Assembly’s ‘consent’ for National Crime Agency Order is a challenge to the Speaker

In a Parliamentary written answer last week (16 March), the Secretary of State gave an update on the progress of the Draft Order in Council which will extend the operation of the National Crime Agency to Northern Ireland.  Here’s what Teresa Villiers said.

The Northern Ireland Assembly recently agreed to the making of an Order which will enable the National Crime Agency (NCA) to be fully operational in Northern Ireland. That Order has been considered by Committees in both the House of Commons and the House of Lords on 10th March and will be made before dissolution, subject to the approval of both Houses.

The use of “agreed” may be significant.  Because the Draft Order itself states

In accordance with paragraph 6(1) of Schedule 24 to that Act, and paragraphs 6(1) and 13(1) of Schedule 25 to that Act, the Northern Ireland Assembly has consented to the making of transferred provision (as defined in that Act) by this Order. [added emphasis]

In these circumstance, ‘consent’ is a very specific thing.

So much so that the issue of the NI Assembly’s consent was raised, not in the House of Commons Committee debate, but in the House of Lords on the 10 March by the Labour Lord Rosser.

Paragraph 7.1 is on the policy background to the issues that arose when we were discussing the 2013 Act, because the Northern Ireland Assembly would not pass a legislative consent Motion in respect of the provisions relating to the operation of the NCA in Northern Ireland. I just ask for confirmation—I think that this is what all the information in front of me implies anyway—that there are now no problems with any of the parties in Northern Ireland on that issue. Are they all at one with the road that we are going down as far as this order is concerned?

Paragraph 7.1 relates to the Explanatory Memorandum for the Draft Order in Council.

7.1 During the Parliamentary stages of the Bill that became the 2013 Act it became clear that the Northern Ireland Assembly would not pass a Legislative Consent Motion in respect of provisions relating to the operation of the NCA in Northern Ireland, and the granting and extension of certain functions under POCA. In light of this, the Bill was amended to provide that those provisions would not extend to Northern Ireland. The Bill was also amended to create mechanisms to extend those provisions to Northern Ireland at a later date once consent had been achieved, with any necessary modifications.

The answer given, by Baroness Williams of Trafford, was, I would argue, economical with the actualité

The noble Lord also asked about the Northern Ireland Assembly’s consent. Consent to this order was given on 3 February, as was required by the Crime and Courts Act, with Sinn Fein voting against the action to give consent.

The issue of consent is important, and significant, because the Bill in question sought to legislate on powers that have been devolved to the Assembly – in this case the power to act as a police officer.

The granting of consent for the UK Parliament to legislate on devolved powers, and the relationship between devolved administrations and central Parliament, is governed by the Sewel Convention.

All devolved administrations in the UK use Legislative Consent Motions to grant that consent.  As the Scottish Government’s website notes

Therefore, if it is proposed that a Bill at Westminster should contain provisions that fall within any of those categories (or any combination of them), there needs to be a mechanism for giving the Scottish Parliament an opportunity to indicate whether or not it gives its consent. That mechanism, regardless of the category or categories of provision in question, is known generically as a Legislative Consent Motion (formerly known as a ‘Sewel Motion’ after Lord Sewel, the UK Government Minister who, during the Parliamentary passage of the Scotland Act, gave a commitment that “Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”).

The same procedure exists in Wales. As the Scottish Parliament website adds on Scrutiny of Legislative Consent Motions

Under an agreement known as the ‘Sewel Convention‘, the UK Parliament will not pass Bills that contain relevant provisions without first obtaining the consent of the Scottish Parliament. The consent itself is given through a motion (a Legislative Consent Motion) which is taken in the Chamber but the detailed scrutiny is undertaken by a Scottish Parliament committee on the basis of a memorandum. On occasion, a memorandum is lodged which invites the Parliament to note that the Scottish Government does not intend to lodge a legislative consent motion on a particular Bill. [added emphasis]

Similarly, specific requirements exist for Legislative Consent Motions in the NI Assembly’s Standing Orders

42A. Legislative Consent Motions

(1) A legislative consent motion is a motion which seeks the agreement of the Assembly to the United Kingdom Parliament considering provisions of a Bill which deal with a devolution matter.

(2) A legislative consent memorandum shall be laid in respect of any devolution matter for which a legislative consent motion is proposed.

(3) A legislative consent memorandum may include the Bill and any explanatory notes attached to the Bill and shall include—

(a) a draft of the legislative consent motion;

(b) sufficient information to enable debate on the legislative consent motion;

(c) a note of those provisions of the Bill which deal with a devolution matter; and

(d) an explanation of—

(i) why those provisions should be made; and

(ii) why they should be made in the Bill rather than by Act of the Assembly.

(4) The Minister whom the devolution matter concerns shall, normally not later than 10 working days after the relevant day, either—

(a) lay a legislative consent memorandum before the Assembly; or

(b) lay a memorandum before the Assembly explaining why a legislative consent motion is not sought. [added emphasis]

(5) A member of the Assembly other than the Minister whom the devolution matter concerns may lay a legislative consent memorandum but shall not do so until—

(a) the Minister has laid a legislative consent memorandum under paragraph (4)(a);

(b) the Minister has laid a memorandum under paragraph (4)(b); or

(c) the 10 working days provided for in paragraph (4) have expired.

(6) Upon a legislative consent memorandum being laid before the Assembly, those provisions of the Bill dealing with a devolution matter shall stand referred to the appropriate statutory committee unless the Assembly shall order otherwise.

(7) The committee may, within 15 working days from the date of referral, consider those provisions of the Bill which deal with a devolution matter and report its opinion thereon to the Assembly. [added emphasis]

(8) A legislative consent motion shall not normally be moved until at least—

(a) 5 working days after publication of the committee report; or

(b) 20 working days after the date of referral to the committee.

(9) A subsequent legislative consent motion may be moved if appropriate, having regard to the nature of any amendment dealing with a devolution matter made, or proposed to be made, to the Bill. Paragraphs (4) to (8) shall not apply to that motion.

(10) In this order a “devolution matter” means—

(a) a transferred matter, other than a transferred matter which is ancillary to other provisions (whether in the Bill or previously enacted) dealing with excepted or reserved matters;

(b) a change to—

(i) the legislative competence of the Assembly;

(ii) the executive functions of any Minister;

(iii) the functions of any department.

(11) In this order the “relevant day” means—

(a) in respect of a Bill other than a Private Member’s Bill—

(i) the day the Bill is introduced in the United Kingdom Parliament; or

(ii) the day the Bill completes the stage in the United Kingdom Parliament during which an amendment is made to the Bill which makes it a Bill to which this order applies;

(b) in respect of a Bill which is a Private Member’s Bill—

(i) the day the Bill completes the first stage at which it may be amended in the House of the United Kingdom Parliament in which it was introduced; or, if later,

(ii) the day the Bill completes the stage in the United Kingdom Parliament during which an amendment is made to the Bill which makes it a Bill to which this order applies.

(12) This order does not apply in respect of Bills which are consolidation Bills or Statute Law Revision Bills.’

The key feature of the Legislative Consent Motion is the “detailed scrutiny” by the relevant Committee of the devolved administration of the provisions of the proposed Bill, on the basis of the legislative consent memorandum.  The Assembly may choose not to avail of that scrutiny, but only “Upon a legislative consent memorandum being laid before the Assembly”.  In Wales, even a Consent Motion requires a memorandum.

The NI Justice Committee is no stranger to Legislative Consent Motions.  They reported on one relating to the Serious Crime Bill in November 2014.

That has not happened in this case.

When the original Bill was under consideration, the NI Assembly was treated to a debate on a private member’s motion (4 Feb 2013).

That this Assembly supports a Legislative Consent Motion in relation to the Crime and Courts Bill to give effect to the proposed National Crime Agency operating in Northern Ireland; and calls on the Minister of Justice to progress this as a matter of urgency.

It’s worth highlighting the fact that the motion, in 2013, called for a Legislative Consent Motion to be brought forward to the Assembly as a matter of urgency.

During the debate the proposer, the UUP’s Tom Elliot, told the chamber

Her Majesty’s Government of the United Kingdom are bringing through legislation to have a National Crime Agency.  The Ulster Unionist Party believes that this is vital to fight the entire crime organisation not only in the United Kingdom or in Northern Ireland but internationally and throughout the world.  This is a fight against serious and organised crime.  I know — at least I have been informed — that there have been attempts to bring a legislative consent motion to the Executive and that those attempts have failed. [added emphasis]

At the time both Sinn Féin and the SDLP opposed the motion and, with a petition of concern in place, the question was accordingly negatived (on a cross-community vote).

The following day, 5 Feb 2013, the former NIO Minister, Labour MP David Hanson, incorrectly told the House of Commons Public Bill Committee,

Yesterday, as you may be aware, the Northern Ireland Assembly considered the legislative consent motion in relation to the Bill, part 1 of which gives effect to the National Crime Agency—we considered that last week. The Northern Ireland Assembly voted 56 for and 39 against endorsing that legislative consent motion, but the vote was on a cross-community basis and the majority of nationalist and Unionist votes was not met, so that motion has not yet been carried, which has serious implications for our consideration of part 1.

As I pointed out, there was no Legislative Consent Motion for the NI Assembly to consider in 2013.

David Hanson went on to say

My point of order relates to how the Government will ensure that the end result is not just that the legislative consent motion is amended or carried, but that that is done to the satisfaction of all parties in the very fragile situation of the Northern Ireland Assembly. There is a clear division, and I want to know from the Minister, through you, Mr Caton, which Department—the Northern Ireland Office or the Home Office—is taking that matter forward and how it intends to do so.  [added emphasis]

Whatever amendments the Minister tables to give effect to the operation of the National Crime Agency in Northern Ireland, the principal point is that several parties in Northern Ireland currently do not wish it to operate, which is why they have refused legislative consent. That has implications not just for the operation of the National Crime Agency, but for relations about the operation of the Northern Ireland Assembly.

When the SDLP changed its position on the National Crime Agency – on the basis of the increased scrutiny provided in the Draft Order in Council, if not increased accountability – Sinn Féin was still able to prevent a Legislative Consent Motion being brought to the NI Executive, and from there to the NI Assembly.

So, instead of the required Legislative Consent Motion, the NI Assembly debated another Private Members’ Motion (3 Feb 2015).

That this Assembly consents to the making of the draft Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015 laid before Parliament on 29 January 2015.

There was no mention of a Legislative Consent Motion, and no sign of a Legislative Consent Memorandum.

At the start of Assembly Business on the 3 February, 2015,  Sinn Féin sought a ruling from the Speaker [Mitchel McLaughlin].

Ms Ruane: On a point of order, a Ceann Comhairle. Can you clarify that the motion before the House on the NCA is a private Member’s motion; it is not, in fact, a legislative consent motion or, indeed, an Assembly consent motion under Standing Order 42.

Mr Speaker: Yes. The description of a motion has to be precise, and I have to satisfy myself about that. It is neither a legislative consent motion nor an Assembly consent motion. It is, in fact, a private Member’s motion. On that basis, I considered whether it was legal and within the competence of the Assembly, and I have so decided. [added emphasis]

Ms Ruane: Further to that point of order, a Ceann Comhairle, can you confirm that there is no such motion under Standing Orders as an Assembly consent motion?

Mr Speaker: I do not know the minds of Members: how would I? I dealt with the motion as presented and agreed at the Business Committee. I am satisfied that it is competent; that is as far as my responsibility goes. If anything else is put before me, I will give it the same due consideration. I do not intend to take any further points of order on this matter or to go into detail about the terms of the motion, the relevance under Standing Orders or the procedural approach. I have ruled that this motion is competent. It is now a matter for the Assembly to decide in due course. Let us move on.
During the debate it became clear that the original intention had been for the NI Justice Minister to bring a [Legislative Consent] motion to the NI Assembly.  It’s worth quoting the exchange between Sinn Féin Raymond McCartney and the Justice Minister, Alliance Party’s David Ford.  Raymond McCartney returns to the issue of the Legislative Consent Motion.

Mr McCartney: Go raibh maith agat, a Cheann Comhairle. Gerry Kelly dealt with the wider issues of this particular motion. I am very mindful of the fact that Caitríona Ruane made a point of order this morning, and we accept the competency of the motion. However, I want to outline aspects of this important matter that have been brought to the Assembly for a decision that, in my party’s opinion, are questionable and inappropriate. The established mechanism, as laid out in Standing Orders and based on the principles underpinning the Good Friday Agreement, that permits Westminster legislation to take effect here is a legislative consent motion (LCM). Those structures were designed to ensure effective protections, accountability and the primacy of the Assembly. Indeed, the Minister previously tried to bring an LCM to deal with the role and remit of the NCA in this jurisdiction. The route for bringing that to the House is by Executive approval. In particular, Executive approval is sought if a matter is considered significant, controversial or falling outside the Programme for Government. I contend that many people would see the remit of the NCA as significant and, indeed, controversial. It certainly is not in the Programme for Government. That process may not be to the liking of the Minister and those who rushed to have the NCA in place, irrespective of the impact that it will have on accountable policing, good governance and how the Assembly should do its business. However, that process has been circumvented by the Minister bypassing the Executive and the LCM process. [added emphasis]

Mr Ford (The Minister of Justice): Will the Member give way?

Mr McCartney: No, I will not give way. You will have an opportunity and can address all the questions that I will put.The route chosen is now the one before us, and that is the one that we will vote on today. I want to outline how this has been brought to the Assembly in, in my opinion, a clumsy and damaging manner. The British Government laid an order in their Parliament on 29 January 2015. Paragraph 7.2 of the explanatory notes, which is policy background, states:

“David Ford MLA, the [NI] Justice Minister, laid a motion before the … Assembly on 27 January … [The text of the motion reads: —”
Mr Ford: On a point of order, Mr Speaker. Mr McCartney is reading from an early inaccurate draft of the explanatory memorandum, and it is inappropriate that he should make an argument on that basis. The correct explanatory memorandum makes it absolutely clear that the motion has not been tabled by the Minister.

Mr McCartney: The Minister finds himself guilty before I make the case.

“[The text of the motion reads: ‘That this Assembly consents to the making of the draft Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) [(NI)] Order 2015, laid before Parliament on 29 January 2015.’ ]”.

Paragraph 7.3 outlines the relevant NCA provisions and states that they are:

“consistent with the … motion laid before the … Assembly … by David Ford MLA”.

Mr Ford: On a point of order, Mr Speaker. I have corrected Mr McCartney. Is it appropriate that he should continue to repeat the inaccurate early version that was subsequently corrected and that is available in the Assembly Library for all Members?

Mr Speaker: The point has been made for the record, and I think that it is appropriate that it should be. I think that it is also appropriate to remind ourselves that we are talking about a private Member’s motion. To allege that the Justice Minister has any direct association with that would, at the very least, require that you demonstrate that. We know who co-signed the motion, and it was not the Minister of Justice, no matter what suspicions or beliefs that you have or any quotation of similar text. Let us deal with the facts and the motion that is before us, please.

Without sufficient numbers to secure a petition of concern Sinn Féin were unable to block the motion in the Assembly via a cross-community vote – in the way they could block the Executive from forwarding a Legislative Consent Motion to the Assembly for a decision – and the question was accordingly agreed.

However, as the Speaker ruled at the start of Assembly Business,

 It is neither a legislative consent motion nor an Assembly consent motion. It is, in fact, a private Member’s motion.

And, having ruled that it was “neither a legislative consent motion nor an Assembly consent motion“, the Speaker now has a responsibility to ensure that it is not allowed to be interpreted as used in place of the Assembly’s consent for the Order in Council.

Otherwise, the NI Assembly Standing Orders can be rewritten to reflect the fact that Legislative Consent no longer requires detailed scrutiny, a specific motion, nor a memorandum from the relevant minister.

The Speaker can also update the other devolved administrations of the new dispensation.  As the NI Assembly website notes

The Speaker has the primary role in maintaining and developing the links the Assembly has established with the Westminster legislature and with the other devolved legislatures in Scotland and Wales…

And, while he’s at it, he can explain why his rulings are being ignored by the UK Government…