'Inquiry into Legislative Consent Motions'

Committee Business – in the Northern Ireland Assembly at 2:45 pm on 14th March 2022.

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Photo of Carál Ní Chuilín Carál Ní Chuilín Sinn Féin 2:45 pm, 14th March 2022

Molaim an rún. I beg to move

That this Assembly notes the report of the Committee on Procedures on its 'Inquiry into Legislative Consent Motions' [NIA 179/17-22]; and approves the Committee's recommendations contained in the report.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

The Business Committee has agreed to allow up to one hour for the debate. The proposer of the motion will have 10 minutes in which to propose and 10 minutes in which to make a winding-up speech. All other Members who are called to speak will have five minutes.

[Irish text to be inserted.]

I call the Chair to open the debate on the motion.

Photo of Carál Ní Chuilín Carál Ní Chuilín Sinn Féin

As Members will know, the existing arrangements to manage legislative consent motions (LCMs) are set out in Standing Order 42A and were originally put in place well over 10 years ago. The Committee hopes that the recommendations made as a result of the inquiry will go some way towards enhancing the arrangements internally in the Assembly and for information-sharing and communication between the British Government, Parliament in Westminster and the devolved legislatures.

I will briefly summarise the main findings and then take each report recommendation in turn. The Committee's inquiry established a number of instances where the Assembly's procedures were not followed or where they were followed but issues arose nonetheless. The Committee noted with concern that there have been instances of legislation dealing with devolved matters passing through Parliament without the relevant Minister being informed or without them informing the Assembly in line with the requirements of Standing Order 42A. There have been instances when Committees have had additional time to carry out their scrutiny but the current provisions of Standing Order 42A have not allowed them to do so. The Committee also noted with concern the practice of the Westminster Government of legislating on devolved matters when the Assembly has not been made aware of the Bill that deals with the devolved matter and/or has not given its consent.

The Committee, therefore, concluded that, overall, there is scope to make amendments both to the practice of and the arrangements for managing LCMs in the Assembly that will hopefully enhance the Assembly's ability to carry out its scrutiny and bring more transparency to the process. Those enhancements include strengthening the arrangements to ensure that the Assembly is made aware in a timely manner of Bills in Westminster that require our legislative consent; improved communication from Ministers to the Assembly when normal timescales cannot be met; flexibility, where possible, to enable Committees to have additional time to carry out scrutiny and report to the Assembly; suggestions about how the Westminster Parliament takes into account the Assembly's position on legislative consent; and increased visibility of Bills that require LCMs and the work undertaken by the Assembly on them.

The inquiry makes seven specific recommendations. The first is that Executive Ministers must improve the timelines of when they lay memoranda under Standing Order 42A(4). Despite existing arrangements, the Committee found, through detailed research, that Ministers routinely did not lay legislative consent memoranda in line with the normal requirements. Having highlighted the evidence for that in the inquiry, we feel that it is essential that Ministers in the Executive proactively lay the memorandum, whether or not they are seeking consent at that specific time. From a procedural perspective, it is the act of laying the memo that is important.

Recommendation 2 goes a wee bit further in making changes to Standing Orders. It recommends that Standing Order 42A should be amended to include an explicit provision for a Minister to lay a memorandum before the Assembly whether or not the Minister has taken a decision to ask the Assembly to give its consent. That will remove any doubt on the part of Ministers that such an approach can and should be taken.

Recommendation 3 adds further detail to recommendation 2 by making it clear that, in the exceptional circumstances in which it is not possible to lay a memorandum within 10 working days, any memorandum should be laid as soon as possible thereafter and should set out the reasons why the normal deadline of 10 working days could not be met.

On recommendation 4, although the inquiry evidenced examples of Ministers failing to notify the Assembly of Bills that required legislative consent, the Committee was offered no explanation of why that was allowed to occur. We believe that one reason may be difficulties in obtaining the required Executive approval. Whatever the reason, it is the Committee's view that that practice is unacceptable.

As a result of that, the Westminster Parliament is legislating on devolved matters without either the Assembly's knowledge or, indeed, its approval. The Committee is against that practice and calls on Ministers to ensure that it never happens again.

With regard to recommendation 5, the Committee wrote to all Statutory Committees to seek their views and experiences of dealing with LCMs. It was clear from the responses that we received that time pressures were a big issue. In response to the challenges around the reasonableness of timescales, as reflected in the responses from Statutory Committees, the Committee recommends:

"Standing Order 42A should be amended to allow for more flexibility in relation to timescales for committees (where this is possible) based on the planned timescale for the passage for the specific Bill through Parliament."

On recommendation 6:

"The Committee notes with concern the practice of the UK Government legislating on devolved matters either when the Assembly has not been made aware of the Bill and / or has not given its consent. The Committee has corresponded with Parliament seeking procedural enhancements and improved communication and transparency in relation to Bills where LCMs are needed."

We also took the opportunity to bring the matter to the attention of MPs in recent meetings with the Westminster House of Commons Procedure Committee. Members of that Committee seemed unaware of how little engagement there can be with devolved legislatures at times, not to speak of the pressures of the time frames associated with carrying out the scrutiny of LCMs. From a Westminster perspective, LCMs are rarely mentioned. The position of devolved legislatures does not appear to be given any significant consideration. I took the opportunity to highlight to those MPs that, from a devolved perspective, the occasional lack of advance information and adequate time for scrutiny is completely unsatisfactory and, indeed, appears disrespectful.

The Committee acknowledged that that particular recommendation is not within its gift to deliver. However, it was clear from the inquiry that procedural enhancements were needed with regard to LCMs, both internally, here in the Assembly, and externally in information and communication between British Government Ministers, Ministers here and other Assembly Members.

Lastly, the Committee makes recommendation 7 for improvements to be made with regard to the overall transparency and openness of the LCM process. During its inquiry, information could be difficult to find and, indeed, track. Therefore, the Committee recommends:

"the Assembly should introduce enhanced recording, reporting and publication arrangements in relation to LCMs."

Given where we are now in the mandate, the Committee acknowledges that the changes to be made to Standing Order 42A cannot be made before the end of the mandate, but, with the Assembly's agreement today, they should be able to be brought forward as soon as possible in the next mandate. Therefore, on behalf of the Committee on Procedures, I am pleased to commend the motion.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party

On behalf of the SDLP, I thank the Chairperson of the Committee on Procedures for bringing forward the report. The SDLP is on record as having said often that LCMs are not the desired way in which to do business. However, we must all acknowledge that there are times when those methods are probably the only ones that will allow important legislation to pass and that it is therefore important that we get this right.

It has to be said that, often, when LCMs are not communicated well or the communication has broken down, it tends to feel disrespectful to Members across the House. I would go so far as to say that, at times, they could be described as nothing other than dysfunctional. It is important, therefore, that we look at this work and see how we can better connect this place to Westminster, which carries those LCMs.

It has become apparent to us that timeliness is probably one of the biggest problems in the system and that Committees in this place are being presented with compressed time, if any at all, to give their consent to issues that can be quite complex and to which they have not had fair time to give due consideration. Members of this place have understandably been left feeling quite angst-ridden at the fact that things are happening elsewhere that relate directly to us and the people whom we serve but that we have been excluded from the conversation. That is simply not good enough.

The Chairperson spoke about the procedures in Standing Order 42A. We have made proposals in the report that could better bed down the system that is in place for recording the passage of LCMs, because, frankly, although we have been relying on the goodwill of others, very often, what has been done has fallen short. It is therefore time that we start to try to pin down the system better, because we cannot allow this dysfunctionality to continue.

Photo of Rosemary Barton Rosemary Barton UUP 3:00 pm, 14th March 2022

When there is an issue involving devolved matters, it is the responsibility of the Northern Ireland Assembly to legislate on those matters. The UK Parliament retains the power to legislate on them, however. Generally, if the UK Parliament wants to legislate on a devolved matter, it will not do so without a legislative consent motion's having been passed in the Northern Ireland Assembly.

The appropriate Executive Minister has a duty to inform the Assembly of any UK Government Bill being introduced and either seeks the Assembly's agreement or explains why an LCM is not sought. Although the general principles of an LCM were found to be acceptable and robust, there are times that the legislation dealing with devolved matters has passed through Westminster without the Assembly's being informed.

A number of strengthening arrangements therefore needed to be considered. There must be an assurance that the Assembly is made aware in a timely manner of those Westminster Bills that require an LCM. There needs to be improved communication from Ministers to the Assembly if normal timescales cannot be met. There also needs to be additional time built in to enable Committees to be permitted to carry out the necessary scrutiny before reporting to the Assembly.

Although Standing Order 42A has worked for a number of years, given the concerns expressed, there now appear to be reasons for amendments to be made to the practice and management of LCMs that would enhance the ability of the Assembly to carry out a scrutiny role. There must be greater adherence to timeliness when it comes to the laying of a legislative consent memorandum. It should be laid within at least 10 working days in normal circumstances. In exceptional circumstances, where it is not possible to lay a memorandum within 10 working days, reasons need to be given. Greater flexibility is needed with timescales in order for Committees to consider memorandums. Standing Order 42A should be amended to include a planned timescale.

Finally, in the interests of improved transparency, Bills that require LCMs should have the Assembly introduce enhanced recording, reporting and publishing arrangements. I commend the report to the House.

Photo of Kellie Armstrong Kellie Armstrong Alliance

Alliance outlined in its submission to the consultation on LCMs that it is supportive of the current procedures in place to deal with normal LCMs. As the Committee report also details, we do not believe that now is the correct time for fundamental reform of the principles that underpin Assembly procedure in that area.

In our party response to the report, we detailed that consideration should be given to the rare occasion on which the Northern Ireland Assembly informs the UK Government of its opposition to an LCM.

Without the statutory footing of the Sewel convention — we recognise the complexities around this — it is important that the democratic will of those elected to the Northern Ireland Assembly is heard, and a level of scrutiny should be applied in terms of openness and transparency. Alliance supports and urges improved communication from Ministers to the Assembly when normal timescales cannot be met, and accountability and explanation from Ministers when they fail to comply with Standing Order 42A.

Alliance is pleased to see the inclusion of recommendation 7, which we fully support, in terms of the introduction of enhanced recording, reporting and publication arrangements in relation to LCMs. Scrutiny is an important part of the role of a legislature. In fact, it goes to the core of the role. The report outlines instances when Committees would have had additional time to carry out their scrutiny of an LCM but the provisions of Standing Order 42A did not allow them to do so. Therefore, I am glad that recommendation 5 allows for more flexibility in relation to timescales for Committees where possible, based on the planned timescale for the passage of the specific Bill through Parliament.

LCMs have become more common in the Chamber due to the pandemic and Brexit. The report details how, in terms of Brexit, this rise is expected to continue as we work through the legislation that follows on from our exit from the EU. It is important that the recommendations in the report are given careful consideration and that work begins swiftly to implement change ahead of the next mandate.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

I call the Deputy Chairperson of the Committee on Procedures, Tom Buchanan, to conclude and wind up the debate.

Photo of Thomas Buchanan Thomas Buchanan DUP

Thank you, Mr Deputy Speaker. I thank Members for their contributions to the debate. I acknowledge that there has already been a lot of business from the Committee on Procedures today, and I appreciate Members' engagement and the points made during all the debates on the Committee's business.

This is yet another report that the Committee has completed, this time on its inquiry into legislative consent motions. The scrutiny of LCMs is sometimes an area of work that does not get the attention it deserves. Therefore, it has been interesting to hear Members' views on the topics that the Committee took a great deal of time to consider, seeking additional research in order to get a real understanding of what exactly the problems and issues were and where they were coming from.

Sinéad Bradley said that LCMs were not a desirable way to do business but there were times when they had to be used. She spoke about the importance of getting it right and said that timeliness was one of the biggest problems. From the Committee and from listening to other views, one of the issues that came through was that there was not enough time for scrutiny by Committees.

Rosemary Barton made mention of the general principle of LCMs and of times when LCMs have come forward without proper notification. She spoke of the need for additional time to be built in to enable Committees to carry out proper scrutiny. So it is back to the same thing again, where Committees do not have the time for the proper scrutiny of LCMs. Kellie Armstrong spoke about the importance of the democratic voice of the Assembly being heard and of the importance of scrutiny.

As the Chair said, the last time LCM procedures were reviewed was over 10 years ago, when the then Committee on Procedures introduced the current Standing Order 42A. Unfortunately, and although it is more than a decade later, it is clear from the Committee's inquiry that some of the same issues remain in terms of openness, transparency and engagement between Ministers and the Assembly.

The Committee was particularly concerned to note examples of when the Assembly was not made aware of Bills that required legislative consent. The question has to be asked: how can we, as a legislative Assembly, find that acceptable? The Committee hoped to hear from the Executive why that occasionally occurred, but we received no explanation. The Committee acknowledges that one reason may be the difficulty of obtaining the required level of Executive approval within the relevant time frame. The Statutory Committees made it clear that they were frequently not given adequate time to undertake the required scrutiny of a devolved matter, particularly due to a lack of advance information and partly due to the tight deadline set out by Standing Orders.

As a result of its inquiry, the Committee made seven recommendations. The small number of changes to existing Standing Order 42A could yield improvements in the Assembly's experience of the reporting of LCMs. Further improvements in making information available and trackable on the Assembly's website would improve transparency and understanding of the processes around LCMs for Members and the public. As the Chair set out, the Committee also sought improvements in information flow and better direct communication with Parliament.

As the mandate will end next week, we will, of course, be unable to make the changes before the end of the mandate. However, that work will be highlighted to the new Committee on Procedures in the Committee's legacy report, and I hope that it will be able to table the proposed amendments as soon as is practicably possible in the new mandate.

I am pleased to support the report and its recommendations. I commend them to the House.

Question put and agreed to. Resolved:

That this Assembly notes the report of the Committee on Procedures on its 'Inquiry into Legislative Consent Motions' [NIA 179/17-22]; and approves the Committee's recommendations contained in the report.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Members, please take your ease while we move to the next item of business.