One of the primary functions of MLAs is to hold the Executive to account by scrutinising its actions. This is especially important in Northern Ireland because up until 2016 there was a lack of an official opposition in the Assembly and because nearly all parties in the Assembly are represented in government. Many would argue that MLAs have been very successful holding the Executive to account, and that they have become less partisan in the years since 2007.
In examining this view, a good place to start is how MLAs can use debates and questions. The constitutional arrangements in place provide ample opportunities for MLAs to be effective scrutinisers through debates and questions. To fulfil its function to scrutinise the Executive, it is important for the Northern Ireland Assembly to question Ministers about their areas of responsibility. These questions ensure that Ministers explain their work, policy decisions and the actions of their Departments.
There are four types of question: Questions for Oral Answer; Questions for Urgent Oral Answer (to Ministers in the Chamber); Written Questions; and Priority Written Questions. Ministers must reply to Questions for Oral Answer during a plenary meeting of the Assembly in the Assembly Chamber. This meeting is known as Question Time. It is a very public way for Ministers to explain what they and their Department are doing. Question Time takes place in the Assembly Chamber between 2. 00pm and 3. 30pm on Mondays and Tuesdays.
For example, in 2015 Jo-Anne Dobson who is the UUP MLA for Upper Bann asked the Minister of Health, Social Services and Public Safety for his assessment of the impact the Minister of Education’s decision to withdraw the funding for the Early Years Fund will have on the health and well-being of the children affected. Moreover, debates are another way that MLAs have been successful in holding the executive to account. Debates take place during plenary meetings in the Assembly Chamber on Mondays and Tuesdays. MLAs debate Bills, particularly Executive bills, at several stages during the law-making process.
At the Second Stage they debate the general principles of the Bill and decide if it is a law that the Assembly thinks it should pass. There are no time limits on legislative debates – all MLAs who wish to speak must be given the opportunity to do so. There are also opportunities to hold the Executive to account through adjournment debates. An Adjournment debate is possible at the end of each plenary sitting and can last for up to one hour. The purpose of an Adjournment debate is to promote debate on a matter without requiring the Assembly to come to a decision.
Any Member may raise a matter for discussion, giving at least eight days notice to the Speaker. Ordinarily the topic for discussion should fall within an area for which a Minister has responsibility; this will ensure that a Minister will respond to the debate and can be held to account. This is a form of scrutiny. Furthermore, we could consider the use of committees and their scrutiny roles, and how they hold the Executive to account. A committee is simply a group of roughly 11 MLAs who are designated a particular focus in the Assembly on which they have to fulfil a number of key roles.
Once a bill has been debated it is passed on to the committee stage, which lasts no more than 30 days. Statutory Committees in particular have extensive powers and are well resourced, making them the most effective way to hold the executive to account. Statutory Committees are concerned chiefly with shadowing each Executive Department. They work on scrutinising legislation, Ministers and Departments. They also look over proposed legislation and add amendments. From 2010 to March 2013 12 Bills passed through the committee stage of the legislative process.
There are many examples of when Statutory committees have successfully amended Executive Bills. The Sinn Fein Education Minister John O’Dowd’s Education Bill (to set up single all-encompassing Education Skills Authority) did not get beyond its Committee Stage which was completed in April 2013. The Education Minister later introduced another, less ambitious, Bill to combine the 5 Education and Library boards into one. This was passed and received Royal Assent in December 2014. Furthermore, the Bill with the greatest number of amendments is the Reservoirs Bill which was created by Sinn Fein Minister Michelle O’Neill.
Over 200 amendments were tabled at Consideration Stage after the Agriculture Committee, chaired by Paul Frew of the DUP, raised a number of concerns during Committee Stage. The Minister agreed to amend the Bill. These cases prove that through committees MLAs are very successful at holding the Executive to account. On the other hand, critics argue that, in practice, MLAs have failed to employ the scrutiny powers they have. Careerism, party loyalty, ignorance and incompetence have all been given as reasons for this failure.
For example, MLAs may fear that if they scrutinise the Executive too much, especially if it is a minister from their own party, then they might lose their position in the party or miss out on the opportunity for promotion. It has been argued that MLAs are too self-interested to properly hold the Executive to account, and the recent expenses scandal would be evidence for this. Furthermore, the absence of a formal opposition in the Northern Ireland Assembly (up until 2016) has been identified as a major source of weakness within the devolved political institutions.
The mandatory coalition arrangement has resulted in a lack of scrutiny of the Executive. It is argued that both in plenary sessions and in committees Ministers are not properly held to account by MLAs whose own party is part of the Executive. As scrutiny of those in positions of power is central to any democratic system, the Northern Ireland system is seriously flawed. The dominance of the Assembly by the two leading parties has also been cited as a cause of poor scrutiny. This is especially so with the abuse of the Petition of Concern.
Some say it is being used as a veto by the top parties to prevent effective scrutiny and debate. All legislation must be passed by OFMdFM and this can lead to legislation getting killed before it is initiated if either of the ‘big two’ do not like it. MLAs have the possibility of raising a Petition of Concern if they believe there is an issue which is a serious concern to their community. To enact this they have to achieve the support of 30 MLAs. In such cases, a vote on proposed legislation will only pass if a weighted majority (60%) of members voting, with at least 40% of each community present and voting.
It gives each community a veto to prevent decisions or legislation being made which can affect them. It is supposed to be used if legislation is a particular threat to a certain community, but the DUP have used the Petition of Concern to block an investigation into the alleged misconduct of one of their own and to block legislation that would prohibit MLAs from “double jobbing”. The DUP is the only party with enough votes to reject a proposal outright as it has over 30 Assembly seats (38 MLAs). This abuse of the petition of concern prevents MLAs from effectively holding the executive to account.
Moving on, it could be argued that statutory committees are not living up to their potential when it comes to holding the executive to account. Committees have a built in ambiguity to advise the Minister and hold them to account at the same time – this isn’t always possible. Committees have been described as being overworked which makes them ineffective in holding the Executive to account. An MLA can be part of up to 3 committees. This dilutes their experience and makes them much less effective. In the 2011-2016 Assembly, 70 MLAs worked in 2 committees or more. This decreases their ability to effectively scrutinise.
Statutory committees have also been accused of being too partisan, and this decreases an MLA’s ability to hold the executive to account. Statutory committees are made up of the same major parties in the Executive. D’hondt simply allows them to perpetuate their powers in the committees. Multi Party composition does not necessarily inspire cooperation. There have been many times when DUP / SF are not talking. Furthermore, a member of a political party has never challenged another member of their party in the committees. A DUP or SF committee member therefore is highly unlikely to challenge a Minister from their own party.
Committees are often engineered to give the Minister ‘protection’, meaning heavy hitters in the party are brought in to support their Minister. This does not lead to good scrutiny. It is worth noting that ministers in the past have simply ignored committee advice and went on solo runs such as the situation that arose in 2013 over NI Housing. The Social Development Committee launched an Inquiry into allegations arising from a BBC NI Spotlight programme aired on 3 July 2013, of ministerial impropriety or irregularity relating to NI Housing Executive managed contracts.
The Minister, Nelson McCausland, supplied the necessary documents but they were heavily redacted (large sections blanked out). This suggests that MLAs were not effective in holding the Executive to account in that case. To conclude, MLAs have gradually become more effective in holding the Executive to account through debating and committees. However, there are still aspects that could be improved, such as the petition of concern. The decision of the UUP and SDLP to go into opposition after the most recent election will bring a new era in holding the Executive to account, but only time will tell how effective this will be.