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 S Moutray (Chairperson)
Mr Pat Sheehan (Deputy Chairperson)
Mr G Campbell
Mr D Kennedy
Mr Trevor Lunn
Mr Raymond McCartney
Ms C Ruane
Mr J McCallister
Witnesses:Mr McCallister, MLA - South Down
Mr Peter Hutchinson, Independent
Assembly and Executive Reform (Assembly Opposition) Bill: Mr John McCallister MLA
Mr John McCallister (Northern Ireland Assembly): I basically broke Mr Greenberg's thing into three parts: Standing Orders, ministerial report and the competency of clause 13. I met Mr Greenberg later that day, and I was somewhat unsure of where his views were on this. At one point, he was arguing that Standing Orders would be nugatory, but his other point was that it could be done with one line that says "Standing Orders shall provide for an opposition". I also draw members' attention to the Northern Ireland Act 1998, which is almost, effectively, our constitution, if you like. As Professor Birrell said, we are not a creature of convention; we are a creature of statute. Therefore, it would be very judiciable, given the fact that we are based in legislation.
I also suggest that that means that any Bill that calls for regulations to be made would not be enforceable if Mr Greenberg's lines were to be taken on that. Look at the Northern Ireland Act 1998, which Mr Greenberg actually drafted: "Standing Orders shall provide". It is in sections 5A, 13(1), 13(2), 13(3), 13(4), 13(5) and 13(6). Look at section 29 of the 1998 Act: it deals with statutory committees. In fact, I would say that the Act almost writes the Standing Orders, so it is a very prescriptive document. Right through the Bill and the 1998 Act, it is "Standing Orders". Again, it uses very much the same language as we have used. We took advice on that.
With parties, you have control over the Standing Orders, but you are always trying to find a balance being too prescriptive and writing enough into the Bill to make sure that every party is aware of what they are signing up for. The point about having it in legislation and not just relying on Standing Orders is that it gives security that a future Executive cannot just change Standing Orders easily. In the Dáil model, which is much closer to ours because of the electoral system, as Caitríona mentioned in the last session, the executive arm of government has far too much control over the legislature, and that is something that you do not want to happen. That is why it is important that Standing Orders are based in legislation and are not just the gift of the executive arm of government. If Mr Greenberg's advice on Standing Orders was right, I have no idea why he would write it into the Northern Ireland Act 1998 that way. All the legal advice that we got throughout this process was contrary to that.
I now turn to the ministerial report. Again, we are back to the point about the separation of powers. I know that, compared with the United States, we have a weak separation of powers, but what you want — it is the basis of any legislature — is to hold the executive arm of government to account. Whether you are in the government party or not, that Government should be held to account by the Assembly as a whole. To rely, then, on a ministerial report would fly in the face of everything that you would want to achieve. We are effectively giving power to the Minister of Finance over the unitary Government, but that is, of course, an Executive function. To give ministerial power over whether the Assembly should or should not have an opposition or non-government parties — the very Executive that it is trying to hold to account — seems to fly in the face of every democratic norm. I refer to the Dáil, which is much closer to our model because of its electoral system and is much more used to coalition Governments, multiple parties and independents. You would not want to give so much control to the Executive; you would want the legislature. The House of Commons has fought hard, with Speaker John Bercow, to bring power back from the Executive and into Parliament. On no level do I agree with Mr Greenberg that you would put it into a ministerial report. I also suggest that you put something into OFMDFM if you do not want to see it again. Why would you put that in to give the very body you are holding to account the power to decide what way you will hold that Executive to account? That would be counterproductive.
I turn to the competency of clause 13. We have two former Ministers on the Committee who know that you get legal advice when drafting a Bill. At the point where you request that the Speaker puts the Bill on the Order Paper or introduces it, the Speaker is allowed between a week and 14 days to take legal advice from his team to go through the Bill with a fine-tooth comb and give it the go-ahead. Quite simply, we would not be having this conversation if that clause was not competent, because it would not have cleared the Speaker. I am not privy to the Speaker's legal advice, but the Bill would not have been introduced, given a Second Reading and come to Committee Stage. If Mr Greenberg was asked to give technical advice, he should give technical advice; if he was asked to give legal advice, give legal advice. If you are here to give technical advice, do not stray into giving legal advice on the Bill.
Those are the three major areas. I am happy to take questions on those or go through the clauses.
Mr McCartney: The gap in this is that Daniel Greenberg presented to us and you were not there, and then you have to respond to a paper. I think I made the point at Second Stage that the majority of the clauses start, "Standing Orders must make provision". That leads to the conclusion that you do not need legislation; it can be done by Standing Orders anyway. Do you accept that?
Mr McCallister: I have always accepted that. You could do all this by Standing Orders, but it comes back to several points. One is the point that Mr Kennedy and I made during the debate, which is that, if it is based on legislation, it is much harder for a future Executive to change, because they would have to change the law. Of course, you come back to the point that, 18 years on, we have not done it. We want to address two problems with the Bill. It is about giving confidence to all parties that they know what they are signing up for because it is in the Bill. You can then develop the Standing Orders without being too prescriptive. We are addressing our historic divisions and the crisis of governance that we have had. Those are the key bits that we want to address with the Bill. We are a different creature from Westminster; our electoral system and the way we are set up are different. Scotland, Cardiff and Dublin are much better models for us than Westminster.
You could do it with Standing Orders, but nobody has. This gives the base, and the comfort, that whatever the Executive give, they cannot take away particularly easily. Speak to your colleagues in Dublin. Most of them will probably tell you that the Executive have far too much control over the legislative arm of government.
Mr McCartney: You were in for Professor Birrell's presentation. Notwithstanding political arguments, a lot of people have the view that opposition models, whatever they think of them, are by legislation or by statute. However, the more you explore this, the more you see that, regardless of a person's view of a particular model, the one they mostly promote is that which has sometimes come about by convention rather than legislation, so I do not see the case in this instance. I am not saying that there are not aspects of it, but, when you see the phrase "Standing Orders must make provision", that may be a discussion, which I am sure is ongoing, on how you can accommodate people who want to be in opposition. This feeds into the notion, which maybe too many people have, that unless the model uses the word "promote" then we, up here, are not democratic or our system is not democratic. That is where I see the weakness. We see that there is no formal opposition in Scotland and Wales, but there is no sense that people there are saying, "That's an affront to democracy" or "Scotland and Wales have no real Governments", whereas, there are people here who are trying to portray what happens here as not truly democratic.
Mr McCallister: In putting forward the Bill, I have never produced the argument that this is undemocratic. People are elected, and they have their mandate. You use d'Hondt and populate your Government. I want an opposition so that we can give people the choice about whether they want to be in the Government or in opposition, but I also want to recognise that we have historical divisions that need to be addressed. However, we need to move beyond that and into the realms of good governance or governance that is about policy, delivery and an opposition that is challenging that.
There is nothing in the Bill that says that an opposition has to either always vote for the Government or always vote against the Government. They can vote according to what they support, as you will have decided to do at your group meeting this morning. That will continue. You are addressing historical things. Professor Birrell is right that practically everything at Westminster has come about through hundreds of years of convention. The Dáil, Cardiff and Edinburgh situations are much closer to ours, but they had the capacity to do this by Standing Orders. Here, we are doing it by Standing Orders but on the basis of legislation, for two reasons: first, it gives certainty that the Executive cannot change this easily and, secondly, it gives certainty to parties around the table about what they are signing up to and what they will get out the other end.
Mr Peter Hutchinson: Some of the recent debate around this has, maybe, taken a tangent along the word "normal" and the idea that "normal" is, somehow, the Westminster model. That has not been helpful.
John's focus on the idea of normal politics here has been more on the politics of a policy, and so it would be on the politics of the policies on the health service, education and things like that. That focus on normal policy, as opposed to any ideological preference for a specific style of government, has been more of a driver. As John said, he was looking at the issues that exist for us and at pragmatic proposals to solve those issues, as opposed to having an attitude of, "This is normal, and we should impose it". That has never been the case.
Mr Campbell: My apologies for missing the early part of your presentation, John. Further to the issue of the possibility of change, I take your point about legislative change being preferable. However, you indicated that part of the reason for that and wanting that is that it would be, in your words, more difficult for a future Executive to change it. Notwithstanding any electoral result, which nobody can predict, and given the likelihood that an Executive that is more than a one- or two-party Executive — three, four or five — is likely to command 70% to 75% of the Members, why do you think it would be more difficult, if a future Executive, as far as we could see, would be likely to command that sort of number in the Chamber, other than being just a time restraint?
Mr McCallister: If the Executive commanded that number in the Chamber — I am not sure that it would be just as high as that — they could change it. You would be back to the time constraint and, maybe, adverse publicity and public reaction as to how you change it. Standing Orders would be a much easier way for those numbers to change things. They could change it in several days.
Mr Campbell: There may be a view among the public that that is not a good thing. Whether you did it by Standing Orders or by legislative change would not affect the public, I presume. If they were outraged, they would be outraged whatever the mechanism.
Mr McCallister: I suspect you would have much more publicity around changing legislation, because you would have a full debate in process, with no time limit on how long Members could speak for and no limit on how many Members could speak during the debate. You would have a very different process for a future Executive that wanted to do that. I do not think that they would want to do it, given the overwhelming number. They would probably not feel the need to do it, if there were only 30 Members in opposition compared with 75 or 76 in the Government.
You will end up with a much harder process for them to go through — that is what this is based on. In any legislature, any Government with a majority can change any law or Standing Orders they want to change. There can be problems in the Dáil when there is a big majority. I was speaking to a Sinn Féin colleague about the water debate in the South and they considered the number of amendments that Sinn Féin, as a party in opposition, produced. On average, they had four seconds to speak per amendment, because the Government could bring in a guillotine. That is when your Executive have too much control over your legislature.
Mr Campbell: Or opposition parties table too many amendments.
Mr McCallister: Is there such a thing?
This makes it a lot harder. It will give security to the parties that this will be harder to change, although I accept that will not be impossible. Today, everybody knows what they are signing up to, and it will still allow you a certain flexibility with Standing Orders.
Mr Kennedy: Welcome, John and Peter. Thank you. One of the main thrusts of Mr Greenberg's evidence to us and of his subsequent paper was his questioning of the legal competence of your Bill. Is there any more clarity on that from your side of the fence? Nobody seems to be absolutely clear that it is legally competent. The Attorney General's view has, apparently, not been sought by anybody, as far as we know. Mind you, in general, he is traditionally not short of a view on most things.
Mr Kennedy: That is not a criticism; it is just an observation. Where do you think you are with legal competence?
Mr McCallister: The Bill is competent. We would not be at this stage if it were not competent. We got legal advice the whole way through, and, when you seek permission from the Speaker to introduce a Bill, the Speaker immediately refers it to his legal team, which goes through it with a fine-tooth comb, and you are given permission once it has been cleared. We have a letter from the Speaker that I am happy to furnish to the Committee saying that the Bill is competent to be introduced.
Mr Kennedy: Just to be clear, it is competent to be introduced, but is it competent to be law? That is a different issue.
Mr McCallister: This is a legislative Assembly. I said last night in a debate on Jo-Anne Dobson's Human Transplantation Bill that, a lot of times when people want to stop something, one argument against it is "Would this be compatible with human rights law?" Those are arguments that people are entitled to make. It is competent? Does it become law if the Assembly passes it? Yes.
Mr Kennedy: Why do you think that Greenberg is so adamant that it is not?
Mr McCallister: Yes. On this, he is absolutely wrong. This is what Daniel Greenberg comes over to do. I had a session with him at the Finance and Personnel Committee with a legal complaints Bill. He gutted it from head to toe. Did it change the Department's overall response? Not really. That is what he does. In future sessions, it would be useful to have either the Bill's sponsor or somebody from the Bill Office with him, or perhaps he could be restricted to giving technical advice and not legal opinion. If he was giving a legal opinion about competency, he should have been asked for it and he should have given it in a privileged capacity rather than just saying in a cavalier fashion, "Oh, well, I'm not sure about this bit being competent" when it had been through all the checks of the Assembly.
Mr Kennedy: Greenberg's evidence has created uncertainty as to the legal status or potential of the Bill. I think that we talked about exploring ways in which we could satisfy ourselves that it was legally competent.
Mr McCallister: To my knowledge, the Committee has every right to ask Legal Services —
The Deputy Chairperson (Mr Sheehan): The Committee can seek its own legal advice on the competency or otherwise of the Bill. Maybe that is something that we will discuss after John has finished.
Mr McCartney: This is just a technical thing. There is provision, as with any legislation, for the Attorney General to refer it. Danny touched on the point that it might be competent to go through the legislative process, but, at the end of it, if it was referred by the Attorney General, you might find that it is struck down. It is the same with an amendment. An amendment is supposed to be competent. In fairness, in, I think, the Justice (No. 1) Bill, Lord Morrow proposed an amendment, and it went through. It did not go through the scrutiny stage and was not in the Bill, but the Justice Minister afterwards found that he had to refer it because it was not in line with a European directive. There is always an aspect where people might think that something is competent and other people might say, "Well, I would question that" and it has to be tested.
Mr McCallister: As long as amendments are related to the Bill, they can be outside of competency. We did the Assembly and Executive reform motion to include things beyond the Assembly's competence and find a mechanism to do it. We worked closely with the Bill Office and Legal Services to find a mechanism to do that. That is why I am absolutely rock solid that everything about the Bill is competent.
Mr McCallister: On clause 2, there was a Committee query around the qualifying party or technical group not coming forward but another group wanting to form an opposition. Basically, you need either a qualifying party or technical group of six Members or 5% of the Assembly membership. If you are below that in any other form, there are no additional rights for you; you need that to trigger the rights.
There was also a query about who would have primacy over the leader of the opposition's associated rights between a qualifying party or a technical group. It would always be the qualifying party. It is similar to the Dáil. The technical group, going by Ray McCaffrey's paper, is as big as Fianna Fáil or maybe bigger, but Fianna Fáil and Sinn Féin are the two main parties. The qualifying party would get preference.
Mr Hutchinson: The Committee asked whether the Bill provides for one qualifying party and one technical group to form the opposition. As it stands, it does not. However, we will look at that assumption, because it would, in our opinion, be preferable to form an opposition from one qualifying party and one technical group, with a member of the former as leader and a member of the latter as deputy leader and the qualifying party always being given primacy regardless of the size of the technical group.
Mr McCallister: We are quite keen to amend the provision and will keep the Committee informed. We will be clear that the qualifying party gets first preference, even if the technical group is bigger.
Issues to do with the timing and running of d'Hondt were raised in connection with clause 3. The opposition may be formed at the same time as the Executive and be dissolved when Ministers resign. This is arguable for the political reasons of proportionality and inclusivity. The formation of the Executive is set out in the Northern Ireland Act. The opposition can be formed only when the Executive is being formed. This removes the fear that people will, potentially, use opposition rights for electoral advantage for a short time. It is about ensuring that the opposition has access to rights, while preventing it from forming, say, a year or sooner before an election. It is also about making sure that everyone has access to the political process. This is very much the principle of inclusivity in the Good Friday Agreement.
The Committee asks whether Clause 4(a) means members of political parties who are also Members of the Assembly. The Committee raised a valid and useful point. We will seek to amend the clause and make that absolutely clear in the Bill.
Mr McCartney: What if someone does not want to be deemed part of the opposition?
"the Member automatically becomes part of the opposition at that time."
Mr McCallister: They are automatically part of the opposition, but there is no compulsion in the Bill or in the Standing Orders that would flow from the Bill to align yourself with a technical group, be part of it or do anything different from what you currently do. You would just be in a place —
Mr McCartney: Say that someone is an independent Member but does not want to be seen as part of the opposition. The opposition might make a statement saying that something is a bad policy, when that Member thinks it is a good policy. They would not be seen to be saying that, because they would be automatically part of the opposition.
Mr McCallister: The opposition would not be announcing policies like that. If Colm Eastwood and Mike Nesbitt were leader and deputy leader of the opposition, they would still announce things as leaders of their political parties. The opposition will not be this great, cohesive force. In Dublin, there are technical groups, as well as Sinn Féin and Fianna Fáil. Gregory is technically an opposition MP at Westminster, but I am sure that Jeremy Corbyn does not speak for him on many issues. You would just be in that place, but you would have no rights additional to what you get at the minute. You would just be a non-government Member.
Mr McCartney: I just think that the clause makes it look as if you have to be a member of the opposition, and someone might well say that, "I do not want to be aligned with the opposition".
Mr McCallister: The point was made about non-government parties. Would you prefer that term to "opposition"? You are just not in the Government. There is nothing in the Bill — nor will there be anything in Standing Orders — to make you do anything differently. If I sit as an independent Member in the next Assembly, as I am in this one, I will still be, technically, in the opposition, but nobody else will speak for me. I will not have to join a technical group; I will not be made to join or align with any group or need to allow any other political leader to speak for me; I will have my own voice. The Bill does not seek to do that, nor will Standing Orders.
In its comments on clause 4 the Committee also asked about the meaning of the term "in a political party". Daniel Greenberg raised that point. The approach is exactly the same as that in the Northern Ireland Act. I do not think that there is any confusion. The approach is sound.
The Committee asked for an explanation of the disparity between clauses 3(2) and 4(2). In my opinion there is no disparity. Clause 3(2) is a legal mechanism to form an opposition and confer rights on qualifying parties or a technical group.
I go back to Raymond's point. The Bill does not dictate that the opposition has to do anything or work collectively as a mirror image of the Executive. There is nothing in the Bill to say that parties have to work together if they do not want to do so. It is their call entirely.
Clause 5 is to ensure that if there is no Government there is no opposition. To me, that is sensible. If the Government fall for any reason — even if there is a period of negotiations to reform it or something — the opposition would no longer exist and would not have the additional rights. It is more about future-proofing for what is an unlikely scenario, but it could happen. I suggest the example of what happened in Ireland in 1994. There was a change of Government, but no election, when the Reynolds Government were replaced by John Bruton's Government. There was a change of parties in government. That is unlikely to happen here, although we have a touch of instability at the minute. If the Government have to be rerun for any reason, the opposition would not get any rights during that period.
In relation to Clause 6, the Committee asked for time limits for the appointment of a leader and deputy leader. Standing Orders could deal with that. I do not see any difficulty. The four-week period for Programme for Government negotiations before running d'Hondt would give ample time for parties to decide what they are doing and where they hope to be.
The Committee also asked whether it is the intention of the Bill to create a statutory duty rather than a right to nominate a leader and deputy leader of the opposition. My original intention was to just create a right. We have created a duty, but I have no idea why you would not take up that duty. If you chose not to take up that duty, I am not sure why anybody would make you do so. I do not see a major problem with that.
The Committee also raised the issue of whether clause 6(5) provided sufficient flexibility in the event that the number of seats held by a party making up the opposition changed during the mandate. Currently, any change in the number of seats does not affect the number of Executive positions. I suggest that that would stay the same for qualifying parties. Your opposition rights as leader of the opposition would stay the same. You might have some Committee changes. For example, when I resigned from the Ulster Unionist Party, there were some Committee changes, but it did not affect the right to an Executive seat or Committee Chairs. I propose the same here.
Technical groups are slightly different. I suggest that, if technical groups fall below the required six Members or 5% at any point during the mandate, they will lose their rights. Otherwise, you could create the situation where you had a technical group for 20 minutes at the start of the mandate that never functioned except as a flag of convenience. Those two things need to be clarified in the Bill, and we will work with the Bill Office to give the Committee early sight of amendments to fix them. That is the policy intent. The position for qualifying parties is therefore the same as for Executive parties, and we need to fix the provision for any change in numbers of a technical group.
In relation to clause 7, the Committee raised the possibility of the leader of the opposition forgoing the first topical question to a Minister if they were unable to attend the Chamber. I do not think that there is anything in the Bill that disallows flexibility in Standing Orders for someone to stand in for the leader. Indeed, the Speaker has made suggestions about changing Question Time. He would prefer more topical questions and a shorter period for tabled questions. I think that the Procedures Committee is looking at the matter.
Clause 8 deals with speaking rights, and I will address what our amendment would do. I know that there has been discussion about the speaking rights of technical groups being somehow disproportionate. I want speaking rights for every Member to be given out broadly by d'Hondt or proportionality, plus 20%, to be transferred from government parties to opposition parties. If the opposition were formed purely by a six- or seven-member technical group, it would get only an extra 20% compared with what it is currently the case. I suggest that those additional rights would still be fairly limited. It would probably guarantee only one speaking right in every debate. Those six members would get only an extra 20% in speaking rights, so it would not give them overwhelming power.
Clause 10 is about ensuring that the opposition gains access to the Business Committee. I think that you heard from Professor Birrell about the Backbench Business Committee at Westminster. We have a reasonably good system, but we just want to ensure that parties get access to the Business Committee should they choose not to be in the Executive. At the minute, independent Back-Benchers and small parties have no way of getting any business on the agenda at any point during a mandate, and there is broad consensus that that should be addressed.
On clause 12, I am seeking clarification from the drafter on the use of the term "officer of the Opposition" compared with "officer of the Assembly". However, the intention of the clause is clear.
On clause 20, it was asked whether there was any difficulty with renaming the Office of the First Minister and deputy First Minister "the Office of the First Ministers" but still referring to them as the First Minister and deputy First Minister. I suggest that even their own policy intent of renaming OFMDFM "the Executive Office" has produced no difficulties. Therefore, I see no difficulties with having an Office of the First Ministers, with the two lead Ministers being the First Minister and the deputy First Minister. It is my hope that we change both, but I see no potential difficulties with that.
On schedules 1 and 2, the Committee asked for clarification of the extent to which the Assembly and Executive reform motion may depart from the precise measures in the schedule. Broadly, what comes out of this process would, I hope, go in the motion. If, for example, the Secretary of State and the Northern Ireland Office, in making the changes at Westminster, were to identify something that they might want changed or clarified, the motion could, I think, depart from it, if there were good reasons and cross-party support to do so.
I am happy to take questions.
Mr McCallister: If you want me to speak on any of the other papers, I am happy to do that. Chair, at the start, you mentioned the research paper.
The Senior Assistant Assembly Clerk: There is a response from Mr McCallister in your tabled items, members. It is on the issues raised in the research paper presented by the Research and Information Service last Tuesday. There were a number of areas on which the Committee sought clarification. The issue is whether the Committee wishes McCallister to brief it on that at this time. There is a written response at page 40 of the tabled papers pack.
Mr McCallister: I am happy enough to do that. I will address the main issues that were raised in the paper. Clause 3 is about the time frame. As I said I my previous response, there is sufficient consensus and enough time to do it. We should note that the Stormont House Agreement allowed only a 14-day period to agree the Programme for Government. The paper also raised issues about technical groups. As I have said, my intention is that the only bar to joining a technical group would be if you were a Member of a political party that is in the Government. It could not be used to change the format for governing and reaching the thresholds and, obviously, being a Member of the Assembly. We will happily make those changes and clarifications.
There has been a fair bit of talk about the technical groups and whether they are set at the right size. Going by Ray McCaffrey's paper, in the Dáil the threshold for creating a technical group is roughly 4% and in the European Parliament it is 3%. In the Scottish Parliament, it is set at 3·8%. We are setting it at 5%, which does not seem to be raising the bar higher. There would be no way of stopping anyone who wanted to join a technical group, in line with what the Dáil allows. If there were more than one technical group, it would be up to them to decide.
I have addressed the size of the technical group and the upper limit. The Committee paper noted issues on clause 19, "Establishment of Budget Committee". On a lot of the issues around the Budget, coming from my experience of papers and discussions as a member of the Finance and Personnel Committee, there is no ideal way of doing our Budget process. There is a huge amount of criticism that we do our Budget process always by accelerated passage and it never feels like it gets the scrutiny it deserves, not only by the Finance Committee but other departmental Committees. That is about putting a real focus on how we improve that process, separating out civil law, rating policy, voluntary exit schemes and all that management from the Committee for Finance and Personnel and setting up a dedicated Budget Committee. On costings, it ties in quite nicely; if we reduce to nine Departments, we will reduce by three Committees. There will quite easily be space to create one more that would be a dedicated Budget Committee.
I note from the research paper that other parts of the UK and Ireland have looked at different models and at bringing in special advisers to help with and improve Budget scrutiny. That is an important element. I refer members to pages 11 and 12 of the Finance Committee's response, which deals with budgets. That Committee examined the issue and produced a report in, I think, March 2011. It was to sign a memorandum of understanding with the Department, but that has yet to be signed off. It is useful to draw this Committee's attention to the Finance Committee's response.
The other issue that was raised was the convention of collective Cabinet responsibility.
That has had been the subject of some debate. Professor McCrudden and Alex Schwartz make two assumptions in their paper: first, that we have stability and, secondly, that we have genuine power-sharing. I will put this a bit more delicately than Dr Eoin O'Malley: in their Departments, where they do not need legislative changes, Ministers can pretty well do whatever they want within that departmental brief. They can move money around the Department and they can make regulations that can lead to fundamental change. There was a session that looked at that.
Although Ministers in somewhere like the Republic of Ireland might collectively have more power, individually they do not because they have to act as a collective. Dr O'Malley made the point that:
"the requirement to have cross-community support in areas that don’t require primary legislation ... seems at odds to the purpose of the institutional structures set up in the Belfast Agreement."
That is an important point. To have genuine power-sharing, you need an agreed Programme for Government and Ministers working in a collective way. That becomes easier to deliver if you have a smaller number of parties in the Government to negotiate that. It is also vital in changing the idea that this place is not about governance; this place has to be about delivering governance and public services.
On collective government and agreeing a Programme for Government, the Stormont House Agreement broadly acknowledges both. An attempt was made in 2011 to get some agreement around a Programme for Government. It did not really happen, but there seems to be a general commitment in the Stormont House Agreement. I expect that, if an agreement is reached this week, there will be a broad acceptance that agreeing a Programme for Government makes good sense. The Stormont House Agreement was silent on what would follow. Paragraph 61 states:
"After the Assembly meets following an election and before the FM/DFM are selected and the d’Hondt process runs, representatives of the parties who are entitled to take up places in the Executive and who confirm their intention to ... resolve the draft Programme for Government."
That asks for only two weeks. In my Bill, we would allow four weeks to do that.
Ray McCaffrey made the point about what would happen if you failed to reach agreement. I suggest that you have another election. If you cannot agree a Programme for Government and a Government cannot carry their agenda forward, you would have to have another election. That also focuses the minds of those who have been elected into a position in the Government. They will say, "We have to get agreement on this". Those are the main points.
Ray McCaffrey's paper also raised the issue of paragraph 12 of the schedule, which concerns leaving the opposition and rejoining the Executive. The main intent of that was that you had to make your choice at the start of the mandate. Are you in government or are you in opposition? You could not leave the Government and set up the opposition halfway through the mandate or want back into the Government halfway through the mandate. The existing rules are robust enough to deal with that, and I will probably table an amendment to withdraw that paragraph.
I have one more point in concluding, Chair. There was some debate around the technical groups versus the Government if the opposition were formed entirely by technical groups. I remind members that, for example, if the technical group had seven Members and there were 100 in the government parties, the Government would have roughly £700,000 of financial assistance to political parties (FAPP), £6·7 million of office cost allowance, 19 SpAds and 25,000 civil servants at their disposal. The technical group would have seven members, possibly £120,000 of FAPP, £470,000 of office cost expenditure, no SpAds, no civil servants and only 20% extra over their d'Hondt calculation of seven. It would not be anywhere near disproportionate to the size of the Government.
There has also been quite a bit of debate around the speakership. I notice in the paper that there is some talk of doing it the way it is done at Westminster. In the Dáil, the Speaker is automatically re-elected, as you know. There has been some convention in the Dáil of the Speaker going back to the Back Benches but none here, so far. I refer members to the Speaker's comments on the issue. I thought that they were very well thought-out; indeed, he has seen it from the point of view of a Back-Bencher, a Committee Chair, Principal Deputy Speaker and Speaker. It is difficult to do constituency work because the Speaker does not have access to the tools that we all do; they are more restricted. It is difficult to maintain a constituency presence when being Speaker. It would be worth the Committee's while including Mitchel McLaughlin's submission on that, which I thought was very interesting. I am happy to take questions on any of that.
Mr McCartney: Some of my questions have been answered. You do not have a precise view of what the increased costs will be. Would the leader of the opposition be a salaried position? Have you any ideas about that in terms of equivalence?
Mr McCallister: The Bill defers to the independent panel to look at what an appropriate salary would be. Yes, the leader and deputy leader of the opposition should get a salary. The Chair of the PAC gets paid anyway, so there is no additional cost. You would not be paying the new Speaker, elected in this way, an office cost allowance, because they would not have a constituency to service. There would be an increase in salary costs. The additional costs around the Committee would be easily offset by a reduction in Committees. Our Committee structure will change if the departmental structure changes, as seems likely to happen shortly. The legislation on transfer of functions will go forward in the new year, so there will be no additional cost.
I also think it is important that the Assembly as a whole looks at the issues around why the Assembly pays all ministerial costs. There is probably an argument for the Assembly paying the First Minister and deputy First Minister, but we should look at why they pay the Departments and the Health Minister, the Education Minister and so on. I am not convinced about that. I would also look at the Speaker's comments on whether the Assembly budget should be beholden to the Executive. It comes back to the separation of powers argument. Mitchel McLaughlin is clearly making the case that the Assembly should not be completely beholden to the Executive for its money because the Assembly, as a collective, regardless of whether you have an opposition, is charged with holding the Executive to account. There are some very interesting points there. The additional costs, overall, Raymond, would be fairly minimal. In keeping with the economic climate, you would probably want it to be as cost-neutral as possible.
As an ordinary Back-Bencher, I must say that FAPP money is paid to every political party, so parties are not particularly badly done by. The two independent Members do not get any additional funding but, as a collective, political parties do. The TUV and the Green Party, for example, get just short of £30,000 of funding through that as political parties. That is why I have deferred to Pat McCartan's independent panel to look at that, rather than have a politician being involved in deciding what would be an appropriate level of salary or remuneration.
Mr McCartney: Will the Budget Committee be a fully functioning Committee on a full-time basis?
Mr McCallister: I accept that we need to amend and better clarify that in the Bill. It would be a fully functioning Committee. My policy intent is that it would examine the explanatory and financial memorandums of every Bill. It would follow and scrutinise the Budget process and align some of the Programme for Government targets with Budget allocations. That would effectively lift our game as an Assembly and in the Committee process in how we scrutinise the Budget and the work of the Government.