Implementing the ‘Petition of Concern’ – A CAJ Briefing Paper Jan 2018 Guest Post by Daniel Holder

Background 

 The Petition of Concern mechanism has never been implemented as the Good Friday Agreement (GFA) and Northern Ireland Act (NIA) intend or require. This largely due to the way the Standing Orders of the Assembly have been drafted and applied;

 The Petition of Concern is linked to safeguards in the GFA relating to equality requirements, scrutiny against the European Convention on Human Rights/NI Bill of Rights, and the participation and protection of all parts of the community;

 The process required by the GFA/NIA is that when a Petition of Concern is tabled by 30 MLAs on a key decision a Special Procedure Committee is to be established to examine and report as to whether the decision is in conformity with equality requirements including the ECHR/NI Bill of Rights. (The only exception to this is when the Assembly votes on a cross community basis not to establish the Special Committee.) Following the Committee report a vote is then taken on a cross community basis;

 In practice this has never happened. No referral to the Special Procedure Committee has ever been made when a Petition of Concern has been tabled. The same Committee (known in Standing Orders as the Ad Hoc Committee on Conformity with Equality Requirements) can also be otherwise established, this has happened once by a bill committee (on the Welfare Reform Bill);

 The scrutiny role of the special Committee would currently be limited in the absence of legislating for the NI Bill of Rights. Unlike human rights committees in other legislatures (e.g. Westminster Joint Committee on Human Rights) there is also no formalised support structure in place for the
special committee;

 The provisions of the GFA and NIA are legally binding. The GFA provides for a review process of the Strand 1 institutions which can lead to changes to the mechanisms where there is agreement to do so. Significant discussion and negotiation has already take place on reform and alternatives, including a review further to the St Andrews Agreement which produced a 230 page report in 2014 on the Petition of Concern. There is no agreement on changes to the GFA. A voluntary Protocol was included in the Fresh Start agreement;

 The Petition of Concern has come into increasing disrepute given ironically its use to block equality and rights initiatives and for party political purposes. In the absence of consensus on an alternative, rather than overriding the GFA, the only viable course of action is the implementation of what was originally intended and is required by the GFA and NIA for the Petition of Concern, Special Procedure Committee and NI Bill of Rights. This would provide a significant measure of resolution to (but not eliminate) abuse of the Petition of Concern outside its original intentions.

 

The full CAJ briefing paper provides details of the Good Friday Agreement , St Andrews Agreement strand, Standing Orders at the NI Assembly and other mechanisms such as ‘Call in’ at Local Government Level,  after discussing  options the conclusions and observations can be found below:

 

Conclusions and Observations

 The provisions for the Petition of concern in the GFA and NIA are tied into the scrutiny of the Special Procedure Committee of key decisions in relation to their compliance with equality requirements including the ECHR/Bill of Rights, but in practice this has never been realised;

 This is largely due to the manner in which the Standing Orders of the Assembly have been drafted and applied. Standing Orders also do not provide for MLAs tabling a Petition of Concern to set out the concerns they are raising. This context has helped facilitate the Petition of Concern becoming a veto on any issue without reference to the Special Procedure on equality requirements. The Special Committee if properly convened, whilst not changing the ultimate determination of the decision by crosscommunity vote, would help highlight Petitions of Concern that had no merit in terms of engagement with equality requirements;

 The Role of the Special Committee in the application of its scrutiny tools would currently be restricted in the absence of the NI Bill of Rights and the provision of an effective operating model;

 The above can be remedied through changes to the Standing Orders / their application or codifying GFA provisions on the face of the NIA, and strengthened by the implementation of the NI Bill of Rights, and an effective operating model for the Committee. All of this however is known among parties and has been the subject of previous reviews and negotiations. The current blockage is not one of requiring new solutions but of political will to ensure implementation of existing provisions required by the GFA, in particular by the duty bearer, the UK government;

 Alternatives to the Petition of Concern can be considered in the context of review of Strand 1 of the GFA, but such reviews have already taken place and there is no consensus on changes. The original provisions are legally binding and regardless of political will it is the case that the current Standing Orders and their application is not in line with the GFA/NIA and
could be subject to challenge.

 

The 12 page CAJ briefing paper can be found on the CAJ website HERE