Emma Little-Pengelly gave evidence.

Good afternoon, Emma, and welcome. Would you kindly introduce yourself to the Committee?

Emma Little-Pengelly:

I am Emma Little-Pengelly. I have recently been a special adviser to the First Minister, but I am a barrister by training. I have been special adviser to various First Ministers since 2007, although I stepped out of that to be a public representative and Member of Parliament for a few years.

Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?

Q Good afternoon, Emma. Members will know you well from your time here, but those of us from Northern Ireland will know that you have been integrally involved in numerous iterations and negotiations over the years.

You know the Bill before us. Would you mind giving us your reflection on its provisions, the rationale for them as you see them, and whether you feel there are elements that have not been achieved or are worthy of consideration by the Committee?

Emma Little-Pengelly:

My experience of the existing provisions comes from a more practical point of view, as well as the theoretical and legal aspects of the Belfast/Good Friday agreement and the Northern Ireland Act 1998. I had come in initially as a shadow special adviser to help prepare for the restoration of institutions back in 2007. That included working very closely with the drafters office and with machinery of Government elements within the Executive and the Departments in order to look at things such as the ministerial code, how the Executive should operate, and the guidance for Ministers and Departments in relation to what matters needed to come to the Executive. Also, it included issues such as the nomination of Ministers and the First and Deputy First Minister.

Over that period of time, from 2007, obviously we have had a number of significant issues and challenges. Very often they led to periods of negotiation. Much of those negotiations took place within the context of trying to talk about the technical details of the process in which we try to operate in Northern Ireland. It is a very challenging and difficult system to operate. It is a system where, at the very heart, arising from the Belfast/ Good Friday agreement, the key principle is consensus and inclusion. That is a very slow and difficult process for trying to come to decisions.

The key element to remember is that in Northern Ireland we do not have—and have never had for some considerable time since the Belfast agreement—a majoritarian system of government. Therefore, that principle is very much cooked into every part of the process, from the nomination of First and Deputy First Minister and what they can do, singly or acting jointly, to the way the Ministers operate in relation to the Executive. All of that is based on a process of consensus and a process of agreement. That of course means that at times we cannot get agreement, and that has been very, very difficult. Nevertheless, that is the system that we have had. It is the system that we have operated right up until very recently.

In more recent years, there has been a drive to change some of the elements of the Belfast/Good Friday agreement —in particular, around the concept of cross-community voting and consensus, and particularly around the safeguard mechanism of the petition of concern. When you look at the petition of concern, it is important to take a look, carefully, at the Belfast/Good Friday agreement. I listened to the evidence very carefully today. I strongly disagree with what was put across, for example, this morning by Daniel from the Committee on the Administration of Justice, in relation to the original intent of the petition of concern mechanism. I think that the proposal that 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.

I would ask everybody to take a look back at the Belfast/Good Friday agreement. The petition of concern is set out in the section referred to as Safeguards, and the Safeguards section that refers to the cross-community voting is entirely separate from the safeguard that sets out the ECHR and the equality protections. The cross-community component of that is set out in 5(d), under strand 1, and yet the ECHR and the equality severable obligations are set out in 5(c) of strand 1 of the Belfast agreement. Those are not conditional on each other; they are entirely separate. It was clear from the Belfast agreement and then the Northern Ireland Act 1998 that the cross-community consensus was to apply to all key decisions.

This is not just in terms of the basic reading of the Belfast/Good Friday agreement or the Northern Ireland Act. I think it is important also to look back at the Hansard for the passage of the Northern Ireland Bill in 1998 and the comments that were made about that Bill from all parties. I think the key thing here is that those commenting on that in the House of Commons were those who negotiated it. It was the Ulster Unionist party—David Trimble and others—along with the Social Democratic and Labour party representatives. It is very clear from reading the Hansard that no issues of concern were raised about the scope of the petition of concern and cross-community vote protections and safeguards as set down in the Safeguards section of the Belfast/Good Friday agreement.

Q Thank you for that. To draw on some of the issues that were brought out this morning, there was a suggestion from Professor Tonge, for example, that the petition of concern could benefit from being amended so that you had support across the community designations, so that one community wishing to table a petition of concern would require support from another or the other designation, if I can put it that way. Do you have any reflections on that contribution or suggestion that was made this morning?

Emma Little-Pengelly:

When you look back to the operation of the petition of concern—again, I referenced, in terms of the passage of the Northern Ireland Bill, as it then was, in 1998, the fact that no concerns were raised about the scope of those particular provisions. But likewise, when the Northern Ireland Assembly was established under the First Minister and Deputy First Minister leadership of the Ulster Unionist party and the SDLP, no concerns were raised at that time about the petition of concern. It was still difficult. When you look back at the history of the Northern Ireland Assembly and the various crises that we have faced, of course it is difficult, because the ultimate aim of those provisions, and the provisions across the Northern Ireland Act, arising from the agreement, is that they are all based on consensus building.

We have heard some reference about the petition of concern being used as a veto, but in reality it is used in a way that reflects the fact that there is not yet, or no, consensus on particular issues, and those are key issues, so where a petition of concern is used, it is an indication that an issue has been pushed forward without consensus. That is why, when you look at the new provisions proposed in this Bill—the idea, for example, of a 14-day cooling-off period for a petition of concern is, I think, very welcome. Gavin will know as well as I do that—look, the sustainability procedures and processes as part of the New Decade, New Approach negotiations were something that the Democratic Unionist party pushed very, very hard. We pushed because we could see that it does not benefit the people of Northern Ireland to be in a situation of perpetual crisis, particularly if those crises are manufactured by, for example, the tactical resignation of a First or Deputy First Minister. Ultimately, we do need stability, and stability within a very difficult process to operate. I think the 14-day period, now within this proposed Bill, will allow a period for people to get together to try to find a consensus way forward. That may be through amendment if it is legislation, or it may be by some further or different agreement. But at the very heart of this is the idea that because the institutions were set up to be very inclusive, from the very beginning there was a concern that significant minorities should not be forced to be part of either an Executive or Government in Northern Ireland where they were subject to continual majority decision making.

That applied right up until the point at which Unionism was no longer the majority. We have since seen concerted moves to try to remove that safeguard for significant minorities. The concern there is that yes, it is a difficult and frustrating system, but in Northern Ireland ultimately this will only work if you have that maximum consensus. As I understand from those who negotiated the Belfast agreement, and right through to those who negotiated the St Andrews agreement that modified and built on some of those protections, that at the heart of that is the idea that significant minorities should not be excluded, and that consensus decision making is the priority over a quick and simple majority system, which would exclude those people.

Q Perhaps just one final question from me, Sir David, if you have a rake of colleagues now hoping to jump in. Questions have been raised around the lack of detail on safeguards for Ministers who find themselves remaining in position where the Executive is not fully functioning. Do you have any concerns about the provisions as drafted in the Bill, or do you feel that the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are sufficient in the circumstances?

Emma Little-Pengelly:

I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.

I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.

In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.

Q Thanks for your evidence, Emma. You are absolutely right that the Democratic Unionist party pushed very hard for a lot of the provisions around sustainability during the negotiations, and some of us had some concerns about it, but I absolutely agree with you that there have to be some mechanisms for keeping the show on the road. Nobody should be threatening to pull down institutions. Of course, it was Sinn Féin that walked out the last time. Does that go as well for the DUP when it comes to issues like the protocol?

Secondly, you and I will disagree about the purpose of the petition of concern and when it should be used and so on. You have said, now that Unionism is no longer a majority, there are moves to take away safeguards like the petition of concern. What did you think, then, when Arlene Foster suggested removing it as a mechanism altogether during the negotiations?

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 on the particular issues of the current situation. What I can say is that the DUP, along with many others, has, over the years since the Belfast/Good Friday agreement, pushed for a better form of government, as you will be aware, very much around trying to put better democracy in that and a better system that is not so slow or difficult to try to get agreement through.

There is a real issue around protections and safeguards. It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. That is the system that was set up—purposely difficult, I suppose, one might say—to ensure that there was maximum buy-in. What we are rapidly seeing is that people now have a particular policy proposal, they get the majority for it and they want to push that forward, against the will of significant sections of the other community.

People need to get back better to fundamental consensus policy making. Potentially we have lost that over the years. As I said, it is slow but there is a benefit to that. When you look back to the original point about intent, it is important to point out that equality and human rights are very well protected, cooked in right across the system.

If you look back to the narrative around the Belfast/Good Friday agreement, including the discussions and the debates in the House of Commons on those matters, you will see that the key safeguards lay with the establishment, under the agreement, of the Equality Commission for Northern Ireland and the Human Rights Act, which at any time can give advice or perhaps even take a legal challenge against a Department or the Northern Ireland Assembly—certainly give advice on that.

Importantly, the Northern Ireland Assembly is set up but it does not have competence to deal with matters that would be in contravention of the European convention on human rights or equality legislation. I understand that your evidence will go on next to the Speaker. The Speaker will have a legal team, so it is not even a case of a discretion. The Northern Ireland Assembly, certainly even set down in the agreement and the Northern Ireland Act, emphasised and safeguarded even further in the Human Rights Act 1998, has no power to legislate in a way that is in violation of that. A piece of legislation should never be introduced where there is a decision by the Speaker’s legal panel that is in contravention of that.

What we have seen subsequently is that people will have a range of views about whether something is a breach of human rights, which is very different from whether it is legally a breach of human rights. Of course, that is an evolving issue. There are safeguards there already, but I would also point out that the party of which Mr Eastwood is a member did not raise any concerns about the scope of the petition of concern at the time of the passing of the Northern Ireland Act, nor in the first decade of the Northern Ireland Assembly’s operation, and the operation of the petition of concern. This is an issue that has emerged over the past number of years, on the briefing from the likes of CAJ and others. There was no indication on the record—Hansard or elsewhere—that there was a concern about this.

To go back to the Belfast/Good Friday agreement, the obligations under strand 1 5(d) are completely separate from the obligations under strand 1 5(c). They are severable. Of course, they can be linked through the special process, which has already been outlined to you, but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement that cross-community consensus was to apply to all key decisions.

If there are no further questions, I will bring in the Minister again.

Q It is good to see you, Emma. As a former Minister within the Executive, and having worked as a special adviser, could you speak to the need for a ministerial code of conduct, and how you believe that could help to strengthen public confidence in elected representatives? I recognise that, with the changes that the Bill enshrines to the ministerial code of conduct, the Northern Ireland Office is acting as agents on behalf of what was already agreed within the Executive. Can you speak a bit to the process that has been gone through in looking at the ministerial code within the First Minister’s and Deputy First Minister’s office?

Emma Little-Pengelly:

Over the years, there has been some frustration about what some may perceive to be breaches of the ministerial code, and a lack of action against those. I think that the proposed changes are welcome, in that they really try to tighten up some of those provisions in relation to how they apply, but ultimately this comes down to two different issues, and I think this applies to all of the provisions in the Bill. These changes are designed to try to encourage better behaviour. For example, when you look at the move from seven days after a resignation to call an election to the rolling process of six weeks and six weeks, that is obviously something that was pushed for to try to encourage people to get around a table, with a series of deadlines to try to encourage a more structured process, I think to focus minds, and also to allow other people to come in and make their representations very clear to the parties that they want the Northern Ireland Assembly to continue, and about the issues that are important to them, as opposed to—as I have said—a tactical resignation.

However, ultimately, as some of the other witnesses have said, this will work only if there is a willingness for people to agree. We all have our issues that we feel very strongly about, and we will not always find consensus on those issues. Some of the people around the table will have been part of coalition Governments before. Coalition Government is frustrating: you will not always find agreement on the way forward, and therefore those issues cannot be progressed. Ultimately, it is about the willingness of people to compromise—to get together to try to find a solution that appeals to everybody across the community. If we try to get into a space where there are only solutions that appeal to the majority, to the exclusion of a significant minority or to the exclusion of a community in Northern Ireland, we would be in a very difficult space in terms of stability, not only of the institutions but of Northern Ireland. I think those who worked on the Belfast agreement and those who worked on the St Andrews agreement recognised that and saw the value in having those types of safeguards to ensure maximum inclusion, because once we go down the route of—for example—removing the safeguards of petition of concern and consensus decision making and moving towards majority decision making, there is the risk of exclusion, and I do not think that is good for people, certainly not on the key decisions. I think it is all about balance.

Q We have heard evidence from various witnesses and various speeches on Second Reading about the fact that many of these issues and, indeed, some of the issues beyond the scope of this Bill were hard negotiated on all sides. I wonder if you agree with what we have heard in some of the evidence earlier: what they have described as other vetoes, but I think you might describe as some of the balance within the process of working together in the Executive, would not have been signed up to by all the parties in NDNA if it had sought to go further on that front.

Emma Little-Pengelly:

Absolutely. When you look back over the 20 years of the operation of these mechanisms, they were there to build trust and confidence in all of the parties across all of the communities to be part of the institutions in Northern Ireland. That is why I highlight the difference between what has happened in more recent elections, where we now have a number of quite significant minorities, and what had happened for the majority of that period of time, which is that there was a Unionist majority. I think that those who drafted these documents and those, including myself, who have worked on this over the years recognised that this was not a majority Government situation in which Unionists, when they were in the majority, simply got everything they wanted and others got nothing.

That is why there needs to be, I suppose, better reflection about why these provisions are there, and the dangers of simply dismissing them. Rather than people jumping up and down and saying, “We are really angry because you are vetoing what we want”, they should sit back and reflect and say, “Look, there is clearly not consensus for this proposal. How do we find a consensus way forward? How do we look at getting a balance within what is happening and try to find a way forward that includes the maximum number of people?” You will never get absolutely everybody on board, and we recognise that, but we have been through really difficult situations before, such as the devolution of policing and justice and trying to work through a programme for government. We have to remember that the parties in Northern Ireland are not just very different constitutionally speaking, but they are very different in that they come from across the political spectrum, from left to right and all things in between. Any coalition Government with parties that are quite diametrically different in political ideologies will always be challenging. That is the challenge that we have; we have got through it in previous years. But we only get through it by getting round a table and finding the consensus way forward, not by majoritarily forcing other people, through the removal of the veto’s protections and safeguards.

Q A very warm welcome to Emma. I will ask a two-part question. The first part is this: would Emma recognise that the effect of a petition of concern, or the veto as such, is that in effect it works for those parties or that part of the community that are perhaps most comfortable with the status quo, and it probably frustrates those parties that have a desire to see change in society?

Perhaps as an example of that, could Emma just reflect on the fact that, to my knowledge, since the Assembly was created in 1999 there has been no instance whatever of it legislating successfully at all in the human rights or equalities sphere? That has never happened and it has always fallen to Westminster to address those issues.

Emma Little-Pengelly:

In terms of the provisions, I am not sure that if you look back at how the petition of concern operated from the Belfast/Good Friday agreement onwards—so, from 1998—what you will see would back up your analysis that the petition of concern is used mainly by one particular side of the community.

I say that for this reason. If you look at the bare figures, it does look as if it has been used much more, of course, by the Unionist-designated bloc than by the nationalist-designated bloc. However, that really only changed quite recently, in terms of the Democratic Unionist party obtaining 30 seats, which was the threshold in terms of signing the petition of concern. Prior to that, by default no party had over 30 seats. Therefore, despite the fact that it was not explicit within the petition of concern, the way that the petition of concern practically operated was that you required more than one party to agree with it, and that was including within designations.

I think that what you see, for example within the nationalist designation, is that you do not have and you never had the ability of one party to sign a petition of concern. Therefore, I would suggest that to try to get 30 signatures within that designation on policy issues is much more challenging, because of course you will have significant policy differences between those two parties. However, when the DUP obtained 30 seats or votes in the election, that of course made it much easier to use the petition of concern, and I think that is when some of the issues and concerns arose.

Also, when you look, Dr Farry, at the types of issues for which the petition of concern has been used, you will see that a significant number of those petitions of concern were used, for example, in relation to welfare reform legislation. Again, I think it is important to look at the nature of this issue. For example, it was not the case that the Unionist bloc were not sympathetic to the arguments around welfare reform and that we are not sympathetic to, for example, the proposed welfare mitigations; in fact, I think the opposite is true and that people were very sympathetic. But the concern around that issue lay fundamentally with financial aspects of it.

As we know, with welfare reform happening in Westminster, that had a direct impact in relation to what was happening in Northern Ireland. We were not going to get the hundreds of millions of pounds that would have been required to do the mitigations put forward by a series of amendments by other parties. So, the consideration there in terms of the use of the petition of concern was around this argument: “Look, if this passed in the Assembly, or if these legislative changes are proposed without consensus”—and there was no consensus on those amendments—“there would be a cost to the Northern Ireland Executive of hundreds of millions of pounds of additional money, which would have to be found from the block grant”.

Now, if you look back at that time, you had a DUP Finance Minister, so of course they would have been very attuned to what the concerns were then. But that is a decision that is often used to say that this is a misuse of the petition of concern. In fact, if it had not been used, those hundreds of millions of pounds would have had to be found from across other Departments. Of course, it did include human rights and equality issues because it would have meant, for example, top-slicing or taking funding away from the health service at that time, before it had been reformed, when it required even more money, never mind a top-slicing. It would undoubtedly have required other programmes to stop completely, but without any analysis by the Assembly of what the impact of those changes would have been.

In my view, a decision was taken that it was the responsible thing to do to use the petition of concern in that way to prevent the Assembly from voting on something that was going to cost hundreds of millions of pounds across Departments and have a massive impact on the everyday lives of individuals. Of course, as you know, having been a Minister in the Government, these things are all about balance, but they are also about responsibility and trying to assess the best way to do those things by talking them through and by consensus, not by forcing amendments through where there is clearly no consensus behind them, for example.

Q If there are no other questions, Emma, do you want to make some closing remarks in your evidence before we say goodbye?

Emma Little-Pengelly:

The only thing I would want to reflect on, I suppose, is really where these proposals came from. As I have indicated, it was the DUP that pushed very hard for the sustainability aspects of the New Decade, New Approach agreement, and we did that very much because of the experience of the preceding three years, where Northern Ireland was left in a really appalling situation of not only having no local devolved Government, but having no real direct-rule Ministers either, so civil servants were left in the position where they had to try to make decisions with no accountability, no democratic accountability and no guidance.

I do not think the Bill is in any way perfect, but I do think it is progress. The key thing is to try to ensure that there is not that incentive for others to bring the institutions down and cause instability in a tactical way, and to recognise that at times there will be major constitutional issues—we are seeing that at the moment with protocol, for example—and other issues of serious concern that we have had before. In those situations, of course it is absolutely right for people to raise their personal concerns, their party concerns and their community concerns to say, “This is simply not sustainable as a way forward.”

I know that that cannot be prevented and should not be prevented, but ultimately, this is a step forward to try to encourage greater stability, which is much needed across Northern Ireland.

Thank you for your time today, Emma. I am sure that I speak for everyone when I say that I wish you well.

Colleagues, we are a little early. We were meant to hear from Mark Durkan at quarter past three, but we are trying to make contact with him. We are ready to go, so we will bring things forward. I am beginning to think that this is all to do with the football match, but I could be wrong.