Naomi Long
East Belfast · Alliance Party · Northern Ireland
“Underneath the Facebook posts to say that he had passed away, people speculated with such comments as, "Probably high on drugs", "Probably drunk", and, "Typical boy racer". There was all of that speculation. It was hurtful to the family, and it was inaccurate.”
“There are circumstances that we need to consider and be careful of. I was told, for example, that, when the issue of good character references at trial was being looked at in New South Wales — Committee members may wish to look at this for themselves — one of the groups that opposed their removal was representative of domestic abuse victi…”
“It sets out the strategic direction adopted by the Department and key partners to tackle those appalling crimes and protect vulnerable victims of exploitation.”
“The provision seeks to provide protection, via legal advice and representation for complainants, against the use of non-relevant personal material and evidence of previous sexual history being used in the court process.”
“<BR /> <BR />On the wider issue of ensuring that a withdrawal of services never happens again, I think that most of us agree that, although everyone has the right to take industrial action, no one has the right to derail and hold to ransom the entire justice system in that way.”
“Those measures will go some way towards helping to support complainants and enable them to have input into the decision-making process about what records containing their personal and sensitive information are required to be shared with the defence.”
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“However, I direct Members who were concerned about the eight-week consultation to paragraph 65 of the Fresh Start Agreement, to which their parties were signatories, which reduced standard consultation periods to eight weeks from 12.”
“Those provisions were originally drafted in 2020, which speaks to how long it takes for us to develop legislation and take it through the House, and yet most people's biggest fear today seems to be about undue haste. These were drafted in 2020. It was through continuous engagement that we recognised where amendments were required. It is not unusual for changes to be identified during a period of four years, and those changes can be handled through simple amendments. <BR /> <BR />The handling of the biometrics consultation was also raised. The Department initially intended to include those provisions in a justice Bill that was being drafted during the previous mandate. At that time, there was a time constraint to complete that consultation and have the provisions included in the Bill.”
“in Part VI of PACE NI is to reflect operational procedures across the biometric provisions and avoid any confusion with the various meanings of the term "reported" in the criminal justice system. Clarification regarding the retention periods for biometrics on foot of community-based restorative justice schemes; the protection of biometric material that would normally fall for deletion but is subject to a decision pending by the Biometrics Commissioner regarding applications made under article 63G; and an amendment to ensure that biometrics held under article 63F, which concerns material pending investigation or proceedings, can be retained by the PSNI for up to 28 days. It is incorrect to suggest that those are unorthodox amendments.”
“It was not possible to make those change prior to the introduction of the Bill, and, therefore, I intend to bring those forward at Consideration Stage. The proposed amendments will include a power to photograph individuals in specified circumstances at a police station. That will align the power to take photographs with the powers to take fingerprints and non-intimate samples. A power to specify a date of attendance at a police station for fingerprinting samples and photographs will simplify the process and ensure the better management and provision of policing resources. The replacement of the term "reported" with the term:”
“Although I understand that and empathise with parents who are trying to do their best for their children, the justice system and the use of bail conditions is not a parenting tool. It simply has to be used for the court's benefit for public interest, and it has to be in the interests of the law. If it means that we are going to be in breach of children's rights and our international obligations, it is not something that we can simply continue to do. <BR /> <BR />A number of issues have been raised about the biometrics section of the Bill, but I will first address the need for amendments to the biometrics provisions and why amendments are needed so soon after the Bill's introduction. As part of the stress testing of the legislation with the PSNI, we identified the need for some amendments to further improve it.”
“A large-scale consultation by the Law Commission identified four grounds on which a court can consider refusing bail or imposing bail conditions: to prevent the child failing to surrender to custody; to prevent the child committing an offence while on bail; to prevent the child interfering with witnesses or otherwise obstructing the course of justice; or to prevent the child's release causing a serious threat to public order. Any bail conditions that are set should be the minimum needed to prevent one or more of those things from happening. Anecdotally, we have heard that parents request certain bail conditions, such as curfews, to help them to manage their child and keep them out of trouble.”
“It is important to note that the right to bail — in particular, unconditional bail — as standard is not absolute: it is a qualified right. We are not saying that conditions cannot be applied but that any decision to do so should be considered carefully, taking into account a range of factors, including the child's age, circumstances and their understanding of, and ability to comply with, any conditions imposed. <BR /> <BR />It is also important to say that, where parents wish to, for example, apply a curfew, they are, of course, as parents, at liberty to do so. It does not require a court order to tell your child where they can go or that they cannot go out at certain times of the day or night. Parents will also be involved in the consultation.”
“<BR /> <BR />Further concerns were raised about the notion of unconditional bail for children. Children can spend long periods on bail while they are waiting for their case to be dealt with, and complying with a raft of complex bail conditions over a prolonged period can be difficult for them. A breach of those conditions can lead to their coming back into court and being drawn further into the justice system, which is something that we try to avoid. Ironically, once their case is dealt with, if found guilty, they are often subject to far fewer conditions under a court order than they were while they were on bail and were technically innocent. Recommendations from a number of reports have advocated unconditional bail as standard for children. That is the baseline that we are introducing in the new provisions.”
“<BR /> <BR />My officials have met representatives from a range of stakeholders, including the PSNI, the Public Prosecution Service, the Northern Ireland Courts and Tribunals Service and Office of the Lady Chief Justice to discuss any concerns that they have about those new provisions. They have also ensured that relevant colleagues in the Department of Health have been kept apprised of issues that may have an impact on them. That work provided the opportunity to discuss potential issues before the draft provisions were finalised. In addition, the work has been discussed with children's sector organisations. I know that Mr Carroll, who is not in his place, raised that particular issue. Those organisations are keen to see those changes be implemented.”
“The first test requires the court to consider whether it is very likely that a custodial sentence will be handed down for the offence for which the child is charged. Where the court concludes that it is not likely, it must grant bail — that is good practice — regardless of any other circumstances of the case. That test must be applied each time that a child appears before the court throughout the remand period to ensure that the remand in custody is still appropriate. Furthermore, the inclusion of the second test means that the court may still release a child on bail despite the strong likelihood that a custodial sentence could be applied if the court believes that remand in custody is not essential.”
“<BR /> <BR />We recognise, however, that, in order to prevent that happening, we need to increase the provision of alternative accommodation in the community. My Department will continue to explore options with the Department of Health and, indeed, the Department for Communities in order to address the issue. Only once that additional community provision is available will my Department commence the relevant provision preventing lack of accommodation from being used as a reason to refuse bail. <BR /> <BR />The new provisions introduce two tests, both of which must be met in order for the court to remand a child in custody. The idea that children can never be remanded in custody is, again, flawed analysis. They can, but there are two tests that must first be met.”
“<BR /> <BR />The Chair also raised the issue of cooperation with other Departments, especially on the release of children on bail and the availability of suitable accommodation. First, it is important to note that that is not instituting a change in practice but merely creating a legislative underpinning for existing best practice. That is an important consideration. We all have a duty to keep people safe, but the use of custody when their offending behaviour does not require it is in breach of children's rights and our UN commitments. We cannot continue to hold children, or, indeed, anyone, in custody simply because we do not have the means to secure safe accommodation for them in an alternative location. To do so would be unjust and wrong. The purpose of custody is clearly set out in law.”
“The majority of the provisions in the Bill, unlike with previous Bills that were heavy in policy content, attract no additional cost at all, however. Some, such as live links, have the ability to reduce costs. <BR /> <BR />I think that it was the Committee Chair who said that the financial information was to be passed on to RaISe. That was done by my Department on 18 September and was also copied to the Committee Clerk at the same time. I am therefore not clear as to why the Committee has not had sight of it, but the Department has provided that information. If there are any issues with it, however, I am more than happy to engage with the Chair directly and resolve them.”
“<BR /> <BR />I will now move on to the issue of resources, which, again, a number of Members explored. It is true to say that my Department is undoubtedly facing significant budgetary challenges. Those challenges have been very well rehearsed in the Chamber, so I will not rehearse them again today. Many of the Bill's provisions, however, relate to matters where we are seeking to meet our obligations under the ECHR and international law. As such, we will have to make their implementation a priority so that we can fulfil our statutory duties in a lawful manner. We will continue to manage very carefully the resources that are made available to us and continue to take the difficult decisions that are required to allow us to remain within budget, as we always do.”
“The clause is necessary to manage a small and particular risk, which arises from the complexities of mixed-content Bills such as this. Although every effort is made by officials, departmental legal advisers, legislative drafters and the Committee to ensure that all legislation is error-free, there is always a possibility that an amendment or a repeal is missed that will render the policy objective impossible to implement or that will create a gap in the law. The provisions in clause 31 enable me to offer the Assembly a fix — I stress the word "fix" — without which it would be necessary to await the next primary vehicle, which may be well over a year away, thus creating an unhelpful lacuna in the law. Those powers are therefore important in mixed-content Bills but are used by exception only.”
“<BR /> <BR />Where a Bill is complex, wide-ranging and amends or repeals other statutes to a large degree, such as this Bill, a provision of that sort is wise and proportionate. Given my own observations on the complexities of drafting needed to give effect to the policy objectives in the Bill, which the Committee has commented on, I am firmly of the view that clause 31 is appropriate on this occasion. As I said, the powers in clause 31 do not allow me to amend the legislation for any purpose. The powers are limited to making supplementary, incidental, consequential, transitory, transitional or saving provisions for the sole purpose of giving full effect to the intended policy provisions of the Bill and nothing more.”
“That irony will not be lost on anyone listening to the debate. <BR /> <BR />I want to address the Henry VIII powers now because they relate directly to the breadth and scope of a miscellaneous provisions Bill such as this, and a number of Members raised concerns about them. The provisions of clause 31 may look wide, but the clause needs to be read carefully in legislative terms. It is not a power for me, as Justice Minister, to do whatever I like. I cannot use it to alter policy or to dilute or disturb policy that I may not support. The provisions in clause 31 are not standard, so they need to be seen in context. Not all Bills will need a provision of that nature, but it is an important safeguard in appropriate circumstances.”
“Others would be delayed until the next mandate were they not in this Bill, and that, as I say, could leave us at risk of legal challenge. <BR /> <BR />The amendments also address court judgements. Somebody said that they should not be brought forward at the convenience of the Department or the Minister. I can assure you that we are not bringing those amendments forward for my convenience. It is because there are court judgements hanging over us that need to be addressed. We aim to have those amendments drafted around the end of the calendar year but some of the content will be ready sooner, and we will share that with the Committee as soon as it is available. <BR /> <BR />It is odd that Members who have criticised my Department and me for not bringing forward enough legislation more quickly now complain that we are moving too quickly.”
“However, that breadth of scope is balanced by the very narrow technical nature of the individual sections. Whilst the provisions are narrow, there are many of them. Therefore, it is broad-based only in the sense that it covers a lot of ground — the provisions are quite narrowly focused. <BR /> <BR />I would prefer to have a series of smaller Bills. However, I have been advised that it would not be good practice for me to bring through, for example, eight or nine Bills with maybe one or two clauses in each. Also, with two shortened Assembly mandates, we have limited time to progress a significant programme of legislation, including reforms that we could not process during the previous mandate. Many of the provisions would not warrant a separate Bill.”
“In effect, it has no standing because it cannot be verified until the Bill is complete. I consulted with the OLC, and it indicated that it has never produced such a schedule. However, I know that the Committee will seek to engage with first legislative counsel directly on that point. If a Keeling schedule is thought to be of assistance to the Committee, it can commission that from the Bill Office, but that is not a matter for me or the Department to take forward. <BR /> <BR />On why so much additional content is being proposed for Consideration Stage, that is not unusual for the Department of Justice either. It has always been the practice of my Department to bring forward additional policy areas for inclusion at Consideration Stage of mixed-content Bills. They are the only broad-based vehicles for reform.”
“I would not be able to maintain a clear gap between each of the Bills at Committee Stage — something that was actively seeking to deliver — in order to avoid overburdening the Committee and Assembly with overlapping Bills. Whilst a mixed-content Bill is, by definition, broad in scope, this Bill is by no means unusually so. Previous miscellaneous provisions Bills have routinely had in excess of 80 clauses and more than five schedules. <BR /> <BR />On the Committee scrutiny issue that was raised, I reference the Keeling schedule to which the Chair of the Committee drew our attention. That has never been provided by any Department or the OLC as part of the Committee scrutiny process in the House. It is not part of TEO guidance on the legislative process either, and it has no legal standing.”
“<BR /> <BR />There are significant issues and public commitments to victims who have worked hard with my Department on provisions in the sentencing Bill and have extended the scope of what was to be a stand-alone hate crime Bill, so that we have further provisions and protections for victims of crime, including hate crime, in the latter Bill.”
“That would, of course, delay the time frame for the implementation of the Bill's provisions and would extend the period during which we would need to continue to rely, for example, on the temporary live links provision in the Coronavirus Act 2020 for considerably longer than any of us would wish. <BR /> <BR />The extended timetable for the completion of the Justice Bill's progress through the Assembly would also have had an impact on Committee scrutiny of the sentencing and victims Bills in this mandate, as it would then be necessary to overlap Bills. That is something that we have sought to minimise throughout, having learned from previous experience.”
“Nothing will be retained in the Department that the Committee does not have sight of once it is completed. <BR /> <BR />Allowing for the time that is necessary to complete all of the pre-introduction clearances for a revised Bill and to secure Executive approval for introduction, had I decided to delay introduction, it would most likely have been February or March 2025 before a Bill could have been introduced in the Assembly. There would then be a corresponding delay in the remaining stages of the Bill, and it would not complete its passage until early 2026 at the earliest.”
“The drafting of all the planned additions to the Bill has commenced, and, while some are at an advanced stage of preparedness, it will take until the end of the year before the final additional provisions are drafted in full. However, the policy intent is clear, and that, therefore, provides no barrier to the Committee's call for evidence, as the legislative drafting will be complete when that concludes, allowing the Committee and witnesses to proceed with full scrutiny of each clause. <BR /> <BR />It is also important to say that I am not waiting until all the additional provisions are fully drafted. I have undertaken with the Committee directly and via my officials that we will share the drafted clauses as soon as they become available.”
“Indeed, a great amount of the content of this Bill is a hangover from the previous, truncated mandate, when I had to adjust the Justice (Sexual Offences and Trafficking Victims) Bill from being a miscellaneous provisions Bill because some of those were put on pause. It is important that we maximise the use of the time that we have available in this mandate. <BR /> <BR />We cannot always lag behind other jurisdictions. I spent most of the previous mandate doing catch-up on basic issues such as domestic abuse, stalking and other legislation, but I am now in a position where I have to play catch-up around these technical issues.”
“It seems that we were never going to know what the fully formed outcome of the Bill would be until it had passed through the Assembly. For those who throw their head in their hands in despair at the idea that Members or, indeed, the Minister might amend the Bill, it is worth remembering that that is the purpose of the Chamber. That is what we are here to do. It is right that people should be able to do that within the scope of the Bill. <BR /> <BR />There is a growing backlog of primary legislation requirements across the justice system that are critical for my Department and for the delivery of justice.”
“That is to ensure sufficient time for each Bill to complete its full Assembly journey. Therefore, it was important that the Justice Bill was introduced at the soonest possible opportunity, not least because some of the content is required to address court judgements that the Department remains in default of and therefore remains at risk of court action. <BR /> <BR />If the Justice Bill were the only Bill that I intended to progress, it would make perfect sense to simply delay its introduction until the additional planned content was drafted so that it could be included in the Bill from the outset. It has to be said, however, that, given the scope of the Bill, it is likely that on its passage through the Chamber and Committee, there may be other issues that the Committee and other Members of the House would wish to add to the Bill.”
“<BR /> <BR />The Chair of the Justice Committee initially raised an issue in respect of what she perceives to be a rushed introduction and the Committee's preference that we should have deferred introduction of the Bill until all of the drafting was complete. A number of Members echoed those sentiments. This Justice Bill is, however, only one of three Bills that I intend to bring forward during the mandate. In line with the advice of the Executive Office, we have been advised that we should limit legislation to one Bill a year. As I have said in the Chamber before, there are indeed restrictions in terms of capacity in the Office of the Legislative Council. That is not news, and I have said it in the Chamber before when discussing my legislative programme.”
“As I mentioned at the beginning of the debate, progressing this legislation to improve the effectiveness and operation of the justice system is a priority for me. I thank all the Members for their mainly constructive, positive and always lively engagements in the Chamber today. As the Bill moves through its stages in the Assembly, I hope that we can continue in that spirit in order to ensure that this important legislation reaches the statute book as soon as possible and starts to deliver for those who enter the justice system across Northern Ireland. I know that many of you support the provisions of the Bill as introduced and those that I intend to bring forward as amendments at Consideration Stage. I want to turn now, however, to some of the issues that were raised during the debate.”
“The entire premise of what we are trying to do is to replace an opaque process that, most people, including some who work in the justice system, have confessed, they do not understand with one that is accountable, transparent and easily auditable, because all public money ought to be held to full and open account.”
“That is not the argument. The argument here is that, at the minute, the process for anything that goes through the Taxing Master is opaque, and there is not transparency and accountability. That is something that we are looking at as part of wider reform. This is a specific amendment that is not related to that wider reform around the Taxing Master's power, how that should work and how it should operate in future. That will be brought forward as part of further policy development work that the Department is taking forward. This is narrow in scope, and it is not meant to impinge on that wider issue.”
“The Member makes a valid point on the socio-economic implications and consequences of offending. However, those are not matters for the Department of Justice; they are matters for other Departments, and they would be required to bring forward their own legislation to deal with those socio-economic issues. It is not something that falls within my remit, nor could it be part of the Bill.”
“Perhaps I can cut this short by setting out the position. The Member suggested that I may want to make amendments by way of secondary legislation: I am not sure how that would happen. Primary legislation would be needed in order to change the minimum age of criminal responsibility. To do that, I would have to get Executive approval, and, so far, that Executive approval has not been forthcoming. I am happy to deal with the issue in more detail in my winding-up speech, but I reassure the Member in that regard.”
“It had every opportunity to explore those issues, and no one raised them, including the parties to the litigation proceedings on the Bill.”
“When it comes to the scrutiny of the policy intent, I brought to the House my concerns about the ruling by Justice Humphreys. The Supreme Court previously said that it is flawed to look at the consideration of any clause on the basis of the length of its entry in Hansard. Obviously, people will consider matters at other times and in other ways. There will be political consideration and debate that will not be reflected in Hansard. I therefore argue that, contrary to the ruling, the Committee did its scrutiny in that case. It simply did not see the particular issue with the Bill. That is entirely reasonable. The judgement stands as it stands, but, to be fair, the lack of scrutiny was not down to the Committee not having the Bill. The Committee had the Bill.”
“Thank you. I appreciate that. That point was raised by, I think, Doug Beattie in an intervention. First of all, the reform of legal aid is not the subject of that particular amendment. The amendment is simply a technical change to say how the fees are counted. It is not on, for example, the reform of the taxing master's role more widely. That is part of a wider piece of work that the Department is doing on civil and legal aid. That will come separately in policy to the Committee and the House for further scrutiny down the line.”
“The Attorney General does not have international responsibility, because international issues are not devolved. It is important that that person is the Advocate General where the matter is cross-jurisdictional. It was an error that it was laid out that the Attorney General, rather than the Advocate General, was named. We are seeking to correct that.”
“I thank the Member for giving way. I realise that he has not seen the draft text, but he has heard the policy intent, which I set out in my speech, and therefore knows exactly what we intend to do. They are not controversial issues. They are issues that have been on the agenda for a long time, such as, as Mr Frew mentioned, normalising the use of live links in the court service. That is not controversial. In fact, I think that Mr Frew said — possibly uniquely — that that would probably get universal support. <BR /> <BR />We are not trying to bury bad news or to hold back things that may be controversial. We are simply trying to do this in a timely fashion and make the best use of the three short years that are left in the mandate.”
“On the processes of the House, the Member will be aware that any Member can table an amendment at Consideration Stage. There is no opportunity whatsoever for the Committee to consider those amendments, yet it is entirely appropriate and normal for that to happen. That is the right of every person in the Chamber. My intent is to have the amendments presented to the Committee this year before any formal line-by-line scrutiny has begun. I fail to understand how a Member who claims to be a champion of the House can argue that it is not in order for someone to amend the Bill at any stage after Second Reading.”
“On a point of order, Mr Deputy Speaker. To dismiss something that is not even an Act as bad law indicates to me that the Member is not across the detail of what we are doing here. What we have are proposals for legislation. What we do not have is law, good or bad.”
“On a point of order, Mr Deputy Speaker. The Member has claimed — I think that this is the second occasion in the House — that it is unprecedented for a Minister to bring amendments to their own Bill. I ask the Deputy Speaker to reflect on that, because that is factually inaccurate. In fact, every mixed-content justice Bill has been amended at Consideration Stage, as have many other Bills. The word "unprecedented", if people are going to lecture about the use of language, has a particular meaning, and the threshold for it is not met in this debate.”
“It would be unfair to say that I arrived in the Chamber today and announced that we were bringing six additional areas of policy through. That is not the case. We have been in continual contact with the Committee. We have had briefings on the policy intent of those six areas and we have provided that detail to the Committee. I also set it out in my speech to the House at the first opportunity to do so. So, with respect, the idea that I came in today and lobbed six new things into the Bill is simply untrue. It is a fiction, and that needs to be clarified.”
“I am not sure how much clearer I can be. No one is quibbling about the intent or about what we are trying to achieve. It takes time to draft the primary legislation in the context of it being primary legislation, which is considerably different to the drafting of regulations. Therefore, until it is drafted by legislative counsel, we cannot place it in the Bill, though the policy intent has not changed. We did look at whether there were other options, but there is no other supporting legislation under which we could simply transpose regulations. Therefore, it has to be as primary legislation, and the drafting takes time. While the Member may not understand it, those are simply the facts. I do not draft the Bill; the Office of the Legislative Counsel does, and it needs time to do it.”
“It is because there is a distinct difference between drafting regulations and drafting primary legislation. The coronavirus regulations as drafted could not simply be transplanted into primary legislation. Moreover, some changes will be made as a result of the experience of working through live links. The provision is therefore not in the Bill, but it will be tabled as an amendment, which is still under development. The policy intent is clear, but the detailed clauses have yet to be completed.”
“It is interesting that the Member raises the issue of children and vulnerable adults, because it is precisely for children and vulnerable adults that live links have proven to be essential. They have allowed us, for example, to have domestic violence contest cases heard via live link so that the person who was abused does not have to appear in court or risk cross-examination by the person who is accused of the abuse. The remote evidence centre (REC) relies entirely on live links. That facility will be lost if we do not retain them.”
“The Member will be aware that Professor Ray Jones did a report on the amalgamation, essentially, of children's services, including youth justice. The foundation element of that was to bring forward a children's services agency and then there would be a transition, and the hope is that we will be able to do that. There is no issue with accommodation in Woodlands; in fact, I encourage Members to go to see the Woodlands Juvenile Justice Centre. It is being well maintained, but there are small numbers of children in the facility for the very reasons that the Member outlines. It is not good practice to keep children in custody if, instead, you can achieve more through community engagement, particularly engagement with victims, and reparations.”
“I thank the Member. He was too optimistic in thinking that he would get to the end of his speech without me interrupting him again. I will explain what I was suggesting about how I might approach this were I a member of the Committee. It is a long time since I was a member of a Committee, so I will defer to others on this point. It is possible to have a call for evidence, but before witnesses come to give evidence to the Committee, members will have the text, as will the witnesses. The Committee will not take evidence twice or call witnesses back unnecessarily. The call for evidence is based on policy, and that is where you can proceed. As I said, other Committees have done that successfully in the past, but it is a matter for the Committee to resolve in due course.”
“The Member is being very generous. It is important that we put some of those points to rest during the debate. I do not want my speech at the end to be so long that everybody has fallen asleep, and Justin has to tell them to wake up. The policy intent of each of the six areas has been laid out before the Committee, so you know what we intend to do. It is for the Committee to decide whether to go ahead with a call for evidence. If you wish, you will be able to do that on the basis of policy; Committees have done that before. Once that call for evidence concludes, you will have all the written clauses. By the time you start clause-by-clause scrutiny and take evidence from witnesses, you will have the written clauses. I reassure the Committee that there will be no duplication of effort in that regard.”
“I thank the Member for being so generous in giving way. The specific issue is about creating two new offences. One is the direction of organised crime, which has been defined in policy terms and which you will see in the legislation. The other is a separate offence of participating in organised crime, which is where, although it cannot be proven that somebody was directing the crime, they were a participant in it. The reason for the two offences is that there are two different capacities in which people act. <BR /> <BR />The issue of coercion and child criminal exploitation is being addressed through a policy that was launched jointly on Monday by me, your colleague, the Health Minister, and the Minister of Education. We recognise that as an issue, but it is not impinged upon by those two new offences.”