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Assembly Business

– in the Northern Ireland Assembly at 1:03 pm on 21st October 2019.

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Photo of Robin Newton Robin Newton DUP 1:03 pm, 21st October 2019

Members, I apologise for the delay in the commencement of today's sitting. The delay became necessary because I had to seek legal and procedural advice, and it was more appropriate to commence the sitting after I had received this advice rather than have this issue raised on the Floor without satisfactory consideration.

A number of Members have indicated to me that they wish to table a motion that the Standing Orders be suspended today for the purpose of allowing the Assembly to consider a private Member's Bill on the defence of the unborn child and that, if the Assembly agreed, this Bill would complete its passage today. I have given very careful consideration to this matter, and I am very clear that, further to the provisions of section 39 of the Northern Ireland Act 1998, the Assembly must elect a Speaker and Deputy Speakers, with cross-community support, as its first item of business.

The Assembly cannot undertake any further business until this happens. If the Assembly elects a Speaker and deputies with cross-community support, it can proceed to carry out further business. In line with the provisions of Standing Order 11(3), the business to be transacted at today's sitting:

"shall be the specific matter or matters referred to in the notice given to" me as Speaker. As neither a motion to suspend the Assembly's Standing Orders nor a notice of the introduction of a Bill that should complete its passage in one day were included on the notice, those items of business cannot be transacted at this sitting.

The Assembly might carry out this business today. There are two paths that could provide for this. First, if the Assembly successfully elects a Speaker and deputies, further business can continue. That means that the Assembly will have the opportunity to agree the motion in the Order Paper that addresses the date when the Assembly shall next meet and Business Committee membership. If that motion were agreed, it would be for the Business Committee to decide when the next sitting should be and what business should be considered at that sitting. It would be for the Business Committee to decide whether it wished to have a further sitting today, at which a suspension of Standing Orders and the passage of Bills might be considered. Secondly, the provisions of Standing Order 11 allow for notice to be given to me or my successor by not fewer than 30 Members that the Assembly should meet at an earlier date than that to which it stands adjourned, for the purpose of discussing a specific matter of urgent public importance. If a valid notice with 30 signatures were received, calling for a further sitting today, that could provide an opportunity for what has been sought. Even if a notice were received with the business proposed on it, it would still be necessary to elect a Speaker and deputies with cross-community support before any further business could be transacted. It should also be noted that any motion to suspend Standing Orders also requires cross-community support.

I want to make it clear that I make these points without prejudice to any legal considerations that I or my successor might need to give in relation to the specific motion that, I understand, has been or will be tabled.

I understand that there are strongly held views involved today on both sides of very sensitive issues and we are in an extraordinary position. However, as Speaker, I also have to give very careful consideration to the procedures of the Assembly. It is reasonable to say that it cannot be considered good practice to seek to take legislation through the House on a given day without time for scrutiny or for Members to amend it. I realise that many Members will be unhappy with this ruling, but, in conclusion, I am clear that the Assembly cannot do any business until a Speaker and Deputy Speakers are elected.

Photo of Paul Givan Paul Givan DUP

On a point of order, Mr Speaker. You rightly make the point about normal procedures being followed, and that is the desired way to do it — if only Westminster had done so in relation to the Northern Ireland (Executive Formation etc) Act 2019 that has forced us to this situation. That said, the points that you have raised are points that I considered, and I sought specific legal opinion from the Attorney General for Northern Ireland, who is also the guardian of the rule of law. That includes being superior to any legal counsel that exists in this place and has advised you on the issue. In respect of that, I asked about Standing Order 77. The Attorney General provided a response to that, where he says that, pursuant to Standing Order 77, this could pass to permit consideration of my Bill, which I have provided the text for. While you are aware that section 39(1), Mr Speaker, which you referred to and which intimates that the election of a Speaker should come first, section 39(1) of the Northern Ireland Act 1998 provides that, "as its first business", the Assembly shall elect "a Presiding Officer".

No adverse consequence is prescribed for the failure to elect a Presiding Officer, and the old Presiding Officer remains in office, unless conditions in section 39(2) are satisfied. If the Assembly considers that the election of a Presiding Officer is not possible, the Assembly is not thereby placed in a straitjacket in which nothing can be done by it. The Assembly is master of its own procedure, and Standing Order 77 can permit that principle to be made effective.

The legal advice goes on to refer to section 5(5) of the Northern Ireland Act 1998, which prevents any irregularity in Assembly procedure being used to impeach the validity of an Act of the Assembly. If the Assembly were to suspend Standing Orders on the basis that the election of a new Presiding Officer is not possible, any Bill that is therefore enacted would not be any less valid, by virtue of section 5(5).

The legal opinion of the Attorney General, the guardian of the rule of law, is crystal clear on that issue. If the Assembly had ever intended to follow the procedure that you have outlined, Standing Order 77 would have inserted, ", subject to the provisions of section 39(1) and Standing Order 11(3)". It does not, for a very genuine and real purpose, which is that this place needs to have the ability to respond in exceptional circumstances.

Mr Speaker, this is a valid, legally competent recall of the Assembly, and, as such, it is permissible, on the basis of the legal opinion that I have sought, to proceed with the suspension of Standing Orders, under Standing Order 77, and I so propose.

Some Members:

Hear, hear.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Further to that point of order, Mr Speaker, I agree entirely with what Mr Givan has said. This really does come down to an issue of whether or not this Assembly is master of its own proceedings. Where we find the answer to that is in both the Northern Ireland Act and Standing Orders.

Standing Order 77 provides, very emphatically and in a totally unfettered way, the opportunity for this Assembly, if it is the will of this Assembly, to suspend all of Standing Orders, subject to one reservation and one only, which is that it can be done only on a cross-community vote. There is no further fetter in Standing Order 77. There is nothing that requires it to be subject to any other Standing Order or any provision in any legislation. The section in which you seem to take refuge, Mr Speaker, is section 39 of the Northern Ireland Act. You have decreed that, because it states:

"shall as its first business elect" a Speaker — "a Presiding Officer" — it can then do none other.

As Mr Givan referred you to, however, a matter such as this has been litigated on in the highest court in the land at the time, the House of Lords, when Peter Robinson took an action against the First Minister and deputy First Minister of the time. The House of Lords ruled that, when it comes to interpreting the word "shall", you interpret it in its context. You therefore look to see whether there is a context such as, "You shall do such-and-such, and if you don't, these consequences flow". When you apply that test to section 39, there is no such context. It does not state, "You shall elect a Speaker, and if you don't, no further business shall be done".

When you marry that to the unfettered discretion in section 39 and pay due regard to what the House of Lords said, there is absolutely, I submit, no reason that Mr Givan's proposal to suspend Standing Orders, subject only to cross-community support, cannot be heard, and it most certainly should be heard. If it is not, of course, there is a facility in schedule 10 to the 1998 Act for the Attorney General to test the matter elsewhere.

Photo of Robin Newton Robin Newton DUP 1:15 pm, 21st October 2019

I thank the two Members for their points of order, and I pay tribute to the research that they have done and to the knowledge of Mr Allister from his former life. Both of you will understand that I have taken legal counsel on the matter. There has been much deliberation. We have looked at historical cases, and I am clear that, with all of that — all of the advice — we are proceeding down the right and legal path in Standing Orders today.

Photo of Edwin Poots Edwin Poots DUP

On a point of order, Mr Speaker. Given that the matter and the intention to do this was brought to your attention this morning and the time that was given to your legal advisers to research matters, did they bring to your attention that something dealing with not quite an identical but a very similar circumstance had already been tested in the highest court of the land? Did they advise you of that in allowing you to come to the decision that you have come to? It strikes me that if we are acting in defiance of what the law lords decided back in 2002, you are taking the Assembly into a very dangerous place. If that advice was not given to you, I think you would be better at this point to adjourn and seek further advice, as opposed to taking us down a path that could lead us into conflict with the courts.

Photo of Robin Newton Robin Newton DUP

You are referring to the Robinson case.

Photo of Robin Newton Robin Newton DUP

The legal advice that I was given did take into consideration the Robinson case and also took into consideration cases that have come about since the Robinson case.

Photo of Arlene Foster Arlene Foster DUP

Further to that point of order, Mr Speaker, having heard what my colleagues have put to you and the fact that, as I understand it, my colleagues have shared the legal advice from the Attorney General with your office, would it not be in order for you to share your legal advice with Members at this time, in order to give us the opportunity to look at it? From an equality of arms point of view, it would be the right thing to do. Given that we already delayed the sitting today, we should delay it again to allow us to look at that legal advice.

Photo of Robin Newton Robin Newton DUP

I think that that was a question that was asked at the meeting with the Whips. That would not normally be the case, and the former First Minister will understand that.

Photo of Paul Givan Paul Givan DUP

On a point of order, Mr Speaker. This is an unusual and abnormal situation, and I sought the opinion of the Attorney General. I note that you have yet to say whether you have sought the opinion of the Attorney General. I requested that the Attorney General be here. He is here. He has indicated that he is available to provide you with advice. The magnitude of the decision that you are taking, Mr Speaker, is contrary to the wishes of those who want to put forward the Bill. However, your decision remains to be tested. I therefore appeal to you to adjourn the meeting, have a meeting with the Attorney General and go through the issues. Then you will have taken the advice that we have, and you can come to a more definitive position, based on all the information. I implore you to do so.

Photo of Robin Newton Robin Newton DUP

I have taken the counsel of Legal Services in the Assembly on the matter. I indicated to you that it has considered the cases that you made reference to and the cases that Mr Allister made reference to, and I have set out two paths that Members can pursue, if they are willing to go down those paths. I am clear, and I do not take this matter lightly — believe me, I do not take this matter lightly — what my responsibilities are, and I am content that the advice given to me is in line with the best legal advice.

Photo of Edwin Poots Edwin Poots DUP

Further to that, Mr Speaker. The Member for Fermanagh and South Tyrone did request that that advice was shared, and you said that would be unusual or abnormal. That, of course, was tested in another place with regards to the advice relating to Brexit from the Attorney General to the Prime Minister, and of course it was the case that the Parliament actually did receive the advice. I would formally request that you do provide us with that advice and that we have an opportunity to scrutinise that advice and adjourn for a period of time to allow that to happen.

Photo of Robin Newton Robin Newton DUP

I do acknowledge the case in Parliament that you outlined. I was asked the question at the meeting with the Whips. We do not normally share that advice, but I have indicated to you the breadth of the advice which the legal staff in the Assembly have given consideration to.

Photo of Arlene Foster Arlene Foster DUP

Further to that point of order, I have to say, Mr Speaker, you mention you would not normally share legal advice and we know that. This is not a normal sitting of the Assembly. This is a sitting to deal with some of the most fundamental issues that can affect our society today, and I implore you to take an adjournment to allow us to have that legal advice so that we can have that equality of arms, and I have to say, as well, to say that you have taken the breadth of legal advice and that you are satisfied with that legal advice, whilst not acknowledging the fact that the Attorney General has given different legal advice, is not the right route to go down. I implore you once again to share the legal advice with all of the Members of this Assembly, even those who are not here, so that we can take a fully informed view about this matter, because these are abnormal days, Mr Speaker, and we are in a very abnormal situation.

Photo of Robin Newton Robin Newton DUP

You will understand there is a discussion going on at the Table here. At the risk of repeating myself again: I have taken to counsel on the matter. I am content with the advice that has been offered. I have already indicated that. The legal advice is confidential and privileged, and I think, really, on this decision, I know this will not be readily accepted, but the decision on the questions of procedure and advice is final.

Photo of Paul Givan Paul Givan DUP

On a point of order, Mr Speaker, further to that. Further to the points of order that have been raised, you have indicated that you have outlined a pathway for this motion to be brought forward. The problem with that is it is not a pathway; it is a cul-de-sac to the same problem that we cannot overcome, which is the election of a Speaker. Members opposite have indicated they are not supporting the election of a Speaker. Therefore, based on your decision, we are handcuffed and you are handcuffing the Assembly from, in my view and the view of the Attorney General, continuing to carry out its business, which we can do under Standing Order 77, recognising the unusual circumstances that we face. Now, I appreciate that you are taking advice from those beside you and notes are coming in from your legal team, and it is rather unseemly, Mr Speaker.

I would again say, "Adjourn. Put us in a room. Bring the Attorney General into that room with your legal people, so that you, Mr Speaker, alone take this decision". Advice is advice. You, under law, are the decision maker, and we want to ensure that you have all of the information at your disposal. Not hearing directly from the Attorney General, I feel, is not providing you with the information and it is not treating the issue with the seriousness that, I believe, it deserves. It is, ultimately and gravely, a matter of life and death.

Photo of Robin Newton Robin Newton DUP

I do not think that I can add anything to what I have already said, Mr Givan, in response to all of the previous Members who spoke.

If there are no other points of order, we will move on.

Photo of Colum Eastwood Colum Eastwood Social Democratic and Labour Party

On a point of order in terms of the election of Speaker, Mr Speaker. I —.

Photo of Robin Newton Robin Newton DUP

I just ask you to remain seated. Let me follow out the normal procedures, and then we will have an opportunity for points of order.