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REPORT ON Ordered by the Ad hoc Committee to be printed on 14
June 2002 AD HOC COMMITTEE AD HOC COMMITTEE The Committee was established, in accordance with Assembly Standing Order 48(7), by resolution of the Assembly on 13 May 2002. The function of the Committee is to consider the criteria for the disqualification of persons listed under Schedule 1 of the Northern Ireland Assembly Disqualification Act 1975, referred by the Secretary of State and to submit a report to the Assembly by 24 June 2002. The Committee has 10 members, including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee is as follows:
The Report and Proceedings of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly's website at http://www.ni-assembly.gov.uk/ All correspondence should be addressed to the Clerk of Ad hoc Committee, Room 371 Parliament Buildings, Stormont, Belfast BT4 3XX. CONTENTS Introduction Current Disqualification Legislation Committee's consideration and recommendations for a revised criteria to be applied to Schedule 1 Appendix 1 - Minutes of Proceedings 1. This is a Report made by the Ad hoc Committee to the Assembly, pursuant to the resolution of the Assembly on Monday, 13 May 2002. The Report describes the work of the Committee over the period 28 May to 14 June 2002. 2. As agreed by the Assembly, the Committee had the following function: To consider the criteria for the disqualification of persons listed under Schedule 1 of the Northern Ireland Assembly Disqualification Act 1975, referred by the Secretary of State and to submit a report to the Assembly by 24 June 2002. 3. During the period covered by this Report, the Committee held three meetings: 28 May, 10 June and 14 June 2002. The Minutes of Proceedings for these meetings are included at Appendix 1. Background to Updating the Criteria for the 4. The Northern Ireland (Elections) Act 1998 applied the House of Commons Disqualification Act 1975 to the first elections to the Assembly. The Northern Ireland Act 1998 applies the Northern Ireland Assembly Disqualification Act 1975 (the 1975 Act) to the 2003 and any subsequent Assembly election. 5. The last reprint of the 1975 Act was in July 1982: however, it has been substantially amended but not re-printed since then. Currently, therefore, there is no easily accessible method for determining the offices that are disqualified from membership of the Assembly. 6. Section 3 of the 1975 Act provides that if at any time it is resolved by the Assembly that Schedule 1 be amended (whether by way of additions, removals or alterations) Her Majesty may by Order in Council amend that Schedule. The Secretary of State's consent is required to the Order in Council under section 36(2) of the Northern Ireland Act 1998. 7. Once an Order has been made, section 3(2) of the 1975 Act requires that the Act as amended be reprinted and deposited with the rolls of Parliament. This responsibility falls to the Clerk of the Parliaments. 8. The Committee invited the Northern Ireland Office to attend to give evidence, however, this invitation was declined. The Committee have written formally to the Northern Ireland Office to express their dissatisfaction with this course of action. A copy of this letter is attached at Appendix 2. CURRENT DISQUALIFICATION LEGISLATION 9. Set out below is the description of the current Disqualification Criteria provided by the Northern Ireland Office - "Northern Ireland disqualification provisions, along with those of Scotland, broadly follow the long-standing criteria used for the House of Commons. It is the responsibility of the Northern Ireland Office in conjunction with the Assembly to determine future policy while keeping the Cabinet Office and the Scotland and Wales Offices informed of any changes. The position in respect of the House of Commons provision is that holders of an 'office in profit' in the gift of Ministers or The Crown are disqualified from membership. For example, those who are appointed to a paid post by Ministers or by the Queen on the advice of Ministers are generally disqualified from becoming an elected representative. However, to prevent trivial disqualification, this criterion usually only comes into play where the post in question pays £10,000 + per annum. This is known as the 'de minimis' level and obviously is adjusted from time to time to keep pace with inflation etc. The chairs and board members of many (but not all) Executive Non Departmental Public Bodies and other large public bodies are disqualified from membership of the legislatures. This is designed to protect the independence of MPs or MLAs (ie if an MP is beholden to the Executive for a significant income, then he or she might be loathe to criticise the Government). Other criteria for disqualification include holders of an office which must be seen to be politically impartial, certain positions on the boards of companies, and holders of an office which, given time commitments or for geographical reasons, means that they could not also properly perform the functions of an MP or MLA." Review of Disqualification Legislation 10. The Committee agreed to review the existing criteria and to submit the amended criteria to the Secretary of State. The Secretary of State will seek the advice of officials in the Office of the First and Deputy First Minister (OFMDFM) and Northern Ireland Departments in relation to offices which are within the gift of the Northern Ireland Executive. The Secretary of State will then write seeking the Assembly's view on the revised list. 11. The Committee endorses the view that no unnecessary obstacles are placed in the way of persons becoming Members of the Legislative Assembly. COMMITTEE'S CONSIDERATION AND RECOMMENDATIONS 12. The Committee was briefed by the Northern Ireland Assembly Legal Services and Northern Ireland Assembly Research and Library Services and following debate agreed a draft criteria for those organisations and individuals listed in Schedule 1 of the Disqualification Act 1975. The Committee recommended that, following the Plenary debate, the Northern Ireland Office put this criteria out to public consultation and ensure that it receives the necessary equality and human rights proofing. Referral from the Northern Ireland Office 13. The Committee expressed serious reservations about the quality of the criteria submitted by the Elections Unit of the Northern Ireland Office and about the refusal of Northern Ireland Office officials to attend the Committee to provide evidence. These factors have militated against the Committee and have undermined its capacity to carry out effective scrutiny and consequently provide a comprehensive set of revised criteria. Recommendation 1: Conflict of Interest 14. Conflict of Interest - The definition of a conflict of interest refers to a situation where someone who has competing professional or personal obligations or personal or financial interests that would make it difficult to fulfil his/her duties fairly. The Committee considered that those people appointed, by Ministers or on the advice of Ministers, to the boards of Non Departmental Public Bodies and other "public" bodies as may be listed in Schedule 1, should be disqualified from becoming MLAs, on the basis of conflict of interest, real or perceived. Recommendation 2: De Minimis Rule 15. De Minimis Rule - The current criteria state that Schedule 1 disqualification usually only comes into play where the post in question pays £10,000 or more per annum - adjusted from time to time to keep pace with inflation. It also appeared that there was no consistent application of the Rule. The Committee proposed that the De Minimis Rule be dropped, as the issue is the level of authority exercised, as a Chairperson or board member, in terms of financial control and the strategic influence that may be " politically" inappropriate. Recommendation 3: Judicial Officers 16. A strict application of the constitutional theory of the separation of powers would exclude members of the judiciary from membership of the legislature - because it would be inappropriate for members of the body which makes the laws to also be members of the body that adjudicates on the basis of those laws. The Committee raised the issue of part time posts, within the judiciary, with the Northern Ireland Office who have agreed to consider this at the next stage of the process ie the re-constitution of Schedule 1. Recommendation 4: Geographical Location/Time Commitments 17. The original criteria, submitted by the Northern Ireland Office, cited the issue of geographical location and time commitments as being relevant factors in the possible disqualification of a Chairperson and or board member of an NDPB from becoming an MLA. Since it was very unclear what this might mean in practice the Committee proposed that these criteria be excluded. Recommendation 5: EXCLUSION OF POTENTIAL MLAs 18. The Committee considered the issue of potential MLAs being excluded from taking up their seats by nature of their inclusion in Schedule 1. The Committee considered that a reasonable period of time should be allowed, after an election, for those potential MLAs to resign their current position and subsequently retain the position of MLA, having been elected. Recommendation 6: Public Consultation 19. The Committee considered the need for a wider public consultation on the revised criteria. Recommendation 7: AD HOC COMMITTEE TUESDAY 28 MAY 2002 Present: Dr Esmond Birnie MLA Chairperson Attendees: Mr Tony Logue, Committee Clerk 2.32pm the meeting opened in private session-the Clerk in the Chair. 1. Apologies There were no apologies. 2. Election of Chairperson and Deputy Chairperson The Clerk called for nominations for the position of Committee Chairperson. Mr Weir proposed that: Dr Birnie be the Chairperson of this Committee. Mr Carrick seconded this and the nomination was accepted. On there being no further nominations the Clerk put the question without debate. Resolved, that Dr Birnie, being the only candidate proposed, be Chairperson of this Committee. 2.33pm Mr Hutchinson, Mr Maginness and Dr O'Hagan joined the meeting. 2.34pm Dr Birnie in the Chair. The Chairperson thanked members for their support and sought nominations for the position of Committee Deputy Chairperson. Mr Neeson proposed that: Dr O'Hagan be the Deputy Chairperson of this Committee. Mr McNamee seconded this and the nomination was accepted. On there being no further nominations the Chairperson put the question without debate. Resolved, that Dr O'Hagan, being the only candidate proposed, be Deputy Chairperson of this Committee. 3. Declaration of Interests The Committee noted amendments to the Declaration of Interests. The Chairperson invited members to forward any further amendments in writing to the Committee Clerk. 4. Procedures of the Committee The Chairperson referred members to a memorandum from the Committee Clerk on the procedures of the Committee contained in their briefing papers. Resolved, Witnesses-the Committee agreed to take evidence from relevant bodies as part of its proceedings. It was agreed that a representative from the Elections Office, Northern Ireland Office (NIO), London should be invited to give evidence to the Committee. It was further agreed that an advertisement, inviting comments on the disqualification criteria, should be placed on the Northern Ireland Assembly website and that a Press Release be issued. 2.42pm Mr Neeson left the meeting Voting-the Committee agreed that in the absence of consensus, simple majority would determine all decisions. Minutes of Evidence-the Committee agreed that in the event that any members are unable to attend an evidence session, the uncorrected Minutes of Evidence would be copied to those members for their information. Public meetings-the Committee agreed that it would hold all evidence sessions in public. Deputies-the Committee agreed not to use deputies. Action: Clerk 5. Forward work programme The Committee noted a memorandum from the Committee Clerk setting out a proposed forward work programme. 6. Briefing from the Assembly Legal Advisor and the Assembly Research and Library Service Members noted the contents of an Information Pack and Background briefing note prepared by Northern Ireland Assembly Research and Library Service. Following a briefing from the Northern Ireland Assembly Research and Library Service, members conducted an initial analysis of the criteria for the disqualification of persons listed under Schedule 1 of the Northern Ireland Assembly Disqualification Act 1975, with assistance from the Assembly Legal Advisor and the Assembly Research & Library Services. 3.02pm Mr Maginness left the meeting 3.03pm Mr Maginness returned to the meeting 3.05pm Dr O'Hagan left the meeting Following debate it was agreed that the Clerk should write to the NIO seeking clarification on the issues raised. It was also agreed that the Clerk should acquire a copy of the disqualification criteria currently in place in the House of Commons, the Scottish Parliament and the National Assembly for Wales. Action: Clerk 7. Any other business No other matters were raised. 8. Date and time of next meeting The Committee agreed that the Clerk would notify members of the date of the next meeting, following arrangements being made for a representative from the NIO to give evidence to the Committee. 3.23am the Chairperson adjourned the meeting. Dr Esmond Birnie MLA 10 June 2002 AD HOC COMMITTEE MONDAY 10 JUNE 2002 Present: Dr Esmond Birnie MLA Chairperson Attendees: Mr Tony Logue, Committee Clerk 2.34pm the meeting opened in public session 2.35pm Dr O'Hagan joined the meeting. 1. Apologies There were no apologies. 2. Draft Minutes of Proceedings Resolved, that the draft Minutes of Proceedings for Tuesday, 28 May 2002 be agreed. 3. Matters arising The Chairperson informed members that the Northern Ireland Office (NIO), Elections Unit, had declined the Committee's invitation to attend to give evidence to the Committee. Following debate it was agreed that the Chairperson should write to the NIO, expressing the Committee's dissatisfaction at their non-attendance, given their serious reservations with the content and quality of the existing criteria referred to it for consideration. It was also agreed that a Press Statement be issued expressing the Committee's views. Action: Clerk 3.04pm Mr Maginness joined the meeting. 4. Correspondence Members noted correspondence from the Northern Ireland Office, Elections Unit, an extract from the Scotland Act 1998 on Disqualification and an extract from the Government of Wales Act 1998 on Disqualification. 5. Draft Criteria on Disqualification Legislation Members debated the tabled draft criteria on Disqualification Legislation. It was agreed that, following Plenary debate, the Committee recommend that the Northern Ireland Office put this criteria, as amended, out to public consultation and ensure that it receives the necessary equality proofing. 6. Any other business No other matters were raised. 7. Date and time of next meeting The Committee agreed that the next meeting would take place on Friday, 14 June 2002 at 10.30am to consider a draft Report of the Committee's proceedings. 3.30pm the Chairperson adjourned the meeting. Dr Esmond Birnie MLA 14 June, 2002 AD HOC COMMITTEE FRIDAY 14 JUNE 2002 Present: Dr Esmond Birnie MLA Chairperson Attendees: Mr Tony Logue, Committee Clerk Apologies: Ms Patricia Lewsley MLA 10.40am the meeting opened in private session 1. Apologies The apologies were noted. 2. Draft Minutes of Proceedings Resolved, that the draft Minutes of Proceedings for Monday, 10 June 2002 be agreed. 3. Matters arising Members noted the contents of a letter which the Chairman had written to the Northern Ireland Office on behalf of the Committee. Members also noted the contents of a Press Release issued by the Chairman on behalf of the Committee. The Chairman appraised members of a telephone conversation he had with the Parliamentary Under Secretary of State, Mr Des Browne of the Northern Ireland Office. 4. Report on the Committee's Proceedings Members noted a draft Report on the proceedings of the Committee tabled at the meeting. Following debate the Report was agreed as amended. 11.14pm Mr Maginness left the meeting. 6. Any other business The Chairperson proposed that he have leave of the Committee to approve the draft Minutes of Proceedings of today's meeting. Resolved,.that the Chairperson shall have leave to approve the Minutes of Proceedings. 7. Date and time of next meeting The Committee agreed that it would not hold any further meetings. 11.16am the Chairperson adjourned the meeting. Dr Esmond Birnie MLA 14 June, 2002 Ms Linda Rogers Dear The Ad Hoc Committee on Disqualification Legislation considered the contents of your letter dated 31 May 2002, at its meeting on Monday 10 June 2002. Following debate, it was agreed that I should write to you expressing the Committee's dissatisfaction that your Unit was unable to send a witness to give evidence to the Committee. The Committee would have welcomed the opportunity to take evidence from the Northern Ireland Office, given their serious reservations with the content and quality of the existing criteria, referred to it for consideration. As it is my understanding that the current legislation has been in existence for many years, it seems wholly inappropriate to refer it to the Assembly for the development of revised criteria, within a six-week period. I am copying this letter to the Speaker of the Assembly and the Secretary of State for Northern Ireland for their information. Yours sincerely Dr Esmond Birnie MLA Written Submissions to the Committee Northern Ireland Office The Scottish Parliament WRITTEN SUBMISSION BY The House of Commons Disqualification Act 1975 was used for the 1998 elections to the Northern Ireland Assembly because Schedule 1 of the NI Assembly Disqualification Act 1975 was generally acknowledged to be too out of date to be of use. However the Northern Ireland Act 1998 requires the Assembly Disqualification Act to be used for the May 2003 and any subsequent Assembly election and so the 1975 legislation must be updated. I enclose a copy of the current schedule. I should explain that it has not been reprinted by HMSO since 1985. The list I have supplied is therefore one that has been put together by civil servants and legal advisers taking account of changes since that time. Disqualification Criteria The Northern Ireland disqualification provisions, along with those of Scotland, broadly follow the long-standing criteria used for the House of Commons. In this, holders of an 'office for profit' in the gift of Ministers or the Crown are disqualified from membership. For example, those who are appointed to a paid post by Ministers or on the advice of Ministers are generally disqualified from becoming an elected representative. This criterion, however, is only used when the particular post pays more than £10k per annum to prevent trivial disqualification. This is known as the 'de minimis' level and is adjusted from time to time to keep pace with inflation etc. To protect the independence of MPs or MLAs, the chairs and board members of many Executive Non Departmental Public Bodies and other large public bodies are disqualified from membership of the legislatures (ie if an MP/MLA is beholden to the Executive for a significant income then the member may be loathe to criticise the Government). Criteria for disqualification also includes holders of an office which must be seen to be politically impartial, certain positions on the boards of companies, and holders of an office which may mean they could not also properly perform the functions of an MP or MLA. Your Queries You raise a number of specific queries in your e-mail. Most of the examples you list do not appear to be specified in the existing disqualification legislation and may be worth examination when amending the disqualifying list. The 'de minimis' level as described above may have a bearing on whether or not the posts are disqualified. In respect of the North/South Implementation Bodies of which you specifically asked it may be worth bearing in mind that members of the civil service are disqualified from becoming members of the legislatures. Other appointees might also need to be disqualified if it was considered that their posts were in the gift of Ministers and involved a salary above the agreed 'de minimis' level. This is something that the Committee will wish to consider. I am sorry I am unable to provide you with more details at present although I hope to be in a position to provide you with more details once I receive advice from the Cabinet Office. You may be interested to know that Rosemary Banner, head of the Public Bodies Unit in the Cabinet Office is the contact there. Her e-mail address is rosemary.banner@cabinet-office.x.gsi.co.uk. I will send separately by post a copy of Schedule 1 to the House of Commons Act 1975.
House of Commons Disqualification Act 1975 c.24 S C H E D U L E S Schedule 1 Sections 1, 4, 5. OFFICES DISQUALIFYING FOR MEMBERSHIP PART I JUDICIAL OFFICES
PART II BODIES OF WHICH ALL MEMBERS ARE DISQUALIFIED
PART III OTHER DISQUALIFYING OFFICES
PART IV OFFICES DISQUALIFYING FOR PARTICULAR CONSTITUENCIES
WRITTEN SUBMISSION BY THE SCOTTISH PARLIAMENT I attach a copy of the relevant sections from the Scotland Act 1998 on disqualification. I understand that in relation to the commission of a criminal offence, a prison sentence of twelve months or more served within Great Britain would disqualify a MSP from continuing to serve in the Scottish Parliament.
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