Official Report: Minutes of Evidence

The Deputy Chairperson (Mr Sheehan): I welcome John and Peter. The Examiner of Statutory Rules, Gordon Nabney, has produced a report on the Bill, which can be found at page 21 of the meeting pack. In his report, Mr Nabney focused on clause 21, which provides for Departments to be a single legal entity. Members may wish to reflect on the views expressed by Mr Nabney when they consider clause 21.

I refer members to the table at page 23 of their packs and advise that the Committee will commence its deliberations on a clause-by-clause basis. The table provides a detailed clause-by-clause summary of the responses received under the call for evidence, the sponsor's response to the issues raised and his policy intention for each clause. A separate paper at page 79 has also been provided, which details the views of the stakeholders and the Bill's sponsor regarding the approach to introducing an official opposition in the Assembly. That matter has been discussed in some detail in evidence sessions to date.

In the tabled papers, members will find correspondence from the Bill's sponsor dated 30 November and a copy of the sponsor's draft proposed amendments to the Bill on pages 23 and 24. I remind members that the purpose of today's session is to identify clauses on which further information will be required or amendments sought. The Committee is not yet undertaking formal clause-by-clause scrutiny at this stage.

Clause 1 sets out the purpose of the Bill. There were a number of stakeholder comments in respect of clause 1 that can be found at pages 23 to 25 of the pack. The most problematic aspect was clause 1(c). Daniel Greenberg, Professor McCrudden and Dr Schwartz considered that the open-ended reference to "promote constitutional change" could be destabilising and possibly beyond competence. I invite members to consider the points raised in the table. Are there any views on clause 1 or anything on which you want to seek clarification from John?

Mr Kennedy: It would be useful to hear John's comments on the assertion of Greenberg and the others.

Mr John McCallister (Northern Ireland Assembly): The word "promote" is what they seem to take issue with. The phrase "to promote constitutional change" is included to develop the ideas and accurately describe what is in the Bill. The back part of the Bill seeks to make changes to the 1998 Act, which is, effectively, our constitution. Those are the changes that we seek.

Mr Peter Hutchinson: The word "promote" would be considered commensurate with the idea that the Assembly and Executive reform motion asks the Secretary of State, as opposed to having any legal requirement. Without second-guessing the drafter of the legal advice, that is probably what contented them.

The Deputy Chairperson (Mr Sheehan): If members do not require any further information and do not wish to request that a Committee amendment to clause 1 is drafted, I propose that we move on. Are member content with that?

The Deputy Chairperson (Mr Sheehan): Clause 2 sets out the two ways in which an official opposition may be formed. There were a number of stakeholder comments in respect of the clause, primarily in relation to clause 2(b), which deals with the formation of the opposition by one or more technical groups. Those comments can be found at pages 26 to 28 of the pack. Members will also find a copy of John's proposed amendment to the clause on page 23 of the tabled papers. Do members have any views on clause 2 or wish to seek clarification from Mr McCallister on his proposed amendment?

Mr Kennedy: The description of the technical groups is slightly confusing as to what it will mean in practice. Will you explore a bit more how you see technical groups working in the current or the proposed system?

Mr McCallister: In other legislatures, technical groups are not particularly new. I refer the Committee to its own report from a couple of years ago:

That is broadly where we are with the qualifying parties. The report continued:

That is from the Committee report, which is in the papers that the Committee Clerk compiled at the start of this process. I see technical groups working in a way similar to that in the Dáil and European Parliament. You need a certain base, which is why I set the 5% threshold for a qualifying party or technical group. You then have a base of Members who can access additional rights, for example a right to a seat on the Business Committee.

At the minute, the two independent Members and the four from the smaller parties cannot table business, although they can table amendments. However, a technical group would have a seat on the Business Committee, proportional to its strength. It is not as if you would be able to table a motion every week. Speaking rights would be proportional to your size and then a transfer of 20%. I see technical groups very much as a speaking mechanism. They will vote in different directions. It would not mean that they were taking a whip on anything.

One point raised in the Speaker's submission was about what would happen if technical groups could not agree on who should speak on a particular issue. You would then just go back to the original pick on the ordinary d'Hondt mix. On most issues, hopefully the technical group would come to a decision like, "This issue is important to you" or "This is more important to your constituency". That would be very much up to the members of the technical group to decide for themselves.

I would not expect them to vote in the same way. In the Dáil, there are 21 TDs in the technical group, with a collection from hard-left opinion to quite far-right opinion, so it goes across the spectrum. I see the technical group being a loose amalgamation of people to gain additional rights in the Assembly.

Mr Kennedy: So you are not regulating the technical groups themselves. It is for them to sort themselves out as a diverse group of individuals or small groups.

Mr McCallister: Yes.

Mr Kennedy: Are you still silent on the failure of them to agree, or do you have to legislate to the effect that, in the event that they cannot agree, you revert to the original system?

Mr McCallister: I have tabled amendments to make sure that a technical group could not be formed as a flag of convenience for 24 hours at the start of a mandate and still get those rights. If the group cannot agree and it goes below 5%, it is no longer a technical group. That is why it is set at that level. They do not have to agree on how they vote. If the d'Hondt entitlement gave them one speaking right in a debate, they would have to agree on who that Member would be. For example, if a technical group had been operating last night, it might have been Steven Agnew, but others might not have agreed to that. It would be up to them to see what was important, whose constituency an issue was mostly about or who had a huge interest in the subject.

Mr Kennedy: That is for them to regulate.

Mr McCallister: That is for them to regulate, absolutely. Nor should that be for the Speaker. There are no regulations around political parties. As an Ulster Unionist, your party gets two speakers in most 90-minute debates, but it is up to the Whip and the party to agree who speaks. You would maybe make a bid to speak if the subject related to Newry and Armagh, even if you did not have a Committee interest.

Mr Kennedy: Yes, but the point that I am trying to get clarity on is this: if the loose amalgamation meets the threshold of 5% and all of that but comes to an issue on which it cannot agree among itself who should speak or anything like that, are you legislating for that scenario?

Mr McCallister: I am not legislating for that, but it could easily be written into Standing Orders that you would just go to the default position if they cannot agree on who should speak. In debates on legislation, everybody is entitled to speak, so that is not a problem. However, in a 90-minute debate, you would just say that the technical group is not operational — for example, in last night's debate on climate change.

Mr Kennedy: Who says that? Does the technical group concede that, or does the Speaker say that he has not had any confirmation?

Mr McCallister: If the Speaker has had no confirmation of who is speaking, he would just go back to the ordinary speaking slots.

Mr Campbell: On the 5% threshold — this is just a statistical thing — it is fairly clear that, in a 108-Member Assembly, that would be five Members.

Mr McCallister: Six.

Mr Kennedy: Five and a half.

Mr Campbell: Well, that is where we come to a more difficult analogy. If it were a 90-Member Assembly, that would be 4·5.

Mr McCallister: So, five Members.

Mr Campbell: Or four.

Mr McCallister: Five — I would round it up.

Mr Campbell: That is the point. If the legislation said 5% and you had a 90-Member Assembly, in whose gift would it be to say, "Five per cent of 90 is four" or "Five per cent of 90 is five", particularly if you had an amalgam of four but not five?

Mr McCallister: If 5% of 90 comes in at 4·5, as you said, that means —

Mr Campbell: Five per cent of 90 is 4·5.

Mr McCallister: Yes. Four Members is not 5%, and you cannot have half a Member, so you would have to have five Members.

Mr Kennedy: So you would round it up.

Mr Campbell: You are saying that you would have to round it up, but are you saying that it would not be essential to put that in the Bill? Does it simply mean that, in a 90-Member Assembly — of course, it could change to a different figure in future — you would have to, in effect, exceed 5%?

Mr McCallister: That is why I used 5%. The size of the Assembly may change, quite rightly, from 108 to 90 or, at a future point, even to 72. We have agreed to go to five-seat constituencies. We could also lose two constituencies in a future boundary review, so you could be down to 78, for example.

Mr Campbell: That is the other point about the 5%. I can see why you picked 5% — it looks like a reasonable figure — but, if the Assembly figure were to drop below 80, which, as you have just outlined, it might, could you envisage circumstances where, given your 5% figure, you have three Members, which is a very small group to get all those privileges?

Mr McCallister: If you look at other legislatures, you see that it is smaller than that. At the minute, in the Dáil, which has 166 Members, it is seven; in the European Parliament, which has, I think, 751 Members, it is 25; and in the Scottish Parliament, which has 129 Members, it is, I think, five. They are all sitting at 3% or 4%.

Mr Campbell: They are much larger legislatures though.

Mr McCallister: Well, the Scottish Parliament is only 20 seats larger than the Assembly at the moment.

Mr Campbell: If our Assembly went down to 80, it would be significantly smaller than the Scottish Parliament.

Mr McCallister: If, as you point out, 5% seems reasonable in a 108-Member Assembly, surely it would still be reasonable in a 78-Member Assembly.

Mr Campbell: Other than the fact that you get down to possibly three people being the group. I can see the context for having five or thereabouts in a current 108-Member Assembly. I am just making the point that, if you get down to three, you get close to the point where it is difficult to justify.

Mr McCallister: There is value in setting a percentage; it is still the same percentage of 108. I know the point that you make, which is that it seems bigger and more viable, but I do not think that three is an unreasonable number to form a group in a 78-Member Assembly if there are other larger parties or if it is your only mechanism to speak.

Mr Rogers: Leading on from Gregory's point, would you concede that, unless there is a fair level of agreement across the technical group at the beginning of the mandate, it will be ineffective?

Mr McCallister: There has to be agreement to set the technical group up and operate as a technical group. There does not have to be any agreement on a policy agenda. This is a loose amalgamation of people. It is a mechanism or base level that you can pin extra rights onto, such as additional speaking rights and access to the Business Committee. Say, for example, there were six Members. They may not want to be in a technical group or they may not want one person in the group. They need to agree to work together, and the amendments that I want to write in will ensure that they have to maintain the technical group at no less than 5%, or six members in the current size, for the remainder of the term. If they fall below that, they lose the identification and the speaking rights. They could not just form a technical group for 24 hours at the start of the mandate. That is a safeguard for other Members.

In no way will Members who are in a technical group have to take the whip of another smaller party or, indeed, have any dealings with another party other than about speaking rights and possibly to rotate who is on the Business Committee. That is all that the technical group would be used for. It is about getting to a sizeable point and gaining some additional rights. That becomes very important if the technical group ends up as your only opposition where everybody else is back in government as part of the approach in 'A Fresh Start'.

Mr Rogers: If a representative goes to the Business Committee every week, surely there will have to be a fair level of agreement across the technical group. Otherwise, one week in six, you will get a different person's view at the Business Committee.

Mr McCallister: That is for the technical group to sort out. If I were sitting on a technical group, I would suggest that membership be rotated through the five-year mandate so that each member of the group had the equivalent of 10 months on the Business Committee. There will have to be some agreement. In addition, because you might get a chance to put forward a motion maybe only once every four or five months, there would have to be agreement on whose motion would get priority. That would be very simple. Everyone could put in their motion and then you could have a ballot. All those things are for the technical group to sort out. If they all fall out and cannot work together, the technical group is gone. That is why it is important to write into the Bill that the technical group has to stay at the 5% threshold. If Members felt strongly that the threshold should be set at five or six Members, ignoring any changes to the size of the Assembly, that is fine, but the principle of a technical group, as set out in your report a couple of years ago, remains true.

Mr McCartney: I have a broad question. Is there not a danger in trying to legislate for some of these things? You have been talking about the 5% and the number of the MLAs dropping etc. Coming into this, a lot of people, myself included, would have thought that these matters were legislated for in other legislatures where there is an opposition. However, according to the presentations that we have received, a lot is done by convention. Rather than having a debate over what 5% of 90 and 80 is or whatever, it would be better, if this were a runner, for the number to be decided by the Business Committee.

Mr McCallister: I take your point about convention, but we do not have the 300 or more years of convention that Westminster has. We are very much a creature of statute, as are the Scottish Parliament, the Welsh Assembly and the Dáil. Too many things in some of those legislatures are in the gift of the executive arm of government, such as the speakership of the Dáil or, indeed, some of the rules on speaking times. It is easy for the executive arm to guillotine certain legislation.

Doing this in legislation makes it very hard — not impossible — for a future Executive to change it, because they would have to change the legislation and the Standing Orders that it gives birth to. I used the 5% exactly for that reason, to future-proof it from changes to the size of the Assembly. If Members are more comfortable setting that percentage in stone at the number that you need — whether five Members or six, with the knock-on consequences that that has for a smaller Assembly — I can probably live with that. I just think that the principle of technical groups is a good one that the Committee has looked at and found favour with before and is worth supporting now.

The Deputy Chairperson (Mr Sheehan): Are members content with the explanation of the proposed amendment to clause 2, or do they require any further information or evidence to assist in their scrutiny?

Mr McCallister: I will add that, just before the Second Stage debate and during the debate, I said that we needed to tidy this one up around the qualifying party. Clarity there is important, particularly for smaller parties. As we move to a d'Hondt process that populates nine Ministries, which is three fewer, d'Hondt gets harder. It is important that those smaller parties have somewhere to go if they do not make it through the d'Hondt calculation. That is why the clause concerning the qualifying party has been pretty well redrafted and a copy of that is with the Committee.

The Deputy Chairperson (Mr Sheehan): OK. Thanks for that. Are members content that a Committee amendment to clause 2 need not be drafted?

The Deputy Chairperson (Mr Sheehan): Clause 3 provides for the timing of the formation of the opposition. Members may wish to note, in particular, the views expressed by Daniel Greenberg in relation to clause 3(3) and the sponsor's response. A summary of these responses can be found in members' meeting papers, where there is also a copy of John's proposed amendments to this clause. Are members content that they need no further clarification from Mr McCallister? Are we all happy with that?

The Deputy Chairperson (Mr Sheehan): Are members content that a Committee amendment need not be drafted to clause 3?

The Deputy Chairperson (Mr Sheehan): OK. We move to clause 4, which provides that, once an opposition is formed, all parties not in government are automatically part of an opposition. Stakeholders had a number of comments in respect of the clause. In particular, they expressed concerns about clause 4(2), which provides that all parties and independent MLAs will automatically become part of any opposition that is formed. Members may wish to note Daniel Greenberg's suggested alternative wording for clause 4(2). A summary of the responses can be found in members' electronic meeting pack. Members will also find a copy of John's proposed amendments to the clause in their tabled papers. Are members content that they need not seek further clarification from John on his proposed amendments?

Mr McCallister: I will add one point, Chair, in relation to questions from Raymond McCartney and comments made by some of the academics that we should write into this that someone who does not to want to be seen as part of the opposition can opt out of it, so there is that proviso. It is in response to an issue that members and some academics raised during Committee Stage. The purpose of some of these is to maintain that and to look at some of the language around the more consociational type of government that we have. The amendments come from listening to the Committee during its deliberations.

The Deputy Chairperson (Mr Sheehan): OK. Thanks for that. Are members content that a Committee amendment need not be drafted to clause 4?

The Deputy Chairperson (Mr Sheehan): Clause 5 provides that the opposition is dissolved if all Executive Ministers cease to hold office. Apart from Daniel Greenberg's seeking clarification on the meaning of clause 5, which the sponsor provided, no issues were raised by stakeholders. Members will find a copy of John's proposed amendments to clause 5 on page 25 of the tabled papers. Do members have views on clause 5? Do you require clarification?

Mr Kennedy: I think Greenberg's point was that if the Government fall, the opposition falls by consequence. Do you need to write it in?

Mr Hutchinson: In our proposed amendment, we have added additional scenarios where the opposition might fall. It would fall if, for example, it is made up of only a technical group and the technical group falls below the 5%. We have added a couple more potential scenarios that would lead to the dissolution of the opposition, but I take the point that the opposition would fall if the Executive were to fall.

Mr McCallister: It was put in the Bill, because, if there was a period in between an Executive falling, additional rights would not be given to the opposition during that process. That is why it clarified that.

Mr Kennedy: Yes, but the opposition would not be waiting for the call, as it were, at that point, to form an Administration or attempt to form an Administration. It falls by consequence. A technical group itself and its numbers do not indicate that an alternative Administration could be formed.

Mr McCallister: Yes, but that —

Mr Kennedy: In the way that, constitutionally, the Queen has to assess whether anyone else could form a Government.

Mr McCallister: Yes. The example that I gave previously in the Committee Stage was the Republic of Ireland changing Government without a general election, in 1994.

Mr Kennedy: It changed its Prime Minister or Taoiseach.

Mr McCallister: Not only Taoiseach, but the lead party in government. It moved from Fianna Fáil to Fine Gael, and the Government became a rainbow coalition. The position of Taoiseach moved from Albert Reynolds to John Bruton. In theory, if our numbers were very different and you had a very large opposition block of different parties, you could get to that point, but that, admittedly, is very unlikely. If the technical group was below 5%, it would also allow the provision of that opposition. It is important to write in that you cannot have a technical group to gain rights just on day one and then not function in any form after that.

The Deputy Chairperson (Mr Sheehan): Are members content that no Committee amendments are drafted to clause 5?

The Deputy Chairperson (Mr Sheehan): Clause 6 provides for the appointment of the leader and deputy leader of the opposition. There were stakeholder comments in respect of clause 6. It was noted that these positions do not exist in the Scottish Parliament and the Welsh Assembly. It was also considered that clause 6(3) potentially departs from d'Hondt and the cross-community principles of the Good Friday Agreement. A potential amendment to clause 6(3) has been suggested by Professor Cochrane and Dr Loizides. Comments made by Daniel Greenberg in respect of clause 6 are tabled separately. They are on pages 35 to 37. Members will also find a copy of Mr McCallister's proposed amendments to clause 6 on pages 25 to 27 of the tabled pack. Do members wish to seek clarification on that proposed amendment?

Mr Kennedy: I wonder if he has considered the Cochrane and Loizides alternative wording.

Mr McCallister: What page is it on?

The Senior Assistant Assembly Clerk: It is on page 36.

Mr McCallister: One of the things that we always wanted to do in the Bill is maintain d'Hondt. Yes, I want to put a lower threshold into that. In forming an opposition, it was never my policy intent to make it a mirror image of the Government. If there was one block of that, I would want to remove community designation. I never wanted to get into the idea of the largest political party of the second largest political designation. I do not particularly want the opposition just to be a mirror image of our consociational, cross-community Government. Whoever either opts to be in opposition or electorally gets into opposition should be in the opposition, whether that is the SDLP, the Ulster Unionists or whoever it happens to be. Those are the parties or, indeed, technical groups.

The part of the amendment that I have listened to the Committee and some of the academics on is changing the language around the leader and deputy leader of the opposition. I have suggested, in amendments, other titles that could be used. We could look at the person to be leader of a non-Executive party. If there were more than one, you could use leader of the largest non-Executive party and leader of the second-largest non-Executive party, which is much more in line with what other legislators in Scotland, the Welsh Assembly and the Dáil tend to use — they just talk about leaders — or, indeed, the 'Fresh Start' document. The amendments I propose to that clause are much more in line with the agreements reached around 'A Fresh Start' and the language.

I listened to some of the academics. We have a consociational Government, but some people do not want to be in that Government. They may not want to be described as opposition, but they are not in the Government, so they are a non-Executive party. It is that model and developing an idea of how you get almost a hybrid between everybody being in government and using d'Hondt but limiting it and getting some people out of government. That improves the functionality of government but also gives you a viable opposition and a viable alternative. That is why I have deliberately tried to change the language and make it more in line with agreements reached in 'A Fresh Start', but I do not particularly like the amendment there because it just reinforces the tribal nature of our politics of leader, using designations to do that. That is not what I envisage of people not being in government or being in opposition.

The Deputy Chairperson (Mr Sheehan): Do members have any views on that? Danny, did you want to come in

Mr Kennedy: I thought I was on the point of saying something, but I will not.

Mr McCallister: Is that good or bad?

The Deputy Chairperson (Mr Sheehan): Are members content not to draft a Committee amendment to clause 6?

The Deputy Chairperson (Mr Sheehan): I will move to clause 7, which provides that the leader and deputy leader of the opposition should have the first opportunity for questions during topical questions to the First Minister and deputy First Minister. A number of stakeholders were concerned that that had the potential to over-incentivise the opposition and restrict the power of Back-Benchers. The question was also raised of whether it was right to create a statutory duty, rather than a right, in the event that neither the leader nor deputy leader of the opposition wanted to ask the first questions. A summary of those responses can be found on page 37 of the electronic pack, and John's proposed amendments to the clause are on pages 27 and 28 of the tabled papers. Do any members want to seek clarification?

Mr McCallister: I just draw members' attention to the amendment changing it to the leadership of the opposition, or it can mean leadership of non-Executive parties. It is very much in keeping with it, and I am quite pleased that they have looked at how we can improve the scrutiny in the Fresh Start Agreement.

The Deputy Chairperson (Mr Sheehan): Are members content not to request an amendment?

The Deputy Chairperson (Mr Sheehan): Clause 8 provides for enhanced speaking rights for the opposition. Whilst stakeholders were generally in favour of providing additional speaking rights for the opposition or those MLAs not in Government, clarity was sought on what was meant by "enhanced speaking rights". Concerns were also raised about the speaking rights of Back-Benchers and the possible impact of the proposal for 15 days a year of opposition business on Assembly sitting times. A summary of the responses can be found in members' packs. John's proposed amendments and response on the cost implications of the clause are in members' tabled papers folder. Does anyone want clarification on that clause? No. Are Members content not to propose an amendment to clause 8?

The Deputy Chairperson (Mr Sheehan): Clause 9 provides that the opposition should nominate the Chair and Deputy Chair of the Public Accounts Committee. There were a number of stakeholder comments in respect of the clause, but there were no real arguments against the proposition. The Assembly's research paper on the Bill noted that in the Scottish Parliament, the Welsh Assembly and Dáil Éireann a member of the Opposition chairs the PAC. A summary of the responses can be found in members' packs. A copy of John's proposed amendments to the clause can be found in members' tabled papers folder. Does anyone want clarification on that clause? No. Are members content not to propose an amendment?

The Deputy Chairperson (Mr Sheehan): Clause 10 provides that members of the opposition are entitled to be represented on the Business Committee. There was no real opposition to the clause, but the Business Committee added a caveat to its response by stating that clarification was required on clause 8 before an assessment of clause 10 could be made. A summary of the responses can be found in members' packs.

No member wants to seek clarification on that clause. Are we content not to draft an amendment to clause 10?

The Deputy Chairperson (Mr Sheehan): Clause 11 provides for additional payments to be made to political parties in the opposition. The proposal was welcomed by some stakeholders, whilst others expressed concern about the possible impact on the resources provided to the Assembly by the Assembly Commission at a time of cuts and additional pressures to the existing time. A summary of those responses can be found in members' packs. Members may wish to note the response from the sponsor, which is included in their tabled papers folder.

Does any member want clarification from John on that clause? Does any member want to propose an amendment from the Committee?

Mr Kennedy: Is there any sense of how you could make that provision cost-neutral?

Mr McCallister: According to the Assembly's costings, by May, we will cut three Departments, and that means three fewer Committees, which would provide a saving of £567,000. Even allowing for the Budget Committee, which we will come to later, the Assembly estimates savings of just short of £190,000. You could quite easily pay a salary to the leaders of the first- and second-largest non-Executive parties and probably still have some money left over for reallocation to other parties.

The reason that I put it into the Bill like that is so that politicians and Members do not put their hands up for more money for themselves or their parties. That is why it is important to go to an independent panel for that.

On those very rough sums, you could easily do that cost-neutrally. You could have your Budget Committee and have salaries for the leaders and deputy leaders of the largest non-government parties and still have a small allocation or movement in money between government parties and non-government parties. Everyone knows that when a government party has 19 special advisers (SpAds) and 25,000 civil servants behind it, that is when it is completely out of kilter. You served as a Minister for nearly five years, Danny, so you know the difference in support that you have in government and in opposition. You could do it cost-neutrally entirely in line with the Fresh Start Agreement.

The Deputy Chairperson (Mr Sheehan): OK. No one wants an amendment to this clause. We will move on to clause 12, which adds office holders of the opposition to the list of persons who may be entitled to additional salary and allowances. Many of the views expressed by stakeholders about clause 11 also apply to clause 12. Clarity was sought on the term "officer of the Assembly"; it is a minor technical point. Maybe John can provide some clarity on that. The response from the sponsor on this clause is included in the tabled papers.

Mr McCallister: I will address the technical point about office holders. The advice from the drafter and the Bill Office was that they did not see an issue with it.

The Deputy Chairperson (Mr Sheehan): No amendments have been suggested to clause 12 . We will move on to clause 13. This clause allows the Assembly to pass an Assembly and Executive reform motion calling for Westminster legislation to reform the Assembly and the Executive. The Committee may wish to note in particular the contributions from the Speaker, the Secretary of State and Daniel Greenberg. No clarification is required on this clause, and no amendments have been proposed to it.

Clause 14 provides that the Assembly and Executive Review Committee be responsible for ensuring that the motion provided for in clause 13 is tabled within five days of this clause coming into operation. Clause 15 requires the Committee to report to the Executive every three months on the progress being made by the Secretary of State in bringing forward legislation. No issues were raised by stakeholders on clauses 14 and 15. No clarification is required by members, and no amendments to clauses 14 and 15 have been suggested.

Clause 16 allows for the formation of technical groups by smaller parties and independents. There was a mixed response from the two political parties that responded, and a note of caution was sounded by the Speaker about the need to have mechanisms in place to deal with any disagreements that may arise in the technical groups. John's proposed amendments to the clause are in the tabled papers. No clarification is required on this clause, and no members have suggested amendments to it.

Clause 17 provides that members of the opposition be entitled to be represented on the Business Committee. There was no real opposition to this clause from stakeholders, but the Business Committee offered a caveat in its response by stating that clarification was required on clause 8 before an assessment of clause 10 could be made. Do members require clarification from John on this clause?

Mr Kennedy: Technical groups will be represented on the Business Committee and motions come before the House for selection. How do you legislate in the technical group for disagreements as to whose motion should be considered?

Mr McCallister: You would just get agreement. In the technical group, all those rights in the Business Committee are broadly given out on a d'Hondt or proportional basis anyway. That would continue. The technical group is just a mechanism to get a seat there to contribute to the debate. They might, on a six-member technical group, get a motion, although it would not be often. They would just have to draw out of a hat whose motion would go in. The six members would put it into a hat and, if they could not agree to that, they would not get to table one. It is up to the technical group to sort that out; it need not cause trouble to the Business Committee. The Business Committee works on the voting strengths of the parties. The Chief Whips carry the voting strength of each party represented. I think that it would be absolutely fine to continue that.

Mr Kennedy: So, again, you are asking them to sort that out.

Mr McCallister: There is not much to sort out. It is up to the technical group to sort out what it wants to bring forward; if it cannot agree, it cannot bring anything forward. There will be nothing for the Business Committee to sort out. The only bits that the Business Committee needs to sort out is saying, "Right, you are on the Business Committee and these are the rights" —

Mr Kennedy: When it is their turn.

Mr McCallister: — "and the proportion." That works the same for every party represented here.

The Deputy Chairperson (Mr Sheehan): OK. I see that no member wants a Committee amendment to be drafted to clause 17.

Clause 18 provides that, during topical questions to Ministers, the first question is to come from the Chairperson of the Committee established to advise and assist that Minister. Again, there was no real opposition to this clause. A copy of the sponsor’s proposed amendment to clause 18 can be found in the tabled papers. Does anyone want clarification of this clause or an amendment made to it? No.

Mr Kennedy: Sorry, Deputy Chairman. What happens in the unusual circumstances — it does not happen very often — that the Minister is of the same party as the Chair?

Mr McCallister: I do not think that the Chair and the Minister are allowed to be of the same party.

Mr Kennedy: They are, because there are always exceptional circumstances. It has happened in past mandates and is happening now.

Mr McCallister: What Committee is this happening in currently?

Mr Kennedy: The Regional Development Committee is chaired by someone of the same party as the Minister.

Mr McCallister: That is an exceptional circumstance; the party that held the Chair gained a position because others left it.

Mr Kennedy: There have been occasions where, through d'Hondt, one of the defaults is that, a couple of times, a Committee Chair has been of the same party as the Minister.

Mr McCallister: Chairman, my understanding is that, apart from the unusual circumstances that Regional Development is in at the minute, you are not allowed to have a Committee chaired by someone of the same party as the Minister. You can have a Deputy Chair of the same party as the Minister, but I am fairly certain that, when the d'Hondt process is run, the Chair and the Minister are not allowed to be of the same party.

Mr Kennedy: The tendency is best avoided, and it generally is avoided; however, there have been occasions where it has been unavoidable.

Mr McCallister: The current one is the only one that I can think of.

Mr Kennedy: I can think of other occasions when it has happened in the past.

Mr McCallister: It might be worth getting advice on that. I was very clear in my understanding that there is a bar on that happening.

Mr Kennedy: No, I do not think that there is a formal bar on it. It is considered good practice to have that balance, but I am certainly aware that there have been cases in the past where Chair and Minister belonged to the same party. It might be worth checking that out, if somebody could research it.

Mr McCallister: It certainly would be worthwhile to do so. I think that such a situation would be very much the exception to the rule. It is most likely to be avoided, particularly if we end up going back to a four- or five-party coalition.

The Deputy Chairperson (Mr Sheehan): OK, does anyone want an amendment to this clause? No.

Clause 19 provides for the establishment of a Budget Committee. Members may wish to note in particular the response of the Committee for Finance and Personnel following its recent work on the establishment of a Budget Committee. A summary of those responses is in members' electronic packs. Members may also wish to note the response from the sponsor on this clause; his proposed amendments are in the tabled papers. Does anyone want clarification on that? Anyone want any amendments? No.

Clause 20 provides for the renaming of the Office of the First Minister and deputy First Minister to the Office of the First Ministers. While a number of stakeholders expressed their support for this proposal, there was concern that it could be in breach of section 16 of the NI Act 1998. Alternative proposals were put forward. A summary of the responses can be found in members' packs. Does anyone want clarification from John or any other information? Anyone want to propose an amendment? No.

Clause 21 provides that each Department be a single legal entity. Whilst there was support for this clause, a number of stakeholders, including the Examiner of Statutory Rules, expressed concern. In particular, they queried whether the clause was the best way of achieving collective Cabinet responsibility as intended by the sponsor. Does anyone want clarification of that or want to propose an amendment?

No substantive stakeholder comments were received on clauses 22 to 24. Does anyone want clarification from the sponsor or a Committee amendment drafted? No.

That is all the clauses covered. Next week, we will consider the schedule.

Mr McCartney: I have a general question. In fairness to John, the 'Fresh Start' document has put into the public domain a form, for want of a better word, of how opposition could be provided for without legislation through Standing Orders. How far has that come to match what you are doing? Do you have a general view?

Mr McCallister: I welcome the change and the progress made from the Stormont House Agreement last year. I note some of the stuff, even giving the opposition an unballoted question and looking seriously at what can be done. I welcome that move. However, it does not go far enough, as is there is no recognition of technical groups or a Budget Committee, which has an important scrutiny function. There is also the debate about Standing Orders. We were to have Standing Orders done last March. Not only does legislation give those in opposition or those who opt out of government a place, it enshrines it, and Standing Orders are then a statutory base. That makes it much harder for a future Government or Executive to change. They would have to change not only the legislation but the Standing Orders. That provides much more security. It also gives parties that are nervous about these changes the reassurance that there is a base of legislation and everything is on the table to negotiate, amend or change, as well as when we get to make the Standing Orders that flow from this.

Mr McCartney: A lot of these systems evolve. From some presentations, I thought that it would have been in the legislative framework at Westminster that there was an official Opposition leader and all that went with that. Does legislation, perhaps, just close it down and that is the end? As we have seen with the 'Fresh Start' document, if you put something in place and if it works or not or needs tweaked or changed, it is easier done because it is by the agreement of parties and then through Standing Orders.

Mr McCallister: We are much more a creature of statute than Westminster. The UK does not even have a written constitution. Its parliamentary system is very much one that has grown up over hundreds of years, and there is a political maturity about it. We are an infant democratic process in a consociational Government. It is how you bring in that scrutiny. The legislative process gives you the security that you know what you are signing up to, and it gives others in opposition the security of knowing that it is harder for a future Government to take away those rights.

Mr McCartney: Most of this is shaped by politicians, for the want of better words. Take the Scottish Parliament, for example. The architects of devolution did not envisage how it would roll out, so the Scottish Parliament has had to evolve and take note of the new circumstances. That is a more appropriate way of doing it than the idea of fixing it with legislation. Say, for instance, that a technical group is possible and you go down to 80 MLAs and end up being fixed on a percentage: you might then say that it should be a figure rather than a percentage. Fixing it means another legislative process to alter it. The striking thing about your Bill is that most of the clauses, as presented — I know that you have amendments — state that "Standing Orders must". The provision is there if we want to do it.

It is about convincing people of the need to do these things. It goes back to the general point. I am not saying that you feel this way, but there can be a tendency for people to think that what we have here is not perfect, so it must not be right; therefore we have to bring it to something that we think is perfect. However, the more you explain or examine the perfection, the more you see that it is not so perfect. There are flaws in it, and the flaws are obvious. A lot of the witnesses who presented to us said that, in some places, the idea of an opposition is there only in title and that the Government run through the legislation anyway.

Mr McCallister: I accept your point that there is almost no perfect system of democracy, whether in the electoral systems or the way the Government is formed. In drafting the Bill, I was always conscious of getting the balance between being too prescriptive and giving you the security of knowing what you were signing up to. I am relatively relaxed if the Committee wants to table an amendment that technical groups should be five members, but I thought that a percentage future-proofed for smaller arrangements gives more comfort. Broadly, that is why I think that we have the balance between being too prescriptive and leaving Standing Orders to develop and evolve and make those changes. It comes back to the point that this gives you a base to build on and on which to make changes. I think that that sums it up. The debate on this has been very helpful.

Mr McCartney: Absolutely.

The Deputy Chairperson (Mr Sheehan): John, I think that you are coming back to us next week when we will look at the schedules. Thanks to you and Peter for coming along.