One Bill, Three Stories, Zero Changes

It’s not often we can accuse our legislators of being efficient but on Monday night they actually managed it when the rejection of an amendment designed to raise the age of criminal responsibility from 10 to 14 failed with the deployment of a petition of concern.

There are three stories in one here and you can’t really get more efficient than that.

Firstly, there was the amendment itself…

Alliance MLA Sian Mulholland proposed the amendment to the (Justice)Bill, which would have raised the age to 14 for most offences, with the age set at 12 for the most serious offences of murder, manslaughter and rape.

Northern Ireland’s age of criminal responsibility is currently set to 10, the same as in England and Wales. There is a campaign under way by the ‘Ten is too Young Coalition’ to raise that age.

On their website the Coalition describe themselves as

… a group of six leading organisations who have been working to raise the minimum age of criminal responsibility in Northern Ireland. We now have an opportunity to see meaningful change, after decades of calls. Let’s not lose this opportunity. Let’s raise the age.

The campaign argues that age of 10 is simply too low and they have good cause for saying so. In fact, our age of criminal responsibility is one of the lowest in Europe. Scotland and the Republic of Ireland have it at 12 (with some exceptions for the most severe crimes) whilst the UN Committee on the Rights of the Child recommends 14 (and this report from the committee goes into their reasoning).

Had the amendment become law, that UN endorsed age would have become our new minimum age of responsibility (again, pending exceptions for the worst acts).

In broad terms, I reckon most people would agree that a 10-year-old lacks the maturity, knowledge and understanding to be held criminally responsible. Any wrongdoing on their part therefore needs to be handled carefully and with sensitivity. I personally hold that view because it seems self-evident. Others likely disagree and I am happy to hold up my hands and say you can’t get more lay an opinion on this than mine but it does seem wrong to be able to hold someone that young to such a high level of accountability.

Some of those who disagreed are among our MLAs, and they were able to block consideration of the amendment. Which bring us to the second story, the misuse of the petition of concern, the mechanism by which the amendment was thwarted.

The SDLP says Stormont should be reformed. The Alliance party says Stormont should be reformed. Even Sinn Féin say now that Stormont should be reformed. The Ulster Unionist leader Jon Burrows (more on him later) has even said he is open to reforming Stormont.

But reforming Stormont is incredibly difficult because the mechanisms put in place by the Good Friday Agreement hand tremendous amounts of power to either the Unionist or Nationalist minorities within the legislature, allowing them to stymie change they don’t like.

I find this unsurprising of course, after all I have argued that Stormont is the way it is because it can effectively be no other way. Consociationalism, particularly in a society as divided as ours, is not meant to facilitate good government but to facilitate ANY government at all, no matter how dysfunctional it ends up being and ours has ended up being so very dysfunctional.

The petition of concern is more of a symptom of the problems embedded up on the hill rather than a cause. At this point we are all familiar with the issue. A mechanism designed to prevent the tyranny of the majority by allowing one of the two big designations within the chamber to block legislation has been perverted beyond its original intent. Rather than being used to stop laws that could negatively impact sections of the community, it has been turned into a hammer and anything that thirty MLAs from two parties within a designation dislike has become a series of nails.

An obvious solution would be to establish a process by which a petition, if submitted, could be evaluated to see whether it meets the criteria set out for which use of the petition was intended and thus whether it was valid. I was a bit surprised to find out that such a procedure actually exists within the Good Friday Agreement itself…

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 ECHR/Bill of Rights. The Committee shall have the power to call people and papers to assist in its consideration of the matter. The Assembly shall then consider the report of the Committee and can determine the matter in accordance with the cross-community consent procedure.
The above special procedure shall be followed when requested by the Executive Committee, or by the relevant Departmental Committee, voting on a cross-community basis.
When there is a petition of concern as in 5(d) above, the Assembly shall vote to determine whether the measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis, as in 5(d)(i) above, the special procedure shall be followed.

But it is never followed. The submission of the petition is itself enough to cause a measure to fail regardless of whether it falls within the scope of what the petition of concern was devised to deal with.

And most uses of the petition of concern are deployed by the Unionist bloc. There is an irony in this of course in that the petition’s origins likely lie in a desire from nationalist leaders back in 1998 (when they led a pronounced minority) to ward off domination from the then majority Unionist parties. But Unionist leaders already inhabited a state that their forefathers had done a great deal to build in their own image and to their liking. Whilst Unionism’s power has palpably waned in the decades since, the petition of concern has become a shield by which the instinctively conservative ideology can block and frustrate change it does not like. When Nationalists or the Alliance complain, the usual retort is some variation of the shoe being on the other foot, in reference to how Unionism was corralled in its days of majority.

Still, regardless of whether you feel turnabout is fair play, the fact remains the petition acts a brake on change and while it is only a symptom of our underlying problems, it’s a brutal one.

Which brings us to our third story, Jon Burrows, the split UUP and what it portends for the future of Unionism.

The only reason a petition of concern was submitted in the first place was because Jon Burrows and three other Ulster Unionist MLAs opted to sign it with him. Burrows is fresh from the public-relations disaster of Doug Beattie opting to quit the UUP, and it seems this particular vote was a point of contention between him and Burrows in his final weeks within the party. As the Newsletter reported last week, Beattie wished to raise the age of criminal responsibility to 12 rather than the 14 proposed by the Alliance amendment.

The UUP of course has eight MLAs, meaning that four opted not to follow Jon Burrows in signing the petition, which does seem to suggest there could be some truth to Beattie’s claims in his resignation letter that “MLAs were increasingly marginalised, ignored, isolated and discredited”. They may not be minded to do their leader any favours right now.

Furthermore, that Burrows signed this petition seems to indicate he is fully intent on fighting the next election on traditionally Unionist grounds, that is the same conservative approach espoused to different degrees by both the TUV and DUP. This portends that Unionism is consolidating on right-wing grounds and, sans an electoral pact, the three parties are likely to tear strips out of each other as they brawl over the same narrow pool of voters.

The justifications cited by the Unionist parties for thwarting the amendment seem to follow the same lines.

The DUP and TUV have framed it as a ‘law and order’ matter and have even worked in references to the recent riots. DUP leader Gavin Robinson was even quoted in the Newsletter as saying that

“Linking the move to the violence seen in the streets of Northern Ireland this week, Mr Robinson said raising the age would “remove any criminal justice response for young people who were involved in intimidating, attacking or burning their neighbours out of their homes”.

Jon Burrows framed his opposition as being based on how it would impact police investigations, saying that

“…that the ability of police to investigate crimes would be impacted by the changes – saying their ability to intervene, investigate, make arrests and use bail conditions if necessary would end.

He said under Alliance’s proposals, police could do nothing if a youth, one day short of his 14th birthday, committed a serious assault on a victim – as “it would not be a crime and the victim would get no justice whatsoever”.

Following the submission of the petition, Burrows denied that there were any ‘deals done’ in response to a challenge from Alliance deputy leader Eóin Tennyson. According to the BBC…

…the UUP leader described the proposed legislation as “ill-conceived” and denied any political deals were made to sign the petition. “We got the four signatures we needed and the Petition of Concern went through…There was no deals, no threats and no inducements…I used a legitimate tool to protect the most vulnerable in our society.”

So, there you have it. Three different angles from the same event. Whether you think the most important aspect was the failure to raise the Minimum Age of Criminal Responsibility to something a little more substantial than 10, or the demonstration of how the petition of concern has once again been abused to thwart something it was never intended to block, or the ongoing issues within the UUP as its leader moves rightward into an already crowded political space, that is in the eye of the beholder.