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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“There are eight clauses in chapter 3 of Part 2 and one associated schedule. <BR /> <BR />Insofar as it may assist the Assembly in considering the motion, I will summarise the nature and extent of the powers in short form as follows. Clause 37 creates a clear statutory basis for extracting information from digital devices with the agreement of the user of the device. That power can be used for the purposes of:”
“A subsequent ICO report on mobile phone data extraction by the PSNI from 2021 further recommended that the legislative framework on data extraction should be strengthened to ensure clarity for victims, witnesses and offenders and to clarify the lawful basis for such extraction. <BR /> <BR />In response to those concerns, the provisions in chapter 3 of Part 2 of the Police, Crimes, Sentencing and Courts Bill introduce a specific legal basis for the extraction of information from the digital devices of complainants, witnesses and others, such as deceased or missing persons. Taken as a whole, the provisions are intended to:”
“Everyone needs to have confidence in this critical area of investigative practice in which information is only taken and should only be taken when it is absolutely necessary to the investigation to do so, rather than simply as a matter of course. <BR /> <BR />In 2020, the Information Commissioner's Office (ICO) published a report into mobile phone data extraction in England and Wales. That report identified inconsistencies in the approach taken by police to the extraction of data and to the complex legal framework that governs that practice, especially when the device belongs to a victim or witness of crime.”
“<BR /> <BR />The extraction of data from mobile devices is incredibly important. With so much of our lives being lived online, the ability to extract that information has become a crucial factor in helping law enforcement to bring offenders to justice. The expansion of digital and mobile connectivity means that the relevant evidence needed to support prosecution is very often held on a device belonging to a complainant. However, the rapid and sustained growth of digital devices and the volume of information that they contain present a clear challenge, particularly when much of that information may not be relevant to the case.”
“<BR /> <BR />Today's motion covers an unrelated matter that will extend to Northern Ireland: a legal basis for the extraction of information from digital devices of complainants, witnesses and others. For most of us, our lives are integrated with technology. Increasingly, the extraction of data from mobile devices is a reasonable line of inquiry in criminal investigations. Indeed, in the previous debate, the Justice Committee referred to the time that it spent with the cybercrime unit of the PSNI. I also recently visited that unit, and I have to say that the work that it does, particularly in relation to the Dark Web, is troubling and disturbing. However, it is also incredibly reassuring that that unit is there, trying to ensure that many of those issues are kept under some kind of supervision and control.”
“This is the second legislative consent motion (LCM) on the Police, Crime, Sentencing and Courts Bill that has been brought to the Assembly for debate. As I said in the previous debate, although the Bill that was introduced in Westminster in March 2021 deals with a number of very contentious policing and justice issues, Members will be aware that the powers included in the Bill will apply only in England and Wales and that they will have their own positions on those matters in Westminster. However, with due respect to those particular issues, there are some non-contentious and important provisions in the Bill that impact on devolved responsibilities. Our seeking a legislative consent motion on those non-contentious matters is without prejudice to individual parties' positions on the wider Bill.”
“That is the case, but, as the Member will be aware, it will be based on their need at that time. If someone no longer needs support, we will not direct it to them, but, if they need that support, it will continue. I reassure Members about that. <BR /> <BR />It is good that we can finish united on a point at this stage, having had such a lively debate earlier. It will also be good to send the strong message to the community that there are times, even in such a divided place as this, when we speak with one voice. It tends to be those times when our voice is raised on behalf of those who do not raise a voice of their own.”
“That might be something that we do not see often in the Assembly and in our politics, but, on issues of this importance and this seriousness, I hope that it gives comfort to those who are vulnerable that, on all sides of the House, we agree that the support needs to be there for those at that most vulnerable point. <BR /> <BR />On that note, I will finish by thanking all those who contributed to the debate. It was constructive, if short, and I hope that, when we get to the Final Stage, we will —.”
“It is important that we hear from those who are living the experience in order to know where improvements need to be made, and we must commit to continuing to do that. It is through the combined efforts of all those groups that this last Bill has reached the point at which there is only one final hurdle to clear. <BR /> <BR />I thank the DUP Members, who will not move their amendment. I will not veer into the political and say whether I negated them or they drew me on to their territory. It is sufficient to say that, on matters of this importance, the entire House stands united.”
“I also thank victims themselves, who have come forward and discussed the issues with us. The Chairman rightly mentioned those who have been working in particular with people who are vulnerable as a result of human trafficking and as a result of migration and, indeed, migration crime. It is hugely important that their voices be heard and that they be able to feel ownership and agency on the issues that impact so directly on their lives. I am proud of how the Committee and the Department have engaged consistently with victims' groups and organisations, listening carefully to their views. One of the most important lessons in my role as Minister is that, often, listening to the experiences of victims will find us at odds with what our expectations of process might be.”
“<BR /> <BR />I also acknowledge the efforts of my officials, who went the extra mile in dealing effectively with the many and varied challenges that the pandemic and the shortened mandate have thrown up as we seek to legislate. They also sought ways in which we could ensure that the Committee's ambitions for the Bill were not constrained by the fact that I was unable to table new or novel amendments but that the Committee was able to do so on issues such as cyberstalking and many others. It stands to the determination of the Department of Justice that, irrespective of who the Minister may be, there is a commitment at official level to drive forward the process to protect the most vulnerable. <BR /> <BR />Last and by no means least, I thank victims' organisations.”
“Their commitment to progressing important and necessary legislation that is in the interests of our entire community reflects well on the Assembly and especially on the Justice Committee, past and present. I particularly thank the Justice Committee, its current and previous Chairs and Deputy Chairs, Committee members and support staff for their continued engagement and commitment throughout this period and for the positive and constructive measure of that. I am also grateful to the Office of the Legislative Counsel for its expertise and support in turning legislative ambitions that I had at the start of the mandate and that the Committee had towards the end of the mandate into sound legislation and to the legal resources in the Departmental Solicitor's Office for their tireless advice and support.”
“We think particularly of Ukraine at this time, but there are many other places across the globe where people face war and destitution and seek refuge in a safe place. It is important that they be able to do that, because the danger is that, if they cannot do that via safe routes, they will fall prey to human traffickers who would exploit them in the most heinous fashion. It is right that, as a society, we should ensure that there are safe routes, but we should also ensure that, when people come here having been trafficked, we support them in starting to rebuild their life and restore their dignity. <BR /> <BR />The Bill represents the last of five substantive pieces of legislation that I wished to see pass through the House over the past two years. We will have an opportunity — soon, hopefully — at Final Stage to have a wider debate.”
“I certainly do not want to wind anyone up; I will just wind up the debate. I thank the Chair and members of the Committee. We have navigated a complex space at a difficult time. The Committee has been of great assistance to me and the Department in bringing forward things that I, as a Minister, could not do in the absence of an Executive, so I appreciate that flexibility. <BR /> <BR />I also recognise that, while we are and should be good-humoured in the Chamber when we agree, the issues that we are dealing with are not humorous or funny. They are serious issues. I think that we are all particularly aware at the moment of their impact on those who, for whatever reason, need to flee difficult situations.”
“I will draw my remarks to a close, because I realise that the Committee Chair has been incredibly gracious and feels that his graciousness is being tested. I will not detain him any longer than is absolutely necessary.”
“My amendment not only renders the DUP alternative nugatory but is a more open solution in that the provision does not make any reference to exceptionality in order to do so. I therefore oppose amendment No 33 and encourage Members to vote for my amendment No 32 instead. <BR /> <BR />It is heartening that, despite the fierce debate that we had on the first group of amendments, we managed to agree on pretty much everything when it came to the vote. The time was not wasted, but that exposed that, whilst we have different perspectives, we have a unity of purpose in trying to get a Bill that is fit for purpose and sustainable. I hope that that will also be the case on the second group of amendments.”
“<BR /> <BR />The only other amendment in the group is amendment No 33, which has been tabled by the DUP members of the Justice Committee. I do not consider that amendment to be necessary, as my amendment No 32 delivers exactly what that amendment seeks to achieve. Amendment No 32 will amend the same section of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (HTEA) to provide that:”
“Amendment No 31 is one of a small number of amendments that I have tabled to correct some technical issues with aspects of the support for victims of trafficking provisions that the Committee added to Part 2 of the Bill at Consideration Stage. Amendment Nos 31, 32 and 34 to 41 are all amendments to correct aspects of the human trafficking additions to the Bill that the Committee sought. <BR /> <BR />As with the technical amendments to clause 18 in group 1, there is not really much more to say on the amendments, other than to reassure Members that they are intended only to make the Committee's provisions operate as intended. Therefore, I do not intend to detain the House any longer on those matters. Given that they have the Committee's support, I encourage Members to vote for their inclusion in the Bill.”
“This is about creating law that must be robust, enforceable and meaningful if we are to protect the very vulnerable young people whom the Committee is concerned about. I make it absolutely clear that my commitment to the urgent review of tuition and youth organisations is not subject to amendment Nos 19 or 20. I am making that commitment irrespective of those amendments. You do not need to vote for amendment No 20 to ensure that that happens. You have my commitment that that will happen, and it will start in this mandate.”
“— and I am always very pleased that he is so. <BR /> <BR />The purpose here is to remember what the competence of the Assembly is. The Assembly has no competence when it comes to making law that impacts on human rights. Human rights are not a devolved matter, and that is where the problem lies. We would be changing human rights legislation that we have no permission to alter, and that is the risk. <BR /> <BR />I entirely agree with the Committee Chair that these are serious issues. However, process, procedure, scrutiny and all of those things need to take precedence over emotive issues, because we are creating law. This is not just a debate about the rights and wrongs of the abuse of trust: if it were, there would not be even a paper-thin division between any of us.”
“The Chair has been very gracious in giving way —”
“Will the Chair give way on that specific point?”
“I do not wish to over-labour the point. That is not my primary concern. My primary concern is that all we have to review, based on your amendment, is what is in the Bill. A Minister who chose to save time and energy in the Department by doing only that would be able to do so. With my amendment, that Minister would not; they would have to take that wider review within two years.”
“I hope that we will be able to resolve the issues with amendment Nos 19 and 20, even in the next few minutes. I genuinely believe that the Department and the Committee are not at cross purposes on that matter, but, perhaps, we are not entirely clear about the basis on which our concerns are founded.”
“That provides reassurance at this late stage in the mandate that it cannot become a tick-box exercise after this mandate has concluded. To restate: it is entirely additional to the commitment that I gave to carry out an immediate and urgent review of the two sectors that were raised by the Committee. <BR /> <BR />I call on Members to support amendment No 19. If it falls, I will not oppose amendment No 20. Although it is limited, it does no harm to the Bill and would still allow for a Minister who so wished to carry out a broader review. It would not prevent them from doing so, but its weakness is that it would not require them to do so. That is a weakness in the Committee amendment that is addressed in mine. <BR /> <BR />With that, I commend the amendments to the Assembly.”
“The advice of our legislative interpreters in the OLC and the people whom it commissioned is that what the Committee drafted is now incredibly narrow because of the loss of the second part of the clause. What I proposed is much broader. I am appealing to common sense, so that we can find a way through. I will not force a Division on it, but, when we have a call for voices, I hope that Committee members will consider whether a broader review may be a wiser choice. <BR /> <BR />I remain absolutely committed to undertaking the urgent review that I mentioned earlier today. However, my amendment has the advantage of ensuring that any future Minister of Justice would be compelled in law to undertake a wider landscaping review.”
“It is for this reason and this reason only that I am minded to proceed with that amendment, in the hope that the Committee will be able to support it. However, if it is clear at the point of Division that Committee members are not content to support it, I do not intend to divide the House on the matter. I want to give Committee members the opportunity, having heard what I had to say about the amendment that I tabled, to reconsider their position, even at this stage. <BR /> <BR />I stress that that is not to disparage the amendment that was tabled by the Committee or, in any way, to disparage the work done by the Bill Office. However, the Bill Office is not giving the Committee legal interpretative advice.”
“It would therefore only require a review of article 29A(1), which relates to areas of sport and religion, which are already in the legislation, and would miss the areas of concern that members have sought to see covered. <BR /> <BR />My alternative, amendment No 19, reinforces my commitment to review the entire landscape, but in a measured and proportionate way. I know that the Committee was seeking a much wider review, and I believe that my amendment No 19, which requires the Department to make a full assessment of the effectiveness of the abuse of trust provision, is far better able to deliver against the Committee's requirements and expectations than the limited review proposed at amendment No 20.”
“It would therefore place a disproportionate burden on departmental resources and, potentially, render further reviews after the first year relatively meaningless, because it would simply be looking at the same provisions year after year after year. <BR /> <BR />The withdrawal of the Committee's amendments to extend the scope of the abuse of position of trust to tuition and youth activities also means that the Committee's review amendment cannot be fully effective, because it originally referenced a review of articles 29A(1) to (2B) of the Order. As the Committee has not moved its tuition and youth activities amendments, a new article 29A(2B) is not created, so the Committee's review mechanism would point in one part to a legislative reference that does not exist.”
“<BR /> <BR />Amendment Nos 19 and 20 both seek to establish a review mechanism relating to abuse of trust, but amendment No 20 has significant limitations that frustrate the Committee's good intentions. The Committee amendment places a statutory requirement on my Department to annually review 29A(1) to (2B) of the Sexual Offences (Northern Ireland) Order 2008 to inform the Department whether the power in article 29A(4) of that Order should be exercised. I have explained what article 29A(4) does, so I will not do so again. What it does, however, is simply to put an operational requirement on the Department to conduct a review of those items already allowed for under abuse of trust legislation.”
“Article 29A(4) provides a delegated power enabling the abuse of trust provisions of the 2008 Order to be amended by secondary legislation to include new categories beyond those currently provided for at clause 3 of the Bill. I am in favour of a review mechanism being in the Bill, but I have reservations, first of all, at the frequency of the review in the Committee amendment. However, I was content to support the Committee's amendment in this respect and not move my alternative until a number of specific issues emerged when this became a stand-alone provision on the Committee's decision not to move the amendments on abuse of trust. I am extremely grateful to the Committee for raising the issue, but my review commitment is a balanced and proportionate way forward.”
“<BR /> <BR />I will also speak briefly about the proposals for the wider review of those provisions. I want to make it clear to Members that this does not in any way impact on the commitment that I have just made to the urgent review. That will go ahead. It will start in this mandate, and we will proceed with that as quickly as is possible. What I am going to say now relates to only a future review or series of reviews, but the issues that the Committee has brought to my attention around youth work and tuition are areas that we will take forward irrespective of the decision with respect to amendment Nos 20 and 19. <BR /> <BR />The Committee amendment places a statutory requirement on my Department to annually review articles 29A(1) to (2B) of the Sexual Offences (Northern Ireland) Order 2008 so as to inform the Department:”
“<BR /> <BR />In recognition of the Committee's genuine concerns about the possibility of an abuse of trust occurring in areas such as tuition and uniformed and, indeed, non-uniformed youth activities, I commit today to my Department's carrying out an urgent review of those sectors to determine whether there is evidence of a risk of harm that would warrant a legislative intervention. That review will give us some protection when it comes to article 8, because it will allow us to demonstrate that we have acted in a proportionate and evidence-based manner. Should the urgent review identify evidence of risk of harm in those areas, my officials will act swiftly to bring forward a statutory instrument to add categories to the abuse of power provisions in the Sexual Offences (Northern Ireland) Order 2008.”
“It would appear that now the only way in which to do that is for Committee Chairs to refer their amendments directly to the Attorney General for advice. <BR /> <BR />We have raised the tabling and other issues at every stage. I hope that the Chair of the Committee will agree that, at every stage, we have sought to raise our concerns at the earliest possible point and to be flexible about providing access to the Departmental Solicitor's Office (DSO) and my officials, as well as for me to come along and speak to the Committee. The Department is not here to try to restrict the Committee in bringing forward issues that address its concerns. That is not my intent. My intent is to get a Bill that does what it intends to do and that the Committee can be proud of at the end of the process.”
“Miss Woods is quite correct that, had they been much more tightly drafted, the amendments might not have interfered with article 8 rights, but the amendments as drafted do. It is what the amendments as drafted would do in law, not the principles behind them or their intent, that we are voting on here today. <BR /> <BR />This is not a Back-Bench motion. This is going to create law that could see people go to court, end up on the sex offenders' register and face other quite serious consequences. We therefore have to be absolutely sure of our footing as we go forward. It is also the case that it is the responsibility of those who table amendments to check their competence, and that includes checking Committee amendments.”
“As we make legislation, it is incredibly important that we listen to those who are legally qualified and have experience of legal drafting and legislative interpretation, which is in itself a skill, and that we take account of the advice that they give us. It is not only about evidence. It is also a test of proportionality and scope. Those are therefore important issues. I am very grateful to the Committee that, following that advice, it will not move amendment Nos 14 to 18, which cover tuition and youth activities. <BR /> <BR />I understand what the Chair said about the issues not being raised early enough, but the issues emerged only when we saw the final draft. We knew that the Committee was intent on tabling amendments on the abuse of trust, but we could judge their scale and scope only once we saw the text of them.”
“I will move on. My concern was that the amendments could well attract legal challenge, based on the rights of an individual to a private and family life under article 8 of the ECHR. The amendments could be successful and take the Bill beyond the legislative competence of the House. I will be clear about the consequences. If we were to proceed with the wide-ranging amendments, the Bill could not be referred for Royal Assent. The Attorney General would first have to refer the Bill to the Supreme Court for it to make a judgement on the article 8 issue, and it could strike down any part or all parts of the Bill. The risk is that we could, at best, delay the entire Bill's coming into law or, worse, derail certain sections of it.”
“Rather, this is about due process. The issue is something that perhaps needs to be referred to elsewhere to be dealt with. It has been highlighted by this Bill, but it is not this Bill that will deal with it.”
“These are not matters that are critical of the Committee in any sense.”
“With respect, the Committee does not receive legal advice unless it goes and seeks it out. That is a lacuna in the development of legislation that Mr Storey and I have discovered through trial and error in this process. It is my understanding, from having engaged with the Attorney General, that the Speaker's Office does not rule on the competence of amendments, including Committee amendments, that are tabled to Bills in the House. Committees have therefore presumed that, if something is on the Marshalled List, it is fit for purpose and within the competence of the House and have not specifically sought the Attorney General's view on the matter as a matter of routine; whereas those of us who have to go through the Executive process get that review as a matter of routine.”
“That, in itself, should be a warning not just to the Justice Committee, which has done a good job in its scrutiny, but to all Committees that we need to be cautious about tabling amendments, however well intentioned, unless full legal rigour has been applied to their unintended consequences.”
“That is precisely the point: work has not been done with the sector to draft suitably proportionate amendments. Instead, wide-ranging amendments were tabled. That is the precise point. <BR /> <BR />In Jersey, for example, they have gone beyond the statutory sector and also included things like tuition, but they restricted it to one-to-one tuition, so an abuse of trust provision is required only where a person is alone with a 16- or 17-year-old. That is the exact point: if we do not do the due diligence and we bring forward well-intentioned amendments, we could put the scope of the Bill beyond the House's legislative ability.”
“I have never said that I am not concerned about it, and that is why I have committed to the Department's undertaking a review. The issue here, however, is about proportionality in order that we do not breach article 8. Those who are more knowledgeable on the law than I am, with whom you have already had this conversation, are very clear that the Department's stance is correct, in that we would potentially be exceeding the authority of the House to be able to do so.”
“Is a relationship between two young people in that uniformed organisation something that we wish to criminalise simply because one of those young people has two stripes on their uniform instead of one? We need to be seriously aware of the impact that that could have in criminalising normal teenage activity between consenting people who have the right to consent to sexual activity.”
“By engaging with the sectors and talking to them about their experiences in those areas, by engaging with the children's sector and talking to them about the level of risk, by looking to the abuse of trust provisions that are already there and where the gaps lie, and by engaging with other jurisdictions in their horizon-scanning exercises. We are doing it in a thorough way, but we cannot impose it on, for example, uniformed organisations without having had any engagement with those organisations on the issues in the run-up to doing so. <BR /> <BR />Take, for example, a patrol leader or team leader of a uniformed organisation who has no real, meaningful authority over the young people in their care but who may be 18 as opposed to 16 or 17, which some of the troop may be.”
“<BR /> <BR />In compliance with human rights law, it is important that, at all times, we maintain a proportionate balance between protecting our young people in vulnerable situations whilst respecting that they are young adults who have a right to engage in legal consensual activity in a relationship from the age of 16. Framing the provisions of trust too widely risks over-criminalising young people who could, without any malign or criminal intent in entering a relationship, find themselves guilty of breaking the law. The amendments would have substantially widened the scope of the abuse of trust and, in effect, would have raised the age of sexual consent by stealth even though Members were clear that that was not their intent.”
“<BR /> <BR />I was concerned that the Committee's amendments, which would greatly extend the scope of the current clause 3 provision, were not supported by solid evidence, and that key stakeholders and those directly affected had not been consulted. Miss Woods raised the issue of the difference between ourselves and Jersey. That is a key difference as there was not that evidence base and consultation and engagement with those sectors had simply not been undertaken. The proposals appear to have been based on a narrow view that abuse of trust could happen, rather than being supported by clear and robust evidence that there was a genuine risk of it happening. That risks creating bad law and an array of unintended consequences.”
“<BR /> <BR />I will now speak to what were the proposed amendments to clause 3 on abuse of positions of trust. As Members will be aware, clause 3 already extends the current abuse of positions of trust offences to capture those responsible for young people in the areas of sport and religion. The Committee had tabled amendments to extend the scope of provisions to capture two further areas — tuition and general youth activities — and to provide for a statutory review mechanism requiring my Department to carry out a review on a recurring annual basis with no end date, with a view to adding to current categories.”
“The amendment does not change the policy intent or the operational outcomes of clause 11 but ensures that the clause operates as intended. I encourage Members to support amendment Nos 21 and 22. <BR /> <BR />The next eight amendments, amendment Nos 23 to 30, are all technical amendments to address some small drafting issues with aspects of clause 18 relating to guidance on Part 1. There is not a huge amount to say about that — I am sure that you will be glad to hear that, Mr Deputy Speaker — other than to reassure Members that they are solely intended to ensure that clause 18, which the Committee took forward for inclusion in the Bill at Consideration Stage, operates as the Committee intended. The Committee has indicated that it is content with the provisions. I, therefore, encourage Members to support them.”
“For clarity, I should explain that the section 3 offence of the abuse of position of trust in the 2000 Act applied in Northern Ireland prior to the introduction of the Northern Ireland specific abuse of trust offences in the Sexual Offences (Northern Ireland) Order 2008 but would still potentially be applied in historical cases. <BR /> <BR />The amendment also proposes a minor amendment to clause 11(1)(k) to clarify that the common law offence of rape and all statutory offences listed in part 2 of schedule 2 to the Criminal Justice (Northern Ireland) Order 2008 are within the scope of clause 10. The amendment will ensure that the anonymity provisions operate as intended and that all suspects in sexual offence cases are able to have their anonymity protected up to the point of charge.”