Scrutiny in the Assembly

The removal of the committee stage from all of the Bills that have been enacted in the current mandate raises questions around the scrutiny role of the Northern Ireland Assembly, writes David Whelan.

One of the most stark findings of an inquiry into the heavily flawed Renewable Heat Incentive Scheme, which provoked a three-year absence of the devolved institutions at Stormont, was the absence of meaningful scrutiny on a scheme that would come at a heavy cost to the public purse.

Worrying then is the realisation that the RHI scheme legislation was afforded more opportunity for scrutiny than any Bill which received Royal Assent and become an Act in the current Assembly 2017-2022 mandate.

The RHI scheme’s obvious flaw, that it incentivised some participants to generate more renewable heat than necessary for financial gain, was not identified by Stormont’s scrutiny committee at the time and was passed after only a few minutes of debate in the Assembly.

The fallout of the scheme and subsequent investigations raised questions about the competence of MLAs in their scrutiny of legislation. Pledges were made to do better. However, it is difficult to see how lessons have been learned. RHI should at the very least have signalled a move for MLAs to be more rigorous in their scrutiny of forthcoming legislation. Instead, it appears less is being done given that all five of the Bills (a sixth is awaiting Royal assent) to pass into Acts in the current Assembly mandate, did so through accelerated passage procedure.

Accelerated passage enables a Bill to pass all stages in as little as 10 days and skips the Committee Stage. Usually, the Committee Stage is the opportunity for evidence to be taken from interested bodies and MLAs are afforded the time to scrutinise each clause and schedule of the Bill, before discussing possible amendments. While the committees have no power to amend the Bill, their reports for the Assembly are often used to inform the wider cohort of MLAs prior to debate in the Assembly.

Other Bills, not using accelerated passage, are in the pipeline. For example, the Domestic Abuse and Family Proceedings Bill, introduced at the end of March 2020 is awaiting scheduling of its final stage. The Pension Schemes Bill, the Licensing and Registration of Clubs (Amendment) Bill and the Criminal Justice Bill have also been introduced without the requirement for accelerated passage. However, no Bills, Executive or non-Executive, have passed in to Acts without the use of accelerated passage in a mandate that began in 2017.

Rationale for the extensive use of accelerated passage in 2020 is obvious. Not only is there a backlog of necessary Executive legislation following a three-year hiatus, but Covid-19 has also been cited as a reason for the Executive to rush through legislation. However, it would be remiss to think that the use of accelerated is a new phenomenon. In the short-lived 2016–2017 mandate, the only Bill to pass into an Act was done so through accelerated passage. In the 2011–2016 mandate, almost one-third (18) of the 60 Executive Bills used accelerated passage procedure, while only one of the eight non-Executive Bills did so.

Committees, while largely relied on for scrutiny of legislation, often to a greater extent than should be the case, do not bear sole responsibility for this function. Each MLA holds a scrutiny role as legislation comes to the Assembly.

Some have suggested that in providing this role, Northern Ireland’s MLAs are hampered by a legislative/representative imbalance. A 2017 study by the journal of legislative studies found that MLAs spent an average of 28 hours per week on constituency work. Variation between parties differed little. The figure is above average than in the likes of the England, Scotland and Wales but is similar to that of TDs in the Republic of Ireland, where there is a recognised preoccupation with constituency work.

A solution, perhaps, to enhancing the scrutiny role of MLAs, is a rebalance of this time, giving greater emphasis to their role in legislative scrutiny.

Whether lessons have been learned from scrutiny oversights in flawed legislation, such as RHI, remains to be seen, however, what is clear is that mechanisms which avoid full scrutiny are still being deployed.