Official Report: Minutes of Evidence

The Chairperson (Mr Buckley): I welcome former First Minister Baroness Foster of Aghadrumsee and former deputy First Minister Mark Durkan. We appreciate your taking the time to come before the Committee to lay out your experiences as experienced Members of this House both in previous Executives and in the wider Assembly. We will invite the witnesses to lay out their case for up to 10 minutes, following which there will be questions from members. I am in your hands. Mark, you made a formal submission: do you want to lead off before we come to Arlene?

Mr Mark Durkan (Former deputy First Minister): Thank you, Chair. My formal submission, as you put it, a response to the Clerk's invitation to respond to the questionnaire that was sent, so it was framed in those terms. The questionnaire opened with this bald question: do you want reform? I am clearly in the camp that advocates reform, and I say that from the perspective of someone who was intimately involved in the negotiation of the Good Friday Agreement, not least the details of strand one.

At the time that we were negotiating the agreement, I said that some of the measures that we were talking about would hopefully be "biodegradable". I used that word meaning that, as the environment changed, our reliance on some of the measures or constructs could change and fall away as well. I did not just say that inside the negotiations; I used the same term even during public debates at the time of the referendum in 1998 and got articulately parodied by Eamonn McCann for doing so. The fact is that some of the features of the agreement were there very much as a response to issues that were emerging in the negotiations. I can probably safely predict that words such as "mandatory coalition" will come up in questions today and certainly in the discussion around the Committee's inquiry. I will pre-empt that by saying that the term "mandatory coalition" was never used during the negotiations. We used terms such as "elective inclusion" and "mandate-based inclusion", because the form of coalition that emerged is not actually mandatory, in the sense that nobody is obliged to go into it who does not agree to do so. The point is that the structures that we negotiated in 1998 were such that people were not supposed to be able to vet or veto anybody else's being able to take a position according to their mandate. However, courtesy of the St Andrews Agreement in particular, we have ended up with a situation in which people are able to veto everybody else's mandate. Structures that were designed to stop any one party's mandate being discriminated against have ended up frustrating everybody's mandate and grounding the Assembly.

Another point that I want to make about the negotiations in 1998 is that my party, the SDLP, was setting out a model for elective inclusion that involved using either Sainte-Laguë or d'Hondt, and there were serious objections to that idea from some other parties. There was a lot of scepticism, and people raised concerns about there being "rogue Ministers" and "solo runs" if Ministers were to have Executive authority and that there would be no checks and balances. That was one of the reasons for having devices such as the petition of concern and the details of a Programme for Government (PFG) and a Budget having to be approved in order to set the overarching parameters within which Ministers would work. The ministerial Pledge of Office was to guarantee that Ministers would work within the confines, priorities and purposes of an agreed Programme for Government. That agreed Programme for Government would also dictate the Budget, because another thing that we were at pains to avoid when we negotiated the agreement in 1998 was creating an Executive model whereby the Minister of Finance could, in essence, dictate to everybody else by proposing the Budget or cancelling out proposals or spending plans. That is why we ended up with the Pledge of Office and the other balances and curtailments of ministerial power that meant that, while Executive authority would be vested in Ministers as the heads of Departments, that would be done in the context of those Ministers being accountable to an Assembly and bound by the overall Programme for Government and Budget. They would be bound by decisions taken by the Assembly and the Executive, which was important. Those checks and balances were built in deliberately. People are now coming up against the limits of some of that, because of different changes. The Committee may wish to look at that.

A key point in negotiating the agreement was the idea of a joint office, which ended up being framed as First Minister and deputy First Minister. That language was used, essentially, because one of the parties that was central to negotiating the agreement would agree to the idea of the joint office only if there was a differential in the titles. The fact is, however, that the office was fully designed to be absolutely consubstantial. Indeed, when the Bill was going through Westminster in 1998, the shorthand that was used by MPs in relation to all the clauses that referred to the First Minister and deputy First Minister was "the jointlies": that was the working shorthand tag for the office. It is meant to be a joint office. In my submission, I make it clear that I think the titles should be equalised. More importantly, I commend the idea of reverting to that joint office being subject to election by the Assembly. In the agreement, it is deliberate that the joint office is subject to open nominations — any two MLAs could be nominated. Contrary to what some academics and others say, the agreement did not specify that it had to be a unionist and a nationalist. The office is open to any two MLAs, and any two could be nominated. Indeed, we subsequently had to look at the potential for there to be more than one nomination, in which case it would be down to the Speaker to select the voting order for the nominations.

Having joint election by the Assembly was intended, in part, to answer a criticism that was rightly being made of the SDLP proposals, which was that there could be a lack of a democratic mandate when it came to the key appointments to the Executive and Executive business. It was made clear that the Assembly would appoint the First Minister and deputy First Minister. As someone who held that office, having been jointly elected to it by the Assembly, I was clear that I was accountable to those who appointed me. I saw great virtue in my being accountable to the Assembly on a cross-party basis, rather than my position relying purely on the nomination by my own party. There is a weakness there that was brought in by the St Andrews Agreement. Joint election by the Assembly is not just a check on those who would occupy the joint office but an added mandate to those people and a protection. If the current First Minister and deputy First Minister had been elected jointly by the Assembly and their position rested on that fact, it would be a lot easier for the First Minister to say, when appearing before a Committee, "You can't question me on party matters or on business that I conduct as an MLA or my use of allowance as an MLA. You can question me on points that are within my responsibility, as appointed by the Assembly". Similarly, it would address this nonsense of people upcasting that the deputy First Minister is supposedly unelected because she was co-opted to the House and nominated by her party and nobody else. The fact is that, if the deputy First Minister were able to say that her position depended on the mandate from the Assembly and that that is where her mandate derived from, she could answer those sorts of questions or criticisms as well.

There would be great strength in moving back to the joint election; the biggest aspect of that strength would be to restore the primacy that was intended for the Assembly. It is forgotten that a key line in the agreement is that the Assembly is meant to be the prime source of authority in relation to devolved responsibilities. That sense of the primacy of the Assembly has decayed over the years. It is not unique to here; it happens in lots of parliamentary systems, where the Executive is seen to take primacy while the parliamentary role is seen to be a mere accessory to that. The balance needs to be restored here and, hopefully, that will come out of the work of this Committee.

The Chairperson (Mr Buckley): Thank you, Mr Durkan. Baroness Foster, I will hand over to you.

Baroness Foster of Aghadrumsee (Former First Minister): Thank you very much, Chair. I am grateful for the opportunity to contribute to this discussion on the future of the devolved institutions in Northern Ireland. Like Mark, I do so as someone who had the privilege and, at times, the burden of being in ministerial office in the Executive, latterly as First Minister. That experience has convinced me of two things. First, effective local decision-making is essential if we are to make Northern Ireland work and make a tangible difference to everyone everywhere in the country. Secondly, reform, if it is to succeed, must proceed in a way that commands broad consensus amongst unionists and nationalists alike.

As a now non-aligned unionist, I believe that it is important to say plainly from the outset that there is a growing suspicion in grassroots unionism that the language of "reform" is being deployed not to improve governance but to tilt the constitutional balance or, indeed, to marginalise one tradition following election results. Whether or not that perception is fair, it exists, and, in Northern Ireland, as, I think, all of us around this table know, perception has real political consequences. Reform cannot be "done" to one section of the community; it must be agreed with broad consensus. I mention that by way of introduction, because, if mechanisms such as cross-community safeguards are to operate in a way that benefits only one community, we must question the entire basis on which people gave their support to the arrangements that have been in place since 1998 and were amended by the St Andrews Agreement in 2006.

On strand one, there is no doubt that trust can fray when Ministers go on solo runs in relation to controversial and cross-cutting decisions — when they do not bring issues to the Executive as per their legal duty. As someone who sat around the Executive table for quite a while, I do not conform to the view that requiring consensus on key issues creates stalemate or paralysis; actually, for the most part, it incentivises parties to work collectively to find agreement. It is not perfect — it probably takes a lot longer than in other Administrations, and, sometimes, progress is slow — but I believe that it is necessary, given our unique circumstances. Sometimes, people forget where we came from and the reason why we have the unique circumstances that we do.

Turning to representation, a frequent criticism of the current arrangements is that the arrangements for electing a Speaker and appointing the FM and DFM unduly favour the unionist and nationalist designations at the expense of those who identify as neither. It is true that Northern Ireland's population and demographics have changed since 1998. However, it is equally true that 80% of current MLAs still designate as either unionist or nationalist. It is my understanding that, over the past 25 years, the "other" designation has never been either the largest or, indeed, the second largest designation in the Assembly, nor has a party from that designation become the largest party overall. I would, in fact, argue that, over the past 25 years, the "other" designation has been over-represented in ministerial office, due to the very necessary arrangements that were put in place for the appointment of a Justice Minister at the time of devolution of justice powers. I do not believe that it is a serious proposition to suggest that Executive power in Northern Ireland could be vested in such a way that either excludes or operates without representatives from the nationalist and unionist blocs. Removing parallel consent provisions would, in my opinion, be premature at best and reckless at worst.

That is not to say that I do not want to see politics in Northern Ireland normalised; of course I do. With some of the changes that have taken place, such as the reduction in the number of Departments and MLAs, the code of practice that came in for special advisers, the reduction in the number of special advisers and the review of public administration, there is a great deal of evidence that parties locally have, at times — at times — shown a willingness to make meaningful public-sector reform. Changes to the operation of the petition of concern — raising the threshold, requiring cross-party support and introducing a cooling-off period — were sensible adjustments to the process. However, in the main, I believe that the goal should not be to abolish minority protections but to cultivate a political culture in which they are rarely needed. That is where the focus should be.

Briefly, if I may, I will turn to strands two and three. I am not sure whether the Committee is looking at those at the moment, but I want to say on the record that I would never stand in the way of mutually beneficial cooperation with the Irish Government. Where cross-border collaboration on health, infrastructure and trade can tangibly improve the lives of citizens in Northern Ireland and promote greater levels of prosperity, that, of course, should be our goal. However, all of that needs to be subject to the guarantee, which was secured at St Andrews, that there is accountability to the Assembly in such North/South cooperation. I have been concerned for a long time that the British-Irish Council has developed at a slower pace than the North/South Ministerial Council (NSMC). If strands two and three are to work, they need to work in a balanced way. I think that the British-Irish Council could drive issues such as energy security, tourism, higher education and infrastructure. I am sure that the Committee is aware that it was at the British-Irish Council that we picked up the idea during COVID to bring in the shop local card scheme. That idea came from our colleagues in the Jersey Administration. We then brought that into Northern Ireland, and it proved to be, I think, very successful. There are new opportunities east-west with the UK East-West Council and the body that I chair, Intertrade UK. I hope that we can use those bodies to make progress on some of the strategic areas and the joint challenges and opportunities that we face.

The key issue is that, if reforms are to take place, they have to be a product of agreement between the parties in this place. I welcome the fact that it is at this Committee where the discussion is taking place, because attempts to solicit unilateral action from the Government over the heads of elected representatives would be wrong and reckless. I hope that this Committee can focus on the areas where it can find agreement. If I may say so, Chair, I hope that the funding formula will be one such area and that the Committee can agree on the need for reform of the funding mechanism. I think that we are all agreed that the current Barnett formula and the consequentials that run from it do not provide what is needed for the Northern Ireland economy and Northern Ireland citizens. That is an area in which, I think, real pressure for reform could come from this Committee.

I will leave it there, and I am happy to take questions.

The Chairperson (Mr Buckley): Thank you, both, very much for those introductory remarks. I will kick off. When many politicians today debate the issue of reform, it is done very much through the lens of, almost, a chronological snobbery as to the effort that it took in 1998 and, indeed, in 2007 to establish and re-establish these institutions and to try, where possible, to operate in the consensus space that you both outlined. Nobody who operates the political structures will say that it is a perfect form of government, but, in a sense, it is there because there is huge difference of opinion, including on the constitutional position. Even today, we are having a debate about communities that do not buy into the PSNI, for example, and how political leaders of today can help to encourage that. There are still huge issues in our communities: we would be burying our heads in the sand if we did not recognise that. I will ask you both this question, starting with you, Baroness Foster: looking back, do you think that the cross-community protections and safeguards that were built into not only the Good Friday Agreement but the St Andrews Agreement remain relevant today, and why?

Baroness Foster: As I indicated in my opening remarks, I do believe that they remain relevant. I know that they slow the decision-making process. From experience, however, I feel that they can incentivise agreement, if there is a willingness to look for agreement and find a space where consensus can be found. This place exists and runs well only when there is recognition that nobody will get everything that they want. A purely DUP Administration would look very different from a purely Sinn Féin Administration. I believe, absolutely, that consensus is still needed to build a way forward in Northern Ireland.

Mr Durkan: Let us go back to how we ended up with the emphasis on cross-community consensus. It should have been no surprise that we ended up with an agreement that reflected a priority for, or that put a premium value on, cross-community consensus in circumstances where that had been integral to the very rules of the negotiations. The paragraphs of the ground rules for the negotiations that met consensus in the summer of 1996, when the DUP and the United Kingdom Unionist Party were still in the talks — Sinn Féin had not joined the talks at that stage, so there was unanimity at that time when we renegotiated the ground rules — included the principle of sufficient consensus. The parties had come across the notion of sufficient consensus in our exposure to the South African negotiations and all the rest of it. It was felt commonly across the parties, given their experience of the Brooke-Mayhew talks etc, that there was value in the notion of sufficient consensus as a way to help to manage the negotiations in such a way that we would not fall into a rut and stay there. The only difference between a rut and a grave is depth. The problem was how to move on and make sure that something did not become an absolute process-breaker as you were negotiating.

The rule of sufficient consensus worked differently in South Africa, and we will not get into all that here, but the fact is that sufficient consensus as a notion was built into the rules of the talks. In our negotiations, the formula was that, if the chair saw that a proposition was supported by parties that represented a majority of the electorate overall and by parties that respectively represented a majority of unionists and nationalists, it could be deemed to have sufficient consensus. When that was a key safeguard in the negotiations, it was the one part of the rules that the DUP actually supported. Peter Robinson, in order to enable opposition and with our agreement, went to George Mitchell and said, "If you hold the vote on those paragraphs first, even though they're much later in the rules, we'll vote for them, and, after that, we can vote against all the other rules using sufficient consensus". The fact is that, when we were negotiating in 1998, the parties were clear — I think that it was in the minds of the Ulster Unionist Party, in particular — that sufficient consensus was one thing that even the DUP had agreed to and put a value on. It should not have been a surprise, therefore, that we ended up with that in the rules. We also built a review mechanism into the agreement. SDLP submissions during the talks proposed that the first review should be within three years. Other parties said, "That's too soon. You can't have that", but we said that it would, perhaps, be good to have it within the first mandate so that the elections could take place against a backdrop where people were already looking at whether we could move on sufficiently.

There is a value in sufficient consensus. The problem is if sufficient consensus is entirely bound by the clumsiness of designation. As the person who drafted the agreement's wording on designation, I think that that needs to be revised and changed. I do not necessarily think that it should be abandoned, but I hope that we can use the dimmer switch on it. Going back to the "biodegradable" notion, we should not have to rely on the artificiality of designation to the degree that we do. I point out to the parties that, in the talks rules, sufficient consensus was as per parties: the chair would be able to deem consensus from parties. When we were negotiating the agreement, we said, "We're electing an Assembly: there could be independence and all sorts of brand-new types and classes of parties. Therefore, we don't want sufficient consensus to be necessarily bound on the basis of party labels. We don't want to subject all party politics to being about unionism and nationalism". That was the thinking at the time, and that was why we came up with the idea that, to accommodate individuals and independence, there would be individual designation. When I think about it now, I see that I and others probably had wires crossed there. We thought that we were going to help to advance and change party politics by having the notion of individual designation; instead, it has turned out to be a huge difficulty.

However, I also point out that there has been a move to shift designation to party basis anyway. The St Andrews Agreement, in saying who can appoint the First Minister and who can appoint the deputy First Minister, bases designation on parties for the first time. Parties and designation is not in the agreement itself. That has been further compounded by the idea, which is in legislation at section 16C of the Northern Ireland Act, that, regardless of individual designation, a party will be deemed to be unionist or nationalist if a majority of the MLAs are individually designated as unionist or nationalist. Therefore, it has taken on a kind of "card vote" basis. Perhaps this is the direction in which to go: relax the concentration on individual designation and leave it, a bit like what happened at the Business Committee and all the rest of it, as a card vote — as the call of a party whip or party leader as to whether it relies on that. Therefore, MLAs, when taking their seats, would not have to go through what is awkward for some, whereby the first thing that they do with their mandate is to reduce it to whether they are unionist, nationalist or other.

The Chairperson (Mr Buckley): Would you not accept that the cross-community protections and the need for consensus, which you admit were at the heart of the 1998 Agreement, are equally as important today to ensure stability? I often hear that they are a barrier to stability in this place. However, one could put the argument that they are essential to stability, particularly when we look at recent examples, such as the changing of voting mechanisms to disable cross-community voting on the vote on whether the application of EU law in 300 areas should continue. That has had a huge impact on the unionist community's view of what reform would look like and whether or not we have moved towards majority rule when it suits. Have you any comments on how important those protections are today?

Mr Durkan: The particular issue that you raise goes back to the question of who made those rules. That issue is obviously derived from Brexit, and the legislation for Brexit ended up resting on the notion of the sovereignty of the UK Parliament. The fact is that some parties liked the UK Parliament's post-Brexit choices. Some liked some of the choices and not others. Different parties had different attitudes to different post-Brexit choices that were made in the name of the sovereignty of the UK Parliament, which overrode the positions of the parties here.

The Chairperson (Mr Buckley): That is not what I am trying to get at. We could debate all day the process and how we got to this position. What I am trying to understand is your view on the need for cross-community consensus. Do you recognise that it is valid to argue that those protections are equally essential for stability today?

Mr Durkan: There is huge value in cross-community consensus. How often do the parties find themselves making the point, when talking to the British Government or others, that all of them have agreed something? Think about the Legacy Act of the last Government: the parties were all happy to make the point that all of them had opposed it or whatever. There can be value in being able to advertise that sort of cross-community consensus.

Going back to the agreement, part of the point of cross-community consensus when it came to things like the Programme for Government and the Budget, was about setting a clear framework, which declared, "These are the agreed priorities and purposes, and people have to deliver on them". It is the idea of consensus as giving an enhanced mandate and laminated decision-making, whereby, "This thing is valid because it has cross-community support". In many ways, it should be a case of using cross-community consensus to say that something has added value and an enhanced mandate.

Interestingly, there is an example of that in the very arrangements that you are talking about. The review mechanism for the application of certain sections of the protocol/Windsor framework works on the basis that, if it the vote is passed by a simple majority, it will stand for four years but that, if it is passed by a cross-community majority, it will stand for eight years. The idea of giving enhanced status to cross-community support is good and useful. As I said, it was the logic behind the ideas of the Programme for Government and the Budget having to be done first. It is the logic behind saying that Ministers are bound by decisions taken by the Assembly and the Executive rather than being free to act on their own.

There is, therefore, a value to cross-community consensus. The problem arises where the principle of cross-community consensus is not treated as just a veto but is turned into a predictive veto, whereby even the Civil Service might decide, "We're not surfacing that issue or even framing ideas on it, because we think that somebody or other will veto it; therefore, there is no point in even discussing the issue". That is why we have got into the dysfunctionalism that we have.

The Chairperson (Mr Buckley): Baroness Foster, in my comments to Mr Durkan, I talked about there being a considerable number of people today who look at the removal of cross-community protections as a return to majority rule. In your opening presentation, you said that there is a fear among many unionists that that could lead to deeper instability and, perhaps, in some ways, to the dominance of a particular designation in the Assembly. Will you elaborate on the feeling that you are picking up from the community?

Baroness Foster: When there is a blockage or difficulty, and a problem arises between parties, sometimes the first course of action is to call for reform. That should not be the first course of action; the first course of action should, of course, be to try to find a way around the problem. My former boss, who is also your former boss, Peter Robinson, always used to say that the way to deal with that was to "make the problem bigger" — you probably remember that comment, too, Mark. That means trying to find a way to deal with an issue, rather than saying, "This isn't working: we need reform". If you do that all the time, the people whom you represent will wonder, "What is going on up there in the Assembly?". That is what will happen if we spend more time talking about reform than we do working on effective governance and looking at delivering according to people's needs.

I will pick up on Mark's point about the Programme for Government. There is a need — before somebody says it to me, I will say that we did not achieve this in my time — for a line in the Budget that associated with the Programme for Government. That would be a welcome move forward. That goes back, again, to our funding formula and the need for the Westminster Government to use a needs-based funding formula. I hear my Welsh colleagues raise that issue a lot in the House of Lords, and, I think, you would find consensus on that across the UK. Let us not forget that, when the Barnett formula came in in 1978, it was supposed to be a temporary formula. It is about time that there was a more sustainable formula for funding across the UK, particularly for Northern Ireland.

The Chairperson (Mr Buckley): I will move on to the time that you — both of you — served on the Executive. We have talked about the requirement for broad consensus. From your experiences in your respective Ministries and, indeed, in leading the devolved Government, do you feel that the requirement for such consensus acted as an incentive or a deterrent when it came to good government?

Baroness Foster: Both. At times, there was a realisation that, to get the so-called other side to agree on a way forward, there had to be negotiations. In the early part of my time on the Executive, a lot of conversations took place before the Executive met to try to move things on before the agenda came to the Executive for agreement. You will recall that the New Decade, New Approach agreement set up the party leaders' forum to be an early warning system to deal with issues that would cause difficulties for parties around the Executive table. I am not sure whether the party leaders' forum is still operating, but I hope that it is, because that was a way to try to deal with some of those issues.

That requirement can become a blockage, if there is not a willingness to look for solutions, but it can also incentivise solutions.

Mr Durkan: In the early days of the operation of the institutions here, there was value not just in seeking cross-community consensus, where it could be manifested, but in making sure that there was as much cross-Government understanding and buy-in as possible. We had what was called the ministerial representatives committee, which met in advance of Executive meetings. Together, one civil servant and one special adviser from each Department would look at the business of the meeting in order to iron out any possible apprehensions or misunderstandings and to surface any particular policy or other interest that Departments might have in the proposals of another Department that had perhaps not fully thought them out. That meant that there was some pre-washing of business before it got to the Executive, which certainly helped.

That process was particularly helpful in circumstances in which not all parties had their Ministers in the room — in those days, the Executive met in the room that we are in — so it was useful in that sense. As the Finance Minister in the first Executive, I found myself meeting and dealing with Ministers who did not attend the Executive. I then made recommendations to the Executive that reflected those Ministers' perspectives and interests, which were not their interests as "DUP Ministers". I used to hear colleagues in and around here say, "Why are you giving that money to DUP and Sinn Féin Departments? What about us?", to which I had to say, "Well, you should have picked different Departments". It is about trying to make sure that you are party-blind in how you do things. That is hugely important for the Civil Service as well.

Remember that the context for the idea of getting enhanced consensus and understanding was intended to be the Programmes for Government that, having been agreed in not just this room but the Assembly, would directly inform the Budget. It was written into the agreement that the Budget had to reflect the agreed Programme for Government, and so on. That was partly to make sure that there would be more of a prospect of long-termism, with follow-through on decisions and the Civil Service knowing that decisions that had been taken would broadly hold, even if the party that held a given Ministry changed. Having a different Minister, or a different party holding a Ministry, would not mean that everything would change in accordance with that Department's policy brief. Questions on reform of the Civil Service also need to be looked at, although that may be outside the purview of the Committee's inquiry.

I recognise that some of the questions on budgetary issues that Arlene touched on may similarly be outside the purview of the Committee. I will go back, however, to my observations on the Assembly and the Executive in the first mandate. At that time, I, along with the Civil Service, surfaced the fact that the Barnett formula would give us serious difficulties and strains. We tried to get into a united position of saying that we needed to seek a needs-based funding formula, but that was opposed at the time. It was opposed, supposedly, by unionist politicians. The DUP specifically opposed raising the issue or challenging the Barnett formula on the basis that it was one of the crown jewels of the union, as it were, and that it put Northern Ireland in an advantaged position. We tried pointing out that things would change over time and that the funding line would taper, putting a serious strain on our budget, so I am glad that there is now wider realisation of that fact.

This may be beyond the purview of the Committee, but we also need to recognise that looking at the funding formula means going into the broader question of what the devolved remit is and, again, what residual powers there are at Westminster. When it comes to the Budget and revenue-raising, there are powers lying under the surface in Westminster that could still be activated against the shared democratic interest that all parties, in this room and in the Chamber more broadly, represent.

The Chairperson (Mr Buckley): I will finish on this point, so that other members can come in. There is probably unanimous support in the institutions for a fundamental reform of public services. Both of you have outlined interesting examples, including budgetary examples in particular. However, there is a wide variety of views on the reform of the format and structure of the institutions and the potential impact of such reform. It is important that we take that on board. Earlier, we mentioned differing viewpoints on designations, with 80% of the Assembly still operating under the model of Members designating as either unionist or nationalist. I wanted to hear your view on that. How destabilising and — probably — dangerous to the survival of the institutions would it be for reform of key provisions, particularly cross-community protections, to be enacted over the head of a broad consensus and buy-in from the political parties here that stand in democratic elections, secure a mandate and put forward the views of their communities? What is your view on that? There have been calls for the British and Irish Governments to intervene. How important is it that there is consensus among the democratically elected parties that take their place in the Assembly?

Mr Durkan: I will go back to the point that I made earlier. Where we can achieve consensus, there is an added value in that. I do not think that everything should depend on absolute consensus. To go back to the agreement, we recognised that some things had been put directly into the Assembly and the Executive's purview. We also recognised that other things had not been so put, because they would be less amenable to consensus being achieved. For instance, the whole question of the platform for rights — the bill of rights — was not going to be subject to agreement in the Assembly or the Executive or among parties. Instead, there would be recommendations or advice from the Human Rights Commission, but legislating on that would be for Westminster, because it was recognised that it was futile to think that consensus would be achieved on those things. Unfortunately, subsequent British Governments then used consensus as the yardstick for whether anything could happen on a bill of rights.

There is a danger in putting in the false precondition of consensus, particularly if it locks us into serial dysfunction. At some point, something has to happen that cuts through that cycle of dysfunction, but that should not jeopardise the inherent, underlying foundational safeguard of putting a value on cross-community consensus. The danger is that we have exaggerated cross-community consensus. We have made out that you have to throw a six to start; in other words, there has to be cross-community consensus before an issue or an idea can even be tabled, and that is wrong.

The idea of the petition of concern was for it to be there as a trigger. If you look at the agreement, you will see that the petition of concern was to be, simply, a trigger for an added, special proofing procedure around equality or rights. It was neither a petition of veto nor even a petition of objection. In practice, however, because the legislation translated wrongly and Standing Orders then did not do things right, the petition of concern became a bit of a dead-end veto and was able to be played like a joker. The use of cross-community consensus as a negative or an impediment to debate and discussion is wrong. Cross-community consensus as a way of adding value and, as I said, laminating the mandate around things, is positive and is something that should be maintained, but it should be maintained in a proportionate and proper manner.

Baroness Foster: I do not want to delay us, because I know that members want to ask questions, but I will say this: I do not accept that cross-community consensus is a condition precedent for discussion. People will have different mandates, and they will set out their positions and manifestos. They will then bring their positions to the table to try to persuade colleagues from different parties to move forward and find a consensus. I do not accept that it is a condition precedent. For this place to work, it is necessary to have cross-community consensus. No matter what mechanisms are brought in to stop people walking out of this place, anybody can walk out at any time: we have seen that over the years.

You do not need a mechanism to prevent people from walking out. People can leave the Executive and the Assembly if they do not believe that they are working for their community, and that is not something that we should shy away from. The reality is that we need cross-community consensus to make this place work: people bring their ideas, and you then use the art of persuasion to try to get people on to your page.

The Chairperson (Mr Buckley): Thank you, both. Members, we have a list of questions, so we will try to get through them.

Mr Sheehan: Thanks, Arlene and Mark, for coming in today. I suppose that we are discussing reform because of the groundswell of opinion out there that the Assembly and Executive are not working in the way that they were supposed to. The media have probably helped to spread that view insofar as they tend to focus on the negative rather than on some of the positive stuff. I remember from when I was on the Committee some years ago that there was a perception that the Assembly did not produce as much legislation as other legislatures on these islands. Research commissioned by the Committee showed that the Assembly was well up there in its output of legislation.

Be that as it may, we are discussing reform. Arlene, you mentioned the funding formula. I do not think that anyone disagrees with that point, and we certainly saw consensus on approaching the Treasury about the fiscal floor and all of that. That aside, are there any reforms of the institutions that you can think of or would like to highlight that might make the institutions more sustainable?

Baroness Foster: Thanks, Pat. I agree with your point about perception. It is a negative story that tends to come from this place, rather than one about the positive things that are happening. Unfortunately, good news does not sell newspapers, as we used to say. It is important that the Assembly gets out the positive stories. In that regard, I congratulate the Executive on bringing about the recognition of those who suffered as a result of abuse in institutions; I was really pleased to see that happen last week. I was involved in the Executive's work on that for quite a while, so I was really pleased to see it come to fruition.

When we think of reform, we think, principally, of the institutions, but we also need to look at other practical reforms, including, I have to say, Civil Service reform. We need to look at our Civil Service to see whether it is fit for purpose. When we had, dare I mention it, the renewable heat incentive (RHI) issue, and we looked at the expertise of our Civil Service, we saw a need to look at it again, but that has gone by the wayside. There should be more interaction between what is called the Home Civil Service and our Civil Service to try to build up the expertise of our Civil Service. Ministers rely very heavily, I have to say, on the Civil Service to provide them with expert opinions, and, if we do not get that support in our work, we will have an issue. Civil Service reform is certainly something that the Committee should also look at.

Mr Sheehan: Thanks for that. You mentioned institutional abuse. I was on the Executive Office Committee when you were First Minister, and I commend you for your role in addressing that issue. That should not be bypassed.

I know that you are not here representing the DUP, but, obviously, you were previously a member of the DUP. Is it not fair to say that one of the problems with the blockages in the institutions here is that the DUP has never really bought into the Good Friday Agreement?

Baroness Foster: No, I do not think that that is right at all, Pat, given the 2006 St Andrews Agreement in particular. The DUP absolutely bought into the process then, and, between 2007 and 2015, we had a period of really stable devolved government. We all know the reasons why that did not happen again for a while, but I hope that the Assembly and the Executive can get back to a position in which there is stable devolved administration. If, every time there is a problem, everybody throws their hands up and says, "We need reform of the institutions", surely the focus should be on building resilience and stability. I have some sympathy for the position that you can only really have reform when you have a period of stability in the institutions that allows you to look at them in that way.

Mr Sheehan: I ask you that question because there is a perception in the nationalist/republican community that unionism in general — it is not just the DUP — remains hostile and antagonistic towards aspects of the Good Friday Agreement, particularly those around equality and parity of esteem, and hostile towards the Irish language, and so on. Gordon Lyons has joined the case against bilingual signage in Grand Central station, and we had your "crocodile" moment, which you probably regret now. I think that you have expressed regret because it gave a boost to the Sinn Féin campaign

—

Baroness Foster: It did give it a boost.

Mr Sheehan: — rather than for any other reason. How do you, as a unionist, face up to or deal with that perception in the nationalist community that that hostility and obduracy remain when it comes to equality and parity of esteem?

Baroness Foster: I do not accept that, Pat, as you would expect. Actually, a lot of unionists see parity of esteem being used against them. They want parity of esteem; if they could only get it, they would be quite happy.

I did not mention your Minister's solo run on Irish language signage, but that issue should have gone to the Executive. Now, Ministers are taking other Ministers to court, which does not bode well for the optics of how this place is working. It has happened in the past, as you know. When the Agriculture Minister took a decision that should have come to the Executive, it ended up in the courts as well.

Mr Sheehan: Do you really think, Arlene —

Baroness Foster: The idea of solo runs just eats at trust; it is an issue that Ministers need to reflect on, Pat.

Mr Sheehan: — that, in this day and age, in 2026, the erection of bilingual signage in a public building is controversial?

Baroness Foster: I do because of the history and the way in which, unfortunately, the Irish language has been used as a weapon against unionist areas. It becomes almost a demarcation in the same way as the marking of kerbs did in the past. I regret that, but, unfortunately, that is the strong perception that is out there in the unionist community. Therefore, in my opinion, it was a controversial issue that needed to come to the Executive for discussion and agreement and for there to be an incentive to find agreement in those areas. We have landed in a position in which we have an Irish Language Commissioner, a Commissioner for the Ulster Scots and the Ulster British Tradition and a director of the Office of Identity and Cultural Expression. Those people could have helped with that situation.

Mr Sheehan: OK. Thanks for that. Mark, I will ask you the same question in a different way, because you know the perception out there that the DUP, in particular, did not buy into the Good Friday Agreement, has not accepted the principles in the Good Friday Agreement and certainly has not accepted the spirit of the Good Friday Agreement. In that context, irrespective of the reforms that are brought into the institutions, will the institutions be sustainable?

Mr Durkan: We have the institutions. They are there, with a mandate that goes back to the referendum on the agreement, so it is incumbent on all of us to make the most of the institutions that are meant to manage so much of our public affairs, public estate and public services: we need to optimise them as far as possible. That is without prejudice to the legitimate case for pursuing a change in the constitutional status of Northern Ireland and therefore in the context in which a lot of those questions are framed. You can believe and do two things; you can pursue the two legitimate and commendable agendas at the same time. One does not have to be at the expense of the other.

If we keep coming up against any case for reform that a key party is not impressed with and has reason to be suspicious of, and if that stops the reform debate, the institutions will stay in a rut. As I said earlier, the only difference between a rut and a grave is depth, so the longer we stay in a rut, the worse it is for everybody. People will draw conclusions about the futility of pursuing improvement and enhancement in the democratic performance of the arrangements.

This Committee was set up under the St Andrews Agreement as part of the DUP's narrative of saying, "We agree to this, but we do not accept the Belfast/Good Friday Agreement. We have created this Committee as a permanent feature, because we will permanently and continuously try to change the agreement". Most of the issues that have come before the Committee have met a lot of resistance from the DUP, for reasons that we understand and have heard: people are worried about the direction of travel and whether it is trying to erode certain precepts while pushing others.

That is one reason why we need to discuss such things a lot more. Just as people were apprehensive and had misgivings about the idea that we should build a case to challenge and change the Barnett formula, which met resistance because people felt that, somehow, it would be offensive to unionism to pursue that agenda, so we have to continue to work to reassure people that proposals for democratic improvement do not have an ulterior agenda, such as undermining any identity, legitimate interest or unionism per se.

I go back to the point that we should do things not just on a cross-community basis but on a cross-party basis. Arlene mentioned the progress that has been made on institutional abuse. I seconded the paving motion for Carmel Hanna's motion. I pleaded that day to Michelle to withdraw the DUP amendment that would preclude any idea of a public inquiry. The motion did not say that there had to be a public inquiry — it was a paving motion, which meant that it was about scoping the question — but the amendment ruled out any idea of a public inquiry. On the day, there would have been huge virtue in having consensus and unanimity in the Assembly, particularly as victims' representatives were gathered there, and that is what had happened in the Dáil on the back of the Ryan report, but that was denied. I use that example to point to the value of cross-community and cross-party consensus where it can be achieved. There is an added value to that.

I will go back to the questions about so-called solo runs. That was part of the original intention behind the petition of concern. People said, "Ministers will take all sorts of decisions during recesses; what will happen then?" The petition of concern was there partly as a recall mechanism and partly to say, "No, if there is concern that something raises sensitivities with equality or human rights, there is a device to call it in and look at it". There was a dedicated procedure to see whether there was a case to answer or a way of modifying or improving things. That is what the petition of concern was meant to be for. It should have been used for the controversial decision on the Líofa grant, for instance. That is exactly the sort of thing that it was intended to be used for, but that is not the position that we fell into.

Chair, I will touch on one other aspect, if I may, that was raised and is relevant to Pat's question and the issue of perceptions about attitudes to communities. On policing and police recruitment, which has been mentioned — you mentioned it yourself, Chair — if parties are going to say that it is up to other parties to do more to improve levels of applications from one section of the community or another, those parties need to think how far they can sustain the idea that there cannot be a nationalist Minister of Justice. What kind of signal does that send out about Justice? In fairness to Ministers of Justice, they have not played any direct hand in policing or policing decisions, consistent with Patten, etc. The one time that there was a danger with that, with the National Crime Agency (NCA) arrangements, there was a pullback and a change. However, it sends a signal. When serious leadership in this community is saying that nobody of a particular political stripe can serve as an accountable Minister of Justice here, it sends out a signal to the community that certain people can be trusted with certain things, certain interests will prevail, and certain suspicions prevail. That sends out a fundamentally dangerous and difficult signal, and that is something that needs to be addressed.

The Chairperson (Mr Buckley): I will not labour that point. However, the Justice Minister often reminds us in the Assembly that policing is an operational matter. Every party —

Mr Durkan: Rightly so.

The Chairperson (Mr Buckley): — represented on this Committee has had a member on the Policing Board, so they have had involvement in policing for a long number of years.

Mr Durkan: Yes, but it still sends a signal.

The Chairperson (Mr Buckley): I categorically disagree with your —.

Baroness Foster: of signals.

Mr Durkan: No, it sends a signal.

The Chairperson (Mr Buckley): Members, we will keep moving. John?

Mr Stewart: Baroness Foster, Mr Durkan, thank you so much for coming along today. It has been a very useful evidence session. From the Ulster Unionist point of view, we fully support institutional reform, but it needs to be on the basis of protecting the delicate balance of cross-community consent that was achieved in 1998. You will not need to tell yourself, Mark, about the effort that went into it. However, even the architects of the Good Friday Agreement accept that, 25 or 26 or 30 years on, the institutions should evolve and reform. However, it would not be reform for the sake of it: it would also need to protect the delicate balance that was achieved.

We heard from some members and some evidence givers about the value, potentially, of a citizens' assembly in achieving potential reforms. My view is that the citizens' assembly sits right here and that this Committee is the institution for looking at the reforms and achieving balance and cross-community consent on them. I am interested to hear your thoughts on the potential benefits or pitfalls of a citizens' assembly and what it might achieve, given what we have discussed already.

Baroness Foster: I do not favour a citizens' assembly. I do not think that that will come as a huge shock to you. People are elected to this place to do a job, and the Assembly and Executive Review (AER) Committee is the place to discuss reform and look for solutions and then persuade other Members of those solutions. Mark talked about things that happened in the past and about change for the future. Surely, that is a good indication of the art of persuasion and the need to move politics on and for people to have discussions and find consensus. That, to me, is what this place is all about.

There has been reform already. I mentioned the petition of concern and the changes that were made to it, so there has been incremental reform, although not enough for some people. I accept that. However, to suggest that there has been no reform at all since 1998 or 2006 is just not correct. I believe that this is the place where the discussion needs to happen.

Mr Durkan: Remember that the original agreement provides for a Civic Forum in the North. It also provides for a North/South consultative forum as well, and the two ideas were kind of locked together in the minds of some of us. The Civic Forum did a very good job, and I say that as someone who engaged with it, both as Minister of Finance and as joint First Minister. I thought that it played a positive role and could have continued to play a significant role as a bit of an outrider on some serious policy issues.

On the question of academic selection, we might have ended up at a more productive place than we have arrived at, had a body such as the Civic Forum been able to frame the issues and take forward the proposals that emerged from the review that was appointed by Martin McGuinness. That review that was appointed under the Programme for Government, I hasten to add, as Martin was at pains to say at the time.

In taking forward some of those ideas and discussions, I accept fully what you said, John, about the primacy of the Assembly, and I go back to the point that I made: the agreement says that the Assembly should be the prime source of authority and devolved responsibilities. However, it is not the only source of wisdom. Citizens' assemblies have proved their value in being able to ventilate ideas and amplify issues in ways that, sometimes, the machinery of government or even the operation of politics in a Chamber like that in the Assembly are not always able to do.

There are additional sidelights that can be provided that are helpful to parties. It does not usurp the role of a legislature such as the Assembly to have citizens' assemblies looking at issues, options and ideas and being able to screen out some ideas that might, at first sight, seem wonderful by pointing out that there are all sorts of problems with them. There is value in that, so I would not rule out citizens' assemblies or anything else. However, I believe that it is incumbent on political institutions to show a capacity for reform.

I fully take your point that we need to make sure that, in implementing reform, we do not throw the baby out with the bathwater; we need to differentiate between supporting walls and stud walls when it comes to reform. Certain things can be knocked through and changed, but others are fundamental to the architecture of the agreement. There needs to be discernment when it comes to reform, but the need for discernment should not mean that we abandon the case for reform and moving meaningfully on it.

Mr Stewart: Thank you. We have talked about the perception among the public, which is, sadly, probably at an all-time low, despite the fact that this place has done some good work. However, people still do not accept that. What they see is the regular collapse of the institutions, which invariably leads to a hiatus that leads to a backlog in outputs and poor functionality in the Civil Service. Baroness Foster talked about that.

There are two aspects to discuss. First, what can we do to protect the institutions from collapse? Secondly, how can we better reform how Departments work internally and cooperate on cross-cutting issues? We hear that work is going on between Departments. Invariably, however, where there are big cross-cutting issues we end up in a silo mentality, and that, in my opinion, does not lead to good government and outputs. Given your experience as Ministers, as well as in the Executive Office, what are your thoughts on that?

Baroness Foster: A silo mentality does not lead to good government. We had an example of that with the Climate Change Act (Northern Ireland) 2022, which has had a detrimental impact on the A5 going ahead. That has been catastrophic, because we have spent over £155 million on a badly needed road that has not even started on it. In fact, there was another very serious accident on the A5 today. We have to be better and do more. We have tried mechanisms to have better working between Departments. Carál is here, and she knows that, in the past, we tried to get Departments to work more closely together.

It comes back to the Programme for Government, Budget lines and an agreed sense of the direction of travel. The Bengoa reforms were agreed by all of us. Martin McGuinness was the deputy First Minister, I was First Minister, and Michelle O'Neill was the Health Minister, and we, and the rest of the Executive, agreed those reforms. I know that some of them have been taken forward by the Health Minister insofar as he can. However, there is a real need for a whole-of-government push for something as fundamental as our health service, which, of course, we know is under increasing pressure all the time. Here I am, suggesting a reform. [Laughter.]

There need to be mechanisms to allow for better cross-government working to make things happen that will have a huge impact for our citizens, who will then see things happening.

Mr Stewart: Do you want to come in on that, Mark?

Mr Durkan: The Programme for Government was central to the concept of the Assembly and the Executive that we designed in the agreement. It was then to be discussed annually as was, similarly, the Budget, not because we wanted a one-year Programme for Government or a one-year Budget — we see the value of a multi-year Budget — but because everything has to be subject to scrutiny of performance and adjustment under the oversight of the Assembly.

We could benefit in many ways from more active oversight by the Assembly. There is a case for more joined-up scrutiny. We think about the joining up that is needed between Departments and at Executive level. However, there could be more joined-up scrutiny at Assembly level so that, if there is a meaningful Programme for Government, with meaningful commitments and targets, the Assembly could, in addition to its statutory Committees overseeing Departments, set up dedicated Committees that would back and track delivery of some of the key precepts of the Programme for Government itself and have the ability, Public Accounts Committee (PAC) style, to bring in people from different Departments and agencies to ask, "What's happening here?" or "You're causing the hold-up on this or that. What's happening?". That would be an aid to Ministers.

In the early stages of being a devolved Minister, I remember finding comfort in being able to say to civil servants, "It's not a matter of your putting me in a corner and getting me to sign this. I have to be able to present it to an Assembly and get it approved and agreed". You can use Assembly scrutiny as a strength for yourself as a Minister on policy matters. For instance, when civil servants said, "The strategic rail review has said that the railway lines should be reduced to a core network", I was able to say, "I will not do that not just because I'm a Derry MLA but because there is no way the Assembly will accept it". That scrutiny can be used, so let us not underestimate the fact that more could be done by way of the Assembly.

We have continuing underperformance regionally on capital expenditure and public procurement, but that is not confined to here. From listening to colleagues south of the border, we know that it is a chronic issue there as well. The idea of bespoke Assembly oversight of capital expenditure, which we thought would happen after reinvestment and reform, was planned to be done through a strategic investment body.

It was not just Ministers who conceived that. The then Finance and Personnel Committee, under the chairmanship of Francie Molloy and the Deputy Chair, James Leslie of the UUP, said that there needed to be a new central driver to manage and oversee capital expenditure across Departments rather than relying on underperformance by Departments that, in turn, were relying on all sorts of consultants here and there to help them not deliver on their various programmes or run over budget. More joined-up scrutiny would help to ensure that there was more joining up and would force Departments to collaborate a lot more.

To go back to the point that Arlene and I made about Civil Service reform and how Departments work, during the discussions about whichever Stormont House agreement came up with the voluntary exit scheme from the Civil Service, I remember saying, "That's grand that you're talking about reducing the Civil Service, but where's the case for reform?". Peter Robinson said, "Sure, we're reducing the number of Departments", and I said, "No, I mean reform of how the Civil Service works, how we treat the Civil Service and how we as politicians ask it to work".

When it comes to serious public policy challenges, rather than always setting up interdepartmental working groups at which officials from the Departments basically take turns to block things from meeting to meeting, what is wrong with saying, "We're trying to encourage a faculty of policy development in our Civil Service, and we'll ask one or two named civil servants to look at an issue and go round the different Departments"? They might come up with mad or challenging proposals, but at least those would be coherent. That would be better than people from the Departments coming along in the name of a ministerial, cross-ministerial or interdepartmental working group and cancelling each other out, with discussions getting nowhere.

One of the other points that helped in the early days was the idea of more joined-up working and thinking across Departments. In the first Executive, we had Executive programme funds. The idea behind them was that proposals would have an added priority if they were backed and supported by more than one Department or Minister and if they related to work that crossed between Departments. There was definite value in that. Unfortunately, the Executive programme funds never happened again. They happened in that first mandate, and they should have been grown and developed.

The scope of those funds and how they operated under the Executive should have been changed and been recast, because we needed a different Executive substructure if we were going to make them into a long-term mechanism. That is something that we need to do. The idea of just having a Government in which the Budget comes up and the money is put into Departments per se, with people trying to track it after that, does not always work. Consistent with a joined-up Programme for Government, things that would help include Executive programme funds to support priorities that cross Departments as well as a united Assembly oversight and insight committee and an Assembly Budget oversight committee.

Mr Stewart: Arising from that, I have a question to both of you. I need only a one-sentence answer to this, as I am conscious of time, Chair. Do you believe that, in order to achieve collective responsibility and ownership of the Programme for Government, it may be advantageous to get pre-agreement on the Programme for Government before entering an Executive and for it to be a pre-funded? Following a hiatus, we often see a flurry of activity, with the attitude being, "Let's get back in and we'll talk about it afterwards". There is no buy-in to the process then: it is every person and every Minister for themselves. Is there merit in getting a pre-agreed, pre-funded Programme for Government prior to the formation of an Executive?

Baroness Foster: That presupposes two things. The first is having the Budget in place early on, which is not always the case. The worst thing that could happen after an election in which people have expressed their views and want their mandate to be respected is for us not to go into Government for three months. That would send a bad message. I understand why the message is always put forward that we should have to have a PFG in place before we enter Government, but a limited number of weeks should be given for that. It should be the priority when we go back into Government, but my concern is that not doing government until we get the PFG in place would send out a negative message.

Mr Stewart: I understand.

The Chairperson (Mr Buckley): Very briefly, Mark.

Mr Durkan: As Arlene said, it is hard to have a fully fleshed-out Programme for Government agreed before you can go ahead with the appointment of Ministers and so on. Part of the thinking with the original agreement was that the whole Assembly would elect the joint First Ministers on the basis that whichever tickets came forward for joint First Ministers would probably be advertising some core ideas that they intended to work on for the Executive's Programme for Government. That does not mean that it is all pre-cooked and preconceived, because the parties that would go on to nominate the Ministries should then see their Ministers contributing to the Programme for Government, from the point of view of the insight and interests of that Department.

Mr Stewart: Thank you, Chair. I appreciate that.

Mr O'Toole: In the interests of Budget scrutiny, I need to be in the Chamber soon for the debate on the Budget Bill. There is an incentive for me to be brief, so I will try to ask brief questions. Baroness Foster and Mark, thank you both for coming. Your time and experience are genuinely appreciated. I will ask this question. Please give relatively brief answers, if possible, in the interests of getting through it before I have to go.

I think a lot of the reason why there is focus on reform, in the largest sense — we can get into some of the meanings of reform — is that, for more than half of the past decade, there have not been functioning institutions. There are huge frustrations with delivery, the slowness of government and the functioning of different strands. All those things are true, separately, but they are crystallised by the sheer absence of Government. I will start with you, Mark, although the question is to you both. As I said, I would like brief answers, as I have to go. Do you agree that we have to solve the problem of not having institutions at all? Do you agree that we can no longer have a situation in which we have a complete vacuum, with no Assembly or Executive?

Mr Durkan: Yes, I absolutely agree. It is a democratic scandal if we ask people to vote for institutions and then spend months or years with those institutions grounded. That confounds the whole democratic ethic that there is supposed to be around devolution and the institutions. There are different ways of getting round that, but there is that sense of everybody being grounded.

Going back to the original agreement, elective inclusion was meant to be about making sure that no party could be specifically excluded and that nobody could be vetted or vetoed in spite of their mandate, yet we have ended up in a situation where there has been a collective frustration of everybody's mandate.

Mr O'Toole: Arlene?

Baroness Foster: Yes, of course: if the institutions are not working, that sends a very negative message.

Mr O'Toole: I am glad. Thank you both for that.

I will not get into specifics, because I am sure you do not want to spend time re-litigating RHI in this Building, but I think that Sinn Féin was wrong to class collapsing the institutions as the right thing to do in 2017, despite the frustrations. Do you think that it was wrong after the 2022 election? You just said that the public would be frustrated if there were three months of negotiations about the PFG before the formation of a Government. I accept that you were out of the Assembly and the party at that stage, but was it wrong to have a two-year hiatus after the 2022 election before the formation of an Executive?

Baroness Foster: It is indicative of the enormity of imposing the protocol and overriding the cross-community consensus point in the Assembly at that time. I was not in the party then and do not know the discussions that took place that led to the decision not to go into the Assembly and the Executive, so I cannot make a judgement. I will say, however, that, any time that the Assembly and the Executive are not operational, it has an impact on trust and on people's view of the Assembly. Some of the issues that members have raised today about people's view of the Assembly and its effectiveness come from the fact that we have had periods in which it has not been operating.

Mr O'Toole: On the question of reform, you, Baroness Foster, correctly said that there is now a perception — whether that perception is legitimate and how it was created is a debate that we will not get to the bottom of today — that reform has become a thing that is about to be done to unionists.

Baroness Foster: Yes.

Mr O'Toole: This is not a gotcha, but I want to track back, because we have talked about things that happened in the past. You were a DUP candidate in 2011 and then a Minister. The DUP's 2011 manifesto called for significant and substantial reform of the institutions and for a move away from parallel consent towards the use of a two-thirds —.

Baroness Foster: I think that it was called 'Devolution Now'.

Mr O'Toole: I am glad that you remember. The DUP called for a two-thirds threshold when voting, and my party has talked about having that. The manifesto also talked about looking at designation. Why was reform right and good in 2011 but is now offensive to unionists?

Baroness Foster: That explains what I am talking about, because it is about how things are sold and about how this place has developed over the past while. Following the most recent election, when the DUP was no longer the largest party, although, from memory, unionism is still the largest designation, it is still difficult for people to see how minority protections were needed when the DUP was the largest party but not when it is not the largest party. That sort of thing is going on at this time. Looking in, I do not think that the DUP is against reform, but we have to deal with the reality of the situation in which we find ourselves. To do otherwise would be reckless.

Mr O'Toole: I do not want to mischaracterise you and you are an unaligned unionist now, but, if that is the perception, is it fair to say that unionist politicians of all stripes, even those who theoretically want the institutions to work well, even if they disagree with specific policies, should be assuaging that perception rather than feeding into it and saying, "This is simply about pulling up the drawbridge for unionists"?

Baroness Foster: I cannot answer that, because I do not know whether it is just about pulling up the drawbridge for unionists.

Mr O'Toole: From my perspective, my party is about making the institutions work better.

Baroness Foster: As I have said throughout the evidence session, it is important that all parties try to build resilience and stability into the institutions. By doing so, they can then have the conversations about reform. We all want to move to a more normalised system in Northern Ireland. I was in the DUP when we talked about the things that you referenced, and I very much believed in them. I still do, but we have to live in the reality of the situation.

Mr O'Toole: We have agreed that is it preferable to move to reform how those things work, even if there is a tone or a perception. I would say —.

Baroness Foster: If people work together, they can change the tone and the perception, but —

Mr O'Toole: I hope that this evidence session will do that.

Baroness Foster: — I hope that people will work together to build resilience into the Assembly and the Executive in a positive way, rather than taking lumps out of one another every day of the week.

Mr O'Toole: I hope that this inquiry will do some of that work.

One question has come up repeatedly, and you mentioned it, Mark. It concerns the differential in job titles.

Can you provide clarity on that? I have to be in the Chamber in a few minutes. In 1998, the Ulster Unionist Party — again, this is not a criticism, nor am I re-litigating the issue — wanted there to be a difference between the two titles, so two titles were inserted in the Good Friday Agreement.

Mr Durkan: That party clearly felt that the agreement was more sellable to the unionist electorate if there was a differential in the titles. Maybe it can be regarded as a precursor to the signal idea for the role of the Minister of Justice. Perhaps it was to do with the idea of showing that there was some residual primacy or preference there, but it is not real in any sense. Indeed, the legal adviser to the first Executive, Denis McCartney — it was in the days before there was an Attorney General and all the rest of it here — always addressed his written submissions to Séamus Mallon and David Trimble and then to David Trimble and me to "the First Ministers". He said, "Your generic and common title is 'First Ministers'. There is no differential".

Mr O'Toole: Arlene, given Mark's view that it was about residual primacy, that sense of, if you like, communal competition clearly existed in the election. You have talked about effectively moving away from that perception: do you agree that we should equalise the titles?

Baroness Foster: I have no difficulty with that. I always saw Michelle as having the same status as I did in the Executive Office. She could block or agree to things, just as I could block or agree to things. That is the way in which the Executive Office works. It is a joint office.

Mr O'Toole: When you held the title of First Minister, did you think that the two titles should have been equalised?

Baroness Foster: It was not really a discussion then. I think that Michelle referred to herself as "joint First Minister" on a number of occasions. That was the way in which she —.

Mr O'Toole: That should happen now.

Mr Durkan: I was surprised to see the switch in the Chamber seating arrangements. I do not know why, when Sinn Féin took the post of First Minister, the parties had to change where they sat. Originally, that designation was about left and right. It is how we chose to do it in the original Assembly: that the nationalist parties would essentially sit to the Speaker's left. That is how it was done. To change the seating arrangements according to who is First Minister creates an aura around the post.

Mr O'Toole: Do you think that there is an issue there? We have talked about it regarding titles and regarding reform. For people who are watching, it sounds as though reform was grand and good when it meant removing protections that were largely associated with nationalists but is bad now because those protections are now largely associated with unionists. The other side is saying that differential in titles was bad when it was about unionist primacy but is now good because their person is on top. Do we need just to remove some of the shibboleths and move towards actual good governance rather than symbolic things? May I briefly hear first from you, Mark, and then from Arlene?

Mr Durkan: I agree for the reasons that you have mentioned. The problem was compounded by the terms of the St Andrews Agreement, which introduced that sort of algorithm — a "tribalgorithm" — for the appointment of the First Minister and the deputy First Minister, which, in turn, turned Assembly elections into first-past-the-post elections for the position of First Minister. The idea of joint nominations and a joint election to a joint office was a positive, but it would be even more positive if the titles were absolutely equal.

Baroness Foster: There was the symbolism. Mark indicated why the titles were "First Minister" and "deputy First Minister" in 1998. It was of that time. People were looking for agreement. They were looking for consensus. That is where we ended up. If people want to revisit that issue, they can do so.

Mr O'Toole: You would therefore be content with that happening. I would hope that others, including Sinn Féin, would also see that it is now in everyone's interest to remove the differential, which was inserted for reasons of unionist primacy in 1998.

Baroness Foster: I am not in the Ulster Unionist Party, but —

Mr O'Toole: Fair enough.

Baroness Foster: — I do not think that it is fair to say that it was a primacy thing. It was something that was needed at the time. It was necessary to try to get people over the —.

Mr Durkan: I know from UUP negotiators at the time that it was also the case — they may not say it now, but they said it to me — that, if it came to pass that the largest party was a nationalist party, they still did not want to vote for a First Minister who was not a unionist. They had that mental reservation.

Mr O'Toole: I have one final question, if I may, Chair.

Baroness Foster, we have talked a lot about Brexit in the Chamber. I used to ask you about Brexit. We sometimes had fun exchanges. I promise that I will not re-litigate Brexit, but, on the question of the Good Friday Agreement and the institutions, we now have the East-West Council and Intertrade UK, of which you are the chair. I will not ask you loads of detailed questions about Intertrade UK, but it is fair to say that it is outwith the protections of the agreement. You mentioned earlier the St Andrews reforms that meant that the NSMC and, in a sense, by extension, InterTradeIreland were accountable to the Assembly. Intertrade UK and the East-West Council are not accountable to it.

Baroness Foster: No, they are not, but, to be clear, I would have no difficulty with it if they were to be accountable to the Assembly, because I feel that we are doing good work for the people of Northern Ireland.

Mr O'Toole: You may have to come back here and give more evidence to Committees.

Baroness Foster: What a great thing.

Mr Durkan: I will add one point about post-Brexit arrangements. I was in Westminster and was on the Select Committee that was dealing with exiting the EU, and I recall that the DUP's position at that time was that devolved consent should not be required for any of the post-Brexit arrangements. In particular, Sammy Wilson, as a member of that Committee, warned against devolved consent, particularly in Northern Ireland, because that would trigger a move to cross-community consensus being needed and would therefore be, as he put it at the time, a "Remoaner's veto".

Baroness Foster: We are now getting into the realms of —.

Mr Durkan: That was the DUP's position on cross-community consent, Brexit and post-Brexit arrangements.

Baroness Foster: He was talking about the UK-wide system of Brexit, not the imposition of the protocol and what it meant for the people of Northern Ireland.

Mr Durkan: No. It was about the details as they affected any of the devolved areas.

The Chairperson (Mr Buckley): I will try to keep this tram on the rails.

Baroness Foster: You have done well so far.

Mrs Guy: Thank you both for your evidence. It has been really detailed and is very appreciated. I want to set the context of my questions, which is very much the context of the Committee's inquiry. We are doing an inquiry on institutional reform, so I want to hear evidence today to inform the discussion about reform and to make sure that we can use it hopefully to formulate decisions.

I will ask one direct question. It touches a bit on some of the stuff that others have asked. I will start with you, Mark, and then ask you, Baroness Foster. Does either of you believe that any one party should have the power to bring down the Assembly and the Executive, even when other parties are ready to govern?

Mr Durkan: No, I do not, for the reasons that I have given. Elective inclusion was about making sure that one party's mandate could not be vetted or vetoed. We ended up in a situation in which all parties' mandates were frustrated, and that is simply wrong.

Baroness Foster: The reality is that nobody can force a political party to go into office if it does not want to go into office. We saw that in the 1980s when nationalism stayed out of the Prior Assembly and Administration. We have had many examples of that since the Executive and the Assembly got up and running in 2007. Actually, we have examples of that since 1998.

Mechanisms can be brought in to stop people collapsing the Assembly. The question is this: if a significant chunk of the political representation were not sitting in the Executive and the Assembly, what credibility would the electorate give to that Executive and that Assembly? The idea of having everyone in the tent trying to find solutions and to build resilience and stability is obviously the best way forward, obviously, but I know that there has been discussion about mechanisms. During the most recent talks process, before 2020, we talked about having a mechanism to prevent that, but the reality is that somebody can just walk out and stay away. If that were a unionist bloc, nationalism and the Alliance Party would be here on their own; similarly, if Sinn Féin were to decide to stay out, it would be just unionists and Alliance. That would not work, so we need to focus on trying to build consensus.

Mrs Guy: If people can walk out, should they be allowed to stop everybody else governing? Mark, you provided us with a lot of detail in your written submission, so, Baroness Foster, if you do not mind, I will probe that issue with you a wee bit more on the basis of some comments that you made in 2018 after Sinn Féin had brought down the institutions in 2017. You said:

You made this point:

You also made the statement:

For me, the last one in particular speaks to the necessity of removing single-party vetoes.

Are you still on the same page?

Baroness Foster: I am absolutely on the same page. We looked at trying to formulate a mechanism. I will take the 2017 example. There have been examples on the other side, so I am not singling that one out. If Sinn Féin decided to stay out of the Executive, the first question to ask is this: would the other parties stay in? I am not sure that your party would stay in if the Executive were just unionists. I am not sure whether Mark's party would stay in if Sinn Féin were not there and if it were just unionists and vice versa.

Will parties join an Executive when one of the main blocs is not in there? That is the question. Obviously, we would want to see government continue. I wanted to see government continue in 2017. At the time, I said, "Let's get back into government and sort out the issues around the Irish language", which was the main issue at the time. I wanted to do that alongside the other parties, but that was not accepted at the time by Sinn Féin. It is about trying to find a way in which to have everybody inside the tent and get everybody moving forward.

Mrs Guy: You are right that people want to see government. If you look at the evidence in the polling and the data from the public, you will see that the impetus for this conversation is to ensure that we have government, because not having government has had a detrimental effect on Northern Ireland.

Baroness Foster: Effective government is what people want to see.

Mrs Guy: Yes, and being able to collapse the Assembly is in its essence ineffective.

I will move on. We have you here, Baroness Foster, so it is appropriate for me to ask about the COVID inquiry findings. The Government established an independent process precisely so that political institutions could learn lessons. That has to include us. In essence, what I am asking is this: how do we stop institutional collapse or the misuse of vetoes undermining another emergency response? The public inquiry concluded definitively that, first, our lack of preparedness for the pandemic was exacerbated by the collapse of the institutions between 2017 and 2020. Secondly, when the Executive returned, cross-community voting was abused to block public health measures. We can take from that and from the inquiry's findings that it is most likely that there are people from Northern Ireland who are not alive today because of the abuse of the mechanisms. Is that not reason enough for us to take seriously reform of some of those mechanisms?

Baroness Foster: I do not accept that that is the case. Everybody in the Executive approached the COVID pandemic with the best of intentions. Yes, it has been found that none of the Administrations — no country — were prepared for the onslaught of COVID and the way in which it came at us. We were all trying to deal with something that was very difficult at the time. Some of the lessons that have been learnt about the closure of schools and businesses have to be taken on board. Should we have locked down at particular points? Should we have allowed children to go to school? Those children are still dealing with the consequences of not being in school at that time. There is a lot to discuss about COVID.

It is also important that the Committee look at the Belfast Agreement and the Northern Ireland Act when considering the petition of concern, because they talk about the taking of key decisions. I can think of no bigger decisions than some of those that we took during the COVID pandemic. I am on record as saying that it was the most difficult time in my political life and the decisions that I made then were the most difficult. It was a horrendous time. We were taking decisions that meant that people were in their homes all the time. They were not out. People could not access cancer treatments and other things that they needed. Of course the pandemic had a huge impact on those who suffered as a result of COVID and those who lost family members to it, but it had also a huge impact on everyone else. If you look at the people around the world who were administering government at the time, you will notice that a lot of them are no longer in positions of authority. It was a horrific time for everybody.

Mrs Guy: The conversation that we are having today is on institutional reform.

Baroness Foster: You made the allegation that we were taking decisions that caused people to lose their lives. We were taking decisions in good faith around a table at a particular point in time. It is always good to retrofit. We are now sitting in this calm position in Room 21 having this discussion. Back then, we were being bombarded with different advice from different people all the time about what decisions to take. It was a very difficult time.

Mrs Guy: In the context of institutional reform, being able to use a communal veto around health measures feels —.

Baroness Foster: The point is that it is not a communal veto but a mechanism that can be used for key decisions. When people discuss the petition of concern, it is important that they consider the purpose behind it in 1998 and at the legislation from that time.

Mrs Guy: You talked about — sorry, Mark, do you want to come in?

Mr Durkan: I just want to make the point about some of the lessons when we reflect on the COVID period.

Mrs Guy: That was the inquiry's —.

Mr Durkan: Arlene spoke about where, in her experience, that ranks on the scale of difficulty and sensitivity during her time in government. The only thing like the pandemic for the first Executive was foot-and-mouth disease. It was obviously an emergency, but it was very much a sectoral thing. It raised sensitivities about borderism, because there were issues with the land border that had to be dealt with. There were also issues to do with sealing the ports, and those had sensitivities for other political dimensions. The fact is, however, that we were able to deal with those issues in a joined-up way, despite the different perspectives that were there on a constituency basis or other bases.

With COVID, that complexity and challenge was multiplied hugely. The inquiry is looking at things that happened in different jurisdictions to do with decisions that were taken. Those decisions were not just taken by government; in many ways, they were taken collectively by the political class and by the Assembly at large. It is therefore important that we do not try to isolate this to which party was in which Ministry at the time. We need to look more widely.

I gave evidence in another place and was questioned about whether there was much value in the idea of having joint First Ministers at all. I said that, during the COVID crisis, there was value in what Arlene and Michelle O'Neill were able to do. There were collective Executive decisions, and the fact that they were able to present and speak to those decisions in the way in which they did in difficult and artificial circumstances was important and had value.

For something like COVID, if we had had government here that was being managed very much with the predominance of one party, there might not have been the same understanding or tolerance of a lot of the decisions that were taken and of the restrictions that were put in place at the time. There was therefore a value in having the joint office and the degree of consensus that it represented.

I accept fully what you say about the use of the cross-community device to veto specific decisions. It is wrong. I go back to the point that the petition of concern was meant to be there to identify an issue that would then be frisked and tested, after which a decision could be taken. It was not in there to say that no decision could be taken in that direction.

Mrs Guy: You have talked a lot about the need for consensus. The petition of concern is often deployed as a veto, not as a mechanism of consensus. It has been deployed recently in the Assembly. I want to get a sense of how cross-community votes also impact on consensus. They are material. Weighted majority, as opposed to parallel consent, is another way to get cross-community consensus. Are there any legitimate objections to moving in that direction if we still get cross-party and cross-community consent by weighted majority? Does that not seem to be a reasonable step forward in reform?

Mr Durkan: The Chairman touched on the reasons, and we are talking about abandoning the provisions on cross-community support being allowed either by the qualified weighted majority of the 60/40 rule or by parallel consent, which is a term that Denis Haughey from the SDLP coined. It was his shorthand for the rule that was there in the talks.

Séamus Mallon then became so besotted by the words that he insisted on them being in the agreement. In many ways, some of the agreement was written almost to shoehorn the term "parallel consent" in. Under the agreement, parallel consent was required for only one issue, and that was the joint election of the First Ministers. The Speaker, for instance, or any of the other tests could be done by either qualified weighted majority or parallel consent. Of course, that unique requirement for parallel consent was done away with, courtesy of the DUP of all parties, at St Andrews, only for the DUP then to end up saying, "Oh no, parallel consent is key and central" when it removed the one bespoke requirement for it.

Moving to just the weighted majority of two thirds alone could be a problem. Just as the election of Speaker and other things were allowed to be by either parallel consent or qualified weighted majority, there is no reason why you should not add a third threshold to the menu of, say, a two-thirds majority or whatever. The fact is that all parties have accepted two-thirds majority without reference to designation as the basis on which Assemblies can dissolve themselves and terminate their mandate in order to bring forward an election. Therefore, that two thirds of all MLAs, I think it is, is already there, and all parties have accepted that from the 1998 Act right through. That has been repeated in some more recent legislation, such as the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022, in which the two-thirds majority is used for the termination of the Assembly or asking the Secretary of State to rescind a decision to call an election.

Those two thirds are without reference to designation, so, if parties have gone along with two-thirds majorities without reference to the notion of designation, I do not see why parties should be averse to adding in a two-thirds majority when it comes to, say, restoring the joint election of First Ministers, the Speaker or whomever. I would allow the Assembly the right to do it by either two-thirds majority or by parallel consent. If you have only a two-thirds majority for, say, the election of a Speaker to get the Assembly started, one or two MLAs could hold out disproportionately. People think that a large party can hold everybody else to ransom under the current system: under purely a two-thirds majority, a small party could hold everybody else to ransom if it wanted to. Relying on only the two-thirds majority could be a mistake, but adding it as part of the additional democratic menu would be helpful.

Baroness Foster: Mark has just demonstrated why there needs to be a discussion of the issues of consensus, because it is a complicated situation. If you think, "We'll move to the two-thirds majority", what happens if the small parties object? The fundamental basis of my evidence today is that reform can of course happen but there has to be consensus on what that reform is. The reason for the reform must be the effective good governance of this place for the benefit of the people of Northern Ireland. That should be the underlying theme of all of the Committee's work.

Mrs Guy: I have one final question, then, linked to the repeated theme that everybody seems to agree on and on which, hopefully, we have consensus: wanting to make this place work and be effective. How the Executive work effectively is fundamental to that. The three-meeting rule that stops papers from being blocked on the Executive is being treated more like a convention and is perhaps not operating as intended. Is it time to make that statutory so that the Executive can at least be productive and people can move items forward?

Baroness Foster: Again, it is about having fruitful discussions before something makes it to the Executive. In the past, if a paper was not making progress in the way that it should have been, the special advisers and, indeed, the Minister would have met the people who had difficulties with the paper, found a way to accommodate some of the concerns, put that into the paper and moved on. That is still the best way to deal with issues, as is the party leaders forum, where big-ticket issues that might cause a problem when they come to the Executive table can be flagged.

Mr Durkan: There would be no harm in adding value to it by putting it on a statutory footing. I could not understand at times why, in my time in the Executive, items that were down for discussion suddenly could not be discussed. David Trimble would arrive from London on a Thursday morning and suddenly say, "No, we are not having that", and you did not always know the reason. In those days, not many other Departments were putting that much business in the way of the Executive. Most of the business was coming either from the then Office of the First Minister and Deputy First Minister or particularly from the then Department of Finance and Personnel, which, by its character, was cross-cutting. All the other Ministers tended to hide their homework quite a bit for understandable enough reasons.

What happened then, however, was that, when people surfaced, they did not quite know what was happening, leaving Ministers and civil servants frustrated at not knowing why something was not getting on the Executive's agenda, even though they were, perhaps, discussing it through the ministerial reps committee or whatever. It was perverse in that sense. Something that means that Departments and Ministers know that the serious business that they are putting in the way of the Executive is treated seriously and properly, so that people are able to make a mature decision around those issues, is important not just for the internal workings of government but for the outworkings. There are usually key policy communities or key public services that are affected by those things.

Miss McIlveen: Thank you both very much for coming today and for your presentations. I have found this a really interesting session. What has been most beneficial about it is the fact that you are both practitioners who have been through the system and understand it.

Baroness Foster: We have the scars. [Laughter.]

Miss McIlveen: Whether I necessarily agree with everything that has been said is another thing, but I very much appreciate that.

Mr Durkan: We might not agree

either. [Laughter.]

Miss McIlveen: The fact that we are two hours in reflects the engagement that there is from members. My questions will be brief and will reflect on some of the things that have already been said. We know that reform can happen, but we also know that it takes time. Usually, political reform is precipitated by a crisis. I hope that we do not get ourselves into that place again any time soon.

Today, we have talked about the reform of the funding formula, public service reform, Civil Service reform and, of course, reform of the Assembly and the Executive. What should the priority be today with regard to any aspects of those reforms in order to make what we do and how we deliver it more effective and meaningful to those whom we represent?

Baroness Foster: From my point of view, Michelle, the question around all of the reform programme should be about how we deliver better for the people who elect us into these positions. It may be outwith the Committee's remit, although it should be something that the Committee should consider, but, for me, it is about the funding formula. I take Mark's point about where my former party was in the past, but everyone now feels that the Barnett formula is not fit for purpose. There is a need to revisit it and to deliver better. Otherwise, if you bring less over from London, the Departments are in strife about what they can and cannot do. That causes strife in the Executive about who gets what or who gets priority and who does not. That should be the priority at present, aligned with Civil Service reform, so that it can support the Ministers who are in position. That is where the priority should be.

Mr Durkan: It should be a priority that institutional reform be delivered in this mandate and, perhaps, guaranteed to have effect in the next mandate so that, when the public vote in the election for the next Assembly, they know that issues have been sorted around how a Speaker is elected and how First Ministers are appointed so that there is no question of a prolonged stoppage. A number of years ago, in Scotland, post the referendum and all the rest of it, there was an issue around the need to guarantee to the Scottish public that the Scottish Parliament was permanent. There was an idea that the legislation from Westminster, in essence, treated devolution as a concession. Of course, the stop-go experience in Northern Ireland added to the idea that devolution was a bit of an optional extra. There was a democratic imperative to have a sense of a permanent Government and Parliament. In the Scottish situation, it needed that signal from Westminster and the UK Government. I think that people here want that signal from our institutions and from the parties. They are saying, "If you are asking us to give you a mandate to govern, it is a mandate to govern and to be a legislative Assembly that does legislation, not one that downs tools or is frustrated by anybody else." That is hugely important.

There is no point in having an Assembly election during which we all debate all the reasons and excuses for there not being reform and people can cast doubt over the worth of the mandate that they can give any party or thing. Reform cuts through all the questions that people ask, such as "Will you support this thing?" Will you support a nationalist Minister of Justice?" and all of the other trap questions that people throw up. We should have reform that removes all those questions, so that parties and MLA candidates can fight an election on what they intend to do for public services and on the public law that they will put on the statute books etc.

That does not preclude addressing finance issues or Civil Service reform. I know that this is a bit of a wonky issue, but the Northern Ireland Civil Service code of ethics should be looked at. I tried to raise the matter at the behest of civil servants back in the first mandate, and I understand fully why David Trimble and Séamus Mallon said, "No, you have enough reviews. There are too many things going on, and we are not getting into that". Senior civil servants at the time predicted that there would be issues when it came to things such as potential court cases, where some civil servants would find themselves backing one Minister in a case against another Minister who would be supported by their civil servants. That is a bit of a nonsense. We have to look at the Civil Service code of ethics to do with the fact that those in the Civil Service have a responsibility not just to their own Ministers but to the wider public interest. Accountability to the Assembly and Committees should be built into the Civil Service code of ethics. That would take care of a lot of issues that have been raised around whistle-blowing, signalling and all the rest of it. There is reform to be done there.

I will say one thing about finance. Going in on the Barnett formula will not be a free run at the rickety wheel. The chances are, particularly with the current Government at Westminster, that they will meet any move to adjust the Barnett formula by saying, "That is OK. We will adjust how it is calculated and the fiscal floor to change the amount of money that you get, but you can spend the money that you get through Barnett only on equivalent services. You cannot spend it on services that the money is not covering in England". That will include things like water and so on. Be careful, because it will be a financial version of "English votes for English laws". The Johnson Government introduced "English votes for English laws" as a way of trying to say to the red wall in England, "Whoa. We are stopping these other people from creaming benefits off you hard-working people in England while they get the benefit of their own laws, of making our laws and getting their services". They will do something like that. Something like that will be raised. When it comes to the question of revenue raising, parties need to be ready for that to be part of that difficult negotiation as well. We need to have our eyes open on that.

Baroness Foster: It is not a discussion that you would go into alone. You would go into it with the Welsh and the Scots, because they are unhappy with the Barnett formula.

Mr Durkan: That brings us back to what we tried in the first mandate. We had Wales lined up. Scotland did not, because Gordon Brown, of course, was telling the Scottish Labour Party, "You are doing well under Barnett, and I will look after you". Scotland did not cooperate with us in that challenge. Wales did, and then it was bought off with the Objective 1 programme and a few other things.

Miss McIlveen: Given your comment that reform should come from a request from the parties, I get the impression that you think that it should be all the parties. Was it a wise move by the Agriculture Minister a couple of weeks ago to basically go on a solo run and call for the British and Irish Governments to lead a process of reform?

Mr Durkan: Under the agreement, the two Governments have a role in the broader review mechanisms for the agreement itself. The most significant review exercise might have been at St Andrews. The Irish Government directly leaned in on strand one and did so at the DUP's behest, because the SDLP was being specifically leaned on to accept the change in the removal of the joint election of First Minister and deputy First Minister; the stuff about the Assembly and Executive Review Committee being a way of saying that there would be permanent and ongoing change from the original agreement; the so-called value-for-money review of the strand two arrangements; and the drive-by veto of the added stuff with reference to three Ministers calling things in and all the rest of it. The Irish Government were leaning in heavily at St Andrews.

Parties have been happy for the two Governments to be part of overall reviews. When the Assembly came back after it had stalled, the Irish Government and the British Government were involved in those negotiations, so it is not completely astray or off the books for the Agriculture Minister or anybody else to ask the two Governments to be involved. I think that he was saying not that it was all down to the two Governments to do things, regardless of anybody else, but that there needed to be a headline commitment to the case for review or reform.

At times, you hear from each Government and, at times, you hear from them jointly that there needs to be reform, but it is never now. They never put it on the agenda for now. A couple of years ago, both Governments said, "Yes, there needs to be reform, but the concentration is on getting the institutions back up and running; there is no point in pursuing reform". Then, when we had the institutions up and running, they said, "Well, we need to make them work. We need to see them deliver. There is no point in being distracted by reform". We are now being told, "It is coming up to an election and a new Assembly. It is not the time to pursue reform". When will be the time to pursue reform? It is hugely important to have sufficient reform to allow people to know that the next Assembly election will take place with a different prospect from that of previous Assembly elections.

Baroness Foster: I sometimes think that I am living in a parallel universe, Michelle, because the idea that reform, particularly the wide-ranging reform that Mark proposes, will be agreed before the next Assembly election is for the birds. There needs to be a period of stability when we — you — deliver effective governance for the people of Northern Ireland.

On the point about the Irish Government and the British Government, I have said throughout the session that reform must come from the parties here. If the UK Government want to facilitate strand one reforms, that is fine, and you will know, having been in the room with me and Irish Ministers, that I have always pushed back hard on their position on strand one. Of course there is a position for them on strand two. If reform is coming on strand two or strand three, the two Governments should be involved, but, in relation to strand one, the impetus for reform has to come from the parties here, because they have to own the reform and make it work. This is the place to have the discussions. I hope that Mark and I have helped put a few ideas to you this morning around where we think that reform should come from. It is then for you to discuss where it should happen.

Miss McIlveen: Thank you very much, both of you.

Ms Ennis: I appreciate your time today, both of you. As Michelle said, it has been useful.

I have two questions. Over the past while, there has been an obsession with titles: what the First Minister and deputy First Minister are called. We have had numerous evidence sessions with academics over the past weeks, and we have put the question to all of them. They all said that it would be merely a cosmetic change that, structurally, would offer no value, as both of you have said. They are equal in law. Given that, if we cannot elect a Speaker, a First Minister and a deputy First Minister, what they are called is irrelevant, do you agree that the Committee should look at how we elect people to those offices rather than fixating on a change that would offer no structural advantage and would be purely cosmetic?

Baroness Foster: It would be a cosmetic change; that is right. It is obviously for the Committee to decide whether you want to discuss that and whether you think that it would have any impact in relation to reform by sending a signal. That is a matter for the Committee. On the issue of how a First Minister and deputy First Minister are elected and the consensus on that, there were reasons why that changed in 2006. I am not going to rehearse again all of those reasons and the fact that the legislation did not accurately reflect what was agreed in the St Andrews Agreement. I was not actually at St Andrews because my three-week old baby was in the Royal Victoria Hospital at the time, so I had a good reason not to be there. There is space to look at all of those areas, but, again, it is about whether you can find consensus to deal with it all.

Ms Ennis: But is it your opinion that we should remain fixated on what those positions are called? If we are serious about real structural reform, should we look at how they are elected because that is the only way to get —?

Baroness Foster: I think that I have said that it is incidental. Whether you are First Minister or joint First Minister or whatever, people will call themselves whatever they want to call themselves. In law, the office is a joint office. I always knew that, and I always respected that, whether it was Martin McGuinness or Michelle O'Neill. That is the reality.

Mr Durkan: Martin McGuinness was right when he said that, if it came to the point where Sinn Féin was the largest party and took the First Minister position, the move would be to make the titles joint and equal. That was right. We can look at questions around reform, and, yes, you can change the physics of the rules and the institutions and all the rest of it, but sorting out the physics will not work if the chemistry is not right —

Baroness Foster: Very good.

Mr Durkan: — between how parties interact and things. However, just getting the chemistry right is not enough either. You need, at times, the physics to work as well. We have seen the chemistry work very well, but, if the physics has not been taken care of, you have a problem later on when it come to a different mandate or different personnel or different prevailing moods.

There is value in taking out the weeds of the false differential. If something is there that is false and unnecessary, remove it. It is a weed. Remove it. It is used at election time as though it is a pertinent point. Totemic significance is added to whether one party has the First Minister or can keep somebody else from being First Minister. For the exact same reason that we need to move away from the notion that the Ministry of Justice is available only for certain people in certain ways and that there are sensitivities if it goes elsewhere, it needs to be equalised.

You also mentioned the Speaker role. Remember, when we were negotiating the agreement, parties would not even agree to the title "Speaker". There was "Presiding Officer", "Chair" and other titles. People were precious about even agreeing that that office would be called "Speaker", because there were notions about what was going to happen and all the rest of it. Also, going back to the agreement, when it came to the question of Speaker, the issue of the Speaker being put in by cross-community consensus was in circumstances where people knew or felt that, with the first Assembly, there would be a lot of formative issues around the creation of rules and practices, so it was sensitive.

We are at a stage now where people know that there is the Speaker's Office, particularly when you have Deputy Speakers established and Clerks and the Business Committee. There is less sensitivity around that role and more trust, and that is why it is much easier to move to allow things such as a two-thirds majority or whatever, particularly if there is an option for a secret ballot. If secret ballot is good enough for the Dáil and the House of Commons, a secret ballot option here for voting for a two-thirds majority as one of the menu of options would be useful. Does it make a whole heap of difference to the public out there? Not necessarily at first sight, but, in terms of how the atmosphere in here works and how people's mandate is treated and counted, it makes a huge difference.

Ms Ennis: Following on from Pat's question at the start, I believe that we have gone beyond the public perception that this place is delivering for people. We know that there are parties in this place, particularly the DUP, that are not and have never been up for power-sharing. I note your response to Pat earlier, Arlene, but, even in recent times, we have seen DUP Members wearing it as a badge of honour and shouting across the Chamber, "We did not sign up to the Good Friday Agreement". Recently, we have had Paul Givan's remark that Sinn Féin is not his partner in government. I talked about the Speaker in my previous question, and we have seen the partisan way that the Speaker has acted. People see that this place is not delivering, as you said, Arlene, effective good governance. They see we that are not delivering on rights issues, and they see that there are issues of equality that are still not resolved. We do not have a bill of rights.

You said, Mark, that, for the British Government, the time is not right. It is never now, and it is always put on the long finger. The question is this: if we do not do meaningful reform, how long will it be until we get to the point where the public will start to talk about it and the pressure will start to come? The only real vehicle for reform is constitutional reform. What I am saying is probably more of a comment than a question. I know that Arlene will not agree with what I say —

Baroness Foster: No. [Laughter.]

Ms Ennis: — but I would be interested to know. If we continue to limp on and see the blockages in the delivery of rights and equality, if we do not have willing partners in the DUP, the public will look for the ultimate vehicle of reform, which is constitutional reform.

Mr Durkan: As I said in response to Pat, pursuing institutional reform to improve the performance of the democratic institutions here does not have to be at the cost of also legitimately pursuing the case for a change in constitutional status. That is my view. I am for both, to be upfront about it —

Ms Ennis: We are for both as well.

Baroness Foster: Well, I am not.

Mr Durkan: — just in case there would be any hiding of that. I make the point that those who continually resist any significant reform of the institutions here increasingly lead people to say, "Well, if institutional reform is not a goer, constitutional change is the only means whereby we can enhance our democratic self-actualisation as a people". Denial of institutional reform aids the argument for constitutional change. The argument for constitutional change does not rely entirely on the dysfunctionality that people associate with this place; it has entirely its own merits and legitimacy, as reflected in the original agreement. Those who oppose institutional reform need to consider where that drives other people.

Baroness Foster: Mark will forgive me if I say that that sounds very much like a threat. I hope it is not, because people need to find consensus on reform, and that should not be with a sword of Damocles held over us that, if it does not happen, it will inevitably lead to a particular course of action. The best way to flourish is for the United Kingdom to flourish and for Northern Ireland, within the United Kingdom, to flourish. That will always be my position, and I think we will finish there, Chair.

Mr Durkan: I just want to say that it was not a threat; it was an observation. It was no threat.

The Chairperson (Mr Buckley): In finishing, I thank you both for a two-hour session with the Committee. I did not expect that it would go on that long, but we very much appreciate it because neither of you are compelled to be here. You have both freely given of your time to help with the Committee's deliberations. In your own ways, you both articulately demonstrated the difference of opinion that there is surrounding systemic reform of agreements and what they mean.

I know that accusations have been made about different political parties, but I would genuinely say that there is a concern about whether future reform ultimately leads to greater stability or destabilises things in the longer term. That is a legitimate view for people to hold. You have drawn acutely to our minds the need to look further at the issues of institutional reform and — you both leant on this quite heavily — public service reform. That is certainly something that the Committee can take up.

We really value your time. I have no doubt that you will hear more from the Committee in the future about its deliberations. Thank you both very much.

Baroness Foster: I think that was a threat. [Laughter.]

Not you, him.

The Chairperson (Mr Buckley): That was the return serve.

Mr Durkan: Thanks for the warning.