Official Report: Minutes of Evidence

The Deputy Chairperson (Mr Sheehan): You are very welcome, Dr O'Malley. The floor is yours, if you want to go ahead.

Dr Eoin O'Malley: Unlike the previous witnesses, I have not offered an analysis of the Bill — I have read the Bill but only reasonably briefly — nor can I claim to have any expertise in the operation of the Northern Ireland Executive or the Northern Ireland Assembly. My presentation is quite short — it is only two pages long — so I am not going to read it out. Ms McCanny said to me yesterday that you might be more interested in hearing a bit about Cabinet government in parliamentary democracies around the world, on which I am an expert, and technical groups, on which I am not an expert. The only place where those really exist is in the South, so I can talk a little bit about them.

On the issue of introducing collective Cabinet responsibility, that is "normal" — put it in inverted commas if you want — in virtually every parliamentary democracy throughout the world. One of the few places where it does not happen is Northern Ireland, for various reasons. Ministerial responsibility or collective Cabinet responsibility rests on three things. The first is that the Government or Executive have the confidence of Parliament. If the Executive ceases to have the confidence of Parliament, it collapses, and usually what happens then — this varies across countries — is that the Parliament will elect a new Government or an election will be called.

Another central aspect of ministerial responsibility or collective responsibility is that there is unanimity in the Cabinet or Executive. Here is where Northern Ireland really deviates quite wildly from normal practice. In every jurisdiction, you will have disagreements within an Executive. Ministers fights with Ministers all the time, but, once a policy is agreed, they will at least pretend to support that one line, even though we all know —

Mr Kennedy: Steady now. [Laughter.]

Dr O'Malley: They will brief against each other privately, but in public they will say, "I support this policy", even if they have been vehemently against it in a Cabinet meeting. In order to enable that, you have to have a third principle in Cabinet government, and that is confidentiality. When the 12, 15 or 20 members of a Cabinet are sitting round a table, they are free to say things, and they know that that will not get out of the room. We also know that it is probably being tweeted as they speak now, but there is broadly an expectation that they can speak in confidence, and there are good reasons for that.

The doctrine developed for historical reasons in the British Cabinet. The cabinet was literally a room that people went into before meeting the king where they would get their story straight to ensure that they did not deviate from it. Then when they went into the king, there were no disagreements, and it was easier for the Cabinet to control the king and to exercise power over him. The argument is that the doctrine gives an Executive a great deal of power to get things through that they might otherwise find it hard to get through if divisions were exposed. Collective Cabinet responsibility is therefore often seen as important for stable government and to enable policy decisions that might not be terribly popular but are seen as necessary. We can see, then, that these rules, which apply in most parliamentary democracies, tend to provide stability.

The major difference in Northern Ireland is that you do not have that doctrine; you have the d'Hondt system, which enables everybody to get into government once they have a certain number of votes. That is probably necessary, given Northern Ireland's history. It means that in the Cabinet government system there is no need for Ministers to agree or for unanimity, confidence or confidentiality. That would be fine except for the fact that in Northern Ireland power tends to be shared out rather than shared. Ministers become dictators in their fiefdom. That is one of the difficulties that one might see with the current arrangement, in which Ministers have a great deal of power within their own area, especially when, as is increasingly the case, most legislation is by way of statutory instruments rather than primary legislation. The current arrangement therefore gives a great deal of power to individuals who are not sharing power across communities. As far as I can see, that is one of the areas that might need to be addressed in any reform of the current system.

It is said that there is no official opposition in Northern Ireland, but what you get as a result of that is an unofficial opposition. If you are in the UUP and you cover this, then Sinn Féin and the DUP will be your opposition, and that will happen at every stage in the Executive — I am not sure how Executive meetings work in Northern Ireland — and in the Assembly as well. You have opposition to everything that is proposed. Some might say that that is necessary and that if you had collective Cabinet government and power-sharing in its current form nobody would oppose anything. At least you have some sort of opposition. The previous witnesses seemed to imply that opposition was a peculiarly Westminster phenomenon; it is not. It happens almost everywhere else. The purpose of opposition is to observe, to interrogate and to provide alternatives. One might say, therefore, that in "normal" parliamentary democracy, opposition is necessary because, if you do not have an alternative that people can vote for, you do not have vibrant democracy.

The other thing that I was asked to speak about is technical groups. Technical groups are essentially a mechanism through which independents in, say, the Republic of Ireland — they were also used in the European Parliament, although they have since been banned — get speaking rights. In many Parliaments throughout the world, there is a lot of control over agendas and things like that. Speaking rights and rights to introduce Bills for independents are pretty minimal. By allowing technical groups, you allow for independents to have those rights, and most people would think that it is right that somebody who got elected without the party name has equal rights in a Parliament to those who do have a party name.

I am happy to answer any questions on what I have just said or anything that is in the paper that I provided to you.

The Deputy Chairperson (Mr Sheehan): Fair enough. I will kick off with a question about the formation of Governments, particularly coalition Governments. Obviously, you have knowledge of those in the South. I suppose the coalition parties come together, decide on a Programme for Government, everyone buys into it and governs until such times as somebody reneges on one of the commitments to the Programme for Government and things go pear-shaped. What is the difference between that and what happened here?

Dr O'Malley: In most parliamentary democracies, you form an agreement. The Parliament says, "OK. We're going to elect this crowd over here to work for the next three to five years implementing that agreement". If something goes pear-shaped, the Parliament will normally elect a new Government or form some new agreement or the Parliament will collapse and there will be an election. Here, it is very easy to oppose what one side or the other side is doing, but there is no real political downside. In fact, there is only a political upside, because I can shout loudly to my crowd of supporters that I have opposed the people I do not like on the other side. There is no downside, in that I will not have to face the electorate about it. I will not lose my job, necessarily, and I will not lose the salary. Let us face it: career is an important motivation for everybody, and political careers are motivations for politicians. When there is no downside, it makes opposition too easy. It makes it difficult for one to see a situation where you have to make difficult decisions, such as, "Will we cut this, or will we cut that? We have to cut something. Let's have an agreement".

The Deputy Chairperson (Mr Sheehan): You left out one option. If one of the coalition partners reneges on a commitment, they have a couple of options. First, they can decide to leave the Government. Secondly, they can suck it up and decide to carry on, because they think it might be in their best interest to remain in the Government for as long as possible. In reality, nothing here is different. There was a Programme for Government, which was agreed on, and some parties reneged on some of the commitments that had been given in that Programme for Government. At the end of the day, we all face the same problem: going back out to face the electorate. The electorate can change their mind. They might decide that they do not want the same parties back in again. It is the electorate who decides that we are here. We have no God-given right to be re-elected at the next election. What is really different? I do not understand what the difference is. If we are talking about politics, that is what it is. You put yourself in front of the electorate.

Dr O'Malley: Let us look at the last British Government, where you had a coalition of the Liberal Democrats and the Tory party. The Liberal Democrats were given a choice: they were to accept, say, university tuition fees or not. They could have said, "No, we're not going to accept that. We will resign". A new Government could have been formed in some way, a minority Government might have hobbled on or, more likely, they would have gone to the country. On that issue, they would have gone to the people. Alternatively, the Liberal Democrats could say, "We're going to do this", and they would have to defend that policy. In Northern Ireland, the equivalent of the Liberal Democrats would not have to defend that policy. They can say, "We're against it. We're against it. We're against it", but they do not have to take the political risk of saying, "OK, we're leaving the Government, and we're going to the country on this". You may have to face the electorate, but you may not have to do so for another two or three years.

The Deputy Chairperson (Mr Sheehan): Do you accept that there is a difference between what would be described as "normal" parliamentary democracy in a "normal" society and a system of governance in a divided society that has come through a long period of armed conflict in which part of the difficulties arose out of one part of society dominating another?

Dr O'Malley: I agree. In the classic Westminster system that Stormont had pre-1974, part of the problem was that one side was dominant. Part of living in a democracy is that you engage in a democratic bargain, and you have to feel that you have the chance to win at some stage. If you continually lose elections, you will not feel part of that democracy. That was part of the problem in Northern Ireland.

I hope that I did not suggest that normal is Westminster, but normal is parliamentary democracies in which you have opposition and a Government who have to seek the confidence of the Parliament. Whether Northern Ireland is ready for that sort of normal yet is not for me to say.

Ms Ruane: Go raibh maith agat. Tá fáilte romhaibh. I will follow on from what Pat Sheehan said. You said that Ministers were dictators within their own fiefdom.

Dr O'Malley: Yes.

Ms Ruane: That is certainly not the way I saw myself when I was Minister of Education.

Mr Campbell: It is the way everybody else saw it though.

Ms Ruane: Gregory is laughing, but I am sure that his Ministers do not see themselves as that either. You possibly missed the checks and balances that are in place in our Committees, the cross-community votes on legislation and the potential to block any legislation and the mechanisms in the Executive.

I believe in the executive authority of Ministers in a divided society. This is not a normal society; there is no point pretending that it is. It is not even a normal arrangement. It is contested and divided, and that is why there was conflict in the past. Thankfully, it is now political conflict rather than military conflict. In a society that is so divided, where a significant number of the people see themselves as Irish citizens and a significant number see themselves as British, the power-sharing arrangements are a protection. The nationalist community would certainly see them as a protection against unionist majority rule.

Sometimes we will divide — yesterday was a good example, when a majority of the House voted for equal marriage; that was people from all communities — and we do not agree. First, there are a significant number of checks and balances. In some ways, the arrangements for Committees here are much more democratic than in Leinster House, and, in the majority of cases, the Chair of the Committee here is not from the same party as the Minister. Secondly, on the checks and balances, Fine Gael can push through anything that it wants in the South of Ireland and does so regularly, because it has a majority. Given our history, can you understand why nationalists would have concerns about some of the queries that you raise?

On the point about opposition, with the inclusive nature of our power-sharing arrangements, smaller parties have a much greater say and get much greater resource than, for example, technical groups in the South of Ireland. They have a huge amount of say, and Sinn Féin actively supports that in the Business Committee. Will you comment on that as well?

Dr O'Malley: Sure. As I said at the outset, I am not an expert on the Northern Ireland Executive or how they operate. All that I have observed is that Ministers, because they are not subject to the normal conventions of Cabinet government, have greater discretion in their own area and, when you have statutory instruments, that gives you a great deal of control over certain things.

I am not sure what the functions of the Committees are here. The ones in the Republic of Ireland are obviously not ideal. They do not have a great deal of power and cannot hold others in government to account. I would not point to the South as an exemplar, but you could point to other European countries as exemplars of how Committees might operate. I simply cannot comment because I do not have enough expertise on Northern Ireland to say whether the Committee system here is good, bad or indifferent.

Equally, with technical groups in the South, the Government — the Executive — control to a great extent the agenda in Dáil Éireann. They also control things like jobs, politicians' careers, time and money. So, again, it should not be seen as something that one would aim at. I suspect that the Northern Ireland Assembly operates along much more democratic lines, but I do not think that that takes away from the fact that a Minister in the Northern Ireland Executive still has a great deal of power. He or she can, literally, sign a piece of paper that states, "This is now the law", and there is nobody around any table who can say no. In most normal parliamentary democracies, you sit around a table and have to get the 15 or 20 people there to at least nod assent. I would have thought that to be more akin to power-sharing. Were I interested in a consociational system, that is something that I would be working towards, rather than giving one person or one party a great deal of power in certain policy-specific areas.

Ms Ruane: I would argue that Ministers in the South have much more power than Ministers here. There are many more checks and balances on Ministers here. The way that it works is that Ministers bring papers to the Executive but any three Ministers can block them, as I saw when I brought proposals on post-primary transfer. The second point at which there can be a vote against is in the Assembly. If enough people in the Assembly oppose a policy or a Bill, they can vote against it.

I absolutely agree that a load of changes need to happen in the South. I was one of the 100 citizen members of the constitutional convention, and lots of things could be changed. However, when we look at a Bill such as this and at having opposition, it is important that we look at every aspect of the power-sharing arrangements. You cannot look at one without the other, because every one of them is linked in the checks and balances. You have your Assembly, North/South Ministerial Council, British-Irish Council and the executive authority of Ministers within the collective. I really think that you need to look at all the checks and balances.

Dr O'Malley: Yes, you do. I agree.

Mr Campbell: It seems self-evident to me that some form of oppositional politics should be embraced for some of the reasons that you have outlined. If you can help us, I want to concentrate on the issue in the Dáil, in the Republic, of the technical groups. I am aware of their functioning, but, other than that, can you tell us about their capacity and funding? How do they operate in an oppositional role to the greater benefit of democracy? The governing party or parties at the time may not think that. How do they function? What are their resources, powers and financing?

Dr O'Malley: Without the technical group, independent Members have a great deal of power for various political coalitional reasons. All independents are regarded as leaders of their own party — they lead themselves. As a result, they get a leader's allowance, which gives them more resources than other party Members.

They are well resourced financially, and they have access to resources such as the library and research service, which is universal; everybody has access to that.

Where independents did not have much power — it was one of the reasons for the idea of a technical group — was that they had very little access to parliamentary time. They did not have much access to introducing private Members' Bills and things like that. I read the Standing Orders last night on what exactly these powers were, but essentially any independent Member of the Dáil can become a member of the technical group. There was a bit of a fight about that last year, because some people wanted to join, and the existing members of the technical group — I am not sure that you could call them left-wing, but they were certainly anti-establishment — did not like what they saw as establishment politicians trying to join them.

They have their own little problems in that they then have to decide how to share out time. They get treated like another party. They are the fourth or fifth largest party, and so they get called fourth or fifth to ask questions of Ministers and things like that. The technical group is also allowed to have a private Member's Bill on the Order Paper at any time. They have rights to Committee membership as well; previously, they were not automatically entitled to be on Committees even though they all had to be because there were just too many Committees for Members. They now have more power to choose which Committees they can go on. It was about power in agenda-setting and things like that.

Mr Campbell: Given the proliferation of independents — they can be described in different ways — is there a general acceptance of the technical group principle, or are there groups emerging in the Republic who think that the oppositional role does not go far enough? Is there a collective view or just a range of views?

Dr O'Malley: There is an Opposition, so Fianna Fáil and Sinn Féin will provide the main Opposition parties in the Dáil. The technical group is really just a solution for a small but growing number of people who are not affiliated to any political party, so I do not think that it exercises much interest among many people. The rules tend to get changed at each session —

Mr Campbell: Have the increasing numbers of those people changed the dynamic in any way?

Dr O'Malley: They are becoming more important. For lots of Dála they were not actually used and no technical group was ever formed, whereas now you could see a case being made in the next Dáil for having two technical groups. However, according to Standing Orders, only one technical group is allowed.

Mr Campbell: Technically, there is only one technical group allowed.

Dr O'Malley: There is. You could have a situation where you have 10 independents who might be regarded as being broadly of the centre or centre-right and others who are broadly centre-left. They may each want to form a technical group of like-minded people, but they will not be able to do that. Only one technical group will be allowed to form unless, of course, Standing Orders are changed. What it might do and probably has done is encourage a lot of smaller, micro parties to merge with each other, which may not be a bad thing.

Mr Kennedy: Thanks very much. You are very welcome.

Dr O'Malley: Thank you.

Mr Kennedy: It is important to remember that, throughout the existence of Northern Ireland, elections were free and fair and were available for people to participate in. There was a policy of abstentionism practised by some that did not contribute to good democratic practice either, but at no stage was anyone debarred from standing for election.

We are largely, I suppose, dealing in most democracies with party systems, historically. To some of us, there is nothing wrong with a political party putting forward an agenda and a manifesto to be endorsed by a majority of the citizens. OK, if it is not your party, that is tough, but you cannot complain when the people bring forward that result. In what way do you distort things by almost rewarding smaller individual-type independent candidates by allowing them access to power that their mandate does not properly entitle them to? Is there a balance in that that you need to be aware of?

Dr O'Malley: Independents are not unique to Ireland, but they are pretty unusual. There are a couple in Australia and a few in various places, but most —

Mr Kennedy: The point is that it can be disproportionate, and that is the issue.

Dr O'Malley: Yes, small parties and independents can be disproportionate, and, usually, they can be either very powerful or utterly powerless. Very often, an independent Member will have no power because he or she is not needed to form a Government, and then people can go about their business ignoring them again. It is highly likely that the next Irish Government will need the support of some independents, so they will be able to negotiate something for their constituencies or something for the policy area that they are particularly interested in, so they can have a great deal of power. The same is true in nearly any country in Europe where coalitions are formed; you will often see that smaller parties are disproportionately powerful, and that is to do with bargaining theory. If you are needed and a big party cannot govern without you and cannot go to another small party, for instance, then, hard luck, you have power. That is life; that is politics. We are not sure that you can design a constitution that will divide power perfectly equally. There is never going to be anything perfect. There will always be imperfections, and I suppose that it is a matter of slowly trying to find small improvements along the way.

Mr Kennedy: A balance has to be found in how you hold to account the governing party/coalition or whatever is in place, and those structures are probably the most important. It is one thing to win an election, but it is another thing to rule and govern in a manner that is acceptable to the wider population. That is what we are trying to tweak and learn from.

Dr O'Malley: In a way, Northern Ireland might be a better example of where it does work. In most parliamentary democracies, you tend to see that Parliament does not do an awful lot of legislating and, because they tend to have an inbuilt majority, you do not find that Governments worry too much about what will happen in Parliament. The Westminster system — the Republic of Ireland being one of them — is one extreme, but then you can go to other places such as the Netherlands, Belgium, Germany and, I suspect, Northern Ireland, where Committees and the Assembly have greater power and the Executive are not able to control the Parliament in the way that they can in most Westminster-style democracies.

The Deputy Chairperson (Mr Sheehan): No one else has any questions. Thank you very much, Eoin, for coming and giving your presentation.