EC/14/09/3
EQUALITY COMMISSION FOR NORTHERN IRELAND
Petitions of Concern: Discussion paper
October 2014
Purpose
The purpose of this paper is to update Commissioners on
developments as regards Petitions of Concern, and to seek
Commissioners’ approval of proposed policy positions and next steps
following the publication of the Assembly and Executive Review
Committee’s (AERC) Review of Petitions of Concern1 (AERC Review).
Overview
On 25 March 2014, the Assembly and Executive Review Committee
(AERC) published its AERC Review.
It is clear from this Review that there was no consensus in relation to
a wide range of issues relating to the use of the Petition of Concern,
including whether or not it should be replaced by an alternative
mechanism.
This paper is proposing the adoption of a policy position following the
outcome of the AERC Review.
Action
Commissioners are asked to approve the proposed policy positions
and next steps.
1
AERC Review of Petitions of concern, 25 March 2014
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EC/14/09/3
EQUALITY COMMISSION FOR NORTHERN IRELAND
Petitions of Concern: Discussion Paper
October 2014
1
Executive Summary
1.1
On 14 January 2014, the Assembly and Executive Review
Committee agreed Terms of Reference for a Review of
Petitions of Concern.
1.2
As set out in the Terms of Reference, the Review considered
evidence on Petitions of Concern in relation to:
 provisions for voting on an Ad Hoc Committee on Conformity
with Equality Requirements prior to the vote on a Petition of
Concern.
 the possibility of restricting the use of Petitions of Concern to
certain key areas, and mechanisms that might facilitate this.
 whether the current threshold of 30 signatures required for a
Petition of Concern should be adjusted.
 whether the Petitions of Concern mechanism should be
replaced with an alternative mechanism, such as a weightedmajority vote.
1.3
On 25 March 2014, the Assembly and Executive Review
Committee (AERC) published its Review of Petitions of
Concern2 (AERC Review); and on 7 April 2014, the AERC
submitted its report to the Assembly.
1.4
In summary, the AERC Review concluded that : Whilst there was some support amongst the Committee,
there was ultimately no consensus on:
 taking a vote on the establishment of an Ad Hoc
Committee on Conformity with Equality Requirements
(ACER) only when a Petition of Concern relates to
legislation;
 restricting the use of petitions of concern to certain key
areas;
2
AERC Review of Petitions of concern, 25 March 2014
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 use of the alternative mechanism of a weightedmajority vote for matters subject to a Petition of
Concern
 the replacement of community designation and
petitions of concern by, for example a weighted
majority vote in the Assembly of 65%;
 the establishment of a Standing Committee on Equality
and Human Rights Conformity to replace the ACER.
 The Committee agreed that should the number of MLAs be
reduced, there should be a proportional change in the
number of MLA signatures required to trigger a petition of
concern; (currently the threshold is 30 MLAs or more).
1.5
It is unlikely that many of the issues considered in the AERC
Review will be considered by the Assembly again in the near
future.
1.6
However, evidence suggests that Petitions of Concern have
on occasion been used to apply to areas with no distinctly
‘unionist or nationalist’ aspect, with potential commensurate
negative impacts on steps to advance equality.
1.7
There is the also the possibility that Petitions of Concern will
be used again in the future by political parties in a similar
manner.
1.8
It is therefore recommended that the Commission adopts
the following policy position to inform any relevant
engagement:
 We are concerned that the Petition of Concern has on
occasion been used by political parties to apply to areas
with no distinctly ‘unionist or nationalist’ aspect, with
potential commensurate negative impacts on steps to
advance equality; such as the debate on same- sex
marriage.
1.9
In terms of next steps, if the above policy position is agreed
by Commissioners, it is proposed that the Commission will
raise its concerns, where appropriate, with political parties;
including as part of the Commission’s ongoing engagement
with political parties.
2
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2
Background
2.1
The Assembly and Executive Review Committee (AERC) is a
Standing Committee of the Northern Ireland Assembly that
was established to:
 make a report to the Secretary of State, the Assembly and
the Executive Committee, by no later than 1 May 2015, on
the operation of Parts III and IV of the Northern Ireland Act
1998; and
 consider such other matters relating to the functioning of
the Assembly or the Executive as may be referred to it by
the Assembly.
2.2
As set out in the Terms of Reference, the Review considered
evidence on Petitions of Concern in relation to:
 provisions for voting on an Ad Hoc Committee on
Conformity with Equality Requirements prior to the vote on
a Petition of Concern.
 the possibility of restricting the use of Petitions of Concern
to certain key areas, and mechanisms that might facilitate
this.
 whether the current threshold of 30 signatures required for
a Petition of Concern should be adjusted.
 whether the Petitions of Concern mechanism should be
replaced with an alternative mechanism, such as a
weighted-majority vote.
2.3
The AERC considered relevant sections of the evidence
received from its previous Review of D’Hondt, Community,
Designation and Provisions for Opposition, as part of this
directly addressed the Review of Petitions of Concern. One
of the conclusions in the Committee’s Report on this Review
stated that ‘further detailed work on Petitions of Concern
needs to be carried out’. The Committee also commissioned
and considered three Assembly Research Papers3 that
3
See Assembly Research paper, Human Rights and Equality Proofing of Public Bills, 10 February
2014, M Potter, T Moore and J Campbell; Assembly research paper , Additional Information on
Petitions of Concern , 2 May 2013, R McCaffrey; and “Standing committees that examine the
conformity with human rights and equality issues in legislatures in the UK and Ireland”, Jan 2014,
Assembly Research paper, M Potter.
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informed Members’ discussions and views on the issues
arising from this Review.
2.4
On 25 March 2014, the AERC published its Review of
Petitions of Concern4 (AERC Review). The AERC submitted
its report to the Assembly on 7 April 2014.
2.5
It will be noted that the Commission did not submit evidence
to the AERC in response to its call for evidence in relation to
the review of petitions of concern.5
Overview: Petitions of concern: framework
2.6
Certain “key decisions” in the Assembly are made on the
basis of “cross-community consent”, requiring either; a
majority of designated Unionists and Nationalists, as well as
a majority in the Assembly; or a weighted majority of 60% of
members, including at least 40% each of designated
Unionists and Nationalists.6
2.7
In addition, any Assembly decision may be subjected to the
cross-community consent decision rules where a Petition
of Concern is brought by at least 30 MLAs.
2.8
In other words, any vote taken by the Assembly can be
made dependent on cross-community support if a Petition of
Concern is submitted.
2.9
The Assembly operates a community designation
procedure whereby each MLA is free to designate
themselves as nationalist, unionist or ‘other’; the only
4
AERC Review of Petitions of concern, 25 March 2014
There were 22 responses to the call for evidence. Oral evidence was heard from academics
including Professor Rick Wilford QUB, Professor Christopher McCrudden University of Oxford,
Professor Brendan O’Leary University of Pennysylvania, Professor Derek Birrell University of Ulster,
Professor Yvonne Galligan QUB and Dr Robin Wilson and Ms Eileen Cairnduff from Platform for
Change).
5
6
In particular, certain decisions, including electing the Speaker and Deputy Speakers, changing
standing orders, excluding a Minister from office, and decisions on financial matters, all require
cross-community support. This can be achieved by parallel consent (the support of over 50
percent of all those voting*, including over 50 percent of both designated Nationalists and
designated Unionists) or by weighted majority (which requires the support of 60 percent of
those voting, including 40 percent of designated Nationalists and 40 percent of designated
Unionists). As cited in NI Assembly Glossary
See http://education.niassembly.gov.uk/post_16/glossary . See also Petitions of Concern, Dr. Alex
Schwartz, QUB, Knowledge Exchange Seminar Series (KESS series), 20 March 2014.
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requirement being that no Member may change their
designation more than once during an Assembly session. It
will be noted that the community designation system has
been criticised by some parties as entrenching sectarian
divisions,7 and it has been argued that the cross-community
decision rules are unfair to those who do not identify with
either of the two main communities.
2.10
As a Petition of Concern must be brought by 30 or more
MLAs, the DUP is currently the only party in the Assembly
which has a sufficient number of MLAs (38) to allow it to
bring a Petition of Concern based on support of Members
within a single party. Sinn Fein, which currently has 29
Members, requires support from Members from another party
in order to enable it to bring a Petition of Concern.
2.11
The Petition of Concern mechanism was introduced by the
Good Friday Agreement8 (GFA) as a safeguard in order to
ensure that all sections of the community could participate in
the new institutions.
2.12
The GFA also indicated that the Assembly may appoint a
“special committee to examine and report on whether a
measure or proposal for legislation is in conformity with
equality requirements, including the European Convention on
Human Rights (ECHR)/Bill of Rights”.9
2.13
Pursuant to the GFA, the Assembly was granted the power
to establish an Ad Hoc Committee on Conformity with
Equality Requirements (ACER) “to examine and report on
whether a Bill or proposal for legislation is in conformity with
equality requirements (including rights under the European
Convention on Human Rights or any Bill of Rights”10.
7
The Alliance party has consistently criticised the community designation procedure and
recommended that the system is replaced by a weighted majority voting on key issues. It will be noted
that Professor Chris Mc Crudden’s evidence to the committee was of the view that the relevant case
law of the European Court of Human Rights “poses no threat to the requirement of parties to choose a
designation in the Assembly”.
8
Good Friday Agreement 10 April 1998
9
See paragraph 12 thereof. In addition it stated that when there is a petition of concern, the Assembly
shall vote to determine whether the measure may proceed without reference to the special
procedure (ie the special committee). If it fails to achieve support on a cross-community basis, the
special procedure must be followed.
10
Under Standing Order 60
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2.14
Assembly Standing Order 60 also made it clear that where
there is a Petition of Concern, the Assembly shall vote to
determine whether the measure or proposal for legislation
may proceed without reference to the above procedure11,
and that if this fails to achieve support on a parallel consent
basis, the procedure must be followed.
2.15
An ACER has only been established once; namely an Ad
Hoc Committee was established to consider whether the
provisions of the Welfare Reform Bill were in conformity
with the requirements for equality and human rights.12
Concerns regarding the use of Petitions of
Concern
2.16
An Assembly Research paper13 in May 2013 highlights that
29 Unionist, 25 Nationalist and 2 joint Unionist/Nationalist
Petitions of Concern have been submitted between 1998 and
2013. It will be noted that almost half of petitions submitted
against legislation related to the Caravan Bill (about licensing
of Traveller sites) and the Justice Bill (about abortions in
private clinics).
2.17
More recently, Petitions of Concern have been submitted in
relation to an Assembly debate on same-sex marriage14.
Petitions of Concern in the past have been submitted in
relation to other issues such as; a call for an Inquiry into
allegations of wrongful political interference in the NIHE
(2013); commitment to inclusivity, mutual respect, peace and
democracy (2013); murder of Pat Finucane (2011); Irish
Language Strategy (2010); display of Easter Lilies in
Parliament buildings (2001); and the flying of Union flag
(2000).
11
The procedure being that an ACER would be established to examine and report on its conformity
with equality requirements.
12
See Assembly Research paper, Human Rights and Equality Proofing of Public Bills, 10 February
2014, M Potter, T Moore and J Campbell. It will be noted that the Equality Commission submitted
evidence to this committee and its final report was debated in Plenary on 29 January 2013.
13
Assembly research paper , Additional Information on Petitions of Concern , 2 May 2013, R
McCaffrey
14
Assembly debated the issue for the third time in April 2014. A total of 51 MLAs voted against the
Sinn Fein motion, whilst 43 MLAs voted in favour. The DUP tabled a petition of concern ensuring that
the motion would be blocked under the Northern Ireland Assembly Cross-Community voting rules. It
will be noted that when it came to the vote, the DUP did not need to depend on their veto, as the
‘no camp’ had a majority of 8 over the supporters of same-sex marriage.
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2.18
Some parties, for example, the TUV and UUP, raised
concerns as part of the AERC Review, that the petition of
concern mechanism was being used on an increasingly
frequent basis. However, academics, for example,
Professors McCrudden and O’Leary, argued that the
procedure had been used “relatively sparingly”; though they
did observe that it had “occasionally been abused to block
decisions which had nothing to do with community-specific
vital nationalist or unionist interests”. 15
2.19
Dr. Alex Schwartz of QUB in his ‘think piece’ on Petitions of
Concern (2014)16 highlights that one criticism raised as
regards Petitions of Concern was that “because the Petition
of Concern can be applied to any decision, it threatens to
impede the productivity of the Assembly in ways that cannot
be precisely anticipated”. 17
2.20
As regards this criticism, he concludes that “although we
cannot know the true extent to which the Petition of Concern
has had a chilling effect on legislative decision-making, it is
also worth noting that the Assembly’s legislative output
compares favourably with its counterpart in Scotland.”18
2.21
However, he makes it clear that although the Petition of
Concern has “not yet paralysed Assembly, the veto is open
to abuse and so the worry is that there is nothing to prevent it
from being employed increasingly to obstruct the “normal”
work of the Assembly in the future”.19
2.22
He points to the use of Petitions of Concern and states that
“the purpose of a consociational veto power is to protect
distinctive group interests, in the case of Northern Ireland,
the distinctive ethno-national interests of the two main
communities.” 20He was of the view that on occasion it had
been used where ‘there is no distinctly unionist or nationalist
aspect’ and that it is capable of a being used to block
15
See Minutes of evidence to AERC Review of Professors C McCrudden and Professor B O’Leary on
5 March 2013, cited at page 11 of the Review.
16
Petitions of Concern, Dr. Alex Schwartz, QUB, Knowledge Exchange Seminar Series (KESS
series), 20 March 2014.
17
18
Ditto see page 2 thereof
Ditto see page 3 thereof
19
20
Ditto
Ditto.
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decisions which have nothing to do with community specific
interests.
2.23
He states that the Petition of Concern has ‘occasionally been
abused in this way’ and that “Nationalists, Unionists and
even the “Others” have all been guilty of tabling pseudoPetitions of Concern on occasion.” He refers, in particular, to
the Sinn Fein /Alliance/ Green Party petition of concern about
the Justice Bill (about private abortions); and DUP petitions
of concern in relation to same-sex marriage and the Planning
Bill (on amendments to set up a third party right of appeal).21
2.24
It is clear from the AERC Review, that there was no
consensus as to how any abuse of petitions of concerns
could be addressed, or in fact whether the procedure needed
to be changed at all. It will be noted that Dr. Alex Schwartz
states:
“There is also a plausible argument that it is better to leave
well enough alone on the grounds that the defects of the
existing procedure are not sufficiently serious to warrant any
reform.”22
Replacement of community designation
2.25
It will be also noted there was no consensus for a
replacement of community designation by, for example a
weighted-majority vote in the Assembly of 65%. The Alliance
indicated it “would prefer the introduction of an Assembly
voting system for cross-community matters based on
weighted-majority.”23 The DUP favoured a weighted-majority
voting of around 65%, resulting in an end to community
designation. A move away from community designation was
supported by a range of parties including the UUP, DUP,
Alliance Party and Green Party. Support for the retention of
community designation came from Sinn Fein and the SDLP.
21
Ditto. See page 4 thereof.
Ditto. See page 7 thereof
23
See the Alliance response to the Call for Evidence as cited at page 13 of AERC Review.
22
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Assembly Standing Committee on equality and
human rights conformity
2.26
The AERC Review also considered the possibility of creating
an Assembly Standing Committee on equality and
human rights conformity, rather than creating an Ad Hoc
Committee each time the Assembly votes on the
establishment of an ACER.
2.27
The AERC took into account a recent Assembly research
paper (2014)24 on Standing Committees that examine
conformity with equality and human rights issues in
legislatures in the UK and Ireland. This highlighted the remit
and role of Standing Committees in the UK and Ireland which
were responsible for examining conformity with human rights
and equality issues, as well as the membership of these
Committees and their main processes.
2.28
As regards the different approaches taken, the paper
highlighted the role and work of the specialised Westminster
Joint Committee on Human Rights. There are also
Committees within the Scottish Parliament25, National
Assembly for Wales26 and the Oireachtas27 that to varying
degrees examine issues around equality and human rights.
2.29
The research paper makes it clear that there are no directly
comparable committees in any other legislature in the UK or
the Republic of Ireland which have a remit similar to the
Westminster Joint Committee on Human Rights28; nor is
there provision elsewhere for the establishment of an Ad hoc
24
“Standing committees that examine the conformity with human rights and equality issues in
legislatures in the UK and Ireland”, Jan 2014, Assembly Research paper, M Potter.
25
For example, the Scottish Parliament has an Equality Opportunities Committee (EOC). The EOC
has a remit to consider matters of discrimination relative to sex or marital status, race, disability, age,
sexual orientation, language, social origin or other personal attributes. Further the Justice Committee
of the Scottish Parliament is mandated to scrutinise human rights issues; though a independent report
in 2012 has recommended it is replaced by a Human Rights Committee.
26
The National Assembly for Wales has a Communities, Equality and Local Government
Committee. Its remit encompasses Wales culture, languages, communities and heritage, including
sport and the arts, local government in Wales including all housing matters and equality for all. It also
has a Constitutional and Legislative Affairs Committee.
27
The Oireachtas has a Defence, justice and equality Committee. This plays a major role in shaping
opinion and policy in the fields of justice, security, the rule of law, equality, defence and immigration. It
also has a Committee on Foreign Affairs and Trade that lists as one of its roles “the protection and
promotion of human rights”.
28
It will be noted that the remit of the Westminster Joint Committee on Human Rights relates to
matters relating to human rights in the UK (except individual cases).
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Committee on Conformity with Equality Requirements
(ACER), as provided for within the Northern Ireland
Assembly.
2.30
It is clear from the AERC Review that both the Alliance Party
and Sinn Fein expressed interest in the possibility of creating
an Assembly Standing Committee on equality and
human rights conformity, rather than an Ad Hoc
Committee each time the Assembly votes on the
establishment of an ACER.29
2.31
Commissioners will be aware, as also set out in an Assembly
research paper (2014) on Human Rights and Equality
proofing of public bills, that there are a number of legal
provisions which currently ensure that consideration of
human rights and equality issues are integral to the policy
and pre-legislative development phase of any Bill.30 For
example,
 Further to requirements under Section 75 of the Northern
Ireland Act 1998, Departments are required to carry out
equality proofing of all policy, including legislation through
the processes of “screening” and if required “equality
impact assessments”.
 In addition, as the Human Rights Act 1998 places a duty
on public authorities not to undertake actions in
contravention of the ECHR, a Minister is bound to human
rights compliance when introducing legislation.31
 Under the Northern Ireland Act 1998, subordinate
legislation must be compatible with Convention rights or
EU law. It will be noted that under the Northern Ireland
Act, legislation cannot be passed that discriminates on the
grounds of religious belief or political opinion.
 Further, the Assembly Statutory Committees may
consider equality and human rights issues as part of any
pre-legislative scrutiny.
29
AERC Review of Petitions of concern, 25 March 2014, see page 19.
See Assembly Research paper Human Rights and Equality proofing of public bills, 10 February
2014
31
Ditto
30
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2.32
The Assembly research paper notes that human rights
compliance, whilst cross-cutting responsibility across all
government Departments, is ultimately the responsibility of
OFMDFM and therefore falls within the scrutiny remit of the
OFMDFM Assembly Committee.
2.33
It is important to note that in its conclusions, the AERC noted
that whilst there was some support for the establishment of a
Standing Committee on equality and human rights conformity
to replace the Ad Hoc Committee mechanism there was no
consensus on this issue.
3
Proposed Recommendations
3.1
As highlighted above, it is not likely that many of the issues
considered in the AERC Review will be considered by the
Assembly again in the near future.
3.2
In particular, it is unlikely the Assembly will consider in the
near future whether or not the Petition of Concern process
should be replaced by an alternative mechanism, or whether
or not a Standing Committee on equality and human rights
conformity should replace the Ad Hoc Committee
mechanism.
3.3
However, evidence suggests that Petitions of Concern have
on occasion been used to apply to areas with no distinctly
‘unionist or nationalist’ aspect, with potential commensurate
negative impacts on steps to advance equality.
3.4
There is the also the possibility that Petitions of Concern will
be used again in the future by political parties in a similar
manner.
3.5
It is important to stress that the degree to which equality is
advanced is dependent on a wide range of factors; and is
not simply reliant on the outcome of debates within the
Assembly. In particular, even if the Assembly agrees that
action is needed to promote equality it does not necessarily
mean that such action will be taken.
3.6
For example, even though an Assembly debate in May 2009
showed clear support for the reform of the race equality
legislation across the political spectrum, aimed at
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strengthening protection against discrimination for BME
people in Northern Ireland, limited progress has been made
to date in bringing forward reform in this area.32
3.7
Further, Commissioners will note that the main impact of a
political party lodging a Petition of Concern is that any
Assembly decision under consideration is subjected to the
cross-community consent decision rules; rules which
normally only apply to certain ‘key decisions’.33
3.8
It is therefore recommended that the Commission adopts
the following policy positions:
 We are concerned that the Petition of Concern has on
occasion been used by political parties to apply to areas
with no distinctly ‘unionist or nationalist’ aspect, with
potential commensurate negative impacts on steps to
advance equality; such as the debate on same sex
marriage.
4
Next Steps
4.1
If the above policy position is agreed by Commissioners, it is
proposed that the Commission will raise its concerns, where
appropriate, with political parties; including as part of the
Commission’s ongoing engagement with political parties.
5
Action
5.1
Commissioners are asked to approve the proposed policy
position and next steps.
Roisin Mallon
Policy & Research Team
October 2014
32
33
See NI Assembly debate on 26 May 2009. http://www.theyworkforyou.com/ni/?id=2009-05-26.12.1
See paragraphs 2.6-2.9 above.
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