Assembly and Executive Review Committee Review of Petitions of Concern Together with the Minutes of Proceedings of the Committee Relating to the Report, Minutes of Evidence, Written Submissions and Research Papers Ordered by the Assembly and Executive Review Committee to be printed 25 March 2014 Report: NIA 166/11-15 (Assembly and Executive Review Committee) REPORT EMBARGOED UNTIL COMMENCEMENT OF THE DEBATE IN PLENARY Mandate 2011/15 Fifth Report Powers and Membership Powers and Membership Powers The Assembly and Executive Review Committee is a Standing Committee established in accordance with Section 29A and 29B of the Northern Ireland Act 1998 and Standing Order 59 which states: “(1) There shall be a standing committee of the Assembly to be known as the Assembly and Executive Review Committee. (2) The committee may - (a) exercise the power in section 44(1) of the Northern Ireland Act 1998; (b) report from time to time to the Assembly and the Executive Committee. (3) The committee shall consider - (a) such matters relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998 as enable it to make the report referred to in section 29A(3) of that Act; and (b) such other matters relating to the functioning of the Assembly or the Executive Committee as may be referred to it by the Assembly.” Membership The Committee has eleven members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows: ■ Stephen Moutray (Chairperson) ■ Pat Sheehan (Deputy Chairperson) ■ Alex Attwood1 ■ Roy Beggs ■ Paula Bradley2 ■ Gregory Campbell ■ Paul Givan ■ Trevor Lunn3 ■ Raymond McCartney ■ Seán Rogers 4 5 6 ■ Caitríona Ruane 7 8 1 With effect from 4 September 2013 Mr Conall McDevitt resigned as a Member; with effect from 7 October 2013 Mr Alex Attwood replaced Mr Conall McDevitt 2 With effect from 3 February 2014 Ms Paula Bradley replaced Mr Simon Hamilton 3 With effect from 1 October 2013 Mr Trevor Lunn replaced Mr Stewart Dickson 4 With effect from 26 September 2011 Mrs Sandra Overend replaced Mr Mike Nesbitt 5 With effect from 23 April 2011 Mr John McCallister replaced Mrs Sandra Overend 6 With effect from 04 March 2013 Mr Seán Rogers filled the vacancy created by the departure of Mr John McCallister from the Committee 7 With effect from 12 September 2011 Mr Pat Doherty replaced Mr Paul Maskey 8 With effect from 10 September 2012 Ms Caitríona Ruane filled the vacancy created by the resignation of Mr Pat Doherty from the Assembly i ii Table of Contents Table of Contents Review of Petitions of Concern Executive Summary 1 Introduction 3 The Committee’s Approach to the Review 5 Committee Consideration 7 Committee Analysis and Conclusions 16 Appendices Appendix 1 Minutes of Proceedings 23 Appendix 2 Minutes of Evidence 47 Appendix 3 Options Paper on Petitions of Concern: Ad Hoc Committee on Conformity with Equality Requirements 113 Appendix 4 Options Paper — Party Responses: 127 Alliance Party 128 Democratic Unionist Party (DUP) 130 Sinn Féin (SF) 131 Social Democratic and Labour Party (SDLP) 133 Ulster Unionist Party (UUP) 134 Appendix 5 Correspondence and other papers relating to the Review 137 Appendix 6 Assembly Research Papers 181 iii Review of Petitions of Concern iv Executive Summary Executive Summary 1. The Assembly and Executive Review Committee is a Standing Committee of the Northern Ireland Assembly that was established to: ■ make a report to the Secretary of State, the Assembly and the Executive Committee, by no later than 1 May 2015, on the operation of Parts III and IV of the Northern Ireland Act 1998; and ■ consider such other matters relating to the functioning of the Assembly or the Executive as may be referred to it by the Assembly. 2. On 14th January 2014, the Committee agreed the Terms of Reference for its Review of Petitions of Concern. 3. The Committee considered relevant sections of the evidence received from its previous Review of D’Hondt, Community, Designation and Provisions for Opposition, as part of this directly addressed the Review of Petitions of Concern. One of the conclusions in the Committee’s Report on this Review stated that ‘further detailed work on Petitions of Concern needs to be carried out’. The Committee also commissioned and considered three Assembly Research Papers that informed Members’ discussions and views on the issues arising from this Review. 4. As set out in the Terms of Reference, the Review considered evidence on Petitions of Concern in relation to: ■ provisions for voting on an Ad Hoc Committee on Conformity with Equality Requirements prior to the vote on a Petition of Concern. ■ the possibility of restricting the use of Petitions of Concern to certain key areas, and mechanisms that might facilitate this. ■ whether the current threshold of 30 signatures required for a Petition of Concern should be adjusted. ■ whether the Petitions of Concern mechanism should be replaced with an alternative mechanism, such as a weighted-majority vote. The Committee concluded that: 5. While there was support among some Parties on the Committee for the use of the alternative mechanism of a weighted-majority vote for matters subject to a Petition of Concern, there was no consensus on this issue. Therefore, in this context, the Committee reaffirmed the following conclusion from its previous Report: “…there was no consensus for replacement of community designation [and Petitions of Concern] by, for example, a weighted-majority vote in the Assembly of 65%.” 6. Although there was some support among the Parties represented on the Committee for restricting the use of Petitions of Concern to key areas, there was no consensus among the Committee on how that would operate. 7. The Committee agreed that, should the number of MLAs in the Assembly be reduced, there should be a proportional change in the number of MLA signatures required to trigger a Petition of Concern. 8. While there was some support among the Committee for taking a vote on the establishment of an ACER only when a Petition of Concern relates to legislation, there was no consensus on this issue. 1 Review of Petitions of Concern 9. Even though there was some support for the establishment of a Standing Committee on Equality and Human Rights Conformity to replace the Ad Hoc Committee mechanism referred to in Standing Orders 35 and 60, there was no consensus on this issue. 10. It is important to highlight that although the Committee did not achieve consensus for most of its conclusions on this complex subject, the Report sets out in some detail the options considered together with the individual Party positions on specific options. The Committee therefore sees that this Report provides valuable information for the Assembly to reach a way forward on this matter. 2 Introduction Introduction Background to the Review 11. In September 2013, the Committee agreed that its next area of work would be a Review of Petitions of Concern. The Committee then spent some time considering the scope of the Review and key issues related to the Review – in particular, the issue of Ad Hoc Committees on Conformity with Equality requirements and Petitions of Concern. 12. In January 2014, the Committee agreed the Terms of Reference for its Review of Petitions of Concern. The terms of reference and the Committee’s approach to the Review are set out in the next section of this Report. 13. The Committee had raised the issue of Petitions of Concern in the course of its ‘Review of D’Hondt, Community Designation and Provisions for Opposition’, which was published on 18th June 2013. In the ‘Community Designation’ section of the ‘Call for Evidence’ paper for that Review, which was issued on 12th February 2013, the Committee asked: Do you believe that there should be changes to the “rules” governing Petitions of Concern? If so, what changes do you propose? There were 22 responses to this ‘Call for Evidence’, and respondents included Political Parties, academics and others. Relevant extracts from these responses can be found at Appendix 5. 14. There was a wide range of opinions expressed regarding the Petitions of Concern mechanism and a number of responses on specific issues are highlighted in the ‘Committee Consideration’ section of this Report. Professor Cochrane, from the University of Kent, stated that the “Petitions of Concern provide some much needed room for manoeuvre in my view and should be retained in their current form.” In contrast, the TUV response to the ‘Call for Evidence’ described the mechanism as “a perverse instrument which is open to abuse.” 15. Several of the stakeholder responses referred to how the Petition of Concern mechanism was used. The UUP observed that the Petition of Concern mechanism was “being used on an increasingly frequent basis”, and that statement was echoed by the Centre for Opposition Studies, which suggested that the Petition of Concern “seems now to be a feature of regular Assembly politics, rather than a signal of exceptional concern.” However, Professors McCrudden and O’Leary et al argued that “the procedure has been used relatively sparingly.” Nevertheless, they also observed that “the Petition of Concern has occasionally been abused to block decisions which have nothing to do with community-specific vital nationalist or unionist interests.” This concern was echoed by Professor Cochrane, who highlighted “the continuing danger that Petitions of Concern are being over-used for the purpose of obstructing the business of government”. 16. Professor Galligan stated that “There is some disagreement as to the extent to which the practice of employing Petitions of Concern has conformed to the underpinning intention of the provision.” The UUP response also referred to “the original intent of providing this mechanism”, and the Centre for Opposition Studies suggested that “The invoking of community designations on a regular basis in this way reinforces sectarian divisions, and seems to go beyond the intended purpose of the mechanism.” 17.