locks in a sort of zombie Executive and creates that new beginning for policing happen and succeed difficulties between parties, as well as creating difficulties during some very challenging times in the early days of in which the Secretary of State can be implicated. I the Policing Board and some challenging issues, in think that the more we get into those sorts of difficulties, terms of the Omagh bombing report and the issues the harder things are. around, “I’m retiring; no, I’m not retiring”, by the then This Bill does not rescue us from the sorts of absurdities Chief Constable.The independents had a key role alongside that might emerge with possible election results at the the elected representatives. That is something that we next Assembly election. With a bit of speculation as to can replicate in other ways. When it comes to prelegislative the different strengths of different parties, you could have scrutiny in the Assembly, for instance, there is no reason very serious difficulties trying to appoint the First Minster why members of the public with particular policy insider and Deputy First Minister, as provided for in the expertise and credibility in given policy communities St Andrews agreement, due to the random nature of the should not be there alongside MLAs. electoral results in terms of the number of Assembly seats. 53 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 54 and Petitions of Concern) Bill Those seats determine who has the prescribed right to to allow for some accountability within that, on the basis nominate the First Minister and who has the prescribed of the programme for government on which they were right to nominate the Deputy First Minister. It becomes originally put in place? That would allow for continuity a real problem, and that will be a problem that discolours of departmental decisions and give some cover to their a lot of the election debate. It is going to bring people into civil servants in a future period in which we might be all sorts of difficulties due to technical voting, tribalistic without a First Minister and Deputy First Minister. voting and all sorts of other things. We should be free of Mark Durkan: I take that point, Minister, but you that. We should be trying to correct the St Andrews said “some cover”. Given that the decisions are not damage there, and I make no apology for that. meant to be on matters that are significant or controversial, I think that proposed new paragraphs (e), (f) and (l), some cover might be quite limited. Some of the difficulties set out in clause 4(1), provide useful additions to the and frustrations that the civil servants had in the previous ministerial code in relation to good community relations period of abeyance could equally apply, but they would and equality of opportunity, and also in relation to have Ministers who are not at full power or status and public appointments, civil service appointments and the who may not have the benefit of actually operating code of conduct for special advisers. Those are useful inside an actual Executive, in those terms. It will be a additions, although I do not know whether there is a pretty limp-along situation. It will be a sort of twilight particular reason why some of the original terms of the zone, both politically and administratively. code of conduct are now being omitted. For instance, I know you will say that, with the roll-over periods one requires Ministers at all times to and things like that, there are options for the Assembly, “ensure all reasonable requests for information from the Assembly, and that if the position becomes completely unsustainable, users of services and individual citizens are complied with; and in terms of cross-community support, there is the power that Departments and their staff conduct their dealings with the for the Secretary of State to intervene to call an election. public in an open and responsible way”. However, I think we need to recognise that we are That seems to have been omitted for the first time, and I providing for a series of episodic crises and anomalies do not know why. that can happen under this legislation. In Northern Similarly, there are references elsewhere in the original Ireland, people have a habit of being able to conjure up version to users of services, but there is now no reference all sorts of problems and interpretive misapplications to users of services in the ministerial code of conduct. of provisions to create particular problems. We have Even some of the opening language in the original seen that previously in relation to provisions of the version has been changed. It had required Ministers agreement or in subsequent legislation. As I say, I do not expect that there could ever be perfection in a Bill “to observe the highest standards of propriety and regularity involving impartiality, integrity and objectivity in relationship to like this, because there is a hole in the bucket, dear Liza, the stewardship of public funds”. and people keep coming up against some of the same problems, no matter how many patches or solutions we The opening language in the new version is arguably come up with. weaker. I am not aware of which parties either argued for or agreed that weakening of language. However, I think we need to recognise that this imperfection means that it probably will not be very long after the next Assembly election until you will be Q62 Mr Walker: I must say that most of the evidence looking at possibly more remedial legislation to deal we have heard to date—this is certainly true of the with the probably untenable situation that might exist submissions I have received from the parties individually— around the St Andrews provisions for the appointment sees this as a strengthening of the ministerial code. It is of First Ministers. I think it would be better to correct the case that some aspects of the Spad code and the that now. I think it is in all parties’ interests that that is ministerial code would sit with the Assembly to manage. corrected, in terms of equalising the title of the offices What we are seeking to do here is correct those bits of of First and Deputy First Ministers, and also restoring the Northern Ireland Act 1998 in relation to the ministerial the joint election by the Assembly, and maybe relying code, in line with the agreement that was reached by the not only on parallel consent but on other measures of Executive and signed off by the Office of the First and cross-community support. I think that would safeguard Deputy First Minister. the atmosphere around the election debate and would Overall, this should be a strengthening of the ministerial safeguard the choices of the public from being pulled code, alongside some of the other mechanisms to enhance into all sorts of tactical voting considerations owing to the stability of the Executive. This is about trying to a pretty tribalistic agenda around the totemic significance, support them. I would agree with your evidence and supposedly, of the title of First Minister, which should that of the former permanent secretary, but what we all not be a singular title. want to see is good will from all parties to keep the Executive fully functioning and to avoid a situation in The Chair: Mark, even though I dare say that the which these mechanisms are required. It is very important Minister wants to continue the questioning, we cannot; that we see that. you have, in fact, used up the 15 minutes we gained, and With regard to the possibility of what you called a we are due to finish hearing your evidence at 4 o’clock. zombie Executive—the Opposition talked about caretaker We thank you very much indeed for the time you spent Ministers—do you accept, given the experience that we with us this afternoon. I know I speak for everyone had during the long period of the absence of the when I say that I wish you well. Executive, with civil servants really being put in an Mark Durkan: Thank you, Sir David. 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, The Chair: We will have a two-minute pause. 55 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 56 and Petitions of Concern) Bill 4 pm We had a number of concerns. They may well be on a The Committee deliberated in private. 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 Examination of Witnesses met them as well, to discuss this matter. A number of Alex Maskey, Lesley Hogg and Dr Gareth McGrath the issues of concern that we had were around the gave evidence. 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 4.2 pm sure that any changes that occur through the Bill are The Chair: In our last session this afternoon we will clear and can be delivered practically. hear from Alex Maskey, the Speaker of the Northern I will just touch on a couple of the issues that you Ireland Assembly; Lesley Hogg, the Clerk of the Northern have referred to, Stephen. For example, the Bill includes Ireland Assembly; and Dr Gareth McGrath, the director triggering a consideration period of 14 days when a of parliamentary services at the Northern Ireland Assembly. petition of concern is presented by 30 Members. As This is just to prove that I can read what is in front of currently drafted, it would appear that this period of me. I have introduced our three witnesses, but would 14 days cannot be shortened in any way, which could you expand on your jobs, please? present a significant issue when a vote on a matter that Alex Maskey: My name is Alex Maskey. I am the is the subject of a petition is time-sensitive—for example, Speaker of the Assembly. I was elected to this position a statutory rule, a legislative consent motion or some in January 2020, when the Assembly was reconstituted other types of regulation. In a more malign sense, it on the basis of the NDNA agreement. could also be used to stymie business: if people want to Lesley Hogg: I am Lesley Hogg, Clerk and chief upset some of those time-sensitive matters, they could executive of the Assembly. I took up post in 2016. put in a petition of concern. Dr McGrath: I am Gareth McGrath, director of That might seem outlandish or unreasonable, given parliamentary services. I took up my post with the the way that the petition of concern has been dealt with Assembly in 2008. 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 The Chair: Thank you for your time this afternoon. shortened period or any number of days set beyond Which colleague would like to ask the first question? I where we are at the minute could lead to some of these call Mr Stephen Farry. unintended consequences, so we just want to draw them to the attention of the Committee, as we did to the NIO. Q63 Stephen Farry: Thank you, Chair. I welcome my People also need to understand that the Bill requires former colleagues from the Northern Ireland Assembly—it that the Assembly Standing Orders provide for the is great to see you all again. To facilitate the conversation, implementation of the new arrangements for the petition I will start with you, Mr Speaker. I am conscious that of concern, which include a 14-day consideration period. you have written to MPs setting out some particular It is not yet clear if or when the Standing Orders required concerns about micro-details on how some of the would be agreed by the Assembly, and consequently the governance aspects of NDNA may impact the day-to-day existing Standing Orders would continue to apply. We working of the Assembly. Perhaps it would be useful if already have an example of this. Wehad a Bill passed some you set those out for the Committee. time ago, and there was not the political agreement within Alex Maskey: Thanks, Stephen—it is good to talk to the Assembly on a cross-community basis to put that you again. You have been missed in the Assembly for a into the Standing Orders. That was the John McCallister while, let me tell you. Thanks to you, Chair, and to the Opposition Bill, so these things can actually happen in Committee, for allowing me and my two colleagues reality. Lesley and Gareth to appear today. Obviously, we want Moving on to the proposal that outgoing Ministers to make a number of points on the procedures and would continue to be in office for an extended period potential unintended consequences, given the slight following an election or since an Executive was in place, difference between the scenarios that exist within the only comment to note is that the Standing Orders of Westminster and what exists and is pertinent to ourselves the Assembly are clear that Committees are not established in the Assembly. after an election until all ministerial offices have been As Speaker and as officials, we have no view on the filled. Therefore, if Ministers remain in office, there is substance of the NDNA, or indeed the content or the proposal for Ministers to exercise some level of intentions of any of the aspects of it, but we are function without the normal accompanying Committee obviously very much aware of the fact that this Assembly scrutiny. was reconstituted on the basis of that particular agreement Finally, I want to comment on the proposal to prohibit being reached by the parties and the Governments the Speaker and Deputy Speakers from signing a petition involved in those discussions at the time. I would have of concern throughout all of the mandate. In relation to been involved in some of those conversations myself the Speaker, Stephen, you will of course know that this but, as you all know, once I take up the role of Speaker, simply puts existing practice into law, but in relation to as is the case for all Speakers, we immediately adopt a the three Deputy Speakers, the position is different. As position of impartiality and independence and take no currently drafted, by prohibiting a Deputy Speaker opinion on any of these matters. I am dealing with this, from signing a petition of concern even if they would and my colleagues are going to deal with this, on an not be chairing that item in that capacity, there is the exclusively procedural basis. potential to deter Members from serving actively as a 57 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 58 and Petitions of Concern) Bill Deputy Speaker,and occasionally parties may be reluctant First, we need agreement on a cross-community basis in to allow one of their Members to serve as a Deputy order to elect our Speakers. Secondly, if we were not to Speaker if they cannot sign a petition of concern throughout have new Ministers,and outgoing Ministers were caretakers, the mandate. you could have a situation where there would be little Intentionally or unintentionally, that could impact scrutiny or accountability of the work that they were on the inclusivity of the team of Deputy Speakers who doing, albeit that they would still be operating on a work with the Speaker, on the basis that if Members caretaker basis. That would be a concern for us. cannot sign a petition of concern throughout the whole We would also have an issue on the question of of the mandate, as I say, some individual Members may sufficient representation, which we would like better have some particular issues of interest on which they clarified. I do not want to have to navigate undefined or would wish to reserve the right to do that. It may put ill-defined conditions, such as “sufficient representation”. them off, or indeed it may put the parties off, given that The NIO is suggesting it would want flexibility in that we need 30 Members now to sign a petition of concern. case, which I can fully understand, but we are drawing No party at the moment can deliver those 30 signatures attention to the fact that that could give us the issue of on its own. trying to navigate something that is not very well defined. Parties may be a bit reluctant to allow their Members to sign petitions of concern, which could affect the Q66 Alex Davies-Jones: In the Bill, it is not clear how inclusive nature of having Deputy Speakers from across the ministerial code will be enforceable. Do you think the current main parties. We were just trying to set out that will make it hard for Members of the Legislative to the Committee and the Northern Ireland Office that Assembly to hold Ministers to account? we want to avoid situations where the Speaker and Alex Maskey: I would not necessarily say so, to be officials would have to resolve any ambiguity or deficiency truthful with you. That is always a work in progress, I in any of these provisions. suppose. I would not necessarily say that that would We are happy enough to come back in if there are any create any further difficulties than we already have. other issues that we have left out. Maybe I will ask Gareth, in the first instance, if he wants to add anything. Q67 Alex Davies-Jones: Do you think it would be wiser for the definition of “cross-community confidence” Q64 Stephen Farry: Gareth might be able to elaborate to be outlined in clause 213 in relation to a caretaker on this. Essentially, Mr Speaker, you are outlining three Executive? broad issues. One is the removal of the bar on Deputy Alex Maskey: For me, as Speaker and as someone Speakers with regard to a petition of concern. The who will remain impartial on this, I am trying to draw second is the ability to establish Committees if there is a out, as are our officials, what areas are not as clear as we long period after an Assembly election in which Ministers might like, but we support the legislation, and we will are still in place on a caretaker basis. Perhaps we could support what the Assembly decides. At the end of the ask Gareth to elaborate on the third point, which is day, it is not for us to make specific proposals. We are around the potential lowering of the 14-day threshold certainly very happy for our officials to continue to in very limited circumstances. Maybe he could give us liaise with the NIO on some of these matters, but for us, an idea of how that could be achieved in primary in our role, to put specific proposals probably would not legislation—there are some enabling issue—and in Standing help, and would be inadvisable. Orders.There maywell be issues around those circumstances are defined. Q68 Claire Hanna: A previous speaker addressed Dr McGrath: Mr Farry will recall from many discussions some my questions around the code of conduct. By the of petitions of concern over many years that the devil in way, it is very good to see you all, if only virtually. On these matters is in the detail. It is almost impossible to the provisions on enforcement of the code of conduct, envisage all the scenarios that could be captured in do you think the Bill needs to specify who should be the relation to the 14-day period. As Mr Speaker mentioned, arbiter of those provisions? a number of matters would be obvious to us, such as Alex Maskey: Again, Claire, it would not be for me statutory rules, prayers of annulment and legislative to put a proposal on the table on that, because as you consent motions, but there may be a plethora of other know, people guard very jealously—I certainly do—the statutory motions, as I would call them, in primary professional requirement to be independent and impartial. legislation throughout the statute book. It is quite difficult While I fully accept and appreciate that our Assembly is to say, “If it isn’t 14 days, is it 10 days or seven days? predicated and reconstituted on the basis of New Decade, What is it?”From that perspective, some sort of mechanism New Approach and all its contents, I want to see them that could take into account when a statutory deadline all delivered as a matter of integrity and public confidence- will impact on the 14-day period would be helpful. It building. By the same token, the substance of each of would be almost impossible for me to get into defining those provisions is really a matter for all the parties and that in more detail. the Governments to work out, and we will service those diligently. Q65 Alex Davies-Jones: I thank the witnesses for joining us. Mr Speaker, are you concerned that the limits Q69 Claire Hanna: Lesley or Gareth, would you have of the power of Ministers during the caretaker period any suggestions on that? Should there perhaps be more are not set out? power, or more definition of the scope of the Northern Alex Maskey: What we would be concerned about is Ireland Assembly Commissioner for Standards? that under our rules, once we have an election, we would Lesley Hogg: Obviously, the ministerial code will appoint the Speaker and Deputy Speakers before anyone now be monitored, and complaints against the ministerial else. Then we would appoint Ministers and Committees. code will be taken up by the Commissioner for Standards, 59 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 60 and Petitions of Concern) Bill but I think that is really as far as I would like to Q72 Gavin Robinson: May I ask Lesley or Gareth if comment at this stage. As the Speaker says, we will those are discussions that you have had with the NIO? obviously implement whatever decisions are taken. The Or as Mr Speaker says, are you highlighting the problems code of conduct is embedded in the ministerial code and as you see them and looking to the NIO to bring would therefore come under the remit of the Commissioner solutions? for Standards. Lesley Hogg: We have really highlighted the problems; Dr McGrath: It has always been the case that the these are political solutions that are you are trying to Speaker has no role in the code of conduct for Ministers. identify. Many of these have been ongoing for a number of years. We have highlighted that there is an issue. Q70 Claire Hanna: I want to pick up on an issue that There is no easy solution, but we are happy to continue has been discussed today by a number of witnesses: the to work with officials to see if we can come up with processes that were envisaged originally regarding the anything. use of the petition of concern, but that have not been Dr McGrath: Mr Robinson, I would just add that former regularly used, such as this Ad Hoc Committee on Speaker Hay wrote in 2009 that the tabling of a petition Conformity with Equality Requirements. I remember, of concern is a serious and important procedural step from my time in the Assembly, a previous committee that has the effect of raising the bar. From an Assembly being in place for the POCs on welfare reform. What perspective, you hope to avoid the law of unintended has been the thinking around those? There was a difference consequences with all of these. For example, you could in opinion on whether they were required or discretionary. imagine that making it easier for Members to withdraw What is your analysis? a petition of concern could potentially increase the number Again, I suppose this is relatively moot in your term, tabled. Given that 116 petitions of concern were tabled Alex, because the POC has not been deployed while you in the 2011 to 2016 mandate, one in the 2016 to 2021 have been in post, but what is your understanding of the mandate and none in the last 18 months, the Committee requirement for those Committees to be established will want to consider the law of unintended consequences. under the current framework? Q73 Gavin Robinson: Alex, I hope you do not mind, Alex Maskey: You know that as part of the Good but the hon. Member for Belfast South asked you about Friday agreement, that framework was agreed, but it the petition of concern and some of the equality and was never,if you like, replicated in the Assembly.Speaking human rights aspects. Leaving aside the petition of as someone involved in the Good Friday agreement, concern, if legislation was passing through the Assembly, that was one of key areas people were focusing on to and somebody raised an issue to do with the declaration make sure we built the new instructions on a proper that it is compatible with human rights and equality framework. However, it is a statement of fact that they legislation, how would you deal with that, procedurally? are not there, not used and not in place at the moment. I If someone raises the concern that the declaration on spend every other week in the Chamber, busily telling the face of the Bill is erroneous, do you have a process people, “I have no role over that,” in terms of the code that you can use, or can the Office of the Legislative of conduct, for example. Counsel look at it? On what you are requesting, Claire, I would have Alex Maskey: First of all, as you know, the Speaker liked the provisions in the Good Friday agreement to has the role of verifying or confirming whether a Bill is have been faithfully implemented across the board, and competent in the first instance, before it is introduced. that would have applied to these provisions as well. The Once it is introduced, I would refer that to the Human fact they are not means that I have to deal with what is Rights Commission. The Assembly also has the right, in place within the framework, the Northern Ireland which was exercised recently, to vote to make sure we do Act, and our own Standing Orders, and I will faithfully refer something; it is a bit of an additional belt-and-braces deliver on those. provision. The Assembly can vote to refer a Bill or a measure to the Human Rights Commission at the outset, Q71 Gavin Robinson: Good afternoon to all three of so it would always be referred in the first instance to the you. Alex, you mentioned that you did not want to engage legal team, who would look at it from a perspective of in suggesting solutions, or do not see that as your role. rights, as well as considering all other matters of You highlighted the issue of the 14-day consideration competence. Of course, additionally, we then refer it to period for a petition of concern. Those are really issues the Human Rights Commission. The provisions are that may arise in extreme circumstances where there is a there, and they are acted on in each and every case. legislative deadline, or there is some urgency to matters proceeding. From what you say,the frailty in the legislation Q74 Mr Walker: It is good to see you and your team is that there is no indication that the petition can be again, Mr Speaker. As Speaker of the Northern Ireland rescinded if a resolution is found, say, two, three, four, Assembly,you will be better placed than most to appreciate five or 13 days into that 14-day period. Would that the importance of having the Assembly up and running option to withdraw the petition satisfy the concerns and legislating again after three years of absence. In that have been raised either through your officials or the your opinion, overall, does the Bill safeguard the institutions Office of the Legislative Counsel? in Northern Ireland, and support them in working Alex Maskey: On one level, it could possibly help, collectively for the benefit of the people whom they are because it would remove the issue. If you were to remove there to represent? it, then you do not need to deal with any consequences. Alex Maskey: I certainly hope that anything that we Gareth said earlier that we have identified a number of do would lead to that outcome. As I said at our meeting, issues that could be impacted, such as the LCMs, but Minister, with the political will, we can resolve most of there are others we may not have detected yet. I suppose the matters, if not all of them. Unfortunately,occasionally it could go some way towards solving it. we have not been able to resolve matters, including, as I 61 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 62 and Petitions of Concern) Bill said, when it came to an Opposition Bill passed a number Q76 Mr Walker: On the issue of the Deputy Speakers, of years ago; it was put forward by John McCallister. the NDNA deal states clearly: There was no cross-community agreement to enact a “The Speaker and the three Deputy Speakers shall not sign a Standing Order to apply that. That might seem odd or Petition.” unusual, and it probably is, but the fact of the matter is How do you interpret that? You expressed concern that we did not get an agreement. about being able to recruit Deputy Speakers. Can you At our meeting and in correspondence, we addressed give the Committee any further evidence as to that? Has the fact that the first item of business of an Assembly is that been a challenge? To what extent has the willingness electing the Speakers. With the six-week ruling, and the of parties to put forward their Members as a Deputy six-week period of delay envisaged in the Bill, theoretically, Speaker been a challenge to date? the Assembly could meet after six weeks, and if it could Alex Maskey: As I have said, no party at this moment not be formed at that time or could not fill the offices, in time can trigger a POC itself, because it does not have then it could close down for the next six weeks, but if we the 30 Members. Therefore, parties may be reluctant do not get a Speaker in place—if we do not have that and there would be some little amount of chit-chat agreement—we cannot even move to that point. With around the corridors—not that I have heard it recently. political agreement and common sense, you would imagine But when I was in the business of being involved in we could resolve these matters. We have only drawn chit-chat around the corridors as a party activist—I do attention to these matters on a cautionary basis because not operate on that basis now, of course—there would of our experiences; in the past, we have not even been have been people thinking, “God, would you want to able to pass a number of important matters on the basis lose a Member”—people would describe it in those of cross-community support. terms—“by putting them in as a Speaker if they are not Since taking up my post, I have routinely been on able to sign a POC?” You also have some Members who record reminding Members that we have a very important would feel very passionate about particular issues and job to do, as guardians of the legislature, in holding the who might want to support a POC if one were to be Executive to account. However, it is also by way of deployed at some point in the future. being our business to secure and try to maintain public We are merely drawing attention to the fact that the confidence in the institutions. If we can do anything to Deputy Speakers in our Assembly function differently maintain the sustainability of the institutions on the from how the Speakers in Westminster, for example, do, basis of the integrity of NDNA and previous agreements as I understand it. Our Deputy Speakers function as a reached, I think we will be doing a good job. Anything Deputy Speaker when they are chairing a session; for that helps us to perform our duties in a way that maintains the rest of the time, they actually operate as party and builds public confidence, we need to embrace. political activists. It is only the Speaker in this case—in the Assembly—who would be prohibited, throughout Q75 Mr Walker: I wholly agree. Are you not concerned, the entire mandate, from signing any petition of concern; though, that if we were to try to deal with matters and that is as it should be, of course. I am just drawing relating to the Standing Orders of the Assembly in that to your attention and that of the Committee today. Westminster legislation, that would risk overriding some It is just because we do not want to cause chill factors; of the provisions made in the Good Friday agreement we want to make sure we can draw on as wide a range of for Standing Orders to be agreed on a cross-community Members across the Assembly as possible, to make sure basis? I appreciate that there have been times when it we have inclusive arrangements made, from the Speaker has not been possible to agree Standing Orders, but is it through to the Principal Deputy Speaker and the two not better for any changes required to be agreed within Deputy Speakers. the committees of the Assembly, so that it shows that maturity and control over its own processes? Q77 Mr Walker: Thank you. May I turn to Gareth Alex Maskey: That is the conundrum that we have to McGrath and the contents of clause 5? The Bill will face. I am absolutely certain that the very best way of require petitions of concern to be signed and confirmed conducting our business is by doing it ourselves and by by at least 30 MLAs from two or more political parties. the Assembly performing its duties on a mature basis. Do you agree that this will better ensure that the mechanism Unfortunately, on more than one occasion, that has not is used on a cross-party basis, reflecting concerns across been able to happen on the basis that we would have the community? liked, but that is politics. As you know, there are many Dr McGrath: I think that that self-evidently would be issues that are quite divisive and polarising in our the case. It is also the case that uniquely in this mandate, politics at times. I still would say that I have been very and partially because of the reduction in the number of pleased, notwithstanding the very challenging difficulties Members, no political party has the number of signatures that we have had to face in the past year and more, that required to table a petition of concern, so by definition, the Assembly, for the most part, has performed its at the moment, a party requires the support of either duties well and professionally and the level of debate independent Members or Members from another party and so on has been mature enough. There have been to do that. It is the practice now—there have been no one or two breaches of good order and all the rest of petitions of concern in the current mandate. I am not that, but I think that, for the most part, the Assembly saying that the two are related, but I am saying that it is has come through the difficulties and trials pretty well. more difficult to see a scenario in future—obviously, We have still a lot of work to do. Yes, I agree with that without trying to forecast electoral outcomes—in which entirely, and I certainly want to work through the rest of a party would have the required number of Members. this mandate on the basis that the Assembly parties are fully understanding of the need to build confidence Q78 Mr Walker: We have heard some evidence today among the general public by doing our work professionally from witnesses that the 14-day consideration period is and maturely. welcomed in terms of the opportunities it could provide 63 Public Bill CommitteeHOUSE OF COMMONS Northern Ireland (Ministers, Elections 64 and Petitions of Concern) Bill [Mr Robin Walker] Q80 The Chair: Are there any other questions from colleagues? If there are no other questions, do our for people to rethink a petition of concern or find other witnesses want to make any final comments? ways of resolving concern. To come back to the issue of Alex Maskey: I just want to say thank you on behalf how we ensure that it is not in any way misused, do you of the Assembly for giving us this opportunity. As I and think that is something that could be resolved through my colleagues have said, we do not want to be over-cautious, changes to Standing Orders in the Assembly? but we feel obliged to draw attention to some of those Dr McGrath: To revert to the issue that was originally issues that may lack a bit of clarity. That may help on raised by the Speaker, clearly the intention of the one level, but if we do not have the political will then consideration period, as I understand it, is to allow a that could cause us some difficulties, purely from a cooling-off period and room for manoeuvre among the procedural implications perspective. political parties. It may well start off with that intention. We are not looking to see those situations arise again, However, there would be scenarios in which it could but we want to make sure we have drawn some of these evidently be used to stymie progress on issues for which issues to your attention, given that we have experienced the petition of concern was not intended. a number of these in the past and we do not want to It is one thing to have the provision in the Act, but have those matters resolved to create another unintended trying to implement it in Standing Orders is a different consequence or problem. matter. Standing Orders have to be passed on a cross- Other than that, we wish you well in your deliberations. community basis so there is no guarantee that just As a Speaker and as officials, we will professionally and because this Bill requires Standing Orders to make diligently put in place whatever comes our way as a provision for that, it will happen. That is a statement of result of the legislation, according to the will of the fact on the basis of legislation, as Mr Speaker said Assembly. Thank you. previously,that the Assembly has passed requiring Standing Orders to make provision for, and that has not happened. The Chair: On behalf of the Committee, I would like In that situation, the Speaker will be required to rule on to thank our three witnesses very much indeed for the whatever is referred to as interim procedures. That will time they have spent with us. We are very grateful. inevitably put the Speaker in a difficult position. Ordered, That further consideration be now adjourned. —(Scott Mann.) Q79 Mr Walker: I am certainly happy for our officials to follow up with you on this and continue this conversation. 4.38 pm It is important that we get the detail of this right. I am Adjourned till Tuesday 6 July at twenty-five minutes very grateful to all three of you for your input. past Nine o’clock. 65 Public Bill Committee29 JUNE 2021 Northern Ireland (Ministers, Elections 66 and Petitions of Concern) Bill Written evidence reported to the House NIB01 Centre for the Administration of Justice