Minutes of Proceedings - 29 September 1998

Introduction

1. The Chairman welcomed Mr McCartney to his first meeting of the Committee. He noted apologies from Mr McHugh and Ms Nelis. Mr McGrady had indicated that he would be late.

Professor Brigid Hadfield

2. The Chairman introduced Professor Hadfield and, with the permission of the Committee, invited her to outline the issues emerging from the N.I. Bill, relevant to the consideration of the procedural consequences of devolution. The Chairman explained that this would be an informal briefing and that it would be unattributable. He pointed out that this was NOT a formal evidence session of the Committee.

3. Professor Hadfield repeated her concern that the briefing should be regarded as 'off the record' and that her comments were in any case limited by the short notice which she had been given of the Committee's wish to hear from her. (See attached text of Professor Hadfield's speaking note.)

4. Professor Hadfield described four categories of differences between the current situation and the devolved experience of Northern Ireland from 1920 to 1972. The categories were Statutory; Political; Judicial and the changed importance within the context of Europe.

5. Professor Hadfield noted that the thrust of the Committee's concern was the procedural consequences for Westminster. However she could not ignore the fact that some of her comments would have implications for the Standing Orders of the Assembly.

History of Devolved Practice from the 1920s

6. Professor Hadfield outlined some of the key features of the period established by the Government of Ireland Act 1920. Firstly Northern Ireland was unique within the UK in having a devolved administration. As a matter of practice NI MPs exercised a self-denying ordinance of (largely) pursuing only NI business. Two rulings of the Speakers in respectively, the House of Commons and the Parliament in Belfast, provided that:

• Westminster would not allow questions or debates on devolved matters on the principle of accountability and

• the NI Parliament would not debate issues on which it could not legislate (ie in real terms, non transferred matters).

1. Essentially Westminster has, now, to resolve how to handle a situation wherein there would be at least three types of devolved arrangements. One of the issues to be resolved in this context would be the role of NI MPs. One possibility for a modified Westminster practice would be the establishment of a Select Committee on Devolved Matters or 'Regional Affairs'.

2. The categories of reserved matters are also different. Schedule 2 of the NI Bill provides for Excepted Matters - items on which no regional differentiation would be appropriate. Schedule 3 provides for Reserved Matters which may transfer to the NI Assembly in due course. The Assembly may, before then, legislate on such matters - if the Secretary of State consents (plus cl.13), or, when the matter is transferred after a vote (on a cross-community basis) of the Assembly to that effect is accepted by the Secretary of State (for completeness, this would also need an Order-in-Council). However in either event Westminster retains absolute authority over and responsibility for Matters which are Reserved and Excepted. The issue therefore, especially in the light of cl 5(6), remains the role of Westminster with regard to transferred matters. Some consideration should also be given to how the Grand Committee would conduct its business in this regard.

3. Professor Hadfield also noted the importance of having the Standing Orders of the Assembly establish how the Assembly would deal with Reserved or Excepted Matters. Under the NI Bill the Assembly is obliged to establish Committees (see cl 22 and 36). Their scrutiny powers under cl 36 are currently limited to Transferred matters. They might nonetheless possess deliberative powers for a Committee set up ad hoc to debate a Reserved matter. The Belfast Agreement had described the role of the Executive (Ministers) in the British-Irish Conference but it was not clear how they would answer in such matters to the Assembly directly. It therefore appeared possible that there could be greater scrutiny of Reserved matters than there was up to 1972, but how this would happen was not yet clearly laid down.

4. Another difference with pre-1972 relates to the consequences that would flow from Executive Government formed under the d'Hondt principle. The increased representation and proliferation of parties should impact on how policies and legislative proposals were agreed and implemented by and through the Assembly.

5. The existence of the office of Secretary of State also implied an inevitable level of scrutiny at Westminster. Indeed such scrutiny would be inevitable so long as any Cabinet responsibility remained for NI affairs and one could see here a role for the Northern Ireland Select Committee regarding reserved matters.

6. How the responsibilities of Westminster, regarding transferred matters remaining there, were discharged would remain a matter of political as well as legislative consequence. Clause 12 of the NI Bill provides that the Secretary of State, rather than the Assembly directly, seeks Royal Assent to legislation passed within NI. Moreover Clause 5(6) of the Bill provides for Westminster to retain authority to pass legislation on Transferred matters. Other clauses provide for Westminster to legislate on, for example, social security matters. However the consent of the Executive may be required in these circumstances.

7. On the relationship with Europe, Professor Hadfield circulated a document prepared by the Scottish Office's Consultative Steering Group on the Scrutiny of European Legislation by the Scottish Parliament. Finally Professor Hadfield considered the role of the Courts. She noted the considerably increase in the number of applications for judicial review in general terms. Another area for the role of the Courts lies in the implementation of the Human Rights Act 1998 and the Human Rights provision in the NI Bill.

8. The Chairman thanked Professor Hadfield for her contribution to the Committee's deliberations. Its clarity, concision and apposite presentation were all helpful to the Committee in establishing the range of issues within its remit and some of the options for consideration. Mr McCartney added his personal thanks to Professor Hadfield and requested a copy of her notes. He recommended that some of the points she raised should be forwarded to the Committee on Standing Orders for its consideration. He noted that the focus of the issues raised by Professor Hadfield's presentation reflected concern about the nature of the powers being transferred and the accountability for the use of these powers. Mr McCartney recalled dissatisfaction with the arrangements which flowed from the Government of Ireland Act 1920. He suggested that Westminster had ignored its responsibilities on the spurious basis that devolution absolved it of any involvement in matters within Northern Ireland.

9. The Chairman asked about the role of the Secretary of State. It was unclear whether the House of Commons or the Secretary of State retained responsibility for establishing bodies on human rights or equality. Professor Hadfield acknowledged that there was uncertainty about how human rights safeguards would be built into the Northern Ireland system and that there may yet be changes to the Human Rights provisions of the bill before Royal Assent.

10. Professor Hadfield suggested that the authority of Assembly Committees and their relationship with Commons Committees were areas on which the Assembly's Standing Orders needed to be clear.

11. Mr Close questioned the arrangements for re-scheduling the Authority between the Assembly and Westminster to allow reserved matters to become transferred and vice-versa. Professor Hadfield pointed to Clause 4 of the NI Bill.

12. Finally the Chairman asked whether a repetition of the previous convention on transferred matters would prevent Private Members' Bills on Transferred Matters being brought before Parliament. Professor Hadfield explained that Westminster retained sovereignty over all UK matters and could legislate for Northern Ireland irrespective of the origins of the Bill. Mr McCrea stressed the importance of securing the right of an MP to speak on any matter of relevance within his constituency and, if appropriate to move legislative proposals. Moreover he suggested that this principle should be enshrined to ensure that any matter dealt with as a Transferred Matter should be subject to the scrutiny of Westminster to guarantee against an abuse of the power provided by Westminster.

13. Mr McCartney concluded the discussion by recommending that Professor Hadfield should be retained by the Assembly as a professional adviser on Constitutional Matters. Professor Hadfield acknowledged the compliment. She suggested that she would be available to consider a draft of the Committee's Report. Professor Hadfield left the meeting.

Preparation of an Interim Report

14. After a short adjournment, the Chairman reported that the Assembly would be meeting on Monday 5 October and that the Committee would be required to provide an initial report. Mr McCartney expressed concern about whether a Report could be produced which reflected the deliberations of the Committee. He suggested that Members of the Committee were still gathering evidence, identifying issues and considering the options and that it would not be possible to report any more than this preliminary position. Mr Gallagher agreed that the Committee had only begun its work. Members supported Mr McCartney's suggestion for an Interim Report on 'work-to-date'. Mr Paisley proposed that the Report should spell out the need for further time, suggest how this would allow for progress to be made and establish a revised time scale for a Report. Members pointed to the need to clarify the Assembly's own arrangements before advising Westminster on how it ought to relate to a devolved Assembly.

15. It was AGREED that the Committee's Interim Report to the Assembly on 5 October should provide an exposition of the Committee's remit; identify the issues raised by this; describe how these have been addressed so far; and explain how the Committee could take this further over the next few weeks.

Minutes of the Previous Meeting and Matters Arising

16. Mr Paisley asked for paragraph 6 to be amended to clarify the need for conventions to be durable in context and content. He also asked for paragraph 13 to be amended so that scrutiny functions and channels of accountability were clearly established; in particular that the arrangements for the Public Accounts Committee at Westminster and a similar Committee of the Assembly would be fully complementary. With these modifications the Minutes were agreed as a true record.

Any Other Business

17. The Chairman reported that Sir Kenneth Bloomfield, formerly Head of the Northern Ireland Civil Service, had agreed to attend the next meeting of the Committee. Other business would include a follow-up to the earlier presentation from the Cabinet Office and consideration of a Memorandum from DFP on financial accountability issues.

Date and Time of Next Meeting

18. It was agreed that the Committee would meet again on Friday 2 October at 10.30am.

Prof Hadfield's - Speaking Note: Ad Hoc Committee on Procedural Consequences of Devolution 29 September 1998

4 categories of change from system to 1972:- statutory, political, judicial, Europe.

Differences (may pull different ways)/Matters to mention (Ignore 1974)

NI to 1972 - only part of the UK with devolution. Therefore perhaps inevitable that Parl.-GB Parl. (especially given the general inclination of the 13/12 NI MPs to pursue exclusively NI matters).

NB: Re 1923 Speakers' Rulings - two bases.

Westminster's referred to accountability - no-one answerable.

"Stormont" ruling - referred to absence of power to legislate - therefore should be no power to discuss.

Now - cf 1972 - variable pattern - problems for Westminster rather than the devolved regions.

Category of reserved power - very different now from 1920 (cf 1973) Schedule 3; cl 7; cl 23. Therefore much greater Westminster involvement inevitable. (cf cl 71 - re Order-in-Council for reserved matters - to be amended)?

The question for the Assembly should be - should Westminster be confined to reserved/excepted matters, (cannot be excluded) or should it have any role at all re transferred matters (accountability issues)? Some "residual" Westminster powers over transferred matters. See 5 below.

Although this is not directly relevant here, Assembly SO's must address NI Ass and reserved matters. Ass Committees cl 22, 36 - seem to be confined to transferred matters (cf debate power). If ad hoc, unreserved powers would be limited by Cl 46.

Role of B-I-Conference - Agreement - p 15 - St 3, para 7 in NI administration and answerability to Assembly.

(cf previous system (-1972) - re overlapping scrutiny etc from outside bodies)

1. Patterns of control. Within NI Parl - cf NI Ass - eg nature of the executive very different - effects accountability.

• role of Ass Committees

• electoral system - Therefore size of Ass (108 - previously 78), no of parties, etc different from the system in 1972.

Presence of a Sec/St for NI - (cf 1920 - Colonial Office, Home Office) - makes some scrutiny of NI affairs inevitable at Westminster for as long as there is a Sec of State or for as long as NI is part of a Westminster Cabinet portfolio.

Certain 'transferred' elements still at Westminster.

Currently - eg cl.4 - reserved to transferred - vice versa.

Eg cl 12 - Sec of State submits a Bill for the Royal Assent (but limited discretion) eg int obligations excepted/reserved.

Cl 20 re exec action.

NB: Agreement - para 26(e) - p8 - UK wide legislation to maintain parity - eg soc sec law, co law.

Para 33 delineates the envisaged resp of the W Parl. See also Cl 73.

Regarding EU see CSG Paper.

Courts - Judicial Review

NI Act - anti-discrimination provisions

Vires questions

Human Rights Act 1998 - cl 21 (refers to measure - Act)

Courts role expanded since pre-1972)