Jim Allister
North Antrim · Traditional Unionist Voice · Northern Ireland
“<BR /> <BR />Last week, a 'News Letter' editorial rightly drew attention to the fact that there is a chorus of demand that it is up to the British Government to pay for that, but no pressure whatsoever on the GAA — the primary beneficiary — which still persists that its contribution will be a miserly £15 million.”
“Public money, we are constantly told, is in short supply and scarce. I am sure that it is, and will continue to be so. Yet, while many in the House pay lip service to the need to prioritise health, there seems to be a majority here who would prioritise public spending on a sporting facility, namely Casement Park.”
“That editorial stated that the DUP "should make clear" its view on the Casement Park costs. Yet, yesterday, we had the launch of the DUP manifesto and not a mention of Casement Park. We have a Minister — Minister Lyons — who has ruled out clawback for non-GAA use of that stadium.”
“Therefore, the Minister comes to the House with a proposal that, effectively, has been written in Brussels, because it tells us how much we can give to our fishing industry in Northern Ireland.”
“The Minister told us that this is a scheme under the Fisheries Act, which it is, whereby all the devolved regions and England and Wales can make their own provision.”
“Rather than removing the green lane, the introduction of the new customs border arrangements will further advance the development of the green lane, thereby helping to make the Irish Sea border and our alienation from the rest of the UK more firmly established.”
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“Because of that tardiness, there is a shrug of the shoulders and people say, "Ah well, we will just do it by accelerated passage". <BR /> <BR />It is not that there are not issues with the Bill that might benefit from a Committee Stage. There are issues. There are issues such as whether guide dogs should be included in the legislation and whether search and rescue dogs belonging to private companies that participate should be included. Those are matters that I would have thought should have been ventilated and explored during a Committee Stage, and they could have been explored if the Department had got on with the job of bringing the legislation in a timely manner. <BR /> <BR />Therefore, I say to the House that I see nothing in the antecedents of this that justify this attempt to use accelerated passage.”
“<BR /> <BR />The Minister said that the need for this legislation was one of the first things drawn to his attention when he took office in January 2020. Here we are, almost two years later, and the legislation has now been produced. It took 18 months — until June 2021 — to even issue a consultation, and we are asked to come here today to reward the tardiness of the Department and to bypass the processes of the House. That is not good enough, and the presumption that they do not even need to explain the delay to the House is a commentary in itself on the willingness of the House to be taken for granted on this issue. In February 2020, the House, by motion, agreed the need for such legislation. Here we are, on the last day of November 2021, and we are getting round to it. Why?”
“I take no issue whatsoever with the Bill. It is meritorious and desirous in all its forms, but I do fundamentally take issue with the second attempt in a week to abuse the process of accelerated passage in the House. <BR /> <BR />Accelerated passage is, in protection of the interrogative, scrutiny and full legislative function of the House, prescribed to be used only in exceptional circumstances. Last week, we had an attempt by the Finance Minister to railroad rates legislation through the House. The House rightfully called him out on that and refused. Today, we have another attempt to have recourse to accelerated passage without one word of explanation to the House on why the delay has been so overwhelming in this case.”
“The Minister will be aware that the meeting was one of the North/South meetings that hitherto the DUP said would not be happening because of its protest against the trashing of east-west links, yet it took place. Will the Minister confirm that that was possible only because the DUP First Minister sanctioned it through approving the agenda and that that protest now seems to be diminished to acting through the surrogacy of Mr Swann and the pretty pitiful absence this morning in order to try to pretend that there still is a protest?”
“I note the passing reference to strengthening the secretariat of the British-Irish Council. After more than 20 years of its existence, we will now have a senior officials group. What is the full-time complement of the secretariat of the British-Irish Council, and how does it compare with the full-time complement of the North/South Ministerial Council?”
“I will carry on with the theme of pig farmers. Of course, that is a commercial matter, but does the Minister deprecate the action of the primary processor for many of our pig producers in arbitrarily reducing the price that it was prepared to pay per pig by a colossal £13·50 per pig on the basis that, if it accepted all a farmer's pigs, it would pay only the reduced price? Does that not seem to be an occasion of exploitation of farmers, which is not in the long-term interests of the industry?”
“Will the First Minister clarify two things? Was the project for certification, as approved by the Executive, to be implemented on a rolling basis, as now appears to be the case? When will the House be voting on the regulations?”
“— in the office that he holds, he is unable to do anything about this. Is he in office but not in power?”
“Is there not a pattern here? The Sinn Féin Communities Minister has already refused a community fund to mark the jubilee, the Sinn Féin Finance Minister has refused to allow a tree to be planted in the grounds of Stormont, and now the deputy First Minister completes the trilogy of bigotry by blocking moves in the Executive Office. Does the First Minister agree that all the talk and platitudes about respect reek of hypocrisy from Sinn Féin and the deputy First Minister when weighed against those actions? As for the First Minister —”
“Yet, that is what drove an arrogant Department to decree, "We will ignore what the Assembly says", and it is what drives the Assembly today to say, "We will ignore the opportunity to put it right. We will just bulldoze with that which we have because we do not really care about the interests of justice".”
“Those are the cases where, if there is an application to hear the evidence, in the interest of justice, there is nothing to lose in allowing committal proceedings. <BR /> <BR />This is not a grand demand for carte blanche on committal cases. This is very much the bare bones of the 2015 compromise that said, subject to the filter of a magistrate, an experienced person, who, having regard to the nature of the witness and the charge, has to decide whether or not it is in the interest of justice to hear evidence. It is a minuscule but important number of cases. <BR /> <BR />It staggers me that so many MLAs in the House are so anxious to run away from a test of something being in the interest of justice. What are you scared of in subjecting something to the interest of justice test? Should that not be at the heart of everything?”
“The Minister has not explained how, under her preferred system of no committals, she would deal with the 100 or so cases of 2019 that fell apart and did not proceed. Those cases would have had to proceed. <BR /> <BR />Of course, by removing committal, you also remove something that we have not yet discussed: the early stages of disclosure. More often than not, it is the compulsion of disclosure that demonstrates the inherent flaws in a case that can cause it to collapse. The Minister does not want that at an early stage. She wants to keep the person charged until the last moment, when the jury delivers its verdict, whereas there are cases where justice requires that the evidence is so flawed that it should be exposed as flawed and the person released forthwith.”
“She is hoist by her own petard if she says that cases that the PPS evaluated were thrown out, but she would have had no committal. She would have had cases go to trial, at the expense of the public purse and everything else, that she and the PPS now say were unworthy, even though the PPS authorised them in the first place.”
“That was the assessment of the PPS — the people who have a vested interest in saying that the case was worthy in the first place. If the cases were not thrown out on the lack of value of the oral evidence, on what basis were they thrown out? How did they ever get there, with a PPS that has to be satisfied by a public interest test and the likelihood of conviction? How did those cases ever get into the system? Had it not been for the committal process, they would have stayed in the system to trial; they would not have been thrown out. Would that have been in the interests of justice? Was it in the interests of justice that those cases were thrown out at committal? <BR /> <BR />If the Minister says that it was not, she is saying that cases unworthy of trial should, nonetheless, go to trial.”
“The criminal justice process is, or has been until now, a two-stage process: committal and trial. Both have to be fair under article 6 and both have to be compliant in that regard. For some people who are afforded the right to cross-examine witnesses at the committal stage, it will be the end of the process, because the magistrate may well decide, "This evidence is not believable. It is not credible. No one should go to trial on this. That is the end of it". In the Minister's view, however, that person should never have that opportunity. They should be compelled and forced to go to the full trial, wasting public money on trials that are not necessary because the evidence is so fallible that it will fall at first cross-examination. Why not have that first cross-examination where it is thought appropriate: at the first stage?”
“It is not just a one-way street: there are other players involved who have rights as well. When I say that all that we want to do is insert into the committal process a test as to whether there is sufficiency of evidence to return for trial, and to make that on the basis of whether it is in the interests of justice to hear that evidence, I do not think that that is too much to ask, but, to the Minister, it obviously is. <BR /> <BR />I will give way.”
“That is equally important in the justice system. Think of the 4% of cases. Think of the 18 cases in 2014 where, when the evidence was heard, the case was thrown out. Do the rights of those people not matter? Are they just to be trampled? Are they not to be acknowledged? Are they to be put through not just a committal but, ultimately, a trial before they are vindicated?”
“We accept them as a victim, and we will cosset them to the point where we will prejudice the person whom we are calling the accused and diminish his or her rights in order to cosset others". The fundamental principle that a person is innocent until proven guilty has outworkings, and among the outworkings is the fact that that person is entitled to defend themselves. <BR /> <BR />Let us take a simple enough case where someone is accused of an act of theft, and they know that the primary witness is himself a person of ill repute, with a record the length of your arm, who would lie just for the sake of it, and they know that their statement is lies. The House is saying that that person should not have the right to persuade a magistrate to hear that person's evidence so as to bring the torture of their prosecution to an end.”
“A witness can feel uncomfortable and as though they are in a distant and foreign place when they give evidence, but I am afraid that the giving of evidence is at the very heart of the justice system. You cannot proceed to convict without evidence. Therefore, you have to hear it. Whether it happens in the Magistrates' Court, the Crown Court or both, it is unlikely to ever be the most comfortable of processes. <BR /> <BR />There is someone else to consider in the justice system: the citizen who is told that they are innocent until proven guilty also has rights. That person has the right to challenge evidence. That person has the right to question evidence. It is not a question of saying, "Here is a victim.”
“This alien thing is to endorse the view that the interests of justice should determine whether evidence in a particular circumstance should be called. We now want to eschew the interests of justice, override the interests of justice and declare that we know better. <BR /> <BR />Ms Bradley told us that amendment No 1 is too wide. Are the interests of justice really too wide? Let us be very clear: what the amendment does is to decree that a magistrate — a judicial officer with many years experience — will be the one to decide, having regard to the nature of the charge and the nature of the witness, thereby protecting the frailty of a particular witness. The magistrate will decide whether it is in the interests of justice. Is that too wide? Are the interests of justice too wide? I really do say to the House —”
“Time moves on with a Minister who never thought it worthy to come to the House and say, "Remember, back in 2015, you very foolishly passed what became section 7 of the 2015 Act. I just want to tell you that I am not going to commence it". Never once did the Minister come to the House and reveal that secret. Such was the contempt for the House that she thought she could just sweep the House aside and never mind its will. It was the will of some people in the House who have today somersaulted. Sinn Féin spoke in favour and voted strongly to support the 2015 amendment. I remember Mr McCartney speaking about it. Today, it is shredded. Others, too, spoke in those terms. <BR /> <BR />I come back to this point: what is this alien thing that I am asking the House to embrace?”
“Really, have we so lost our way democratically, never mind in law, that we think that that is the right course to pursue?”
“I will make it absolutely clear: the Minister whom I was criticising is the Minister in the House. It is the Minister in the House who stood up today and sought to justify overriding the view of the House and railroading her opinion and that of her Department and some other miscellaneous persons through the House. It is not Ms Sugden but Minister Long who has taken that stance, arrogantly and audaciously, in the House today. <BR /> <BR />There is a fundamental not just of justice but of democracy. The fundamental of democracy is that, if you have a legislative Assembly, you allow it to legislate, and, when it legislates, you heed what it says. We are now in the situation in which commencement delayed is the will of the House denied, and the Minister glories in that and thinks that that is great and is the right thing to do.”
“Then, we have a Minister, a Department and the mandarins within it who think, "Don't worry about that. That was only ill-informed and ignorant MLAs. We know better; we have three wise men in Fresh Start who know so much better. We don't need to heed what 108 MLAs foolishly thought. Oh, no. We preen ourselves as those who know everything on these matters".”
“I have heard it all when, today, I hear an amendment that has, at its heart, the protection of the interests of justice described as a "wrecking" amendment. Some people seem to have such disrespect for due process and the law that even the concept of innocent until proven guilty is an irritant and inconvenience. I really do wonder just how many in the Department of Justice and in the House have lost their way in terms of the basic concepts of justice, never mind democracy. The Minister patently glories in the fact that she and her Department know better than the House. The House dared to disagree with her predecessor and to propose and accept an amendment. The House dared to insert a change in the Bill, and it even dared to unanimously agree that change.”
“The Member talks about good process. Does she really think that it is good process that someone can be returned for trial in Northern Ireland without there even being demonstrated at any point that there is a prima facie case against them? Is that good process?”
“Surely past experience shows that very few people seek to go down the preliminary investigation route. The Assembly has to answer this question: is expedition in those few cases more important than justice? By rejecting those amendments, the Assembly would be running away from making the interests of justice front and centre in those cases. Can that be right?”
“It is necessary to adjust the schedule by removing paragraph 18 because paragraph 18 seeks to repeal section 7 of the 2015 Act, which brought in article 29A. <BR /> <BR />I will leave it there. I trust that I have made it clear what the ambition is. I think that it is a modest but worthwhile ambition. I hope that the Minister could embrace it as being in the interests of justice.”
“Are we not interested in the interest of justice? Do we not trust our magistrates to decide what is in the interest of justice? If we do not, that is another matter. If we do, what is there to lose from that approach? I say to the House that it is time to return to the compromise of 2015 and embrace that in the Bill. <BR /> <BR />That is why I have tabled amendment Nos 1 and 2, and I say to the House that, if amendment Nos 1 and 2 are accepted, I will not need to oppose that clauses 1 and 2 stand part because they will have been satisfactorily amended. The choice that I am putting to the House is to restore ourselves to the 2015 position. I think that that is rational, reasonable and right. My other amendment, amendment No 4, is a corollary to amendment Nos 1 and 2.”
“<BR /> <BR />I am saying that the very least that we should do is to build into that system the protection that, if an accused can persuade a magistrate that it is in the interest of justice to hear some of the evidence in order to decide whether it passes the test and whether it is worth a trial, we should have that provision, rather than saying, "No, no, no". What are we scared of in allowing evidence to be tested? What is it that we think is not desirable about subjecting something to an interest of justice test? That is the question that the House has to grapple with in this matter. <BR /> <BR />What I am proposing is very modest. It is the least that, I believe, is possible. It is not something that anyone should have any difficulties with. The test of it all is this: is it in the interest of justice?”
“In some cases, courtesy of the Gillen changes, depending on the nature of the charge and the nature of the witness, you can have a situation in which that witness is only allowed to be asked the questions that the judge approves. You have to hand in the questions that you are going to ask, and if the judge says, "No, you can't ask that", you cannot ask it. Therefore, you can have a really impossible situation in which someone is returned for trial without sworn evidence on the papers and with statements effectively written by police officers, to which the complainant has assented, and, even when they get to trial, there is no free and open cross-examination, because the questions are limited to those approved by the judge. That is where we have got to in the Province on some of those matters.”
“If you have no committal process with a capacity for oral evidence, everyone in this country who goes on trial will do so on the foot of statements that have never even been sworn by the deponents, never mind tested. Remember what a set of preliminary inquiry papers are: they are a collection of statements from the complainants etc. They are rarely the words of the complainant. Invariably, they are the product of a police officer talking to the complainant and putting the complainant's story in the police officer's words. That is then typed up and presented as the preliminary inquiry papers, which are never sworn. On that basis, a citizen is returned for trial.”
“Really, what it comes down to at the end of the day is this: where a judge says that it is in the interest of justice that evidence should be heard at a preliminary stage, knowing that that is in a very small number of cases, does the House think it right that, nonetheless, we should eschew the interest of justice and say, "No. There will be no evidence heard, because of our ideology that we don't do that", which seems to prevail in the Department of Justice, or do we think that there is nothing wrong with a fail-safe that says, "If a magistrate is persuaded that it is in the interest of justice to hear evidence, it should be heard", and he decides, having heard the evidence, whether the case reaches the threshold of a prima facie case? <BR /> <BR />I will say one other thing.”
“Of course, the reason why many are content with a return on the papers by way of preliminary examination (PE) is simply that they want to get to the Crown Court as quickly as possible to get it over with, or they might know full well that they have no answer and there is no point quibbling over it, or they might decide that they will quibble over some of the evidence but will keep their powder dry, as it were, until they get to the Crown Court and not give the prosecution a dry run at it. There are all sorts of reasons why preliminary investigations and the calling of evidence are small in number, but it is still an important right to be able to call evidence.”
“Of those 74, 18 resulted in the person not being returned for trial; in other words, the magistrate threw it out on foot of the evidence at the time. The rest went on to trial. Of course, the corollary of that is that the public purse was saved the cost of 18 trials, a not insignificant thing. <BR /> <BR />The whole idea of a committal process is to see whether there is a prima facie case. That is the test. At the ultimate end of the criminal process, there can only be guilt beyond all reasonable doubt, but, for a committal, all that you have to do is show that there is a prima facie case, which is a much lower threshold.”
“The purpose of the amendments is to bring us back to where, we thought, we were in 2015 in respect of that compromise. <BR /> <BR />The question then arises of why it matters. We need to understand that committal proceedings are an integral part of the trial process. When you say that you have a right to a fair hearing under article 6 of the European Convention, it encompasses the final hearing, the committal hearing, everything in between and, indeed, some things before. The process has to meet the article 6 test. It is not a process that is likely to be abused. If you take the situation that existed before we even got to this point in the law, in 2014, only 74 out of the hundreds and thousands of committals that were made went by preliminary investigation. That is a minuscule amount.”
“No. It is clear that you have to get a direction from the Magistrates' Court. You have to require a direction for oral evidence for oral evidence to be heard. So, no, I do not anticipate there being any appeal provision in that. I suppose that you could have a "case stated" appeal. That is a breed or type of appeal that allows you, if you wanted to argue that the judge got the law wrong on something, to cause him to state a case to the higher court. However, there is no rerun appeal such as you would have elsewhere. If you were convicted of theft in the petty sessions, you would have the right of appeal to the County Court etc. My understanding is that you would not have that right of appeal and you could get the oral evidence only on foot of a direction obtained through all of those hurdles.”
“It is both the nature of the offence and the frailty or otherwise of the witness. Only if the magistrate is persuaded that, taking those things into account, it is nonetheless in the interests of justice to hear oral evidence is oral evidence ever heard. That does not seem to me to be an imposition too far; indeed, the 2015 resolution was a compromise in itself — very much so. Then we arrived at a situation that was acceptable to this House, where the nature of the witness and the nature of the offence were determinant issues in weighing up what was in the interests of justice.”
“So there could be a distinction between, maybe, a sexual offence, a violent offence and a non-violent one. The nature of the offence has to be put into the balance. One is conscious that there are people concerned about the victims of sexual offences, for example, so that their interests are particularly regarded. Not only does it say, in 29A(5), that the judge must take into account "the nature of the offence"; it says:”
“This is what the magistrate has to be persuaded of; the onus is on the accused. He has to bring the magistrate to the point of believing that oral evidence would be "in the interests of justice". The tests in determining that are to:”
“<BR /> <BR />So that it is clear what my amendments would do, they would reinstate what is in article 29A. I want to take a little time, because I was rushed just before lunch, in explaining practically what that would mean. It would mean that the vast majority of committal proceedings would not be by preliminary investigation; in other words, no evidence would be called. If an accused thought it appropriate to seek to have evidence called, under article 29A(2) they, the accused, could apply to the court for direction that a preliminary investigation be held. However, it is not there for the asking. Under 29A, the court has to weigh the matter and determine it on the question of whether it would be "in the interests of justice". In determining whether it would be in the interests of justice, 29A(5) lays down the clear test.”
“One would have thought that, if what the Minister now says is the full story, the explanatory and financial memorandum would have made that clear. However, it does not even mention the fact that the commencement order was never moved. <BR /> <BR />Whatever way you look at this, we are in a situation where, six and a half years ago, the Assembly decided what the law should be on the subject. Then, despite that, the Department, which seems to think that it is above the House, decided, because some others had taken a different view, that it would not bother with that. Six and a half years later, here we are with me reading out a law that was approved by the House six and a half years ago and never actioned. One wonders how many other commencement orders have never been made in respect of legislation passed by the House.”
“I will, but the Minister will have an opportunity to speak later, no doubt.”
“When her officials gave evidence to the Committee, if the Committee report is an accurate reflection, there was no talk about, "We did not have time"; it was, "We changed our minds because three wise men decided, in the Fresh Start Agreement, that it would be better to do something else".”
“Yes. Even if, as the Minister suggests, we take out the 2016 election, there was certainly more than a year of the Executive and the Assembly sitting between July 2015 and January 2017. We have been back now almost two years. Neither the Minister nor her predecessor ever thought to come to the House to say, "In 2015, the House passed certain legislation, but, for the following reasons, it has not been commenced". The House was kept in the dark. Never once did the Minister come to the House and give an explanation of why she was not moving a commencement order.”
“In a moment. <BR /> <BR />The explanation, such as it is, that the Minister has just given is, of course, totally different from the explanation that was apparently given to the Committee, as reflected in paragraph 69 of its report. I give way.”
“The date of Royal Assent to the 2015 Bill, which made it the Act, was 24 July 2015. The Assembly continued to sit until January 2017, so there was an 18-month period during which commencement orders could have been made.”
“Before lunch, I was dealing primarily with the backstory to these amendments. I highlighted the fact that what I seek to do is what the Assembly thought that it had done and, in fact, had done in 2015, but it was thwarted by the Department taking upon itself the decision to defy the Assembly and never to make a commencement order in respect of the changes that were made.”
“— I will explore the merits of those amendments and why, in the interests of justice, it is right to keep the option for oral evidence.”
“The Department is saying, "Never mind the House; the Three Wise Men from Fresh Start know better". What would 90 MLAs know? Fresh Start recommendations override the legislative will of this House. <BR /> <BR />These amendments are an attempt to restore the equilibrium and authority of this House. After lunch — because I suggest that you are about to call me down, Mr Deputy Speaker”