Alastair Ross
East Antrim · Democratic Unionist Party · Northern Ireland
“Over the weekend, she supported an independent investigation into everything that is going on in the RHI scheme. She has been working with the Economy Minister to try to make sure that we have something in place in early January to stop the costs of the scheme and reduce the cost.”
“There is no doubt that it has been an incredibly difficult time over the past two weeks for anyone involved in politics. It is quite clear that the public are, quite rightly, angry about a scheme that, with hindsight, was poorly designed and badly administered.”
“I know that, for some individuals, the old habit of asking questions rather than trying to answer them, dies hard, but what we had was not an opposition-driven policy or an attempt to hold the Executive to account; it was a media-driven thing, and some of the opposition parties tried to jump on the bandwagon.”
“Again, I hear the leader of the Alliance Party chirping away in the background. I listened to her contribution, and she must have had 10 or 11 questions she wanted answered.”
“That is why some of the hyperbole that has been around today is hard to stomach. <BR /> <BR />What we heard from my colleague Joanne Bunting was a thoughtful and considered first contribution to the Assembly, and I think that it was one that shows that she will be a valuable asset to the Chamber.”
“They abandoned their seats, and they failed to discharge their duties or ask the questions that their voters might, quite rightly, want them to ask. The public care very little about procedures, points of order or Standing Orders.”
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“<BR /> <BR />I and the Committee recognise that this amendment deals with a very emotive issue, and, although I suspect that its fate is already known, I hope that Members will participate in the debate in a sensitive and moderate way and deal with the specifics of the amendment rather than the broader issue.”
“<BR /> <BR />At its meeting on 4 March this year, the Justice Committee agreed to include the evidence that it received on this amendment in its report on the Justice Bill. The Committee also discussed the proposed amendment at several meetings, and opinion was divided, with some members indicating that they support the amendment and others indicating that they oppose it. At the meeting on 11 March, a proposal was put to take the amendment forward as a Committee amendment, as Mr Wells was unable to do so himself at that time, given that he was the Minister of Health. Although the proposal was agreed by a majority of members present at that meeting, some indicated their opposition to it.”
“The main points in support of the amendment included the argument that life begins at the moment of conception; that there is a responsibility to protect the life of the mother and unborn child, and that that responsibility is best held with the Health and Social Care trusts and not those actively campaigning to change the law for financial gain; that there are no credible or compelling needs for private companies to provide abortion services in Northern Ireland; that there are issues of transparency where private clinics are concerned, including a failure to provide information on the number of abortions undertaken on their premises; that there is no evidence that private companies or charities are needed to meet existing levels of demand; that promotion of a more liberal approach on abortion is at odds with the law, culture and values of the people of Northern Ireland; that there are concerns regarding whether the law as it stands is being upheld and adhered to, as it is difficult to monitor lawful terminations outside of NHS premises owing to a lack of information; and, finally, that the European Court of Human Rights gives a broad margin of appreciation to states, as there is no consensus on abortion across Europe.”
“<BR /> <BR />The organisations that strongly supported the amendment included CARE, the Christian Medical Fellowship, Evangelical Alliance, Precious Life, the Society for the Protection of Unborn Children, Women's Network, the Northern Catholic Bishops, the Presbyterian Church in Ireland, the Free Presbyterian Church and the Reformed Presbyterian Church of Ireland.”
“They also argued that the amendment would further hinder the state's ability to fulfil its positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to a lawful abortion; that people should be allowed to decide whether they use a private provider or not and that there are no other circumstances in which people are forced to use only a public health facility; that it is not clear how the word "urgent" is interpreted and the circumstances by which someone will be able to terminate a pregnancy outside of NHS premises in an "urgent" situation; that the amendment may be so broad as to include certain forms of contraception, including the morning-after pill and that further clarification was required — I believe that that came forward; and that there are issues relating to enforcement of criminal law regulations and any potential role for the RQIA, as it does not sit within the present regulatory framework.”
“The main points they made included that the amendment would constitute a further significant restriction on the right to privacy in Northern Ireland, and adoption of it would be contrary, they argued, to article 8 of the European Convention on Human Rights and article 17 of the International Covenant on Civil and Political Rights.”
“Nor do I intend to outline all the details of the written and oral evidence received by the Committee, but I do want to provide a brief synopsis of the main arguments that were put forward both in support of the amendment and opposing it. <BR /> <BR />Organisations that indicated opposition to the amendment included Amnesty International, the NI Human Rights Commission, Alliance for Choice, Women’s Aid and the National Union of Students-Union of Students in Ireland (NUS-USI). The RQIA also raised a number of issues relating to it.”
“The organisations who gave oral evidence included Amnesty International, Care NI, Christian Medical Fellowship, Evangelical Alliance, the Northern Ireland Human Rights Commission, Precious Life, the Regulation and Quality Improvement Authority (RQIA), the Society for the Protection of Unborn Children and Women’s Network. <BR /> <BR />The amendment clearly divides opinion, which was reflected in both the written and oral evidence received by the Committee, with organisations and individuals either strongly supporting it or indicating strong opposition to it. In the interests of brevity, I do not intend to rehearse the arguments put forward in the previous debate on this amendment.”
“<BR /> <BR />Following the Committee’s call for evidence on the Bill and a range of amendments, including the one proposed by Mr Wells, a total of 28 written responses were received from organisations in relation to that amendment. Of those, a total of 20 were in favour of the amendment, seven were not in favour and one made no comment on whether it supported the amendment or not. In addition, the Committee received a significant number of responses, letters and emails from individuals, a number of written and online petitions and almost 22,500 postcards in support of the amendment. <BR /> <BR />Having considered the written responses, the Committee subsequently took oral evidence from a number of organisations who supported the amendment and a number who opposed it.”
“<BR /> <BR />By way of background, in July 2014, at the start of the Committee Stage of the Justice Bill, Mr Jim Wells, who was at that time a member of the Justice Committee, advised the Committee that he intended to bring forward this amendment at Consideration Stage and asked the Committee to seek views on it when it was seeking evidence on the Bill because, when the amendment had previously been brought forward, one of the criticisms was that there had not been any consultation on it. The Committee discussed whether it was appropriate to seek views on an individual member's proposed amendment, and, while a range of views were expressed, the Committee agreed to do so.”
“<BR /> <BR />I will turn now to amendment 34, the intention of which is to restrict lawful abortions to NHS premises except in cases of urgency when access to National Health Service premises is not possible and where no fee is paid, and to include an additional option to the existing legislation to provide for a period of 10 years imprisonment and a fine on conviction. Most, if not all, Members will be aware of the background to amendment 34, which was brought forward during Further Consideration Stage of the Criminal Justice Bill in March 2013. A petition of concern was tabled then, as is the case today, and following extensive debate, the amendment fell as it did not receive the necessary cross-community support.”
“In England and Wales, the Domestic Violence, Crime and Victims (Amendment) Act 2012 introduced the offence, which relates to circumstances whereby the injuries to the child or vulnerable adult must have been sustained at the hands of one of a limited number of members of a household but there is insufficient evidence to point to the particular person responsible. Clearly extending the scope of the current offence of causing or allowing the death of a child or vulnerable adult to also include cases of causing or allowing a child or vulnerable adult to suffer serious physical harm will provide additional protection to children and vulnerable adults. The Committee therefore supports the amendments.”
“The Committee noted that a report by Barnardo's showed how quickly contact offending can occur following just one communication or meeting, and it agreed to support the amendment on the basis that the grooming offence could play a much more important role in preventing such contact offending ever taking place and thus improving protection for children. <BR /> <BR />Moving on to amendment Nos 48 and 71, the Department provided the Committee with the results of a consultation it had undertaken on extending existing legislation to enable the joint conviction of members of a household who cause or allow a child or vulnerable adult to suffer serious physical harm.”
“The Committee believes that it is very important to provide the same level of protection to children in Northern Ireland and therefore supports the amendment. <BR /> <BR />The amendment to the existing offence in the Sexual Offences (Northern Ireland) Order 2008 of meeting a child following sexual grooming will make a small but significant change to the evidence threshold for the offence by reducing the requirement for an adult to have communicated with a child on two occasions before meeting them or travelling to meet them before the offence is committed, to one occasion.”
“Before I address amendment No 34, which the Committee tabled, I want to briefly cover amendment Nos 41, 42, 48, and 71, which the Minister tabled. <BR /> <BR />I turn first to amendment Nos 41 and 42. In January, the Minister sought the views of the Committee on his intention to provide for a new offence of communicating with a child for sexual purposes, and to make a change to the existing offence of meeting a child following sexual grooming. The Committee noted that the new offence of communicating with a child for sexual purposes arose from an NSPCC lobby campaign to close what was considered a gap in the law in Northern Ireland relating to sexting. There is already a law covering this behaviour in Scotland, and the Serious Crime Act 2015 introduced it in England and Wales.”
“<BR /> <BR />At the meeting on 11 March, a proposal was put to take forward the amendment proposed by the Attorney General, with the addition of provision for a sunset clause/review mechanism as a Committee amendment. The proposal fell as it did not have the support of a majority of the members present.”
“Key issues discussed by the Committee included the need to ensure information is provided when it should be, whether the amendment would assist or support that and provide what the Attorney General described as "a second pair of eyes"; the need for openness and transparency and whether the amendment would assist that or create a climate of fear or reluctance, thus diminishing it; whether it would assist people in difficult circumstances to establish the truth about the death of a loved one; the fact that SAIs were introduced as a learning exercise rather than an investigative system and that staff are encouraged to participate in them on that basis; and the process of change and new initiatives the health service is implementing.”
“He is able to direct an inquest where there has been a decision not to notify the coroner, and it would not therefore be sufficient for him to simply request that the coroner shares the documents he has received, as suggested by the board, to inform his decision. The Attorney General also noted the suggestion by the board that he may be able to direct an inquest without obtaining information and stated that, while the threshold of advisability is low, it would not be right to burden the coronial system with unnecessary requests. <BR /> <BR />The Committee considered this amendment, which includes a review mechanism/sunset clause, on a number of occasions, with some Members indicating that they were inclined to support it and others indicating that they had concerns about it.”
“<BR /> <BR />The Attorney General did not believe that providing him with the statutory power requested would create a burden on the health service and stated that the amendment would ensure that one of the safeguards in place in the system, namely his power to direct an inquest, can be improved. The Attorney General also indicated that, contrary to the misapprehension of the Health and Social Care Board, the statutory power to direct an inquest is not limited to cases in which a coroner has already been informed of the death or has made a decision about whether or not to hold an inquest.”
“<BR /> <BR />The Attorney General, both in correspondence and when he attended the Committee, set out the reasons why he believed he needed the statutory power that the amendment would provide to obtain papers and outlined a high-profile incident involving a health and social care trust that served to strengthen his view that a power to obtain relevant material was crucial to the public interest in ensuring a high standard of health care and investigation of incidents that result in the death of a patient. In his view, there appeared to be a gap in the potential investigation for accountability purposes, and the amendment is designed to close that gap. He also provided an example of a case in which he had requested details of a death and the relevant HSC trust had responded by questioning the legal basis for him obtaining the information.”
“The Minister of Health subsequently wrote to the Committee providing further information regarding the look-back exercise of serious adverse incidents and the initiatives being taken forward to strengthen and enhance public assurance and scrutiny of the death certification process, which includes the roll-out of a regional mortality and morbidity review system and consideration of the introduction of an independent medical reviewer, similar to that being introduced in Scotland.”
“The officials outlined a range of concerns regarding the rationale for the proposed amendment, the broad scope of the power and the implications, including additional administrative burdens on staff. The Department of Health also shared the board's concerns regarding the possible impact on openness and transparency in relation to the serious adverse incident process and emphasised that it is a non-statutory-based system to identify learning, not an investigative system. <BR /> <BR />The officials outlined a number of initiatives already being pursued to provide greater scrutiny around the process for certifying deaths in Northern Ireland and to strengthen and improve the current process and indicated that a full review of coronial legislation was likely, which would provide a more appropriate opportunity to consider the proposal.”
“In the board's view, it is unnecessary for him to effectively carry out the same role as the coroner, who is the statutory authority to properly investigate unexplained deaths. The role of the Attorney General, according to the board, is to supervise the coroner and to intervene if he suspects or believes that there is some deficiency. <BR /> <BR />When the Department of Health officials attended, they indicated that the Health Minister had no objection in principle to the Attorney General having the power to access the information necessary to enable him to discharge his functions under section 14(1) of the Coroners Act (Northern Ireland) 1959 but believed that more policy clarity on the precise intent of the proposed provision and how it would be used in practice was required.”
“The board also had concerns that the serious adverse incident reporting system is expressly intended not to be an investigation to determine fault or blame but rather to facilitate learning in order to prevent recurrence and that the granting of this statutory power to the Attorney General, where he has stated he would intend to exercise it to gain access to serious adverse incident documentation, could well have the detrimental effect of discouraging openness and transparency. <BR /> <BR />The board stated that, in order to exercise his power under section 14(1) of the Coroners Act (Northern Ireland) 1959, all that is required is for the Attorney General to have a reason to believe that the circumstances of the death make the holding of an inquest advisable.”
“The Committee also invited the Department of Health, Social Services and Public Safety and the Health and Social Care Board to give oral evidence, as they would be directly affected by the proposal, and the Attorney General also attended to discuss the matter. <BR /> <BR />Both the Health and Social Care Board and the Department of Health had concerns regarding the proposed amendment. The Health and Social Care Board highlighted the fact that there was no equivalent provision in England and Wales. In its view, the duty is already on trust staff to report unexplained deaths, there are sufficient safeguards in the current process and the present system is suitably robust to ensure that the interests of justice are properly served.”
“<BR /> <BR />At that time, the Committee indicated that it was generally supportive of the principle of the proposed amendment; however, it raised issues that required further consideration and scrutiny that could not be undertaken within the timescale for completion of the Committee Stage of the Legal Aid and Coroners' Courts Bill. The Committee agreed that, if an alternative Bill could be found in which the amendment could be considered properly, it would support such an approach. The Committee subsequently agreed that the Justice Bill provided such an opportunity and, when seeking evidence on the Bill, requested written evidence on the Attorney's proposal.”
“The Committee has given this detailed consideration, initially in the context of the Legal Aid and Coroners' Courts Bill and, more recently, as part of the Committee Stage of this Bill. The Attorney General asked the Committee to consider the amendment, albeit without the review mechanism and sunset clause, when it was carrying out the Committee Stage of the Legal Aid and Coroners' Courts Bill last year. The Attorney General outlined that the principal focus of his concern was deaths that occur in hospitals or where there is otherwise a suggestion that medical error may have occurred and indicated that he had experienced some difficulty in recent years in securing access to documents that, he believed, he needed.”
“Having received information from the Department on the proposed amendments, the Committee noted that four of them aim to address shortcomings identified through early experience of operating the corresponding provisions in England and Wales and the other amendment will add a new article to PACE to reflect the introduction of prosecutorial fines in Northern Ireland. Therefore, the Committee agreed to their inclusion in the Bill. <BR /> <BR />I turn to amendment No 50, tabled by Sinn Féin. This would confer a power on the Attorney General for Northern Ireland to obtain papers and provide a clear statutory basis for disclosure in relation to the exercise of his power to direct an inquest where he considers it advisable to do so under section 14(1) of the Coroners Act (Northern Ireland) 1959.”
“<BR /> <BR />I now want to very briefly address amendment Nos 35, 36, 37, 38 and 39, which introduce a number of new clauses to the Bill to make policy amendments to the biometric provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989, which provides for the new DNA and fingerprint retention framework.”
“The main issues raised in the evidence received by the Committee on this part of the Bill covered the use of VOPOs in relation to domestic violence offences; whether there was a need for separate domestic violence protection orders, which the Assembly debated earlier; and whether VOPOs should apply to offenders under the age of 18. Noting that VOPOs are a risk management tool and a means of protecting the public, rather than a sentencing or punitive disposal, the Committee is content to support the clauses and the amendments.”
“Having considered the evidence received and the further information provided by the Department, the Committee agreed that it is content with the criminal records clauses and related amendments. <BR /> <BR />I turn now to amendment Nos 30, 31, 32 and 33. The Department advised the Committee during the Committee Stage of the Bill that it intended to bring forward a number of amendments relating to the verification of identity, retention of fingerprints and photographs, and power of search of third-party premises to the violent offences prevention order clauses to reflect improvements suggested by the Attorney General and concerns that he raised about European Court of Human Rights compliance.”
“<BR /> <BR />The Committee noted that the measures covered by clauses 36 to 43 and related amendments reflect many of the recommendations made by Sunita Mason in her review of the criminal records regime in Northern Ireland, and took the opportunity during the oral evidence session with departmental officials to explore a number of issues, including the delay in implementing portable checks due to a delay in the commencement of the update service operated by the Disclosure and Barring Service; whether, once available, they will speed up the process, particularly given the current delays in obtaining criminal record checks; how automatic referral to the independent reviewer will operate in practice; and the type of convictions that are likely to be removed by that process.”
“Women’s Aid was, however, concerned that the review mechanism to filter old and minor convictions might lead to serial perpetrators of domestic violence slipping through the cracks and facilitate their abuse of future victims, and indicated that it is vital that records remain in such cases.”
“That enabled the Committee to seek evidence on those as part of the Committee Stage of the Bill. <BR /> <BR />In the evidence provided to the Committee, there was broad support amongst stakeholders for the measures being taken to modernise and streamline the disclosure of information; the proposal for a review mechanism; and issues raised largely related to the disclosure scheme itself, the retention and disclosure of criminal record information regarding children and young people and the wider arguments in relation to whether under-18s should be able to apply to wipe the slate clean of old and minor convictions.”
“Hopefully, the Minister and I will return to harmony on this section of clauses and amendments. First of all, I will speak briefly on the clauses and amendments that aim to improve and modernise arrangements for the disclosure of criminal records by providing for electronic applications, portable disclosures, the issuing of single disclosures and an independent appeals mechanism, amongst other things. <BR /> <BR />At the start of the Committee Stage of the Bill, the Department advised the Committee of a number of amendments that it intended to bring forward, including one to create a review mechanism for the disclosure scheme to filter certain old and minor convictions and other disposals, such as cautions, from standard and enhanced criminal record certificates.”
“The Minister hits on one of the key points about primary legislation, but at least in primary legislation there is a facility for the Committee to take evidence from stakeholders and to investigate thoroughly an issue and, if necessary, amend the legislation. If decisions are taken by statutory rule, there is no time or capacity in the Committee to take evidence from stakeholders and no ability for it to amend legislation. That is why the Committee felt that it wanted to tighten the power. We have not taken the nuclear option of removing any flexibility at all from the Minister or the Department; rather, we have sought to tighten up the provision to ensure that we have as much control over decision-making as possible.”
“In fairness to the Committee, the nuclear option would have been to oppose clause 86 and give the Minister no flexibility at all. In fairness to Committee members, we decided to give the Department flexibility. We feel that we gave it enough flexibility to make the changes that may be necessary to change minor amendments, but we were not willing to give it the broad sweep of powers that perhaps it was asking for in the first place.”
“<BR /> <BR />While clauses 86 and 87 are technical in nature, the argument around whether such clauses are appropriate in Bills is relevant to all Committees of the House and all Members of the Assembly as it is fundamentally about how much power Ministers should have to amend primary legislation by way of secondary legislation. I ask the Assembly, therefore, to support the Committee's opposition to clause 86 and its two amendments to clause 87 on the basis that I have outlined. <BR /> <BR />I believe that the Justice Committee has carried it out its legislative scrutiny function rigorously and has sent out a message to all Departments that every clause in a Bill, whether to give effect to policy or technical in nature, will be questioned, and they must be able to justify its inclusion in a Bill and the breadth of powers that it provides.”
“The Committee has very properly and not unreasonably, in my view, scrutinised the purpose of clauses 86 and 87, and I pose this question: why should we get into the habit of allowing such clauses? The Committee has adopted a position that seeks to ensure that amendments to primary legislation by way of secondary legislation are minimised to what it considers those categories most closely connected to the Bill, consequential and transitional, to ensure effective scrutiny and accountability. The Committee believes that it has still provided sufficient powers to the Minister and the Department to address any minor oversights.”
“To illustrate his concerns, he stated that, when these clauses are introduced:”
“— which allowed the King's proclamations to have the same force as Acts of Parliament — "was the ultimate in supineness." Supineness is a fabulous word. Lord Judge referred to a number of Acts that contained powers to make such supplementary, incidental or consequential provision, or such transitory, transitional or saving provisions:”
“Just for clarity, I am not comparing the Minister to Henry VIII, but I will continue with the quote. He said that:”
“That is where the quote ended. He is no longer a Member of Parliament and is an individual citizen. <BR /> <BR />Another example is provided by Lord Judge, the Lord Chief Justice of England and Wales, who, at the Lord Mayor's dinner for the judiciary in 2010, indicated that his deepest concern was directed to the increased use of Henry VIII clauses. He stated:”
“Their use appears to be particularly prevalent at Westminster, and I note that, in his farewell speech to the House of Commons, Sir John Stanley, of course a former Northern Ireland Minister during the Thatcher years and a Member of Parliament for Tonbridge and Malling from 1974 to 2015, said:”
“A paper delivered to the 2011 Australia-New Zealand Scrutiny of Legislation Conference pointed out that:”
“It relates to public accountability and the checks and balances on the Executive by this legislative Assembly. The primary legislation-making process gives time and resources to close consideration and proper and detailed scrutiny. Regulations, if made by affirmative procedure, only provide an opportunity for approval or refusal and cannot be amended, and negative resolution rules require a prayer of annulment before a debate takes place. I do not think that anybody would argue that secondary legislation receives the same scrutiny as primary legislation. <BR /> <BR />The issue of what are termed Henry VIII clauses — in other words, a clause in an Act that enables the Act to be expressly or implicitly amended by subordinate legislation — has exercised and is exercising other jurisdictions around the world.”
“Indeed, if my memory serves me right, an amendment was tabled to the clause in the Education Bill, as there were concerns about the powers provided in that clause as well. <BR /> <BR />Having heard from the Department on a number of occasions, the Committee is still of the view that the power to amend primary legislation provided by the clauses is too broad and needs to be narrower. While the Department has recently engaged with the Committee on the issue, it is fair to say that, initially, the explanations and rationale provided to the Committee about the need for the clauses and the breadth of the power contained in them did not fully address the concerns raised. <BR /> <BR />While this may seem a dry debate about technical clauses, it is about much more than that.”
“Whilst he has tried to provide assurances to the Committee and the Assembly regarding the use of clause 86 — or the lack of use of it, as he keeps pointing out that he does not intend to use it — I am still not convinced, and I suspect that other Committee members are still not convinced of the necessity for the broad powers that the Bill confers on him. Having similar clauses in other Bills is not in itself an argument to have it in this Bill. He also referred to the Education Minister speaking — I think that he said "most eloquently" — about the need for a similar provision in the Education Act (Northern Ireland) 2014. Clauses 86 and 87 are much more extensive in the powers that they provide.”
“<BR /> <BR />By opposing the inclusion of clause 86 and amending clause 87 as set out in amendment Nos 51 and 52, the Committee aims to provide the Minister with some flexibility and scope to make minor amendments by way of secondary legislation, such as those described by the Department, that may be required if something small has been overlooked. However, it will ensure that any wider changes or amendments will require further primary legislation that will be subject to the rigorous scrutiny that has been applied to the Bill. <BR /> <BR />I listened carefully to the case that the Minister made for retaining clause 86 and rejecting the Committee's amendments to clause 87.”
“However the Committee still believes that primary legislation should be well thought through beforehand and that the Department should have identified unforeseen consequences and legislated for them in the Bill rather than relying on wide-ranging powers to amend things later through subordinate legislation. The Committee appreciates that there is a need to have some capacity to amend the primary legislation in the event of something minor being missed, such as described by the Department in relation to schedule 1 and legislation stretching back as far as 170 years ago. However, we are still not convinced that the breadth and scope of power provided by clause 86 is required.”