Presiding Officer’s Business

I have received from the Secretary of State a letter which reads as follows:

Within the last hour I have received from the Secretary of State a revision of a Standing Order. Although we have attempted to ensure that all Members have a copy, the short time available may have made that impossible. Since this pertains to the first substantive item of business after the Initial Presiding Officer’s business, I intend to suspend the sitting for 15 minutes to enable Members to read the revised Standing Order. Copies have been placed in Members’ pigeon-holes, and more are available in the Members’ Lobby.

At the last sitting of the Assembly a number of issues arose on which I have to report and which have implications for this sitting.

The first such matter arose during the conduct of d’Hondt. The question was this: what happens if a nominee for a ministerial position does not accept the nomination? Under the Act, it is clear that one moves on from that party but returns to it in the normal course of events. However, the Initial Standing Orders at that time did not take due account of the Act, and the refusal by a nominee to accept should, under those Standing Orders, have led to disregard of that party in subsequent rounds. I proceeded on the basis of the Act and not on the basis of the Initial Standing Orders, and Members have my full apology. The Secretary of State has seen fit to correct the anomaly. Should a nominee not accept a proposal, we will move on to the party whose turn is next — that in itself is a disadvantage — and the other party will be returned to in the subsequent rounds. Members will have seen this addressed in one of the two Standing Order determinations made by the Secretary of State at the end of last week.

Another change to the Standing Orders last week referred to the order of precedence of business. As you know, we had a Standing Order which required that d’Hondt be the first item of business unless there was a competent motion for exclusion. That was the only thing that could take precedence. The Secretary of State has removed that Standing Order, and there is now no requirement for any particular order of precedence.

In considering the order in which I should conduct business, I have taken account of what seems to be reasonable. If there is a competent motion for exclusion, it seems to me, it should take precedence over the running of d’Hondt, for if it were successful, d’Hondt would have to be rerun. Where business that is carried over from the previous sitting has implications for some of the rest of a day’s business it seems reasonable to deal with it first. Clearly there is business in relation to the position of Seamus Mallon, given that the last substantive item of business at the last sitting was the personal statement in which he tendered his resignation. The Secretary of State has addressed this matter in the Standing Order which was determined just before the commencement of this sitting and which I have given Members some time to read.

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Deputy First Minister (Designate)

The motion in the name of Mr Neeson also addresses this matter. Should the Assembly express its wish that Mr Mallon withdraw his offer of resignation, in accordance with the terms of Mr Neeson’s motion, the revised Standing Order would permit that, and it would be by majority vote unless anything else supervened. Some Members have only just had an opportunity to read this, but I trust that everyone is familiar with the terms set down.

When we received the notice of today’s sitting it was a surprise to many Members to see the motion from Mr Neeson. It was quite clear at the last sitting that Mr Mallon did resign. The Secretary of State even mentioned it in the House of Commons and expressed the hope that another position would be available for him some day.

I understand that all the facilities that accompany ministerial office — the things in which the press seem to most interested — were stripped from him. I have not made enquiry as to whether he lost his salary for that period, but I am sure that it too was stripped from him. However, on the Order Paper there is a motion which seems to ignore these facts. I remind Mr Neeson that in his speech at that time he referred to the resignation. It is quite clear that Mr Mallon did resign. It was reckoned to be a resignation by everyone in this House and in the Westminster Parliament.

I now come to the amazing collusion involving this motion and the Secretary of State. A few minutes before this sitting commenced, the Secretary of State presented Members with an ultimatum. He can, of course, do that because he is able to change the Standing Orders. I am sure that he was tempted to prevent all those Members who oppose him from even entering this Building but thought that that would be too severe.

By a dictatorial act he is seeking to give credence to this motion and to take away the right of the Assembly to have the First Minister and the Deputy First Minister elected together on the basis of the parallel consent that is written into the Act, under which a majority of those registered as Unionists must agree.

Under this motion, those registered as Unionists will not be given the right to approve the reappointment of Mr Mallon on the terms on which he was first appointed. People talk about standing democracy on its head. This is democracy being stood on its head.

Mr Initial Presiding Officer, I would like you to rule whether this motion is competent. Should its wording not be to the effect that the House accepts the Standing Orders and wishes them to be put into operation on this issue?

Further to that point of order. The motion on the Order Paper refers to Mr Mallon’s "offer of resignation" and therefore requires some definition of when a resignation is a resignation. Mr Mallon told the House that his resignation would take immediate effect. I think that Mr Mallon would be the first to accept that with his resignation he accepted the loss of his emoluments. Seamus Mallon would not have continued to accept the emoluments of an office which he had vacated.

Dr Paisley is correct. In the House of Commons the then Secretary of State for Northern Ireland, Dr Mowlam, acknowledged the resignation with regret. There has been some suggestion that if the resignation was not in writing, and was not accepted in writing, it was not valid. Such a submission is without any legal validity. If the Standing Orders are silent on the manner in which a resignation must be offered or accepted, there is absolutely no requirement for the offer or the acceptance to be in writing.

I fear that we are back to Humpty-Dumpty. When Alice commented on the meaning of a word, he replied

Are the Members in the Assembly to perform like Humpty-Dumpty, or are we to accept that a resignation — openly made before the Assembly and accepted by the Secretary of State in the House of Commons — is not a resignation? If that is the basis on which the proceedings of the Assembly are to continue, there is a grave question over the propriety of our procedures.

It is not good enough that the Secretary of State, just minutes before the Assembly sits to discuss this matter, provides to some Members a Standing Order overturning one of the fundamental requirements on which this whole process has been built — the requirement for consensus. It specifically outlines that — different from all the other decisions made in the Assembly — the decision as to the choice of the First and Deputy First Ministers requires a majority of those designated as "Unionist" and a majority of those designated as "Nationalist". For the Secretary of State to abolish with the stroke of a pen the fundamental and central principle of consensus for purposes of political expediency is a disgrace to this House.

Let me respond to the points of order. First of all, it is clear that the Secretary of State has authority to determine Standing Orders. Whether or not Mr Mallon offered and, in fact, gave an effective resignation is more difficult to determine. I have no doubt that Mr Mallon, when he made his statement and tendered his resignation with immediate effect, believed that he was offering his resignation and that it was effective. It is quite clear from my response to Mr Mallon’s resignation that I too believed that to be the case. It seemed to me a matter of common sense. However, the validity of Mr Mallon’s resignation is a matter of law and not of common sense.

I did not have an opportunity to seek legal advice prior to Mr Mallon’s statement, but I did seek advice after the sitting. During the sitting I was asked various questions, notably by Mr Robinson. The Member asked if the resignation had to be given in writing and, if so, whether I had a copy of it. I said that there was no Standing Order requiring a written resignation. The resignation would be recorded in Hansard — and only there.

Mr Robinson asked what were the Standing Orders dealing with a resignation. I did not answer the question as I knew that while there were such Standing Orders, they applied only in a post-devolution situation. Having sought legal advice, I was told that one could not be sure that the offer of resignation, though made in good faith, was effective as there was not a Standing Order addressing the matter.

Subsequent legal advice took different turns. Some advocates agreed with the initial advice, while others stated that the resignation was full and complete as it was given in good faith and was recognised by others. In these circumstances, it seems to me, there were only two or three possible courses of action. I could have sought a judicial review on my own behalf to clarify the matter. I readily admit that the circumstances were unusual, but it would have been most unusual to seek a judicial review not on something that had been done but on questions that were incompletely answered. Others, of course, could have sought a judicial review in regard to the matter, but that was not something for me.

When I was presented with a motion, the question was whether it was competent, in particular when it appeared on the Order Paper, as distinct from subsequently, the new Standing Order having been put in place. The advice that I received was that by determining that it was not competent I would have been taking a particular legal view in terms of the actions that had been taken. I would, in that sense, have been acting as though I were a court, and that would not be appropriate. Therefore I had no option but to accept as competent the motion that was given, have it put on the Order Paper and see how things turned out.

You now have a Standing Order that makes the motion not only competent but relevant. That is clearly so. Whether the position is satisfactory from a legal point of view is not a matter for me. This is not a court, and whether others seek confirmation is up to them.

That is the clearest and fullest answer I can give.

On a point of order, Mr Initial Presiding Officer. Have you sought legal advice on this issue? When the resignation took place on 15 July the rules were clear. The Deputy First Minister (Designate) had been elected by a certain mechanism. He resigned with immediate effect. The resignation was confirmed at Westminster, every newspaper in the country covered it, people in their tens of thousands watched it on television, and Mr Mallon came on afterwards to explain his reason for resigning. It was complete and final. There was no doubt in anybody’s mind.

This is an ex post facto change in the rules. How can it apply to a past situation? I could well understand it if the Secretary of State did not like the rules under which the Assembly had been set up and wanted to change them. I would be unhappy about that, but a retrospective change is worse. If Mr Mallon had resigned with the new Initial Standing Orders in place the procedure would have been straightforward, but that is not the case.

It is a well-established principle that any office which includes the provision of personal services, as the Office of First Minister does, is not subject in the courts to a mandatory injunction that it perform them. That is the rule for the simplest of reasons: the law and the courts implementing it do nothing in vain, and it is impossible to compel any office or contract that involves personal services. Even the Queen may abdicate. No principle that I am aware of could possibly validate the retrospective withdrawal of a resignation legitimately given and accepted at the time by the Members of this Assembly, who were all present, and by the then Secretary of State.

There is deep suspicion — confirmed by what Mr Robinson has said — that there are no rules in the Assembly by which we will abide. There are only the rules governed by the will of the Secretary of State. Everyone knows that if there were a rerun of the process it would be impossible for the First Minister (Designate) to be elected — and he and his Deputy must stand together to get a majority. This is an example — the most obvious and profane example — of executive power undercutting democratic procedure and principle, and it should be refused.

Mr Initial Presiding Officer, there is another matter on which I would like you to rule. Is it right to demand of this Assembly, by motion, something that is not accurate? There was more than an offer of resignation; there was acceptance. Everyone knows that it was accepted — right up to the highest court in the land, the Westminster Parliament. The new Standing Order is inaccurate in that it ignores the fact that the resignation was accepted. The words "has offered" do not deal with the fact that it was accepted and acted upon, with every "i" dotted and every "t" crossed.

I understand that Mr Mallon had to get somebody to take him home because his official car had been taken from him immediately. Surely, Mr Initial Presiding Officer, we should not be asked, by you or anyone else, to debate a motion the terms of which are not factually correct.

I do not want to go over the same ground again and again, but I shall do my best to clarify matters, even if my clarification is not appealing or acceptable.

There is no doubt that the Secretary of State has the right to determine Standing Orders as he chooses, even if people disagree with or despise them. I cannot gainsay that right; it is my responsibility to implement the rules as set down.

If the Assembly were to adopt a resolution mandating me to express a particular view on its behalf I would be quite content to do so. However, I could not put forth a view simply because it was the view of a number of Assembly Members. The Secretary of State has a right to do these things, and there is no point in our going round the houses with regard to them.

I have expressed the belief that Mr Mallon was clear in his own mind that he was tendering his resignation with immediate effect, and subsequent events may have tended to confirm that for him. My immediate response, which I described as being made on the hoof, was based on common sense rather than on the law.

Legal views that were expressed subsequently and others that we have just heard make it clear that common sense and the law are not necessarily the same. Doctors differ and lawyers differ, but the consequences are not the same. It is clear, therefore, that I must take the best advice. Of course, a court might judge that it was not the best advice. It would be exceptional to prejudge this by going to court, and after consideration I decided not to do so, though others may take that course.

Mr Robinson asked if there were Standing Orders dealing with the matter of resignation. The immediate answer, had I been able to respond at the time, would have been no. However, I studied the matter to make sure that I was right. Had there been such Standing Orders at the time, and had the Secretary of State changed them, there would be more substance in the Member’s point. In the absence of such provision, the Secretary of State has put in place Standing Orders which address the matter.

This is not an ex post facto matter; it is a question of closing a gaping hole. It must have seemed so to Mr Robinson, given the speed with which he pointed out that there were no relevant Standing Orders. It is clear that there will be differences of opinion. Following the last sitting, it is apparent to me that there are differing legal views on the issue and that there is no way to resolve the differences. I had to make a decision, and I have given my ruling as clearly as I can. I do not want to stop people responding, but neither do I want to go over the same ground again and again. Of course, Members will have an opportunity to express their views on the motion. I propose that if we get to that stage the normal procedure be followed. That would give Members a couple of hours to have their say.

It is very difficult for me to keep ruling on the same points of order — and not profitable.

Further to that point of order, Mr Presiding Officer. The response you have given is informative but tangential. No one questions the right of the Secretary of State to make a Standing Order, but the Standing Order which he has made refers, as Dr Paisley has pointed out, to an offer of resignation. So if you are going to apply this Standing Order, it must be applied not to a de facto and fully effective resignation but to an offer of resignation. The issue is not the power of the Secretary of State; it is whether, in the terms of the Standing Order so lately delivered, the resignation of Mr Mallon, complete in every way, can be treated as an offer of resignation.

A sovereign power — and this includes the delegated powers of the Secretary of State under statute — can do many things, but we come back to a question that was put to Sir Thomas More when he was asked to subscribe to the Act of Supremacy. Referring to the absolute sovereignty of Parliament, he said to the then Attorney-General

I pose this question: can the Secretary of State turn a resignation into an offer of resignation?

From my medical experience, I would say that not only Parliament but others can do more these days than was possible in the times of Sir Thomas More.

You have just given birth to a hermaphrodite.

I am advised that the offer, which was made with full integrity and in the expectation that it would be effective, may not have been more than an offer, although it may have been deemed to be otherwise.

We must proceed to the motion standing in the name of Mr Neeson.

We should not move to the motion quite so quickly. By concentrating on whether or not a man can be turned into a woman, we are losing sight of one or two things. Mr Mallon resigned when he gave his resignation to the House. There is absolutely no doubt about that.

It is not proper to keep raising points of order on matters that I have already addressed.

I have not finished my point of order.

Only one of us at a time may stand.

Let us not keep going over this question of the offer of resignation. Hansard clearly shows what was said:

I can only judge what is most appropriate, based on the advice that I am given. If Members or others feel that they have a proper case to take and wish to seek guidance elsewhere, it would be entirely proper for them to do so. However, we should not go round and round on the same issue.

You wanted to address a further matter, Mr Roche.

I had not finished my point of order. Neither the Standing Order — and all that has been said about the Standing Order is perfectly correct — nor the motion applies to the circumstances of Mr Mallon’s resignation. That is my point.

That is the same point of order, and I have already ruled that it does apply.

You said that you were prepared to accept the motion standing in the name of Mr Neeson, even though you were not able to say whether it was competent. Is that not an amazing statement? Surely it is necessary for you, as Presiding Officer, to ensure that any motion on the Order Paper is competent at the time of tabling, rather than hope that it will become competent.

I recommend that you read in Hansard tomorrow what I said. I did not say that I was unable to judge whether the motion was competent; I said that it was not possible for me to rule that it was not competent. If something is clearly not competent it will not be allowed through. If I had ruled that this motion was not competent I would have been making an alternative legal determination which I did not believe I was entitled to make. In that context, it is appropriate to allow it to go forward as competent until proven otherwise. In another situation it might be clearly incompetent, and in that case it would be ruled out.

Mr Mallon and his party colleagues have pontificated numerous times about how cross-community support is important to the validation of this process. Mr Mallon is listening to our debate now, and he knows whether he offered to resign or resigned that day. Given our concerns and the need for cross-community support, is he prepared to ignore the democratic process and cheat the people of Ulster by taking up a position by the back door, or does he agree that in political life honour and integrity are more important than personal position?

First, that is not a point of order. Secondly, it is not a question of what Mr Mallon’s belief was at the time or of his integrity with regard to the matter; it is a question of law — a disputed question of law, but a question of law nonetheless. If someone believes a decision to be wrong, there is an appropriate context in which to challenge it.

On a point of order, Mr Presiding Officer. Whether or not it is a point of law, it is something that will always haunt Mr Mallon if he goes in through the back door.

That is not a point of order. It is quite legitimate to make points in the context of the debate, but I must insist that points of order be genuine and that they should not relate to matters that I have already addressed.

Mr Initial Presiding Officer, you have stated that you have received conflicting legal advice from two quarters. It seems to me that there is no pressing requirement for you to prefer what has come from one of them if you are left in limbo. And it is equally wrong for you to take the view that it is for individual Members, or any group of Members, to seek a court decision on this issue. It is for the House, through you, to seek that decision.

It would be quite wrong to allow this to proceed on the basis that there may be a subsequent court action or construction summons rendering, or possibly rendering, nugatory all that takes place here. Surely prevention is better than cure. The proper course is to take legal advice — not judicial advice — as to whether or not this is in order and to act upon it. It is wrong to throw upon the Members of the Assembly, or any group of them, the responsibility to do what your Office ought to do.

First of all, I did not seek a whole array of legal advice. I sought my own legal advice, but other legal views were drawn to my attention. That is where the uncertainty arose. It was not other advice that I sought. I am not putting it onto individual Members. If the Assembly as a whole were to request me to seek advice, of course I would do so. I asked for advice for myself, and, having received it, I am making the best judgements I can. It is clear that other legal minds have been at work and have come up with a range of views as to precisely what has been going on here. I have to make my own judgement and move ahead as best I can.

Do you want a motion brought before the House asking that you seek legal advice on this issue?

Under Initial Standing Orders I can accept a motion only by leave of the Assembly or if due notice is given.

I beg leave to move that this House instructs you to take legal advice on the issue that has caused controversy here today.

That would not be competent as I have already taken legal advice. It seems to me that what was being looked for was a court decision.

I shall put the matter to the House. Do Members give leave for such a motion?

Aye.

No.

It is clear that there is not unanimity. That being the case, the leave of the House is not granted.

On a point of order, Mr Presiding Officer. We have listened to this long enough. Let Mr Mallon state clearly whether he did or did not resign with immediate effect.

That is not a point of order. I have already ruled that it is not a question of what Mr Mallon believed himself to be doing — that is clear. It is a question of law and of making a judgement under Standing Orders.

May I draw attention to annex C of the Code of Conduct and to part A of the Initial Standing Orders, which state that all Ministers, including the Deputy First Minister (Designate), must observe the highest standards of propriety, regularity and integrity. If the action that the Secretary of State has proposed is agreed, how will that meet these criteria and the code of conduct requirement for the highest standard of integrity? What does Mr Mallon fear? [Interruption]

Order. When raising points regarding the integrity of others, Members need to be very careful. Those who operate in other places will know just how careful. Lest there be any doubt, I repeat that this is not about the integrity of Mr Mallon. It is clear that he believed that he was fully and completely resigning. The question is whether the law in that regard was complete. It is clear from the questions that have been raised that the Standing Orders were not adequate to deal with the matter.

We now need to discuss whether the Assembly wishes to operate on the basis of the new Standing Order and request a different outcome, and that means that we must proceed to the motion standing the name of Mr Neeson.

I beg to move the following motion:

We have talked about the democratic process. A major purpose in my introducing this motion is to ensure that the will of the people is carried out in accordance with the result of the referendum in Northern Ireland last year. I want to see the full implementation of the Good Friday Agreement.

This is the first sitting of the Assembly since 15 July, when Seamus Mallon stated

Many of us shared his frustration about the lack of progress in implementing the Good Friday Agreement and the failure to elect the Executive. Since then a great deal has happened, including the welcome success of Senator Mitchell’s review.

We have the greatest opportunity now to establish an inclusive, power-sharing Executive and thereby fulfil the responsibility with which we were charged by the vast majority of people in Northern Ireland when they voted in the referendum.

This sitting is the first real opportunity to consider Mr Mallon’s offer of resignation. Support for the motion will allow us to move forward and create the Executive. It will also lead to the setting up of the necessary scrutiny Committees, thus giving Northern Ireland accountable democracy, ending the democratic deficit that the people have endured for 25 years.

I organised an all-party meeting this morning to discuss with the Economy Minister, John McFall, the matter of extending the natural-gas pipeline to other areas of Northern Ireland.

On a point of order, Mr Initial Presiding Officer. The Member referred in the last debate in the House to "the former Deputy First Minister". He kept saying "the former". Is it in order for him now to try to tell the House that Mr Mallon is not the former Deputy First Minister but was just offering his resignation?

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It is in order for all of us to live and learn.

From the Democratic Unionist Party’s conference last weekend one can only conclude that they have not learned a lot.

Mr John McFall has been a very good Northern Ireland Office Minister, but from Thursday morning a Member of this Assembly will have that responsibility, and it would be appropriate to thank all the Westminster Ministers for their time and effort during the long years of direct rule.

It is implicit in Senator Mitchell’s review that the process of decommissioning illegal paramilitary arms will begin, and the vast majority of people in Northern Ireland take the view that this must involve all paramilitary groups. That is why a vote for the motion is so important. A positive vote would lead to the establishment of the North/South bodies as outlined in Mr Trimble’s and Mr Mallon’s report of 15 February. I also hope that an early start will be made to the appointment of the Civic Forum. And the establishment of the Executive will herald the end of the Anglo-Irish secretariat, set up under the aegis of the Anglo-Irish Agreement. We will also see changes in articles 2 and 3 of the Republic of Ireland’s constitution, which laid claim to Northern Ireland.

On the radio this morning I heard the sincere pleas of a representative of the Ulster Farmers’ Union. He urged the Assembly to move forward so that local representatives would be dealing with the current dire situation.

The way ahead will not be easy, but if politicians really want to see progress they must grasp the opportunity that is before us today.

On 15 July I stated that there were no victors — only losers — as a result of what had happened that day. I firmly believe that there will be many winners today, and they will be the people of Northern Ireland — young and old, and from every community.

I do not intend to say very much, for I am sure that the press and the visitors here today have come for business that is further down the Order Paper, and we all want to get to that as quickly as possible. We certainly do not want to see a repetition of the interminable points of order that were intended to delay the proceedings.

On behalf of the Ulster Unionist Party I am very happy to support Mr Neeson’s motion. We very much want to see the team reconstituted and Mr Mallon back in office, as handling business over the last few months has been most inconvenient. In the light of developments over recent weeks and months I am sure that Mr Mallon will be glad, in the changed circumstances, to come back. I am tempted to go back over some of the points of order, particularly some very poorly argued legal points that were not, in my view, accurate, but I shall not do so.

On 15 July I asked for the leave of the Assembly to make a personal statement about my position as Deputy First Minister (Designate). I said

I informed the Assembly that I was offering my resignation as Deputy First Minister (Designate) in the belief that this was the only way to ensure

Those were my words of 15 July to the Assembly. Since then, quite obviously, I have not acted at Deputy First Minister (Designate). As a result of the events of 15 July - inside and outside the Chamber - and for many other reasons, Senator Mitchell was asked to carry out a review of the agreement. My colleagues and I in the SDLP participated fully in that review without office or benefit of title, as I said we would. The review was meaningful and successful.

What was sought on 15 July, so far as I was concerned, was achieved. All pro-agreement parties have fully endorsed the way through the impasse over decommissioning and the formation of the institutions, as proposed by Senator Mitchell. We expect all parties to honour those commitments in relation to both the institutions and decommissioning. For me, the implementation of the agreement was then, and is now, the only motivation. It is, for me, the enduring imperative.

This motion is not about me, either as a politician or as a person. It is not about any individual. It is about the agreement, and it is my conviction that I will do, and have done, everything in my power to ensure that the agreement will work, with all its requirements met and institutions set up. I repeat: this is not about me personally but about the workings of the agreement. Today we are called upon, as the collective body of the political process in Northern Ireland, to put in place the institutions - called upon by the agreement and the Pledge of Office that Ministers will take subsequently; called upon by our agreement to the Mitchell review; and called upon in the referendum by the people of Ireland, North and South.

Putting the institutions in place requires resolving the issue of the joint offices of the First and Deputy First Ministers. I repeat: the issue is not about personalities, who they may be, or which political party might serve in those offices, but about the requirement to put the institutions in place. Without that, there is no way forward. D'Hondt will not be operative, and devolution cannot occur. In July last year the Assembly bestowed on the First Minister, David Trimble, and me the honour - I regarded it as an honour then, and I still do - of appointment to the positions of First and Deputy First Ministers (Designate).

On 15 July 1999 I offered my position as Deputy First Minister (Designate) - not to a Secretary of State, not on a piece of paper, not to the media, but on the Floor of this Assembly, to this Assembly, because it was this Assembly that appointed me to that office. Whatever views one might have about my motivation and about what the impact might have been, I came to the Assembly, to the people who had elected me as Deputy First Minister (Designate), and offered my resignation to them. With regard to the Secretary of State's Standing Order and this motion, these people, the Members of the Assembly, will decide their response. It will be the response not of Seamus Mallon or of any individual but of the Assembly.

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