Official Report: Minutes of Evidence

Members present for all or part of the proceedings:

Mr S Moutray (Chairperson)
Mr Pat Sheehan (Deputy Chairperson)
Ms Paula Bradley
Mr D Kennedy
Mr Raymond McCartney
Mr S Rogers
Ms C Ruane


Witnesses:

Professor John Coakley, Queen's University Belfast



Assembly and Executive Reform (Assembly Opposition) Bill: Professor John Coakley, Queen's University Belfast

The Chairperson (Mr Moutray): Professor Coakley, you are very welcome this morning.

Professor John Coakley (Queen's University Belfast): Thanks very much, Chairman.

The Chairperson (Mr Moutray): Thank you for taking the time to come and present to us. If you are happy to start your presentation, that is fine.

Professor Coakley: Yes. Thanks very much, Chairman and members of the Committee. It is a great honour for me to be invited to make first a submission and then this presentation, which will last about 10 minutes. There is not much point in repeating or reading through my submission. I propose to make a number of points that cut across this and seem to be relevant to the content of the Bill. I will organise my points around three questions: "Is the content of the Bill compatible with the Good Friday Agreement?" — that is a question that you have been addressing directly and indirectly in recent years; "Is the proposal likely to improve the quality of the Assembly's work?"; and "Is it likely to be broadly acceptable and durable over time?".

The first question is about compatibility with the Good Friday Agreement. I suggest that there are difficulties in grafting the notion of government versus opposition to the kind of highly developed power-sharing arrangements that were put in place here in 1998. The idea that democracy operates best when there is an opposition to mark the Government is essentially a political-cultural one. We expect it because it is part and package of the procedures in the Mother of Parliaments: the House of Commons at Westminster.

As envisaged here, the principle of creating an opposition seems to have broad support. The main parties agreed that in article 59 of the Stormont House Agreement, although I note that the Fresh Start Agreement envisages a slightly less broadly based opposition than that envisaged in the Bill. According to the Fresh Start Agreement, the official opposition would be confined to:

"those parties entitled to Executive ministerial positions but choose not to do so".

That is different from the content of the Bill.

It is worth noting that, until recently, the whole notion of an opposition was an alien concept in most of continental Europe. Most parliamentary democracies have functioned without an official opposition, though the notion of such a role has been gaining ground in Europe in recent years.

As members may be aware, those who are involved in the study of comparative politics commonly make a distinction between two models of parliamentary democracy. There is the so-called majoritarian model on the one hand, of which the UK is an example. Its core features are that democracy requires rule by a majority, and elections are thus designed to help large parties secure such an overall majority in Parliament; Parliaments record that result by facilitating the emergence of a bare-majority Government, excluding all arithmetically redundant parties; and the spoils of office, by which I mean appointments and certain other resources, are monopolised by the winning side. Competition between a tightly organised Government and an organised opposition makes sense in that kind of context.

There is a second model, the consensus-based model, of which Switzerland is an example. It accepts that democracy requires rule by a majority, but it goes further in suggesting that democracy also needs to be inclusive. Elections are thus designed to ensure the fair representation of all groups; Parliaments have an important role in brokering agreement between competing groups and parties; and public appointments and resources are shared, rather than being monopolised by the governing group. The logic of that system is based on the pursuit of compromise. Parties that are not included in government are not necessarily in opposition, which is a very important distinction.

As we know, this consensus-based model is of particular importance in culturally or ethnically divided societies. To prevent the dominant group from obtaining a monopoly of political resources, which is likely to happen in the majoritarian system, a more elaborate consensus-based model is put in place, as in Belgium since 1970 and in Northern Ireland since 1998. This is the consociational government system with which you are familiar.

My first and most important point has to do with the tension between the proposed introduction of an opposition and the principles underlying the Good Friday Agreement. There is a clash here and one not easily resolved in principle. Theoreticians will perhaps be unhappy with this marriage of two different principles of government. In practice, though, it is possible to imagine various middle positions, although not necessarily very satisfactory ones, that might be found.

My second general point has to do with what we might expect from the introduction of a government/opposition system. What would be its probable impact on the quality of work of the Assembly? Here I am a little sceptical. I suggest that it would be unwise to expect too much of an official opposition for a number of reasons. The first is that setting up a confrontational relationship between the leader of the opposition and the First Ministers might make for good theatre, but it is unlikely itself to enhance the quality of the debate, as we see at Westminster. Government/opposition confrontation may, in fact, reduce the quality of the debate. The principle that it is the duty of the opposition to oppose can result in mindless opposition for its own sake, far removed from the constructive criticism that a Government need.

There is a second reason for being sceptical about the notion of an opposition. There is little evidence from other Parliaments that the existence of an official opposition improves the quality of legislation or monitoring of government. The Government can simply use its majority to brush the opposition aside. We are familiar with that in the South, where the governing parties can simply ignore the opposition, and this was the case in the pre-1972 Northern Ireland House of Commons. In consensus-based systems, by contrast, such as the Swiss one, opposition comes not from a formally organised opposition but from within the governing power-sharing parties. It can be much more effective through a parliamentary party meeting rather than through haranguing somebody across the Floor of the Chamber.

A third practical difficulty is that the Bill proposes that all who do not belong to government or Executive parties are in opposition. You either belong to one of the parties in the Administration or you belong to the opposition; there is nothing in between. However, parties may be out of government for a variety of reasons, and this need not always signal opposition to government policy. For instance, it could be argued that the DUP, one of the parties in the very first Northern Ireland Executive, which came to power in December 1999 and lasted until 2002, was more strongly opposed to the programme of that Executive than the largest party excluded from the Executive, namely, the Alliance Party. We had that ironic position.

As I suggested, there may be better ways of enhancing the quality of policy formation. Rather than grouping all members of non-Executive parties into a single opposition, you could give non-Executive parties and groups greater access to the necessary research resources, Committee representation and speaking rights, without necessarily designating them an official opposition.

Finally, on this second point, Mr McCallister and his assistant, Mr Hutchinson, have obviously invested a great deal of thought and energy in this proposal, but, if the Bill is enacted and an official government/opposition system is created in the Assembly, how likely is it that such opposition Bills would make it through to Committee Stage in future? It is a sobering thought. It is hard to imagine, for example, a Back-Bencher in the Dáil playing such a role in a major piece of legislation. The Government would simply brush such a Bill aside and could easily do so using its parliamentary majority.

A third and final point that I will make briefly has to do with the long-term acceptability and durability of the proposal. While the intentions of the Bill are obviously very positive, there is always a risk of unintended consequences. At present, it is possible to imagine the two smaller parties in each communal block going into collective opposition — one already has, in effect — and a system like the one envisaged in the Bill resulting in a productive tension between a cross-communal Executive and a cross-communal opposition. The problem is that other outcomes are possible. To start with, all qualifying parties might yield to the temptation of power and patronage associated with ministerial office and take their seats on the Executive, resulting in a disunited and ineffective opposition. Another possibility is that — we do not know what will happen in the future from an electoral perspective — one block may fragment. All the parties may fall below the new threshold proposed for Executive representation, which, at 16·6%, is very high. One can quite easily envisage, in the event of unionists splintering, all the unionist parties falling below the threshold. That does not look likely at the moment for the nationalist parties, but it is a conceivable outcome in the distant future. One can see parties falling below that level and the other block, then, monopolising ministerial posts. The second outcome, in particular, is potentially very damaging.

All these considerations depend on other aspects of the Bill and the proposed reform motions, where the issues of thresholds for ministerial office, designation and petitions of concern are vital. It seems to me that it might be risky to begin to dismantle these provisions until trust between parties and communities has developed further over time. Thank you, Chairman.

The Chairperson (Mr Moutray): Thank you for that, Professor Coakley. In the scenario where there is an opposition and it is resourced, you referenced that some parties may not be in government or in opposition. Would you envisage that they would have extra resources?

Professor Coakley: It would depend on their level of organisation. If we look at a Parliament in continental Europe such as the European Parliament itself, we see that some really tiny groups have secured election to the European Parliament, some of which will be familiar to members around the table. Some very tiny groups have secured representation in the European Parliament, but they need to seek allies by belonging to some kind of parliamentary grouping, which then gets resources, whether it is in formal opposition or not. In the European Parliament, those groups are not in formal opposition.

The Chairperson (Mr Moutray): Fair enough. Thank you.

Ms Ruane: Tá fáilte romhat. You are very welcome. First of all, I think that your presentation is very interesting. We had a debate yesterday, and sometimes there is the presumption, as you state, that just because you have an opposition, you have a democracy. However, you just need to look at the Westminster first-past-the-post system, for example, to see, as many would argue, that it is actually quite undemocratic: you could get 51% of the vote, yet represent in Parliament everybody in your constituency. Obviously, it is different here and in the South because you have proportional representation. Here, we are reducing from six to five MLAs in 2021. Some of us are a bit worried about the impact that that could have in the longer term on inclusiveness and representativeness. We have time over the next five years to really try to deal with that. Gender could be one of the victims in all that, so we need to be careful about that.

You mention unintended consequences in the third point of your conclusion. Yes, we are maturing, but there still is a huge fear of one-party majority rule or one party having far too much power, as was the case in the past, and we saw what happened there. What do you think those unintended consequences could be? Will you elaborate on that?

Professor Coakley: Yes, precisely the ones to which you pointed. It was the case that one of the two large blocks was significantly more fragmented in the past than the other, and the other block was much more coherent. If one block were to be divided into three, four or five smaller parties, they might simply fail to gain representation on the Executive on this model. The Executive would then be monopolised by the other party, unless there is some rule to prevent that, and one could imagine such a rule being introduced. However, it would potentially be very destabilising to give all the power to one side of the community and none to the other. That was, of course, the case before 1972. The institutions designed in 1998 were designed precisely to prevent that happening again. It also needs to be borne in mind that the process of fragmentation could take place in either block as the two blocks become more similar in size over time.

Mr McCartney: Thank you very much for your presentation. The obvious and stated intention of the sponsor of the Bill is to create an opposition. It has already been said — I think that he accepts it — that many of the provisions in the Bill that he looks to introduce can be carried out and brought forward by the Assembly itself through Standing Orders. I was interested in the point you made, and I looked at the figures. With the idea of trying to create the need for an opposition, he is nearly creating circumstances where there has to be an opposition. I wonder what you think of that, given the framing of the Good Friday Agreement.

Professor Coakley: I agree with the thrust of what you are saying. It is not clear to me whether there needs to be an opposition of this kind. I suspect that the idea is politically-culturally driven. We expect that, as this is the way things are done in the UK and other English-speaking countries, if we are to enhance the quality of our democracy, we need to move in that general direction. However, it is not obvious why that should be the case, given the fact that, in continental Europe, so many parliamentary systems survive without having a formally recognised opposition of this kind. They still have a very high quality of parliamentary work, through a well-developed Committee system, generous speaking rights for non-government parties and so on.

Mr McCartney: In last week's presentation, Professor Birrell made the point that, even in the Westminster model, the creation of the opposition and its outworkings is not, in the main, carried out by statute; it is carried out by convention, which again shows what flows from that. I have just looked at the figures. For the Ulster Unionists to get into the Executive — if they so chose — rather than be forced into opposition, they would need an uplift of nearly 3·4% at the next election, and the SDLP would need an uplift of maybe 2·4%. Those are big uplifts for any electoral system, never mind the one we have here and the fluctuations it has. You are nearly creating a circumstance where you are saying to two parties before an election, "You are 'doomed' to opposition", whereas, the parties themselves, with that type of mandate, quite rightly could say, "We want to be part of the Executive. Who are the legislators to say that we cannot be a part of it, given the framework of the Good Friday Agreement?". Do you have a comment on that?

Professor Coakley: I suppose that, to be fair to those who drafted the Bill, they introduced a figure of 16·6%, but that need not be the figure. One could have a much lower figure than that, while retaining many of the other provisions of the Bill. Raising the bar as high as 16·6% seems to me to present a very big challenge to all except the two largest parties, as matters stand at the moment.

Mr McCartney: Absolutely. Even within the Westminster model, there is provision for a Government of unity. If it suited the parties at a particular time and circumstance, you could have that. However, this model would not allow that. Even if the parties — before they even entered the arrangement — agreed with the Programme for Government, they are being forced into opposition by the fact that they do not have the strength of numbers.

Professor Coakley: That is right. Once again, to be fair to those drafting the Bill, that provision could be changed. As the Bill stands, you can be excluded from the Executive and have membership of the opposition in three ways. First, you belong to a large party that is entitled to seats in the Executive but choose not to take them, as is currently the case with the Ulster Unionist Party. Secondly, you belong to a significant party, but it is not sufficiently large to have representation in the Executive and you are forced into opposition, even if you actually support the Executive. The third is that you are an independent or a one-person party. Even in that position, you may be supportive of the Executive, but you are still forced into opposition. As I say, to be fair to those who designed the Bill, one could imagine circumstances where this provision was simply loosened. You could have three categories: the Executive and Executive parties; the opposition; and others who belong to neither category.

The fact that you are not a member of the Executive should not mean that you are a member of the opposition. If I read it correctly, that is the kind of provision made in 'A Fresh Start'.

Mr McCartney: You state in your conclusion that it is possible to give MLAs from non-Executive parties:

"access to greater resources and to a more significant voice on committees".

Have you any view on that, or is it just something that you think we should consider?

Professor Coakley: It should be considered anyway. It is valuable in itself as a contribution to the quality of deliberation, debate and lawmaking in the Assembly generally.

Mr McCartney: Can you elaborate on the difficulty with clause 20 in your submission?

Professor Coakley: That was almost a stray remark on a quite different subject, which is the proposal to upgrade, as it were, the position of deputy First Minister, not by increasing its powers — it is a dual position — but by renaming the "Office of the First Minister and deputy First Minister" the "Office of First Ministers" so that there are then two First Ministers. I was making the point — not a particularly important one — that that raises a lot of questions. The one that I have focused on is how those two people would be designated by others. I suspect that in the fullness of time one would be known in the media as the "unionist First Minister" and the other as the "nationalist First Minister". Some designation of that kind would be adopted by journalists as a form of shorthand.

At the moment, for example, we refer to the "Archbishop of Armagh", but who is the Archbishop of Armagh? There are two. Out of politeness, especially in the past, the religious denomination to which the archbishop belonged was not normally mentioned, so you had to gather from the context whether he was the Church of Ireland archbishop or the Catholic archbishop. I see the same difficulty arising if two people are designated First Minister of Northern Ireland. For example, "The First Minister said". Which First Minister? That can be quite significant. I was suggesting that it might be worthwhile for the Committee to address the issue in advance rather than let journalists decide how the two posts are to be designated.

Mr McCartney: Finally, people will have a view on whether or not opposition is the perfect model, but much of what you have said today about the quality of legislation and even about the quality of opposition to the Government is not based on the idea that opposition is part of the perfect model. You said that, if there were not an opposition, the Government would steamroller through everything, given what you said about the majoritarian aspect. They can do that anyway, irrespective of the strength of the opposition.

Professor Coakley: We can look at the position in Northern Ireland. The old system from 1921 to 1972 was under the Government of Ireland Act 1920. I am not making this point as a way of criticising that system of government. It resembled that in other English-speaking countries: there was a Government and an opposition, and the opposition had no power. It famously influenced one piece of legislation in the 1930s.

Ms Ruane: The wild fowl Act.

Professor Coakley: Admittedly, in the early years of the state, the opposition was not so designated; it was not an "Opposition" in the official sense. Eddie McAteer took on the position of Leader of the Opposition only in 1965 or 1966 when opposition became formal, but that made no difference to the quality of the legislation. That was not because there was anything in particular wrong with Stormont. There was a lot wrong with Stormont, but that was not the reason: it is in the nature of that system of government. A Government with a secure majority can do what they like with that majority. They need not pay any attention to the Opposition, and typically they do not.

Mr McCartney: I like your comment:

"it is not true to say that there is no opposition in consensus-based systems; such opposition arises within the ranks of the governing parties (where it may be articulated forcefully in parliamentary party meetings), and often carries a good deal of political weight."

I think we all know what that means. Thank you very much.

Mr Kennedy: Welcome, Professor. It strikes me that making one of our First Ministers a cardinal might be a determining factor.

You talked about other examples of coalitions in Europe and elsewhere.

In Northern Ireland's case, because of the arrangements that were entered into through the Belfast Agreement, the St Andrews Agreement and subsequent agreements, we have effectively a mandatory coalition. Are there any other examples of that or any other examples of where opposition structures have been created to take account of a situation in which parties of Executive strength are no longer content to serve?

Professor Coakley: I cannot immediately think of any examples of mandatory power-sharing. The closest might be Belgium, but it is not mandatory all-party power-sharing there. There is provision in the constitution that the Government must consist of an equal number of Dutch-speaking and French-speaking Ministers but the Dutch-speaking and French-speaking Ministers can be drawn from any of the three traditional political families, as they are called — the socialists, the Catholics and the liberals — or, indeed, from any of the newer formations. There is no easy way of predicting what a future Belgian Government will look like, but we know that they will have an equal number of Dutch-speaking and French-speaking Ministers, aside from the Prime Minister, who may come from either block. That is the closest example that I can immediately think of in continental Europe of a statutory sharing of power. It is between communities rather than parties specifically, however.

Elsewhere, it is driven more by tradition and convention. I cited in my submission the example of Switzerland, where, in 1959, the so-called magic formula was introduced. That was the magic formula to deal with representation in government of the four major parties: the Social Democrats; the Christian Democrats, from a Catholic background; the Radical Democrats, a Protestant state-building party; and the small Swiss People's Party. The first three had two seats in government, and the Swiss People's Party had one. They had a huge parliamentary majority, with 90% of seats. The formula was introduced in 1959 in that way, having existed in a slightly different way before that. It lasted up until the beginning of the 21st century, when, because of the growing weakness of the Christian Democratic People's Party and the growing strength of the Swiss People's Party, it had to be amended. The position still is the same that, in Switzerland, the Government consist of representatives of all the major parties, more or less in proportion to their parliamentary strength.

Elsewhere, we find two interesting phenomena that are completely incompatible with the Westminster system. One is the formation of a minority Government of a relatively long duration, by which I mean a year or maybe a year and a half. That minority Government are tolerated in office because those who are not in government are not in opposition. Therefore, some non-government parties will systematically support the Government. The second is the phenomenon of the grand coalition or oversized coalition, where additional parties are brought into government to enhance legitimacy. They are not needed for arithmetical purposes. That is quite common in continental Europe.

In the Republic, perhaps for cultural reasons, there is much more of an attraction to the Westminster model, with the notion that a Government should have the smallest possible parliamentary majority and where you do not bring in extra parties that you do not need. Power is shared only among the smallest possible number of parties. There were efforts in the past to experiment with the notion of a minority Government. Alan Dukes, the leader of Fine Gael at one stage, articulated the so-called Tallaght strategy. It was so called because of the Dublin suburb in which he expressed that view, which was that Fine Gael would support a minority Fianna Fáil Government, provided that that Government adhered to certain policy guidelines. It was really interesting, and it clashed quite strongly with the Westminster tradition. It also clashed with Irish political-cultural expectations, however. Obviously, the party followed the policy of its leader, but that put the leader under huge pressure. He was seen not to be doing his job. The Opposition's function is to oppose, and he was not opposing: that was the political culture. It is very hard indeed to change those things. We take certain things for granted in Northern Ireland, the Republic of Ireland and Great Britain. We take certain assumptions for granted about the proper system of government, and it is very hard to shake those.

Mr Kennedy: Surely another example is the outcome of the British general election of February 1974 — the first that year. The Wilson Government were elected on a minority basis but continued for about six to eight months until the October general election, perhaps with the tacit support of the Liberal Party but not with a formal deal. Therefore, there are examples of that, but I take your point that most coalitions are formed to create a simple majority, not a large majority.

Professor Coakley: Yes.

Mr Sheehan: Thanks very much, Professor Coakley. You mentioned Alan Dukes and the Tallaght strategy, and there is an expectation both here and in Britain that the opposition oppose and generally do not assist the government parties. Is that also the case in other jurisdictions, or are there other systems in which those who are not in government cooperate to an extent with the government parties?

Professor Coakley: You find other examples of a Tallaght strategy-type approach in continental Europe. One good example, because it was ideologically interesting, was in the old Italian political system. By the "old Italian political system", I mean the pre-1990s one, before the electoral reform that completely transformed Italian politics. Prior to that, the Government were almost always headed by the Christian Democrats, who formed a very broad coalition. There was one period in the 1970s and 1980s when the Communist Party, which was the second most powerful party in Italy but was always excluded from government for ideological reasons, formed part of the parliamentary majority. That was a very interesting concept, like Alan Dukes's Tallaght strategy concept. It meant that the Communist Party was not part of the Government but was not in opposition. It formally supported the Government's programmes. One can imagine such developments, and they happen from time to time in continental Europe.

Mr Rogers: You are very welcome. I have listened to what you have said and read your submission. Are you urging extreme caution? We have not really explored the unintended consequences. The Bill would perhaps erode the consensus-based agreement that we have.

Professor Coakley: That is my perspective. The agreement itself was a remarkable piece of work in getting such widespread support. I mean the 1998 agreement, which has been modified subsequently. Getting that off the ground was an enormous achievement, and it is dangerous to experiment too much with something that seems to be working. MLAs are often criticised — unfairly so, in my view, although not always.

Mr McCartney: Hear, hear. [Laughter.]

Professor Coakley: The system, broadly speaking, is working. The very fact that a Bill of this kind can be brought forward is an illustration of the extent to which MLAs are engaging in serious legislative work. I would hesitate to do anything that might delegitimise the system that was so painfully built up.

The Chairperson (Mr Moutray): Professor Coakley, thank you very much for coming this morning. It has been very helpful. We appreciate it.

Professor Coakley: Thank you, Chairman.

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