New Clause 7 - Petitions of concern

Northern Ireland (Miscellaneous Provisions) Bill – in a Public Bill Committee at 3:00 pm on 16 July 2013.

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‘(1) In section 42 of the Northern Ireland Act 1998 (Petitions of concern), omit subsection (3) and insert—

“(3) When a petition of concern is lodged against a measure, proposal or a decision by a Minister, Department or the Executive (“the matter”), the Assembly shall appoint a special committee to examine and report on whether the matter is in conformity with equality and human rights requirements, including the European Convention on Human Rights and any Bill of Rights for Northern Ireland.

(4) A committee as provided for under subsection (3) may also be appointed at the request of the Executive Committee, a Northern Ireland Minister or relevant Assembly Committee.

(5) The Assembly shall consider the report of any committee appointed under this section and determine the matter in accordance with the requirements for cross-community support.

(6) Standing Orders shall provide for—

(a) a committee appointed under this section to have the power to call people and papers to assist in its consideration of the matter; and

(b) the size of such a committee and the timescale for a decision.

(7) In relation to any specific petition of concern or request under subsection (4), the Assembly may decide, with cross-community support, that the procedure in subsections (3) and (5) shall not apply.”.’.—(Mark Durkan.)

Brought up, and read the First time.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I beg to move, That the clause be read a Second time.

New clause 7 is another motion about getting back to what was intended by, and is in the Good Friday agreement. A petition of concern is a provision in the agreement to try to answer a concern that many people were raising: if Ministers are appointed by d’Hondt—by their own parties—and if they have executive authority, they could take decisions that many people might have issues with, and find inimical to their identity and pernicious to their interests. People need to be able to challenge that in some way, because not all the powers and decisions of Ministers, particularly Executive decisions, are necessarily subject to statements or procedures in either the Assembly or an Assembly Committee.

Equally, the point has also been made that when legislation is proposed, there must be ways of taking account of arguments over the equality impact or rights being potentially prejudiced. At the same time as we were developing proposals for the Assembly and its ministerial and Committee structures, under the chairmanship of my right hon. Friend the Member for Torfaen, we were also scoping out the equality and human rights provisions of the agreement—not least a Bill of Rights.

At the level of joined-up protections, we had the idea that a petition of concern could be used to flag up concerns about human rights and equality issues. A given number of Members of the Legislative Assembly, in signing that petition could say, “Right, the measure has to be frisked for equality and human rights considerations” rather than just proceeding by majority vote in the normal way for most everyday decisions in the Assembly. The petition of concern was designed to provide such a pause break on measures that people felt should be examined. The petition of concern is covered in the Good Friday agreement, in paragraphs 11, 12 and 13, but when it came to giving life to it in the Northern Ireland Act 1998, there was no reference whatsoever to those paragraphs in the first draft of the Bill. Although there were provisions in respect of the Bill of Rights, the Assembly and voting mechanisms, and the role of the Human Rights Commission and the Equality Commission, there was no specific reference to a petition of concern and what would flow from it, as outlined in the agreement.

In meetings with my right hon. Friend the Member for Torfaen and Mo Mowlam, the Secretary of State at the time, we pointed out the gap, and were met—perhaps not best met—by the inclusion of a provision in the Bill that simply said that Assembly Standing Orders would provide for the sorts of procedure outlined in the agreement  in paragraphs 11,12 and 13. When it came to it, Assembly Standing Orders either did not make that provision or did not do so accurately.

Instead, we have ended up, not with the procedure that is carefully outlined in the agreement, but petitions of concern being used and played like political jokers, to be complete dead-end vetoes, to kill issues and the effect of votes—permanently, if that is the will of whoever has wielded the petition of concern. That was never what the petition of concern was intended to do.

Only last week we saw the petition of concern used in the Assembly simply to protect a Minister who had serious questions to answer. The petition of concern was never meant to be used to protect a Minister from accountability or scrutiny, or to prevent the Assembly from setting up a proper inquiry into matters of public concern, at which any Minister should be happy to account for and acquit himself of any allegations against him, his party or party donors. That is how the petition of concern was used last week, just as petitions of concern have been used and abused in other cases. When parties are able to resort to it as a free veto on anything they feel like, or as a tit-for-tat veto against somebody else’s, unfortunately they will do it. They will lift the tool and use it in that unintended and unplanned way.

With new clause 7, I have tried to reflect what is in those paragraphs in the agreement, in the Act, and to permit the Standing Orders of the Assembly the necessary latitude around how a special committee might be composed on the back of a petition of concern.

For the record, I want to say the agreement states about petitions of concern. Paragraph 11 reads:

The Assembly may appoint a special Committee to examine and report on whether a measure or proposal for legislation is in conformity with equality requirements, including the ECHR/Bill of Rights.”

That was the intended Bill of Rights for Northern Ireland. That paragraph continues:

The Committee shall have the power to call people and papers to assist in its consideration of the matter. The Assembly shall then consider the report of the Committee and can determine the matter in accordance with the cross-community consent procedure.”

Paragraph 12 of the Good Friday agreement reads:

“The above special procedure shall be followed when requested by the Executive Committee, or by the relevant Departmental Committee, voting on a cross-community basis.”

Paragraph 13 reads:

“When there is a petition of concern as in 5(d) above, the Assembly shall vote to determine whether the measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis, as in 5(d)(i) above, the special procedure shall be followed.”

The point of the petition of concern, as it applied to votes in the Assembly, proposals to the Assembly or measures brought forward in the Assembly or by Ministers under their departmental authority, was not that it was a permanent show-stopper, but that it would create a position whereby those who said that they had concerns or objections would have to put up or shut up.

They would have to prove in front of this special committee that there was an equality issue or a human rights concern. The committee would obviously have the power to take evidence and the intention was that a special committee set up on the back of a petition of concern could take evidence from the Equality Commission for Northern Ireland, the Human Rights Commission or anybody else with valid or worthwhile evidence to give.

That committee would then report and if it turned out that the concerns were not that material or could be addressed by amendments that were already coming forward from the Minister or someone else, the vote could be taken to let the matter proceed in the normal way. It was never the case, however, that the measure was to be used as an entirely free and permanent veto.

We have an added difficulty in the way in which things work or sometimes do not work in Northern Ireland. We have got into a gridlockracy whereby the fact that one party is in a position to present a petition of concern creates an anticipative block on what another party or another Minister might bring forward. Often measures and issues that need to be tabled for wider discussion do not get tabled simply because people—Ministers and parties—are afraid that they will be hit with a petition of concern early on.

That is why matters such as the school transfer procedure have not been committed to legislation. A legislative solution would be in the interests of parents, teachers and children in Northern Ireland so that they would know, at least with a broad certainty for a generation or so, what the transfer system for moving from primary to secondary school will be like. Ministers cannot legislate on that because they feel that, as soon as they table legislation, they will be hostage to a petition of concern. Instead, they rely simply on doing things by ministerial guidance. If we get changes of Ministers and changes of parties and changes of guidance, there is then uncertainty.

That was not what we intended when we negotiated the agreement and certainly when we campaigned for the agreement and got people to support it. We argued that it would be better than ad-hocracy at one level, with another wee fix here and another one there, or gridlockracy at another level. Petitions of concern do not even have to be tabled any more. They just have to be anticipated to have the effect of a predictive veto. The predictive veto means that we are not getting the level or quality of public discussion on serious issues that we should. These things are then seen to be the private property and the private problem of somewhere in the bowels of Government, quite frequently in the Office of the First Minister and Deputy First Minister. Frankly, the rest of us should not have the luxury of heaping the blame there. We should have to take the responsibility of addressing these issues in a wider public arena through the Assembly or elsewhere.

That is really what new clause 7 is about. It takes the opportunity to say that the petition of concern, as it is provided for in the Standing Orders of the Assembly, is not the petition of concern as was written in the Good Friday agreement. I can fully understand why the decision was made for legislative economy in 1998: just leave it to the Standing Orders of the Assembly to do it. The fact  that Standing Orders have failed to do it and to do it right has also meant that it causes deeper problems in relation to the democratic governance of Northern Ireland. Parties are now complaining about the veto being used in that way.

We recently had the 15th anniversary of the Good Friday agreement and I was particularly struck by the fact that Martin McGuinness as Deputy First Minister said in an interview that one of the things that needed to be looked at was the way the veto was working and the petition of concern.

Similarly, at the implementation of the Good Friday agreement committee in the Oireachtas, Francie Molloy, previously Principal Deputy Speaker of the Assembly, now the hon. Member for Mid-Ulster—apologies, Ms Clark, for the name reference—made the point that he felt that the petition of concern was being used too much as a weapon of first resort, that too many things were being stymied and that perhaps it should be reviewed. Again, before the Minister or the shadow Minister says it, I know that these matters will and should be discussed at the level of the Assembly and Executive Review Committee.

However, given that the first problem was perhaps that this House was not as thorough as it could have been when legislating for the precise intent of the petition of concern in the ’98 Bill, it is entirely valid for those of us in this House to own up and say that there is a gap in the legislation that could have been filled better, and to do that in a way that encourages others to address the issue. As long as the petition of concern continues to be used as it currently is in the Assembly, it will discredit the democratic reputation of the institutions: it is seen as a bar on transparency and accountability.

The petition of concern is used in ways that put people under pretty invidious pressure. Recently, Sinn Fein tried to put pressure on the SDLP to make up their numbers on a petition of concern in respect of the Civil Service (Special Advisers) Bill. If the petition of concern led only to proper consideration of a measure to examine equality and the human rights implications of something, people would not be tempted to use it in that way and put others under partisan pressure in the way that Sinn Fein did on that occasion. Some of us would find it easier to sign a petition of concern if we thought it would have that proper effect, instead of it meaning that someone does not want to hear anyone else’s concerns but wants to use it as a veto on the part of one party.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson Shadow DUP Spokesperson (Equality), Shadow DUP Spokesperson (Energy and Climate Change), Shadow DUP Spokesperson (Defence) 3:15, 16 July 2013

I shall be very brief. The points that were made earlier suggest that perhaps some of the amendments that have been tabled are premature in so far as other processes are under way that need to be given due regard. On the voting mechanisms of the Northern Ireland Assembly, my party would be reluctant to pre-empt the work that is going on in the Assembly to review its working and all the political institutions by introducing such a measure. I was present when the hon. Member for Foyle made a speech several years ago and talked about removing the ugly scaffolding of the Good Friday agreement. I fear that he is still a scaffolder rather than someone seeking to pull things down by removing some of the props that inhibit our progress towards normalisation in Northern Ireland.

In principle, we favour greater normalisation, but not this bit-by-bit approach. We must take a comprehensive approach. If changes are to be made to the safeguards that are built into the system, we must look at the totality of the system holistically so that people are reassured that doing certain things is offset by other things. It is about negotiation, so we do not want the new clause because it is isolated from other changes that need to occur to make the Assembly more normal, efficient, accountable and responsive in its functioning. The hon. Gentleman seeks that, but I do not think this partial approach is the way forward.

Photo of Mike Penning Mike Penning The Minister of State, Northern Ireland Office

The Government will oppose new clause 7, not least because of the arguments we made in relation to many previous new clauses. The Assembly and Executive Review Committee has said specifically that it is looking at petitions, and I do not think it right to use the Bill in the way proposed in this new clause and some of the previous ones. There has to be a collective agreement in Northern Ireland and the devolved Administration for normalisation to continue to take place. I agree with the right hon. Member for Lagan Valley: it cannot be drip, drip, drip. There must be a coming together, or one side may believe that it is getting more than the other side. They need to come together. The Assembly and Executive Review Committee is specifically looking at the measure among many others. With that in mind, I hope that the hon. Member for Foyle will withdraw his new clause.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I note the arguments against the new clause. The right hon. Member for Lagan Valley said that amendments such as this cannot be made piecemeal but that the approach must be holistic. That is not what we heard earlier in relation to his amendments.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

Yes it is bigger issue, and it requires a much more holistic approach than a piecemeal change to the definition or a qualification on the definition of “victims”. The issue of the past is much bigger and wider, and of course the issue of victims’ needs and rights is also much bigger.

The Minister referred to the fact that the Assembly and Executive Review Committee will look at the matter again. I simply make the point that the Assembly and Executive Review Committee has looked at a lot of things. At times, there is a limit and nothing is agreed until everything is agreed. If we end up with no changes and adjustments until something comprehensive is done, we end up with no movement.

There are difficulties with petitions of concern, which are being used in ways that were not intended—as permanent and predictive vetoes even to prevent issues from being tabled. The intention was that they would ensure that when issues were tabled, people did not feel that they were rushed into decisions, or that decisions were imposed on them without due scrutiny, and that decisions would be properly scrutinised and checked. Given that the default was originally in legislation in the House, I do not think that it would be completely untoward for the House to remedy that default, particularly as the Assembly had several chances to correct Standing  Orders fully and properly and has not always done so. Although Standing Orders have improved in respect of providing for the idea of a special Committee, they still are not in perfect rhyme with what was laid down in the agreement.

We went through the procedure painstakingly when negotiating the agreement, and the right hon. Member for Torfaen might recall that the now Lord Alderdice, leader of Alliance party, was particularly actively involved, because he was concerned that our proposals for a petition of concern could lead to open-ended vetoes and could encourage tit-for-tat vetoes. He wanted more qualification of what a petition of concern could do. We developed another procedure, which at the time he described as elegant, that would mean that those putting forward petitions of concern would have to stand over their concerns, and those appointed to give special consideration to the equality issues, such as people in the Equality Commission or the Human Rights Commission, would have to give authoritative evidence. Indeed, it would be a platform for them to give authoritative evidence to a specially appointed Committee as well. That was what was intended at the time of the agreement. We should never think it untoward or behind anybody’s back to try to get back to some of the first principles, and some of the first and best promise, of the agreement itself.

Of course, as with the other new clauses, I will not foolishly put this one to a Division. Again, in that sense it is another advertising new clause, precisely to advertise one of the points that I made in a speech in Oxford in 2008, which the right hon. Member for Lagan Valley mentioned, when I was asked by the British-Irish Association to reflect on the agreement, 10 years on, and to look forward 10 years. I said that a problem we had was the entirely negative veto effect of the petition of concern. Rather than being there to prevent decisions that would abuse people, it was being used simply to prevent decisions and to prevent initiatives from even being tabled, and that was not right or proper. I said that we intended quite a number of the aspects of the protections that we built into the agreement to be biodegradable: as the environment changed, we would be able to rely less on some of those plastic protections built into the agreement, with the undue emphasis on community designation and other things. As the person who drafted the section of the agreement about designation, I know that it is not the most graceful thing, but it is there and I defend it. I just think we need to rely less and less on such provisions in an active way in the Assembly, or any other institutions, now or in future.

We can grow and go forward. The new clause suggests that we can do that partly by going back and keeping faith with what we initially provided in the agreement. On some of this stuff, we have gone off-road from the agreement and got into difficulties because of it. We  should be trying to get on to the right road. If the right hon. Member for Lagan Valley really does believe in more transparency and more accountability, he would join me in disapproving of the way in which that petition of concern was absolutely abused last week. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Photo of Mike Penning Mike Penning The Minister of State, Northern Ireland Office

On a point of order, Ms Clark. May I record my personal thanks to you and Mr Hollobone for the pragmatic way in which you have chaired the Committee today? I thank the Clerks, the Hansard reporters, and the doorkeepers, whom we have managed not to trouble, which is excellent news. I thank members of the Committee for their participation both on the Floor of the House and here today. I particularly thank my Parliamentary Private Secretary, my hon. Friend the Member for Elmet and Rothwell; the Secretary of State’s PPS, my hon. Friend the Member for Folkestone and Hythe; and the shadow Minister, the hon. Member for Ealing North, for the pragmatic and helpful way in which they have helped us to scrutinise the Bill. We have completed the scrutiny process in good time, so the Committee has had a great opportunity for line-by-line scrutiny of the legislation. I look forward to seeing it on Report and at Third Reading.

Photo of Steve Pound Steve Pound Shadow Minister (Northern Ireland)

Further to that point of order, Ms Clark, when you rule on that point of order, would you indicate to me how it might be possible for Opposition Members to associate ourselves wholeheartedly with the generous, warm and very welcome comments made by the Minister? May I add my thanks to the Ministers, past and present, and also to our good colleague, the hon. Member for Foyle, who has made an invaluable contribution throughout the afternoon. I appreciate that this may be pushing the boundaries of a point of order, but this has been an extremely well organised and well run Committee in which important business has been done. It has been conducted expeditiously and in good spirit, and that is in no small way thanks to you and Mr Hollobone.

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

The hon. Gentlemen have made their points.

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

Order. I suspect that both hon. Gentlemen are regularly out of order.

Bill to be reported, without amendment.

Committee rose.