Report on the operation of the provisions of parts 3 & 4 of the NI Act 1998

Session: 2014/2015

Date: 14 April 2015

Reference: Seventh Report - NIA 242/11-16

ISBN: 9780339605732

Committee: Assembly and Executive Review

report-on-provisions-of-the-ni-act.pdf (5.3 mb)

Executive Summary                                                                       Download the full report here

The Northern Ireland (St Andrew’s Agreement) Act 2006 inserted a new section 29A into the Northern Ireland Act 1998 which provided for the establishment and function of the Assembly and Executive Review Committee (hereafter referred to as the “Committee”).

Section 29A (3) of the NI Act provides that:

The Committee shall, by no later than 1 May 2015, make a report on the operation of the provisions of Parts 3 and 4 of this Act—

(a)        to the Secretary of State;

(b)        to the Assembly; and

(c)         to the Executive Committee.

Standing Order 59 provides that in order to make this report, the Committee shall “consider such matters relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998 as enable it to make the report referred to in section 29A(3) of that Act; and such other matters relating to the functioning of the Assembly or the Executive Committee as may be referred to it by the Assembly”.

From its establishment in 2007, the Committee has undertaken and produced ten reports on a number of matters relating to the operation of the provisions of Parts 3 and 4 of the Assembly and on matters relating to policing and justice which were referred to it by the Assembly.

Prior to agreeing each review topic, the Committee consulted with political parties in order to identify the priorities which the Committee should take forward. During the course of each review, the Committee sought and considered the views of political parties in respect of each review topic. In addition, where appropriate, the Committee sought the views of independent stakeholders, held a number of evidence sessions and commissioned briefing papers from Assembly Research and Information Services.

In order to complete this Report, the Committee undertook a broad overview of the sixty provisions provided for under Parts 3 and 4 of the Northern Ireland Act. As part of this overview, the Committee took into account the conclusions from previous Committee reports, correspondence from political parties and the Stormont House Agreement which relate to the provisions of Parts 3 and 4 of the Northern Ireland Act. The Committee acknowledged that a number of commitments relating to institutional reform, as provided for under the Stormont House Agreement, were previously the subject of AERC reports and that the Committee’s work in these reviews proved to be a useful tool in helping to achieve these commitments.

The Committee recognised the pledge by the Secretary of State for Northern Ireland to work with the political parties in the Assembly to put into effect the commitments in the Stormont House Agreement and in particular those commitments relating to the provisions of Parts 3 and 4 of the Northern Ireland Act 1998.

The Committee agreed that the Chairperson and Deputy Chairperson should meet with the First Minister and deputy First Minister to discuss the impact of the Stormont House Agreement on the future work of the Assembly and Executive Review Committee. The Committee further agreed that it would return to consider a number of provisions of Parts 3 and 4 of the Northern Ireland Act following the publication of this Report.

Introduction

Background to the Review.

1. The Northern Ireland (St Andrews Agreement) Act 2006 inserted section 29A into the NI Act 1998 to require the Assembly to establish a Committee to review the functioning of the Assembly and the Executive Committee.

Northern Ireland Act 1998- Section 29A

29A Committee to review functioning of Assembly and Executive Committee.

(1) Standing orders shall make provision -

(a) for establishing a committee to examine such matters relating to the functioning of the Assembly and the Executive Committee as may be specified in the standing orders;

(b) in relation to the membership of the committee; and

(c) for regulating proceedings of the committee.

(2) Standing orders shall provide for the committee to make reports—

(a) to the Assembly; and

(b) to the Executive Committee.

(3) The committee shall, by no later than 1 May 2015, make a report on the operation of the provisions of Parts 3 and 4 of this Act— .

(a) to the Secretary of State;

(b) to the Assembly; and

(c) to the Executive.

2. The detailed practical arrangements for the Committee’s operation are provided for in Standing Order 59.

Standing Order 59: Assembly and Executive Review Committee provides:

(1) There shall be a standing committee of the Assembly to be known as the Assembly and Executive Review Committee.

(2) The committee may -

(a) exercise the power in section 44(1) of the Northern Ireland Act 1998; and

(b) report from time to time to the Assembly and the Executive Committee.

(3) The committee shall consider -

(a) such matters relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998 as enable it to make the report referred to in section 29A(3) of that Act; and

(b) such other matters relating to the functioning of the Assembly or the Executive Committee as may be referred to it by the Assembly.

3. Section 29A(3) requires the new Committee to make a report on the operation of the provisions of Parts 3 and 4 of the NI Act 1998 to the Secretary of State, the Assembly and the Executive Committee by 1 May 2015.

Parts 3 and 4 of the Northern Ireland Act 1998

4. Part 3 of the Northern Ireland Act 1998 relates to the Executive Authorities. It contains 32 provisions which are grouped under the following six headings: Authorities; Functions; Ministerial Code; Power to Refer Ministerial decision to Executive Committee; Executive Committee: further provisions; and Miscellaneous.

5. Part 4 of the Northern Ireland Act 1998 relates to the Northern Ireland Assembly. It contains 28 provisions which are grouped under the following five headings: Elections etc.; Disqualification; Presiding Officer and Commission; Proceedings etc.; Remuneration and Pensions; and Miscellaneous.

6. Parts 3 and 4 of the NI Act 1998 as enacted were amended by the introduction of subsequent primary legislation. As part of its consideration for this Report, the Committee noted the key amendments to Parts 3 and 4 as provided for in the following pieces of legislations: Disqualification Act (2000); Northern Ireland (Monitoring Commission etc) Act 2003; Northern Ireland (St Andrew’s Agreement Act) 2006 & 2007; Northern Ireland (Miscellaneous Provisions) Act 2006; Justice and Security (Northern Ireland) Act 2007; Northern Ireland Act 2009; Northern Ireland Assembly Members Act 2010; and Northern Ireland (Miscellaneous Provisions) Act 2014.

Committee’s Approach to the Review

7. In order to inform its consideration of such matters relating to the operation of the provisions of Parts 3 and 4 of the NI Act 1998, the Committee wrote to political party leaders and independent MLAs on a number of occasions. The letters requested that they submit to the Committee their priorities in respect of the provisions of Parts 3 and 4 of the NI Act 1998. The Committee’s consideration of the responses received informed its deliberations as to the topic for each review. Details of the correspondence from political parties and independent MLAs in respect of future review topics can be found in (Appendix 4).

8. In addition, as part of its approach to each review, the Committee wrote to the leaders of all political parties to request their detailed views in respect of each review topic. The Committee then considered the responses received as part of its deliberations prior to the production of each report. Details of the responses received from the political parties and independent MLAs can be found in the appendices of each of the reports completed.

9. In accordance with its statutory obligation to consider such matters relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act as enable it to make this report, the Committee has carried out inquiries, and published ten reports thereon from 2007 to 2015 (Appendix 3). These include reports relating to:

  • The Devolution of Policing and Justice (February 2008; January 2009 & February 2010);
  • The Operation of Sections 16A to 16C of the Northern Ireland Act 1998 (January 2011);
  • The Initial Ministerial Provision in relation to the Department of Justice and the arrangements of 1 May 2012 (November 2011);
  • The Number of Members of the Northern Ireland Legislative Assembly (June 2012);
  • Reduction in the Number of Northern Ireland departments (November 2012);
  • A Review of D’Hondt, Community Designation and Provisions for Opposition (June 2013);
  • A Review of Petitions of Concern (March 2014); and
  • Women in Politics and the Northern Ireland Assembly (February 2015).

10. At the Committee meeting of 4 November 2014, the Committee agreed to seek legal advice in respect of the Committee’s statutory obligation to make a report on the operation of the provisions of Part 3 and 4 of the NI Act 1998. The Committee considered this legal advice, in closed session, at its meeting on 9 December 2014.

11. At the same meeting the Committee agreed to write, once again, to the leaders of all political parties and independent MLAs to ask if there were any further provisions of Parts 3 and 4 of the NI Act 1998 which the Committee should consider. The letter was issued on 9 December 2014 with a closing date of 20 January 2015. Parties did not indicate any further issues which the Committee should consider.

12. Following the conclusion of the Stormont House Agreement, which dealt with issues relating to Parts 3 and 4 of the 1998 Act the Committee considered the scope and approach for the May 2015 report. At this meeting on 27January 2015, Members agreed that the Committee should write again to the leaders of the political parties and independent MLAs. Parties did not indicate any further issues which the Committee should consider.

13. At the meeting of the 27 January 2015, the Committee also agreed to commission research to assist the Committee in their consideration of this Report. Assembly Research and Library Services produced a paper (Appendix 5) for the Committee which provided:

  • details of judicial reviews or challenges which have been made under Parts 3 and 4 of the NI Act 1998 since 2007; and
  • details of work undertaken on Parts 3 and 4 of the NI Act 1998 by Assembly groups or committees and independent statutory bodies.

14. At the meeting of 10 February 2015, the Committee agreed its approach to reviewing and reporting on the operation of the provisions of Parts 3 and 4 of the NI Act. It was agreed that in order to complete this Report, on the operation of the provisions of Parts 3 and 4 of the Act, the Committee would consider:

  • the conclusions and recommendations from previous AERC reports;
  • the requests received from the leaders of political parties and independent MLAs to review Parts 3 and 4;
  • the outcome of the Stormont House Agreement; and
  • briefing papers from Assembly Research Services and the Committee Clerk in respect of Parts 3 and 4.

15. In addition to the ten reports noted above, the Committee also considered the issue of multiple mandates and the review of functions relating to judicial appointments and removals as provided for under Section 29C. In respect of this latter review, it was agreed at its meeting of 28 June 2011, that responsibility for this review should pass to the Committee for Justice and Standing Orders were amended accordingly.

16. From 2007- 2011, the Committee commissioned papers from Assembly Research and Information Services and also sought the views of political parties in respect of dual/multiple mandates. The Committee did not undertake a full review on the issue of multiple mandates owing to delays relating to the Review of Public Administration and the mandate from the Assembly to undertake reviews relating to the arrangements for the devolution of policing and justice matters.

Engagement with Political Parties

First Mandate 2007-2011

17. In July 2007 and April 2008, the Committee wrote to the leaders of all political parties to seek their views on multiple mandates and potential conflicts of interest. At the meeting of 1 July 2008, the Committee considered the responses received from all political parties. The Committee agreed that as the issue of dual/multiple mandates was closely linked with the Review of Public Administration (RPA), it would consult with the Minister for the Environment before proceeding. The RPA process was suspended in 2010 by which time the Committee had moved on to consider issues relating to policing and justice which were referred to it by the Assembly. At the meeting of 10 March 2010, the Committee agreed to forward all the information it collated on the issue of multiple mandates to the Committee for the Environment to assist it in its scrutiny of the Local Government (Disqualification) (Amendment) Bill.

18. In September 2008, the Committee wrote to the leaders of all political parties represented in the Assembly seeking their views on those issues the Committee should consider in its work on the devolution of policing and justice matters. The responses received from political parties were included as part of a composite list of twenty six issues which the Committee subsequently considered as part of its two reports on the Arrangements for the Devolution of Policing and Justice Matters (January 2009 & February 2010). Details of the responses received can be found in Appendix 3 of the First Report on the Arrangements for the Devolution of Policing and Justice Matters (January 2009).

19. In March 2010, the Committee agreed to provide proposals as to what items should be considered on the Committee’s forward work programme. The Committee considered the responses received from the political parties at its meeting of 29 June 2010 and agreed to commission research on the legislative requirements relating to each of the issues. At its first meeting in September 2010, the Committee decided to take forward two issues: the size of the Assembly in terms of the number of MLAs and the operation of sections 16A to 16C of the NI Act 1998.

20. In October 2010, the Committee wrote to the leaders of political parties and independent MLAs to seek their views in respect of sections 16A to 16C and a reduction in the number of Assembly Members and Executive Departments. The responses received from the political parties formed part of the Committee’s deliberations as part of its Review of the Operation of Sections 16A to 16C of the NI Act 1998. Details of the responses received can be found in Appendix 3 of the Report on the Review of the Operation of Sections 16A to 16C of the NI Act 1998.

Second Mandate 2011-2015

21. In order to further inform its consideration of such matters relating to the operation of the provisions of Parts 3 and 4 of the NI Act 1998, from June 2011 to March 2015, the Committee wrote to political party leaders and independent MLAs on four separate occasions. The letters requested that they submit to the Committee their priorities in respect of the provisions of Parts 3 and 4 of the NI Act 1998. The Committee’s consideration of the responses received informed its deliberations as to the topic for each review.

22. In addition, when undertaking each Review, the Committee wrote to the political party leaders to seek their detailed views in respect of the specific review topic. Details of the responses received from the political parties and independent MLAs are included in the appendices of each report.

23. At its first meeting of the new mandate, on 7 June 2011, the Committee agreed to write to the leaders of the five parties represented on the Committee requesting that they provide the Committee with their priorities for the Committee’s forward work programme. At the meeting of 28 June 2011, the Committee noted the responses received from the Alliance Party, Sinn Féin, the SDLP and the UUP. At the same meeting the Committee agreed that the Chairperson and Deputy Chairperson should meet the First Minister and the deputy First Minister prior to finalising its forward work programme.

24. At its meeting of 11 October 2011, the Committee agreed that following receipt of a letter from the then Secretary of State for Northern Ireland, it would write to political parties to request their priorities for the Committee’s review of the provisions of Parts 3 and 4 of the NI Act 1998. The Committee considered the responses received from political parties at its meeting 17 January 2012 and agreed that the Committee’s next review would be the size of the Assembly and the number of Northern Ireland departments. Following the completion of this Review in November 2012, the Committee agreed that its next priorities for review were the issues of D’Hondt, Community Designation and Provisions for Opposition.

25. At its meeting of 21 May 2013, the Committee acknowledged that it was coming to the end of its Review of D’Hondt, Community Designation and Provisions for Opposition. It agreed that it would write to party leaders and independent MLAs requesting information on what issue or issues they would like to see prioritised for review by AERC in the coming autumn 2013 session.

26. At its meeting of 25 June 2013, the Committee noted the responses received from the Alliance Party, Sinn Féin, the UK Independence Party, the Ulster Unionist Party and the TUV. The Committee agreed to return to this issue at its next meeting, pending receipt of responses from the DUP and the SDLP. At its meeting of 2 July 2013, the Committee considered the responses received from DUP and SDLP. The Committee agreed that secretariat staff should compile information on the topics discussed and present the information at the Committee’s next meeting.

27. At the meeting of 10 September 2013, the Committee considered topics for its next review. The Committee received research briefings from the ‘The Civic Forum’ and ‘Women in the Northern Assembly’. Following consideration of the research papers, the Clerk’s briefing paper and the responses received from political parties and independent MLAs, the Committee agreed that secretariat would provide further information on the subject of Petitions of Concern as its immediate review topic for the autumn 2013 session.

28. Following agreement on the Committee’s Report on the Review of Petitions of Concern, the Committee agreed at the meeting 25 March 2014, that the Committee would write to the leaders of political parties to seek an update from party leaders of the Assembly on their preferences on topics for the Committee’s future work programme.

29. The Committee received one response from Sinn Féin which the Committee considered at its meeting of 8 April 2014. At the same meeting, the Committee agreed that the topic of its next Review would be Women in Politics and the Northern Ireland Assembly. This Review was completed in February 2015.

30. At the meeting of 9 December 2014, the Committee received a briefing from Assembly Legal Services in respect of the May 2015 Report. The Committee agreed to write to all Northern Ireland Assembly party leaders and independent MLAs to ask if there were any further provisions of Parts 3 and 4 of the NI Act 1998 which the Committee should consider. Parties did not indicate any further issues which the Committee should consider.

31. Following the conclusion of the Stormont House Agreement on 23 December 2014, the Committee agreed, at its meeting of 27 January 2015, to write again to all Northern Ireland Assembly parties and independent MLAs. Parties were asked to identify if there were any further provisions of Parts 3 and 4 of the NI Act 1998 which the Committee should consider. Again, parties did not indicate any further issues which the Committee should consider.

Timeline of AERC Reports 2007-2015

 

Summary of Reports

1..Report on the Inquiry into Devolution of Policing and Justice Matters – (February 2008)

32. This Report was prepared in accordance with the terms of section 18 of the Northern Ireland (St Andrews Agreement) Act 2006 which requires the Assembly to make a report to the Secretary of State before 27 March 2008, on progress towards the devolution of policing and justice matters. Following the restoration of the Northern Ireland Assembly, at its first meeting on 22 May 2007, the Assembly and Executive Review Committee agreed to table a motion seeking the agreement of the Assembly to the Committee undertaking the work on preparing a report on progress towards devolution of policing and justice matters. On 4 June 2007, the Assembly resolved that the task of preparing a report on progress towards the devolution of policing and justice should be a matter for the Assembly and Executive Review Committee.

33. The Committee agreed its terms of reference on 3 July 2007, at which time it agreed to public advertisements calling for the receipt of written submissions. In addition, the Committee agreed to write, directly, to a number of specific organisations to invite views. The Committee met on twenty occasions between 11 September 2007 and 26 February 2008 during which time it considered written and oral evidence from a range of individuals and organisations, including the Northern Ireland Office, as well as submissions from two expert witnesses. The political parties also made submissions during the course of the inquiry.

34. The Report deals with the range of policing and justice powers which would cease to be reserved matters in circumstances where there was a request by the Assembly for devolution. It addresses issues associated with the ministerial model and procedures for filling the ministerial post/s for any new Department with responsibility for policing and justice powers, as well as the timing of devolution. In particular, the Report makes specific recommendations on the range of policing and justice powers which would cease to be reserved matters as well as the further preparations which need to be made to facilitate devolution.

35. The Report discusses issues to do with the structure, relationships, governance and accountability of any new department which would exercise powers in relation to policing and justice matters and it acknowledges concerns related to the funding for, and timing of, devolution.

36. The Report calls on the political parties to commit to further discussions to produce recommendations on a range of outstanding issues associated with the ministerial model and procedures for filling the ministerial post/s for any department, including how any such department would be accommodated in the Executive, and the timing of devolution. The Report also acknowledges that, once such agreement is reached, the detail of that agreement be conveyed, immediately thereafter, to the Secretary of State for Northern Ireland.

37. The Committee agreed the Report on 26 February 2008 and the Report was debated in Plenary on 8 March 2008.

2. First Report on the Arrangements for the Devolution of Policing and Justice Matters - (January 2009)

38. In September 2008, the Committee agreed to seek a fresh mandate from the Assembly relating to the devolution of policing and justice matters. The Committee agreed the terms of reference for this work as follows:

  • a review of progress on the implementation of the recommendations of, and the resolution the resolution of outstanding issues identified in, the Report on the Inquiry into the Devolution of Policing and Justice Matters; and
  • consideration of any other matter relating to the devolution of policing and justice matters.

39. Over the month of September 2008, the Committee sought the views of the First Minister and deputy First Minister and the leaders of all the political parties represented in the Assembly on the specific matters which the Committee should consider in relation to policing and justice. On 14 October 2008, the Committee agreed to extend observer status to those parties represented in the Assembly, but not represented on the Committee. At that same meeting, the Committee decided on a list of twenty six issues, which it subsequently allocated to one of three categories as follows:

  • Category One Issues - to be resolved, within the Committee, pre-devolution.
  • Category Two Issues - to be resolved by the Committee, pre-devolution but which might require wider consultation and consideration.
  • Category Three Issues - to be resolved, post-devolution.

40. Following the meeting on 14 October 2008, the Committee met on a further ten occasions up to, and including, 6 January 2009, to give detailed consideration to the category one list of issues. In the course of these deliberations, Members had available to them responses from the political parties, correspondence from the First Minister and deputy First Minister and Secretary of State for Northern Ireland and a number of other briefing papers from the Assembly Research and Information Services and the Committee Clerk. The Committee agreed the final report at its meeting of 6 January 2009.

3. Second Report on the Arrangements for the Devolution of Policing and Justice Matters - (February 2010)

41. At its meeting of 13 January 2009, the Committee proceeded to consider the category two list of issues with a view to publishing a second report before the end of 2009. At the same meeting, the Committee agreed the appointment of a specialist advisor to assist in its deliberations on the financial implications of devolving policing and justice powers. In relation to these financial matters, the Committee also sought written submissions from all agencies and organisations within the policing and justice sector and conducted twelve oral evidence sessions.

42. Throughout 2009, the Committee also commissioned a number of research papers related to its work. To aid in its consideration of the category two list of issues, the Committee made visits to Westminster, Scotland and Dublin and spoke with a range of individuals. In total the Committee held twenty seven meetings.

43. During the course of this Review, the Agreement at Hillsborough Castle on 5 February 2010 set out, among other things, a proposed timetable for the devolution of policing and justice matters. In accordance with Section 4 of the Northern Ireland Act 1998, the first stage of the process was to be the tabling, jointly by the First Minister and deputy First Minister, of a resolution requesting devolution. In advance of the debate on the resolution and cross community vote which took place in the Assembly on 9 March 2010, the Committee decided to publish its Second Report on the Arrangements for the Devolution of Policing and Justice Matters in time to inform Members of its consideration of relevant matters.

44. The Second Report considered a number of matters including the financial implications of the devolution of policing and justice matters; the role of the Attorney General; the arrangements for the appointment, and removal, of judicial office holders; North/South policing and justice agreements; parading; the Public Prosecution Service; and the Justice Minister’s position in the Northern Ireland Executive.

45. The Committee agreed the Second Report on the Arrangements for the Devolution of Policing and Justice Matters at its meeting of 25 February 2010 and it was published on 9 March 2010.

4. Review of the Operation of Sections 16A to 16C of the NI Act 1998 – (January 2011)

46. At its first meeting in September 2010, the Committee decided to take forward two issues: the ‘size’ of the Assembly in terms of the number of MLAs; and the operation of sections 16A to 16C of the Northern Ireland Act 1998. In October 2010, the Committee wrote to political parties and independent MLAs seeking their views in respect of sections 16A to 16C of the NI Act 1998 and the reduction in the number of Assembly Members and Departments.

47. While it awaited the outcome of the passage of the Parliamentary Voting System and Constituencies Bill through Westminster which would impact on the ‘size’ of the Assembly, the Committee decided to focus on reviewing the operation of sections 16A to 16C of the NI Act which was a specific requirement under section 29 of the NI Act 1998 and Standing Order 59 (3) (a) and (b).

48. Over a period of several weeks the Committee considered the issues outlined in the submissions received from political parties and independent MLAs. The submissions indicated a diverse range of opinions on what action should be taken in respect of sections 16A to 16C ranging from recommending that the Secretary of State make an order that would have the effect as if the executive selection amendments had not been made, to maintaining the executive selection amendments in total in the absence of a consensus on how to move forward. The Committee sought legal advice on two occasions to clarify its role, the relevance of the date of 1 February 2011 and scope to report after this date.

49. The Committee acknowledged the importance of trying to move forward on this issue on the basis of consensus. Following consideration of the issues raised in the submissions the Committee acknowledged that a consensus could not be reached.

50. It was proposed that the Committee should recommend that the Secretary of State should make an order amending the Northern Ireland Act 1998 and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made. The Committee divided on this proposal which was defeated (7 votes to 3 with no abstentions).

51. A second proposal was made that the Committee should write to the Secretary of State indicating that Section 16C(6) should be removed from the Northern Ireland Act 1998. The Committee divided on this proposal which was subsequently supported (6 ayes, 3 noes and 1 abstention).

52. The Committee agreed to write to the Secretary of State outlining its position and acknowledging that the decision had been taken on the basis of a simple majority.

53. The Committee met on nine occasions up to, and including, 18 January 2011, to give detailed consideration to issues relating to the review of the operations of Sections 16A to 16C of the NI Act 1998. The Committee agreed the final Report on the Review of the Operation of Sections 16A to 16C of the NI Act 1998 at its meeting of 18 January 2011.

5. Review of the Initial Ministerial Provision in relation to the Department of Justice and the arrangements from 1 May 2012 – (November 2011)

54. At its second meeting of the new mandate on 28 June 2011, the Assembly and Executive Review Committee held discussions in relation to options for its forward work programme. It was agreed that the Chairperson and Deputy Chairperson should meet with the First Minister and deputy First Minister and that, during this meeting, views should be sought on reviewing the arrangements for the appointment of the Minister for Justice.

55. On 10 October 2011, the Northern Ireland Assembly approved a motion under Standing Order 59(4) b to refer to the Assembly and Executive Review Committee the matter of the Review of the Initial Ministerial Provision of the Department of Justice and to make recommendations relating to the provision that should exist from 1 May 2012. The Committee subsequently agreed its terms of reference for this Review on this basis.

56. The timescale for the Review provided for the possibility that a ‘second Act’ will be required by 1 May 2012. The Committee agreed that its stakeholders for this Review would be the Assembly’s political parties and independent MLA, OFMdFM and the Department of Justice, including their respective Assembly Committees. All were issued a detailed stakeholder options paper which set out possible options arising from the legislation that could be developed but may not necessarily be a practical or viable way forward. The paper sought views from stakeholders on the suitability and adequacy of the initial ministerial provision and in relation to the arrangements from 1 May 2012.

57. Stakeholders were asked to indicate their preferred option(s), reasons for these preference(s) and unacceptable options. Four stakeholder responses provided comments on the initial ministerial provision and seven stakeholders provided a substantive response on the arrangements from 1 May 2012.

58. On the latter, the Alliance Party favoured Option A, that is the Assembly resolves that the Department of Justice is to continue operating from May 2012, while the DUP described Option A as ‘worthy of further consideration’. Option B3, that is, a second Act under the Northern Ireland Act 2009 (before 1 May 2012), which repeals the ‘Initial Ministerial Provision’, with all Northern Ireland Ministers losing their offices (including the Minister for Justice) and these offices being filled by the D’Hondt process, was favoured by the Green Party (NI), the SDLP and Sinn Féin – with the DUP stating that this option was ‘worthy of further consideration …subject to a reduction of the number and reorganisation of departments’. No stakeholder selected Option C - to resolve that the Department is to continue operating from 1 May 2012 with a subsequent Act, or Option D – an Act dissolving the Department of Justice pre 1 May 2012, or Option E – ‘do nothing’.

59. A number of stakeholder responses (DUP, Green Party (NI), SDLP and UUP) raised the issue that the review of arrangements in relation to the Department of Justice provides an opportunity to simultaneously review and reduce the number of Government departments in Northern Ireland.

60. On the basis that there was no broad consensus on any of the options, the Committee agreed to draft a Report that outlined all the different opinions, summarised the consultation outcome in terms of who endorsed which options and why, and any other comments.

61. The Committee agreed the final Report on the Review of the Initial Ministerial Provision in relation to the Department of Justice and the arrangements from 1 May 2012 at its meeting of 22 November 2011.

6. Review of the Number of Members of the Northern Ireland Legislative Assembly and on the Reduction in the Number of Northern Ireland Departments: Part 1 - Number of Members of the Northern Ireland Legislative Assembly – (June 2012)

62. In September 2011, the then Secretary of State for Northern Ireland wrote to the former Speaker to advise that he intended to bring forward a Northern Ireland Bill in the Third Session of Parliament. The then Secretary of State advised that the Bill would provide an opportunity to make changes to the Northern Ireland institutions where there is broad support among the Assembly parties and where Westminster primary legislation would be required, such as future amendments to the Northern Ireland Act 1998.

63. In October 2011, the Committee requested the political parties submit their priorities for the Committee’s immediate review of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998, within the available timescale set out by the Secretary of State for his proposed Northern Ireland Bill. Following consideration of the responses, the Committee agreed that its immediate review would be the size of the Assembly and the number of Northern Ireland departments.

64. At the meeting of 14 February 2012, the Committee agreed the terms of reference for the Review, a stakeholder ‘call for evidence’ paper and a stakeholder list which included all political parties registered in Northern Ireland. It was agreed that Part 1 of the Review would consider and report on the number of MLAs by early June 2012.

65. The Committee received and considered 25 stakeholder responses to the Review, focusing on the views submitted on the five key issues set out in the Committee’s ‘call for evidence’ paper. The key issues were:

a) Whether the statutory link between Westminster and Northern Ireland constituencies should be removed and the implications of removing or retaining this link;

b) The implications of the forthcoming reduction (on the implementation of the Parliamentary Voting Systems and Constituencies Act 2011) and any further reduction in the number of MLAs;

c) The reduced number of MLAs required to ensure that the effectiveness of the Assembly in delivering its key functions is maintained, consistent with the safeguards on inclusivity;

d) Proposals to mitigate the impact of reducing the number of MLA’s on the effectiveness of the Assembly in delivering its key functions, including in particular, proposals to ensure a robust and effective committee system; and

e) The reduction in the number of NI departments and associated re-allocation of functions which will ensure the effectiveness of the Executive functions are maintained.

66. The Committee received oral evidence from Professor Rick Wilford (Queens University Belfast), the Northern Ireland Local Government Association (NILGA) and the Clerk/ Director General of the Northern Ireland Assembly (Mr. Trevor Reaney).

67. Members considered that the five key Issues were very much interlinked and that a holistic approach to reaching a view on the size of the Assembly in terms of the number of MLAs should be taken. That being said, the Committee could not reach consensus on the size of the Assembly

68. The Report therefore set out in some detail the particular position of the political parties represented on the Committee on the four key issues under the first part of the Review.

69. The Committee agreed the final Report on Part 1 of the Review of the Number of Members of the Northern Ireland Legislative Assembly and of the Reduction in the Number of Northern Ireland Departments be printed at the meeting 12 June 2012.

7. Part 2: Reduction in the Number of Northern Ireland Departments – (November 2012)

70. Following the completion of the Part 1 Report, the Committee began work on the Part 2 Report on the Reduction in the Number of NI Departments. In undertaking the Part 1 Report, the Committee had already agreed the terms of reference for the Review, a stakeholder ‘call for evidence’ paper and a stakeholder list which included all political parties registered in Northern Ireland.

71. The Committee received and considered the 21 stakeholder responses relating to this Part 2 Review, which focused on the fifth key issue set out in the Committee’s ‘call for evidence’ paper, that is:

  • The reduction in the number of NI Government Departments and associated re-allocation of functions which will ensure the effectiveness of the Executive functions are maintained.
  • How many Departments are required to effectively discharge the current range of devolved functions?
  • In broad terms, what functions should be grouped in the reduced number of Departments and what factors informed your decisions on grouping functions together in a Department?

72. The Committee considered the previous oral evidence on the reduction in the number of Departments provided by Professor Rick Wilford (Queens University Belfast) at its meeting of 28 February 2012.

73. Although Members did not reach agreement on how many Northern Ireland Government departments there should be, the Committee did agree the underlying objectives, broad areas of commonality within the Committee, and underpinning principles for any reorganisation of departments.

74. The Report sets out the particular position of the political parties represented on the Committee in relation to the reduction of the number of departments considered in this Review, and also details the objectives, areas of commonality and underpinning principles for any reorganisation of departments agreed by the Committee.

75. The Committee agreed the final Part 2 Report on the Reduction in the Number of Northern Ireland Departments at the Committee meeting of 20 November 2012.

8. Review of D’Hondt, Community Designation and Provisions for Opposition – (June 2013)

76. In August 2012, the then Secretary of State for Northern Ireland launched a consultation entitled, ‘Consultation on measures to improve the operation of the Northern Ireland Assembly’, one of the key areas of which was “Government and Opposition”. In February 2013, the Secretary of State published a draft version of the Northern Ireland (Miscellaneous Provisions) Bill, which was formally introduced in Westminster in May 2013. The Bill did not include any provisions relating to opposition, with the introduction to the draft legislation stating:

77. “While the Government would welcome moves towards a system of government and opposition, we remain clear that such changes could only come about with the agreement of parties in the Assembly. In addition, such moves must be consistent with the principles of inclusivity and of power-sharing that are central to the Belfast Agreement. We do not believe that there is sufficient consensus for statutory change at present which is why the draft Bill includes no provision on this issue.

78. However, the consultation document also drew attention to the possibility of procedural change within the Assembly aimed at providing for a more effective opposition. The Government notes that the Assembly and Executive Review Committee is examining these questions, amongst other institutional issues.”

79. Following the completion of the Part 2 Review in November 2012, the Committee agreed that its next priorities for review were the issues of D’Hondt, community designation and provisions for opposition. In February 2013, the Committee agreed the terms of reference for its Review of D’Hondt, Community Designation and Provisions for Opposition, a stakeholder ‘call for evidence’ paper and a stakeholder list that included all political parties registered in Northern Ireland.

80. The Committee received and considered 22 stakeholder responses to the Review. The Committee heard oral evidence from leading academics and civil society groups. The Committee also visited the Scottish Parliament in April 2013, when Members met representatives of the Scottish Parliamentary Corporate Body and the Parliamentary Bureau, in order to inform the Review.

81. The Committee did not reach consensus on ceasing to use/replacing the current D’Hondt system as the mechanism for allocating Ministerial positions or Committee Chairperson/Deputy Chairperson.

82. In it’s Report the Committee concluded that there was no consensus, at that time, to move to a formal Government and Opposition model, such as exists in Westminster. It also concluded that there is no consensus to move from the current opt-out model, whereby Parties can exercise their right to opt-out of taking up their Ministerial post or withdraw from the Executive, based on existing Assembly provisions.

83. However, the Committee did reach some consensus in relation to financial support, speaking rights, speaking order and speaking time, and in relation to a Heads of Agreement of a Programme for Government. Details on these are included in the Report on the Review.

84. The Committee recommended that the facility for technical groups be reviewed. The Committee concluded that there was no consensus for replacement of community designation by, for example, a weighted-majority vote in the Assembly of 65%. Following the evidence that was presented to the Committee regarding Petitions of Concern, the Committee concluded that further detailed work in relation to Petitions of Concern needs to be carried out.

85. The Committee agreed the final report on 18 June 2013 and it was debated in the Assembly on 2nd July 2013, and the Assembly noted the Report.

9. Review of Petitions of Concern – (March 2014)

86. In September 2013, the Committee agreed that its next review would look at Petitions of Concern, as its June 2013 Report on its ‘Review of D’Hondt, Community Designation and Provisions for Opposition’ concluded that “further detailed work in relation to Petitions of Concern needs to be carried out.” The Committee then spent some time considering the scope of the Review and key issues related to the Review – in particular, the issue of Ad Hoc Committees on Conformity with Equality requirements and Petitions of Concern. The Committee also commissioned and received briefings from Assembly Research and Legal Services that informed Members’ discussions and views on the issues arising from this Review.

87. Following these briefings, the Committee discussed its initial approach to the Review and agreed to draft a specific ‘Options Paper’ which was sent to the leaders of the parties represented on the Committee in October 2013. The Options Paper related specifically to the issue of voting on the establishment of an ad-hoc Committee on Conformity with Equality Requirements prior to a vote on a Petition of Concern. The Committee considered and discussed the party responses at its November 2013 and December 2013 meetings.

88. In January 2014, the Committee agreed the terms of reference for its Review of Petitions of Concern. As set out in the terms of reference, the Review considered evidence on Petitions of Concern in relation to:

  • Provisions for voting on an Ad Hoc Committee on Conformity and Equality Requirements prior to the vote on a Petition of Concern;
  • The possibility of restricting the use of Petitions of Concern to certain key areas, and mechanisms that might facilitate this;
  • Whether the current threshold of 30 signatures required for a Petition of Concern should be adjusted; and
  • Whether the Petitions of Concern mechanism should be replaced with an alternative mechanism, such as a weighted-majority vote.

89. Rather than issue a fresh ‘Call for Evidence’ for this Review, the Committee agreed that it would consider relevant sections of the submissions and the Hansard Reports from oral evidence sessions to its previous Review of D’Hondt, Community Designation and Provisions for Opposition as these specifically addressed the issue of Petitions of Concern. The Committee’s Report is structured to specifically address the Committee’s considerations and conclusions in respect of the four key issues identified in the terms of reference above.

90. At its meeting of 25 March 2014, the Committee ordered that its Report on the Review of Petitions of Concern Report be printed. The Report set out six conclusions and notes that the Committee did not achieve consensus for most of its conclusions on the complex subject of Petitions of Concern. The Report sets out in some detail the policy potions for the change considered, together with the individual Party positions on specific options. The Committee considered that the Report provides valuable information for the Assembly to reach a way forward on this matter.

10. Review of Women in Politics and the Northern Ireland Assembly – (February 2015)

91. On 25 March 2014 the Committee engaged with the political parties of the Assembly to identify their views on priority issues for future Reviews by AERC. The Committee received one response from Sinn Féin which the Committee considered at its meeting of 8 April 2014. At the same meeting, the Committee agreed that the topic of its next review would be Women in Politics and the Northern Ireland Assembly

92. At its meeting of 24 June 2014, the Committee agreed the terms of reference for this Review. As set out in the terms of reference, the Review considered evidence on Women and the Northern Ireland Assembly in order to:

  • Analyse the key challenges / barriers facing women in relation to entry into politics in Northern Ireland and in particular this Assembly;
  • Examine potential existing initiatives which would assist women in relation to entry into politics in this Assembly;
  • Examine what are the merits of ‘positive actions’ that have been successful within the United Kingdom and Ireland and within other jurisdictions, and to consider their potential impact in the context of Northern Ireland and in particular this Assembly; and
  • Provide recommendations / conclusions on i to iii above, including initiatives / mechanisms to enhance the role of women already active in the political arena in Northern Ireland and in particular this Assembly.
  • The Committee agreed that alternative electoral systems/models were outside the scope of this Review.

93. In July 2014, the Committee issued a ‘call for evidence’ paper and received twenty substantive responses. The Committee heard oral evidence from representatives from the women’s sector, academia and the former MLA and Deputy Speaker, Ms Jane Morrice. In June and September 2014, the Committee undertook two study visits to Wales and Iceland to explore models of good practice that aim to increase the number of women in politics. The Committee held a roundtable stakeholder event in October 2014 which was attended by over sixty stakeholders and was opened by the two junior Ministers from OFMdFM. Finally the Committee commissioned seventeen research papers from Assembly Research and Information Services which helped inform its discussions on the barriers and models of positive.

94. The Report on Women in Politics and the Northern Ireland Assembly set out five conclusions which recognised the role of political parties, the Assembly, civil society and the media in encouraging more women to get involved in politics in Northern Ireland. The Report also contained 29 recommendations for political parties, the Northern Ireland Assembly and the Executive.

95. The Committee agreed the final Report on Women in Politics and the Northern Ireland Assembly at its meeting of 17 February 2015 and it was debated in the Assembly on 9 March 2015.

Stormont House Agreement

96. On 23 December 2014, after 11 weeks of talks at Stormont, Northern Ireland’s political parties reached an agreement on a number of key issues, including provisions to help the institutions at Stormont to work better. At the time of the Stormont House Agreement, the Secretary of State, pledged to work closely with the political parties to put into effect what was set out in the Agreement.

97. The Stormont House Agreement included a number of commitments relating to institutional reform and the provisions of Parts 3 and 4 of the NI Act 1998. Below is an extract of the relevant provisions:

  • The number of Assembly members should be reduced to five members per constituency, or such other reduction as may be agreed, in time for the 2021 Assembly election, and the Assembly will legislate accordingly. (para 56)
  • The threshold for Petitions of Concern should remain at 30 members. (para 57)
  • Changes will be made to the operation of the Petition of Concern mechanism through a protocol agreed between the parties. (para 58)
  • Arrangements will be put in place by the Assembly by March 2015 to enable those parties which would be entitled to ministerial positions in the Executive, but choose not to take them up, to be recognised as an official opposition and to facilitate their work. These measures will include:

Provision for financial and research assistance (from within existing Assembly budgets keeping these changes cost neutral); and

Designated speaking rights including the opportunity to ask questions and table business sufficient to permit the parties to discharge their opposition duties. (para 59)

  • A reduction in the number of departments from twelve to nine should be made in time for the 2016 Assembly election, with the new allocation of departmental functions to be agreed by the parties. (para 60)
  • After the Assembly meets following an election and before the FM/DFM are selected and the d’Hondt process runs, representatives of the parties who are entitled to take up places in the Executive and who confirm their intention to do so will meet to resolve the draft Programme for Government. Changes to Westminster legislation (as soon as time permits) could extend the time available from seven days to fourteen days. The draft Programme would, once the Executive was formed be passed to the Assembly for approval. (para 61)
  • To promote greater efficiency in the conduct and discharge of Executive business, the following practice shall be observed in line with the Northern Ireland Act 1998 (para 62):

a) Agenda circulated one day in advance of an Executive meeting;

b) Inclusion of papers as substantive agenda items no later than the third meeting following initial circulation;

c) Areas for resolution to be recorded in the list of “Executive papers in circulation” against those papers still outstanding after the third meeting;

d) Any three Ministers should have the facility to request a meeting of the Executive and the First and deputy First Minister would normally convene within three days (subject to the timing of the next scheduled Executive meeting);

e) Any Minister would be entitled to have a matter put on the agenda under ‘Any other Business’;

f) Any three Ministers would be entitled to put a matter on the substantive agenda for discussion and decision; and

g) A protocol shall be developed to this effect.

  • Where a Minister intends to make a statement to the Assembly they should also make clear at the start of the statement whether the statement reflects an agreed Executive position. (para 63)
  • A new process will be brought forward for a more transparent and robust system for Members’ salaries and expenses. (para 64)
  • The maximum consultation requirement on policy will be reduced from twelve weeks to eight. (para 65)
  • The UK Government also stands ready to consider potential further areas of devolution and changes to intergovernmental machinery, which are under discussion elsewhere in the UK and likely to command broad support among parties in Northern Ireland. (para 66)

Committee Conclusions

98. At the meeting of 10 February 2015, the Committee agreed that in order to complete its Report on the Operation of the Provisions of Parts 3 and 4 of the NI Act 1998, it would undertake a broad overview of the sixty sections provided for under Parts 3 and 4 of the NI Act 1998.

99. At the meeting of 24 February 2015, the Committee commenced its broad overview of the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998. In doing so, the Committee recognised the work already undertaken by the Committee in respect of these provisions from 2007 to 2015. The Committee met on a further three occasions to give consideration to the sixty sections contained in Parts 3 and 4 of the NI Act 1998. The minutes of proceedings of the Committee can be found in (Appendix 1).

100. In the course of these deliberations the Committee had available to it: the conclusions from the previous ten reports produced by the Committee; the responses received from political parties and independent MLAs in respect of the review of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998 (Appendix 4); the Stormont House Agreement (Appendix 6); a research paper provided by the Assembly Research Service (Appendix 5) and a number of briefing papers provided by the Committee Clerk.

101. The Committee noted the work undertaken by Assembly groups and committees and independent organisations relating to the operation of the provisions of Parts 3 and 4 of the Northern Ireland Act 1998. In particular, Members noted the work undertaken by the Committee Review Group in respect of committee systems and structures; the Chairperson’s Liaison Group in respect of the administration of the oath; the Committee on Procedures in respect of standing orders and proposals for a principal deputy Speaker, the Committee on Standards and Privileges in respect of Members’ interests, the Independent Financial Review Panel in respect of members’ salaries, allowances and pensions.

102. At the meeting of 24 February 2015, the Committee agreed that it would return to consider issues relating to the nomenclature and the method of election of the First Minister and deputy First Minister (Sections 16A-16C); the Ministerial Code (Section 28a); and Strategies relating to Irish language and Ulster Scots language etc. (Section 28D) following the publication of the Committee Report in May 2015

103. During its discussions, the Committee acknowledged that a number of commitments relating to institutional reform provided for in the Stormont House Agreement were previously the subject of AERC reports. At the meeting of 24 February 2015, the Committee agreed that the Chair and Deputy Chair should meet with the First Minister and deputy First Minister to discuss the impact of the Stormont House Agreement on the future work of the Assembly and Executive Review Committee.

104. At the meeting of 24 March 2015, the Committee recognised that the work undertaken by the AERC in each of the ten reports produced from 2007-2015 helped inform the outcomes reached on institutional reform during the Stormont House negotiations. The Committee recognised the pledge by the Secretary of State for Northern Ireland to work with the political parties in the Assembly to put into effect the commitments in the Stormont House Agreement, and in particular those relating to the provisions of Parts 3 and 4 of the Northern Ireland Act 1998.

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