Wednesday 14 November 2001

Members present:
Mr Shipley Dalton (Deputy Chairperson)
Mr Agnew
Mr McNamee
Witnesses:
Mr F Molloy, Chairperson of the Committee for Finance and Personnel
Principal Clerk to the Committee for Finance and Personnel

1

The Deputy Chairperson: We welcome Mr Molloy to the Committee on Procedures. In January we received a written submission from the Committee for Finance and Personnel in which you expressed a number of concerns. You can advise us whether anything has changed in the interim, and we can consider any additional comments that you wish to make. We will then have questions from Committee members.

2

Mr Molloy: We will deal first with the questions that you sent to the Committee for Finance and Personnel. A copy of our written answers is available to members.

3

Nothing has changed since our initial correspondence regarding the Office of Law Reform (OLR). Because the OLR currently falls within the remit of the Committee for Finance and Personnel, most new legislation has had to come through our Committee. Some of the legislation related to finance but most of it did not. Committee members were often not au fait with the legislation that did not deal directly with finance. The Committee felt that the procedure was moving it away from finance and personnel issues and into areas where it had no direct responsibility. For example, the subject of the legislation could be of greater relevance to the Committee for Health, Social Services and Public Safety.

4

The views of the Committee for Finance and Personnel were formed during a particularly busy period for Bills, some of which did not appear at the time to fall logically to the Committee. The Committee had argued for a reallocation of some OLR Bills to Statutory Committees that appeared to be more appropriate. For example, the Family Law Bill went to the Committee for Health, Social Services and Public Safety to be dealt with. The OLR does fall within the remit of the Committee for Finance and Personnel, but Committee members felt that a mechanism was needed to allow for the reallocation of certain Bills to other, more relevant, Committees.

5

The Committee has reluctantly accepted that OLR Bills fall within its remit but has noted that Standing Order 48 requires the Committee to consult with other Statutory Committees that have an interest in the matter.

6

As long as the OLR falls within the remit of the Department of Finance and Personnel, there is no escaping the Committee's lead role under section 29 of the Northern Ireland Act 1998. The OLR is, however, seen as an orphan body that could equally well have been allocated to, for example, the Office of the First Minister and the Deputy First Minister, and the Committee of the Centre.

7

Account needs to be taken of the heavy workload and wide remit of the Committee for Finance and Personnel, and of the large number of Bills - often technical in nature - that it deals with. The root issue, therefore, is not whether OLR Bills can be allocated to another Committee but whether Standing Order 48 can be strengthened to allow the Committee for Finance and Personnel to more easily delegate substantive parts of a Bill to the relevant subject Committee for input to the Committee report. In the longer term, some consideration needs to be given as to which Department's remit the OLR might properly fall within.

8

We will now consider accelerated passage - an issue in which the Committee for Finance and Personnel has been involved. The Assembly is not hamstrung from considering a Bill in less than 10 days, but that would require a suspension of the relevant Standing Orders - something that is not unknown in Westminster, where the Government have taken urgent Bills through in a day. It may, nonetheless, be sensible to provide a formal mechanism whereby appropriate Bills could be taken through an urgent procedure. Care would be needed to ensure that any change in the Standing Orders would not afford the Executive absolute discretion to unilaterally decide to short-circuit the legislative process, thus denying Assembly Members the opportunity to scrutinise Bills.

9

The Committees have an important role to play, and it is important that there be proper scrutiny of all Bills by the relevant Committees.

10

It is acknowledged that if there were proper and early consultation, and Committees had early input into the financial and budgetary processes in particular, then the final agreement of the Budget would, to an extent, be a rubber-stamping exercise. That is the key point. There is a need to guard against giving the Executive a blank cheque. One safeguard would be if the Chairperson of the Committee for Finance and Personnel could give the go-ahead for the accelerated passage until an appropriate scrutiny process is put in place.

11

There has been some confusion about the Budget process and the procedure for Budget Bills. The Department of Finance and Personnel accepts that the relatively recent change to Standing Orders initiated by the Executive Committee is not entirely satisfactory. The sole purpose of the Budget Bill is to provide legal authority to appropriate sums already agreed by the Assembly out of the Consolidated Fund - the rubber-stamping that I mentioned earlier. The Bill does not allocate funds - that aspect is properly dealt with in the Assembly's scrutiny of the Budget and during the debate on the Supply resolutions.

12

I expect to see the Supply resolutions come before the Assembly in advance of the Bill's introduction, so that the figures contained in the Bill can mirror the decisions of the Assembly. Much the same rationale governs the procedures in Westminster, Dáil Éireann and the Scottish Parliament. In the Assembly, any subsequent amendments to the Budget Bill require a recommendation from the Minister of Finance and Personnel under section 63 of the Northern Ireland Act 1998.

13

On the subject of the leave required for accelerated passage, it does not seem sensible to allow a single dissenting voice to prevent accelerated passage. Replacing that requirement with one for a majority vote might provide some reassurance that an urgent Bill would become law in good time.

14

We could consider various options, but the main issue is leaving the Committee the right to prevent accelerated passage if safeguards are not met and we do not have earlier input into future decision-making.

15

Regarding the Committee Stage, the recent change in Standing Orders allowing Committees to establish one subcommittee without the need for Assembly or Business Committee approval is helpful and will allow Statutory Committees more discretion in how they proceed with their diverse workload.

16

It is not correct to say that the Committee Stage of a Bill should be purely a matter of technical scrutiny. The purpose of the Committee Stage is to take evidence on the Bill, and its policy context, and to report the Committee's findings and recommendations to the Assembly. It is helpful that the guidance requires Departments to consult Committees at the policy development and draft Bill stages. That should ensure that the Committee Stage holds fewer surprises and runs relatively smoothly.

17

The Second Stage of the Bill is when the Assembly debates its principles - not when it signs up to all the policies in it. The degree of pre-introduction consultation on Bills has steadily improved, particularly in relation to OLR Bills. There is always room for improvement, however, and when OLR Bills deal with issues that cut across several Departments, it is important that those Departments be consulted as well. There is some doubt as to whether that has happened to date on all the Bills which have passed through the Committees.

18

It does not seem to be appropriate to create Standing Orders, going beyond the rules of procedure for the Assembly, to require Departments to submit a draft Bill before introduction. That is in any event already a requirement in the guidance agreed between the Assembly and the Office of the First Minister and the Deputy First Minister, which was issued to the Departments.

19

The Scottish system is based on the European model, where the first formal legislative stage is the Committee Stage. The Assembly's legislative process is largely based on the Westminster model but differs substantially at Committee Stage. Assembly Bills, like Westminster Bills, come into the possession of Members after their introduction. Under Standing Order 28, Bills cannot be introduced without the Speaker's consent.

20

I now come to the 30-day rule and the reduction in the interval between the stages of a Bill. The Executive Committee's proposed reduction in the time between Bill stages from a minimum of five days to a minimum of four days would allow Bill stages to be taken on consecutive weeks and would reduce the total time needed to take a Bill through the legislative process.

21

A number of Assembly Members have complained that five days are insufficient. The proposal seems to be at odds with the Executive Committee's desire to provide a longer period between the deadline for amendments and the start of the Consideration Stage or the Further Consideration Stage. The convention at Westminster is to allow a minimum of 10 days. A greater degree of legislative planning by the Executive Committee, allied to the change to drop the five-day rule between the Second and Committee Stages, would have a similar effect.

22

There must be a sufficient period between the Further Consideration Stage and the Final Stage to allow the Speaker time to consider a Bill under section 10 of the Northern Ireland Act 1998. The problem with the five-day rule between the Second Stage and the Committee Stage is that it effectively reduces the 30-day period for a Committee Stage to 25 days. It would be sensible either for the rule not to apply between the Second Stage and the Committee Stage or for the 30-day period to commence after the five days. My Committee is strongly of the view that 30 days are totally inadequate for the purposes of a Committee Stage. That view is supported by the almost universal requests for extensions.

23

On the subject of separate committees to consider subordinate legislation, it should be noted that the power to approve relevant subordinate legislation rests with the Statutory Committees under the Belfast Agreement and section 29 of the Northern Ireland Act 1998. The suggested establishment of a subordinate legislation committee would not interfere with the role of Committees to consider the policy issues underpinning a statutory rule, and it is probably designed to reflect the change in local democratic accountability and procedures elsewhere. The principal concern underlined in the proposal is that the role of the Examiner of Statutory Rules was more appropriate during direct rule.

24

There are a number of practical difficulties, which the Committee may wish to bear in mind. First, a new Examiner of Statutory Rules has just been appointed, and any move to dispense with the role so soon would raise concerns and uncertainty about the Assembly's strategy. Secondly, it is debatable whether Members would have the legal competence to conduct a technical scrutiny of statutory rules. The proposed committee might have to work under the guidance of the new Examiner. It is currently universal practice for Committees to delegate the technical scrutiny of statutory rules to the Examiner. A form of words has recently been prescribed for that purpose.

25

I wonder how many Members would be interested in serving on such a committee, and whether it is getting close to the point where we would not have enough Members or the time to create a committee that would be faced with handling over 500 statutory rules in a year. That might be a problem in the future.

26

We now move to the authority of a Committee to make amendments to Bills. The powers and roles of Committees are set out in paragraphs 9, 26 and 29 of the agreement, and section 29 of the Northern Ireland Act 1998. Section 13(b) of the Act requires that Standing Orders shall include provision for Members to consider a Bill and vote on the details. I wonder whether this suggestion would find much support in Committees or from the Executive Committee. Statutory Committees have a wide range of responsibilities, which place a huge burden on their time and resources. Standing Committees at Westminster have a single focus and purpose, and the membership of the Minister and the Opposition spokesman ensure that appropriate advice on technical and legal issues is always available to inform Committee decisions. The inbuilt Government majority on Standing Committees also ensures that the damage that might otherwise be done to Government Bills is minimised.

27

In the Scottish Parliament, Ministers can be members of Committees, and any Member can attend and participate in a Committee meeting. These safeguards are not a design feature of the Assembly's procedures, where the potential for Committees to be adversarial might lead to a Committee reporting a Bill to the Assembly that was changed beyond redemption at Consideration Stage. That may not make for good law-making, particularly as Committees currently have no access to drafting and policy support on potential amendments.

28

The role of Committees in primary legislation is already extensive at policy development, draft Bill and post-introduction stages. That role can be used to great effect, but the Assembly retains the power to legislate. The effect of the proposal might be to swing the balance away from the Assembly as a legislature towards a Committee-driven system.

29

On human rights issues in Bills, Committees expect that all Executive Bills will have been fully equality and human rights proofed. Indeed, a Bill would not be competent for introduction under section 6 of the Northern Ireland Act 1998 if it did not comply with the European Convention on Human Rights. Under section 10, the Speaker has a statutory duty to scrutinise every Bill before introduction to ensure that it is competent and that, where appropriate, the Secretary of State has consented.

30

Standing Order 28 requires the Minister or Member in charge of a Bill to submit a statement in writing to the effect that in his or her view the Bill would be within the legislative competence of the Assembly. The statutory requirement to copy every Bill to the Northern Ireland Human Rights Commission, and its role to provide advice, whether requested or not, will help to ensure that human rights are effectively addressed.

31

Concern has, nevertheless, been voiced by the Northern Ireland Human Rights Commission about the sufficiency of Assembly Standing Orders in that regard, particularly on the absence of a specific human rights committee. Whether the special Committee on Conformity with Equality Requirements is a Standing Committee or a Statutory Committee - as suggested by Northern Ireland Human Rights Commission - it is essential that its members have the relevant expertise and advice. Assembly Members and Committees do not have the legal expertise to determine whether a Bill, or proposed amendments, is legislatively competent. Some training in that area would be welcome. Committees must also have access to independent legal advice on competency issues when drafting proposed amendments.

32

There were a number of other issues raised. There was some concern about the need to replicate the procedure at the Consideration Stage, and proposals have been made that the Further Consideration Stage should be an opportunity to vote on consequential amendments only. It has also been proposed that an automatic Further Consideration Stage should not apply when no amendments are tabled after Consideration Stage.

33

Issues have been raised in relation to that in the past. When a Committee wanted to make a comment but had no amendments to make, the comments were, on occasions, ruled out of order, and no commentary was allowed. However, on other occasions the Speaker, at his discretion, allowed comments to be made. There was a question mark over whether Committee Chairpersons or members could comment without proposing an amendment. A Committee may well wish to make a comment, or raise an issue, without wanting to amend the Bill.

34

The Principal Committee Clerk (Finance and Personnel): There is a procedural issue there. When a motion is before the House, the Member speaking must speak to that motion. The current arrangement whereby a Committee is being facilitated to give its general comments on a Bill in a stand part debate does appear to be at odds with the procedural requirement. The Standing Orders provide, at both Consideration Stage and Further Consideration Stage, for Members to consider and vote on the details of a Bill.

35

It is a requirement when Members are to vote on a matter that they have the opportunity to debate it. There have been issues in the past about whether a Committee, or a Member, would be required to table a probing amendment in order to speak to a clause stand part. The Committee would need to consider that in light of the rights and privileges of Members.

36

Mr Molloy: It does not seem to be desirable or procedurally appropriate to require the Assembly to automatically consider and vote on the details of a Bill twice where no amendments have been made - that is, at both Consideration and Further Consideration Stages.

37

The Committee may wish to consider whether it wishes to recommend that the Assembly should not be asked to consider the same Question twice on an unchanged clause or schedule to a Bill. To do so risks the possibility of a different group of Members present at the Further Consideration Stage overturning a decision properly taken by other Members at a previous stage, thus potentially rendering a Bill ineffective and unworkable at a point after which no correcting amendments can be considered.

38

It is not clear why such provision was created. The procedure of the Assembly on stand part is similar to that at Westminster, where the details of a Bill are voted in during the Committee Stage. At each subsequent amendment stage, the Question is only put on amendments. It must be permissible for an amendment to be tabled at Further Consideration Stage, consequent to an undertaking given by the Minister or Member in charge of the Bill during the debate at Consideration Stage on a probing amendment. That is a normal part of the process elsewhere, and not to do so would significantly reduce the ability of Members to persuade a Minister during the debate to bring forward an appropriate amendment, should the Member withdraw his own. The current arrangement, which requires a Further Consideration Stage to consider again the details of a Bill when no amendments have been tabled or selected, is unsustainable.

39

On the matter of referral to the Speaker after the Consideration Stage, the purpose of referring a Bill to the Speaker is to allow him to assess its legislative competence and whether to refer the Bill to the Secretary of State under section 10 of the Northern Ireland Act 1998. The consequential change to leave out the requirement after the Consideration Stage was missed last July with the introduction of a Further Consideration Stage.

40

On the issue of Committee Chairpersons speaking to Committee reports at the Consideration Stage, it has been suggested that Committee Chairpersons should be allowed to make a short introductory statement at the commencement of the Consideration Stage of the Committee's report. That is dealing with the issue where no amendments are being made, which we have already covered.

41

That concludes our comments on the issues that we were asked to consider. However, I understand that we have been notified of two additional items.

42

The Principal Committee Clerk (Finance and Personnel): The Clerk advised me today of two additional issues that you might want to raise. One was a potential proposal to create an additional legislative stage, after the First Stage, at which the Bill would be referred to the Committee for a consideration of its principles. The Committee has had little opportunity to brief the Chairperson on that, so the views that I express might need to be edited.

43

There are advantages of creating an additional legislative stage. The idea was prompted by a visit to the Scottish Parliament, but we must be careful. The Scottish legislative system is based entirely on the European Parliament model, not just in the sense that Bills there go immediately before a Committee, but in every other respect. That system, therefore, hangs together as whole. The Committee should be wary of adopting a proposal simply to transplant one feature of the Scottish system onto our own. Our system is based on the Westminster model, and the only significant differences are in the way in which the Committee Stage is run and in the existence of a reconsideration stage. Otherwise, our system is identical to Westminster's therefore the two do not run together.

44

The only apparent advantage of such a proposal would be that it might give the Committee more time to examine a Bill. However, provision is made in the agreed guidance for Departments, to the effect that Departments are required to consult Committees at the policy development stage and at the draft Bill stage. Committees, therefore, should not be faced with any surprises when a departmental Bill is introduced. They should have a close knowledge of the Bill and should not need a specific stage in which to discuss the principles of the Bill.

45

There are specific disadvantages of creating an additional legislative stage. Section 13 of the Northern Ireland Act 1998 requires Standing Orders to have at least three legislative stages, one of which gives Members the opportunity to vote on the general principles of a Bill. The proposed additional stage would not fulfil that requirement, because it would involve Committee members only. The additional stage would therefore be a clear duplication of the Second Stage that would still be required under the 1998 Act.

46

An additional stage would add several weeks to the legislative process without creating any additional value. Committees need extra time at the Committee Stage, when they are required to consider the details of the Bill, take evidence and produce a report of its recommendations within 30 calendar days. We understand that the Committee on Procedures may be making some recommendations on that time limit.

47

The Second Stage gives the Assembly the opportunity to kill a Bill either by voting against the standard motion that the Second Stage of the Bill be agreed or by tabling a reasoned amendment. I know from my experience as Clerk of Bills that there have been no problems at the Second Stage. The principles of a Bill have been covered satisfactorily at that stage, through the Minister's speech and the opportunity for Members to ask questions on the Bill. As I said, the Scottish system differs from ours in many respects therefore we should be wary of transplanting a part of it onto a Westminster-based system.

48

The Deputy Chairperson: Thank you. You have covered many of the important points. The Committee members will ask some questions.

49

Mr Agnew: Mr Deputy Chairperson, when you said that all the questions had been publicly answered, I thought that you were speaking tongue-in-cheek. However, we have had detailed answers to all our questions therefore I have nothing to add.

50

Mr McNamee: I will not let you down. The Committee felt that 30 days, let alone a reduced period of 25 days, was inadequate time for the Committee to scrutinise the Bill. It has been suggested that the Committee Stage of a Bill should be used for technical scrutiny, and that the Committee should scrutinise a Bill's policies before it is introduced to the House. What opportunity for this type of pre-introduction scrutiny has your Committee had, or carried out?

51

Mr Molloy: Our main problem was the flow of Bills. At one point, three Bills came to the Committee simultaneously and, as a result, we carried out little, or no, prior consultation on that legislation. It could be argued that some of those Bills were in the system before the Assembly took over, and that they were therefore rushed through more quickly than they would have been under normal circumstances. There was no prior consultation or opportunity for the Committee to scrutinise the Bills to the required extent.

52

When the Committee receives more than one Bill at once, it is impossible to scrutinise them all within the 30-day period. It is particularly difficult when the Committee must consult with other Committees on parts of the Bill. Some OLR Bills relate to matters that are outside the remit of the Committee for Finance and Personnel. So if a Bill contains health issues, for example, the Health Committee must be asked to give its opinion on the relevant sections of that Bill. The speed with which our Committee can produce a final report depends on how quickly other Committees return with their recommendations.

53

To date, we have had to ask for extra time when scrutinising the Bills. With one Bill, we did not need that extra time, but if we had needed more time and had not applied for it, we would not have been able to produce a proper report on it at the end.

54

The Principal Committee Clerk (Finance and Personnel): Some background issues must be taken into account. At the beginning of the Assembly's operation, a huge number of Bills came before the Committee. At the beginning of the Assembly they all went to the Committee for Finance and Personnel, which was also dealing with the Budget at that time. The Committee found that many of the Bills were esoteric in their subject matter. The Ground Rents Bill, for example, was a technical piece of legislation therefore that put the Committee under huge pressure.

55

Many Bills had existed as Orders in Council for some time. Consultation on them had already been carried out, and they were brought forward because there was a desire to get some Executive business before the Assembly. An important factor was the Executive Committee's failure to manage its legislative programme and to consider the burden that it was placing on an individual Committee. The Committee specifically commended the Department for the pre-introduction consultation that it had carried out on one of the recent Bills that came to the Committee from the OLR.

56

In addition, the guidance to Departments that was agreed with the Assembly was not in place during the early days of the Assembly, therefore they would not have been obliged to take that into account. That is improving across the Assembly, however, there is room for further improvement.

57

Mr McNamee: What are your Committee's views on enabling Committees to amend a Bill at the Committee Stage?

58

Mr Molloy: That was dealt with in the reply to question 6. The Committee could amend it and make recommendations in that regard.

59

Mr McNamee: In regard to human rights, you said that a Minister when introducing a Bill must make a statement on its competence. The Speaker, having received advice, will make a statement on that. Before the Final Stage, if there have been any amendments, the Speaker will satisfy himself of the Bill's competence.

60

However, the Northern Ireland Human Rights Commission made the point that, although a Bill may be technically competent, if there are insufficient safeguards in the shape of guidelines and training, its application may result in human rights being infringed. For that reason the commission asserts that there should be a Standing Committee on human rights to examine the human rights aspects of each Bill coming through.

61

There is a fairly rigorous system to examine whether a Bill is competent. However, the Human Rights Commission felt that there was potential for humans rights infringement in the application of a Bill, even if, technically, it was competent under human rights legislation. What is your Committee's view on the creation of a Standing Committee to deal with the human rights aspect of Bills?

62

Mr Molloy: That was among the questions that arrived just today, so the Committee has not had the opportunity to form an opinion on it.

63

Our only concern is that any Committee set up to scrutinise human rights aspects would need to be competent to do so. Without detracting from the ability of any Committee's membership, one cannot establish a Standing Committee, and grant it authority over human rights issues, with its views to be taken as guidance by other Committees, unless its members are competent to deal with such matters. If other Committees are to take seriously and stand by the recommendations made by such a Standing Committee, it should not be a case of parties simply nominating members to sit on it.

64

The advantage would be that, while not meeting in full the Human Rights Commission's request for a Standing Committee, this proposal would address some of its concerns. The disadvantage is that, under the Northern Ireland Act 1998, all Bills must be declared to be legislatively competent before their introduction. That role falls to the Speaker. The role of a Standing Committee would be to advise the Speaker, who would still have the final say before a Bill reached a Committee.

65

Additional safeguards are contained in the Act and in Standing Orders. The Act requires that all Bills be referred to the Human Rights Commission, therefore it has the final say in regard to human rights legislation. Its recommendations will be sought.

66

We received comments from Brice Dickson on several recent human rights issues relating to Bills. Committee members had thought that human rights infringements were contained in, for example, the Rent Act, that could have a knock-on effect. However, the Human Rights Commission disagreed. That safeguard provides the opportunity to raise such matters with Brice Dickson.

67

The commission will proof all Bills on human rights and equality issues before the introduction of the Act. That advice therefore will come from people who are competent to deal with such issues, who have examined the legislation and then given an authoritative response. It will not be a layman's opinion.

68

The Deputy Chairperson: Does the Committee think that accelerated passage has worked? What improvements could be introduced to remove accelerated passage in regard to Budget proposals?

69

Mr Molloy: The Committee's initial concern in regard to accelerated passage was that it was rushed through. The Department of Finance and Personnel said that a 30-day period would not allow it enough time to deal with the Budget and have its final vote in December, so as to allow other Departments to draw down money and spend it, therefore releasing them in a way. However, if the 30-day period of scrutiny by the Committee is taken away, a Minister could simply say that he planned to railroad the Bill through, regardless of the Committee's opinion.

70

The mechanism has been beneficial because it allows the Committee, if it is not satisfied that proper scrutiny and consultation has taken place, to delay the process beyond the 30-day period. The problem is that that has not yet been bedded in. Procedures must be put in place. We hope that the Budget trail will start in April, allowing for more scrutiny of the bidding process and for matters to be considered between then and the summer recess. That would mean that Members would have more time to consider matters before the summer, instead of being under pressure to deal with them in September.

71

The Principal Committee Clerk (Finance and Personnel): The Committee's problem with the accelerated passage of Budget Bills is not one of time constraints. Time is an issue for the Executive, because they want the Bill to go through quickly so Departments have money to spend on public services.

72

The Committee's issue is whether or not 10 days is an appropriate period for the standard process. It is odd that in those 10 days there must be two legislative stages for amendments. It is impossible to have a Further Consideration Stage within that time. Members would not have the opportunity to table amendments.

73

Section 63 (1) of the Northern Ireland Act 1998 states that

"The Assembly may not pass a vote, resolution or Act to which this subsection applies except in pursuance of a recommendation which -

is made by the Minister of Finance and Personnel: and

is signified to the Assembly by him or on his behalf."

74

Under section 63, therefore, any amendment to the Budget Bill must have a recommendation. The corollary of that is that any amendment to the Budget Bill must come from the Minister of Finance and Personnel.

75

Budget Bills are different from any other. Other Bills contain a policy of proposal, and a way of delivering that proposal. The Budget Bill does not; it delivers policy proposals that are agreed by the Assembly through Committees and scrutiny of the Budget processes. It also details the exact figures that were agreed by the Assembly in the Supply resolution. The Budget Bill simply provides the legal authority to appropriate the funds that were previously agreed by the Assembly.

76

One wonders whether there is any purpose to an amendment to a Budget Bill when the Assembly has spent some considerable months deciding on its policies and allocations. Besides, section 63 states that there cannot be a vote on an amendment without a recommendation by the Minister. The issue is not just with the accelerated passage of Budget Bills, but with the process itself.

77

Mr Molloy: We must ensure that there is early consultation on Budgets, and Standing Orders may have to be examined in that regard. The Consideration Stage of a Bill, after it has been to a Committee, is the final stage of a Bill. As Mr Rogers says, there is no opportunity to amend a Bill by that time. Only the Minister may table an amendment at that stage. We want involvement in consultation at an earlier stage so that when one Budget ends, consultation for a new one begins. The same issues come up with other Committees. Committees could then scrutinise the bidding process and the final Budget. When the Budget Bill is published, it should have been agreed.

78

The Deputy Chairperson: You mentioned that there are different departments within the OLR. At what stage should the Bills be allocated to other Committees? After the Bill has been introduced to the Assembly or at a pre-consultation stage?

79

The Principal Committee Clerk (Finance and Personnel): Mr Molloy dealt with that point. Under the agreement on the allocation of responsibilities to the 10 Departments of 18 December, the OLR, regrettably, fell as an orphan body to the Department of Finance and Personnel. The Committee for Finance and Personnel has a clear obligation as the lead Committee for all OLR Bills.

80

The difficulty is not that the Committee has that lead responsibility. OLR Bills deal with civil law issues, which, by their nature, are esoteric. They are not naturally related to finance or personnel issues - the Family Law Bill was a good example of that. The issue is to ensure that Standing Orders provide for a smooth process to allow those Bills to be allocated, not away from our Committee, but to other Committees so that they can provide input into areas that they have an interest in. Standing Order 48 provides the mechanism for doing that, but the Committee had great difficulty in getting the Committee for Health, Social Services and Public Safety to accept its role in the Family Law Bill, for example. The Committee for Finance and Personnel remains the lead Committee because of its policy responsibility for OLR.

81

Mr Molloy: The main point is the allocation of responsibility. OLR Bills are brought before us because we remain the lead Committee. Instead of pleading with other Committees to respond to a Bill, there should be a mechanism by which they would respond. There were difficulties with that because other Committees were dealing with different Bills at that time and did not want to take on any more issues. There are two sides to that: to carry out a full consultation and produce a proper report, we must get responses from those who are dealing directly with issues that are contained in the Bill itself. In this way, Committees with interests in aspects of the Bill would respond when it is introduced.

82

The Principal Committee Clerk (Finance and Personnel): It is to be regretted that workload is not an issue. The Department of Finance and Personnel is responsible for all OLR Bills. It takes the lead, but we must be reassured that other Committees will take responsibility for matters in the Bill that fall within their interest. Standing Order 48 provides for that, but the Business Committee must rule if there is a disagreement. That was a difficult issue for at least one Department.

83

Mr Molloy: Many members of the Finance and Personnel Committee Members believe that the OLR should not be affiliated to the Department of Finance and Personnel. However, it is affiliated therefore the Committee is responsible for OLR Bills. If we reflect the Committee's views when realigning the Committees and Departments, it will be clear that some consideration should be given to the question of the Department to which the OLR should be affiliated.

84

The Deputy Chairperson: Thank you for your presentation, it was useful.

Wednesday 7 November 2001

Members present:
Mr C Murphy (Chairperson)
Mr Dalton (Deputy Chairperson)
Mr Agnew
Mr McNamee
Mr A Maginness

Witnesses:
Prof B Dickson ) Northern Ireland Human
Rights Commission
Ms D Magill )

85

The Chairperson: I welcome Prof Brice Dickson and Ms Denise Magill from the Northern Ireland Human Rights Commission to the Sub-Committee of the Procedures Committee. We have been engaged in gathering evidence and considering the legislative procedures of the Assembly for some time now. We have taken evidence from a number of individuals and interests. We received your submission in May into the proceedings of the Assembly and what you consider to be deficiences in relation to human rights. We wish to discuss that evidence, ask questions and hear your views on it.

86

Prof Dickson: Thank you, Chairman, for the invitation to attend. I am accompanied by Ms Magill, who is one of the research workers in the Human Rights Commission.

87

Our written submission and our comments today are based on the principle that legislative bodies around the world have a responsibility to adhere to internationally accepted human rights standards. Such bodies need mechanisms in place to facilitiate that. In examining the procedures currently adopted in the Northern Ireland Assembly - comparing them with the mechanisms in place elsewhere in these islands and, indeed, further afield - we have come to the conclusion that there are certain deficiences.

88

The first deficiency is that there is a lack of opportunity for the pre-legislative scrutiny of Bills. In other jurisdictions, draft Bills are circulated for comment before they are debated in the legislature. However, that is not the practice here. We regret that because any such pre-legislative consideration within the public domain would provide an opportunity to have human rights considerations dealt with.

89

Secondly, in the legislative procedures in the Assembly, even after the amendment to Standing Orders to allow for a Further Consideration Stage, there is not enough opportunity for Members of the Assembly to suggest amendments to Bills. Obviously, that point relates to all amendments, but the Human Rights Commission's particular concern is with those amendments dealing with human rights issues.

90

The third deficiency - and probably the most important for today's purposes - is that we do not think that there is any Committee in the Assembly that is sufficiently tasked with the responsibility of proofing legislation from a human rights point of view. There is a Committee of the Centre, but its terms of reference, while very numerous, do not seem to be general enough from a human rights point of view. They relate to specific topics such as freedom of information, victims and women's issues. We also know that there is an Ad Hoc Committee on Conformity with Equality Requirements, which - correct me if I am wrong - has not yet been convened.

91

In addition, there is the possibility of the Standing Committees that shadow Departments looking at Bills from a human rights point of view. They can, and do, do that. I have appeared before such Committees to make representations on human rights issues. In our submission we are not recommending that those Committees should cease to have the power to look at Bills from a human rights standpoint. We are, however, recommending that a special committee on human rights should be set up. It would replace, and expand, the remit of the Ad Hoc Committee on Equality. The main task of the proposed committee would be to look at all Bills coming before the Assembly. No Bill should be permitted to proceed to Royal Assent unless that committee has certified that it complies with human rights and equality requirements. The committee should be a standing committee, and it should have other functions apart from the proofing of legislation. For example, it should have the power to investigate human rights issues along the same lines as the recently formed Joint Committee at Westminster.

92

Those, in a nutshell, are our concerns - the deficiencies that we have identified in the current procedures, and our suggestions for rectifying them.

93

The Chairperson: Committee members would now like to go over some of the points in your submission. I understand that you are saying that Committees should still retain their responsibility for the human rights proofing of legislation. There is a concern, given that it is such a fundamental issue, that human rights should be bedded throughout all Committees in the Assembly. However, if a particular committee were to be set up with that responsibility, other Committees might, very quickly, pass on any aspect of human rights proofing to it, rather than duplicate what another Committee may do. A small core of Assembly Members would become proficient in, and tuned in to, those sorts of issues, but sensitivity to human rights and equality issues might well bypass the broad membership of the Assembly. That concern has been raised with us. Do you think that such a situation could arise?

94

Prof Dickson: We have considered that concern, and there is something to be said for it. However, it would not be serious enough to defeat what we are recommending. We want the new committee on human rights and equality to have a broad remit. It would not, therefore, just be looking at draft legislation, although that would be an important part of its function.

95

From a human rights point of view, the implications of legislation can be both numerous and serious. It would therefore be appropriate to have more than one mechanism available to the Assembly to study those implications. Individuals on the committee for human rights and equality may well build up an expertise in that area, but that would not preclude them from using such expertise when serving on other Committees. We would not be worried that those individuals might gain such a special expertise that other MLAs would deem it unnecessary to speak about human rights when considering Bills on other Committees. At Committees to which we have given evidence, we have found MLAs to be well informed about human rights issues. We expect that to continue to be the case. We recognise your concern, but we do not think that it is a serious enough problem to undermine our proposals.

96

Mr Agnew: Under the Assembly's Standing Orders we have the power to direct the Committee of the Centre to consider other related matters. Do you not, therefore, consider that the Committee of the Centre, under direction of the Assembly, could fulfil the role?

97

Prof Dickson: We considered that option on page 22 of our report. We concluded that the remit of the Committee of the Centre was already very broad and that to extend it to include all human rights matters would overload that Committee.

98

If we could be persuaded that the tasks before that Committee were not as onerous as they appear to be from its terms of reference, then we could look again at our proposals. International experience, as well as the experience elsewhere in the United Kingdom and Ireland, would suggest that a dedicated committee dealing with human rights and equality is the best way forward. I would like to refer to the examples of Wales and Scotland. Earlier this week representatives of the Northern Ireland Human Rights Commission met with some members of the Equal Opportunities Committee in the Scottish Parliament. We learnt a lot about how they operate, and Ms Magill can tell us more about that.

99

Ms Magill: We met the Convenor, deputy Convenor and a member of the Equal Opportunities Committee of the Scottish Parliament, and the meeting was instructive. They have been visiting the Northern Ireland Assembly, so perhaps some of you have met them. They are like the reverse side of our coin - they do not have devolved power to deal with equality, but they do have an Equal Opportunities Committee. We have equality devolved, but we have no dedicated committee. We agreed that if we could each have what the other has, and put them together, that would be the best approach.

100

Despite not having that devolved power, they have found - and they have had to work quite hard at it - that their permanent status, and the fact that they have been able to build up a degree of expertise and standing within the Scottish Parliament, has resulted in their having considerable success in having amendments to Bills accepted by the Parliament. One example is the work that they have done on the Housing (Scotland) Bill in relation to inheritance of tenancy for same sex partnerships. That had not been considered in the Executive's initial Bill. However, an amendment was finally accepted as a result of the work of the Equal Opportunities Committee.

101

The Committee used its power of inquiry to conduct an extensive report on gypsy travellers in Scotland. It went out and about, carrying out consultation on the ground, as well as paper consultation exercises. It is using its powers widely. The Committee initially found that difficult because it was never the lead Committee on a Bill and did not know where it fitted in. Things have begun to bed down in the Scottish Parliament, and the Committee is now seen as an integral part of the consideration of every Bill. Its reports are carefully considered by the lead Committees. Those are helpful and practical examples of how that Committee has progressed its work.

102

The Chairperson: Are there an equality commission and a human rights commission in Scotland, to which Bills must be referred?

103

Ms Magill: Scotland does not have a human rights commission. However, the Scottish Executive are currently consulting about the possibility of establishing a commission. Instead of a harmonised equality commission, there is an Equal Opportunities Commission, a Commission for Racial Equality and a Disability Rights Commission. The Equal Opportunities Committee has relied heavily on briefings from those organisations. It has worked closely with them and established good links with the community and voluntary sectors. For example, some local law centres drafted amendments that went into the Housing (Scotland) Bill 2001.

104

Mr Dalton: In your report you suggest that the Scottish Equal Opportunities Committee deals with human rights issues. My understanding is that that is not the case - it is a Committee on equality, and it does not have a remit in relation to broad-ranging human rights issues.

105

Ms Magill: That is correct. However, I asked the Committee what its benchmark was. It referred to schedule 5 of the Scotland Act 1998, which is similar to section 75 of the Northern Ireland Act 1998. The Committee examines a broad range of issues. For example, it investigated social origin in relation to the Housing (Scotland) Bill. It investigates social and economic rights, as well as the traditional areas of equality and non-discrimination. It does not have a specific remit. For example, it does not investigate justice. There are two Committees in Scotland that deal with justice and home affairs. The Equal Opportunities Committee does not have a specific mandate for human rights. However, through schedule 5 of the Scotland Act, it examines issues such as social origin, age and sexual orientation. It therefore covers a broader field than the normal perceptions of equality and equal opportunities.

106

Mr Shipley Dalton: I am not persuaded that it is necessary for a dedicated human rights committee to scrutinise legislation and that that cannot be done effectively by the existing Standing Committees. Why is it necessary to have a specialist committee?

107

Prof Dickson: Problems with legislation tend to recur in various Bills - such as issues relating to a fair hearing and intrusion into private life. It is important that the Assembly adopt a consistent attitude to such issues regardless of the subject of the Bill. Having one committee to deal with those issues, modelled on the Joint Committee at Westminster, would ensure a consistent approach. That would require the development of expertise within the committee. Again, at Westminster, a legal adviser helps the Committee in its work. I have met, and discussed matters with, that adviser.

108

I know that that cuts across, to some extent, what I said in response to the Chairman's question. However, it is appropriate to have both systems - the specialised committee and the retention of the right of the other Committees to look at human rights issues when they want to. Correct me if I am wrong, but I think that that is already the position regarding equality. If the Assembly were to convene the Ad Hoc Committee on Equality, that would not prevent the existing Committees from looking at equality issues in Bills. That kind of model should be applied to human rights.

109

Mr Dalton: You said that the legislation would have to abide by all international human rights standards. Why take that view, rather than the more constraining view that the Assembly is under an obligation to ensure that its legislation is competent - that is, not in contravention of the European Convention on Human Rights?

110

Prof Dickson: The Northern Ireland Human Rights Commission did not actually say that the committee should be under a duty to apply those international standards. We said that the committee should draw upon those standards - some of which, as you imply, are not part of the law applicable in Northern Ireland. They are not binding on either the UK Government or the Northern Ireland Assembly. However, the international standards, beyond those of the European Convention on Human Rights, represent agreed best practice throughout the world, and many of them are standards that the UK Government have signed up to. The UK Government have promised to abide by them and must answer on them when appearing before the various UN committees.

111

At one level, the Government have already agreed to abide by those standards. The Northern Ireland Human Rights Commission thinks - and it is part of our mission statement - that all law, policy and practice in Northern Ireland should seek to adhere to those standards, whether they are strictly legally binding or not.

112

Mr Dalton: If a single human rights committee were dealing with all Bills, would it be possible to separate the human rights issues from the other issues that might arise in legislation?

113

Prof Dickson: Sometimes it would be difficult to do that. That is another reason why we do not want the proposed new committee to have the exclusive right of dealing with human rights issues. The demarcation problem requires the retention of the right of other Committees to look at human rights matters.

114

Sometimes it is possible to separate out human rights issues, and it would be appropriate for those to be dealt with by the human rights committee. I have already mentioned the European Convention on Human Rights article 6 right to a fair hearing and the article 8 right to a private life. Even in our limited experience with Assembly Bills, and with Orders in Council, those rights are the ones that recur most frequently. Other matters, however, may not be so easily separated out.

115

The distinction between human rights and equality issues, which has already been mentioned, can be blurred. Such difficulties mean that hard-and-fast lines should not be drawn between the remits of different Committees. There should be at least one committee that does its best to provide a consistent view to the Assembly as a whole on the human rights and equality implications of legislation.

116

Mr Dalton: The Northern Ireland Human Rights Commission has given evidence on human rights to a number of Committees. You are arguing that a separate committee should be created to specifically deal with human rights issues. You see it becoming a repository of specialist knowledge, and you believe that such knowledge could be applied to all legislation. Why do you feel that a committee should be set up within the Assembly, rather than that the Standing Committees should take the lead, with your body providing specialist knowledge by giving evidence to those Committees? Why do you feel that you are not able to fulfil that task?

117

Prof Dickson: I hope and believe that we are able to fulfil that task. We are simply arguing that the one system does not preclude the other. If the Assembly wishes to be as well informed as possible about human rights issues, we recommend the creation of that special committee - but also the retention of the existing Committee powers. I imagine that, in time, the existing Committees would find it less necessary to deal with human rights issues - they have plenty of other areas to examine - and would cede ground to the human rights committee, to which the Northern Ireland Human Rights Commission would give evidence. I do not view the matter as a choice of one or the other; I see the value of complementarity.

118

Mr McNamee: The Assembly already has a significant number of points at which legislation is examined for compliance with the European Convention on Human Rights. The Assembly's legal office has specialists in that field to advise on a Bill's competence before its introduction. When a Department introduces a Bill, there has to be an accompanying statement about the human rights and equality impact of that Bill. The Department will have taken legal advice on that. The Speaker will then take advice on human rights issues in the Bill, and on the Bill's general competence. A legal adviser gave us evidence about the role of advisers in assisting the Speaker at that stage.

119

As you said, the Statutory Committee's role at Committee Stage is to scrutinise the Bill. If any issue arises in relation to a Bill, Committees can seek evidence from the Human Rights Commission, as they have done on many occasions. Furthermore, any Assembly Member can put down a motion that the Human Rights Commission be asked to advise on a Bill, irrespective of whether that Member sits on the Statutory Committee. Following any amendments to the Bill, the Assembly's legal office will take advice on the Bill's competence, both generally and regarding human rights and equality issues. The Speaker will take legal advice again before the Final Stage. There is therefore quite a procedure when it comes to dealing with Bills.

120

In relation to the Joint Committee on Human Rights at Westminster, which is made up of representatives of both Houses, I accept the point that that Committee's fixed membership and focus on human rights will give it the capacity to develop in-depth expertise in human rights. However, there is already significant scrutiny of human rights issues in the Assembly's current legislative system. If there were a standing committee dealing with human rights issues, how would that committee interact with the Statutory Committee's scrutiny role? It could further complicate the legislative process. Decisions would have to be made as to which Committee would take the lead role in the scrutiny process.

121

Prof Dickson: You have described the various methods currently in place for the protection of human rights. Such methods apply, for the most part, in the other jurisdictions in these islands. In Scotland and Wales, where there is devolution, they are almost identical to what you describe. At Westminster, they are identical except that the Speakers of the House of Commons and the House of Lords do not need to do what the Presiding Officer of the Assembly here has to do. The Ministers have to keep declaring whether the Bill that they are putting forward for debate is compatible with the European Convention on Human Rights.

122

However, at Westminster there is the Joint Committee on Human Rights. It is doing the kind of work that we are recommending should be done by a committee for human rights and equality here. That Committee also does many other things besides scrutinising legislation, and we are recommending that such a committee in the Assembly should have a similar role and cover activities that the existing Committees would not be covering.

123

Reliable though the legal advice to the Speaker and to the Ministers may be, we argue that is important that a committee of Assembly Members be given the opportunity to decide for itself on compliance with human rights standards. We should remember that the Ministers and the Speaker are referring only to the compatibility of the legislation in relation to the European Convention and not in relation to other international standards. We think that it is appropriate for a committee to look at all the international standards, including those of the Convention, so that it can state publicly whether the proposed legislation is compatible with them.

124

Mr McNamee: Although the specific role of the Assembly's legal advisers is to ensure that legislation is compatible with the European Convention on Human Rights, the legal advisers do go beyond that and consider international standards on human rights; they advise on the compatibility of legislation with those standards. That is part of their remit at each Stage of a Bill's scrutiny.

125

Prof Dickson: I was unaware of that. That is interesting.

126

Mr A Maginness: I am trying to understand the system at Westminster. Are you, in fact, suggesting that the Assembly should have a standing human rights committee to examine the human rights implications of legislation, and that all proposed Bills should be channelled through that committee?

127

Prof Dickson: Yes. We would like every Bill to be referred to such a committee as a matter of course. Obviously, the committee would pick and choose the provisions of the Bills that it wished to comment on. Some Bills will have no human rights implications, but others undoubtedly will.

128

Mr A Maginness: That would be a filtering process. If such a committee felt that part of a Bill or the whole of a Bill needed further scrutiny, it would carry out that scrutiny. I felt that the remit of the Westminster Committee was much wider and that it looked at human rights as a broad subject rather than a specific aspect of individual Bills. Not all legislation at Westminster goes before the Joint Committee on Human Rights. In other words, that Committee would consider aspects of human rights in general rather than in the specifics of Bills. I understand that that Committee has considered Bills; it has, for example, considered the Hunting Bill. Does the Westminster Committee have a role beyond the specific scrutiny of Bills?

129

Prof Dickson: Yes it does. The Joint Committee's terms of reference are set out on page 15 of our report. I understand that its work on individual Bills is self- generated. In other words, it decides which Bills it wishes to examine. The Joint Committee takes evidence on them and produces reports for both Houses of Parliament. It is then up to the Houses of Parliament and any Committee of those Houses to make whatever use they wish of the reports.

130

Mr A Maginness: Therefore, it does not quite match your proposal, in that not all legislation is filtered through the Joint Committee on Human Rights. That only happens when its members feel they ought to look at a Bill.

131

Prof Dickson: As far as I understand it, that is the current position.

132

Mr A Maginness: Does the Joint Committee on Human Rights examine broader issues of human rights?

133

Prof Dickson: The Joint Committee does that in addition to its scrutiny of legislation. It has particular responsibilities to examine Remedial Orders, which are Orders to correct any incompatibilities between existing legislation and the European Convention on Human Rights which have been identified by judges. Recently it has exercised that responsibility in the Remedial Order on Mental Health Tribunals.

134

Mr A Maginness: I think I now understand the way in which the Westminster Joint Committee operates. Does it have broader responsibilities than the type of committee that the Northern Ireland Human Rights Commission is proposing?

135

Prof Dickson: The Joint Committee is both broader and narrower. Paragraph (a) of its terms of reference allows it to consider and report on matters relating to human rights in the United Kingdom, with the exception of individual cases. That is a very broad remit indeed. On the other hand, it does not have to examine every Bill, only those which it chooses.

136

Mr A Maginness: Assuming that one was sympathetic to the commission's proposal, would it not be more appropriate to have a model similar to that of Westminster rather than the broader model that is being proposed?

137

Prof Dickson: The commission's objection to that would be that some provisions in some Bills could slip through the net. The existing Committees might not have time to discuss the human rights implications of provisions. If the human rights committee does not call itself in on a Bill, it might miss the opportunity to comment on its provisions. The commission seeks a system that will guarantee the Assembly the best opportunity to consider the human rights implications of a Bill. It is not just a matter of whether each provision is technically compatible with international standards. The question is rather what the overall human rights implications of the legislation are.

138

Mr A Maginness: When you talk about international standards, are you going beyond the European Convention on Human Rights? Do you think that we are bound to comply with international standards over and above the European Convention?

139

Prof Dickson: The Assembly is not bound to comply in strict legal terms with international standards which have not yet been incorporated into our domestic law. I would assert that there is an obligation on the United Kingdom - and on entities within the UK state, including the Assembly - to comply with the standards it has agreed to internationally. These standards are the various UN covenants and conventions; the Convention on the Rights of the Child, for example, and the International Covenant on Civil and Political Rights, upon which the United Kingdom Government were recently commenting at a Human Rights Committee meeting in Geneva.

140

Therefore, to avoid any embarrassment at international level it is incumbent on Westminster and the devolved Parliaments to ensure that the legislation they enact is consistent with the various international standards that the Government have signed up to. That includes other standards, even though they may have not been incorporated into our law.

141

Mr A Maginness: I am thinking about the practical implications of all legislation going through a human rights committee. I can see the wisdom of legislation, which has been identified in the pre- legislative process, being examined, but I am not convinced of the argument that all legislation should go through such a committee. Would you comment on that? It must be understood that there are considerable burdens on Assembly Committees and they find it difficult at times to get through all the work that is given to them.

142

Prof Dickson: I can appreciate that. I can only use the analogy of the Northern Ireland Human Rights Commission. The commission is not under a statutory obligation to examine every piece of legislation proposed for Northern Ireland, only those referred to it by the Assembly. Nevertheless, the commission has decided, as a matter of policy, to examine every proposed piece of primary legislation, including Orders in Council.

143

The commission also tries to look at many pieces of secondary legislation, for the simple reason that if it did not do so, as I said before, some things may slip through the net. It does not require a great deal of time to examine legislation and consider whether there are human rights implications. Many pieces of legislation will not have such implications and therefore will not have to be examined in detail by a human rights committee. The commission would suggest that a systematic filtering process is desirable, appropriate and practicable.

144

Mr A Maginness: Has the Assembly referred many pieces of legislation to the commission for consideration?

145

Prof Dickson: There have been very few references; perhaps two or three.

146

Ms Magill: My understanding is that the commission has not had any formal references under the Northern Ireland Act 1998. However, it has identified specific concerns about some Bills through its systematic scrutiny. I do not think that the commission has had a formal reference yet.

147

Mr A Maginness: Have there been invitations to examine some of the proposed legislation emanating from the Northern Ireland Office?

148

Prof Dickson: Yes.

149

Mr A Maginness: Would that be in respect of the Proceeds of Crime (Northern Ireland) Order?

150

Prof Dickson: Yes. All the draft Orders in Council have been specifically referred to the commission. Ms Magill is correct; legislation has not been referred to us under section 13 of the Northern Ireland Act 1998.

151

Mr A Maginness: They would not be regarded as references; the Assembly merely asks you to look at them.

152

Prof Dickson: Yes.

153

Mr A Maginness: Has the commission found contraventions of human rights standards in the legislation that the Assembly has passed?

154

Prof Dickson: The commission has queried some provisions in some Bills. On every occasion the Office of the Speaker responded that our fears were groundless. The Office of the Speaker took separate legal advice and came to the conclusion that the provisions are not incompatible with the rights in the European Convention.

155

The difficulty is that very often the draft legislation may not on the face of it be incompatible with the European Convention or with any other standard. However, in the commission's view there is a serious risk that in its implementation by various enforcement bodies it could be applied in a manner that breaches convention rights. The commission would like legislation safeguards to be introduced into the United Kingdom that would prevent such wrongful implementation. To date, the preference of the Assembly has been to run with the legislation as proposed and to hope that it will not be implemented in an unlawful way.

156

The Chairperson: You say that the Statutory Committees would eventually cede ground on legislation to a human rights and equality committee. The likeliest outcome is that as soon as a human rights or equality issue arose in a Bill the matter would immediately be handed to another committee. Therefore the human rights ethos would not be disseminated throughout every Committee. Some of the Committees are hard-pressed with regard to legislation. The Finance and Personnel Committee deals with a great deal of legislation from the Office of Law Reform. The tendency would be to cede that ground and not reinforce the human rights ethos among the members of their own Committee.

157

Who should have final authority on a Bill's compatibility? Should it be the Committee, the Office of the Speaker or the Northern Ireland Human Rights Commission?

158

Prof Dickson: Those matters that tend to recur should be ceded to a specialist committee. The commission has on several occasions had to comment on whether provisions for a hearing on a certain matter are compatible with the requirements of article 6 of the European Convention, which stipulates a fair hearing. The commission finds that it must keep repeating the same points on such queries. It therefore makes sense for one committee of the Assembly to take a view on what constitutes a fair hearing for the purposes of article 6 and to apply that to different pieces of legislation. The same can be said of one or two other recurring problems vis-à-vis the European Convention. A host of very specific problems arise with regard to pieces of legislation that deal with, for example, the right to property, the right to liberty and the right to freedom from discrimination. These require a very specific focus, and it may be that the existing departmental Committees would be best placed, at least in the first instance, to consider such matters in the knowledge that a human rights committee can pick up matters that they may miss.

159

Under the law, ultimate authority lies with the courts. If legislation is passed that is alleged to be incompatible with the European Convention, a case may be taken to the courts. Domestically, the House of Lords, and internationally the European Court of Human Rights, decide on whether or not the legislation is compatible.

160

As your Colleague Mr McNamee pointed out, there are a host of provisions - checks and balances, as it were - in the Northern Ireland Act 1998 to ensure that the Assembly cannot pass incompatible legislation. I stress that the commission has not debated this, but its view would be that it is right to have a variety of mechanisms. Neither a Minister, nor the Speaker, nor the Attorney General - to name but three - should have the ultimate veto.

161

Mr Dalton: I am not sure that I have been persuaded about the efficiency that an extra committee would create. I am concerned about your earlier comment that you were unaware of checks on human rights standards beyond those contained in the European Convention on Human Rights. Giving evidence last week, the Assembly legal adviser said:

"However, if, for example, there is a glaringly obvious problem - a provision that does not comply with another international instrument - I raise it at that stage, even though I am bound not to do so. It is then up to the Speaker whether he wants to write to the Department with details of the problem.

The Department is not bound by any other international human rights treaty. However, there is nothing to stop a Department from taking them into account, or from complying with a provision in any international human rights treaty."

162

Clearly, there is already a mechanism through which such international standards are examined and referred to. Problems are referred to Departments. I am uncertain how an extra committee can add to that. I am also concerned about the further comments that the legal adviser made on the commission's report. She said:

"I would have thought that before any organisation criticises another one on the adequacies or inadequacies of its process, it should understand its current process."

163

Is that a fair criticism?

164

Prof Dickson: I accept that before any adverse comment is made on any procedure one should seek to understand it. In defence of the commission, I think I am right in saying that it has never received any information from the legal adviser to whom you refer that would lead it to believe that those procedures refer to international standards beyond the European Convention. Perhaps the commission has been remiss in not asking that particular question, but the information has not been volunteered before now.

165

Mr Dalton: As I understand it, your argument is essentially that an extra committee would ensure that nothing slips through the net, as you said.

166

Prof Dickson: Yes, that is correct.

167

Mr Dalton: As an example, you suggest a right to a fair hearing under article 6 of the European Convention. However, if a person were to find that his or her right to a fair hearing was being breached, the Human Rights Act 1998 could apply to the policy of the Department in question. How would an extra scrutiny committee affect that?

168

Prof Dickson: It would not affect that. Individual victims of procedural abuses would have the right to go to court. The commission seeks to prevent those sorts of abuses in the first place. It could only be helpful if the commission pointed out to the legislators that the draft legislation could give rise to those sorts of court cases. The commission has some reservations about the lack of an appeal procedure in the various pieces of secondary legislation that it has scrutinised, for example, in relation to certain benefits or decisions on grants. The commission has pointed those out to the relevant Government Departments. This problem is by no means unheard of, and if the legislation can be corrected to make it as compatible as possible with international standards, I would have thought, all to the good. It will stop individual victims having to take cases to court.

169

The Chairperson: We are all here today because the Committee on Procedures, through this Sub- Committee, is conducting a review into the Assembly's legislative procedures. In section 3.2, page 15, of the commission's report, it is stated that the Assembly's arrangements are "an administrative mess". Obviously, our intention is to try to rectify any arrangements that are considered inefficient or badly functioning. Can you elaborate on what is a damning indictment of the Assembly's procedures?

170

Mr Agnew: No comment.

171

Prof Dickson: That refers to the fact that there seems to have been some difficulty in the Assembly in deciding on which Committees to create and which not to create. A decision taken in December 1999 to do certain things and shortly after that a decision was taken not to do those things.

172

Mr A Maginness: We do that all the time.

173

Prof Dickson: You may say that; I could not possibly comment. The Ad Hoc Committee on Equality has never been convened.

174

The Chairperson: That is correct.

175

Prof Dickson: Many of the arguments that the commission is making in favour of a committee on human rights must have already been accepted by the Assembly when it decided to allow for the creation of an Ad Hoc Committee on Equality. That committee would hive off and consider the equality issues in various Bills. Perhaps the fact that the Committee has yet to be convened is an indication that the Assembly has had further thoughts on the desirability of having such an Ad Hoc Committee. An examination of Standing Orders and the sequence of events since the Assembly became operational indicate that things are not as shipshape as they could be in relation to the guarantees for protecting human rights.

176

The Chairperson: The matters that you cite centred on a political argument over the establishment of either a statutory or standing committee to scrutinise the equality and human rights role within the Office of the First Minister and the Deputy First Minister. Decisions were taken about the creation of committees, which were subsequently overturned with the creation of the Committee of the Centre. That was an argument at that time rather than a piecemeal approach to what should be done specifically about human rights and equality.

177

Mr A Maginness: In relation to pre-legislative scrutiny, is it your argument that there should be a requirement in Standing Orders, or alternatively that it would be good practice, that a draft Bill be produced before the legislative process starts? In other words, should a human rights committee be given a draft Bill before it is submitted to the relevant Committee for formal consideration?

178

Prof Dickson: Unless there is a particular urgency, all Bills should be published for scrutiny by a committee, members of the public, the Northern Ireland Human Rights Commission or whoever prior to the Bills being formally introduced into the Assembly. As far as I understand it, that is the practice in Scotland.

179

In the United Kingdom it is increasingly the practice that an announcement is made in the Queen's Speech about the legislation that is to be brought before Parliament and which draft Bills will be published before they are brought before Parliament. If the Assembly wishes to be inclusive in its work and serious about consulting the people of Northern Ireland and statutory bodies such as the Northern Ireland Human Rights Commission about legislation, the pre-legislative scrutiny of draft Bills would be a wise course of action.

180

The Chairperson: Thank you for your contributions, which were informative and useful. The Sub-Committee is taking evidence from several sources. It will endeavour to factor your information into sorting out the Assembly's administrative arrangements.

Wednesday 24 October 2001

Members present:
Mr C Murphy (Chairperson)
Mr Dalton (Deputy Chairperson)
Mr Davis
Mr McNamee
Mr A Maginness

Witnesses:
Mr T Watson ) Office of the First Minister
and the Deputy First Minister

Ms L Devlin )

181

The Chairperson: I should like to welcome Ms Linda Devlin and Mr Tom Watson from the Office of the First Minister and the Deputy First Minister to the Committee. May the Committee hear your evidence.

182

Ms Devlin: The Executive's contribution to the Committee's review of legislative procedure is in the form of a paper submitted in February of this year and of a supplementary paper from officials in the Office of the First Minister and the Deputy First Minister.

183

The Executive wish to improve the efficiency with which procedures can be delivered so that the Assembly can continue to carry out proper consideration and scrutiny of all Bills in line with the requirements of the Northern Ireland Act 1998. However, this is an evolving process, and we must be able to adapt systems, processes and procedures to meet changing circumstances. Flexibility is therefore important.

184

The key points of the Executive's paper to the Committee concerned the introduction of Bills; special scheduling requirements, such as establishing categories for certain draft Bills and introducing changes to Standing Orders to support their passage through the Assembly; the provisions on accelerated passage for Bills; the minimum interval between the Assembly Stages of a Bill; the Committee Stage; the Further Consideration Stage; and points concerning subordinate legislation.

185

As I said, this is an evolving process. For example, since the paper was submitted in February, some refinements have been made to the passages on the introduction of Bills. At the time, the concern was to expedite the introduction of Bills in the Assembly so that the interval between the Executive's agreeing to the introduction of the Bill and its introduction in the Assembly was kept to a minimum. The Executive have since refined their procedures, so that is no longer an issue. We shall not be pursuing it, because there is no need to look at the minimum interval for the introduction of a Bill. New procedures have also been agreed concerning Budget Bills. In general, Statutory Committees have gained more experience in handling Bills.

186

The final proposal concerned a subordinate legislation committee. However, that is a long-term proposal. If the Assembly expressed concern about the drafting of primary legislation that incorporates provisions on subordinate legislation, it may wish to follow the example of other legislatures and establish a committee to scrutinise the subordinate legislation-making powers in primary legislation.

187

Mr Watson: We want to ensure that the formal and informal relationships that we have built up with officials in developing Standing Orders continue. Should the Committee hear evidence from various bodies and groups on which it would like the Executive's view - assuming that we still have an Executive - we shall be only too happy to co-ordinate those views and to suggest a solution.

188

The Chairperson: One of the most notable differences between your suggestions and those emerging from the evidence that was given by the Committees and others concerns the change from seven days to six days. Procedures have been adapted. For example, last week there was a proposal to change Standing Orders to allow the Social Security Fraud Bill to have its Final Stage. That device can be used in certain circumstances where, for whatever reason, people want to circumvent the procedure.

189

Why is there a need for a permanent change to six days, given the time pressure that it may put on Assembly business staff and on the Speaker's Office?

190

Ms Devlin: The proposal to reduce the period from seven days to six days concerned the introduction of Bills. That is no longer an issue, because the Executive have refined their procedures so that a period of seven days is not a problem. The seven days between gaining Executive agreement and the introduction of a Bill could turn into two or three weeks. That was a problem; but it has been sorted out and it no longer causes us concern. The seven-day period before the introduction of a Bill is fine.

191

We also have a procedure to encourage Departments to send informal copies of the final draft of a Bill to the Speaker's Office. That is to allow for preliminary scrutiny by the legal advisors for legislative competence. When the Bill is formally notified to the Speaker by the Minister, the preparatory work will have been done. There is no longer a need to suspend that Standing Order.

192

There is merit in making a distinction between the stages of the Bill that involve debate in the Assembly and those that do not. Of course, suspending Standing Orders is a device that can be used. It could be argued that having to suspend Standing Orders in order to facilitate Assembly business casts doubt on Standing Orders. It could also be argued that it is better to use Standing Orders to achieve one's aim rather than having to suspend them to do so.

193

There is a difference between the introduction of a Bill and Second Stage. Introduction and printing of a Bill will be the first time that most people will have seen a Bill. It may be a relatively small, straightforward and non-contentious Bill or it could be a 100-clause Bill that is dense, complex and technical. It is important for Members to have the opportunity to scrutinise the Bill and to familiarise themselves with its content and with the explanatory memorandum.

194

Standing Orders provide for a minimum interval between First Stage and Second Stage. This is not a mandatory interval: it does not have to be five working days. That is the minimum - it could be extended. There would be a tendency to schedule a large or complex Bill so that it would have a longer period between First Stage and Second Stage. However, there may be an advantage in introducing a relatively straightforward or uncontentious Bill on a Monday and the Second Stage on the following Monday -or not. It is, as I say, only a minimum.

195

The scrutiny of a Bill between Second Stage and Committee Stage only involves Committees. A delay between Second Stage and the commencement of Committee Stage achieves nothing.

196

Mr Watson: At Second Stage the Assembly debates the general principles of the Bill, and it is either voted forward to Committee Stage or it is not. We must ask why there are five days between the Assembly's agreeing the principles of a Bill and the Committee's scrutiny of it.

197

The Chairperson: It may allow time for those who have an interest in the Bill and who can attend Committee meetings, not necessarily Members, to express their views on it or to ask others to do that for them.

198

Ms Devlin: The Committee Stage cannot start until the five working days have elapsed, and Members can express their views during Committee Stage of the Bill. There is no benefit in having a period of five days when nothing happens between Second Stage and the commencement of Committee Stage. Therefore why not go straight into Committee Stage?

199

Mr Watson: The same logic applies to the end of the Committee Stage.

200

Ms Devlin: Is there any benefit in waiting five days between the end of the Committee Stage and Consideration Stage or between Further Consideration Stage and Final Stage? Is it possible to reduce those intervals?

201

Mr Watson: To all intents and purposes, Further Consideration Stage is the final debate, as this is when amendments are debated and decided upon. The Bill is really in its final form at Further Consideration Stage, and it normally passes Final Stage on the nod. We are considering why there is a minimum interval of five days between Further Consideration Stage, when the Bill is in its final form, and Final Stage, when no changes will be made to it.

202

The Chairperson: In Scotland a Committee can see a Bill before Second Stage and report to Parliament on its general principles. Have you considered that?

203

Ms Devlin: The procedures that we have developed for Departments to follow on Bills place a great deal of emphasis on the pre-Assembly stages of a Bill. First, they provide, if the Minister wishes, for a draft of the Bill to be published before its introduction. The Committee would see a copy of a draft of the Bill. Secondly, the procedures insist that the Departments and Ministers provide the Committee with an opportunity to scrutinise the policy behind the Bill so that the Bill, as drafted, can be properly informed by the Committee's scrutiny of the policy. Those are two ways in which that can be achieved. Whether Standing Orders should be amended to introduce that between First Stage and Second Stage is a matter for the Committee. One of those options must be chosen if the Committees are to be informed of the content of legislative proposals - if not both of them.

204

Mr Dalton: Was the five-day period introduced into Standing Orders to allow for printing and distribution?

205

Ms Devlin: Standing Orders originally stipulated seven days excluding Saturdays and Sundays, which meant in effect nine days between stages. It is important to stress that this is a minimum, not a mandatory, interval. It is entirely up to the Executive to propose and to the Business Committee to agree scheduling of Bills that take longer, if necessary. It is not a problem between First Stage and Second Stage or between Second Stage and Committee Stage. However, if Consideration Stage of a Bill is on Monday, Further Consideration Stage - because there must be five working days in between - will be on the following Tuesday. On account of the five working day rule, Final Stage cannot then take place until Monday week. That means that there are almost two weeks between Further Consideration Stage and Final Stage during which nothing happens. The five working days have a cumulative effect. They simply add more dead time to the end of a Bill.

206

Mr Watson: The original seven-day period was debated at some length in the Standing Orders Committee that developed the first Standing Orders during the shadow Assembly. Members felt at the time that a minimum of seven days was appropriate. They had then no practical experience and were studying other legislative programmes and the requirements of other legislatures. That may be why they decided on seven days, which was later reduced to five.

207

Mr Dalton: Do you consider it an unnecessary period during which no Stages are debated? Would more time be required at later Stages?

208

Mr Watson: There is no reason why a minimum period cannot be extended. A complex Bill may need more time between some Stages, or between all of them. The intention of the paper was not to have everything run like a steam train through the Assembly by means of Executive legislation. It was an attempt to provide flexibility in Standing Orders procedures that could take account of reasonably straightforward Bills and of more complex legislation. As the Assembly evolves and handles more Bills, the evidence for looking for that flexibility will develop.

209

Mr Dalton: Your submission recommends that the Committee Stage should be limited to technical scrutiny of a Bill and should not be concerned with wider policy formulation.

210

Ms Devlin: The logic behind that is that the Committee will have had an opportunity to scrutinise the policy before the Bill is actually drafted.

211

Mr Dalton: You believe that the Committee Stage should be limited solely to technical scrutiny, as the Committee would have been involved in the development of policy earlier.

212

Ms Devlin: Yes. The Assembly will have already debated and agreed the general principles of a Bill at Second Stage; re-opening the debate and revisiting the policy issues may not be the best use of a Committee's time. It may be more beneficial for the Committee to carry out a clause-by-clause technical scrutiny to ensure that the Bill achieves the policy objectives that the Assembly has agreed.

213

Mr Dalton: I can see that. Should there be an earlier stage in which the Committee was directly consulted about the formulation of policy?

214

Ms Devlin: The procedures already provide for that. It is not in Standing Orders; but it is in the procedures that the Departments follow when developing their legislation.

215

Mr McNamee: It was suggested that there should be various categories of legislation - urgent or emergency Bills, parity Bills, consolidation Bills and Budget Bills. Would the Speaker, the Assembly or the Executive categorise Bills? What criteria would the Assembly use to approve a Bill's category?

216

Mr Watson: This is another matter that has been refined since the paper was submitted in February. Budget Bills in the Assembly are already in a different category to other Bills, so one could say that the door has already been opened. As the Assembly evolves and more legislation is introduced it may be of help to have different categories of Bills in Standing Orders.

217

Such categories could be agreed in the way that the Budget Bill process was agreed. Asking the Speaker to decide the categories could place him in an invidious position. Perhaps the Committee on Procedures could draw up the categories to be agreed by the Assembly. These would set out procedures in Standing Orders for a Budget Bill or, for example, for a parity Bill.

218

That would mirror what has happened in the Scottish Parliament, in Dáil Éireann and in Westminster, where there are special categories of Bills and different Standing Orders to deal with such Bills. Our view that the Speaker should have a role and that votes should be required has probably changed from when the paper was submitted in February.

219

Ms Devlin: This suggestion should increase flexibility and make the most of scarce Assembly and Committee time. A consolidation Bill, as its name suggests, merely consolidates scattered bits of legislation into a coherent whole. No policy is involved. It is simply a way of tidying up loose ends. Over time, amendments to Bills can be scattered very widely, and those who use legislation or who are affected by it must trawl through a great deal of legislation to establish the position on a subject.

220

From time to time consolidation Bills are introduced to tidy things into one useful point of reference. There is, however, no policy dimension to the procedure. We must ask ourselves whether a full-blown procedure is required for those Bills.

221

In the event of a genuine emergency, such as foot- and-mouth disease, urgent legislation may be required. However, the current accelerated passage procedure precludes any legislation going through the Assembly in less than 10 days. The only option is to suspend Standing Orders. It may be bureaucratic, but there is an argument that it is better to work within Standing Orders than to have to suspend them to achieve what one wants. Flexibility in procedure is needed to allow the Assembly to act quickly in an emergency.

222

Parity is a different and difficult issue, and the Committee may want to explore it further. There are sensitive issues with regard to parity and to how parity legislation is progressed.

223

Mr Watson: The Assembly may not have had sufficient experience with the range of legislation. The Assembly has not been overwhelmed with consolidation Bills, but they raise questions about whether a Bill that contains no policies needs different stages. As the Assembly has not had such experience, the issue of adopting categories of legislation at this stage may seem academic. Standing Orders could be refined to deal with special categories of legislation differently from ordinary Bills. That has been done elsewhere.

224

Mr McNamee: The accelerated passage of parity Bills excludes the Committee from scrutinising legislation. Whether Bills are accelerated or go through the entire procedure, there is no in-between stage that would speed up the introduction of a Bill and at the same time give the Committee an opportunity for scrutiny. That has led Committees to oppose accelerated passage on occasions. Will the Office of the First Minister and the Deputy First Minister consider that when it deals with Bills that require faster passage?

225

Ms Devlin: Parity is the biggest issue in social security legislation. Even social security parity Bills and procedures require the Department to discuss a pre-Assembly policy stage with the Committee when the policy behind the Bill is explained.

226

There tends to be a difficulty with parity legislation, with timing and with the extent to which Bills are amended at Westminster. By the time a major piece of social security legislation has been through the stages in Westminster it may have been subject to 300, 400 or 500 amendments. The Assembly has not faced anything like that yet; but huge numbers of amendments are routinely tabled as legislation progresses.

227

That is partly why there is an argument for accelerated passage for such legislation. It is not the best use of a draftsman's time to start drafting a Northern Ireland Bill at the same time as a Bill goes through Westminster, only to find him or herself trying to keep pace with 400 or 500 amendments. The practice has been that once the Bill has been finalised at Westminster, the Northern Ireland version is then done. There is usually a timing imperative. If the Bill deals with a social security system of benefits and operatings of amounts, there is a need for parity in timing so that everybody gets the same benefit - or disadvantage - at the same time. That compresses the time that is available for the Assembly to consider the Bill. If there are alternatives, they should be explored. A balance can be struck.

228

No Committee would be happy to mirror 400 or 500 Westminster amendments. Perhaps if the Westminster Bill were close to completion, it could be introduced in the Assembly. The Committee Stage could then be longer until the Bill had cleared Westminster and there was a clearer view on its final content. This issue is not easy because social security legislation tends to go through Westminster in late July when we are in recess. The legislation tends to get Royal Assent in late July.

229

Mr A Maginness: You say that Committees can scrutinise the policy of a Bill before it becomes legislation and that a Committee should undertake a technical study of a Bill during Committee Stage. Should we amend Standing Orders to allow Committees to amend a Bill?

230

Ms Devlin: The Executive have not taken any view on that. The powers of Committees, as set out in Standing Orders, reflect what is in the Northern Ireland Act 1998, which in turn reflects strand one paragraph nine of the Belfast Agreement. The agreement does not provide Committees with the power to amend Bills.

231

Mr McNamee: The Act does not specifically give Committees powers to make amendments; it does not, however, rule out Committees' having that power.

232

Section 13 (3)(b) of the Northern Ireland Act 1998 states that Standing Orders

"may include provision for the details of a Bill to be considered by the committee in such circumstances as may be specified in the orders".

233

Ms Devlin: Section 29 (1)(a) of the Northern Ireland Act 1998 states that

Standing orders shall make provision -

for establishing committees of members of the Assembly ("statutory committees") to advise and assist each Northern Ireland Minister in the formulation of policy with respect to matters within his responsibilities as a Minister.

and

(c) conferring on the committees the powers described in paragraph 9 of Strand One of the Belfast Agreement.

234

The Executive have not taken a view on the matter. The question has not been put and they have not deliberated it.

235

Mr A Maginness: Perhaps the Executive should consider responding to it. As I understand it, the Executive have not set their face against it; they are neutral on the matter.

236

Ms Devlin: No, not at all. The matter has not been raised or discussed. There is no view.

237

Mr A Maginness: Neither the legislation nor the agreement excludes Committees from having that power. Strand one paragraph nine of the agreement states

238

Does that mean that Committees could formulate ideas for legislation or consider the pre-legislative scrutiny of policy? The second bullet point of paragraph nine states that they will have the power to

"approve relevant secondary legislation and take the Committee stage of relevant primary legislation"

239

I should have thought that the Committee Stage of relevant primary legislation would include amending a Bill.

240

Ms Devlin: It may well do so; but I suspect that it is open to interpretation.

241

Mr A Maginness: Therefore it is not explicit in the agreement.

242

Ms Devlin: It is not explicitly forbidden. The agreement does not expressly state that it could not happen; neither does it say that it could. The Act is silent on the matter.

243

Mr Dalton: An ambiguity in the agreement.

244

Ms Devlin: Surely not.

245

Mr A Maginness: I am told that such ambiguities are constructive. May the Committee ask for a formal response on the matter.

246

The Chairperson: A response from our legal advisers may also be helpful on the cross-over between the agreement and the legislation. You suggested that Further Consideration Stage would simply be a repeat of the Consideration Stage. Should Further Consideration Stage be curtailed in some way?

247

Ms Devlin: May I explain our difficulty in the Consideration Stage and the Further Consideration Stage's mirroring each other. Originally, the difficulty in having only one opportunity to amend Bills was that if an amendment was tabled, debated, voted on and made, one would not find out until the day that the amendment was to be made. That amendment could have consequential effects on other parts of the Bill. One must be able to pick up on the consequential amendments and deal with them.

248

However, that is not possible if there is only one opportunity at which amendments can be made; this was why the idea of providing more than one opportunity to make amendments was introduced. Operating Further Consideration Stage in exactly the same way as Consideration Stage so that substantive amendments can be tabled at Further Consideration Stage merely creates exactly the same problem. An amendment could be tabled at Further Consideration Stage that could have a substantial impact on other parts of the Bill, and one would still have no opportunity to pick up on them.

249

There must be a cut-off point. In theory, it does not matter whether one has two or three or four or five opportunities to amend a Bill. There must, however, be an end point after which one can say that only consequential amendments will be taken. Otherwise one will find oneself in an endless vicious circle. It can be argued that if there have been no amendments at Consideration Stage there is no need for a Further Consideration Stage.

250

Members have an opportunity to table amendments at Committee Stage and at Consideration Stage. However, if a Further Consideration Stage were thought necessary to permit more substantive amendments, there should be another stage at which any technical consequences could be dealt with.

251

Mr Maginness: Further Further Consideration Stage.

252

Ms Devlin: I suppose that is what it would be called.

253

Mr Watson: Having a Consideration Stage and a Further Consideration Stage with stand part motions in successive stages raises questions of efficiency. Why should the Assembly go through the whole Bill again when it is not necessary to do so? Debate at Further Consideration Stage should focus on the further amendments that have been tabled.

254

The Chairperson: You suggest that accelerated passage change from being made by leave of the House to a simple majority vote.

255

Ms Devlin: Standing Orders simply say that it is by leave of the House. The Speaker ruled in July 1999, during the shadow period, that by leave of the House should be interpreted as unanimity. The Assembly's Standing Orders do not specify that there must be unanimity. It seems inconsistent with other decisions of the Assembly that required cross-community support - simple majority - that the introduction of a Bill that needs accelerated passage requires the unanimity of the House. It is a question of balance.

256

Given that the legislation cannot be introduced unless the Speaker accepts it in the first place and that the Executive must also approve it, it is unlikely that a Minister will try to introduce a Bill out of the blue and without any background. The Bill will have had to go through the Executive at policy stage and at introduction stage and it will have been notified to the Committee at policy stage. Even in the case of social security parity legislation there will have been discussion with the Committee. The question is whether this is an appropriate test.

257

The Chairperson: Thank you for your informative and helpful submission.

Wednesday 24 October 2001

Members present:
Mr C Murphy (Chairperson)
Mr Dalton (Deputy Chairperson)
Mr Davis
Mr McNamee
Mr A Maginness

Witnesses:
Professor Stephen Livingstone ) Queen's University
Belfast

258

The Chairperson: I welcome Prof Livingstone from Queen's University Belfast. The submission of the Northern Ireland Human Rights Commission (NIHRC) details how aspects of human rights legislation should impact on the Assembly's legislative processes. The Committee has asked Prof Livingstone and Imelda McAuley to give their views on this matter.

259

Prof Livingstone: Thank you for inviting me. I would like to make some remarks about the desirability for parliamentary bodies to scrutinise legislation in respect of human rights, because that will inform what I want to say about the NIHRC's submission.

260

First, fundamental respect for human rights is exemplified here by the Northern Ireland Act 1998, which indicates that legislation that is inconsistent with the Human Rights Act should not be passed. Our constitutional structure therefore leaves it very much to the Executive and the legislature to decide how the human rights in the Human Rights Act are realised. Politicians may fear that human rights provisions will transfer power to the judiciary. However, history and comparative experience with judicial review indicates that judges will only intervene where they feel that the legislature has not grasped the opportunity to ensure that human rights are reflected fully in legislation.

261

Parliamentarians have the opportunity to give proper regard to human rights issues when passing legislation. When that has been done, the resulting legislation should be strengthened against challenge in the courts.

262

In a recent case (Regina v A), which involved the submission of evidence in criminal cases involving rape and the extent to which evidence of previous sexual history can be admitted, the House of Lords interpreted the legislation as being inconsistent with the Human Rights Act. Had Parliament considered the human rights aspects properly when passing the legislation, the case would never have reached court - and the stress that was caused to the victim in the rape case, and the defendant in the criminal case, would have been avoided.

263

Legislatures can ensure that legislation is consistent with human rights, and this should reduce the need for judges to become involved. It is important to say that complex issues are involved in the area of human rights. These require significant resources, and legislatures and parliamentary Committees are often better placed than the courts to deal with such issues.

264

Secondly, there is a need for legislatures to take the lead on human rights issues. The Human Rights Act stresses the need for public authorities to respect human rights. A bill of rights for Northern Ireland would also emphasise this point. We must seek to establish a culture of human rights, and it seems to me that a legislature can send out a very important signal by giving a clear priority to human rights when considering draft legislation.

265

The third point is noted in the Human Rights Commission report. It cites growing support - internationally and comparatively in different parliamentary bodies around the world - for some form of scrutiny of human rights issues in the Parliament itself. The commission says that that can be done in a variety of ways, but most Parliaments increasingly consider having their Committees look at different Departments' legislation. All of those Committees would be aware of human rights issues. The alternative is to have a specific committee that deals with human rights issues.

266

The fourth point is that scrutiny needs to be effective and efficient. As with any form of regulation, there is a danger that some parliamentarians may use broad human rights principles and arguments spuriously, perhaps to delay legislation which they oppose but cannot defeat on other grounds. That is always a risk. Firm and independent chairing of Committees is usually the best guarantee against that eventuality, but it is also important to design structures of legislative scrutiny to ensure that legislation does not fall hostage to it.

267

Those general points inform what I want to say about the recommendations of the Northern Ireland Human Rights Commission (NIHRC).

268

The main recommendation in the NIHRC submission to the Committee is that a standing committee on human rights and equality should be established, along the lines of the Joint Committee on Human Rights at Westminster. That proposal has great value, although I do not necessarily endorse it in quite the form that the Human Rights Commission has recommended. I agree that current arrangements are unsatisfactory and out of keeping with the spirit of the Northern Ireland Act 1998 and its emphasis on legislative conformity with human rights. The Committee of the Centre does not have full competence to consider all human rights issues. The power to refer legislation to an ad hoc committee is insufficient to rectify that deficit, especially as its remit appears to be limited to looking at conformity with the Human Rights Act 1998. The Secretary of State for example has the power to opt for scrutiny of legislation on the grounds that other human rights standards have been breached.

269

Assembly Committees do not appear to have the capacity to conduct a broad ranging inquiry into human rights, as the Joint Committee at Westminster can. If one accepts that there are some matters which courts are ill-equipped to deal with, that too is an oversight which the Human Rights Commission's investigative remit does not fully cover. There is therefore a role for a legislative body to look at human rights concerns that may arise.

270

To summarise, I depart in the first instance from the Human Rights Commission's recommendation that all Bills must automatically be referred to the proposed human rights and equality committee, and that a Bill will not be permitted to receive Royal Assent until the committee has certified it. Given the other checks provided by the Northern Ireland Act 1998 to ensure conformity with the Human Rights Act 1998, particularly the roles of the Secretary of State and the Speaker of the Assembly, that may risk overkill in protecting human rights.

271

I am also concerned that the legislative responsibility of other Assembly Committees may not become fully invested in human rights issues - Committees may say that something should be dealt with by the human rights committee, and that they do not need to be as concerned with human rights issues. That is undesirable, particularly if you accept the argument I made earlier that it is important that the Assembly sets an example and that all its Members are seen to be concerned with human rights standards and ensuring that those standards are reflected in legislation.

272

I am also concerned that a backlog could build up in the equality and human rights committee if it had to look at all Bills that pass through the Assembly. That might not be the most efficient way to deal with human rights questions. Instead, if a Bill is sent to the Human Rights Commission - as all Bills currently are - without the commission raising major questions about its conformity with human rights, and the Assembly Committee tasked with scrutiny of the Bill sees no reason for concern either, the Bill would not need to go to any human rights committee.

273

However, the situation may arise where the commission's report on the legislation flags up serious concerns with the Bill or recommends to the legislature that it refer the Bill to the human rights committee. In that case, or - depending on what Standing Orders are drafted for Committees - if the Committee dealing with the legislation expresses concern with the Bill's conformity to human rights, there may be scope for that Bill to be referred to a distinct human rights and equality committee.

274

In its report the Human Rights Commission makes good points about the need for one committee to develop a specialist expertise, and the dangers of variation if it is left to each Committee to decide if a piece of legislation is consistent with human rights standards. However, that expertise does not need to be brought to every Bill, especially if the Human Rights Commission or Members agree that there are no significant human rights issues in many of the Bills.

275

I would also depart from the NIHRC recommendation that the committee must approve a Bill, that it can not get Royal Assent without scrutiny and approval by the proposed human rights and equality committee. Again, there are sufficient checks in the powers of the Speaker and the Secretary of State if a Bill raises serious human rights concerns. Moreover, if a Bill has been referred to the human rights committee, and serious concerns are raised as to a Bill's consistency with human rights standards, then it would be difficult for the Speaker or the Secretary of State not to halt passage of the Bill at that stage. Subject to the extension laws on parliamentary privilege, they might even be subject to judicial review if they had indication of serious concerns and took no action. Also - and this relates to a suggestion made by the commission - if the committee were to give itself power to amend a Bill, then it is unlikely that it would allow a Bill to go through without amending inconsistencies on human rights.

276

There is merit in the commission's proposal that Committees should have more opportunities to amend Bills if they are inconsistent with human rights, especially if Committees are to be empowered and made relevant to the legislative process. This would also help to ensure that human rights are respected in that process. Committees should have the power to make amendments, subject to reversal by the Assembly as a whole.

277

You can tell me if is or is not within the competence of the Committee on Procedures to make recommendations. One of the reasons the NIHRC gives for its desire to have a single committee is to ensure that sufficient expertise on human rights matters is available to Committee members when necessary. Clerks are already able to provide information, but given the increasing complexity and technicality of human rights law, it would be helpful if a human rights committee were to have its own specialist advisor.

278

The question arises as to what degree of rationale Committees receive when Departments propose Bills. Currently, a Bill must at least have certification that it is consistent with the Human Rights Act 1998 and is not inconsistent with the rights safeguarded by the European Convention on Human Rights (ECHR). In its study on human rights procedures in legislatures, the Institute for Public Policy Research argued strongly that not only should a declaration be received from a sponsoring Department, but also that clear reasons should be set out to explain why departmental officials find the legislation consistent with human rights standards. That would be of help to any Committee considering legislation. Do correct me if that is already the case.

279

The Chairperson: Thank you for your presentation. Do you in fact agree that there should be a discrete human rights committee to scrutinise the human rights aspects of legislation? That stance would appear to be in conflict with your view that if all Committees were forced to consider human rights implications, a broader range of MLAs would have an interest and some working knowledge of the human rights aspects of legislation.

280

Prof Livingstone: I do not entirely agree that there is a conflict there. We should encourage all Committees to consider human rights implications, and to receive reports from the NIHRC as to whether human rights problems arise in any Bill. An individual Committee may decide that there are not, with the result that no action need be taken. However, if substantial concerns were expressed, then it would be valuable to have within the legislature a specialist committee to look at that matter in more detail. The NIHRC is saying that although we want all Committees to become aware of human rights issues, specialist expertise may be invaluable in some cases, and it might be a good idea to build that up in one specific group of Members.

281

Another idea the NIHRC mooted was that a specialist committee would be able to conduct investigations into human rights issues or look at broader issues of human rights policy. At the moment, that would be beyond the competence and workload of other Committees.

282

Mr A Maginness: Can you propose any mechanism that could be used within the Assembly to make its Members more sensitive to human rights issues?

283

Prof Livingstone: It would be valuable if Government Departments provided more information as to whether they consider certain pieces of legislation to be consistent with human rights standards. Members would also benefit from training from people who work in the human rights field - that would make them more aware of human rights standards.

284

Mr A Maginness: I was interested in your critique, because I believe that you suggested that there is a danger of the focus being too much on the process and not enough on the actual delivery of the product. Is that a fair summary?

285

Prof Livingstone: Yes, a balance must be struck between creating procedures to ensure that the Assembly fully considers human rights standards, and ensuring that those procedures do not cause a logjam in the legislative process.

286

Mr A Maginness: You depart, to some extent, from the Human Rights Commission's views. How do you think that we, as an institution, should advance on this issue?

287

Prof Livingstone: It is valuable to have a separate committee, like the Joint Committee on Human Rights in Westminster, which can carry out investigative work and examine legislation that has raised concerns in the Assembly.

288

All Committees should be encouraged and enabled to pick up on human rights concerns and establish whether those concerns are major or minor, and whether they can deal with them as a Committee.

289

Mr A Maginness: Are those not conflicting suggestions? If Committees were to become sensitised to human rights issues and automatically pick up on them in the general application of their powers of scrutiny, would a specific human rights committee not therefore be unnecessary?

290

Prof Livingstone: A human rights committee would be necessary to deal with serious concerns. For example, a Committee may decide that three or four areas in a Bill raise serious human rights concerns, but that they should be examined further by somebody who deals with human rights issues regularly.

291

Mr A Maginness: Do you see that as being the role of a standing or ad hoc committee?

292

Prof Livingstone: It would be helpful to have a standing committee, as it could deal not only with legislation but also with investigative matters. A power could be created that would allow a Committee to refer a Bill to a standing human rights committee for further examination if a certain number of Committee members asked for that referral. That would not be necessary in all cases, as a Committee could decide that the human rights issues were relatively minor and suggest some minor changes itself.

293

Mr McNamee: I understand the need for a balance between the proposed statutory human rights committee that would deal with all pieces of legislation from a human rights perspective and would have a significant workload, and the present system, wherein each Committee deals with human rights issues alongside many other policies. The Human Rights Commission pointed out that there are human rights committees in Westminster, the Scottish Parliament and the Welsh Assembly. Are they legislative scrutiny committees or advisory committees?

294

Prof Livingstone: The Joint Committee on Human Rights in the Westminster Parliament is primarily advisory. I do not think that it scrutinises all legislation that goes through Parliament. For example, it is currently conducting an inquiry into whether there should be a human rights commission - that is the type of broader policy inquiry it deals with. As far as I am aware, it is not charged with examining all legislation. The Scottish Equal Opportunities Committee does not even look at equality legislation, as most of that is reserved for Westminster. Rather, it plays an advisory role.

295

Earlier, you mentioned a committee to look at all human rights legislation. All sorts of legislation that does not look like human rights legislation on the face of it may nevertheless have human rights implications; that was partly the rationale for giving the Human Rights Commission power to look at all legislation. Some of it may not have some minor, or indeed no human rights problems, whereas other instruments may pose more significant problems. That is why a human rights committee would come in useful.

296

Mr Davis: Your submission states that

'current arrangements in relation to equality and human rights issues are something of an administrative mess'.

Will you elaborate on that?

297

Prof Livingstone: I did not write that. That submission came from the Northern Ireland Human Rights Commission.

298

Mr Davis: I know, but will you comment on it?

299

Prof Livingstone: There were long discussions about whether it was best to have a Department of Equality or to have equality issues subsumed in the various Departments, and the latter option was chosen. There are good arguments either way. I would not say that the arrangement that was chosen is an impossible one.

300

Mr Dalton: The Human Rights Commission has suggested that if any new committee were set up, it should not limit itself to the ECHR and any potential bill of rights. Do you agree that it should also include customary international human rights and human rights treaties ratified by the UK, as well as international human rights standards and the UN treaties and protocols?

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Prof Livingstone: Yes, I agree that that is desirable. The Northern Ireland Act 1998 states that the Secretary of State can refuse to agree to a Bill if it is inconsistent with international human rights standards. That definitely seems to a broader frame of reference than the Human Rights Act 1998.

302

Mr Dalton: I do not think that it states international human rights standards, I think it says international treaty obligations.

303

Prof Livingstone: I assume that human rights standards include treaty obligations.

304

Mr Dalton: I would not assume that. For instance, I assume that if justice powers were devolved to the Assembly, we would not have the power to unilaterally vary our reaction to extradition treaties that the Government had entered into with other jurisdictions. That is my understanding of the provision. In that sense, we cannot pass legislation that will directly contradict international treaty obligations that are entered into by the UK Government, as they still maintain the power to do that. I do not think that applies to international human rights treaties. They are not binding within the rest of the United Kingdom - why should they be binding on legislation that we pass within Northern Ireland?

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Prof Livingstone: International standards provide the highest standard of human rights; that is a good argument for my interpretation. Also, the provisions of customary international law are certainly binding on domestic law.

306

Mr Dalton: It could be used in interpretation, but it would not be binding in the sense that legislation could be rendered void because it was contrary to international human rights obligations unless it was one that been incorporated through the Human Rights Act 1998.

307

Prof Livingstone: The courts are increasingly developing jurisprudence, where they consult customary standards in the areas of torture and slavery, for example.

308

Mr Dalton: The development of jurisprudence in the Human Rights Act 1998 involved some discussion of customary laws as well. However, the suggestion being made is that the committee should consider those rules as well as the specific rules and the convention rights to which we are bound in the Human Rights Act 1998.

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Prof Livingstone: As far as I am aware, the joint- parliamentary Committee in Westminster does not limit itself to the Human Rights Act 1998, but also looks at other international standards where it feels that they are relevant. Increasingly, the courts have taken the position that not only the ECHR but also other international standards are relevant in interpreting other pieces of legislation. It is wise for a legislative committee to be aware of those when passing legislation.

310

Mr Dalton: The Human Rights Commission has suggested that a special committee dealing with human rights would have investigative powers as well. Do you agree that is necessary, or should they be limited to making an assessment of the compatibility of legislation that was passed through the Assembly? Is it necessary to have such a committee when there is a Standing Committee at Westminster that deals with human rights in the UK?

311

Prof Livingstone: It would be valuable for the human rights issues that arise in Northern Ireland. It is a matter for concern that something could arise which is not covered by the Human Rights Commission. For that reason, there might be value in such a committee.

312

Often, complex issues arise as regards human rights. The broad impact of human rights on health policy, for example, may not be immediately be brought up by a court decision; and it may not be appropriate for the Human Rights Commission to conduct an investigation into the Health Service. However, it might well be appropriate for a parliamentary committee to carry out an inquiry into whether the Health Service is adequately giving effect to human rights standards.

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Mr Dalton: Could the Human Rights Commission investigate such a matter?

314

Prof Livingstone: It could. However, that would be in the form of a formal investigation, which needs to focus on a particular body rather than on broad questions involving health service providers in Northern Ireland. There may be scope for a parliamentary committee to carry out a broader investigation.

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Mr Dalton: Would the Committee for Health, Social Services and Public Safety be able to carry out such an investigation?

316

Prof Livingstone: Perhaps, but the Committee's workload might prevent it doing so.

317

Mr Dalton: Therefore a human rights committee would be set up under the guise of looking at human rights issues, but would effectively be traipsing through every other area of activity as well.

318

Prof Livingstone: Yes, but if you were going to take that road then there would have to be an understanding between the two Committees about whether or not it would be useful for the parliamentary committee to carry out such an investigation.

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The Chairperson: The key question is whether Committees should carry out human rights scrutiny or whether we should have a human rights committee on a standing or ad hoc basis. There are arguments for and against both options. The discussion has been very helpful. Thank you.

320

Prof Livingstone: There are merits in having two layers, because one does not necessarily preclude the other.

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