Official Report: Minutes of Evidence

The Chairperson (Mr Moutray): Before us today we have Professor Christopher McCrudden and Dr Alex Schwartz from the school of law at Queen's University. You are both very welcome to the Committee this morning. At this point, we ask you to go ahead and give your presentation, and we will have some questions afterwards.

Professor Christopher McCrudden: Thank you very much, Chair. Thank you also for the invitation to present evidence to the Committee. I will make four brief preliminary points. You will have seen the written evidence that we have circulated. First, we should say that we are here in a personal capacity, so we are not in any way representing Queen's University or the school of law. Secondly, as I said, we have provided the Committee with an analysis of the Bill as we understand it. We may not have fully understood all the Bill's implications, and we are quite prepared to be told that we have misinterpreted aspects of it. We are conscious that we were working under some time pressure and are, therefore, open to further discussion on what the implications are. Thirdly, if issues arise today in questioning that we have not considered or which the Committee would like a further memorandum on, we will be very happy to provide further evidence on request. Fourthly and, perhaps, most importantly, our basic starting point was to assume that the approach adopted in the Belfast/Good Friday Agreement and supported in the St Andrews Agreement will continue, and we have tried to analyse the effects of the Bill on that approach. We are not against changing aspects of power-sharing, if those changes are appropriate and necessary, but only to the extent that they are consistent with the logic of power-sharing and do not destabilise it.

With that, Chair, perhaps we can go to questions. We have presented an 11-page summary and analysis. We do not intend to go through all of that — we will assume that the Committee has had an opportunity to look at it — but we are very happy to take questions.

The Chairperson (Mr Moutray): OK. Thank you. I will kick off. You indicated that you were in favour of clause 20, which provides for the renaming of the Office of the First Minister and deputy First Minister to become the Office of First Ministers. However, the renaming of the office holders is not yet contained in the actual body of the Bill but in the schedule and is beyond the legislative competence of the Assembly. Can you foresee any legislative difficulties with that?

Professor McCrudden: May I introduce Alex Schwartz, who, as you said, is also from the school of law? I should say that he is an expert in the mechanics of constitutional structure and particularly the judicial process, so I will ask him to head off on that question.

Dr Alex Schwartz: Absolutely. We very much like the idea. We think that the existing title or distinction is misleading in the sense that it implies that there is some sort of functional hierarchy between the two roles when there is not. We think that it would be a good idea to change that. Like we say in the evidence, it is probably a proactive way of addressing a potential problem down the road in terms of how the balance of power may change and evolve here. We think that there are a lot of good reasons to think about that.

In terms of the legislation, the Northern Ireland Act 1998 etc would have to be amended. In our view, there would be a need for Westminster legislation to alter the formal titles of the Ministers, but, provided that there was healthy cross-community agreement in favour of it here, I cannot see why Westminster would not want to oblige the request to change the names of the posts.

The Chairperson (Mr Moutray): Before I go to Danny Kennedy, I remind members who arrived late that the papers are in the tabled section of their packs, just in case some of them were not aware of that.

Mr Kennedy: Welcome, gentlemen. Thanks for your presentation and your paper. I have just a couple of points. You caution against the proposal to unify Northern Ireland's Departments:

Taking that action — one Department against another, one Minister against another in an Executive — has been considered, in some ways, controversial. I do not want to get into that, but I would like you to expand on the reasons why that possibility can be preserved.

Secondly, you say that the Speaker should continue to be elected by a cross-community vote, and that, in itself, seems to be fairly sensible. You will be aware of the fairly protracted and almost complicated process for the election of Speaker: who is entitled to be Speaker; what happens in the constituency concerned when a Speaker is elected; and effectively increasing the size of the Assembly by one to accommodate that. Have you any view on that?

Professor McCrudden: On the two questions, I will head off on the Northern Ireland Departments point and turn to Alex for the second one.

We understand that clause 21 requires that:

The major effect of that would be to prevent interdepartmental litigation. Our analysis essentially is to say that that issue is connected closely to the question of collective ministerial responsibility. One of the other proposals that the Bill makes is to do away with the idea that there should not be collective ministerial responsibility. It will require collective ministerial responsibility. The two issues have to be seen to be closely related to each other. We are opposed to imposing collective ministerial responsibility, and you may want to come back to that, but, given that there is not collective ministerial responsibility at the moment, it would be inconsistent with the current arrangements necessarily to rule out litigation by one Department over another. In other words, the reality is that there will be disagreements within the Executive. Given that there is no collective ministerial responsibility, those disagreements — for example, as to the legality of a particular Department or Minister's actions — have to go somewhere, and they have to be resolved somewhere. One of the ways in which they might currently be resolved, and, I think, on two occasions have been, is to put the issue of legality to the courts and essentially allow the courts to decide where the legality lies if the issue between the two Ministers is over the legality of a particular action. We have said that that has happened once, but it is more accurate to say twice, as far as we know, in the last years.

The question is whether that is necessarily dysfunctional. We suggest that it is not — it actually plays a potentially useful function in giving a forum for resolving these questions — but that is premised on the assumption that you will not have collective ministerial responsibility. The jurisdictions that we are aware of that prevent interdepartmental litigation have a relatively strong notion of collective ministerial responsibility — for example, at Westminster. That is where we are going on that one.

Mr Kennedy: Can I just tease that out a bit, with your permission, Chairman? I suppose the issue is whether it is judged wise for the Executive to wash their dirty linen in public in court. In a mandatory coalition, there are challenges that sometimes have made that necessary, against the creation of some kind of Star Chamber at the top of the Executive that would seek to resolve those issues before legal recourse is sought.

Professor McCrudden: Absolutely. The retention of the idea of litigation as a fallback position — in other words, as the last resort — does not seem to me to be inconsistent with having some arrangement in the Executive for resolving issues before litigation. It is not that we are in favour of litigation on all occasions, but it should remain as a last resort. I do not actually know what the current arrangements, if any, are for resolving interministerial disputes that arise on legal issues. I am not aware of those arrangements.

Mr Kennedy: I could tell you, but I would probably have to kill you, which is a joke.

Professor McCrudden: I am relieved to hear it, Mr Kennedy. The question is whether or not that arrangement at the moment works sufficiently well, and the Committee is better placed to answer that question than I am. If it does not, I suggest that it be beefed up to make it work better, rather than necessarily getting rid of the possibility of interdepartmental litigation.

On the second question, may I turn to Alex?

Dr Schwartz: We were quite supportive of the idea of depoliticising the Speaker, in the sense of severing ties to political parties and making the Speaker beyond the control of any party. One thing that we want to flag about the legislative competence issue here again is that a proposal to make the Speaker not elected by cross-community vote would require Westminster legislation. In any case, we suggest that changing how the Speaker is elected would be a bad move. It is good that the Speaker should command some kind of broad cross-community legitimacy in the way he handles business in the Assembly. That is something that we support.

I will touch again on the issue of interdepartmental litigation, if I may. There is not a presumption in the kind of power-sharing system that we have here that all the parties working together in government have the same affinities or political preferences; it is presumed that they do not. It is presumed that they are a diverse collection of interests working together and that they are not organised under some kind of top-down party discipline or control. Given those features, it is desirable that there are mechanisms to resolve in a legal forum disagreements that take the parties in acrimonious directions. That is the point that I would reiterate.

The other thing about taking ideas that are popular or that are in place in more conventional Westminster democracies and transplanting them in Northern Ireland is that those transplants can sometimes be awkward and inappropriate if they are not given due consideration. To use an analogy, one of the reasons why children enjoy Lego blocks is that you can move the pieces around and combine them in all kinds of inventive ways. The pieces are modular and can be combined however you like. That is not the case with constitutional design. Sometimes, different institutions and rules do not work together. Some institutions and rules only make sense in the context of other institutions and rules. That would be the case here. Collective ministerial responsibility and the inability of Departments to take legal action against one another would be awkward fits and perhaps dysfunctional, in the context of the power-sharing system that we have.

Mr Rogers: Thank you for your papers and presentation. My question is really about clause 1(c) on promoting constitutional change. Just following on from what Danny was asking, would preventing interdepartmental litigation actually erode the principles of power-sharing, just as the enhancement of the role of an opposition seems to be chipping away at the same principles?

Professor McCrudden: We read the Bill as doing two different things in general. Clearly, the core of the Bill is setting up and encouraging an official opposition. Our view is that there is nothing in the principle of an official opposition that goes against power-sharing. In other words, having an official opposition is entirely consistent with power-sharing. That we are not uneasy about.

What we are more uneasy about is the other part of the Bill, which, essentially, as we read it, presents an alternative to the existing model of power-sharing more generally. In other words, it is all the other bits of the Bill, apart from those on the official opposition, that seem to us, when you bring them together, to present a quite sophisticated, but alternative, model to the one that we have now. We are saying that when clause 1(c) refers to constitutional change, it is absolutely right. It would result in a major constitutional change, significantly modifying the existing power-sharing arrangements in a way that was detrimental to them, if all those bits were brought together. I come back to the principal point that I made: you can have an official opposition approach that is entirely consistent with power-sharing, and that part of the Bill we have no objection to.

Mr Rogers: Are you also saying that there is enough in Standing Orders to facilitate such an opposition?

Professor McCrudden: Parts of the Bill that we support, such as the changing of the name of the Office of the First and deputy First Minister, as Alex said, would require legislation. Part of the proposed arrangements for the official opposition could be done through Standing Orders. In a footnote, we say that we are not taking a position on whether it should be done by legislation or by Standing Order. That is a political judgement that needs to be made. There are all sorts of reasons why you might want to have legislation, even if you could do it by Standing Order, and we are not really taking a position on that.

Mr McCartney: Thank you very much for your paper. At the Second Stage of the Bill, I made the point to the proposer that many of the clauses ask for Standing Orders to be amended. That, therefore, suggests that we already have the ability to make the changes that are proposed in the Bill. Do you broadly agree with that?

Professor McCrudden: In terms of the position on official opposition, yes. In many of the other areas, no, because I think that they require amendment to the Northern Ireland Act 1998 — which, of course, is why another part of the Bill is asking for a motion to go to the Secretary of State. In terms of the narrow issue of the official opposition, quite a lot of that could be done by Standing Orders. The rest we are much more uneasy about.

Mr McCartney: In your paper, I see that you are concerned about the formation of technical groups and giving them disproportionate influence. You have issues around collective responsibility, replacing cross-community support with a weighted majority, the idea of a qualifying party for opposition and even the threshold for seats on the Executive. In many ways, you seem to be, I do not say "in opposition to", but certainly questioning the rationale of some of the proposals.

Professor McCrudden: Yes. We see our role here not as opposing or urging the approval of anything. As we see it, our role is to try to point out the implications of the Bill, in terms of the effect on existing constitutional arrangements. If, of course, the parties agree to those changes, that is entirely your prerogative, but it seems to me that our function, as academics, is to point out what the implications are of what you are voting for or against.

Mr McCartney: I understand what you are saying, but your language is very strong in paragraphs 30 to 33:

So you are very clear. It is not as if —

Professor McCrudden: Exactly, assuming that you want to retain the existing power-sharing model. Alex might want to contribute.

Dr Schwartz: One way to read us is that there are things that we like, and we indicate those; there are things that make us a little uneasy; and there are things that make us very uneasy. Replacing the cross-community vote with a weighted majority makes us very uneasy because, for reasons which we explain, it would effectively be removing this mechanism of both communities having a mutual veto, which is one of the essential elements of a power-sharing system. It would be replacing that with something else which is a less reliable mechanism for ensuring that certain kinds of decisions enjoy cross-community support. That is what we found troubling about it.

Mr McCartney: In one of your earlier paragraphs you talked about that, and I can see the sense of what you are saying. Sometimes, when people put up this model of opposition, they represent it as a perfect model, so they look to a particular style of government and say "It works there, so it should work everywhere else," and they forget the context. I remember a previous presentation given by you in relation to the Committee structure. The Committee structure here is not the same as those you get in perfect models of Committee structures or in other institutions.

Professor McCrudden: Yes. I will just comment on that. There is, in some quarters, a sense that "normalisation" means going towards a Westminster model. We are uneasy about that, in that we think that the current power-sharing model is the least worst form of government that we can have in Northern Ireland at the moment. However, I want to reiterate the point that that does not necessarily mean, therefore, ruling out an official opposition, but it does have to be fitted within the existing model, if you are to retain that model in its integrity.

Mr McCartney: Thank you. Chair, I apologise for leaving. The Justice Minister is making a statement, so I have to go to that.

The Chairperson (Mr Moutray): Mr Lunn?

Mr Lunn: Sorry, Chair. It has been dealt with. I am OK.

The Chairperson (Mr Moutray): All right. Any other questions?

Mr Sheehan: Thanks for the presentation, Chris. You gave evidence to the Committee on a previous occasion, and I am not sure whether it was you or Brendan O'Leary who described the arrangements that we have as an organic whole, so that, if you tinker with one part, it will have a knock-on effect. Do you still hold that view?

Professor McCrudden: I am not sure whether it was Brendan or I who used that analogy. The one area that we were more uneasy about in our earlier session was the setting up of an official opposition at all. As you see in the paper, we still are somewhat uneasy about it but, given that it has now been agreed in the Stormont House Agreement and that it is not necessarily inconsistent with power-sharing, we would be content — let us put it no higher than that — for that to go ahead because we cannot say legitimately that it would undermine a power-sharing executive. It may do. That all remains to be seen, but we cannot say that it necessarily would. Much of the evidence that we are trying to present is evidence-based — that is, on the basis of what we think we can predict to be the case. We cannot predict that going into an official opposition would undermine a power-sharing executive. It may well support the operation of a power-sharing executive.

Mr Sheehan: When you say that it "may" undermine a power-sharing executive, have you any examples of where that happened or how it might happen?

Professor McCrudden: Where we are going with that is to make the point that the purpose of a power-sharing executive is to be as inclusive as possible. That is the logic. Anything that reduces the inclusivity is risky. Clearly, the setting up of an official opposition would reduce the inclusivity of the Executive, because the mechanism that we are focusing on is that parties that are able to designate to the Executive would form the official opposition. That leads to less inclusivity and, therefore, is potentially a weakness. Nevertheless, the benefits may outweigh that potential weakness.

The Chairperson (Mr Moutray): There is no indication that any other member wishes to speak, so at this point I thank you, Professor McCrudden and —

Professor McCrudden: I am wondering whether Mr Rogers was indicating.

The Chairperson (Mr Moutray): Sorry, Seán.

Mr Rogers: Just a small one about reducing inclusivity. Mr McCallister told the Committee that this opposition would be cost-neutral. You say that incentivising the opposition would erode power-sharing. Would you like to elaborate on that? Does that mean risks?

Professor McCrudden: You put it more strongly than we do. We are not saying that it would erode power-sharing; we are saying that, given that it incentivises opposition and therefore leads parties that would otherwise be able to designate to the Executive not to designate, that is an incentive that weakens the inclusivity. In other words, people who may previously have wanted to go into the Executive for various reasons now would choose not to. This is all a balance; there is no clear, right answer to the effects that that would have. It is an experiment and an experiment in a power-sharing context, so you cannot use examples from other jurisdictions in a way that will be convincing. It would be an experiment. It seems to us an experiment that is worth taking. It has already been agreed to, and therefore the judgement has been made that it seems worth going to. However, we should take small steps in implementing it. The Bill, taken as a whole, goes considerably beyond the cautious, small steps that one would want to take at this moment.

The Chairperson (Mr Moutray): I thank you, Professor McCrudden and Dr Schwartz, for your attendance here today. It has been appreciated. Thank you very much.

Professor McCrudden: Thank you, members.