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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“That is it. Paul Kavanagh, I venture to say, was not appointed to the Education Authority because of his academic and educational brilliance or experience. He was appointed, as Dominic Bradley pointed out in the other case, to demonstrate that there is no remorse or regret for the actions of those who were volunteers in the IRA, and they are elevated precisely to make that point. It seems to me, sadly, that that is absolutely true.”
“He said that it was a statement by Sinn Féin that it was going to elevate a particular individual because of her past; that it was going to do so because it could and to demonstrate that it had no remorse or regret for the actions of that individual or anyone else whom it called "a volunteer in the IRA"; and that it was elevating and promoting her precisely to make that point.”
“The fundamental question for each MLA today is this: is it right that convicted criminals, be they terrorist convicts or other convicts, can be rewarded by political friends? Some will tell us, "It is all about the Good Friday Agreement. We drew a line in the sand". That was the argument that was churned out in the House when, in 2012-13, we debated the situation that had arisen as we were passing Ann's law following the spad appointment of the murderer of Mary Travers. The best riposte that I heard in that debate came from SDLP Member Dominic Bradley, who, if I recall correctly, represented Newry and Armagh. He threw back the challenge. He told the House that the McArdle appointment was against the spirit of the Good Friday Agreement, because it was a calculated, deliberate measure.”
“Sure Gerry Kelly runs the police". That is a boil that we can lance. We lanced that boil over special advisers, and everyone moved on, and it is now relatively uncontroversial. We need to lance the same boil for policing, and this is the opportunity to do so. Those who lament lack of confidence in the police have the opportunity today to do something about it. Remove that grievance if you want to help there to be confidence in the police.”
“The Member makes the perfectly good and unanswerable point that it is not, "Do as I do" but, "Do as I say". <BR /> <BR />The situation is untenable, I suggest. Think of the situation across the water, where they have police commissioners who are not policemen but overseers. Under the legislation there, you cannot serve if you have a conviction for an imprisonable offence. Here, however, you can lord it over the police, no matter what terrorist convictions you have. <BR /> <BR />I have to say to the House that those of us who are familiar with the unionist and loyalist community will be conscious of the fact that there is a huge loss of confidence in policing in that community. When I talk to young people in particular about policing, the riposte that I often get, to be frank with the House, is this: "What do you expect?”
“One will observe with interest whether it ditches the approach of Mr Ford or whether it logically builds on it. I trust that it will build on it.”
“Both those facts are correct, but they do not detract from the fact that it is stipulated in legislation that an independent member with a relevant conviction cannot serve on a PCSP. I trust that the Alliance Party will reflect on the direction of travel set by its former leader in respect of PCSPs and realise that that is equally, if not more, applicable to the all-powerful Policing Board.”
“So you cannot serve on the PCSP, but you can serve on the Policing Board.”
“<BR /> <BR />Is it not interesting that, courtesy of the Alliance Justice Minister in 2011, the PCSPs are provided for in the Justice Act of that year? Paragraph 9(3) of schedule 1 to Mr Ford's Act states:”
“Overseeing a police service, part of whose function is to put lawbreakers in prison, himself a jailbreaker in September 1983, when prison officer Ferris was stabbed and died of a heart attack and prison officer John Adams was shot in the head, something of which Mr Kelly has obliquely boasted. After being on the run, he was caught three years later with a cache of weapons in the Netherlands. Some will say, "Oh, he's an elected MLA". Yes, he is. The people who elected him did so in spite of that. That is true. The Bill is not challenging that, given that that is not within the competence of the House. It is one thing to be elected an MLA. It is another thing to have a passport to the Policing Board.”
“<BR /> <BR />What I have said about service on the Education Authority can equally be said about the Policing Board. There we have an equally notorious situation. I hear much talk of and demand for a border poll. We once had a border poll in this Province. It was on 8 March 1973. What was Gerry Kelly doing on 8 March 1973? He was planting his bomb at the Old Bailey in London; eschewing democratic process to engage in terrorism. Some 200 people were injured. Frederick Milton took a heart attack and died. Where does the Old Bailey bomber sit today? On the Policing Board of Northern Ireland. <BR /> <BR />Add to his notoriety jailbreaker.”
“The second condition is that they have taken all reasonable steps to assist in the investigation and prosecution of all other persons connected with the commission of the offence. Some in the House might think that would be particularly pertinent to someone who serves on the Policing Board. The third criterion is the views of any victim of the offence. <BR /> <BR />The onus, then, is on the person with the serious criminal conviction. If they can demonstrate contrition and that they have done all that they can to bring justice and closure, whereby victims can live with the appointment, that person can serve, but not if they will not or do not do so — not the unrepentant terrorist who gloats and glories in his acts and who was only appointed as a mark of his achievements as a terrorist.”
“Absolutely. I will come back to that point about the contrast between how the non-political elite and the political elite are appointed to public bodies. What a stark contrast it is. <BR /> <BR />I make the point that, under the Bill, such a person could not hold office, except — there is an exception, and it puts the onus on the person affected. The exception is laid out in clause 3 where, through a panel established, I suggest, by the Commissioner for Public Appointments, such a person can continue to hold office — can in the first place be appointed — if three criteria are met. One is whether the person has shown contrition. Is that too much to ask, when you think of Nora Field? Is contrition too much to ask?”
“It indicates that anyone with a serious criminal conviction, which, as you will see, is defined in clause 5 as a sentence of immediate imprisonment of five years or more. Anyone with such a criminal conviction — it does not matter whether it is rape, paedophilia, murder, robbery; it does not matter whether it is domestic murder or terrorist murder; it does not matter whether it is IRA murder or UVF murder — would be prohibited from holding office as a nominee of a political party. If such a person was already in office, their appointment would be terminated with whatever requisite compensation met legal obligations.”
“<BR /> <BR />That is the context in which the Bill seeks to terminate such appointments. It does two things in that regard.”
“The second-most poignant question that he asked, and one that we all must grapple with, is this: what is the message to upcoming generations? What is the message of the House to upcoming generations? Is it that it is OK to kill and murder, provided that you do it in the name of some supposed cause, and then you can become the political elite and be appointed to public office and paid from public funds? What does that tell the upcoming generation in areas where terrorism still seeks to recruit? I say this: let John Radley's two questions echo round the House. As Members go through the Lobbies this evening, let those two questions echo in their ears: how can the murderer of an 18-year-old get a top job in the Education Authority, and what is the message for upcoming generations?”
“<BR /> <BR />Amongst the numerous Irish Guards who were severely injured is one who has spoken publicly in the media a number of times about the matter, Lance Corporal — as he then was — John Radley, who was aged 21. A 6-inch nail passed through his neck and down his back. He was blinded in one eye. He lost the hearing in one ear. He was left never to be the same again. Speaking after the appointment of Paul Kavanagh to the Education Authority, John Radley asked this poignant question:”
“<BR /> <BR />I repeat the question for the House: is such a person, with the imprimatur of the House, suitable to have oversight of the Education Authority, which includes not just schools but the Youth Service? Not much thought was given to the youth, John Patrick Breslin, or the two children. The question to each party and individual in the House is this: do you stand for the elevation of such a person to such a position? Take yourself back to that day. Picture the scene. A widow is out shopping for her 92-year-old mother and is making her way along the street, when she is suddenly blasted with shrapnel and a nail rips through her chest and embeds in her heart. If the House has any heart for ordinary people and ordinary victims, it will eschew the very notion that such a victim-maker deserves elevation in society.”
“was Paul Kavanagh. He is now one of Sinn Féin's political elite, appointed by that party to serve on the oversight body, the Education Authority. Mr Kavanagh collected five life sentences for three murders. Another one of those murders was a civilian bomb disposal expert, Kenneth Howorth. <BR /> <BR />Paul Kavanagh was told by the court that he was not fit to be at liberty. The House is asked today whether such a person is fit to sit on the Education Authority. That is the question that every MLA must individually address. Nora Field was not his only victim that day. A young Irish Catholic lad, John Patrick Breslin, aged just 18, had one of those nails embedded in his brain and he died three days later. Two children, aged five and three, were injured, as, of course, were multiple members of the Irish Guards.”
“The Member puts it in a manner that I cannot disagree with at all. <BR /> <BR />The bomber who was told:”
“She never returned, because, as she passed Chelsea Barracks, a 6-inch nail ripped through her chest and pierced her heart. That 6-inch nail came from the shrapnel of a bomb that was packed with 1,000 such nails and pounds upon pounds of nuts and bolts, which, of course, were there to maximise the damage not just to structures but to the structure of the human body. They certainly did that in respect of Nora Field. <BR /> <BR />The bomb had been detonated; it had 30 lb of gelignite in it. The bomb was detonated in a laundry van, or what passed as a laundry van, from a lookout opposite the barracks. The judge, in a subsequent trial, said — and this is quite chilling — that the bomber had full view of the fact that there were innocent civilians walking past on the street. The judge in sentencing the bomber stated:”
“Although the debate and the Bill are primarily about the privileged position that is held in some public offices by victim-makers, it is, for me, actually about respecting victims. I hear much talk in the House and elsewhere from time to time about respect, about looking after the interests of ordinary people and about the interests of the ordinary people being more important than the political elite. Today we will decide whether that is so. <BR /> <BR />In setting the context of the Bill, I will begin by talking about a very ordinary person: a lady by the name of Nora Field. She was a 61-year-old widow. She had known the trauma and upset of losing her husband. She lived in a council flat in London. She was the carer for her 92-year-old mother. On 11 October 1981, she went out to get some groceries for her mother.”
“The situation that we have therefore is that there already is an integrated college, and now the EA wants to delete all other schools and have only a new integrated college. How does that fit with parental choice?”
“With regard to lessons learned from last year, does the Minister agree that it is important to resolve that there will be no rush to delay or cancel tests? As it turned out, tests probably could have been held last November. Parents want certainty. Can they have the Minister's assurance that everything possible will be done to ensure that the tests take place in November?”
“I want to take a few moments to congratulate the Ulster-Scots Agency and the various Lambeg drumming associations for the magnificent and inventive display that they put on at the weekend in front of Parliament Buildings to celebrate our neglected centenary. Of course, following the churlish, bigoted refusal, courtesy of Sinn Féin through the Assembly Commission, to allow even a centenary stone to mark that centenary, it was fitting that such a tribute was paid in the grounds of Parliament Buildings. Even a rose bush could not overcome the bigotry of Sinn Féin. Therefore, I am delighted that, on Saturday, we had that display loud and proud to celebrate the centenary of this great place that we call Northern Ireland. Well done to them.”
“What does the Minister think is the message to London, Dublin and Brussels from those who say that they are opposed to the protocol but, at the same time, are implementing it?”
“There is an apparent desire by some to hollow out much of the Coleraine campus. Does the Minister agree that it would be timely and confidence-building to support having a new veterinary school and to site it at Coleraine?”
“It is critical that we know whether the sponsor is going to die in a ditch over clause 1. A very clear answer to that would be helpful as we seek to move the matter forward.”
“He emerges with a huge bill to add to the harm that he has already suffered, but it was not enough harm to be called serious. <BR /> <BR />How can we possibly rush into creating that situation? I say to the House that we need to pause and think very carefully about whether that is where we want to go. For me, this is the compelling and determinative issue. I echo what Mr Weir said to the sponsor: when he comes to make a winding-up speech on the debate, will he indicate whether clause 1 is a make-or-break clause for the Bill? If it is not, it would be much easier — I can speak only for myself — to go through the Aye Lobby, because there are other things that it would probably be useful to do, not least in respect of scientific journals and social media.”
“Clause 1 creates a hurdle that says to the little man, "It is not only that you have to take all the financial risks. It is not only that you cannot get insurance against being libelled when those that you have to sue do have insurance. Now, even to venture to sue, you need to be satisfied that you can prove serious harm. Then, if you get to the point where the judge says, 'Sorry, there is harm but, in my view, it is not serious harm', you will have lost, and you will pay everyone's costs, because costs follow the event. The individual who takes the risk — a risk that is present in libel in any event but would be enhanced risk by having to seek to show serious harm — and fails, having not got past that point, emerges in a far worse position, even though he has already suffered harm.”
“What will a judge say serious harm is in their circumstances? That is another imponderable. It is not just a matter of deciding, "I have been lied about, and my reputation has suffered". This law would say that, unless there is serious harm, a reputation is entitled to suffer. Is that a good place to be? Is it good to say that anyone — a media organisation, an individual or anyone whatsoever — can tell a lie about you and damage your reputation, provided that they do not overdo it to the point where they have caused you serious harm? <BR /> <BR />Serious harm to one person might not be serious harm to another. In the eyes of a plaintiff, the harm might seem very serious but, in the eyes of an outsider, it might not seem serious at all. Our concern should be for the person affected — the little man.”
“It is an uneven playing field before you ever start. You are suing a body that, more often than not, as Mr Nesbitt bore witness to, has insurers that will pick up the tab, although, as Mr Nesbitt told us, you have to follow their directions. Against that is a plaintiff who is very upset at what has been said about them and who now has an extra consideration. First, they have to consider that, to do anything about this, they have to risk taking legal proceedings. If they lose those legal proceedings, there is no safety net of legal aid, and they will therefore have to pay everyone's costs, including those of the large- or medium-sized media organisation. Now, however, that plaintiff also has to consider whether they can get over the hurdle of proving this unspecified, subjective criterion of serious harm.”
“That is in circumstances in which, if you are suing a media organisation, it is most likely in a position where it has insurance. The plaintiff can never have anything other than his own resources, because it is just not possible to get legal aid in defamation cases.”
“I have dealt with most of my points about that, but I just want to make a couple of others. As in any civil proceedings, the onus is on the plaintiff to prove their case on the balance of probabilities. If, however, you have to prove your case on the balance of probabilities that not only was there harm but there was serious harm, it is clearly a much more difficult hurdle.”
“Some statistics speak to the truth of the matter. In the three or four years before 2013, we had an average of 35 writs for defamation issued in Northern Ireland. In the corresponding period since 2013, the average number of writs issued for defamation in Northern Ireland is 30. Far from an increase, there has been a slight decrease but, really, little if any impact. Libel tourism was a straw man in all of this. That therefore enables us to examine the present legislative proposal free from that pressure and burden. When you examine it free from that pressure and burden, it leaves you, of necessity, to consider every clause. <BR /> <BR />I have indicated that clause 1 troubles me most, and it does so because of the raising of the bar for how you can obtain remedy for defamation.”
“Before we broke for lunch, he intervened to ask me about a purported quotation from me in the 'Belfast Telegraph' from 2012, I think, in which I was reported to have said that, if we did not follow the 2013 Act, we would be in a difficult position. As to whether I said that, when you read the entirety of the article, the question that I was answering is clear. The burden of the article was that there was going to be a huge avalanche of libel tourism in Northern Ireland if we were the only place that did not follow the 2013 Act. I said that that would indeed create a very difficult situation. <BR /> <BR />Things have turned out very differently, however, despite those warnings that, if we did not follow the 2013 Act, there would be libel tourism. There was talk about Russian oligarchs and all sorts flooding our High Court.”
“I am flattered that Mr Muir seems to keep a file of my past utterances. It is just a pity that he does not heed them a little more, but there you go.”
“Is the Minister in a position to tell the House how many people across Northern Ireland are in receipt of funding for continuing healthcare provision? Secondly, will he come off the fence about whether it is his ambition that, in Northern Ireland, there should be a cap on the amount that a family ultimately has to pay?”
“I have no recollection of talking to Mr Clarke at all about this, so I am dependent on the accuracy of his reporting. I do not want to at all impugn someone who has passed this scene of time, but I do not recognise the short extract that you read. That is all that I can say to you. However, the question for today is this: are we or are we not on the right path? <BR /> <BR />I think that Mr Deputy Speaker is about to tell me to sit down.”
“I am sorry, but I just do not see that in the Bill. How is it making it easier by saying to someone, "You have a higher threshold to meet before you start"? On any interpretation, that makes it harder. When someone goes to consult their solicitor and/or barrister to discuss the viability of bringing a case, that person will now have to be told, "It's not whether your reputation was damaged; it's whether that damage caused you serious harm". That does not make it easier; it makes it harder. That is why the very first principle that is supposedly espoused in the document is denied by its own content.”
“<BR /> <BR />I read in the explanatory and financial memorandum that this is about making it:”
“Do we want to say to them, "Yes, it is OK for a newspaper or someone else to tell a lie about you, as long as it does not cause you serious harm"? I do not think that that is the proper approach. <BR /> <BR />What is "serious harm", and how appropriate is it that a judge, who may not be the person most in touch with everyday life in our society, makes that decision? Is it appropriate that a judge and a judge alone should make that decision about an ordinary citizen, an elevated citizen or someone in the public eye? If harm has been caused to someone's reputation by a lie that was told, surely it is far better to rest in the current situation, whereby you reflect the seriousness of that in the damages awarded, rather than putting in place too high a bar to let the person get the defamation case off the ground.”
“If we move away from truth as the touchstone of whether there has been libel and change that touchstone to, "Has there been serious harm caused by reason of the lie that was told?", we diminish the very essence of the respect that we have for truth. If we say that you can now tell a lie about someone, provided that you do not cause that person serious harm, we are making a pretty huge change to our libel laws. That is what it comes down to when you deconstruct clause 1. You can cause someone's reputation to be diminished and get away with it because you have not caused the person serious harm. You can tell a lie about someone and get away with it because you have not caused the person serious harm. Is that the sort of law that we want to present on behalf of our citizens?”
“On the common law translation of the defence of justification into the statutory defence of truth, there is not much difference. On the issue relating to fair comment there is not much difference. Yes, we need to tighten things up for the social media age in which we live. I have difficulties with the abolition of juries, because the fundamental question in a libel case is this: has this man's or woman's reputation been adversely affected in how they are perceived by the general public? Who better to determine that than the general public, who sit on a jury? If that is the question, is that not the right arena for it to be answered? I have some difficulty with that. <BR /> <BR />I return to clause 1.”
“In other words, if you secure a judgement that you secure a judgement that you have been defamed, the damages that you get reflect whether the harm caused to you was minor or serious. I respectfully suggest that that is the right arena for the determination of whether something causes "serious harm". However, to make that the threshold to even be able to succeed in defamation proceedings is wrong. It is very much putting the cart before the horse. The situation is that, if your reputation has been damaged, the degree to which it has been damaged is reflected in the damages that you get, not that you must demonstrate a particular level of harm before you are even permitted to succeed. That, I think, is the fundamental flaw, as I see it, in the Bill. <BR /> <BR />I do not have an issue with much of the rest of the Bill.”
“<BR /> <BR />For me, the fundamental, defining issue on the matter is how far we are changing defamation law in the context of its accessibility to the general public. That brings one straight away to clause 1. Today, the test for succeeding in defamation is whether what has been said, in the eyes of the average man or the general public, lowers a person's reputation or what they think of that individual. What clause 1 wants to do is to raise that to a different question, which is this: is that harm serious? That is itself a wholly subjective question. Let me make this point: the proper test for whether something is serious harm or non-serious harm is the level of damages that flow from that harm.”
“Therefore, as legislators, we should be conscious of the fact that there does not appear to be a compelling requirement to address the issue at this point — not that it is not always good to reflect and reform where we can. <BR /> <BR />Mr O'Toole made a point, and he may be right; the problem with his point is that there is no way of really knowing that there is a subterranean chill factor whereby letters are written and media organisations fold before the proceedings start. Now, I have enough contacts still in the legal world to know that two of the major parties in the House keep their lawyers very busy writing to the media to object to suggestions that certain things might be published. Maybe that has a chilling effect; I am sure that, to some degree, it does. That is something to go into the balance in considering the issues.”
“Through their scheduling, the Executive can certainly dictate when they bring their business to the House, but when private Members bring theirs is none of the Executive's business. I welcome the fact that the debate is taking place in spite of that audacious attempt. <BR /> <BR />With most Bills, a good starting point is often to ask what we are trying to fix and whether the present system is broken. To be absolutely fair to him, when I asked the Bill's sponsor at the Finance Committee whether he could point to any outrageous defamation rulings or awards in recent years in Northern Ireland, he honestly conceded that he could not. We are not in a situation where our defamation laws are so out of control or out of kilter with what they need to be that there is an urgent, irrepressible need for reform.”
“I welcome the debate. I begin by expressing my total amazement that an attempt was made by a Minister, namely the Finance Minister, to thwart and abort the debate by writing to the Speaker and the Business Office asking that the debate should not take place and should be delayed. To his credit, the Speaker properly told the Minister that that was itself out of order, in that it is not for the Executive to dictate the order of business to the Business Committee. However, that was a telling insight into the totalitarian tendency of Ministers in the Executive who think that they can dictate to this elected Assembly when private Members can bring their business to the House.”
“The danger to the House is that I might get a second go”