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Northern Ireland Constitutional Convention: Procedure



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Text: Northern Ireland Office ... Page Compiled: Fionnuala McKenna

Northern Ireland
Discussion Paper 2

Constitutional Convention:
Procedure

Northern Ireland Office

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1974

ISBN 0 11 880323 9

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Crown copyright material has been reproduced under licence from the Controller of Her Majesty's Stationary Office.
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CONTENTS

Foreword by the Secretary of State for Northern Ireland

Introduction

Members and Chairman of the Convention

Staffing of the Convention and the provision of expert advice

Method of Proceeding
    Possible use of Committees
    Record of Proceedings
    Rules of Procedure

Conclusion

Annex A
The Irish Convention 1917/18

Annex B
The Newfoundland Convention 1946/7

Annex C
The Australian Constitutional Convention

Annex D
Extracts from the Northern Ireland Act 1974




FOREWORD

FOREWORD BY THE SECRETARY OF STATE FOR NORTHERN IRELAND


The Northern Ireland Act 1974 provides for the election of a Constitutional Convention to consider 'what provision for the government of Northern Ireland is likely to command the most widespread acceptance throughout the community there'.

Elections for the Convention will take place within a few months and I shall aim to give about one month's notice of the actual date.

In September 1974 I published a discussion paper 'Northern Ireland: Finance and the economy'. This provided facts about the financial arrangements between Great Britain and Northern Ireland together with information about economic matters. Its purpose was to aid the Convention in its work. At that time I undertook to publish a further discussion paper containing information on possible ways in which the work of a convention might be organised. This paper fulfils that undertaking and draws on related experience in other countries.

The Convention will take place under the authority of the Westminster Parliament. Northern Ireland is a part of the United Kingdom and it is for this reason that the report of the Convention will be transmitted to the Westminster Parliament which alone has the authority to decide what is to be done and which has the legislative power to make that decision effective.

Agreement in the Convention by the elected representatives of the people of Northern Ireland will represent the best and most promising basis for the consideration which Parliament will, in due course, give to replacing the present temporary arrangements for the government of Northern Ireland.

The Convention will not be a law-making body. It will not be an Assembly. If it seeks to proceed simply by majorities trying to coerce minorities or minorities being obstructive rather than constructive, then it will fail. If the Convention does not pursue the search for concessions, if it seeks solely to count heads rather than to reconcile differences, then it will fail. It will have failed not only to meet its statutory terms of reference but, even more seriously, it will have failed the people of Northern Ireland. The price of failure would be high. There is no ready made alternative solution.

The aim of the British Government is that through the Convention the people of Northern Ireland should be given the chance to chart Northern Ireland's future together. The Convention is a deliberative body. It offers that opportunity for which so many of the people of Northern Ireland have asked - the chance to discuss and seek agreement among themselves. This is true of the Convention itself. The opportunity is also there for every group in Northern Ireland with views of its own to put them forward so that the Convention may, if it wishes, consider them. Now is the opportunity for constructive discussions to take place between not only those of like mind, but also those with differing or conflicting opinions.

In a democracy law and order are not restored and maintained by the forces of law and order alone. They must be supported by a society which provides genuine opportunities for all its law-abiding members to participate in the institutions of government. The direction of public affairs in government can and must be shared by those from all parts of the community who are concerned for the good of all the people in Northern Ireland. What form this sharing and partnership could best take to gain widespread acceptance will be a matter for the Convention to discuss.

The aspiration which must be turned into reality in Northern Ireland is that its community should come together for Northern Ireland. Reconciliation, peace, stability, justice, social and economic progress are the real needs and heartfelt desires of virtually all the people. It is up to those who are elected to the Convention and to the leaders of all shades of public opinion to recognise the needs and turn the desires into reality. It is this that can bring the years of bitterness and bloodshed to an end.


November 1974Merlyn Rees





Introduction

In July this year, Parliament passed the Northern Ireland Act which provides for the election of a Constitutional Convention to consider 'what provision for the government of Northern Ireland is likely to command the most widespread acceptance throughout the community there'.

As the Government said in the White Paper, 'The Northern Ireland Constitution' (Cmnd. 5675 of 1974), the establishment of this Convention is intended to give the people of Northern Ireland a fresh and full opportunity to express a view on their own future before Parliament reaches those decisions which only it can take.

In addition to operating within the framework established in the Northern Ireland Act 1974, the Convention will also have to take account of certain realities in the Northern Ireland situation which were expressed in paragraph 45 of the White Paper as follows:

    '(a) history has caused divisions within the Northern Ireland community. Events of the past few years have amply demonstrated that no part of that community can, let alone should, be coerced into accepting the other's view. Events have also shown that a consensus can be obtained on the basis of serving the interests of the whole community. There must be some form of power-sharing and partnership because no political system will survive, or be supported, unless there is widespread acceptance of it within the community, There must be participation by the whole community;

    (b) any pattern of government must be acceptable to the people of the United Kingdom as a whole and to Parliament at Westminster. Citizenship confers not only rights and privileges but also obligations;

    (c) Northern Ireland, unlike the rest of the United Kingdom, shares a common land frontier and a special relationship with another country, the Republic of Ireland. Any political arrangements must recognise and provide for this relationship. There is an Irish dimension.'

The Act makes specific provision for a number of matters, so as to provide a basic framework within which the Convention can operate. But the maximum scope is left for the Convention itself to decide how best to carry out its work and reach its conclusions. It is the purpose of this paper to identify some of the areas in which such decisions must be made by the Convention, and to assist discussion by suggesting some alternative courses of action in relation to procedures. Constitutional Conventions have been used from time to time in other countries, and Annexes A, B and C describe in some detail the Irish Convention of 1917, the Newfoundland Convention of 1946 and the current Australian Constitutional Convention which is considering the relationship between the Commonwealth of Australia and the States. These Conventions concern totally different issues and circumstances from those of the Northern Ireland Convention and have been quoted only because some of the procedures may well be of some interest and usefulness.

It is of particular importance that the basic characteristic of a Constitutional Convention should be recognised. It is not a permanent, governmental or legislative body. It is not an Assembly or a Parliament. It is a body elected to seek within a specific term an agreed solution to a specific problem.


Members and Chairman of the Convention

The Northern Ireland Act provides that the Convention will consist of a Chairman, together with 78 members elected from the twelve parliamentary constituencies of Northern Ireland using the single transferable vote method of proportional representation as it applies to elections to the Northern Ireland Assembly.

The Chairman of the Convention will be appointed by Her Majesty. He will be an independent figure and, in the words of paragraph 53 of the White Paper (Cmnd. 5675). ‘a person of high standing and impartiality from Northern Ireland’.

The precise duties of the Chairman will be largely a matter for him and members of the Convention to decide but he will clearly preside over the Convention, be responsible for order and the proper conduct of business, and no doubt be the person through whom its Reports are transmitted to the Secretary of State. As already indicated, the Chairman will not be drawn from the elected membership of the Convention. Nor will he have any power to vote in the proceedings of the Convention or its committees.

A Convention charged with considering ‘what provision for the government of Northern Ireland is likely to command the most widespread acceptance throughout the community there’ must necessarily proceed largely by way of negotiation and agreement. It is for this reason that the position of the Chairman of a Convention is quite different from that of a Speaker of a House of Parliament. His role is a delicate one for while he must preserve his impartiality and thus retain the trust of all groups in the Convention, he must also be ready to assume the further responsibility of helping the Convention as a whole towards reaching agreement and a Report. Although he must remain impartial, he cannot remain detached from events in the Convention. One of his major functions may well be to seek to help the Convention find a way past apparently insuperable differences of opinion, and to stimulate new lines of thought and new avenues of approach to the Convention’s task; in so doing he will inevitably become aware of and involved in the flux of political relationships between Members and groups of Members.

 

Staffing of the Convention and the provision of expert advice

The Act states that:

‘There shall be provided for the Convention and its Members by the Secretary of State such accommodation, staff and services (including provision for the keeping of an official record of proceedings) as the Convention may with the approval of the Secretary of State determine or as may appear to him to be reasonably requisite’.

It is the intention of the Government that the main initiative, therefore in this as in other matters, should rest with the Convention itself. Some provision for a Convention secretariat will, however, need to be made before the Convention first meets. Unless there is a secretariat in being there would be obvious administrative difficulties and in its early stages the Convention would be without many of the services which will be essential to its work. The Government will, therefore, be prepared to make preliminary and provisional arrangements, but these can, of course, be changed when the wishes of the Convention are known.

The full-time secretariat of the Convention will clearly need to be able to provide procedural and administrative services for the Chairman, the Convention as a whole and any committees it may decide to establish.

While the task of the secretariat will inevitably involve procuring a great deal of detailed information and undertaking research in many fields, it does not follow that it will be necessary to appoint expert advisers before the Convention meets. In order to preserve flexibility it may be desirable for the Convention to enlist the assistance of a panel of experts who would be willing to serve on a permanent or temporary or part-time basis. The Convention may. for example, wish to have the full-time assistance of a constitutional lawyer and an economist and early provision could be made for this. Assistance of this kind might be especially appropriate if the Convention were to proceed through the formation of committees, working parties or study groups. Not only could such groups ask persons to attend individual sessions to give evidence but they could also commission pieces of research or employ expert assistance throughout the duration of their deliberations.

On some questions it may be appropriate for the Convention, or its secretariat, to seek factual information from the Government. As was stated in the White Paper (paragraph 54). ‘The Government will play no part in its proceedings but will, of course, be willing to make available factual information and to assist the Convention in any way which is likely to bring its deliberations to a successful conclusion.’

It will, for instance, be open to the Convention to consider approaching the Secretary of State with a view to his arranging for a delegation of its members to discuss particular issues with the United Kingdom Government, or to visit other countries in order to study how issues bearing upon the problems in Northern Ireland have been resolved elsewhere. There would, of course, be no question of such visits involving negotiations (for negotiations with a sovereign government are a matter for the United Kingdom Government alone), but the Convention may well wish to make use of such visits for the purpose of seeking information.

 

Method of Proceeding

Possible Use of Committees
When the Convention meets it will have to decide how it is going to manage its business. It would, for example, be possible to appoint a number of committees. The Act specifically provides that the Convention ‘may appoint committees to assist it in the discharge of its functions’. Such committees could examine in detail and report on various aspects of the Convention’s remit; the discussion of their Reports in plenary session could be broadened into a more general debate. The advantage of this approach would be that before members of the Convention moved on to their main task of framing proposals for future government, they would have an opportunity of informing themselves as fully as possible about the constitutional, economic, financial and other realities of the situation facing them.

Another possible approach would be for the Convention in plenary session or in committee to consider in turn a number of alternative schemes for the future government of Northern Ireland. The purpose of the discussion would be not to arrive at any final decision as to its adoption or rejection, but merely to have it thoroughly explained.

It may be desirable to make use of both these approaches but whatever course of procedure is adopted, there might be merit in the appointment of some kind of Steering Committee, to act in close consultation with the Chairman, to maintain a general oversight of proceedings.

Such a Steering Committee might indeed be established to undertake some preliminary work at as early a stage as possible. Even before the first meeting of the Convention, the Chairman could meet informally with leaders of parties represented in the Convention to give some preliminary consideration to methods of regulating procedure and managing its business. Such a group could initially consider the possibilities discussed above.

The Convention. when it met, could then formally appoint a Steering Committee and could allocate to it such tasks as it from time to time thought fit. It is to be hoped that there will be submitted to the Convention a wide range of schemes for the government of Northern Ireland and other observations emanating both from groupings of Members and from interested bodies and individuals outside. Should this happen, one of the main tasks which might be allocated to the Steering Committee would be to sift the schemes and to present to the Convention those considered worthy of fuller consideration. The Steering Committee might also draw to the attention of the Convention aspects of constitutional proposals which presented particular difficulty or which required detailed investigation. It could suggest that studies should be made of their implications either by a committee or working party of the Convention or by a panel of experts or by a combination of the two. Eventually, the Steering Committee might be charged with preparing a draft Report for submission to the Convention.

It may well be desirable that outside bodies and individual members of the public. In addition to the political parties, should be actively and continually encouraged to put forward ideas and comments to the Convention while it is sitting; it is desirable that there should be a channel through which the Convention can receive such ideas and comments and discuss them with the sponsors.

Record of Proceedings
The proceedings of the Convention and its committees, any Official Record of proceedings and any Report of the Convention are, in the words of the Act. ‘absolutely privileged’. The effect of this is that anything said or done in the Convention is protected from the operation of the law of libel or slander. This absolute privilege extends to Reports of the Convention and its committees. to the oral and written testimony of witnesses and to such matters as the texts of motions and documents produced.

However, the full body of Parliamentary privilege is not applied to the Convention, which will be able only to invite persons to appear before it as witnesses and will not be empowered to summon witnesses or to send for papers.

The Convention may wish that its proceedings, and those of at least some of its possible committees (assuming the Convention decides to deal with some matters in committee), should be recorded either verbatim or in summarised form and the Act allows for the provision of such staff as may be necessary for this purpose. There may. however, be different views on the question of how much information should be made available at the time when the Convention is actually sitting. It can be argued that. since matters of some delicacy will be under discussion, it is important that Members should be able to work free from outside pressures in an attempt to reconcile conflicting viewpoints. As against this approach, it can be argued that any elected institution depends in large measure on maximum public awareness of its activities and that to encourage this awareness press and public must be freely admitted and a full report be made available.

These approaches are not, however, mutually exclusive. It may, in practice, be sensible to recognise both-for example by opening full sessions of the Convention to the press and public, while holding the proceedings of committees and working parties in private. If this dual approach were adopted, the Convention might find it necessary and desirable to adopt all possible means to ensure the confidentiality of those parts of its proceedings which it had decided should be private.

Rules of Procedure
The first meeting of the Convention will be at a time and place appointed by the Secretary of State. who ‘may give directions for regulating the procedure of the Convention and its committees’ until it has agreed upon its own rules. It will be for the Convention to decide what these rules will be but the Convention may well think it undesirable to regulate its business in a rigid manner lest it be faced with the need to make continual changes. As an alternative to drawing up a set of comprehensive rules, the Convention might, therefore, feel it appropriate to adopt a few broad and simple rules (supported. perhaps, by an omnibus clause allowing relevant House of Commons rules to be applied where the Convention’s specific rules are silent).

An approach widely used in broadly comparable situations has been to entrust the task of producing a draft set of rules to a representative committee chaired by the Presiding Officer. In the Convention this might be one of the tasks suitable for a Steering Committee as suggested above. The Convention may wish to consider whether, in view of the relatively short time in which it is hoped that a Report may be produced, it would be prepared to entrust to a representative committee both the preparation and the adoption of rules. This would allow the Convention to begin work almost at once while safeguards could be built in by provisions allowing later amendment by the Convention as a whole.


Conclusion

The Convention is required by the Act to produce a Report on its conclusions on its terms of reference, namely on what provision for the government of Northern Ireland is likely to command the most widespread acceptance throughout the community there. The Act requires the Convention to transmit its Report - or Reports to the Secretary of State, and he in turn is required by the Act to lay it before Parliament. The Act leaves it open to the Convention to produce more than one Report if it wishes - it could for instance produce an interim Report before its final Report.

The terms of reference specifically require the Convention to consider arrangements for government which are not only likely to command 'widespread acceptance throughout the community', but 'the most widespread acceptance'. It follows from this that the Convention's principal aim must be to reach full agreement on what system of government would be likely to command widespread acceptance throughout the community - or, if the Convention considers that more than one system meets these criteria, which of them can be expected to command the highest degree of widespread acceptance.

If it proves impossible to reach full agreement within the Convention, it would be open to the Convention to report on the various arrangements for government that had been considered as likely to command the necessary widespread acceptance throughout the community, and on the degree of support within the Convention for each of these arrangements. It would then be for Parliament to take the balance of opinion within the Convention into account in considering the Convention's Report.

In the first instance the Convention will continue in existence until its final Report is laid before Parliament or until six months after its first meeting, whichever is the earlier. The Secretary of State is, however, given power to prolong the Convention's existence by successive periods, each of three months. The Convention can also be recalled within six months of its dissolution if there is a matter requiring its consideration or further consideration.

The analysis and suggestions contained in this paper have been compiled to assist those concerned with the Convention to identify and consider some of the procedural and administrative problems which will face the Convention for the Government recognise that the Convention will be faced with a difficult, and yet vitally important, task. The Convention will have the opportunity to create, out of the different and diverse strands of opinion in Northern Ireland, a fabric of government which can be recommended to Parliament at Westminster, with whom the ultimate decision lies, as likely to command the most widespread acceptance throughout the community in Northern Ireland.

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