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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“The Department also confirmed that the provision enabled the Minister to amend any legislation, not just legislation relating to justice, but sought to assure the Committee that this would take place only if it were necessary to give effect to the policy. <BR /> <BR />The Committee found the further information provided by the Department in relation to clauses 86 and 87 helpful in assisting us to gain a better understanding of why the Department requires some sort of power to amend the legislation if it has missed something, particularly when it is looking at law dating as far back as 1842.”
“The Committee also sought clarification of the meaning of "supplementary, incidental, consequential and transitional" in the context of clause 86 and of why the clause could not be made more specific to ensure that any changes made under it are kept to a minimum, given that they would not be subject to the scrutiny that primary legislation receives. The Department responded by indicating that it understood that all the words had particular meanings, although it did not provide any further explanation of the meanings, and, if some or all were to be removed, it would need to seek further advice on the impact that that would have.”
“The Department indicated that not all of the justice Bills advanced during this mandate have included such a provision and believes that it is necessary in this one. The Department also provided examples of Bills from other Departments in which a similar clause had been included and was still of the view that, while, on the face of it, the provision looks very wide-ranging, it is very narrow when looked at in the context of the totality of the clause. The Department stated that it would not rely on clause 86 to cover any deficiency in the policy-making process and that the clause was not there to enable it to change its mind on the policy. <BR /> <BR />Members sought examples of when this type of clause had been used in the past and the likely circumstances that it would be used in with regard to this Bill.”
“While his proposal was more presentational than addressing the key areas of concern, the Committee agreed to hear further evidence prior to the closing date for amendments for Consideration Stage to enable it to consider the matter further. <BR /> <BR />The Committee met on 26 May and heard further evidence from the Department on the rationale for keeping clause 86 in the Bill, much of which the Minister has outlined to the Assembly this evening. In essence, the Department advised the Committee that the provision is proportionate and necessary to manage the risk of something having being missed when preparing the Bill, as it covers a very wide range of old and complex legislative procedures. Apparently, one of the statutes amended by the Bill dates back to 1842.”
“The Minister also indicated that he had no intention at present to make use of clause 86 but continued to believe that its inclusion in the Bill was essential. <BR /> <BR />The Minister suggested to the Committee that, rather than opposing clause 86, we might consider amending it so that the requirement for the affirmative resolution procedure was more clearly associated with the clause. This could be achieved by removing the requirement for the affirmative resolution procedure from clause 87 and placing it in clause 86. The Minister provided the wording of the necessary amendments to make the change. The Committee considered the proposal but noted that it did not address the excessive breadth and discretion that clause 86 afforded him, which is the basis of the Committee's concerns in relation to the clause.”
“The Committee therefore decided to oppose the inclusion of clause 86, believing that its intention to remove this type of clause would send a message to all Departments to ensure that future legislation is well thought out beforehand rather than relying on extensive powers to fix things at a later stage. <BR /> <BR />Following the completion of the Committee Stage of the Bill, the Department of Justice wrote to the Committee on 20 May outlining that the Executive had discussed clause 86 on 14 May and that the Minister of Justice had undertaken to try to address the Committee's concerns. The letter advised that the Minister intended to include clause 86 in the Bill as a safety blanket in case the operation of the legislation threw up any unexpected difficulties. He noted the inclusion of similar provisions in other Bills.”
“The Committee noted that this type of clause can be a common occurrence, particularly in Bills of the size of the Justice Bill, but was not content with the wide-ranging powers it provided to make ancillary provision by subordinate legislation. The Committee is of the view that powers should be provided for an exact purpose rather than being so broad in nature and that, even though the affirmative resolution procedure would apply to some orders, as a consequence of clause 86, parts of the Bill passed by the Assembly could be changed or potentially reversed by the Department of Justice without the scrutiny the Bill itself has received.”
“Although some orders would be subject to the affirmative resolution procedure, the Assembly would have to either accept or reject the order with no opportunity to amend it. Despite the best intentions, secondary legislation is not always scrutinised and debated to the level of detail that primary legislation is subjected to. The Committee did not agree with the Department's assessment that the purposes for which the power could be used are reasonably precise.”
“<BR /> <BR />When the Committee considered clause 86, members continued to have concerns about the breadth of the powers provided to amend, repeal or modify primary legislation agreed and passed by the Assembly by way of secondary legislation.”
“<BR /> <BR />Whilst the Department accepted that the power provided is widely drawn to take account of the fact that the precise circumstances in which it may be called upon cannot be determined, it outlined that, in its view, the purposes for which the power can be used are reasonably exact, given that clause 86(1) provides that the relevant orders must be used for the purposes of the Act or to make provision in consequence of or for giving full effect to the Act. It also highlighted that clause 87(6)(b) provides that any order made under section 86(1) that contains a provision that amends or repeals a provision of an Act of Parliament or Northern Ireland legislation will be subject to the draft affirmative procedure and cannot be made without Assembly approval, with other orders subject to the negative resolution procedure.”
“<BR /> <BR />The Department subsequently wrote, indicating that a power to make supplementary, incidental, consequential and transitional provision, such as is provided by clause 86, is frequently included in a Bill that deals with complex changes in law in case difficulties that had not been identified in the legislative process arise. The Department described clause 86 as something of a safety blanket in case the operation of the legislative changes throws up some unexpected difficulty or to address necessary consequential changes that have inadvertently been overlooked during the drafting of the Bill.”
“The officials advised the Committee that the clause is a general construction that is used in lots of legislation to cover various eventualities, particularly in a large Bill such as this, where there is the potential for an issue to arise in a number of areas that might need some rectification, and indicated, as the Minister has today, that it is intended to address any minor points that might arise, rather than any substantive policy. On the face of it, that seemed reasonable, but, when the Committee pressed further regarding what limitations there were to the powers provided by the clause, the officials indicated that they would need to look at it in more detail and provide clarification in writing.”
“Members will know that good legislative scrutiny requires consideration of all parts of a Bill, including the provisions often described as technical in nature, which determine the effect of the legislation once enacted. They are usually found at the back of the Bill, and in the Justice Bill are contained in the supplementary provisions at Part 9. <BR /> <BR />When Department of Justice officials appeared at the Committee on 18 February 2015 to give evidence on the Bill, members took the opportunity to explore the exact purpose and effect of clause 86 and the extent of the powers that it provides to the Minister of Justice, much, I think, to the surprise of the officials at the time.”
“The rate of pay is set by the Review Body on Senior Salaries, which recommended a 1% pay increase in both 2013 and 2014. It is clearly not a good use of Assembly time to require a debate on the statutory rule, particularly when legal aid statutory rules making millions of pounds' worth of changes and affecting the entire legal profession are largely subject to the negative resolution procedure. For the reasons that I have outlined, it makes sense to align the procedure for determining Lands Tribunal members’ salaries with the procedure used to determine other judicial salaries. The Committee therefore supports amendment No 49. <BR /> <BR />I now want to set out for the Assembly the background and rationale to the Justice Committee’s opposition to clause 86 and the two amendments that we have tabled to clause 87.”
“Amendment No 49, which introduces new clause 85A to remove the need for an affirmative resolution statutory rule to determine the salary of the members of the Lands Tribunal, originated from comments made by the previous Chairman of the Justice Committee during a debate in the Assembly in September 2013 on the Lands Tribunal (Salaries) Order (Northern Ireland) 2013. As the Minister outlined, the Department is required to bring forward an order that is subject to the affirmative resolution procedure for the annual determination of Lands Tribunal members’ salaries. No other judicial salary is subject to Assembly approval. It affects the salary of only one individual, as the post of president of the tribunal is held by a Lord Justice of Appeal, who does not receive a salary for the post under the 1964 Lands Tribunal and Compensation Act.”
“Given that the majority of the amendments in the group are technical in nature or consequential — to use that language — to other amendments being made, I intend to restrict my remarks in the debate to amendment No 49, which, as the Minister has just outlined, changes the procedure for the annual determination of Lands Tribunal members’ salaries, and to the Committee’s opposition to clause 86 and our proposed amendments. As we have learned in recent months, technical amendments can be interesting. They deserve quite a bit of scrutiny and examination, and that is certainly what the Committee has done over the last number of months.”
“I do not know whether the Member will agree or not, but it might be appropriate if she made contact with those charities to see if some of their concerns could be allayed, because, ultimately, we have the opportunity not only to introduce Clare's law, but a better version of it. If there are areas in which they feel there could be more support around some of the legislation that might be required, we could end up with a better piece of legislation than GB. I wonder if she would be keen to engage with both those charities in the interim before Further Consideration Stage.”
“I thank the Member for giving way again. She will recollect that, during my contribution, I mentioned two domestic violence charities that opposed the introduction of Clare's law.”
“I thank the Minister for giving way. Given the debate we had on the proposals for Sarah's law and Clare's law, the interest there has been from Members — perhaps an interest in some of the more technical details — and that we cannot have a Committee discussion about this because we are past Committee Stage, would the Minister agree that, for both proposals, when he is working with Mrs Kelly and Mr Frew, it would be appropriate if DOJ officials came to the Committee to brief Committee members on the changes that are taking place so that we are better informed for the Further Consideration Stage?”
“As Mr Frew said, if information is disclosed to an individual, they must handle that information with confidentiality. I think that some focus will have to be put on how they deal with that information and the penalties should they disclose it inappropriately. It is more about individuals being able to access information than communities or mobs in pubs.”
“I appreciate that the Member has been trying to conclude for the last 15 minutes or so, but I think that this is an important point to make. He talks about people in the pub and communities, which almost creates the vision that we are talking about mobs or vigilante gangs seeking information. The focus of the amendment is on individuals who have guardianship of a child, whether they are a parent or a legal guardian, and fear that their child is in contact with someone who may be a sex offender. It is not so much about communities being able to find out this information. It is about individuals whose child is in close contact with that person. That is where the focus is.”
“I trust that the Assembly will support measures believed to help to deliver greater protection to vulnerable people.”
“If a woman is told that her partner has no history of domestic violence, she may be lulled into trusting her partner when previous abuse had not been recorded by the authorities. I say that not in any way to rubbish the amendment but simply to alert Members to the fact that legislation alone does not solve some of the most distasteful examples of abuse in our society. Without appropriate accompanying support, they may not be as useful a tool as they should be. I suspect that the Members who tabled the amendments would not be at odds with those comments either. <BR /> <BR />In both cases, I urge the Members to work in collaboration with the Department and charities to ensure that any legislation passed makes a positive difference.”
“<BR /> <BR />Similarly, the SDLP amendment that seeks to introduce Clare's law — as the Member said, it was introduced after the murder of Clare Wood in 2009 — could and should have a positive impact. However, it must be crafted correctly, as the Member who tabled the amendment acknowledged, and, in order to receive broad support, it must be introduced in conjunction with other measures that keep women safe from potentially abusive partners. I understand that the domestic abuse charity Refuge opposed Clare's law. I also noted remarks made by Karen Smith, who is the CEO of another domestic abuse charity, Nia. She warned that Clare's law carried a serious risk of giving women a false sense of security and pointed out that most instances of domestic violence are never reported to the police.”
“I further welcome the fact that the Northern Ireland law would go further than the law in Great Britain by including a wider range of offences that could be disclosed. Of course, that measure alone will not prevent children being at risk. It will offer parents and guardians some comfort, but we also need to ensure that potentially dangerous sex offenders living in the community are effectively monitored by the Probation Board and legal authorities. Therefore, I hope that, when we discuss budgetary issues in the House in the future, Members will be keen to encourage the Minister to ensure that the Probation Board is adequately funded to carry out that vital work.”
“Whilst that is a valuable tool and something that I hope the Assembly supports today, we need to examine safeguards to ensure that the information disclosed is appropriate and the individual in receipt of the information uses it responsibly — otherwise, we could end up in the same position as the US. I know that Mr Frew has given particular consideration to the issue and intends to outline that when he speaks on his amendment shortly. <BR /> <BR />I also welcome the fact that the Department has indicated that it supports the amendment and is willing to work with Mr Frew to ensure that the legislation is implemented in a way that improves public safety and does not lead to unintended consequences. That is good, in that it ensures that we will have good law.”
“<BR /> <BR />In the UK, the sex offender disclosure scheme, known almost universally as "Sarah's law", following the tragic murder of Sarah Payne in 2000 — it is referred to as "Mark's law" in Scotland, following the murder of Mark Cummings in 2004 — is greatly improved legislation, certainly compared with its US equivalent. It certainly provides the blueprint for today's amendment. The main difference is the way in which the information is disclosed. Unlike the US, where information is published online for everyone to access, parents in the UK have to go to the police to enquire about someone who is close to their child and ask whether they have been convicted of a child sexual offence. The police then determine whether to release information to the concerned parent.”
“<BR /> <BR />In the aftermath of the murder of Sarah Payne, when tabloid newspapers in the UK named and shamed those whom they suspected of being child sex offenders, there were, of course, vigilante gangs hunting down paedophiles in the UK. At that time, one of the worst cases of mistaken identity, which would be amusing if it were not so tragic, was the case of the young doctor in Wales who had her home attacked and spray-painted with the word "paedo" after being named in her local newspaper, which described her as a paediatrician. We need to be responsible, and we need to strike the right balance when it comes to disclosure legislation. Largely, in the United Kingdom, I think, we have done just that. We have learnt from the early experiences of the disclosure of information and made recent legislation that much better.”
“The information is often published in local newspapers or in pamphlets delivered door to door by some neighbourhood associations. That type of unfettered disclosure led to vigilante-type attacks on individuals and properties. Individuals or gangs tracked down offenders or alleged offenders, which, in some cases, even resulted in murder. I am sure that many people would have little sympathy for those who have violated young children, but this law becomes particularly dangerous when people take the law into their own hands and hunt down those who have the misfortune of having the same name as or looking similar to a registered sex offender or who live in an address previously occupied by a paedophile. Sometimes, when emotions run high and people are highly charged, they act before they think.”
“We know that, whilst they are popular with the public, some people dismiss such laws and are highly critical of them. Indeed, there are examples of how legislation aimed at protecting vulnerable people can go terribly wrong. We do not have to look too hard to find Megan's law, which was one of the initial types of disclosure schemes that operated in the United States, when a series of laws was introduced in the early 1990s after the horrific rape and murder of a seven-year-old girl, Megan Kanka. These required law enforcement authorities to make information available to the public in relation to registered sex offenders. In some US states, it means that offenders' crimes, names, photos and even addresses are published online for the public to view.”
“Both amendments would introduce similar disclosure schemes, mirroring or improving on existing legislation already here in Northern Ireland or across in Great Britain, often referred to as "Sarah's law", in the case of my colleague's amendment, or "Clare's law", in the case of the SDLP amendment. Neither of the amendments was discussed by the Committee, so I make my observations on this in a purely personal capacity. I wanted to first of all congratulate SDLP and DUP colleagues for tabling the amendments. Whilst I would caution against anyone thinking that these measures alone will keep women and children safe, I support the principle behind both amendments and appreciate the motivations of those who tabled them. <BR /> <BR />I will look at amendment No 19 first.”
“The Department indicated that further consideration of how best to ensure that type of protection would form part of a broader consultation on a range of domestic violence initiatives to take place in 2015-16 as part of the implementation of the new domestic and sexual violence and abuse strategy and subsequently confirmed that it was considering consulting on domestic violence protection orders. I look forward to hearing the Minister’s response to the proposed amendments, which could provide greater protection against domestic violence offences. <BR /> <BR />I will now turn to amendment No 28, tabled by Mrs Kelly, Mrs McKevitt, Mr Maginness and Mr Eastwood, and amendment No 19, tabled by my colleagues Mr Frew and Lord Morrow.”
“It had been made offence-based and not sentence-based, and the threshold of qualifying offences was lowered intentionally to include the offence of assault occasioning actual bodily harm where the offence takes place in domestic or family circumstances, because of concerns raised during and post public consultation around the issue of tackling domestic violence. <BR /> <BR />The Department, however, acknowledged that, while VOPOs will provide some additional protections for victims of serious domestic violence, there remains a gap for the immediate protection of victims in the short term.”
“<BR /> <BR />I now want to touch briefly on the amendments that Mrs Kelly has tabled to the Bill to bring in domestic violence protection orders to replicate the position in England and Wales. Whilst the Committee has not considered the amendments, the issue of domestic violence protection orders arose when we were looking at the clauses relating to violent offences prevention orders (VOPOs). I directly questioned the Department on whether violent offences prevention orders are designed to deal with domestic violence offences and whether there was an argument for the introduction of domestic violence prevention orders as well. The Department explained that the legislative proposals for the VOPO had been developed with the needs of victims of domestic violence in mind.”
“Having considered the information provided, the Committee agreed that it was content with the provisions in the Bill for prosecutorial fines, but we want to see the draft guidance that the PPS will develop to ensure that it adequately addresses the circumstances and frequency with which prosecutorial fines can be considered and offered to an offender. Members may, however, feel that, rather than relying on the PPS guidance to prevent the fines being used for domestic violence offences, Mrs Kelly’s amendment would provide a safeguard in the Bill. Although I noted the comments that she made and, as long as everyone is supportive of ensuring that it would not be appropriate to offer prosecutorial fines in those circumstances and that it is part of the guidance, that is probably assurance enough for most Members.”
“In its view, repeat fines should not be offered, except in the most exceptional and meritorious circumstances.”
“In response to the concerns raised, the Department outlined that prosecutorial fines will operate within detailed Public Prosecution Service guidance that will form part of the code for prosecutors and will stipulate the circumstances in which a prosecutorial fine may or may not be offered. The guidance will be subject to consultation. The Department was of the view that this provides a more flexible approach than including further provisions in the Bill and is consistent with the principle of prosecutorial independence. The Department also confirmed that it did not envisage that prosecutorial fines would be a suitable disposal for offences of domestic violence or other serious offences, and any instances of such a fine having been issued previously to an alleged offender would be taken into account when making future decisions.”
“Women's Aid advised the Committee that it was firmly of the view that the fines are not appropriate for domestic violence offences and, if used, could deter victims from coming forward.”
“The Committee will have an opportunity to consider those in more detail in the next justice Bill, which is due shortly, and that will hopefully address at least some of the concerns. <BR /> <BR />Specifically, in relation to prosecutorial fines, the main focus was on how they will operate in practice. The Committee considered a range of issues relating to the operation of prosecutorial fines, including whether additional safeguards were required in the Bill to prevent the fines being used for repeat offenders or for serial or serious offenders. The Committee felt that it was entirely appropriate, to get public confidence, that those were used for minor offenders.”
“Given that it provides an additional safeguard for vulnerable persons and ensures that legislation on vetting and barring is operated consistently across the United Kingdom, which is important, the Committee supports that amendment. <BR /> <BR />I now want to move on to clause 17, which relates to prosecutorial fines, and amendment No 6, which Mrs Kelly and the SDLP have brought forward today. The evidence received by the Committee on that part of the Bill acknowledged that providing options such as prosecutorial fines to deal with low-level offences outside the courtroom frees up police and prosecutor resources, as well as court time, that can be better used to deal with more serious offending. Wider issues regarding fine collection and enforcement were raised.”
“<BR /> <BR />The Committee fully supports clauses 28 to 35 and amendment Nos 7, 8, 9, 10 and 11, and I commend the Minister for listening to the Committee, accepting its recommendations and implementing them through this legislation. <BR /> <BR />I will touch briefly on amendment No 17, which inserts a new clause to facilitate the exchange of information between Access NI and the Disclosure and Barring Service for barring purposes. The Committee noted that a wide range of stakeholders, including voluntary organisations that work with children and the Department of Education and Department of Health, welcomed the proposal.”
“<BR /> <BR />The creation of information-sharing powers by way of amendment No 11 to provide for a more effective mechanism through which victims can automatically be provided with timely information about the services available to them in the form of victim support services, witness services at court and access to post-conviction information release schemes was also broadly welcomed, as was placing victim personal statements on a statutory footing and thus providing an opportunity for a victim to explain the impact of an offence or alleged offence. Amendment Nos 7, 8, 9 and 10 will allow a victim or a bereaved family member to include, in a victim statement, the impact a crime has had on other family members, and the Committee views that as a useful and welcome addition.”
“They are intended to make the criminal justice process less daunting and more responsive to the needs of victims and witnesses of crime. They will apply regardless of a victim's relationship to the accused or offender, and family members of the victim are also entitled to access support services. There is also a right of complaint to an independent body, and the Committee has sought assurances from the Department regarding the mechanisms in place to monitor compliance with the charters. There was widespread support for victim and witness charters in the evidence received on the Bill, with Victim Support indicating that, in its view, the victim charter will have a demonstrable impact on the experiences of victims and witnesses of crime in the criminal justice system in Northern Ireland.”
“The Committee therefore made a number of recommendations to the Minister, including that a victim and witness charter providing statutory entitlements for victims and witnesses in terms of information provision and treatment should be introduced; that a formal system for the completion and use of victim impact statements should be introduced; and that a more effective mechanism through which victims can automatically be provided with timely information based on an opt-out system rather than the current opt-in system should be developed. <BR /> <BR />The statutory charters created by the Bill will set out the services to be provided by criminal justice organisations, the standards that should apply and how victims and witnesses can expect to be treated.”
“<BR /> <BR />The cooperation of victims and witnesses in the criminal justice process is vital to achieving convictions and ensuring that justice is done, and it was the Committee's strong belief that much more could and needed to be done to redress the balance and ensure that an effective and appropriate service is provided for them.”
“The evidence that the Committee received during the inquiry clearly demonstrated that engaging with the criminal justice system as a victim and/or a witness or as a bereaved family is a daunting experience that can entail encounters with a number of criminal justice agencies and voluntary sector organisations from the time that the crime is reported, through the police investigation, the prosecution decision-making process, the court process, sentencing and beyond. The evidence also illustrated the significant difficulties that victims and witnesses face with the criminal justice system and the criminal justice agencies, and their experience of the process was, and still is, often frustrating, demoralising and, on occasions, even devastating.”
“First, I want to cover Part 4 of the Bill, which improves services and facilities for victims and witnesses by providing for the establishment of statutory victim and witness charters and providing a statutory entitlement to be afforded the opportunity to make a victim personal statement, through amendment Nos 7, 8, 9, 10 and 11. <BR /> <BR />As I highlighted earlier, these clauses and amendment No 11, which introduces a new clause and schedule to the Bill to create information-sharing powers for the purposes of victim and witness support services and victim information schemes, are as a direct result of the findings and recommendations of the Justice Committee's inquiry into the criminal justice services available to victims and witnesses.”
“It could, potentially, be abused as a way to remove a man from a house.”
“I thank the Member for giving way. I come at this from a sympathetic point of view, and I just want to tease out an issue which I think is relevant, particularly when we talk about domestic violence protection orders. I know that the wording in the amendment is on "reasonable grounds" but this is quite a big power that allows the police to potentially remove somebody from their home before they have been convicted of any offence. The Member has rightly pointed out that not all domestic violence is sexual or violent abuse, so I wonder where she sees the threshold or the need for any evidential base for the police to issue such an order, and how we ensure that these sorts of things are not abused by people who, potentially, could be in a difficult relationship which is not actually suffering from domestic abuse.”
“When it comes to having the opportunity to do that and to make changes that will stick up for victims, Members, if they support the amendments today, are not going to be doing that and are in fact not listening to any of the evidence that the Committee took during the past number of months.”