Official Report: Minutes of Evidence

Assembly and Executive Review Committee, meeting on Tuesday, 17 November 2015

Members present for all or part of the proceedings:

Mr Pat Sheehan (Deputy Chairperson)
Mr D Kennedy
Mr Trevor Lunn
Mr Raymond McCartney
Ms C Ruane


Professor Derek Birrell, Ulster University

Assembly and Executive Reform (Assembly Opposition) Bill: Professor Derek Birrell, Ulster University

The Deputy Chairperson (Mr Sheehan): I would like to welcome you, Professor Birrell. We are disappointed that Professor Gormley-Heenan could not make it.

Professor Derek Birrell (Ulster University): I start by apologising for Cathy. She actually took unwell during the broadcast of 'Stormont Today' last Tuesday. She has not really been well since.

The Deputy Chairperson (Mr Sheehan): Stormont has that effect on a lot of us. [Laughter.]

Anyway, the floor is open to you. Feel free to carry on.

Professor Birrell: I have changed a little what I was going to say for 10 minutes, because Cathy was going to work her way through the briefing paper, which she largely wrote. I thought that it might be more useful to bring up some issues about the clauses and attach my 10-minute spiel to the clauses. I am not quite sure whether the Committee Clerk has circulated this brief. I sent it to her only yesterday. I have listed 10 points, which I think relate to the clauses. I will try to group them a little bit so that you can follow it a bit more. Some of this arises from the briefing paper and issues that you are familiar with and some from the clauses. Sorry, I hope that I am not too breathless. I left Coleraine at 8.00 am, arrived only a few minutes ago and had to park near the main road.

The first issues that I have raised are about terminology, which of course bears close significance to the clauses and terms of the Bill. The first was about the terms "official opposition" and "opposition parties". I will refer a bit to Scotland and Wales because, a couple of years ago, I wrote a book about comparing devolved governance. That is why I bring in things about Scotland and Wales.

Cathy said I must mention — she was going to mention it — that, just a few weeks ago, I published with her a book on multi-level governance in Northern Ireland. The English publisher produced it in a green, white and gold cover and an orange back. We did not see the colours before it was produced.

Ms Ruane: They must know something that we do not.

Professor Birrell: The term "official opposition" does not appear in any legislation in Westminster, Scotland, Wales or the Republic of Ireland. You tend not to find that term. One general point that I want to leave with you is that, in putting things into a Bill, it should not be too much of a constraint. You tend to find that opposition, opposition parties and so on are treated in a fairly flexible manner in a lot of Administrations. The term "official opposition" does not really appear in Britain. It is governed largely by conventions. Scotland and Wales prefer the term "parties not in government" or "parties not in the Executive". In Westminster, you have an official Opposition, but you also have third and fourth parties, like the Lib Dems and the Green Party, that are also referred to as "parties not in government".

My second point is about the term "technical groups". I should have read more about it, but I am not totally up to date on why that term has been included. It might be a little confusing. The term "technical groups" might refer to almost anything. I was just wondering whether there is any possibility — it might be too late — to have a term that is clearer for the user or the public or even other politicians. The only phrase I came across in some of the narratives of the Scottish Parliament was the term "combination of parties or groups".

My third point is about "leader of the opposition" and "leaders of parties not in government". There is some reference in statute law in England to the Leader of the Opposition. That is a formal, statutory term. In Scotland and Wales, there is no statutory use of the term "leader of the opposition". There are only leaders of parties not in government. That is the term used. Those leaders are given certain roles. They do not have deputy leaders, of course —

The Deputy Chairperson (Mr Sheehan): Professor Birrell, could I stop you for just a second? There is a technical issue here. We do not have enough members for a quorum, so, according to Standing Orders, we cannot carry on with business. The member who left said that she will be back shortly. I apologise.

The Committee suspended at 10.19 am and resumed at 10.22 am.

On resuming —

The Deputy Chairperson (Mr Sheehan): I apologise for the interruption. Please carry on.

Professor Birrell: I will try to take just another few minutes.

I made three points about terminology, and there are two points on more general issues about opposition. The first one refers to page 2 of the briefing paper, which notes the different forms of opposition or cleavages in Parliaments and Assemblies. In Northern Ireland, there may be even more cleavages than usual. The types of cleavage are listed in the paper, starting with the obvious one, which is the relationship with parties not in government/opposition parties. A Government may be divided in the absence of collective responsibility. The relationship between a Government and Back-Benchers is another division and is quite important at Westminster. The relationship between a Government and scrutiny Committees, where the scrutiny Committees have an opposition role, as was originally intended here, is another cleavage. In Northern Ireland, the community designation highlights different cleavages or groups. There are also what Cathy called "extra parliamentary groups", which is such things as courts exercising an opposition-type role or a petition system, such as the one that operates in Scotland and Wales and was under consideration here, of the public being in opposition. There is that general idea of opposition.

The other point is about flexibility in opposition. Normally, opposition is regarded as being quite a flexible status for groups. Therefore, in Scotland and Wales, you can find examples of parties not in government, as they are called, agreeing to support the Government in certain circumstances to ensure that they have a majority at certain times, such as with the Budget. That has applied in both Scotland and Wales, with opposition parties agreeing at times to support the Government. There is that kind of flexibility.

My sixth point is one that may interest academics more than the Committee and is about consociationalism or power-sharing and opposition. The model of consociationalism is meant to work on the basis of all parties above a minimum level participating in government — being the Government — with the opposition coming from other sources, such as Committees and so on. Is that really a model that stands against a more parliamentary model of government and opposition or the Westminster model of government and opposition? That is obviously a more academic argument that political scientists debate.

I have a couple of final points. On the issue of proportionality, what happens if the opposition is always very small in numbers? At present, in Northern Ireland, it might be verging on small. Does that lead to things becoming unbalanced? It is interesting that, in Westminster, Scotland and Wales, the opposition parties are quite large. They make up almost 50% in each jurisdiction and are, by no means, small in their operation.

On point 8, are the benefits of opposition limited in practice? It is OK to have speaking rights, Committee Chair rights and question rights, but does that carry a great deal of weight? Of course, in Northern Ireland, there are some resources, but there is no access to some other resources in the parliamentary system. How does that weigh against being in government? I found a quotation — it is one sentence, so it will only take me a second to read it — in a book by Professor Paul Cairney about the Scottish political system since devolution, in which he discusses this issue:

"From the evidence that we have, it is difficult to identify enough policy influence for opposition parties to give them an incentive to eschew public office when it is available."

He is arguing that, for smaller parties, being an opposition party may not be as attractive as being in government.

I was not too sure about the very last point. The Bill includes references to collective responsibility, and that really would have to be part of the ministerial code. Scotland has a 20-page document on how collective responsibility works. The Bill has a clause that suggests two First Ministers and a clause on the status of Departments. I wonder whether that raises wider issues that might have to be in a separate Bill or whether they fit well into this Bill.

That is the commentary.

The Deputy Chairperson (Mr Sheehan): Thanks very much. I will open it up to questions.

Mr McCartney: I have a couple of points. On point 2 of the paper about the definition, sometimes when people here are presenting on the need or desire for an opposition, they use the Westminster model as if having an opposition is laid in statute. However, in your paper, you say very clearly that many of the rules on opposition can be made by convention or, in our terms, by Standing Orders. Is that the case?

Professor Birrell: Yes. I think that the legislation in Westminster refers only to the Leader of the Opposition, salaries and so on, but beyond that it is done by convention. It is much the same in Dublin. The legislation in Dublin is mainly about salaries, not so much for the leaders but for the party Whips. It is the same in London: the party Whips and opposition Whips get salaries. It is mostly the usage of conventions, as they call them, that governs the role of the Opposition.

Mr McCartney: On the desire of someone to present the alternative, if you like, if there is a dominant view or a dominant way on party policy or government policy, Scotland and Wales demonstrate that the Westminster model of opposition is not necessarily needed for people to be in opposition to government policy.

Professor Birrell: The emphasis in Scotland and Wales is very much on a role, whether or not it is a role for the opposition. They put the emphasis on the leaders of the parties not in government. They have a role and are represented on the Business Committee of the Assembly or Parliament, whereas at Westminster the opposition parties are not, although parties negotiate behind the scenes. In Scotland and Wales, however, it is written into the system that opposition parties are involved in the Business Committee. They get quite substantial funding, speaking rights, debating rights and Committee rights, but those rights are largely determined by Standing Orders and convention.

Mr McCartney: People often — I do not want to say "promote" — use Westminster as the model, so that having a Chair of the Public Accounts Committee (PAC) from a government party is often portrayed as an affront to democratic norms. I think that, in your paper, you say that it is the opposite in similar models. In fact, in an overwhelming majority of parliamentary systems, the PAC Chair can be of whatever party.

Professor Birrell: You will probably have to look at a lot of systems, and it is difficult to compare things at times. The background to the Westminster model is that it is based very much on the two-party system. It has always therefore been thought appropriate that the opposition party, which has the strongest interest in keeping an eye on the Government, is given the post of Chair of the PAC. Scotland and Wales have followed that tradition, because, given that the Chairs of Committees are shared out anyway, it seems a fairly obvious one for a member of an opposition party. The Deputy Chairs in Scotland and Wales are also from the opposition parties. Cathy did some digging on other Commonwealth countries and found that that model is not always used. We are just talking about the position of Chair. We should not overrate its importance; that is just the tradition.

Mr McCartney: One imagines that if in Westminster, say, you had a rule similar to the one in the Assembly, whereby the Chair of a Committee cannot be of the same party as the Minister, it would be hailed as democracy in its truest form. That is why I make the contrast. Sometimes people take a particular model as equivalent to democracy and anything below it as undermining democracy. We could look at Westminster and say that it is not truly democratic when you have the Government —

Professor Birrell: To some extent, Scotland started by following the Northern Ireland model, where Ministers were shadowed by the Committee and Chairs were from different parties, although it was not written down anywhere. However, those practices were abandoned when the SNP won a large majority, and SNP members are now Chairs of Committees when the corresponding Minister is also SNP.

Mr McCartney: And democracy did not collapse overnight in Scotland as a result. I am struck by your comment on a quotation from Robert Dahl. You said that:

"there exists no blueprint for the optimum model of parliamentary opposition."

Most oppositions are designed by convention and can be shaped by the system in place. We have the ability to do that both by convention and Standing Orders.

Professor Birrell: The UK case is always slightly different because practically everything is by convention. It has not got a written constitution, so you might not expect it to be written down anyway. That is why the examples from Scotland and Wales are quite useful: they had the opportunity to write them down. They are also more comparable with Northern Ireland as a devolved system.

Ms Ruane: Go raibh maith agat. You are very welcome. Thanks for your presentation. I would not mind having a look at your books, if that was possible. I am sure that we can order them in the Library as well. It would be useful for debates.

Following on from Raymond, I suppose that in some ways Stormont and Leinster House are much more representative of our society. They provide a much more inclusive model through how people are elected and proportional representation.

You nearly need to look at that as a starting point when you are looking at this. In England, it is first past the post, so, if you get 51%, you have 49% of the people not represented at all in a constituency. Would you like to comment on how inclusive it is here or not, as the case may be, in terms of speaking rights and representation on Committees for people who are not in the Executive, albeit that their numbers are very small?

Professor Birrell: Representation on the Committees largely follows d'Hondt, so it reflects the numbers in the parties. In Westminster, the Committee make-up follows the number of MPs fairly closely as well. There are two things about Scotland and Wales. First, of course, they have an element of PR in their electoral system. It was never really expected that one party would have a majority in Scotland or Wales, and the SNP's victory was regarded with amazement because it had sort of beaten the system to have an overall majority. Although a d’Hondt-type model is used for appointments to Committees in Scotland and Wales, there is flexibility in it to involve more minor parties. After the previous election in Wales, the Government were dependent on Green Party support, and the Green Party only had two or three Assembly Members. One of them was given a Committee Chair as a kind of incentive, but that was outside the system. Either you regard that as wrong, or you say that that is flexibility, which we need.

Of course, although we say that the role of the opposition is not written in formal systems, most systems that we are familiar with give certain special rights to all the parties that are not in the Executive. In Scotland and Wales, each of them has a day a week to initiate debates. They bend over slightly to make allowances for speaking rights and question rights. I am not too sure about the details in Northern Ireland, but we might get an impression of how difficult it is for small numbers of Back-Benchers to get speaking rights or debating rights or the right to put a motion down for debate. You would know about that much better than me. In other jurisdictions, particularly Westminster, there is quite a strong emphasis on Back-Benchers' rights. Although you think that it is totally dominated by the parties and the party Whips — it largely is — there are certain things written in to protect Back-Benchers' rights as a whole. There is a Backbench Business Committee at Westminster that allows more opportunities for Back-Benchers and, therefore, for individual Members. Some jurisdictions make a distinction between the rights of Back-Benchers and the rights of opposition parties.

Ms Ruane: In the Business Committee, our party supported extra speaking rights for independents so that they come higher up the Order Paper, but, unfortunately, that was voted against. We want to see an inclusive Assembly, but the reality is that you do not need legislation to bring about those changes; they can be done by Standing Orders or by the Business Committee.

You mentioned the South. England does not have a constitution, but the South does, and still it does not have legislation.

Professor Birrell: No, I tried to check that. I used to know more about the Government in the South than I do nowadays. I tried to check, and I do not think there is anything. Micheál Martin has the official position of leader of the opposition, but that is it; there is nothing much else in statute about it. There possibly is in Standing Orders, which I did not look through, but there is not a lot on an opposition.

Mr Kennedy: Thank you very much, Professor Birrell. The position of Chairman of the PAC is lauded as being one of the great prizes, but it is basically talking about last year's snow.

Professor Birrell: Yes. It used to be sometimes said that the Westminster PAC was always closing the stable door after the horse had bolted. One of the things you will find written about it — I am not sure I always agree — is that it has high status. Who gives it high status? It has to be the other MLAs or MPs, the media, commentators, academics and so on. It gets quite a lot of coverage, it is treated seriously, its reports have to be replied to and so on. The Chairman reflects that. I have asked one or two people, including Paul Cairney, who wrote the book there, about the position in Scotland. He said, "Oh yes. It has that status". He says the best reflection is that civil servants do not like appearing in front of it. That is evidence of its status.

Mr Kennedy: In terms of day-to-day effectiveness, it is not something that the leader of the opposition or the opposition generally would be satisfied with as a sort of bone, whereby they are told, "There you are: you can be Chairman of the PAC".

Professor Birrell: Sorry, I cannot produce the evidence from Scotland and Wales on how their opposition parties regard being Chair of the PAC or the Public Audit Committee. They probably regard it as having some significance. Stepping back from the political arena, you might argue that it has a role in ensuring government is more efficient and provides more value for money or in impacting on the Civil Service. They may see that as one of its values. In a sense, the only evidence I might be able to produce would come from going to talk to the people in Scotland to see how they rate it. I cannot give you the answer they would supply in Scotland and Wales.

Mr Lunn: I am sorry I missed your presentation, Professor. I am ill prepared for this, but I am interested in what we have just been talking about. From being on the PAC and visiting Scotland, the Republic and Wales to see what their PACs do, I know that they all have the same benefit: the civil servants are terrified of it. Their worst nightmare, if the job is being done correctly, is to be asked to appear in front of the PAC. I do not agree that it is about last year's snow; it performs a vital service. It is certainly after the event, but, if you do not learn from events through the PAC and the Audit Office, how else will you improve? Our Public Accounts Committee has done sterling work in certain areas. Other times, you may wonder why they wasted their time on a particular issue, but that comes out as they study the issue. There is no question there for you; I am sorry about that.

Professor Birrell: There has been work by one or two people — not me — suggesting that the PAC is the most — maybe the only — effective Committee at Stormont. I know they are arguing that, because they told me they were. A paper on public money and management is coming out soon. I have not seen the paper, so I do not know all their evidence. Of course, the PAC has the political status and status in the press, and it has an impact on improving public-sector governance and so on. There are some poor examples of following things up. The great example of that in Northern Ireland was DeLorean: they were still publishing follow-up reports about eight years later to —

Mr Lunn: I will have to ask my father about that.

Professor Birrell: — the original one.

Mr Lunn: In the meantime, it has had considerable success. One of its failings up here was due to the fact that we never adhered to the principle that it should be chaired by somebody who is not in a government party, but that is the way we do things here.

The Deputy Chairperson (Mr Sheehan): Thanks very much, Professor Birrell, for your presentation.

Professor Birrell: Sorry again that Cathy is not here. She might have had a few different things to say.

The Deputy Chairperson (Mr Sheehan): Send her our best wishes for a speedy recovery.

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