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.”
The complete record
Every one of 4,749 lines we hold for Jim Allister, in date order, each linked to its source. Free to read, in full, without an account. Page 35 of 95.
“Last weekend, former First Minister Peter Robinson perceptively said:”
“I am sure that the Minister will not want to be as slippery as an eel in answering this question. Can he update the House on the position, as of now, in relation to DEFRA inspectors, under the protocol, at our ports? Does he commit, as a unionist, to playing no part in aiding the partitioning of this United Kingdom and, therefore, not putting officials back at those ports?”
“I wonder whether the Minister would be so sanguine if there was not a single Catholic among the Lord Justices. Has she discussed the issue with Lord Chief Justice and conveyed the fact that cross-community confidence for the judiciary is very important?”
“First Minister, given the genesis of the shared island fund, do you not think that, in part, it is a sugar-coating of an ambition to absorb, ultimately, this part of the United Kingdom into a 32-county Republic? You refer to its being processed during the North/South Ministerial Council. Where does that now sit with your publicised intention to, rightfully, not fully function the North/South institutions in protest against the thrashing of the east-west relationships through the protocol?”
“I would be happy to take up that invitation. To clarify, am I correct in saying that a stalking protection order can be made on a single act without a course of conduct, such as would be required for the criminal offence? The course of conduct is not required. Am I correct in saying that an order could be made without the accused, or the subject of the order, ever having the opportunity to be heard and that that order could last, by repetition, indefinitely?”
“<BR /> <BR />I say to the House that there is much tidying-up to be done in the Bill to make it the sort of legislation that is respectful of fundamental freedoms and liberties, and there are matters, particularly pertaining to protection orders, that the Committee should address with some vigour.”
“If someone fails to give their fingerprints, they can be jailed for five years. I would dearly like the House to insert a very important word into clause 15(4). We should say that the power in subsection (3) is exercisable "only" for the purpose of verifying the identity of the person. It is a step much too far to give a right to take and retain fingerprints and photographs of someone who is subject to a civil remedy, which is a prevention order, rather than someone who is subject to a criminal prosecution. That is just going too far. If you fail to do that, you have committed another criminal offence.”
“to take their fingerprints. This is someone who has not been convicted of anything and has not even been charged with a criminal offence, yet we say that a police officer can take their fingerprints, photograph them or do both. It goes on to say:”
“That is a protection, but my question is a more fundamental one: why are we looking for that in the first place? It does not seem to have been thought necessary by Westminster in its legislation, so why are we seeking to put it in? It holds out the possibility of a creeping infringement of people's rights, and these are people who, I remind you again, have not been convicted. These are people who are subject to preventative orders without a conviction. The House should tread carefully in that regard. <BR /> <BR />In the same vein, we come to clause 15. Clause 15(3) tells us:”
“What could that be? Why would we need that if the sole purpose of the provision is simply to assist in the identification of the person? That is why you need and must have their name and address. Yes, any such regulations could be subject to affirmative resolution in the House. I think that, if I recall correctly, that is covered. Yes, it is in clause 14(9), which states:”
“What is that information? It is the person's name and home address, and then we propose to add something that is not in the GB legislation, which is:”
“That seems to be highly punitive without any of the protections that come with the requirement to move, at some point, to a prosecution. <BR /> <BR />Something is slipped in at clause 14(2)(c) that is not in the GB legislation. This is about the notification requirements. It says that a person who is subject to a stalking protection order, or an interim one:”
“<BR /> <BR />In GB legislation — I believe that it is section 6 of the 2019 Act — the duration of the preventive order can be specified. Here, according to clause 9(1)(b), it can be "until further order". Clause 9(1)(a) states that it can be:”
“Therefore, either you make it conditional or time-limited to a criminal prosecution or, I fear, it is open to the abuse of repeated use, and all that to the lesser civil standard. <BR /> <BR />Then, of course, it becomes a criminal offence if you breach the preventive order. Then you can go to prison for five years. You can have an order put on you preventing you from stalking. You do not need to be prosecuted for stalking. You do not have the right of a trial before your peers to determine whether you were stalking. However, if you breach the preventive order, which seems to be put on you only to the civil standard being met, you can then be prosecuted for breaching that order. There is something there that does not add up. That needs to be addressed.”
“Why are we being diffident in this legislation about spelling out the fact that there is, and must be, a process and right of appeal? To whom is the appeal made? In GB, you have a right of appeal to the Crown Court. Here, under this Bill, there is a request to discharge such right of appeal as you have to the Magistrates' Court, which is the very court that made it. There seems to be no anticipation that you can appeal to a higher body. That is something that seriously needs to be looked at in respect of the drafting of the legislation. <BR /> <BR />I make the point again that those orders can be for successive periods of up to two years. It would be very bad law to allow that to stand with no reference to the fact that, during that process, the person would need to be taken for prosecution.”
“It is not set out in the legislation, as it is in the GB legislation, that there is a definitive right of appeal. Section 7 of the Stalking Protection Act 2019 — I invite the Committee to look at that in due course — expressly states:”
“We also need clarity on whether there is a definitive right of appeal against a stalking protection order. Clause 10 states:”
“We need some clarity as to how those stalking protection orders will be sought.”
“Part VIII is the civil proceedings Part of the Magistrates' Courts Order. It seems to me — again, the Minister can tell us if I am wrong — that a stalking protection order can be obtained on evidence not to the criminal standard but merely to the civil standard and that they can be attained successively for years on end without that person ever being prosecuted in the courts for the actual offence of stalking. Is that not verging on an abuse? I would have thought that it is. <BR /> <BR />I would like one further clarification from the Minister. Clause 7 talks about applications for these stalking protection orders. Is that an ex parte application? Do the police simply come along and ex parte make the application, or is the person against whom they are making it also entitled to be present and to be heard, or is it a two-stage process?”
“They have the dangerous potential that someone could be subjected to successive stalking protection orders, running for years, without the state ever having to trouble to prosecute them. That is not something that I would be comfortable with, all the more so since I believe, in reading the Bill, that a stalking protection order is a civil-type remedy, in that you would only have to prove the grounds on the balance of probabilities. I say that because of clause 12(2), which says:”
“I suppose that there is no reason why it could not be an alternative, but it seems to me to be very much a freestanding offence on its own. <BR /> <BR />What I really want to deal with this in this contribution is the stalking protection order. As I read the Bill, a person could be successively subjected to a stalking protection order but never prosecuted or convicted of any offence. If I am wrong about that, I would like the Minister to point out where I have fallen into error. It seems to me that clauses 6 and thereafter embrace stalking protection orders but do not make them conditional upon criminal proceedings being under way in respect of a stalking prosecution or a conviction already attained. They seem to have a life and existence all of their own.”
“That might be your journalist. However, when it says to "show", to what standard is that? Has the defendant to show that beyond all reasonable doubt, or do they show it to the civil standard of the balance of probabilities? I suspect that it is the latter, but there is nothing to say that it could not be the former. That could usefully have some light shone upon it. We are dealing with a serious criminal offence for which you can collect a tariff of 10 years, so I think that these things need to be clear. <BR /> <BR />I note that clause 2 is an alternative in the sense that though charged under clause 1 you could be convicted under clause 2. I have to say, though, that clause 2, in a sense, is a different genre of offence. It could involve threatening or abusive conduct, which is not required in clause 1.”
“That is highly preferable to the convoluted notion that, where there is no fear, someone else can superimpose their own view that there should have been fear. <BR /> <BR />In looking at the contrast between clauses 1 and 2, we see that "reckless" is a component in clause 2(1)(c) but not clause 1. Why not? Should there not be a parallel reference in clause 1(2) to A's recklessness? I think that there ought to be. <BR />I come to clause 1(5), which is where the person who has been charged can:”
“<BR /> <BR />In the following subsection, we come to something that I have talked about before in the House, to no effect, which is the imposition of the reasonable man test. That is where there is no fear, but where someone, in their wisdom, thinks that there should have been fear, and therefore a box is ticked. I think that the House knows my views about the Department's, and, indeed, the House's, propensity to rewrite the very essence of criminal offences in that regard. Indeed, clause 2, which is an alternative offence, approaches this in a much more sensible way. Clause 2(1)(b) it says that:”
“In some legislation, such as the Public Order (Northern Ireland) Order 1987, there is a definition of fear. What does fear mean in this Bill? What if, for example, an investigative journalist was to follow someone for the purposes of challenging them or to watch their movements? Is the fear of being exposed by a journalist enough? That journalist might ultimately have a defence under clause 1(5). However, as the Bill is drafted, something like that could be stalking. Therefore, should it not say, as the GB legislation says, "Fear of violence"? Section 4(a) of the Protection of Harassment Act 1997 also talks about fear, but it expressly says, "Fear of violence". Surely that is the fear that the stalked person will see invoked within themselves. Therefore, I think that there is a need to be more specific when we talk about "fear".”
“As some have said, stalking, by its very nature, can be an insidious offence; it can also be a cowardly offence where someone lurks for the purposes of stalking. Therefore, it is right that it is adequately legislated against in our criminal law. <BR /> <BR />In coming to the Bill, I wish to address some of the general principles in it and to seek clarification on some specifics. Straight away, that takes me to clause 1(1)(b):”
“It is the same unacceptability. The truth is that the party has always been insatiable.”
“I have to say this to Sinn Féin: Mr Kelly asked a lot of questions; maybe he could have answered some. Who organised the breaches on Friday? He did not tell us. Of course, Sinn Féin is the very party that demanded a new police service. It is the party that helped to create the PSNI. Now, its leader tells us that it has gone back 20 years.”
“If there was a disorderly response to the police presence, that matter requires investigation and, if necessary, prosecution, but that should take proper account of the processes. For a Chief Constable to pre-empt all that, resulting, apparently, with the only person to be punished being a constable, is appalling from a Chief Constable in that position. Therefore, the PSNI, among the wider community, particularly the unionist community, has done itself no favours. Of course, the PSNI started from the low point of this being the Chief Constable who abdicated policing at the Storey funeral. We did not see a single policeman in or about the takeover of west Belfast by Sinn Féin and its superiors at the end of June. To see, now, a Chief Constable grovelling in this fashion is, to me, wholly distasteful.”
“What happened at Sean Graham's 29 years ago was an utterly unjustified, savage and brutal terrorist attack. There can be no quibble about that. What happened on Friday draws a contrast with how other incidents of mass murder have been marked during this second phase of lockdown. We have had the anniversaries of Kingsmills and Teebane, and those grieving families did not think that they were above the law and not bound by COVID regulations. They observed the six-man rule. If there had been the same observance on the Ormeau Road, we would not need to have this discussion. <BR /> <BR />As for the Chief Constable, it is beyond deplorable that, in order to pander to certain interests, he has sacrificed one of his own officers and sacrificed due process.”
“<BR /> <BR />I say to the House: if we are on the side of openness, not secrecy, if we are on the side of transparency, not opaqueness, if we are on the side of making things better, rather than stagnating where they are, no one has anything to fear from this Bill. Those who want to keep things suppressed and do not want to subject themselves to controls, independent investigations and discipline are the only folk who have anything to fear from the Bill. <BR /> <BR />I thank the parties that, in general, with varying degrees of enthusiasm, have indicated support. It looks as if, in a few minutes, most of them will vote for the sensible, rational, reasoned propositions of the Bill. Therefore, as the sponsor of the Bill, I thank the House in anticipation of that support. Thank you.”
“Yes, absolutely. At Further Consideration Stage, it is the duty of the parent Department to ensure that legislation is as consistent as it can be with the departmental format for promulgating its own legislation. Essentially, that is all that the departmental amendments were about. I do not have a problem with that whatsoever. I have said this before: to me, Sinn Féin is smarting about the Bill because it has not got over my first private Member's Bill in 2013 that removed convicted terrorists and those with serious criminal convictions from office. Sinn Féin still has a problem with that.”
“Of course, Sinn Féin has also told us some wild and wonderful things today. To disparage the Bill, Sinn Féin said that it needed 80 amendments. However, it did not tell the House that 90% of the amendments were stylistic, about how something is expressed. As the sponsor, I was not afforded access to the Office of the Legislative Counsel to go through the Bill and put it in an orderly shape as happens with all departmental Bills. Therefore, of course there were stylistic issues. I accept them all, but none of them makes any significant difference to the Bill.”
“The only party that does not want a rolling system to improve government is Sinn Féin. Let the message to the public be very clear: when shortly we vote on the Bill, Sinn Féin wishes to vote against those things.”
“I assume that that includes Minister Murphy. <BR /> <BR />The only party that does not want to create a statutory duty to make and keep proper records of ministerial decisions is Sinn Féin. The only party that does not want to require the making and keeping of records when Ministers and spads are lobbied is Sinn Féin. The only party that does not want to make it a statutory obligation to record and publish declarations of interest by Ministers and spads is Sinn Féin. The only party that does not want to make it a criminal offence to disclose to your mates or to commercial interests official information for improper purposes is Sinn Féin.”
“It certainly is beginning to look like that. I know that the royal prerogative and fancy titles such the royal steward of whatever have had appeal for Sinn Féin Members.”
“The only party that wants to cling to unfettered royal prerogative powers is Sinn Féin. Sinn Féin does not want to give that up. It wants to act out the royal prerogative in an unfettered way, with no democratic control in the Assembly. Sinn Féin alone wants to exercise the royal prerogative. Really.”
“Let the message be clear: the only party in the House that will vote against bringing special advisers, for all that happened during RHI, under the control of the Northern Ireland disciplinary code is Sinn Féin. The only party that does not want complaints against Ministers to be investigated independently is Sinn Féin. The only party that does not want to cap spad pay at the top end of grade 5 is Sinn Féin. The only party that does not want to make Ministers both responsible and accountable in law for their spads is Sinn Féin. The only party that does not want a permanent secretary to have to stop a super-spad who is not a spad exercising the functions of a spad, as happened with Sinn Féin before, is Sinn Féin. The only party that does not want to reduce the number of spads is Sinn Féin.”
“That has come across somewhat, but I am glad that they are all big enough to rise above that. <BR /> <BR />The one party that is in a different category, of course, is Sinn Féin. It is so small-minded that it cannot get past the identity of the sponsor. It is so small-minded that it cannot get past the fact that some deal that it thought it had with Executive parties will be dishonoured, it thinks, by this Bill. However, let the public be clear on this. Sinn Féin parades itself as the proponent of transparency and openness. Post-RHI, it berated the DUP in particular for its failings during that escapade, covering over its own failings of course.”
“I do not propose to give a line-by-line response to the contributions; I will put the House at ease by telling Members that straight away. However, I want to deal with some of the issues that have arisen. <BR /> <BR />We are at the point at which the House decides whether it is on the side of bettering government and of clamping down on irregularities, or whether it is not. It is quite clear — I am grateful for it — that all the parties except Sinn Féin are, with varying degrees of enthusiasm or otherwise, prepared to vote the Bill through, and that is good. Some of them have reservations about content, and some of them may have reservations about the sponsor.”
“The Member should not forget his former South Down colleague, Mr John McCallister, who brought both the Caravans Bill and the Bill that provided for some form of opposition.”
“The question is this: do the propositions in the Bill set before us a path of betterment? Therefore, I ask the House to consider not the messenger but the message, and I think that the message is a good one and one that the House, for the betterment of us all, could embrace. I trust that it will.”
“Whether they arise from some statutory body's report or, which can happen, from a judicial review in the High Court or something like that, there is a stocktake every two years of where we are and whether there are ways in which we could do things better. That is very much in line with the ethos of the Bill: trying to make things better in the practical functioning of government. <BR /> <BR />That is almost all that I want to say at this stage. I recommend the Bill to the House. Again, I stress that I am not asking the House to vote on whether it agrees with Jim Allister or his political viewpoint. If that were so, I might have a rather solitary experience in the Aye Lobby. Mind you, if some recent polls are to be believed, that situation might change. However, that is not the question.”
“It should always be kept under review. Therefore, the purpose of clause 12 is to make sure that, every two years, there is such a focus in the House, courtesy of the First Minister and deputy First Minister bringing a report on issues that have been identified where the functioning of government could be improved. By putting that in statute, we make sure that good ideas and promised reforms do not gather dust on a shelf; rather, there is a repeated focus that means that, if further steps need to be taken, there is a duty on the First Minister and deputy First Minister to draw attention to those issues.”
“<BR /> <BR />I will draw attention to some other summary points of the legislation. It imposes a statutory duty, which, strangely, was missing, on Departments to provide scrutiny Committees with the requested documents. As explained in earlier debates, that is to fill the void that exists so that you do not necessarily have to go to the extremity of section 44 of the Northern Ireland Act to compel production of documents but that you ease that process by having in place a statutory duty to provide those documents when requested. <BR /> <BR />The final provision to which I want to draw attention is, to me, one of the most important: clause 12. Although the Bill imposes various resolutions to issues that have arisen, improving the functioning of government does not happen on a one-off occasion.”
“For example, if a spad, as part of his official duties, is instructed by his Minister to liaise with his party, which is a spad's function, or to brief the media about an upcoming policy decision, those would be lawful pursuits of official duties. What is not a lawful pursuit of an official duty is taking official information that you come by, by virtue of being in the position that you are in, and communicating it for the improper benefit of someone else so that they might gain financially or otherwise, whether that other person is a commercial operation, a family member or whomever. That is the gist of the intent behind clause 10. It was probably one of the clauses that attracted the most scrutiny and debate, and I think that we arrived at a proportionate position after taking account of some points that were made.”
“which would be, for example, an FOI obligation upon a Minister —”
“There are two important aspects to that. It provides a defence of reasonable excuse, which is set out in the succeeding subsections. Clause 10(1) makes it clear that that offence cannot and does not arise:”
“Thank you very much, Mr Speaker. Before the break, I was giving a résumé of the key aspects of the Bill, and I had reached the point of dealing with the sole criminal offence that is created, which is in clause 10. I will pick up there. I was explaining that clause 10 is to deal with a Minister or special adviser communicating:”
“I want to ask the Minister about who has, let us say, sovereignty at our ports. If DAERA declines to operate those checks, is it true that no one else can, including the EU?”