Inquiry into the extent to which Standing Orders should permit the Attorney General for Northern Ireland to participate in proceedings of the Assembly

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Executive Summary

The role of the Attorney General for Northern Ireland (AGNI) was established as a consequence of the devolution of policing and justice functions to the Northern Ireland Assembly (the Assembly) on 12 April 2010.

In common with other legislatures, the role and functions of the Office of AGNI are underpinned by legislation. However, unlike law officers in other jurisdictions, the AGNI is expressly barred from being a member of the legislature itself and the post is statutorily independent of the First Minister and deputy First Minister, the Northern Ireland Executive and the Northern Ireland departments. Instead the Justice (Northern Ireland) Act 2002 states “The Attorney General for Northern Ireland may participate in the proceedings of the Assembly to the extent permitted by its standing orders but he may not vote in the Assembly”. The purpose of this inquiry was to establish what exactly this should be in practice.

To manage the broad scope of the inquiry, the Committee conducted it in four phases. This report outlines the findings of the first three of these phases which are:

• Phase 1 – Evidence gathering;
• Phase 2 – Impartiality of the Office of AGNI and Registration of Interests; and
• Phase 3 – Consideration and reporting on participation of the AGNI in Assembly proceedings in respect of areas other than Statutory Rules.

The scope of its inquiry did not include matters relating to governance and accountability of the Public Prosecution Service or to any practical matters outside of the Standing Orders.

As part of Phase 1, evidence was gathered from the AGNI, UK legislatures, the Houses of the Oireachtas, the Law Society of Northern Ireland, the Committee on Standards and Privileges, parties represented in the Assembly and from the Executive Committee. The Committee also commissioned and considered a number of Assembly research papers in order to inform Members’ discussions and views on the issues arising from this inquiry.

Having considered views and evidence provided in respect of Phase 2, the Committee considered it appropriate that a discreet Standing Order be drafted to set out the same duties for the AGNI as Members in respect of the requirement to register and declare interests and to be prohibited from advocating on any matter on behalf of anyone else for a payment or benefit. The Committee considered it appropriate that any alleged breaches by the AGNI be investigated and the outcome of the investigation reported to the Assembly by the Assembly’s Commissioner for Standards. Following such a report it agreed that the Committee on Standards and Privileges should be able to decide whether or not to uphold the complaint and, where it did, that it could recommend the imposition of a sanction.

The Committee did not consider it appropriate to apply the requirements of the Assembly’s Code of Conduct to the AGNI.

Although the Committee examined the models used in respect of Law Officers in other legislatures, it recognised that the unique requirements of the role of the AGNI precluded any of these being adopted in their entirety. It therefore considered it appropriate to design a bespoke model to reflect the unique circumstances found in this jurisdiction.

The design of the elements of this bespoke model was the purpose of both Phase 3 and Phase 4 of this inquiry which considered four areas of the AGNI’s work with the potential to be included in the participation model and to be codified into Standing Orders (SOs). The first three of these were titled Answering Assembly Questions; Referral of Bills after Final Stage; and the Annual Report of the AGNI and formed the basis of Phase 3 of the inquiry. The fourth was the basis of Phase 4, relating to Statutory Rules Laid by the AGNI and covered in Part 2 of the inquiry report.

Having considered stakeholder opinion and evidence provided, the Committee identified a number of possible models to facilitate the participation of the AGNI in proceedings of the Assembly for each work area identified. After detailed consideration the Committee concluded that:

a. No change to existing arrangements in SOs is required in respect of the AGNI answering Assembly Questions. Executive Ministers or Members nominated on behalf of the Assembly Commission should remain the only people to answer Assembly Questions – either written or oral. The Committee noted that even where no formal arrangement exists for the AGNI to answer Assembly Questions, nothing exists to stop him/her providing answers to any questions sent directly to him/her;

b. No change to existing arrangements in SOs is required in respect of seeking explanation from the AGNI should s/he decide to refer a Bill after its Final Stage. Existing arrangements, which permit the AGNI to be called to a relevant committee to make a statement and/or answer questions as to why s/he has referred a question to the Supreme Court remain appropriate and no provision need be made to this effect in SOs.

c. That the AGNI should not be required to give views on the content or competence of Bills prior to Final Stage.

d. That SOs are amended so that when the Annual Report is laid, the AGNI attends a nominated committee, at that committee’s request, to make a statement and/or answer questions on the content of the Report.

Summary of Recommendations

Recommendation 1

The Committee recommended that a distinct Standing Order be drafted to provide for the AGNI in respect of Section 25(4) of the Justice (Northern Ireland) Act 2002, to include the following:

i. That the AGNI have the same duties as Members in respect of the requirement to register and declare interests;

ii. That the AGNI be prohibited in the same way as Members from advocating on any matter on behalf of anyone else for a payment or benefit;

iii. That the Assembly’s Commissioner for Standards be able to investigate an alleged breach by the AGNI of any duty in respect of Members’ interests which would be set out in Standing Orders;

iv. That the Assembly’s Commissioner for Standards is able to report the outcome of any such investigation to the Assembly in the same manner as for an investigation of complaint against a Member;

v. That the Committee on Standards and Privileges is able to decide whether or not to uphold a complaint and, where it did, that it could recommend the imposition of a sanction. (However, unlike the position in respect of Members, the rights and privileges that could be withdrawn as a result of any sanction imposed would not include the right to salary and allowances.)

Recommendation 2

The Committee recommended that it would not be appropriate to seek to apply the requirements of the Assembly’s Code of Conduct to the AGNI.

Recommendation 3

The Committee recommended that no change is made to existing arrangements in Standing Orders in respect of the AGNI answering Assembly Questions.

Recommendation 4

In relation to the referral of Bills after Final Stage, the Committee recommended that no change be made to existing arrangements in Standing Orders. Rather, if the AGNI decides to exercise the power under Section 11 of the Northern Ireland Act 1998, a relevant committee can call for him/her to make a statement and/or answer questions as to why s/he has referred a question to the Supreme Court, but that no provision need be made to this effect in Standing Orders.

Recommendation 5

The Committee recommended that the AGNI should not be required to give views on the content or competence of Bills prior to Final Stage.

Recommendation 6

The Committee recommended that Standing Orders be amended so that when the Annual Report is laid, the AGNI attends a nominated committee, at that committee’s request, to make a statement and/or answer questions on the content of the Report.

Introduction and Background

1. One consequence of the devolution of policing and justice functions to the Northern Ireland Assembly (the Assembly) on 12 April 2010 was the establishment of the role of Attorney General for Northern Ireland (AGNI).

2. In common with the other devolved UK administrations, the role and functions of the office are underpinned by legislation but the function for which the AGNI is perhaps best known is that of chief legal adviser to the Executive Committee (the Executive) for both civil and criminal matters that fall within the devolved powers of the Northern Ireland Assembly.

3. The AGNI himself identifies his main responsibilities as being^[1]:

a. To protect the public interest in matters of law;

b. To act as the Executive’s most senior representative in the courts;

c. To oversee the legal work of the in-house legal advisers to the Northern Ireland Executive and its departments;

d. To participate in the proceedings of the Assembly to the extent permitted by its standing orders but not to vote in the Assembly; and

e. Appointment of the Director and Deputy Director of the Public Prosecutions Service for Northern Ireland.

4. However, on the website, the AGNI emphasises one unique feature of his role: “My responsibilities and role are exercised independently of any other persons. As Attorney General I am statutorily independent of the First Minister and deputy First Minister, the Northern Ireland Executive and the Northern Ireland Departments.”

5. Another feature unique to the post of AGNI is that the post holder is expressly barred from
being a member of the Assembly^[2]. Thus, although in other legislatures the Attorney General may attend and participate in proceedings by virtue of being a member, this is not an automatic right of the AGNI and section 25 of the Justice (Northern Ireland) Act 2002, provides that:

“The Attorney General for Northern Ireland may participate in the proceedings of the Assembly to the extent permitted by its standing orders but he may not vote in the Assembly”.

6. Thus the extent to which the AGNI participates in the proceedings of the Northern Ireland Assembly is a matter to be determined by the Assembly itself through its Standing Orders and the purpose of this Committee inquiry is to inform the provision of such Standing Orders.

7. An inquiry into this matter was initiated by the Committee on Procedures during the 2007 to 2011 mandate. However, no conclusion was reached and the matter was noted as outstanding business in the Committee’s legacy report.

8. The current Committee on Procedures had already acknowledged its predecessor’s reference to this matter in the legacy report when it considered correspondence from the Committee for Justice (CJ) at its meeting of 22 January 2013. This correspondence highlighted three specific issues arising from CJ interactions with the AGNI.

9. First, the AGNI had suggested an inquiry topic to the Justice Committee, offering his assistance if the CJ was minded to undertake the inquiry. The Justice Committee had agreed a way forward, as the inquiry was in line with its agreed work programme and would invite the AGNI to give evidence. However, it also agreed to highlight to the Committee on Procedures the absence of directional clarity in Standing Orders (SOs) regarding the AGNI’s participation under such circumstances.

10. Second, CJ highlighted issues relating to guidance that is issued by the AGNI, in the form of Statutory Rules (SRs), to certain criminal justice organisations. Such SRs are subject to the negative resolution procedure and in the event that a member or committee wished to pray against the Statutory Rule, no direction is given in Standing Orders as to how the AGNI may respond.

11. The third issue was highlighted during the CJ’s consideration of a proposal by the AGNI to add a name to the list of organisations to whom the guidance (detailed in paragraph 10 above) is issued. The list is set out in statute^[3] and any amendments made must be done through the laying of a Statutory Rule (SR)^[4] by the AGNI. However, the legislation^[5] requires that such SRs are subject to the draft affirmative procedure. The CJ highlighted that here too, no direction is given in Standing Orders.

The Committee’s Approach to the Inquiry

12. Having considered both its predecessor’s legacy report and the correspondence outlined above, the Committee agreed on 26 February 2013 to initiate an inquiry into the extent to which Standing Orders should permit the AGNI to participate in proceedings of the Assembly. The following terms of reference were agreed:

i. To consider the legislation and relevant publications on the role and powers of the Attorney General for Northern Ireland (AGNI) i.e. section 25(1) of the Justice (Northern Ireland) Act 2002; section 25(2) of the Justice (Northern Ireland) Act 2002; “Establishing the Office of the AGNI (DP628); “The Governance and Accountability of the Public Prosecution Service;

ii. To examine the extent to which Attorneys General or other Law Officers in other legislatures contribute to plenary and committee meetings;

iii. To consider stakeholder views on whether, and if so how, they would wish to see the AGNI being accountable to the Assembly both in plenary and to committees for the exercise of his functions, the operation of his office and his relationship with the Public Prosecution Service (PPS);

iv. To make recommendations on whether, how and the extent to which the AGNI will otherwise participate in proceedings of the Assembly, both in plenary and in committees;

v. To report specifically on whether, how and the extent to which the AGNI may, if required, participate in plenary or committee on guidance issued by the AGNI under section 8 of the Justice (Northern Ireland) Act 2004, to a range of criminal justice organisations on the exercise of their functions;

vi. To consider whether, how and the extent to which the AGNI might be asked to give views on the content or competence of Bills prior to Final Stage; and

vii. To consider section 25(4) of the Justice (Northern Ireland) Act 2002 and its application of section 43 of the Northern Ireland Act 1998 (interests of members of the Assembly) to the AGNI and the role of the Northern Ireland Assembly Commissioner for Standards in respect of the AGNI and to report as to appropriate amendments to Standing Orders in this regard.

13. The Committee agreed that the inquiry would be conducted in four phases:

Phase 1 – Evidence Gathering

14. The Committee agreed to take evidence to inform its terms of reference from the following sources:

a. Research on legislation applicable to the inquiry in Northern Ireland^[6] and methods used to facilitate contribution from Attorneys General operating in other jurisdictions; and

b. Evidence from internal and external stakeholders, both through written and oral submissions and completion and return of a questionnaire designed to focus responses on the terms of reference of the inquiry.

15. External stakeholders included the AGNI, who provided both written and oral evidence, the House of Commons, the Oireachtas, Scottish Parliament, National Assembly for Wales and the Law Society of Northern Ireland. Internal stakeholders included political parties, the Executive Committee, the Speaker and the Committee for Standards and Privileges, who had previously carried out a review into the impartiality of the office of AGNI and registration of interests.

Phase 2 – Impartiality of the Office of AGNI and Registration of Interests

16. The Committee agreed to consider all the evidence received in relation to section 25(4) of the Justice (Northern Ireland) Act 2002 and its application of section 43 of the Northern Ireland Act 1998 (interests of members of the Assembly) to the AGNI and the role of the Northern Ireland Assembly Commissioner for Standards in respect of the AGNI and to report and make recommendations to the Assembly on the matter before the summer of 2015.

Phase 3 – Consider and Report on Participation of the AGNI in Assembly Proceedings in respect of areas other than Statutory Rules

17. The Committee agreed to consider all evidence received in relation to the extent to which the AGNI should be permitted to participate in the proceedings of the Assembly in respect of answering Assembly Questions, referral of Bills after Final Stage and the Annual Report of the AGNI and to report and make recommendations on these matters before the summer of 2015.

18. The Committee agreed that, given the similarity of reporting dates for Phase 2 and Phase 3, the inquiry report would be published in two parts. The first, to include findings and recommendations in respect of Phases 1 to 3 and the second, covering findings and recommendations in respect of Phase 4.

Phase 4 – Consider and Report on Participation of the AGNI in Assembly Proceedings in respect of Statutory Rules

19. The Committee agreed to consider all the evidence received in relation to two types of Statutory Rule laid by the AGNI and to report recommendations on these matters by May 2016.

Items Excluded from the Inquiry

20. The Committee was clear that the scope of its inquiry would not include matters relating to the governance and accountability of the Public Prosecution Service (PPS), which was the subject of an ongoing review by the Department of Justice (DOJ).

21. The Committee agreed that any practical out workings of the inquiry, outside of the Standing Orders (e.g. facilitating the AGNI’s presence in the Chamber) were a matter for the Speaker and therefore were outside the scope of the inquiry.

Evidence Gathering

22. The closing date for initial submissions was set as 9 May 2013 and the Committee considered evidence at a number of subsequent meetings. It took further oral evidence from the AGNI on 28 May 2013 and continued its analysis after the summer recess.

23. On 24 September 2013 the Committee agreed four areas where SOs might be required to facilitate participation by the AGNI. These were Assembly Questions, referral of Bills after Final Stage, the Annual Report of the AGNI, and in respect of SRs produced by the AGNI.

24. At the same meeting, the Committee also noted that submissions had not been received from all political parties within the Assembly and agreed to extend the deadline for receipt of submissions to accommodate these.

25. On 26 November 2013 the Committee continued its consideration of evidence and recognised that, given the significant number of options available, a strategic approach to evaluation of these would be helpful. It therefore devised a list of underpinning principles, which it agreed would be used to evaluate options where more than one solution presented itself.

26. The Committee agreed the following key principles be used in determining the extent to which Standing Orders should permit the participation of the AGNI in Assembly proceedings:

i. That as the AGNI is not a duly elected Member of the Assembly s/he should not automatically be afforded the privileges of this office;

ii. That because only duly elected Members of the Assembly have automatic attendance and speaking rights in the Chamber, the AGNI should only attend plenary if s/he is to speak;

iii. The AGNI will only take part in plenary or committee proceedings on foot of a motion or specific request by the Assembly or the relevant committee;

iv. That amendment of the role of the AGNI as currently set out in legislation is outside the scope of this inquiry and any option requiring such change would be discounted;

v. That within devolved arrangements, a clear separation of powers exists, and is desirable, between the Executive and the Assembly;

vi. That the AGNI is not a member of the Executive and that it is important to separate the functions of ministerial oversight and prosecutorial independence;

vii. That the Assembly and its committees have their own legal advisers;

viii. That the member of the Executive responsible for any matter is the person who should be held to account in the Chamber, rather than having someone else respond on their behalf.

27. The Committee considered the final party responses to the consultation at the meeting of 28 January 2014 and subsequently considered a first draft report on 25 February 2014. The Committee had been advised that the AGNI intended bringing a draft affirmative SR to the CJ later that year and the Committee agreed to initiate a pilot to test the feasibility of the proposed process to manage such SRs.

Consideration of Key Issues

Phase 2 - Impartiality of the Office of AGNI and Registration of Interests

28. At its meeting of 22 January 2013 the Committee considered the work done by the Committee on Standards and Privileges (CS&P) in respect of Section 25(4) of the Justice (Northern Ireland) Act 2002 during the 2007 to 2011 mandate. The Committee noted that recommendations arising from the CS&P deliberations had been referred to its predecessor^[7], but outcomes in respect of this aspect of it predecessor’s inquiry had also been deferred and noted in its legacy report.

29. The Committee agreed, that given the time elapsed, it would be appropriate to write to the CS&P for their current view on the matter. In reply, the CS&P confirmed its predecessor’s recommendations remained valid^[8] and this evidence was therefore considered, together with current stakeholder submissions, on 23 April 2013.

30. During consideration of the evidence, the Committee noted that the Law Society agreed with the CS&P recommendations, suggesting these matters needed to be codified in Standing Orders as an important safeguard, both to protect the impartiality of the office of AGNI and to provide another mechanism for insulating the role from the perception of conflicts of interest. There was no other stakeholder evidence submitted on the matter.

31. Following its deliberations the Committee agreed to recommend thata distinct Standing Order be drafted to provide for the AGNI in respect of Section 25(4) of the Justice (Northern Ireland) Act 2002, to include the following:

i. That the AGNI have the same duties as Members in respect of the requirement to register and declare interests;

ii. That the AGNI be prohibited in the same way as Members from advocating on any matter on behalf of anyone else for a payment or benefit;

iii. That the Assembly’s Commissioner for Standards be able to investigate an alleged breach by the AGNI of any duty in respect of Members’ interests which would be set out in Standing Orders;

iv. That the Assembly’s Commissioner for Standards is able to report the outcome of any such investigation to the Assembly in the same manner as for an investigation of complaint against a Member;

v. That the Committee on Standards and Privileges is able to decide whether or not to uphold a complaint and, where it did, that it could recommend the imposition of a sanction. (However, unlike the position in respect of Members, the rights and privileges that could be withdrawn as a result of any sanction imposed would not include the right to salary and allowances.)

32. The Committee agreed with the CS&P view on the Assembly Code of Conduct^[9] and therefore recommends that it would not be appropriate to seek to apply the requirements of the Assembly’s Code of Conduct to the AGNI.

Attorneys General and Law Officers in Other Legislatures

Scottish Parliament

33. The Committee was informed by the Scottish Parliament (SP)^[10] that in this jurisdiction the Attorney General (AG) equivalent (Lord Advocate/Law Officer) MAY be a Member of the Scottish Parliament. Legislation underpinning the role is very similar to the Northern Ireland Act 1998 and states that: “If the Lord Advocate or Solicitor General for Scotland is NOT a member of the Parliament – (a) he may participate in proceedings of the Parliament to the extent permitted in Standing Orders, but may not vote, and (b) Standing Orders may in other respects provide that they are to apply to him as if he were such a member.”

34. Scottish legislation has been translated into the SP Standing Orders at Rule 4.5 - “Participation of the Scottish Law Officers in proceedings”.

35. Rule 4.5(2) states “The Scottish Law Officer may (subject always to the provision in section 27(1)(a) preventing the Scottish Law Officer from voting) participate in any of the proceedings of the Parliament as fully as any member but the Scottish Law Officer may not be appointed as a member of the Parliamentary corporation or the Parliamentary Bureau.”

36. Thus, the Law Officer for Scotland is permitted to attend plenary to answer oral questions, urgent oral questions (if they are selected by the Presiding Officer) and provide written answers to written questions. When attending plenary to answer questions s/he appears on an ad-hoc basis, rather than a regular question slot and can answer questions concerning criminal prosecution and the investigation of deaths.

37. Further, s/he may participate in plenary proceedings to make statements and taking part in debates.

38. The response makes no comment in respect of committee proceedings, although the terminology used to permit the Law Officers to participate “as fully as any Member of the Parliament”, clearly extends to committees with the proviso, as required by legislation, that they may not vote.

UK Parliament

39. The UK Parliament^[11] response notes that the Attorney General MUST be a legally qualified Member of Parliament, drawn from the governing party. S/he is usually a Member of the House of Commons (HOC) but can be a Member of the House of Lords (HOL). However his/her right to participate in plenary sessions differs significantly between the two Houses depending on which House s/he is a member of.

40. If the AG is a Member of the HOC s/he can take part in all proceedings of the HOC, but is not permitted to vote, make any motion or move an amendment other than a motion in the Grand Committee. If however, the AG is a Member of the HOL, s/he takes no part in the proceedings of the HOC. In these circumstances another Law Officer, who is a Member of the HOC, responds on their behalf as required.

41. In the HOC the AG attends question time once every five weeks for 20 minutes, where s/he answers specific AG questions. As a Member of the HOC the AG is held accountable in the same way as other Ministers, that is, through answering oral, written and urgent questions, responding to debates and taking part in committee proceedings.

42. The first reference to the AG participation in committee proceedings in HOC was HOC SO 87 which states: “The AG, the Advocate General and the Solicitor General, or any of them, being Members of the House, though not members of a general committee, may take part in the deliberations of a committee, but shall not vote or make any motion or move any amendment other than a motion in the Scottish Grand Committee…….., the Welsh Grand Committee…… or the Northern Ireland Grand Committee……, or a motion or an amendment in a European Committee…….. or be counted in the quorum.”

43. HOC SO 148A (Committee of Privileges) and paragraph (13) of Standing Order 149 (Committee on Standards) provide that: “The AG, the Advocate General and the Solicitor General, being Members of the House, may attend the committee or any sub-committee, may take part in deliberations, may receive committee or sub-committee papers and may give such other assistance to the committee or sub-committee as may be appropriate, but shall not vote or make any motions or move any amendment or be counted in the quorum.”

44. The HOC response notes that SO 87 is seldom invoked and, in practice, it is extremely uncommon for the AG to take part in general committee proceedings unless s/he has been nominated to the committee as part of the Ministerial team supporting a particular item of Government legislation.

45. The situation in the HOL was described as being even more specific, with the AG only appearing in the HOL when, like judges, s/he receives a Writ of Attendance requiring them to come to Parliament to give their advice. At other times the HOL SOs are clear^[12] that no person other than a Lord is allowed on the floor of the House.

National Assembly for Wales (NAW)

46. In Wales^[13] the AG equivalent (Counsel General) is appointed under the Government of Wales Act 2006 and “MAY be an Assembly Member, but may not simultaneously hold a Ministerial position in the Welsh Government”.

47. This has been translated into SO 9.3 and SO 9.4. Standing Order 9.3 states that: “Subject to the provisions of the Act^[14], the Counsel General may do anything under these Standing Orders which may be done by a Welsh Minister”. Standing Order 9.4 states that “If the Counsel General is not a Member, the Standing Orders apply to the Counsel General as they apply to Members and the Counsel General may participate in Assembly proceedings but may not vote.”

48. This means that the Counsel General can make oral and written statements, participate in debates, answer oral and written questions and appear before NAW committees in the same way as Welsh Ministers.

49. The response notes that since 2011, despite these enabling SOs, the Counsel General has only ever attended plenary meetings when he is answering oral questions or making a statement or responding to a debate on behalf of the Government, and that he does not attend or participate more generally^[15].

50. In terms of participation in NAW committees the response states that the Counsel General may appear before committees in the same way as any other Welsh Minister. However, to date, this has only happened once, when the Counsel General gave evidence to the Constitutional and Legislative Affairs Committee in its inquiry into a separate legal jurisdiction. The response also notes that no committee is specifically tasked with scrutinising the Counsel General on the exercise of his/her functions.

Houses of the Oireachtas

51. In this jurisdiction, the Attorney General is the adviser to the Executive Committee in matters of law and legal opinion and is responsible for superintendence of the prosecuting authorities of the criminal justice system and is guardian of the public interest^[16].

52. Although the Attorney General MAY be a Member of the Irish Parliament, there is an expectation that s/he will act independently and s/he is not permitted to be a member of the Government^[17]. His/her right to attend and participate in plenary sessions differs significantly between the two houses, just as it does in the UK Parliament.

53. In the Dáil, the Attorney General has the right to attend and be heard only if s/he is a duly elected member of the Dáil, while in the Seanad the Attorney General, whether or not a member of the Dáil, has the same right of attendance as a Minister of State.

54. In committees (except committees which comprise only Senators) the Attorney General’s right to participate is governed by the same protocols as for his/her plenary attendance in the Dáil i.e. s/he can only participate if s/he is a duly elected Member of the Dáil.

55. The response also indicated that exceptions to the general rights of compellability afforded to committees exist when it comes to the AG, for example, only the Public Accounts Committee may question the AG, and then only in terms of “general administration” in order to protect judicial processes and prosecution of offences.

Committee Consideration

56. The Committee noted that in models operating in other legislatures, while some aspects were defined in legislation, others were derived from constitutional convention, custom and practice and had been adapted to suit the devolution settlements and unique arrangements of the legal systems in each of the responding jurisdictions.

57. However, more importantly, the Committee also recognised key differences between the local setting and those of respondent jurisdictions and identified that this was largely due to the non-political nature of the office in Northern Ireland^[18]. For this reason the Committee agreed that none of the models could be applied in their entirety to the Assembly, but rather, that a specialist model, reflecting the unique circumstances of the Assembly and the AGNI, was needed.

Accountability

58. The Committee then turned its attention to whether, and if so how, participation of the AGNI in the proceedings of the Assembly in respect of both plenary and committees could be achieved to enhance accountability.

59. The Committee was clear that any participation by the AGNI should be confined to matters for which the AGNI was solely and directly accountable. Examination of stakeholder responses indicated that the Speaker was clearly of the same opinion^[19].

60. The Committee identified four areas in which AGNI participation in Assembly proceedings could potentially enhance accountability. These were: answering Assembly Questions, referral of Bills after Final Stage^[20], examining the Annual Report of the AGNI^[21] and in respect of Statutory Rules (SRs) laid by the AGNI^[22].

61. Both the Law Society for Northern Ireland (the Law Society) and the AGNI himself, highlight these same areas of responsibility, indicating broad agreement with the Committee’s view^[23].

62. However, the Law Society differs slightly from the view expressed by the AGNI when he speaks of the potential for a “huge role for informal interface with Members and Committees”^[24]. The Law Society considers codification of such areas as a necessary means of ensuring such engagement is focussed, and characterised by a clear separation between the Assembly and the office holder.

63. Once these four areas were identified and agreed, the Committee moved on to examine each in more detail. Having taken into account suggestions offered in stakeholder submissions it derived a matrix of options for consideration under each heading (from “no change to current arrangements” to “full participation”), which has been included in the Appendices of this report.^[25]

Area 1 – Answering Assembly Questions

64. In considering if and, if so how, the AGNI might participate in answering Assembly Questions the Committee agreed that key principle number viii above^[26] was relevant.

65. Submissions from other legislatures and stakeholders noted the precedent in other legislatures for the AGNI (or equivalent) to appear in plenary, on either a scheduled, or ad-hoc basis, to answer questions on matters for which they are responsible.

66. The Committee accepted this but also noted that in all other legislatures referred to, AG equivalents MUST or MAY be elected Members and their appearance in plenary was accorded automatically by virtue of this fact. It noted this is not the case in this jurisdiction where the AGNI is expressly forbidden in statute from being an elected Member. The Committee agreed that this was significant.

67. The Law Society^[27] and SP both highlight that SOs of the SP provide for the Attorney General equivalent to answer oral questions on matters within his/her remit, which may “exceptionally” be answered by another Member of the Scottish Executive, but are principally his/her responsibility to answer. The Law Society suggests this mechanism could be used by the Assembly “in order to tighten up accountability arrangements and could be provided for in Standing Orders under Section 25(1) of the Justice (Northern Ireland) Act 2002”.

68. Both these stakeholders highlight that such appearances occur, in practice, on an ad-hoc basis. The AGNI himself also suggests^[28] if he were required to attend the Chamber to answer questions, an ad-hoc basis would be more appropriate.

69. Initially, the Committee identified four options:

• Option 1 – No change to existing arrangements in SOs (i.e. an Executive Minister or Members nominated on behalf of the Assembly Commission are the only people to answer Assembly Questions – either written or oral). The Committee noted that even where no formal arrangement exists for the AGNI to answer Assembly Questions, nothing exists to stop him/her providing answers to any questions sent directly to him/her;
• Option 2 – SOs are amended to permit the AGNI to answer appropriate written questions as they are received^[29];
• Option 3 – SOs are amended to permit the AGNI to answer appropriate written questions as they are received and appropriate oral questions in the Chamber on an ad-hoc basis;
• Option 4 – SOs are amended to permit the AGNI to answer appropriate written questions as they are received and to attend a regular Question Time slot in the Chamber to answer appropriate oral questions.

70. After consideration of the options and information available however, the Committee agreed that as the AGNI was expressly barred from being an elected Member that no automatic right of appearance in the Chamber could be afforded. Further, that even permitting such appearance by virtue of SOs posed risks to both the AGNI and the Assembly.

71. The Committee recognised risks could arise through inappropriate questions being asked (e.g. when matters were sub judice). In such instances, should the AGNI choose not to respond, or be unable to, the Assembly could appear powerless in holding him to account and/or the AGNI could appear unhelpful or lacking transparency. Mitigating such risks was considered difficult and it was therefore agreed that Options 3 and 4 would be set aside.

72. In respect of the remaining two options, the Committee considered the benefits which could arise by formalising the process for obtaining responses to written questions to the AGNI.

73. Here too it recognised risk, as without a concordat or memorandum of understanding between the Assembly and the AGNI ensuring response times for written questions were consistently met could prove difficult. In addition, the Assembly had little influence/sanction which it could bring to bear should such response times be exceeded.

74. For these reasons the Committeerecommended that Option 1 be adopted. That is “no change be made to existing arrangements in Standing Orders in respect of the AGNI answering Assembly Questions.”

75. This means that only Executive Ministers and Members nominated by the Assembly Commission should be required to answer Assembly Questions, either written or oral, and that while no formal arrangement existed, there remains nothing to prevent the AGNI providing answers to any questions sent directly to him/her.

76. The Committee recognised that on the occasions the Assembly wished to question the actions of the AGNI, this could be effectively achieved by requesting his/her attendance at committee, noting that precedent exists for this approach and no change to SOs was required to facilitate it.

Area 2 - Referral of Bills after Final Stage

77. The Committee recognised the responsibility afforded to the AGNI by Section 11 of the Northern Ireland Act 1998. This sets out that any Bill, after achieving its Final Stage, is considered by the AGNI who decides whether to refer it to the Supreme Court for a decision on its legislative competence.

78. The Committee examined two aspects of this process. First, whether it would be appropriate, or desirable, for the AGNI to appear in the Assembly to explain any such decisions to refer a Bill after its Final Stage. Second, whether it might be appropriate, or desirable, to facilitate participation by the AGNI in Assembly proceedings prior to a Bill’s Final Stage, a point also raised by the Speaker^[30] in his submission.

79. The Committee noted that submissions from responding legislatures are silent on this matter and only the AGNI offered any comment from among other stakeholders, suggesting^[31] that explaining decisions taken under this duty could be useful.

80. Initially the Committee identified four options:

• Option 1 – No change to existing arrangements in SOs. If the AGNI decides to exercise the power under Section 11 of the Northern Ireland Act 1998 s/he can be called to a committee to make a statement and/or answer questions as to why s/he has referred a question to the Supreme Court;
• Option 2 – SOs are amended so that if the AGNI decides to exercise the power invested in him/her under Section 11 of the Northern Ireland Act 1998 s/he comes to a nominated committee, at that committee’s request, to make a statement and/or answer questions as to why s/he has referred a question to the Supreme Court;
• Option 3 – SOs are amended to permit the AGNI to attend plenary, only if specifically requested by the Assembly (through the laying of a motion) to make a statement and/or answer questions, or to confirm his/her opinion on why s/he has referred a question to the Supreme Court;
• Option 4 – SOs are amended to permit the AGNI an automatic right of attendance in the Assembly to make a statement and/or answer questions on why s/he has referred a question to the Supreme Court.

81. Recognising the absence of stakeholder comment in respect of this matter, the Committee agreed to consider the options in light of its own agreed key principles.

82. The Committee identified that Option 4 was contrary to key principle number iii above^[32], since it afforded the AGNI an automatic right of attendance in plenary, which was considered only appropriate for elected Members. For this reason Option 4 was set aside.

83. The next most significant change to existing arrangements was found in Option 3 and the Committee agreed that while it was in keeping with agreed key principles, the benefit of introducing such a change needed to be evaluated. It noted that, to date, the duty placed on the AGNI by this section of the Northern Ireland Act 1998 has only been actioned once^[33] and that no benefit in calling the AGNI to the Chamber could be identified in this instance.

84. In fact the Committee identified instead that a risk existed should inappropriate questions be asked. In such cases Members could be perceived as challenging the responsibility of the AGNI to exercise his rights under Section 11 of the Northern Ireland Act 1998. The Committee agreed that mitigating such a risk would be difficult even with the introduction of a clear set of guidelines. Given the infrequency of the occurrence and the lack of obvious benefit, Option 3 was therefore precluded.

85. In examining the remaining options, Option 1 and 2, the Committee recognised that Option 2 merely formalised a process that could already be actioned. Given the infrequency with which this requirement may be used, it agreed that little justification existed for codifying the practice in SOs.

86. For these reasons, the Committee recommended that no change be made to existing arrangements in SOs. Rather, if the AGNI decides to exercise the power under Section 11 of the Northern Ireland Act 1998, a relevant committee can call for him/her to make a statement and/or answer questions as to why s/he has referred a question to the Supreme Court, but that no provision need be made to this effect in Standing Orders.

87. The Committee then moved on to consider whether any benefit could be achieved by considering the extent to which the AGNI might be asked to give views on the content or competence of Bills prior to Final stage.

88. The Speaker raised this matter and noted in his submission that the AGNI has a clear role in advising the Executive on legislative competence, both prior to submission of Bills for introduction and after a Bill has passed Final Stage. The Speaker suggested that given these clear requirements, it would be inappropriate for the AGNI to have any formal role prior to Final Stage.

89. In examining the AGNI’s contribution, the Committee noted that he did not disagree with this view, but rather commented that informal advice and assistance from the AGNI at an early stage in the process may have some benefit.

90. After reflection the Committee agreed the validity of the Speaker’s view and recommended that the AGNI should not be required to give views on the content or competence of Bills prior to Final Stage.

Area 3 - The Annual Report of the AGNI

91. Under Section 26(1) of the Justice (Northern Ireland) Act 2002, the AGNI is required to produce an Annual Report, and submit it to the First and deputy First Ministers who are then required to lay it in the Assembly. Laying the Report requires, at present, that a copy is lodged in the Assembly’s Business Office, where it is available to all Members. No further action is taken. The Report is placed in the public domain when the AGNI publishes it on the internet.

92. When examining the views of stakeholders, the Committee noted that only the AGNI and the Law Society^[34] offered a view on potential participation of the AGNI in respect of the Annual Report. The Law Society noted it was an area for consideration, but also refers to the annual report of the Director of Public Prosecutions (DPP).

93. The Committee recognised the limits of responsibility of the office of the AGNI and, therefore, agreed that participation by the AGNI in terms of the annual report of the DPP falls outside the remit of this inquiry.

94. The AGNI^[35] suggests this area of work could offer opportunities for participation in proceedings of the Assembly and he suggests a statement following the publication of the Annual Report may be helpful. He offers no further suggestion of how this could be achieved.

95. Initially the Committee identified four options:

• Option 1 – No change to existing arrangements in SOs i.e. that the Annual Report is laid in the Assembly by the First and deputy First Ministers and that no further action is taken;
• Option 2 – SOs be amended so that when the Annual Report is laid, the AGNI attends a nominated committee, at that committee’s request, to make a statement and/or answer questions on the content of the Report;
• Option 3 – SOs are amended to permit the AGNI to attend plenary after the laying of his/her Annual Report, only if specifically requested by the Assembly (through the laying of a motion) to address an issue or speak to the Report;
• Option 4 – SOs are amended to permit the AGNI, after the laying of his/her Annual Report, an automatic right of attendance in the Assembly to make a statement and/or answer questions pertaining to the Report.

96. In the absence of any further stakeholder views, the Committee considered the identified options against its agreed key principles.

97. The Committee noted that Option 4 was contrary to key principle number iii above^[36], since it afforded the AGNI an automatic right of attendance in plenary, which it had agreed was only appropriate for elected Members. For this reason Option 4 was set aside.

98. The Committee then examined Option 3 in greater detail, noting that although no convention for such an approach existed, it could be facilitated in a similar way to the annual “take note” debate brought to the House by the Public Accounts Committee. Despite this however, the Committee agreed that as this is not convention or common practice for other annual reports, it was the least preferred of the remaining options.

99. In respect of Option 2, the Committee agreed that the “nominated committee” referred to could, as in previous instances, be either the CJ or another relevant departmental committee, and agreed this was a matter which could be clarified when drafting SOs.

100. The Committee recognised that the only way this option really differed from Option 1 was that it codified a process in SOs, which could equally be achieved by making no change at all. Unlike previous areas however, the Committee could identify no significant risk and as the Report was produced annually, agreed that in this case a benefit could be found in formalising the process.

101. After consideration the Committee thereforerecommended that Option 2 be adopted. That is “SOs be amended so that when the Annual Report is laid, the AGNI attends a nominated committee, at that committee’s request, to make a statement and/or answer questions on the content of the Report”.

Download the full report here.