Reform of the Petition of Concern seems like a technical issue but it is the key to unlocking the Stormont crisis. So, what precisely is the problem and what is the solution?
The fundamental problem is that the very operation of the institutions, or quite often any legislation or even motion to change anything even when they are operating, may be vetoed by either one of the large parties. These two problems are interlinked.
To be specific, a Petition of Concern triggers a requirement for a cross-community vote in the Assembly. All that is required is a form with 30 MLAs’ signatures. The problem is, in practice, as soon as 30 MLAs largely or solely from one designation sign, they will always be enough to block a cross-community vote. In other words 30 MLAs can stop anything, even if the other 60 (fully two thirds) are for it.
This creates an unfair advantage for conservatives (or those opposed to change in general). The case for change has to appeal to over two thirds of Assembly members. To make matters worse, it is a practical reality of the sectarian and communal nature of our politics that MLAs will gravitate towards the safe option – meaning that even with 28 and 27 MLAs respectively, the DUP and SF should be able to make up the numbers for a Petition of Concern simply by applying a few fear tactics to a couple of MLAs of the same designation or broad political view.
It is a democratic outrage, in other words.
However, that is not to say the Petition of Concern should be abolished, as the DUP has advocated. It exists for a reason, namely to provide security that no minority will simply find its interests overridden – something which matters given we are all now minorities. The problem is not the Petition of Concern itself, but specifically the abuse of it for purposes other than protecting genuine minority interests.
In 2014, Dr Alex Schwartz proposed a sensible compromise reform, so that use of the Petition would be limited to (direct quote):
1) decisions concerning language, culture, and symbols (including the display of flags) which have an obvious ethno-national resonance;
(2) decisions which relate to the legacy of the conflict in Northern Ireland, including decisions relating to victims and survivors, the commemoration of members of the security forces or paramilitary organizations, and truth recovery for conflict-related deaths; and
(3) decisions which relate to the constitutional structure and institutions set up under the Good Friday Agreement.
I would refer to any decision falling into one of these three categories as “sensitive”.
To these, I would add the Programme for Government itself – indeed the very test that the Executive is sufficiently cross-community should be that it is able to pass a Programme for Government even with the availability of the Petition of Concern against it (although, conversely, once the Programme had passed I would then disallow the use of the Petition of Concern even with “sensitive” decisions where decisions clearly derive from it).
The question then becomes who determines whether the decision is “sensitive”, i.e. falls into one of the three categories. I would suggest this would be a standing tribunal including the Attorney General, reporting to the Secretary of State (who in any case already has to confirm whether legislation is indeed under devolved authority), who would look at any piece of legislation or regulation notified to them by an MLA before that piece of legislation or regulation proceeded to the next stage. Proposers for example of a legislative amendment at any stage marked “sensitive” would have the option of leaving it in (in which case the substantive piece of legislation would be deemed “sensitive” and thus subject to the Petition of Concern at Final Stage) or taking it out again and thus simply allowing passage of the overall legislation by Assembly majority.
This is an essential and immediate reform if the Assembly is to become a serious debating and legislative chamber. We cannot simply go on with a small majority blocking anything at all, without even providing any reason. Yet we do need to leave the Petition available for genuine cases where minority interests are at stake. The reform above achieves it and, combined with existing proposals for language and culture legislation and implementation of existing legacy commitments, it provides a clear route to all-party agreement to restore our devolved institutions by the end of the year.