| Homepage > The Work of the Assembly > Committees > Assembly and Executive Review > Reports > Review of the Operation of Sections 16A to 16C of the NI Act 1998 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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| Ayes | Noes |
|---|---|
| Fred Cobain | Jonathan Bell |
| Conall McDevitt | Paul Givan |
| Declan O'Loan | Simon Hamilton |
| Alex Maskey | |
| Raymond McCartney | |
| John O'Dowd | |
| Jimmy Spratt |
15. A second proposal was made that the Committee should write to the Secretary of State indicating that Section 16C(6) should be removed from the Northern Ireland Act 1998.
16. The Committee divided on this proposal which was subsequently supported as follows:
6 Ayes, 3 Noes and 1 Abstention.
| Ayes | Noes | Abstentions |
|---|---|---|
| Jonathan Bell | Alex Maskey | Declan O'Loan |
| Fred Cobain | Raymond McCartney | |
| Tom Elliott | Pat Sheehan | |
| Paul Givan | ||
| Simon Hamilton | ||
| Jimmy Spratt |
17. The Committee agreed to write to the Secretary of State outlining its position and acknowledging that the decision had been taken on the basis of a simple majority.
[1] The executive selection amendments means the amendments made by section 8 of, and paragraphs 1, 2(1) and (2) and 3 to 14 of Schedules 5 to, the Northern Ireland (St Andrews Agreement) Act 2006
[2] As noted above these form part of executive selection amendments made by section 8 of the Northern Ireland (St Andrews Agreement) Act 2006
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Danny Kennedy
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.05 am The meeting opened in public session.
Members agreed the Minutes of Proceedings of the meeting held on 28 September 2010.
Outgoing Correspondence
5.1 Members noted a letter to the junior Ministers in relation to the 'size' of the Assembly (in terms of the number of MLAs) and on sections 16A-16C of the Northern Ireland Act 1998 (appointment of Ministers).
5.2 Members noted letters to Party Leaders in relation to the 'size' of the Assembly (in terms of the number of MLAs) and on sections 16A-16C of the Northern Ireland Act 1998 (appointment of Ministers).
5.3 Members noted a reminder letter to Members in relation to the 'size' of the Assembly (in terms of the number of MLAs) and on sections 16A-16C of the Northern Ireland Act 1998 (appointment of Ministers).
11.09 am John O'Dowd joined the meeting
There was some discussion around the party submissions.
Agreed: Members agreed to write to the Alliance Party and the Green Party as well as Independents; Dr Kieran Deeny, Alan McFarland, Gerry McHugh and Dawn Purvis – to receive their submissions the 'size' of the Assembly (in terms of the number of MLAs) and on sections 16A-16C of the Northern Ireland Act 1998 (appointment of Ministers).
Agreed: Members also agreed to grant the other parties of the Assembly not represented on the Committee 'observer status'.
Agreed: Members agreed at all future meetings of the Committee where the 'size' of the Assembly (in terms of the number of MLAs) and on sections 16A-16C of the Northern Ireland Act 1998 (appointment of Ministers) was discussed that it would be in closed session and recorded by Hansard but not published in advance of any outcome.
Agreed: Members agreed to commission research on the status of the Electoral Reform Bill.
11.20 am The Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Observers Present: Mr Alan McFarland (Independent)
Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Stephen Magee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.04 am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
Members agreed the Minutes of Proceedings of the meeting held on 12 October 2010.
Members noted copies of letters issued by the Chair on 12th October to independent Members as well as to the Green Party, the Independent Health Coalition and the Alliance Party requesting submissions on the size of the Assembly and Sections 16A-16C of the Northern Ireland Act 1998 as amended by the St Andrews Agreement.
The Chair referred the Members to submissions received from Dawn Purvis, Brian Wilson, Stephen Farry and Alan McFarland on the above issues.
There was some general discussion around the party submissions and the Committee's approach to taking these issues forward.
Agreed: The Committee agreed that Members of the Assembly who are not members of the committee could take part in deliberations on these issues and would be seated at the committee table. It was also agreed that other non-elected representatives of Parties would be allowed to sit in the Public Gallery during closed sessions as observers.
11:07 am Alex Maskey joined the meeting
The Chair reminded all participants that the discussions were confidential.
11.23 am Raymond McCartney and Paul Givan joined the meeting.
11.24 am John O'Dowd left the meeting.
Discussion continued on the way forward.
11.29 am Paul Givan left the meeting.
11.44 am The Chairperson closed the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Tom Elliot
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Observers Present: Mr Steven Agnew (Green Party)
Mr Alan McFarland (Independent)
Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Stephen Magee (Clerical Supervisor)
Miss Marian Johnston (Clerical Officer)
Miss Andrienne Magee (Clerical Officer)
11.03 am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
Members agreed the Minutes of Proceedings of the meeting held on 2 November 2010.
6.1 The Chair referred the Committee members to:
11.31 am The Chairperson closed the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Observers Present: Mr Steven Agnew (Green Party)
Mr Alan McFarland (Independent)
Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mr Stephen Magee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.00am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
Members agreed the Minutes of Proceedings of the meeting held on 9 November 2010.
11.01am John O'Dowd joined the meeting.
11.02am Jonathan Bell joined the meeting.
5.2 Outgoing Correspondence
Members noted a request for legal advice sent by the Committee Clerk to the Director of Legal Services relating to the operation of sections 16A-16C of the Northern Ireland Act 1998 as circumscribed by section 29B of the Northern Ireland Act 1998.
11.03am Conall McDevitt joined the meeting.
The Chairperson referred members to:
Jonathan McMillen of Legal Services made a short presentation to the Committee on the further legal advice he had provided in relation to the operation of section 29B of the Northern Ireland Act 1998.
11.06am Jonathan McMillen left the meeting.
The Chairperson presented a number of broad options open to the Committee in taking the issues forward.
Agreed: Following discussion, it was agreed that members would converse with their parties on these issues, to enable a decision to be taken at the next meeting scheduled for 30th November 2010.
The Committee Clerk reminded members of the tight timescale for completion of the review of the operation of sections16A-16C of the Northern Ireland Act 1998.
Agreed: It was agreed that it would be necessary for the Committee to meet on a weekly basis in order to meet the deadlines outlined in the timeline for completing the review.
11.13am Raymond McCartney joined the meeting.
The Chairperson asked members to keep today's meeting papers and bring them to the next meeting.
11.14am The Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Fred Cobain
Mr Tom Elliot
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Observers Present: Mr Steven Agnew (Green Party)
Mr Alan McFarland (Independent)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.08am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
None.
Members agreed the Minutes of Proceedings of the meeting held on 23 November 2010.
The Chairperson referred members to Tab 2 outlining three broad options open to the Committee in taking the issues forward.
11.17am Paul Givan joined the meeting.
During the discussions, proposals were submitted by Mr Hamilton and Mr Cobain.
On a proposal from Mr Hamilton that:
"The Committee should defer making a decision on this issue until the next meeting of the Committee scheduled for 7th December 2010."
Question put: The Committee should defer making a decision on this issue until the next meeting scheduled for 7th December 2010.
The Committee divided. Ayes 8; Noes 2; Abstentions 0.
Paul Givan Fred Cobain
Simon Hamilton Tom Elliot
Alex Maskey
Raymond McCartney
Conall McDevitt
John O'Dowd
Declan O'Loan
Jimmy Spratt
The proposal therefore passed and Mr Cobain's proposal was deferred for consideration until the next meeting.
11.28am The Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Observers Present: Mr Alan McFarland (Independent)
Mr David Young (Alliance Party)
In Attendance: Mrs Stella McArdle (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.14am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
Mr Tom Elliot.
Members agreed the Minutes of Proceedings of the meeting held on 30 November 2010.
On a proposal from Mr Cobain that:
"The Committee makes the recommendation as set out in section 29B(1)(b) of the Northern Ireland Act 1998."
Question put: The Committee makes the recommendation as set out in section 29B(1)(b) of the Northern Ireland Act 1998.
The Committee divided. Ayes 3; Noes 7; Abstentions 0.
| Ayes | Noes |
|---|---|
| Fred Cobain | Jonathan Bell |
| Conall McDevitt | Paul Givan |
| Declan O'Loan | Simon Hamilton |
| Alex Maskey | |
| Raymond McCartney | |
| John O'Dowd | |
| Jimmy Spratt |
The proposal accordingly fell.
On a proposal from Mr Hamilton that:
"The Committee agrees to write to the Secretary of State for the removal of section 16C from the Northern Ireland Act 1998."
Question put: The Committee agrees to write to the Secretary of State for the removal of section 16C from the Northern Ireland Act 1998.
The Committee divided. Ayes 5; Noes 3; Abstentions 2.
| Ayes | Noes | Abstentions |
|---|---|---|
| Jonathan Bell | Alex Maskey | Conall McDevitt |
| Fred Cobain | Raymond McCartney | Declan O'Loan |
| Paul Givan | John O'Dowd | |
| Simon Hamilton | ||
| Jimmy Spratt |
The proposal accordingly passed.
The Chairperson advised that the Clerk would draft the letter to the Secretary of State, and that members would see the draft before issue. The Chairperson confirmed that the letter would indicate that the Committee decision had been taken on the basis of a simple majority, and not by consensus.
Agreed: Members agreed that the Clerk would prepare a first draft of the report for consideration at the meeting scheduled for 14th December 2010.
Agreed: It was further agreed to include the following papers in the appendices of the report:
11.28am The Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Tom Elliott
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Declan O'Loan
Mr Pat Sheehan
Observers Present: Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.08am The meeting opened in private session.
The Chair declared the meeting open and pointed out that the meeting was being covered by Hansard.
Mr Conall McDevitt
Mr Alan McFarland (Observer)
Members agreed the Minutes of Proceedings of the meeting held on 7 December 2010.
Consideration of the operation of sections 16A to 16C of the Northern Ireland Act 1998
The Chairperson explained why it was necessary to rescind the proposal that had been passed at the Committee meeting on 7th December 2010.
11.11am Alex Maskey joined the meeting.
On a proposal from Mr Hamilton that:
"The Committee rescinds its decision made at its meeting of the 7th December 2010 to write to the Secretary of State for the removal of section 16C from the Northern Ireland Act 1998."
Question put: "The Committee rescinds its decision made at its meeting of the 7th December 2010 to write to the Secretary of State for the removal of section 16C from the Northern Ireland Act 1998."
The proposal was agreed by consensus.
On a proposal from Mr Hamilton that:
"The Committee agrees to write to the Secretary of State for the removal of section 16C(6) from the Northern Ireland Act 1998."
Question put: The Committee agrees to write to the Secretary of State for the removal of section 16C(6) from the Northern Ireland Act 1998.
The Committee divided. Ayes 6; Noes 3; Abstentions 1.
| Ayes | Noes | Abstentions |
|---|---|---|
| Jonathan Bell | Alex Maskey | Declan O'Loan |
| Fred Cobain | Raymond McCartney | |
| Tom Elliott | Pat Sheehan | |
| Paul Givan | ||
| Simon Hamilton | ||
| Jimmy Spratt |
The proposal accordingly passed.
The Committee considered a draft letter to the Secretary of State.
Agreed: It was agreed that the letter should be amended to indicate how Members had voted, and that the letter should then be sent to the Secretary of State.
11.22am The Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Alex Maskey (Deputy Chairperson)
Mr Fred Cobain
Mr Tom Elliott
Mr Paul Givan
Mr Simon Hamilton
Mr Conall McDevitt
Mr Declan O'Loan
Observers Present: Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.08am The meeting opened in private session.
Mr Jonathan Bell
Mr Jimmy Spratt (Chairperson)
Mr Alan McFarland (Observer)
Members agreed the Minutes of Proceedings of the meeting held on 14 December 2010.
Members noted the following outgoing correspondence:
11.10am Paul Givan joined the meeting.
The Deputy Chairperson proposed that the draft report on the review of the operation of sections 16A to 16C of the Northern Ireland Act 1998 should be read paragraph by paragraph.
Agreed: The front cover was agreed.
Agreed: Page i, Powers, read and agreed.
Page i, Membership, read and agreed.
Agreed: Page iii, Table of Contents, read and agreed.
11.13am Conall McDevitt joined the meeting.
Agreed: The inclusion of Appendix 1, Minutes of Proceedings relating to the report, was agreed.
In relation to Appendix 2, Hansard Transcripts of Committee Meetings, the Deputy Chairperson pointed out that the Official Report of the meetings on 2 and 9 November 2010 contained material related to the 'size' of the Assembly, which the Committee had been discussing but subsequently deferred to a later date for consideration. Members were content to include the Hansard transcripts as presented.
Agreed: The inclusion of Appendix 2, Hansard Transcripts of Committee Meetings, was agreed.
Agreed: The inclusion of Appendix 3, Position Papers from Parties and Independent MLAs, was agreed.
Agreed: The inclusion of Appendix 4, Extracts from Research Papers, was agreed.
Agreed: To include the letter to the Secretary of State dated 14 December 2010, and the response letter dated 29 December 2010, in the appendices to the report.
Agreed: It was agreed that the draft report would be amended and presented to the committee at its meeting scheduled for 18 January 2011 for final agreement.
Agreed: It was agreed to debate the report in a plenary session.
11.31am The Deputy Chairperson adjourned the meeting.
[EXTRACT]
Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Tom Elliott
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr Declan O'Loan
Mr Pat Sheehan
Observers Present: Mr Alan McFarland (Independent)
Mr David Young (Alliance Party)
In Attendance: Dr Kevin Pelan (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Miss Tara McKee (Clerical Supervisor)
Miss Andrienne Magee (Clerical Officer)
11.06am The meeting opened in private session.
None.
Members agreed the Minutes of Proceedings of the meeting held on 11 January 2011.
None.
The Committee considered a revised draft report, as some amendments to the initial draft report had been proposed at the meeting on 11 January 2011.
Agreed: The amendments proposed at the meeting on 11 January 2011, and now incorporated in the draft report, were agreed.
Agreed: The minor amendment to the title of the report on the front cover was agreed.
Agreed: Executive Summary – Page 1, read and agreed.
Question put: That the Report be the First Report of the Assembly and Executive Review Committee to the Assembly in the 2010/2011 session.
Agreed: Members ordered the report to be printed.
11.15am Fred Cobain joined the meeting.
Agreed: That the Committee authorises the Chairperson to sign the minutes of today's meeting in order for an extract to be included in the report.
Agreed: The motion to accompany the report's introduction to the Assembly was agreed, as follows: That this Assembly approves the Report of the Assembly and Executive Review Committee on the Operation of Sections 16A to 16C of the Northern Ireland Act 1998.
11.31am The Chairperson adjourned the meeting.
[EXTRACT]
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Also present was:
Mr Alan McFarland
1. The Chairperson (Mr Spratt): We now move to the consideration of submissions. To help with our discussions, a copy of the Northern Ireland (St Andrews Agreement) Act 2006, which includes sections 16A to 16C, has been included in members' packs. There is also a copy of the formal work programme, which indicates that the deadline for consideration by the Committee of sections 16A to 16C is 1 February 2011. The research paper on the Parliamentary Voting System and Constituencies Bill that I mentioned is also in members' packs.
2. I am quite happy for members to take a few minutes to look at the submissions that have just come in. I will take the nod from members when they are ready.
Members indicated assent.
3. I will be led very much by members on what happens now. You have all read the various submissions from the parties. The discussion now needs to take place around the table on how we move things on and what sort of agreement, if any, we can come to.
4. Mr Hamilton: It is so long since we asked for some of this documentation that it may be worthwhile to remind ourselves about why we are doing this. It might also be of benefit to remind ourselves of the timescales that we are up against. We are not carrying out this exercise on these two issues for the sake of it; one was in response to a request from the Speaker about the Parliamentary Voting System and Constituencies Bill and the other is a statutory duty.
5. The Chairperson: Yes; a letter was sent from the Speaker to me about the Bill, which he referred to the Assembly and Executive Review Committee.
6. Mr Hamilton: We need to decide which issue to discuss first.
7. The Committee Clerk: The timeline for the Parliamentary Voting System and Constituencies Bill is in front of members. The Third Reading of that Bill is taking place today, and it will go to the House of Lords in 2010-11. The Secretary of State wrote to the Speaker on the issue and met with him to discuss it. The Speaker then forwarded the Secretary of State's letter to this Committee, because the size of the Assembly, as referred to in the St Andrews Agreement, is within its remit.
8. The issue has assumed more importance principally because the Bill is going through Westminster. If the Committee wants to influence the number of MLAs in the Assembly, it would seem appropriate to try to do so at an early stage, instead of waiting for the Bill to become an Act, after which an amending Act would be required.
9. As members know, there will be a referendum on 5 May 2011 on a number of issues relating to the Parliamentary Voting System and Constituencies Bill. If that Bill is passed in its current form, Northern Ireland is likely to have 15 MPs following the reduction in the number of Westminster constituencies. That would mean that there would be 90 Members in the Assembly from the 2015 election. Therefore, the reason why the issue is on the work programme at what might seem like an early stage is principally so that the Committee can exert influence if it wants to move away from the set figure of 90 Members.
10. Sections 16A to 16C of the Northern Ireland Act 1998 as amended by the Northern Ireland (St Andrews Agreement) Act 2006 are on the agenda again and have assumed more importance because of the timeline involved. As the Chairperson indicated, the Committee has to respond by 1 February 2011. The Northern Ireland (St Andrews Agreement) Act 2006 states:
"If, by no later than 1 February 2011 —
(a) the committee established by virtue of section 29A of the 1998 Act makes the recommendation set out in section 29B(1)(b) of that Act, and
(b) the committee's recommendation is approved by the Northern Ireland Assembly with cross-community support".
11. Section 29B refers to the review of the operation of sections 16A to 16C of the Northern Ireland Act 1998. The Committee is mandated to report on that issue by no later than 1 February 2011, because, by that stage, the Secretary of State must, by order, make a statutory instrument to amend that Act. Whatever the Committee and the House agree will help take that issue forward.
12. The two issues are separate, but they are being taken forward at the same time because of the timeline involved.
13. Mr A Maskey: The Committee Clerk is saying that any submissions that we want to make on sections 16A to 16C will have to be made by that date.
14. The Chairperson: We will have to report to the Assembly by 1 February 2011, which means that we will have to have broad agreement by the beginning of January. The report will probably be very short, but we will probably need about two or three weeks to compile it.
15. The Committee Clerk: In response to Mr Maskey's point, the Northern Ireland (St Andrews Agreement) Act 2006 states that the Committee will decide on the review of the operations of sections 16A to 16C and that:
"the Secretary of State must by order made by statutory instrument amend that Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made."
16. The key point is the part about the date of the election. If one is going to amend section 16A to 16C as if they had not been made, one would have to do so no later than 1 February 2011.
17. The Chairperson: It may be that we will go to the Assembly and say that it will be 2015 before any change is made. My understanding was that the next Assembly would be the same size. Simon, does that clarify the point?
18. Mr Hamilton: Yes, it was useful. Two issues are pressing, but one is more pressing than the other. The more pressing issue is the impact that the Parliamentary Voting System and Constituencies Bill will have. It strikes me that it can decide how we move forward.
19. The Chairperson: We also need to be mindful of the Christmas recess, which is two weeks. We need to factor in all of those things to be able to get to the timeline that we need for 1 February.
20. Mr McFarland: I want to recap the effect of this. The changes to the boundaries will come in 2015, and not before. Is that correct?
21. The Chairperson: Yes.
22. Mr McFarland: We could bring amendments to section 16 before next May, but you thought that that might be a bit early, Chairperson. The amendments would also be applied in 2015, subject to the Assembly.
23. The Chairperson: That was my understanding. A lot of the background work and preparation for the Assembly election, on the number of Members, and so on, will be done by around February or March. Although we may recommend that it will be 2015 before there is a downsizing, we can say that the agreement has already been made, if that is what the Committee decides.
24. Mr McFarland: I see that a number of parties believe that section 16 should be amended before the next election. Technically, if the Assembly voted for that, it could happen. Clearly, there are other parties who think that it should not happen for the next election but the one after.
25. Mr McDevitt: That is an interesting point. As I heard from the Committee Clerk's clarification, the statutory mandate on us is to provide a position on section 16 in time for the next Assembly election so that, if, for argument's sake, we were to agree that it should be changed, there would be ample time for it to be changed.
26. The Committee Clerk: It is set out on page 12 of the Northern Ireland (St Andrews Agreement) Act 2006.
27. Mr McDevitt: I will play devil's advocate on Simon's point. To some extent, from a statutory point of view, we need to form a view on that within a specific timescale. Those of us who have participated in the debate on the Bill that is going through Westminster know the party positions because we have been there in the past couple of months. Today is the final big debate, and I have heard little idea that there will be a big rebellion in the House of Lords. Therefore, one could nearly anticipate what the Westminster position will be after tomorrow. As you said, the consequence for us will be, potentially, down the line, whereas the statutory duty on us is to come to some sort of opinion on section 16, as you rightly pointed out Chairperson, by the end of January. I am wondering whether that should inform how we might want to approach our debate in the next few weeks.
28. The Chairperson: That should inform us. We need to be doing some work on it to get to the stage of producing a report.
29. Mr O'Loan: That is how I read it. We have a job to do, and we must do it. There seem to be more disparate opinions about the size of the Assembly, and there is also much more uncertainty about it, because we do not know the final outworkings of the Bill that is being discussed at Westminster today becoming an Act. It is hard to come up with definitive conclusions until that works its way through somewhat more.
30. Mr Hamilton: On that issue, there are ramifications that we might wish to discuss at the appropriate point as to how the Assembly deals with that. The Committee Clerk can put me right, but I believe that we are not obliged to accept whatever comes through in respect of the size of the Assembly. I think that I am right in saying that we can decide to put the size up or down. I am being devil's advocate now.
31. Mr McDevitt: Yes, we can; but we are bound to coterminosity at the moment, so we have a substantial challenge to re-legislate to break coterminosity.
32. Mr Hamilton: The point that I am getting at is that there are stages and processes that we would have to follow. If we decided to keep it as it is, we would obviously have to take that process into our view as well.
33. The Chairperson: Where are we? We agree that work needs to be done. The parties have submitted papers, which are in front of members. Do members want to get into a discussion today in relation to those papers?
34. Mr O'Loan: It would be quite useful if we were presented with a summation of the submissions from the parties and independents in tabular form.
35. The Chairperson: We did that with the policing and justice stuff. We could have a one-page or two-page summary to indicate party positions in bullet points and in some sort of order, perhaps according to subject size and things such as that. We could have the DUP position, the SDLP position, the Sinn Féin position, and so on, set out so that we could run our eyes up and down one or two pages. That was very helpful previously. I know that the Committee Clerks did some good work on that, and I have no doubt that they will be able to do it again, so we request that that be done.
36. I am totally open to discussion, if that is what members want to do. Perhaps you want to wait until you get that document. Do you want to meet now on a weekly basis? Those are the issues that we need to discuss.
37. Mr A Maskey: We only got some of the submissions in the last couple of days. It is a useful idea to tabulate them so that that is a ready reckoner for us. There is another bit of information that I would be interested in having. I think that the Welsh have brought in an exemption from the Westminster Bill. If, for example, this Committee and the Assembly decided that we did not want to reduce the number of MLAs to 90 by 2015, and the argument was made to remain as we are with 108 MLAs, what is available to us to seek to affect that amendment of the Westminster legislation? Is there anything? I am curious to know about that.
38. The Committee Clerk: I could get formal legal advice from the Assembly Legal Services, but I have had some initial discussions with them on that. If the Committee decided that it wanted to retain all 108 Members, its decision would go to the Floor of the House. If it was agreed on the Floor of the House, the Speaker would write to the Secretary of State to say that that was the Assembly's will. In his letter, the Secretary of State stated that he would take the Assembly's view under consideration and that he had no interest in telling the Assembly what size it should be. That would be the approach to take. Whether the Secretary of State would actually do it is what we would have to get clarification on. If the Assembly so wills that it should have 75, 108 or 208 Members, is the Secretary of State obliged to follow that course?
39. Mr A Maskey: Will you get that information? I think that would be important.
40. Mr McDevitt: Alex's point is well made, and this is where we could do with further research. Scotland and Wales do not elect their Assemblies coterminously, so their constituencies do not always meet exactly. Where they do, they have top-up and regional lists and all that sort of stuff.
41. If we come at the debate from the view of having a proper conversation about how we would continue to have a Northern Ireland Assembly of 108 Members but under a 15-constituency model, we should look at the alternative models that exist in Scotland and Wales, which have not just multi-seat proportional representation constituencies but a mixed, hybrid system. That may be useful to see, particularly on the question of coterminosity, because, when we set out in 1998, we kind of hung our hats on that basic principle of having everyone elected from the same boundaries. If we ended up with legislation that brought us down to 15 seats at Westminster and we still wanted 108 here, we would have to break the boundaries or to have a list system or something on top of that. I am thinking aloud. It would be useful to understand the situation that we are dealing with.
42. Mr McFarland: We need to separate it out. The reason the boundaries are changing is so that, right across the UK, we can have largely the same number of voters in each constituency. Therefore, seeking to have different numbers here from the rest of the UK is breaking parity. If we then look to keep 108 MLAs, presumably, we are looking at moving to seven Members in each constituency.
43. Colleagues will be aware of the debate about 108 being far too many anyway, and I think that the DUP is looking at a figure of 75. So, if there is a move to reduce the number of MLAs anyway, and we are trying to keep some sort of sense on the size of the voting pool in each constituency, we need to keep those two elements in balance throughout our discussions. I cannot see any agreement being reached on a top-up lists or the forum-type system that we had, whereby people are brought in off a list. That moves outside the agreement and everything that we have had since, so I cannot see that being endorsed, certainly in the short term. We should wish to keep those issues in mind as we discuss the size of a future Assembly.
44. Mr Hamilton: Whether people like it or not, the important point is that, on this issue, there is a downward pressure. My party's position on the size of the Assembly is well known, and I will not repeat it now. Although we have made it perfectly clear for a long time that our position is that less is appropriate, we have never been rigid about how we get to that less. We have been fairly stuck on the idea that we just replicate parliamentary constituencies because that makes it simpler for electors to know who they are voting for and causes less confusion.
45. Anybody who has canvassed for votes knows that there is always confusion among people about where boundaries are. It does not matter that we may get quite precious about where boundary lines are, because that is our business — most people do not know or care even less. There are other ways in which to reach the same point. There is no harm in looking at other ways of getting to a lower number, and I am quite content to do so. However, we have to accept that changes are coming. We have an issue about the reduction in Westminster seats and the loss of representation there.
46. The Chairperson: Does anybody else wish to speak? We are not going to get to a consensus today. I sense that parties probably need to continue their internal discussions on the subject. We have agreed that a paper will be produced to provide us with a more user-friendly document. Rather than us going through all the submissions, that paper will contain bullet points on each party's position and will be available at our next meeting.
47. You are now aware of the timelines. One issue is the influence of the Westminster legislation. I suppose that we would need to be getting a reply back to the Secretary of State, but I do not think that we are in a position to do that either. Is the consensus around the table that we want to see how the debate taking place at Westminster today goes? If we can have a rundown on the sorts of positions that are adopted in that discussion, that will give us a pretty clear indication of what will be passing on to the House of Lords. That will not be done until December or February, which is the timetable for the Lords. So, this time next week, we will have a better idea of the House of Commons position. Can that be done as a short research paper giving members a fairly clear rundown of how today's debate goes?
48. The Committee Clerk: Yes.
49. The Chairperson: Are members agreed that we will now meet weekly? Or do members want to continue to meet fortnightly? I am open to whatever you agree. Bear in mind, however, that we have recess, and we need to present something, whatever that may be, to the Assembly by 1 February. We may well have to say at that point that we have not agreed a position, but we are duty bound to present something to the Assembly. We should also remember that whatever paper goes to the Assembly, it has to be agreed by a cross-community vote.
50. Mr Hamilton: Why not meet weekly, and we can always alter that?
51. The Chairperson: I would have thought that meeting weekly would be the best idea to see whether we can make some progress. We are at about the same position as we were with the policing and justice stuff at an early stage, and we eventually got through that. So, I have every confidence in members that we will be able to move. Obviously, everybody will not get everything that they want. We will have to have some sort of a — I will not use the word "compromise", because that does not really help anybody.
52. A Member: But you just have.
53. The Chairperson: I imagine that we can get to some sort of a position and some sort of a paper. I get the view that members are keen to discuss it further. It may be helpful if you can have more discussions within parties. I do not know how you will deal with that, Alan.
54. Mr McFarland: I will discuss it with myself.
55. The Chairperson: You may have a discussion with yourself.
56. A Member: See whether you can get a consensus. [Laughter.]
57. Mr A Maskey: Get a seconder. [Laughter.]
58. The Chairperson: That is not very fair.
59. As there is no further business, we agree that we will meet next week on 9 November at 11.00 am. Thank you.
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Tom Elliott
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Also in attendance:
Mr Alan McFarland
Witnesses:
Mr Jonathan McMillen |
Northern Ireland Assembly Legal Services |
60. The Chairperson (Mr Spratt): We will start with Jonathan McMillen's presentation. I ask you to take us through the paper, Jonathan, and I assume that you are happy to answer Committee members' questions thereafter.
61. Mr Jonathan McMillen (Northern Ireland Assembly Legal Services): The Committee Clerk asked me to go over issues that the Committee raised at its previous meeting about the various assurances given by the Secretary of State on the Parliamentary Voting System and Constituencies Bill. The first was whether the Government were bound by a commitment in a letter, in the sense that they were legally advised to give effect to any recommendation by the Committee in its report to the Assembly on the size of the Assembly. I do not think that a letter could be made into a legally binding commitment. That would involve the Secretary of State committing himself to introducing a Bill in Parliament, which, for a variety of reasons connected to the Bill of Rights Act 1689, is not possible. The courts cannot compel a Member of Parliament to do something in the precincts of Parliament. That is, effectively, dealt with in paragraphs 1 to 6 of my advice. In my reading of the situation, no legal obligation is created by that letter.
62. There are a couple of interesting arguments based around the Belfast/Good Friday Agreement. I dealt with those at paragraph 7, and it would mainly be an issue if the Committee were minded to recommend that the size of the Assembly remain at 108 seats. Again, that would be more something that could reinforce a political argument than ground an effective legal argument. It is a political rather than a legal question. However, it would cause some political embarrassment if the Government were to go back on an undertaking. That deals with the main issue as to whether the Secretary of State is bound by his commitment.
63. The Committee Clerk also asked me to consider three additional issues. The first was a mechanism that might be adopted if the Committee were minded to recommend the retention of 108 seats. What would happen — [Interruption.]
64. The Chairperson: OK, members, can we have only one meeting here? We are listening to someone at the table. We should let him finish first and then have our conversations.
65. Mr McMillen: Quite an interesting provision is made for Wales in the Parliamentary Voting System and Constituencies Bill. The provision basically fixes the size of the National Assembly for Wales to an earlier enactment. It seemed to me that it would be possible for something similar to be done for the Northern Ireland Assembly, and I have dealt with that at paragraph 10.
66. Paragraph 11 is about cross-community support and paragraph 12 concerns the form of the recommendation. I do not think that there is a requirement for cross-community support. Obviously, any Member with sufficient support could table a petition of concern on any motion to do with the matter, and cross-community support would be required were that done, but I do not think that it would be required generally. On the form of the recommendation, I think that a letter from the Secretary of State to the Speaker would be the obvious way of doing it, but again that is something to leave with the Speaker. That really concludes my presentation.
67. The Chairperson: Thank you very much, Jonathan. Do members have any questions on that legal advice?
68. Mr Bell: You say that cross-community support would be required if a petition of concern were presented, is that correct?
69. Mr McMillen: If a petition of concern were presented, the effect would be that any motion would require cross-community support.
70. Mr Bell: If a petition of concern were not presented and the amending legislation were to fall, would we automatically revert to the Westminster model of 15 constituencies by six seats?
71. Mr McMillen: If no recommendation is made by the Assembly, the likelihood is that the Assembly will revert to having 90 Members from 2013. The Assembly is obliged to makes decisions, in effect, by resolution. That is simply the law. If a petition of concern is tabled, the Assembly must make a decision by cross-community vote. If it does not achieve cross-community support, the motion will not pass. Accordingly, I do not think that it could then be said then that the Assembly had made a recommendation to the Secretary of State.
72. Mr Bell: Would new legislation to go to 15 constituencies by six seats not then be needed?
73. Mr McMillen: The default effect on Northern Ireland of the Parliamentary Voting System and Constituencies Bill, which is to have its Second Reading in the House of Lords next week, will be a reduction to six Members for 15 constituencies. That will happen unless the Bill is amended in the Lords or there is a later amending enactment.
74. Mr McDevitt: I would like your advice on a couple of technical questions about paragraph 10. If the Assembly wanted the number of Members to remain at 108, as I read things, we could advise the British Government that the number of constituencies will still be reduced in accordance with the electoral formula. We could advise the British Government to continue to allow us to elect 108 from a reduced number of constituencies.
75. Mr McMillen: No. The effect would be to decouple —
76. Mr McDevitt: OK. It would have a decoupling effect. That was to be my second question. Therefore, in effect, it would be classed as decoupling.
77. The Chairperson: Jonathan, thank you very much indeed for your advice, which will be referred to in the future.
78. If members have considered the summary, perhaps we can start with that, keeping in mind that there are two separate issues with which to deal: the number of MLAs and sections 16A to 16C of the Northern Ireland Act 1998, as amended by the Northern Ireland (St Andrews Agreement) Act 2006. I am open to discussions. I thank the Committee staff for making up the briefing document, which is very handy. Rather than have to go through individual papers, the briefing paper makes things easier to deal with. Members, it is over to you.
79. We shall take bids.
80. Mr O'Dowd: I thought this was a staring competition.
81. Our position is as it says on the tin. The legal advice is fine and good, and it is always useful to have, but we are politicians and politicos who make political decisions. Until the political circumstances improve, and until we can prove that we can sustain the rationale behind the Good Friday Agreement with fewer MLAs, we will not move to that position. At present, we are of the view that the structures of the Good Friday Agreement are there for a reason. One of those structures is representation to the Assembly, and that currently entails six MLAs in each constituency. We want to await the outcome of discussions on the Bill at Westminster, and we will deal with the political realities that that produces. As I said, the structures that we have are there for a reason, and, although we certainly cannot ignore costs, the cost of reducing representation and the number of minority voices in the Assembly would be huge.
82. Mr Hamilton: Our party position — that we desire a reduction in the number of Assembly Members — has been clear for many years. I can put forward a plethora of reasons for that, not least costs in comparison with other devolved Administrations in the United Kingdom. John is right to the extent that we have to await the reality that emerges from the process at Westminster.
83. However, I will point out a couple of things. First, there seems to be a willingness and openness at least to discuss a reduction on the part of all but one party, or individual, that has submitted a paper to the Committee. That brings me to my second point, which is that there is an acceptance of the reality that there is a downward pressure being applied. My party may not particularly like the reduction in the number of Westminster constituencies, but if that goes through, it will bring about, as we have heard again today, the default position of a reduction in the number of Assembly Members. Frankly, everyone needs to get real about the fact that there is that downward pressure. Although a reduction may not be achieved in the way in which my party or I want it to be or what we perceive as the best way, the reality of that downward pressure has to be accepted. Whether we like it or not, it is coming.
84. Mr McDevitt: I will probably echo much of what has been said. There are inevitable consequences from the legislation, if it is to complete its passage through Westminster, as we believe that it will. We are open-minded, as we reflected in our paper, about a discussion on some readjustment in the size of the Assembly.
85. To be frank and honest about it, for the sake of argument, if the Westminster Bill were to go through as is, and it were simply to be accepted by the Assembly, that would give us 15 constituencies, each with six seats, which would equal a 90-seat Assembly. I am interested in getting views about whether a 15-by-six or an 18-by-five model would be in the best interests of our region and whether coterminosity or decoupling would be better. It is unfortunate that we are unable to take this conversation to a serious level until we learn the outcome of the Westminster conversation.
86. Mr Elliott: Our position, as set out in the paper, is that we support the reduction in the number of Assembly Members, but that needs to be taken in the context of the overall reform of Westminster that is under way. We need to ensure that everything falls into place. We cannot do one in isolation from the other.
87. We would like to see a similar review of all non-departmental government bodies as well. We would also like to see changes made to the Northern Ireland (St Andrews Agreement) Act 2006.
88. The Chairperson: Do members have any other views? OK. There is consensus around the table that we need to await the outcome at Westminster. As Jonathan McMillen indicated, the Bill's Second Reading in the House of Lords will take place on 15 November. The Bill's Committee Stage, Report Stage and Third Reading will follow. The Committee Clerk has said that that will take us right through to some time in February.
89. The Committee Clerk: The anticipated date is 7 February 2011. It is anticipated that the Bill's passage through the House of Lords will take from December until early February.
90. The Chairperson: Those are the stages that the Bill has to pass through in the House of Lords, so we have quite a bit of time between now and then. From what has been said around the table, it seems to me that we want to await the outcome of that. Members have indicated that they are happy to discuss numbers. Again, we need to bear in mind that we have to submit a report to the Assembly by 1 March. Is it that date?
91. The Committee Clerk: No. In his letter to the Speaker, the Secretary of State indicated that he would like a response on the size of the Assembly early in the new mandate.
92. The Chairperson: Early in the new mandate, but we have —
93. The Committee Clerk: The Committee has to respond on sections 16A to 16C by 1 February 2011.
94. The Chairperson: We need to come back to that issue and discuss it. Is there any merit in having a discussion about sections 16A to 16C today?
95. Mr Hamilton: Our position is clear: there is a divergence between the St Andrews Agreement and the Northern Ireland (St Andrews Agreement) Act 2006. My party does not support the change that was made in the 2006 Act. As we have said, we suggest its removal.
96. The Chairperson: The point that I am trying to make is that we have to report to the Assembly by 1 February, so we need to bear in mind that we must deal with that issue. Obviously, there is not a big appetite to deal with it today.
97. Mr Hamilton: I suspect not.
98. Mr O'Loan: Our position on the issue is straightforward and is set out in the paper. We did not welcome the change made in the 2006 Act. We do not support it. We would like to see a reversion to what was enacted after the Good Friday Agreement.
99. The Chairperson: That is all very well. I understand the positions of parties, but we still have to, one way or another, get some sort of an agreement around the table or else go back to the Assembly and say that there is no agreement. We have to do that by 1 February next year.
100. Last week, we discussed issues around the timing of putting together a report. I imagine that it will not be a very big report. It will be nothing like what we did on policing and justice, but it certainly requires some work and some time for the Committee Clerk's office to deal with it.
101. We are not going to make any further progress today. Perhaps parties need to go off and have a discussion about the other piece of work that we need to do on sections 16A to 16C, while bearing in mind the report. The question is whether we come back next week or revert to having fortnightly meetings.
102. As I said, we know the positions of the parties. What has happened today is that all the parties have restated their position around the table. That is where we are at. People are willing to discuss the issue, but we really have not moved much further forward.
103. Mr O'Loan: What is the duty on us to report?
104. The Chairperson: We have to report on sections 16A to 16C. We are duty-bound to do that under the Northern Ireland (St Andrews Agreement) Act 2006.
105. The Committee Clerk: Section 11 of the Northern Ireland (St Andrews Agreement) Act 2006 inserted section 29B into the Northern Ireland Act 1998. Section 29B refers to the review of the operation of sections 16A to 16C. It states:
"(1) Standing orders shall require the committee established by virtue of section 29A to consider —
(a) the operation of sections 16A to 16C; and
(b) in particular, whether to recommend that the Secretary of State should make an order amending this Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made."
106. It also states:
"(2) If, by no later than 1 February 2011 —
(a) the committee established by virtue of section 29A of the 1998 Act makes the recommendation set out in section 29B(1)(b) of that Act, and
(b) the committee's recommendation is approved by the Northern Ireland Assembly with cross-community support".
107. That is the key part. That issue does require cross-community support. The Secretary of State will, by Order, make a statutory instrument to invoke those changes.
108. Mr McFarland: It may be useful for the Committee to know whether there is any discussion to be had on the subject. My sense from the submissions is that Sinn Féin is not interested in discussing another way. It would be useful to know from John whether there is any discussion to be had, in which case it is worth continuing, or whether Sinn Féin's position is that there is no discussion to be had on the issue, in which case there is little point in dragging it out, and we could do the report next week.
109. Mr O'Dowd: If the topic of discussion is how to avoid having a nationalist or republican First Minister, there will not be a discussion on it, because we are not going down that route.
110. I am interested in Declan's comments. Is the SDLP stating that it wants removal of all of sections 16A to 16C from the St Andrews Agreement Act? That is a strange position. Surely the SDLP would not disagree with the mechanism that allows for a nationalist or republican First Minister.
111. Mr McDevitt: The Good Friday Agreement allows for a nationalist or republican First Minister.
112. Mr O'Dowd: Is this not an improved position?
113. Mr McDevitt: The issue is how the First Minister is elected. It is not whether the people speak; it is about how to elect a First Minister. If the people speak, the people speak, right? The Good Friday Agreement makes absolute provision for a nationalist First Minister. There is nothing in the Northern Ireland Act 1998 that will prevent the election of a nationalist First Minister.
114. Mr O'Dowd: It is interesting to hear that position.
115. Mr McDevitt: If you think about it logically, John, that is the logical answer.
116. The Chairperson: Perhaps parties need to have another discussion on the fringes. The Committee is not the place for that discussion. I am quite happy to allow everyone to have a fair say as long as it is done through the Chair.
117. My sense from this morning's discussion is that I do not think that we are going to progress much further. The Committee Clerk's office will provide a ready reckoner of what we need to do in order to complete the work that we must put before the Assembly by 1 February 2011. That will help us to understand the timescales within which we have to agree. Perhaps we could simply take a paper to the Assembly that says that there is no agreement in Committee. We would still have to do that, however. My sense is that we must still produce something and that it will have to be presented to the Assembly. Bearing in mind the Christmas recess, that does not leave a lot of time between now and when we might have to report. If members are happy, we will ask the Committee Clerk's office to give us an idea of the time that it would take to produce a report, publish it and do all the necessary bits and pieces. In the meantime, members could see whether there is any movement on having that discussion, bearing in mind that it will probably be February 2011 before we know exactly the outcome of the Westminster legislation. We do not have a time problem with that issue. The time problem relates to our review of sections 16A to 16C.
118. The next question, on which members must make a decision, is whether the Committee returns to holding fortnightly meetings. There is no point in our coming back next week with the same positions. During that two-week period, there would be an opportunity for parties to discuss what they might want to do regarding the report that must go the Assembly. Then, members can come back to the Committee and have meaningful discussion to try to get us to some sort of position on paper. It may well be that we cannot reach agreement. However, we need to do that. By that time — perhaps when the Committee Clerk has produced the paper — it could be circulated to members to give them an idea of the timescale within which we must work, showing the recess period, and so on. That could be provided to Alan and shared with other parties that have also made a submission. That would be worthwhile. If members agree, parties that are not at the table and will not have an elected member coming along can put any thoughts that they have in writing. We would be happy to receive that from them. Do members agree?
Members indicated assent.
119. The Chairperson: Are members happy to meet two weeks from today?
Members indicated assent.
120. The Chairperson: I have just one other issue. Members have before them a research paper on the Parliamentary Voting System and Constituencies Bill and its impact on constituencies. Stratagem has asked for a copy of that research paper, which was submitted today. I propose that any papers before the Committee in full session are confidential and should remain so until such time as we agree to their publication. Is that agreed?
Members indicated assent.
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Also present:
Mr Alan McFarland
121. The Chairperson (Mr Spratt): I welcome Jonathan McMillen to the Committee. Jonathan will take us through some further legal advice to clarify section 29B(1)(b) of the Northern Ireland Act 1998, as inserted by the Northern Ireland (St Andrews Agreement) Act 2006, particularly the relevance of the date of 1 February 2011 and the obligation that the Secretary of State is under to abide by our recommendations, assuming that they are approved by the House. Jonathan will also advise us on the scope that the Committee has to recommend amendments to sections 16A to 16C of the 1998 Act. Jonathan, it is over to you.
122. Mr Jonathan McMillen (Northern Ireland Assembly Legal Services): Thank you. I was asked to have a look at the functions of the Committee under section 29B of the Northern Ireland Act 1998, one of which is to consider the operation of what the Act terms "executive selection amendments", which are effectively to do with the appointment of the First Minister and the deputy First Minister after [Inaudible.] period [Inaudible.] they are to be appointed.
123. The original provisions in the Bill [Inaudible.] the Northern Ireland (St Andrews Agreement) Act 2006. Power is conferred on the Committee to recommend to the Secretary of State that those amendments cease to have effect and that he should, therefore, go back to the previous position in respect of the appointment of the First Minister and the deputy First Minister. If, before the date of 1 February 2011, the Committee makes a recommendation that the 2006 Act amendments would cease to have effect, and that recommendation is then passed by the Assembly with cross-community support, the Secretary of State is obliged to give effect to those recommendations. That does not limit what the Committee can consider [Inaudible.] as regards the Executive selection provisions. It could make alternative recommendations, but they would not have the same effect as the recommendation that the [Inaudible.].
124. I was asked four distinct questions, and I said that I would respond to those. As I said, there is a distinction between amendments proposed by the Committee, which will be legally binding, and any other amendments that may be proposed, which will have a persuasive political effect but will not necessarily have any legal effect. The Committee's report will be required before 1 February 2011 for legal effect, and, subsequently, it could continue to have political effect. I do not propose to go into the advice in any more detail, but I am happy to answer any questions.
125. The Chairperson: Committee members have had the advice in their packs for a number of days now. Thank you, Jonathan, for providing that advice and for covering the points that you were asked to cover. No members have questions on the legal advice, so you have had a free run. Thank you, Jonathan.
126. Given that members could make a number of proposals on sections 16A to 16C, it might be worthwhile to review the two broad options that are open to the Committee. The first option is that the Committee make a recommendation by vote resulting in a simple majority or consensus that the Act be amended as though the Executive selection amendments had not been made. If made by 1 February 2011 and approved with cross-community support in the House, the Secretary of State is obliged to make an Order amending the Act to provide that the Executive selection amendments cease to have effect.
127. The second option is that the Committee make a recommendation by vote resulting in a simple majority or consensus to amend some aspects of sections 16A to 16C; for example, some of the Executive selection amendments but not others. The Secretary of State is not obliged to make an Order to give effect to those.
128. There is a possible third option, which I will throw into the mix. We could report that, after reviewing the operation of sections 16A to 16C, we have been unable to reach a consensus view on the broad way forward. The Committee might recommend that it would keep the operation of sections 16A to 16C under review in the new mandate, particularly in the light of the possible reduction in the number of MLAs from the 2015 election onwards, while acknowledging that the Secretary of State is not obliged to make an Order to give effect to recommendations relating to sections 16A to 16C that emerge after 1 February 2011.
129. All three possible options have been discussed, so there is a sense of déjà vu as, for the fourth meeting, we discuss the same issues. We could probably sing it without looking at the notes, if we could get a tune to it. That is where we are at, but we do need to make a decision. The Committee Clerk has provided information on the timescale. Provided that we met each week between now and getting the information to the Assembly, we would have four meetings. It will not be a lengthy report; in fact, it will be short. The Committee Clerk may want to comment on some of those issues, but are members happy to have a discussion first? We can discuss how the wagon might roll after that. It is in the hands of members to decide whether we need another week to make a decision. I am looking for inspiration.
130. Mr Bell: What a difference a week makes.
131. The Chairperson: Will we not reach consensus on the issue? I am trying to be as —
132. Mr Bell: Are you reading between the lines? [Laughter.]
133. The Chairperson: It has been pretty easy to read between the lines the past two or three weeks.
134. The Committee Clerk: Regardless of what is agreed or regardless of whether the Committee makes a proposal today that succeeds after a vote, it still has to go through the House, particularly if the Executive selection amendments are amended in their entirety to the wording of the original section 16 of the 1998 Act. Therefore, members should view any decisions that are made today in the context that the next stage is a vote in the House and that anything that is decided here may not succeed in the Chamber, because it will require cross-community support.
135. The Chairperson: Silence is wonderful.
136. Mr O'Dowd: I have an apology from Alex Maskey, and Raymond McCartney should be joining us later. Anyone who experienced the policing and justice debate in the Committee will realise that, although it was frustrating at times, the Committee sometimes seems to be doing nothing. Even leaving something for a time is more useful than making definitive statements and nailing our colours to the mast. Therefore, I suggest that we leave it for another week and see where we go from there. It is better to go forward with an agreed report than with a report on which there is no agreement.
137. Mr McFarland: Is John saying, against my expectations, that Sinn Féin has some wriggle room for negotiation on the issue? At our previous meeting, I got the sense that Sinn Féin was fairly adamant about its views on the matter and that, therefore, there would probably not be negotiation. Is he now saying that negotiations may open up next week or the week after?
138. Mr O'Dowd: I am hoping that others will have wriggle room. [Laughter.]
139. The Chairperson: I do not know whether that answers your question or not, Alan. Do members have any other comments? Is there consensus that we come back?
140. Mr Bell: In a week or a fortnight, Chairperson?
141. The Committee Clerk: If the Committee is intent on reaching a decision, it should do so as soon as possible, given that time will be required to write a small and limited report and send it to the Business Committee. The report will then be published. We are still working to quite a tight timescale. Members' packs will be the same as those for next week. Therefore, if we come back next week, I suggest that members bring that pack back.
142. The Chairperson: I will keep my speaking notes for next week as well. [Laughter.]
143. Mr Bell: If North Korea keeps attacking the island, none of us may be back next week. [Laughter.]
144. The Chairperson: The bottom line is that we need to come back next week rather than in a fortnight, given that we have to be fair to the Committee Clerk and his staff and give them time to put the report together. No matter how small a report it is, it requires a certain amount of time to put all the bits and pieces together and to publish. A lot of work goes on behind the scenes. Therefore, out of fairness to the Committee staff, I ask members to talk seriously about the matter before next week.
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Fred Cobain
Mr Paul Givan
Mr Tom Elliott
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Also Present:
Mr Alan McFarland
145. The Chairperson (Mr Spratt): Committee members will remember that we agreed to refer the operation of sections 16A to 16C of the Northern Ireland Act 1998 back to our parties and then to return to the Committee today to see how we might take the issue forward. A short summary of the three options open to the Committee has been provided. I shall not read them into the record, because I did so last week and they remain unchanged. I am open to suggestions from parties.
146. I am looking for bids. Simon Hamilton, did you indicate that you wish to speak, or did you just move?
147. Mr Hamilton: Did I wink? I was just scratching my nose.
148. Without prejudice to my or anybody else's views, I and my party have a view that is not universally shared around the table. We have been on the Committee long enough to know that the way in which to do business and to get a product at the end of it is not to put things to a vote. That ends up being totally unproductive. As undesirable as the third option might be, based on what it would produce or, indeed, what it would not produce, it is a statement of fact, and that is the building block of where we are at. We can all agree, at least, that there are differing views in the Committee on how the situation should be resolved and that, as a bare minimum, that is what we should report. If my reading of previous meetings is correct, I suspect that there is not much scope for going beyond that. I am happy to try to see whether there is scope for extending that, but it strikes me that the third option is effectively a report that these are the stated views of the parties on the Committee and of those not on the Committee and that there is no consensus. I think that we can all agree that we can agree to that. As to whether there is scope for anything further, I suspect that there is not, although I may be wrong. Nonetheless, as a bare minimum, we can surely agree on the third option. It would just be stating the obvious.
149. Mr A Maskey: I go along with what Simon said. I have heard nothing to indicate that people have changed their views, so I cannot see us getting consensus around the table for changing where we are at at the minute.
150. Mr Cobain: I do not think that option 3 is an option at all. We need clarification on the issue. As far as we are concerned, the present arrangement is not acceptable either. We would prefer, perhaps, to go back to where we were in 1998. That is the proposal that we want to make.
151. Mr McDevitt: This is a statement of the obvious, but, although option 3 reports that the Committee failed to reach a consensus, adopting it would mean a de facto continuing with the current arrangements.
152. In that sense, it might meet the needs or the positions of the majority of people in the room, but we would be reaching a consensus on a point of disagreement that would leave the current arrangements in place. I am not sure that that would be a particularly satisfactory outcome or one that would be helpful to any of us. I do not support it.
153. Mr Hamilton: My party's position is pretty clear. We have stated verbally and in written submissions to the Committee that we are not happy with the current arrangements. I am happy to state that or to vote to make that position clear. If the Committee proposes as its position that we do away with the current arrangements, I would vote for that. I accept the reality that that is not a consensual position across the Committee. Everyone understands that. We can go around the table and have everyone state his position, but that does not take us any more further forward. If there is a view that we put a position to the Committee and vote on it, I am happy enough to state my party's position and vote for it. It is not as if pointing out the realities of where we are, as others have done, in any way diminishes the position held by me and my party.
154. Mr A Maskey: I did not think that it needed to be said that you will not get consensus for a specific change. That is without prejudice to any party's particular view. We are not talking about what your view may be or what you may want to propose. I am dealing with the reality that we will not get consensus on what any change might be. There is a difference between that and saying that you are happy with the current arrangements.
155. Mr Hamilton: You are talking about a replacement for the current arrangements.
156. Mr A Maskey: Absolutely. I may not be happy with the current arrangements, but I know that they are not going to be changed to satisfy what we want. Therefore, I am happy to leave the arrangements as they are.
157. Mr McDevitt: The quandary that we are in is as a result of the current arrangements being introduced without the consensus of the parties around the table. It seems perverse that we are effectively being invited to allow those arrangements to continue by consensus. That is what I find difficult to reconcile. I take the points that Mr Hamilton and Mr Maskey made. However, it feels as though, when the report is written up, we will be endorsing something that, certainly at the time, we did not agree to and that was introduced above our heads. We need to pause and reflect on how that will look to the public outside and on the message that that sends to the wider world about how we deal with things.
158. Mr Cobain: I do not know how many times we have been around this. I agree with Conall that going for option 3 would indicate that we are happy with the current position even though we are not. Chairperson, you indicated last week that we will need to vote on the issue. It is a fundamental issue that we need to resolve. We did not have any say in the St Andrews Agreement or the pre-agreement, so it was not decided by consensus. As a party, we are happy to make a proposal. The other parties are perfectly entitled to vote against it. If we are to reach a consensus on the issue, a vote is the proper mechanism for doing so.
159. The Chairperson: OK. Are there any other comments? What exactly is your proposal, Fred?
160. Mr Cobain: I propose that we go back to selecting the First Minister and the deputy First Minister under the auspices of the 1998 Good Friday Agreement, whereby the First Minister comes from the largest party in the largest denomination and the deputy First Minister comes from the largest party in the second largest denomination. There should then be a cross-community vote in the House.
161. The Committee Clerk: Mr Cobain's proposal, under section 29B(1) of the Northern Ireland Act 1998, as amended by the Northern Ireland (St Andrews Agreement) Act 2006, would mean that the Executive selection amendments would cease to have effect. That is the key issue that the Committee was asked to consider prior to 1 February 2011. I will read that so that members are clear about what it is: "(1) Standing orders shall require the committee established by virtue of section 29A to consider—
(a) the operation of sections 16A to 16C; and
(b) in particular, whether to recommend that the Secretary of State should make an order amending this Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made."
162. In effect, that would mean a return to the 1998 Act as enacted.
163. The Chairperson: Are there any counter-proposals? No? Then I will put that proposal to the Committee.
164. Mr Hamilton: Our position is slightly more nuanced than that. I propose that, on the understanding that a proposal is there, we defer a vote and come back to it next week. We have started to discuss different positions and to scope the issues. I would prefer, if members are happy, to defer the decision on that proposal.
165. Mr Cobain: We discussed that last week, Chairperson. You said that we were coming here this week to vote.
166. The Chairperson: Are you proposing an amendment to the proposal?
167. Mr Hamilton: Yes.
168. Mr A Maskey: Members are saying that the legislation was enacted over their heads. They can make that argument if they wish. As far as I am concerned, we support the Good Friday Agreement in its entirety. We support the efforts that have been undertaken over the years to implement the Good Friday Agreement and to protect its core principles, such as power sharing and getting the institutions up and running.
169. As a result of work that has been undertaken in recent years, we have now have institutions based on negotiations at St Andrews, or anywhere else for that matter. We are sitting here with a resounding mandate from the wider community, so it was endorsed by the people. [Inaudible.] matter of interest to some people. On that basis, we will be voting against Fred's proposal, not because we do not want a return to the Good Friday Agreement, but because this is part of an overall set of arrangements that was agreed. They have us where we are today, which is in a better place, with the institutions functioning for the longest period. This is not about the Good Friday Agreement — I want to put that on the record. It is about [Inaudible.] alternative on the table that we can agree to and get consensus on. Our party will be voting on the technicality [Inaudible.] Good Friday Agreement [Inaudible.].
170. The Chairperson: Will you read out your proposal, Simon?
171. Mr McCartney: Does each proposal [Inaudible.]?
172. The Chairperson: There are two proposals. One was a counter-proposal.
173. Mr Hamilton: It was just to defer the decision. It is not any more sophisticated than that.
174. The Chairperson: The proposal is just to defer the decision until next week.
175. Mr McFarland: I do not have a vote, but speaking as someone who has been at this since 1996, I wish to make a few comments.
176. First, it strikes me in that Sinn Féin is very tight on this. Whether it is this week or next week, its position will probably not change. We had agreement in 1998, which was democratic. Both came to the Assembly. A collective vote gave the agreement democratic power. The DUP got at it at St Andrews because it did not want to put its hands up for Martin McGuiness to be deputy First Minister. Therefore, the 1998 Act was changed. Sinn Féin then got at it in the legislation that came out of St Andrews, and it changed again. At each stage, different parties have not been party to the changes. At present, as regards Sinn Féin's agreement with the Government after St Andrews, three of the four parties around the table did not agree to that, which is why the current situation exists. Unless Sinn Féin is seriously going to consider something other than its current position, it does not matter whether the decision is taken today, tomorrow, next week or in a year's time, because we will get no agreement on that issue.
177. The Chairperson: Thank you, Alan.
178. Mr Elliott: Just for clarification, this is about overall consensus on the issue as opposed to agreement. Just because we do not get consensus does not mean that we do not get agreement.
179. Mr McFarland: Sinn Fein's position seems to be — I asked the question last week and did not get an answer — that it does not wish to move away from the current legislation, whereas the other three parties around the table do, albeit in two different directions. The SDLP and the Ulster Unionists want to go back to 1998 and the DUP to the original St Andrews Agreement. Therefore, unless Sinn Féin is willing to start negotiating on the issue, or at least seriously addressing it, there is little point in delaying a vote until next week.
180. Mr Givan: Considerable discussion has taken place about the issues. Alan has highlighted some of the history behind how we have got to where we are. The other parties know my party's position, which is that the largest party in the largest designation should nominate to the post of First Minister. That was agreed at St Andrews. Obviously, that changed when it got to legislation. As I said, our position is that it should be the largest party in the largest designation.
181. My party would find it useful to defer a decision on the matter until next week in order to consider the issues further. At present, however, that is our position.
182. The Chairperson: Are there any final comments? We have two proposals. One is Fred's proposal and the other is the proposal from Simon to defer the decision until next week. I will put the Question on deferral first. That is to allow parties more time to consider matters that we have discussed today. At least there has been good discussion today.
Question put, To defer the decision until next week.
The Committee divided: Ayes 8; Noes 2.
Mr Givan, Mr Hamilton, Mr McCartney, Mr McDevitt, Mr A Maskey, Mr O'Dowd, Mr O'Loan, Mr Spratt.
Mr Cobain, Mr Elliott.
Question accordingly agreed to.
183. The Chairperson: The decision has been deferred until next week, so I will not put the Question on the other proposal.
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Conall McDevitt
Mr John O'Dowd
Mr Declan O'Loan
Also Present:
Mr Alan McFarland
184. The Chairperson (Mr Spratt): At last week's meeting, the Committee agreed to defer a decision on the operation of sections 16A to 16C until this week's meeting. It is evident that, although Committee members may agree that the current arrangements under sections 16A to 16C are not ideal, there has been no meeting of minds on how to move forward on the issue. We would all like to make progress on the basis of consensus, where possible, but last week's meeting appeared to suggest that that was unlikely. However, we are where we are, and we need to draw our consideration of the issue to a conclusion.
185. I ask for contributions as to how that can be done. There may be a number of proposals on how to do it, and, if so, we will marshal those proposals and decide which one to take first. The decision will be taken on the basis of simple majority. Without rehearsing last week's arguments, I will open the meeting to discussions.
186. Mr Cobain: I made a proposal last week, and I think that it is still on the table. If not, I will make it again.
187. The Chairperson: OK. Let me get last week's proposal. Are there any other contributions?
188. Your proposal, Fred, was:
"That the Committee make the recommendation as set out in section 29B(1)(b) of the Northern Ireland Act 1998."
189. Is that understood by everybody? That proposal is on the table.
190. Section 29B(1) reads as follows:
"(1) Standing orders shall require the committee established by virtue of section 29A to consider—
(a) the operation of sections 16A to 16C; and
(b) in particular, whether to recommend that the Secretary of State should make an order amending this Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made."
Question put, That this Committee make the recommendation as set out in section 29B(1)(b) of the Northern Ireland Act 1998.
The Committee divided: Ayes 3; Noes 7.
Mr Cobain, Mr McDevitt, Mr O'Loan.
Mr Bell, Mr Givan, Mr Hamilton, Mr McCartney, Mr A Maskey, Mr O'Dowd, Mr Spratt.
Question accordingly negatived.
191. Mr Hamilton: Fred's proposal has not been successful. We are not supportive of a return to the 1998 Good Friday Agreement/Belfast Agreement position. The Government agreed to certain changes at St Andrews, which they were not faithful to when implementing the legislation. We believe that the Government should be forced to go back and legislate for those changes that were proposed in the St Andrews Agreement but were not in the Northern Ireland (St Andrews Agreement) Act 2006. I propose that the Committee agree to write to the Secretary of State seeking the removal of section 16C from the 1998 Act.
192. Mr Bell: I second that proposal.
193. Mr Hamilton: We believe that that would be consistent with what was agreed at St Andrews but not faithfully implemented in the 2006 Act.
194. The Chairperson: Does everybody understand that? Are there any questions?
195. Mr McDevitt: May I ask a technical question, Chairman? To remind us of our remit here, are we free to recommend any permutation of any possible change to the Secretary of State? Or, as in Fred's proposal, are we to recommend that the 2006 Act provisions either stand or do not stand?
196. The Chairperson: I got the nod that we are entitled to make any recommendation to the Secretary of State.
197. Mr McDevitt: As we see fit.
198. The Chairperson: That takes us back to the section 29B(1)(a), which states:
"(1) Standing orders shall require the committee established by virtue of section 29A to consider—
(a) the operation of sections 16A to 16C;"
199. My understanding is that that allows us free rein.
Question put, That the Committee agree to write to the Secretary of State for the removal of section 16C from the Northern Ireland Act 1998.
The Committee divided: Ayes 5; Noes 3.
Mr Bell, Mr Cobain, Mr Givan, Mr Hamilton, Mr Spratt.
Mr A Maskey, Mr McCartney, Mr O'Dowd.
Question accordingly agreed to.
200. The Chairperson: Mr McDevitt and Mr O'Loan abstained from the vote.
201. In the absence of any other proposals on that issue, we return to —
202. Mr A Maskey: May I presume that the letter will reflect that, although there was a simple majority vote in favour of the proposal, that does mean that there was consensus?
203. The Chairperson: Yes, it will have to. The draft letter can come back to the Committee for its approval. It will not be sent until you, as Deputy Chairperson, have seen it.
204. Mr Hamilton: Be careful of the Christmas post.
205. The Chairperson: Is the Committee content that the Committee Clerk begin to prepare a first draft report on the basis of what has been decided today? The draft will be considered at our meeting on 14 December. It will include a draft of the letter, so it will not have been sent by then.
Members indicated assent.
206. The Chairperson: The draft report will require clarity on key points that the Committee wishes to include in it. Therefore, I need to have members' input on those points today and to establish whether members are content to include the following papers in the report's appendices.
207. Are Members happy to include the party submissions?
Members indicated assent.
208. The Chairperson: Are Members content to include extracts of the minutes of any Committee proceedings that are relevant to the report? It is normal to include such information.
Members indicated assent.
209. The Chairperson: Are Members content to include the relevant extracts of the Hansard reports of the meetings? The transcripts have obviously not been published yet, because the meetings have taken place in closed session.
Members indicated assent.
210. The Chairperson: Are members content to include the research papers? This is all normal stuff.
211. The Committee will be provided with drafts to look through. I imagine that the report will be reasonably short. I again remind members of the time constraints: I think that the report needs to go to the Assembly by 1 February 2011. Is that correct?
212. The Committee Clerk: Yes.
213. The Chairperson: It has been confirmed for 1 February, which gives us enough time to get those drafts.
214. The Committee Clerk: In fact, the date for the Assembly's consideration of the report is 25 January 2011.
215. The Chairperson: We are aiming to get the report to the Assembly for that date.
216. What has happened previously is that drafts have been provided ahead of the Assembly debate so that the Committee can have a look at them. It is normal procedure to go through the drafts page by page, paragraph by paragraph, until we have a final approved document. Are Members content to do that? The Committee Clerk will give us first sight of those drafts when they become available.
Members indicated assent.
217. The Chairperson: There are no other issues.
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Alex Maskey (Deputy Chairperson)
Mr Jonathan Bell
Mr Fred Cobain
Mr Tom Elliott
Mr Paul Givan
Mr Simon Hamilton
Mr Raymond McCartney
Mr Declan O'Loan
Mr Pat Sheehan
218. The Chairperson (Mr Spratt): The Committee will remember that, at last week's meeting, the Committee agreed to write to the Secretary of State to notify him that the Committee had reached a decision by a majority vote to remove section 16C from the Northern Ireland Act 1998. On reflection, it has become evident that such a recommendation would make sections 16A and 16B inoperable. In such circumstances, it is necessary for the Committee to rescind that decision and consider what proposal, if any, should be made in its place.
219. The Committee Clerk was not here last week, so another Committee Clerk stood in for him. One of the Clerk Assistants was there as well. I took the advice from my left. It did not become apparent until afterwards that there was a problem, and I was notified that this was the only course of action that we could take.
220. Are members clear on the issues?
Members indicated assent.
221. The Chairperson: An appropriate way forward is to ask the Committee member who proposed the motion to propose another motion to rescind the decision of last week and then to consider whether he wishes to refine the proposal put forward last week.
222. Mr Hamilton: Chairperson, you have already admitted that you went to the wrong Committee room this morning. Carrying on in that spirit of admitting errors, I will admit to a once-off, never-to-be-repeated error.
223. The Chairperson: Confession is always good for the soul.
224. Mr Hamilton: So they tell me. I propose therefore that last week's proposal, proposed by me, be rescinded.
Question put, That the Committee rescind its decision made at its meeting of 7 December to write to the Secretary of State for the removal of section16C from the Northern Ireland Act 1998.
225. Mr Elliott: Sorry, Chairperson, I am not objecting to that, but I do have a query. I know that you said that the removal of section 16C would make sections 16A and 16B inoperable. What difference would that make? If section 16C were removed and the other two sections became inoperable, surely it would automatically be the case that they would be removed or rescinded.
226. The Committee Clerk: It would make them inoperable, and it would then be up to the Secretary of State to review that and decide what to do in those circumstances. At the Committee's meeting of 30 November, there was some discussion that indicated that the issues were a little bit more specific than all of section 16C and that they may have focused on one aspect of section 16C. Section 16C supplies the nuts and bolts for sections 16A and 16B to work; for example, it provides a definition of a nominating officer. Therefore, it seemed that to propose the removal of section 16C was to take a blanket approach to something that is much more specific. That was judged on what Mr Hamilton had said at that meeting.
227. I spoke informally to Assembly Legal Services about it and was advised that such an action would make sections 16A and 16B inoperable and that the Committee might want to consider a more refined proposal rather than removing the whole of section 16C. It would be like taking a hammer to crack a nut, so a more refined proposal may achieve a more specific objective.
228. The Chairperson: If members have no other questions, we will proceed to the Question.
229. Question, That the Committee rescind its decision made at its meeting of 7 December to write to the Secretary of State for the removal of section16C from the Northern Ireland Act 1998, put and agreed to.
230. The Chairperson: OK. That has been agreed. Are there any other proposals?
231. Mr Hamilton: I propose that the Committee agree to write to the Secretary of State to request the removal of section 16C(6) from the Northern Ireland Act 1998.
232. Question put, That the Committee agree to write to the Secretary of State for the removal of section 16C(6) from the Northern Ireland Act 1998.
233. Mr Elliott: What is in section 16C(6)?
234. Mr A Maskey: Can I ask that —
235. The Chairperson: Give me a second, Alex, and I will bring you in. Declan also wants to speak, and I will allow you both to do so after Tom's question has been answered.
236. The Committee Clerk: Section 16C(6) of the Northern Ireland Act 1998 states:
"If at any time the party which is the largest political party of the largest political designation is not the largest political party—
(a) any nomination to be made at that time under section 16A(4) or 16B(4) shall instead be made by the nominating officer of the largest political party; and
(b) any nomination to be made at that time under section 16A(5) or 16B(5) shall instead be made by the nominating officer of the largest political party of the largest political designation."
237. Section 16C(6) is the part of the 1998 Act that applies when the largest political party does not represent the largest political designation but gets to nominate the First Minister. The largest political party that represents the largest political designation then gets to nominate the deputy First Minister.
238. The Chairperson: Is that OK, Tom?
239. Mr Elliott: Yes, Chairman.
240. Mr O'Loan: Can we get advice that the proposal would be competent?
241. The Committee Clerk: Yes. I sought legal advice, and the proposal would be competent. However, I must remind Committee members that the legal advice that was given at a previous meeting was that the Secretary of State is not obliged to make that change. He is obliged to make a change only if the Committee recommended the removal of the Executive selection amendments. That would mean removing all of sections 16A to 16C and would most likely instigate a return to section 16 of the original Northern Ireland Act 1998.
242. When the Committee's report is produced and laid before the House, it is likely that a simple majority vote will be required. However, if a valid petition of concern is tabled, the motion will obviously require cross-community support.
243. Mr A Maskey: The parameters for the Secretary of State as written are more narrow than that, or broader — it depends on how we look at it. Whatever the Committee decides, it would then need to seek consensus in the Assembly before the Secretary of State would be obliged to consider [Inaudible.].
244. The Committee Clerk: The Act explicitly states that cross-community support will be required if the Committee recommends the removal of sections 16A to 16C. The legal advice that we obtained at an earlier meeting indicated that a simple majority vote would be required in the House, but if a valid petition of concern were tabled, the motion would require cross-community support. However, we can seek further clarification if the Committee so wishes.
Question put, That the Committee agree to write to the Secretary of State for the removal of section 16C(6) from the Northern Ireland Act 1998.
The Committee divided: Ayes 6; Noes 3.
Mr Bell, Mr Cobain, Mr Elliott, Mr Givan, Mr Hamilton. Mr Spratt.
Mr McCartney, Mr A Maskey, Mr Sheehan.
Question accordingly agreed to.
245. The Chairperson: Declan O'Loan abstained from the vote.
246. A draft letter to the Secretary of State has been prepared. It is now being tabled by Committee staff. Perhaps we can reach agreement on the letter today. Is today the day that we need to do that?
247. The Committee Clerk: If the Committee had wanted to recommend the removal of the Executive selection amendments, it would have been under pressure, because it would have had to report by 1 February and then have a debate in the House. It is not under that pressure now because it is not making that recommendation, but if we get the letter off to the Secretary of State, it may be that there will be a response by the time that the Committee resumes in the new year. That response can then be incorporated into the report.
248. The Chairperson: Members, the letter is in front of you. Do you have any issues with it?
249. Mr A Maskey: We have opposed the motion. To reflect the accuracy of the letter, and so that we can endorse it [Inaudible.].
250. The Committee Clerk: If the Committee wants to include the outcome of the vote by party and name, that can be done.
251. The Chairperson: Thank you, Chairman.
252. The Chairperson: Shall we include in the letter how the voting went and agree on the letter?
Members indicated assent.
253. The Chairperson: If there is no other business, I wish everyone a happy Christmas and a peaceful and prosperous new year. We will see you on 11 January.
1. The political institutions provided for in the Good Friday Agreement were designed to be inclusive in membership and to operate according to safeguards which would protect the rights and interest of all sides of the community.
2. Parties to the Agreement committed to partnership government, equality and mutual respect. They also acknowledged as equally legitimate the differing political aspirations which exist.
3. They also accepted that the various institutions are "interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on that that of the other"
4. The issue of size of the Assembly therefore must be considered against the broader context within which all the institutions function.
5. The 108 members of the Assembly are drawn from 18 constituencies. In opting for 108 it was anticipated that this would guarantee nationalist and unionist representation in most constituencies.
6. A breakdown in the current Assembly membership shows that all but 3 constituencies have elected representatives from both unionist and nationalist parties.
7. Nationalist parties have no elected representative in two constituencies - East Belfast and East Antrim.
8. Unionist parties have no elected representative in one constituency – West Belfast.
9. Although the Good Friday Agreement was endorsed in referendum 12 years ago, the institutions have only existed in continuous operation during this current Assembly term. While the institutions appear relatively stable there is clear evidence that some elected representatives and some of the political parties which are party to the Executive are not fully supportive of inclusive partnership government.
10. Some elected representative remain opposed to the safeguards built into the institutions to ensure all sections of the community have a stake in government and that their rights are fully protected.
11. These same representatives continue to oppose the expansion of power-sharing to local government structures.
12. Any reduction in the number of MLAs will impact on the unionist/nationalist representation split within the various constituencies. It may also alter disproportionately the sharing of Ministerial portfolios between unionist and nationalist parties, and potentially lead to a reduction in the North/South dimensions of the institutions.
13. Sinn Féin believes that any consideration of the size of the Assembly should take place within a broader context including the consolidation of power-sharing both at Stormont and at local government level, an assessment of the application within the institutions of safeguards to protect the rights of all sections of the community, and an analysis of progress in the expansion of North/South co-operation as envisaged in the Agreement.
14. Sinn Féin believes that, for the foreseeable future, the size of the Assembly should remain at 108 members.
15. Sinn Féin supports the retention of the provisions for the appointment of Ministers as set out in Section 16A-16C of the NI Act 1998.
Mr Jimmy Spratt
Chair of Assembly and Executive Review Committee
11 October 2010
Dear Chairperson
The SDLP notes the legislation currently being debated in Parliament on the reduction in the number of constituencies from 18 to 15, although the Party is not convinced such a reduction is in the best interests of the North of Ireland. We would however be happy to discuss the possibility of reducing the number of MLA's from 108 to 90.
With regard to the appointment of Ministers, the SDLP opposes any departure from the principles of power sharing. We do not support the changes made in the St Andrew's Agreement Act 2006 on the appointment of the First and Deputy First Minister, and remain unconvinced that there is any need to depart from the provisions of the Good Friday Agreement or the Northern Ireland Act 1998.
The SDLP is open to a discussion on the number of departments in the context of an overall review but believes that such discussions should take into account the size of the Assembly which would be expected to scrutinise them and must be rooted in the principles of power sharing and parity of esteem.
Yours sincerely
Conall McDevitt MLA
SDLP – South Belfast
Thank you for the opportunity to comment on the future size of the Assembly and Sections 16A – 16C of the Northern Ireland (Act 1998) as amended by the Northern Ireland (St Andrews Agreement) Act 2006.
My comments are as follows …
The Belfast Agreement set the size of the Assembly at 108. This was specifically designed to allow the maximum possibility of small parties being represented. Now that politics is settling down in Northern Ireland, I believe it is time to reduce the size of the Assembly to the level of 90 members. In 1998, this latter figure was considered to be the optimum level of representation and I believe the Assembly should be set at that size.
It is my belief that the authority of the post of First and Deputy First Minister is diminished by not having the democratic support of the Assembly. It is understandable that in 2006 it was felt necessary to amend the system set out in the Belfast Agreement. St Andrews Agreement and the subsequent amendment of 16C (6) moved substantially away from the spirit of the Belfast Agreement. It is my belief that the post of First and Deputy First Minister should clearly be a joint post, and should be jointly elected through a democratic vote in the Assembly.
Yours sincerely
Alan McFarland
The Belfast/Good Friday Agreement stated that the First and deputy First Ministers were to be elected on a cross-community vote, with Ministers allocated using the d'Hondt method with reference to a party's strength in the Assembly . The Northern Ireland Act 1998 gave effect to this. Sections 16A, 16B and 16C of the St. Andrew's Agreement Act 2006 replaced section 16 of the 1998 Act to create new arrangements for the appointment of the First and deputy First Minister. Under the new section 16A, the First Minister is nominated by the largest party within the largest political designation (Unionist, Nationalist or Other) and the deputy First Minister is nominated by the largest party within the next largest designation. Once these nominations have been made, the d'Hondt procedure for filling the Ministerial offices is run. These procedures take place within seven days following the first meeting of the Assembly after an election .
It [St Andrews Agreement Act 2006] also inserted sections 16A-16C into the 1998 Act which specify how community designation should relate to the procedure of making Ministerial appointments, including the First and deputy First Ministers. For example, it separates the election of the First and deputy First Ministers and allows for them to be nominated by the largest parties in each of the two largest designations in the Assembly.
Mr Jimmy Spratt
Chairperson
Assembly and Executive Review Committee
Room 347
Parliament Buildings
Ballymiscaw
Stormont Estate
Belfast
BT4 3XX
14 December 2010
RT Hon Owen Patterson MP
Secretary of State for Northern Ireland
11 Millbank
London
SWIP 4PN
Dear
You will be aware that the Assembly and Executive Review Committee of the Northern Ireland Assembly has been reviewing the operation of sections 16A to 16C of the Northern Ireland Act 1998.
In particular the Committee has considered, as per 29B(1)(b) of the Act, whether it should recommend that you as Secretary of State should make an order amending the Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made.
At its meeting of the 7th December it was proposed that the Committee should make this recommendation. The Committee divided on this proposal which was subsequently rejected by a vote of 7 Noes and 3 Ayes.
| Ayes | Noes |
|---|---|
| Fred Cobain | Jonathan Bell |
| Conall McDevitt | Paul Givan |
| Declan O'Loan | Simon Hamilton |
| Alex Maskey | |
| Raymond McCartney | |
| John O'Dowd | |
| Jimmy Spratt |
At its meeting of the 14th December a further recommendation was proposed. This was that this Committee agrees to write to the Secretary of State for the removal of section 16C(6) from the Northern Ireland Act 1998. The Committee again divided on this proposal which was supported by a vote of 6 Ayes, 3 Noes and 1 abstention.
| Ayes | Noes | Abstentions |
|---|---|---|
| Jonathan Bell | Alex Maskey | Declan O'Loan |
| Fred Cobain | Raymond McCartney | |
| Tom Elliott | Pat Sheehan | |
| Paul Givan | ||
| Simon Hamilton | ||
| Jimmy Spratt |
The Committee looks forward to your response on its deliberations.
Mr Jimmy Spratt
Chairman
