Trevor Lunn
Lagan Valley · Independent · Northern Ireland
“I know what I am going to do: I am not quite sure what he is going to do. <BR /> <BR />In discussion at the Committee, we had submissions from the Council for Catholic Maintained Schools (CCMS) and the Catholic Schools' Trustee Service.”
“They are relaxed about this. I know that they have some concerns about the Catholic ethos of their schools, but I cannot believe that the admission of non-Catholic teachers into Catholic schools will change the ethos of those schools at all. There is more of an obligation on teachers coming in to accept that ethos and run with it.”
“All that I can say to that is that the women, mostly, and couples who go to an abortion clinic, advisory service, hospital or private hospital are also entitled to freedom of movement and freedom of action. They are entitled to that under the law that was brought in by the British Government.”
“. Not yet, anyway. We have had this Bill from Chris, two Bills from the Green Party, and I forget the others. It has been a good day and, as others have said — yes, Pat Catney, of course, my constituency colleague, as well — it indicates what the Assembly is capable of.”
“The other day, we talked about the Brook advisory clinic and all the shenanigans around it. Most people here are too young to remember that, but it was effectively the same issue. <BR /> <BR />We are where we are. I hope that the Bill will pass; I am sure that it will now, judging by the tenor of the House. It will be another step.”
“<BR /> <BR />Back in 2015, I decided to visit the Marie Stopes clinic. I wanted to find out exactly what it was about. That year, the police had been called to the front of the clinic 200 times.”
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“With regard to amendment No 8, it is entirely my fault, but I do not have article 16(3)(b) of the 1996 Order in front of me, so I do not quite know what the full context would be. I gather that the Minister thinks that it should be dealt with down the line by way of regulation. If I read it right, the DUP is content with it as it stands. I will take the Fifth Amendment on that one and rely on what the Minister says when he sums up. On the face of it, I cannot see much wrong with the amendment, but we are open to persuasion: we are the Alliance Party, you know. <BR /> <BR />Amendment Nos 9, 10 and 11 each state:”
“Why would it not? If it finds a problem with a child, whether in the course of normal investigation or in the course of an assessment, you might expect that a health authority would be obligated to provide whatever therapy and treatment would be beneficial to a child. It does not strictly say that it should be beneficial to the child's education. It is a cover-all clause. I do not say that it is badly worded or too wide, but I would like to hear what the Minister has to say about that clause when he sums up.”
“Mr Rogers referred to this and said that, if it will help the child, that is sufficient. It goes on:”
“<BR /> <BR />Amendment No 6 is the one about oversight by the RQIA. To put it bluntly, that seems appropriate to me. I have forgotten whether the DUP and Sinn Féin said yes or no, but I am sure that I will find out shortly. It clearly needs some sort of oversight. The RQIA is in place and, as I understand it, has volunteered to deal with this. The only objection seems to be again that we are trespassing into the remit of another Department. It is the same as with the previous amendments. I say: why not? Where is the harm? There is a solution here; let us go for it. Unless somebody comes up with a convincing argument as to why we should not run with it, we will certainly support it. <BR /> <BR />The wording of amendment No 7 troubles me slightly. It says:”
“We got advice on that. It is probably not something that we need to do all the time, but I do not see it as any kind of duplication. It is worthwhile. <BR /> <BR />Along the way, Mr Agnew's very worthy Children's Services Co-operation Bill came over the horizon. It is about to become an Act. I congratulate him on that, as it is a superb piece of legislation. Immediately, the Department of Health jumped on it and said, "Yes, that will sort out the situation. You do not need to worry about placing an obligation on us through an education order". I just thought that that was a bit too handy and, frankly, a bit too glib. I am happy with amendment No 5. Even if there is a level of overlap or duplication, I still propose that we run with it and leave it there, and I hope that that is the outcome of the debate.”
“Amendment No 5 is the one that I really want to talk about; it is the one about cooperation, particularly with the health and social care services. There is a bit of history to this. In the first part of those nine years, we were told often enough that there was not a problem, that the health services were up to the task and that we did not need an obligation and did not need to go through all this nonsense as long as they were on their honour to cooperate. In fact, the history of non-cooperation is well documented and extremely frustrating, and one of the logjams in the whole process has been waiting for Health to step up to the mark. Many of us thought that the way to deal with this was to impose a duty. I hear when the Minister says that we are crossing over and are trying to impose an obligation on another Department.”
“I am fine with, "take all reasonable steps". No problem at all. <BR /> <BR />Amendment Nos 3 and 4 are about the transfer of information. They are fine; I do not think that we will have any disagreement about them. Why did it take so long to come to an agreement about this? We were constantly told that this was not necessary and that the receiving school did not have to get the information from the delivering school and so on, yet it is obvious that there should be continuity. However, we have it now, and although overdue it is extremely welcome.”
“The Chair, the Minister and, I am sure, everybody else would agree that that is what it is all about: it is for the benefit of special needs children in our community. <BR /> <BR />I will briefly look at the amendments. I am not going to comment on the whole Bill, because there will be another day for that. I will just look at the amendments today. <BR /> <BR />Amendment No 1 — we are actually past that — will leave out "may" and put in "shall" in respect of the regulations. I like that. When a Bill says "regulations shall" rather than "regulations may", it fills my heart with joy, because it means so much more. It closes a loophole that was half a mile wide, Minister. So, I look forward with pleasure to the regulations. <BR /> <BR />Amendment No 2 just puts in the word "all", but that really does strengthen the duty involved.”
“I am sure that the departmental staff must be tired looking at us, frankly, because they have been there so often, but what they have done and the advice that they have given us have been much appreciated. I think that it is confirmation of the level of agreement across the Committee and the Department that we have got to where we are now, and we are near enough at the end of the process. We are down to 12 amendments, a half-dozen of which are not really contentious at all. I am sure that we can come to some agreement on the other half-dozen. They have all been brought either by the Minister or the Committee, so I think that we are getting somewhere. <BR /> <BR />I think that the eventual passage of the Bill will leave children and their parents in a better place in terms of procedures, rights and outcomes.”
“I largely support the Bill and the amendments. Mrs Overend mentioned the fact that the first review was perhaps nine years ago. I think that only I and the Minister have been involved with this right through the whole nine years. It sometimes feels like 19 years, but I am glad that we have got to where we are now, and I welcome the Bill having got to this stage. <BR />Over those nine years, the amount of concern, lobbying and difficulty reported to all of us in our constituency offices and in the Committee has been unbelievable, so we are making good progress. We have had to take a long time over it, and the Chair referred to the number of submissions and oral evidence sessions.”
“Is that the best we can do? Ministerial meetings are hardly an achievement. Will the Minister flesh out what the "positive achievements" have been since the last summit?”
“I thank the First Minister for his statement. I know that these things are necessarily brief, but I am looking at the BIC work sectors section of the report, which says:”
“The word that he is taking exception to in the amendment is "ensure". I really wonder what the difference is. There is no question here — Mr Maginness is right — of the ombudsman's office being asked to pay for legal representation. If that had been the intention, we would have said so. It does not mention legal aid, assistance or anything else. There is absolutely nothing in that amendment that gives rise to the assumption that payment by the ombudsman's office or some sort of legal aid would be required. It is just not there.”
“I thank the Chair for giving way. If this is the only reason why the OFMDFM Committee objects to the amendment, it really does not withstand scrutiny, with due respect to the Chair. The original wording states:”
“I had not thought to compare those two situations, but, off the top of my head, I would say yes. People who appear before the historical abuse inquiry should certainly have the option, at their own request, for legal representation if they so desire. <BR /> <BR />That is really all I have to say about it. I hope that good sense will prevail and that the House will carry the amendment.”
“I do not know if it is at the discretion of the ombudsman to decide halfway through his process, "No, hold on. You need legal representation." That would be entirely unsatisfactory because the person under pressure may have done their case some damage before the ombudsman took that decision. <BR /> <BR />It is all unnecessary. If somebody wants legal representation, or representation by a trade union, an MLA or whatever, I see no reason why they should not have it. It will not add to the costs of the ombudsman's process.”
“The matter was thoroughly discussed at the Ad Hoc Committee, and while only three of us, I think, indicated our dissent, I got the feeling that the Committee, as a whole, was probably in favour of an amendment along these lines. <BR /> <BR />I hope that, even at this late stage, the House can see the sense of the amendment and will be swayed by Mr Maginness's and my argument for allowing something that is relatively simple and, to me, is a requirement of natural justice. It gives us an assurance that every once in a while a case going before the ombudsman will not fall foul of the system because the person should have had legal representation. Unfortunately, as things stand at present, once a thing starts it is too late to do anything about it.”
“<BR /> <BR />The ombudsman has unlimited powers to make a recommendation for financial redress. It is quite a serious thing. The process, if not a court process, effectively has the status of one, and the potential effect on a defendant's reputation is severe. <BR /> <BR />It is quite simple. It is currently at the discretion of the ombudsman to allow legal representation if he thinks fit. All we want to do is change that to a situation where he cannot refuse, if the defendant or the complainant think that they need it. That seems entirely reasonable to me. I understand that the wording goes right back to a 1969 Order, which was read out to me over lunchtime. It is pretty much the same thing. <BR /> <BR />Frankly, I do not understand the objection made by the Committee for OFMDFM.”
“I am happy to support what Mr Maginness has said. I wonder in what circumstances currently the ombudsman would refuse a reasonable request for legal representation or representation by somebody else — a trade union representative or even an MLA. There would have to be a really valid reason for refusing representation, but I am not at all clear what that might be, bearing in mind that this process, which starts with an ombudsman's hearing, terminates in a judgement and a recommended award, which are then challengeable by either party through a County Court action or judicial review. <BR /> <BR />The British Medical Association, in particular, said that it would like its members to be represented properly from the outset of proceedings, rather than have to bring in legal representation at some future stage.”
“On a point of order, Mr Deputy Speaker. Last Tuesday, I was supposed to ask a question of the Minister of Culture, Arts and Leisure, but I was not in my place. I want to apologise to Mr Newton, the Principal Deputy Speaker, who was in the Chair; the Minister; and the House.”
“Halfway through his own process, he might decide that that is necessary, by which time the defendant might have done himself some disservice with the outcome, which he might not have done had he had legal advice. The two things are linked, if you do not mind me linking them publicly. <BR /> <BR />I cannot think of much else to say. I really believe that this is an unnecessary clause in otherwise good legislation. I have no quarrel with any other amendment that I am aware of, except perhaps amendment No 75, which we will come to. I hope that the House will think about clause 46, and, if anyone else is going to speak to it, I would like to hear their justification for including it.”
“In 95 cases out of 100, the clause will not have to be invoked, and they are not all medical situations. I would like to think that it will never have to be used. However, there are bound to be situations in which a defending doctor feels aggrieved about the outcome of an ombudsman's investigation and perhaps about the size of the award or the amount of redress, which, as somebody already said, could extend from a handshake and an apology to a five-figure sum of money changing hands. <BR /> <BR />As I started off by saying, in the legislation as it is framed, there might not have been an opportunity for legal representation. I do not want to talk about another clause when Members should be talking about this one, but, that having been said, the ombudsman currently has the discretion to allow for legal representation.”
“<BR /> <BR />I was going to stop, but I will give way to you.”
“I thank Mr Maginness for that: it probably illustrates why he is a barrister and I am not. The point is well made. I will go back to it, but I will not keep talking for the sake of it. I would rather listen to people justify why the clause has to be included than have us try to justify why it should be excluded. The weight of argument and the weight of legal reasoning are on our side. The weight of opinion on the Committee for the Office of the First Minister and deputy First Minister and perhaps, eventually, the Ad Hoc Committee is that the subsection is in some way harmless, but I would like to think that we have demonstrated that it has the potential to be far from harmless. I keep going back to the point that there is no need for it. Somebody justify to me why it needs to be in there, rather than the other way around.”
“<BR /> <BR />I do not see the point of this step — this link in the chain — where the ombudsman can effectively put pressure on a defendant to settle rather than run the risk of going to the County Court. It does not seem necessary. You are leaning forward, Mr Maginness.”
“I thank Mr Nesbitt for that. As far as the comparison with somebody going to the County Court is concerned, let us put it the other way round. If somebody wants to make a complaint against a doctor, they can do it through the County Court. They do not need to go through the ombudsman. If they go to the ombudsman and the complainant feels aggrieved that the recommended redress has not been provided, obviously they can go to the County Court. Anybody who goes to the County Court in this country would be well aware that they have no protection from publicity or reputational damage. That would be a decision for the doctor, GP, dentist or whomever to make. They would have to make the decision whether the ombudsman was involved or not.”
“I do not think that there is any need for this. I take note of the fact that other jurisdictions seem to see it differently, but frankly, Mr Speaker, it would not be the first time that we had gone against the practice of other jurisdictions; in fact, we make quite a habit of it here. It is not so important from that point of view.”
“It can comment on it, but you would like to think that, in the case of potential reputational damage, it might not wish to comment on the report. The fact is that the action of the ombudsman passing a special report, only on a very special occasion, greatly adds to the weight and effect of the action of having done it. The report goes to the Health Committee, and what is it supposed to do? <BR /> <BR />The only thing that such an action has the potential to do is to put pressure on the person who was complained against to settle, even though they do not feel that the ombudsman's decision was correct. I am thinking more of the ombudsman, but you could have a situation where a defendant has decided to go to judicial review and, at the same time, perhaps, the ombudsman is preparing a special report.”
“I go back to subsection (2), which is the one that we would like to see removed. The effect of it would be that, if the ombudsman thinks that redress is not being provided or is not likely to be provided, he can do a special report to the Assembly and whether it is anonymised, redacted or otherwise it does not make a lot of difference. Mr Maginness is right; in the small country we live in, it is difficult to conceal identities. The effect would be that the report, I believe, in the case of a medical situation, would come to the Health Committee. What on earth is the Health Committee supposed to do with such a report? I will give way to anybody who wants to tell me. All the Committee can do is note the report; it cannot enforce it.”
“Nobody is arguing with that. We do not have a problem with investigations under section 8, which, for the uninitiated, are investigations that the ombudsman has brought on his own initiative. Nobody has referred to subsection (4) of clause 46, which states that:”
“His procedure may not be a court in the legal sense of the word, but it has the status of a court, and it certainly has the ability to do as much damage. It could potentially damage the reputation of a defendant as severely as a court. I do not mean that in a disrespectful way to the present ombudsman, who I think has done a terrific job in his tenure. <BR /> <BR />Clause 46, first of all, states that:”
“There is actually a judicial review pending on quite a serious case. I think that it is JR 55 if anybody wants to keep track of it. It is not coming up until March 2016. It involves a considerable sum of money and the potential for considerable reputational damage, but the person who has been complained against feels strongly enough to take it to judicial review. <BR /> <BR />I agree with some of the things that Mr Nesbitt said. The idea here is not to drive people into court but to keep people out of court. That is fair enough; it is what the ombudsman's procedure is for. The ombudsman has the ability and power to make a recommendation for an amount, which I believe is unlimited at the moment.”
“As Mr Maginness, rightly, says, there are legal remedies if the injustice is not or will not be remedied or adequately remedied in the opinion of the ombudsman. The complainant has the option, as he would have had in the first place, to go to the County Court and seek redress, bearing in mind that the ombudsman's decision is a recommendation, not a ruling or an award. <BR /> <BR />I am more concerned about the situation around whom I call "the defendant" in these situations — the doctor who is complained against — and his rights. I probably keep on saying "he", but I mean he or she. I do not think that Mr Maginness mentioned it, but the redress that that doctor would have is that they can seek judicial review of the ombudsman's decision. On either side of the discussion, legal redress is already available.”
“<BR /> <BR />In a way, clause 46 relates to another amendment that we will probably come to in the next group. If I may, I will just refer obliquely to it. It is amendment No 75 on representation at the ombudsman's hearing. You could have a situation — we are really speaking about the medical profession — where a doctor is brought before the ombudsman because of a complaint. At the moment, it is at the ombudsman's discretion whether he is allowed to have legal representation or not. That is a discussion for another day. It may well be that you will have an ombudsman's hearing involving a complaint against a general practitioner, doctor or dentist where there has not been legal representation.”
“I will try not to repeat everything that Mr Maginness said, but it would probably make for another good speech. I must say that I agree with Lord Morrow that the Ad Hoc Committee, certainly initially, did have a certain amount of sympathy for this particular proposed amendment. As a Committee, I am not so sure that we agreed not to run with an amendment. We kind of agreed that the primary Committee on this would be the Committee for the Office of the First Minister and the deputy First Minister, and we tacitly accepted what its attitude would be. My problem with it and the reason why I pushed it at the Ad Hoc Committee and since is, frankly, this: what is the point of clause 46(2)? Mr Maginness mentioned naming and shaming. That is descriptive language, but it is perhaps not far off the mark here.”
“The Member is concentrating on the cost, and that is fair enough, but there is an awful disparity between the figures in the motion, the figures that were on the news yesterday and, for instance, Mr Nesbitt's figure of 0·45% of our gross spend. Which is the right figure? What does the £167 billion represent and over what timescale?”
“I thank the Minister for his answer. Have there been any discussions with OFMDFM about potential community relations problems? Is it the intention that the refugees should be clustered, if I may use that word, or dispersed across Northern Ireland?”
“I enjoyed Mr Bradley's history lesson. I can add slightly to it, because I hold two certificates from a year that I am not going to mention: one for GCE and one for O level, both awarded in the same year. That was before the "S" came in and probably before the changes that Dominic mentioned. Does this mean that we will have five different systems across these islands, as we are prone to say, including the Republic of Ireland? Is the Welsh model the same as ours? I am not too familiar with the Scottish model. This is total confusion for portability and comparability purposes and for the universities that will be trying to weed out what the qualifications mean.”
“It is inconceivable that we will have the money in the next number of years to do all these projects, so is there any prioritisation in the scheme of things? If so, what is coming first and what is on the long finger? <BR /> <BR />Obviously, we will support the motion.”
“I was coming to the Belfast International Airport, but thanks for the extra minute. I favour the reopening of the Knockmore link. Anybody who lives in Lisburn would say that that is a good idea because it was a good commuter line and could become busier than it was. I also favour a link to Aldergrove airport, which could be done quite easily. It would also be quite easy to provide a spur to the Maze, if anything is ever done at the Maze, of course. In the overall scheme of things, I fancy that that is probably bottom of the list. <BR /> <BR />There is nothing here to oppose. The new Minister hardly has her feet under the table, but I am sure that she has plenty of ideas. I would be interested to hear where her priority is.”
“At the moment, they have to get to Belfast and then get on the Enterprise.”
“If there is a proposal to change that route to make it easier for people coming from the north-west by train to link up to the Enterprise, I query whether it is worth the cost.”
“That is the reason for the Southern Government's interest in it: it is part of their overall strategy for an all-Ireland network. That is very laudable. I do not know the road, but I am told that the section to the south of Aughnacloy is single carriageway. It is not as if they have brought the dual carriageway to the border and are waiting for us to do the rest. It would open up the north-west and Donegal, and I could not argue with that. I would love to see it done. <BR /> <BR />I am slightly intrigued by the reference in the motion to the reopening of the Antrim-Portadown line. As a native, I was not aware that there was an Antrim-Portadown line, so I presume that you must be talking about what I would call the Knockmore link, which is the line from Antrim that goes through Lisburn and into Belfast.”
“It is not purely a matter of traffic movement around Dungiven; there is also the question of pollution and the detrimental effect on the population. The last time that we debated this — it was not that long ago; about a year, I think — I came down in favour of Dungiven being first, if there was to be prioritisation. <BR /> <BR />The A5 intrigues me. Apparently, it is a priority project for Martin McGuinness. It is a stand-or-fall project, and the whole Assembly will collapse if we do not upgrade the A5. The section of the A4 from the end of the motorway to Ballygawley shows what can be done; it is fantastic. The main problem is from Ballygawley to Strabane, but the A5 also extends the other way, down to Aughnacloy.”
“It is a massively important road, but doing the whole upgrade is a massively ambitious project. A motorway from Belfast to Londonderry sounds terrific, and a cost of £350 million would not surprise me at all. There are real bottlenecks, including the Moneynick section, as we know it. I happened to listen to the radio traffic report today at 7.20 am, and the advice was to avoid the Moneynick Road. Apparently, it was absolutely chock-a-block and at a standstill before 7.30 am. For traffic management and speed of access, that is perhaps the most important section of the whole road, but it would not be good news for the people of Dungiven, who have been waiting, as somebody said, for close to 50 years since they were first promised a bypass.”
“I also welcome the Minister to her new post and wish her well. <BR /> <BR />I will say this for you, Mr Dallat: the motion is nothing if not ambitious. I have to agree with it because, if you are not ambitious, you will not realise ambitions. <BR /> <BR />I will deal with the Belfast-Londonderry train service first. It is not a service with which I am particularly familiar because I tend to drive, but the comparison with Slovenia or anywhere else on the Continent is correct: we are miles behind. The United Kingdom is miles behind countries that have far fewer resources and much less access to finance than us. I hope that that project will be completed sooner rather than later, because it is high time that it was. <BR /> <BR />The A6 project seems to have been going on for ever. I see it in different sections.”
“I doubt very much that, if somebody puts in targets, all of a sudden there will be a transformation in the situation. It will be interesting to hear what the Minister says about it.”
“It is already there in a document that is almost four years old. Frankly, I wonder how the inclusion of subregional targets would improve the situation. <BR /> <BR />We will not oppose the motion. It is open to question.”
“On equality of opportunity, fairness, inclusion, the promotion of good relations and all the rest of it:”
“Here are quotations from the last Programme for Government and economic strategy:”