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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“Indeed, we have codes usually only because legislation provides for them. So, it is not an either/or situation. <BR /> <BR />I do not believe that the Bill answers all the problems that are crying out from RHI. There is a definite piece of work to be done by the Executive, particularly on the Civil Service. I do not think that that was for me to do, but I think that that work exists for the Executive. I am disappointed that, one year on, we have not had any product there. I encourage the Minister to produce something in respect of civil servants so that the Civil Service arrangements can be examined properly by the House. The Bill is not a substitute or proxy for that, nor is it an impediment to it. <BR /> <BR />Having made those comments, I thank Members for their contributions.”
“If the SDLP amendment is accepted, it will really neuter clause 13, but that is a matter for the House. It seems to me that clause 13 and clause 11 are, largely, complementary. Clause 11 was introduced for further accountability and puts the duty on Departments to provide information requested. It seems that reads substantially and is compatible with clause 13, but the House will make its choice. I have indicated my view, for what it is worth. <BR /> <BR />I have covered all the amendments, but I want to make one final point. It has been suggested a couple of times in this debate that we do not need to do any of this, either because of codes or because something more is going to happen. Mr Wells made the very appropriate comment that there is nothing incompatible between codes and legislation.”
“If it does, and if the ambit of the Bill permits, I put the Minister on notice that I will be minded at that stage — if it is not already in the Bill — to include some parallel criminal offence for inappropriate leaking by civil servants. However, that is for another day. Today, I am making the concession that some asked for on clause 10, not just because they asked, but because I have come to be persuaded that there is some logic and merit in what they have said. <BR /> <BR />We are told that amendment 37 is not being moved. I readily accept amendment Nos 38 to 40, and that will cause amendment 41 to fall, if accepted. I accept amendments 42 to 44. <BR /> <BR />On clause 13 and the interesting debate between Paul Frew and Matthew O'Toole, I am more persuaded by Paul Frew's points than Matthew's.”
“<BR /> <BR />After Consideration Stage concluded, I went back through my Bill and discovered that this was the only clause of the Bill that imposed a burden — never mind a criminal sanction — on a civil servant. The Bill is now about Ministers and special advisers. So I have been persuaded that it is appropriate, in that context, to remove civil servants from clause 10. The Minister has told us that the Executive are reviewing RHI. They have a subcommittee, and no doubt, they will labour and deliver something in that regard. If that is included, either separately or in tandem with reform of the Civil Service, I presume that that will manifest itself in legislation at some point.”
“I then come to Clause 10, the surviving criminal offence in this Bill. I have tabled amendment 36 for two reasons. I will be upfront with the House; I mentioned it this morning: when you are a single Member of the House trying to bring a private Members' Bill, you have to bend and reach an accommodation with others. The fact that the reach of the criminal offence included civil servants was an issue of particular concern to some Members. In principle, it is right that a civil servant who shares information for financial or improper advantage should not be immune from recourse about that. However, I accept the sincerity and the genuineness of those who raised that point.”
“The Member makes valid observations, which, I trust, others will listen to. <BR /> <BR />I can readily accept amendment No 35. My amendment, amendment No 54 will not therefore be necessary.”
“The Member makes fair enough points. <BR /> <BR />Members, what is the choice in this regard? Is there a problem? If the answer to that is yes, do we want to do anything about it? I say, gently, to Mr Muir, that amendment No 34 was tabled before Christmas. Had he thought that there were real issues with its drafting, he had the opportunity to engage and to seek to amend it. No such opportunity was taken, but that was his prerogative. <BR /> <BR />Moving on, I accept amendment No 35.”
“Legislation can be about messaging, and, my goodness, given what came out of RHI, do we not need messaging? I would have thought that we do. The other side of the coin on the issue that the Member raises is that, if you do nothing, you are endorsing the arrangements whereby that which previously happened — the hiding of information — is an OK thing to do.”
“That practice is for one purpose and one purpose only: to hide things. There is no other reason not to want this other than to hide things. Having come through RHI, it is important that we set a standard of what is expected and put it in legislation so that we put up in lights that what went on in the past will not be tolerated and that that is the standard that is expected and which must be adhered to. <BR /> <BR />Amendment No 34 has merit, and I urge the Member, who intervened on behalf of his party, to consider that his choice in voting on amendment No 34 is whether he wants things as they were, where matters could be hidden, or whether he wants to put something in legislation that dissipates that risk. That is the real choice.”
“I do not think that that is correct. If you are using your personal device to access the departmental system, I do not see a problem. That would not be thought to be a breach at all. I remind the Member that it is not a criminal sanction; it will not put anyone in trouble, in that sense. Rather, it is a timely reminder that RHI revealed that people were hiding emails. <BR /> <BR />I will remind the Member of some of the RHI evidence. There was a great search that arose from an issue about whether there was an email trail. There was, but it was not on the official system. Where was it? It was on a spad's DUP account. Eventually, through the actions of another spad, it was uncovered and, eventually, handed over to the RHI inquiry. <BR /> <BR />If we do not have something like this, how are we to discourage a continuation of that practice?”
“It seems to me that the same spirit would apply to your text message — that it has to be something of consequence. It is not setting up a timing arrangement for a meeting or a cup of coffee; it is about doing official business. If you do official business of consequence, it seems to me that the right place for that to be recorded in perpetuity is on the departmental system. It is best if you can do it there and then by using the departmental system, but if, of necessity, you cannot, then the sole obligation of this clause is to advise you that:”
“and, if you do, you should copy it back. <BR /> <BR />If I understood him correctly, Mr O'Toole asked whether you could not simply use the departmental system on your personal phone. As far as I am concerned, it does not mean that. No matter where you have it, you are using a departmental system. I hope that that allays his concerns on the matter. <BR /> <BR />His other concern was whether that meant that you had to communicate every tittle-tattle of a text message into the official system. Well, no. The qualifier there is "official business". New clause 8A(2)(b) makes an express exemption that there has to be a record of "verbal communications of consequence". That goes back to the value judgement that the Minister must properly make.”
“That is why amendment No 34 — the qualifying clause is again "official business" — states:”
“If that is the determinant, does that not make it a matter of public interest? Are we saying, therefore, that a matter of public interest should not be recorded? I am struggling to get my head around what proposed clause 8(3)(e) actually means in practical terms. I would certainly like some amplification on that from the Minister. <BR /> <BR />I then come to amendment No 34, which is a new clause. Yes, it has echoes of my failed attempt to insert a criminal offence at Consideration Stage, but my concern was that, in rejecting that, we had thrown the baby out with the bathwater, so to speak. I am trying to recover the baby with this amendment. I am not trying to make a criminal offence but to make it very clear in legislation what is expected of Ministers and special advisers.”
“What does that mean? The qualifier seems to be:”
“Not in South Down, I am sure. You might decide that that was rather inconsequential and did not need to go into the record. Therefore, I say to the House that, if we accept amendment No 29, there is no need for amendment No 28. I suggest that that is the way to go. <BR /> <BR />I accept amendment Nos 30 and 32 and am aware that amendment No 31 covers the Claire Sugden point about Members of the Assembly. I then come to amendment No 33. The aspect of amendment No 33 that troubles me — well, there are two points. If we reject amendment No 28 and accept amendment Nos 29, 30 and 32, we do not really need amendment No 33. In some ways, it is anodyne and does not make a huge amount of difference, except that I am struggling to understand proposed clause 8(3)(e):”
“We all understand what "incidental" and "inconsequential" mean. Certainly, if you were the Minister for Infrastructure or the Agriculture Minister and somebody lobbied you about the need to have a pothole fixed, you might well conclude that that is not something that needs to go into the departmental record. As a constituency Member, you would want to do something about that, but it is not something that you would feel compelled to, maybe, in your own discretion. Or if you met somebody who talked a lot of nonsense to you, as we all do, you might well decide that that was rather inconsequential.”
“If that is the language of the 2014 Act on what lobbying embraces, why would we want to change that? I do not yet understand the logic of amendment No 28. I suggest that the better answer to the supermarket encounter or the lobbying about the pothole is my amendment No 29, which bestows on the Minister the discretion to waive compliance with the need to register it if the subject matter is inconsequential. Obviously, that wording would not appear in this amendment if it were not wording that the Bill Office saw as tenable. I have already pointed out to Mr O'Dowd that language that some might say is imprecise, such as that, already appears in legislation such as the Copyright Act, where it indicates that things that are incidental need not be done.”
“The only difference there is that, because I am making these obligations Department-specific, it changes the language that was in the 2014 Act of:”
“Members will be aware that clause 8(2), with language borrowed from the corresponding GB legislation, which goes under the wonderful title of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, deals with the definition of what it means to be lobbied. It is a lift, effectively, out of the 2014 Act. It includes therefore the line that the Minister wants to exclude, which is that at subsection (2)(d):”
“Meetings with the Attorney General are not the issue here, but meetings with other Ministers in other jurisdictions most certainly are. I say to the House that, having come through the experience of RHI, it should view amendment No 23 as really being a charter for non-transparency and worse. It seems to me that amendment No 23 is not one that should be put before the House, nor is it one that should be accepted by it. I therefore give notice that I will oppose amendment No 23. I urge support for amendment No 24, which deals with the previously made Claire Sugden point. <BR /> <BR />I come now to clause 8 and the amendments affecting it. Amendment Nos 25 to 27 are stylistic and technical, and I have no difficulty with them whatsoever. Amendment No 28 does trouble me, however, because it seeks to diminish the ambit of lobbying.”
“If the Department for the Economy were working on a new RHI scheme and needed to go to talk to its counterpart in Westminster, no civil servant would be required and no note would be required. My, oh-my, was one of the lessons out of the RHI inquiry not about the trouble that that gets you into? I therefore really do not understand amendment No 23 in the scope of the exemptions that the Minister wants to see. <BR /> <BR />He talked about excluding meetings with the Attorney General. That, I think, is a red herring. It is not that there should not be a note kept of a meeting with the Attorney General. The point is that professional privilege would attach, and that note would never be seen by anyone, unless the Minister chose to release it.”
“What that means in practice is that if, for example, the Minister for Infrastructure, or the Minister for the Economy or whoever, was holding a meeting about the North/South interconnector with her counterpart in Dublin, under amendment No 23, there is no obligation to have a civil servant in attendance or to take or keep a note. If, for example, the Infrastructure Minister was holding a meeting about the A75 with her Scottish counterpart, under amendment No 23 as drafted, there is no need for a civil servant or a note. <BR /> <BR />Let us make the example a little more poignant.”
“We need to disabuse ourselves of the idea that this is anything to do with a supermarket meeting. This is about holding a meeting on official business and then taking such steps as are reasonable to ensure that meetings are attended by at least one person serving in the Civil Service who is not a special adviser. That subsection does not apply if the liaison is with the Minister's political party. Fair enough; common ground there. However, what it then goes on to do is to exempt a series of third parties, including Westminster, Scottish, Welsh and Dublin Ministers, and any Member of any legislative Assembly in the British Isles.”
“<BR /> <BR />Amendment No 23 does two critical things: it diminishes the circumstances in which a note should be taken, and it totally obliterates the need to keep any note that is taken. That is what alarms me most. Amendment No 23 also alarms me because of the scale of the exemptions that are written into it. We need to remember that amendment No 23 is about official business:”
“Clause 7 requires that a record be made about official business with non-departmental people, and clause 7(2) requires the retention of that record. <BR /> <BR />The first thing that alarms me about amendment No 23 is that it wishes to remove not clause 7(1) but all of clause 7, including clause 7(2). Therefore, the amendment changes the circumstances in which a note has to be made but obliterates entirely the obligation to retain a note. That is the fatal flaw in amendment No 23. Even when a note is kept, there is no requirement to retain it or to put it on the Department's system, as described in amendment No 22. There is no statutory obligation to keep a note.”
“Clause 7(2) is very important in this situation. It states:”
“To that I intend to add, out of deference to the point that Ms Sugden made:”
“I am grateful to the Member. I think that the terminology has changed of late from TRIM, but no doubt we will hear about that. <BR /> <BR />Of all the Minister's amendments, amendment No 23 is the one that gives me the greatest difficulty. In seeking to suggest to the House that it is not an amendment that is worthy of support, I ask it to consider the relative simplicity and intelligibility of the existing clause 7. That simply says:”
“Is a Department's policy on the retention and disposal of records itself subject to Assembly scrutiny, or is it a policy that is made and changed internally in that Department without Assembly scrutiny? I would like some clarification on that before I agree to bind myself to amendment No 22. <BR /> <BR />The final point that I want clarity on is whether each Department can have a different policy on the retention and disposal of documents. The policy is Department-specific, but is there commonality today or tomorrow in Departments' policies on the retention and disposal of records? If the Minister could provide satisfactory responses in those regards, clause 6 as amended by amendment No 22 is something that I would probably be amenable to, but I want those clarifications. <BR /> <BR />I then want to come to clause —.”
“A Department's policy on the retention and disposal of records can, of course, be a moveable feast in that over time, presumably, it can change. What may need to be retained today may not need to be retained tomorrow. So are we in that amendment subjecting ourselves to the whim of a particular Department to change what needs to be retained? I would like some insight into and undertaking on that.”
“Is that within the ambit, or is it guaranteed to us that there will always be a record of some nature and that the appropriateness informs the extent and the content rather than the existence? I would like some amplification from the Minister on what we should understand by the phrase "an appropriate written record".”
“What is an "appropriate written record"? That, by its very nature, is wholly subjective. Is that an appropriate written record in the eyes of the Minister or of the civil servant or of someone else? Could it, within that ambit, be appropriate to have no record?”
“In this group, there are a number of issues of non-controversy and some of some controversy. To begin on a non-controversial note, in respect of clause 5, amendment Nos 18 to 20, I take no issue. <BR /> <BR />In respect of clause 6, the only one now in play is amendment No 22. I want to get some amplification from the Minister on a couple of aspects of his amendment. When it says:”
“The basic tenet of the Member's contention is that legislation is not needed because all these things could be provided for in codes. The Member might have more credibility on the issue if he and his party had not voted in 2013, in my first private Member’s Bill, on the necessity for codes. The Civil Service (Special Advisers) Act (Northern Ireland) 2013 provides that codes shall be in place. It was Sinn Féin that sought to vote that down. Now they tell us that codes are enough. Does the Member not think that he should take a look in the mirror before he makes that comment?”
“Does the Member think that when the Copyright Act talks about not needing to do things that are incidental it too is bad legislation?”
“I suggest to the Member that, on amendment No 23, in addition to the concerns that he raised about the exemptions, there is perhaps a more fundamentally alarming thing about the Minister's amendment. The Member will be aware that, in clause 7, as approved at Consideration Stage, a record must be taken of such meetings and that the Department must retain the record. Strangely, the Minister's amendment removes entirely the need to make or to keep any record. Is that not a matter of considerable concern?”
“<BR /> <BR />There is little of controversy in group 1. There is a little more meat in group 2. I am content to accept any amendments that make for more-orderly legislation and have indicated to the House my expectations in that regard.”
“There is no logical reason to delay that beyond the Bill coming into effect. Therefore, clause 14(1) no longer has any function. Hence, my desire to remove it. <BR /> <BR />Amendment No 49 is compatible with accepting the Minister's amendment No 48. The outcome would be that everything except the disciplinary code aspect of clause 1 would come into effect upon Royal Ascent, and that aspect would have the six months' grace. That seems appropriate to me. <BR /> <BR />In view of amendment No 48, I will not move amendment No 51. In relation to amendment No 52, the Department has advised that it is not necessary in legislation to define the Executive Office. I am quite happy to accept the Department's word on that and to accept amendment Nos 52 and 53. That simply leaves amendment No 56, which tidies up the long title.”
“I will accept it. <BR /> <BR />Amendment No 49 comes from me. It flows from the alternative provision being made under amendment Nos 16 and 17 to give the three-month delay on the end of the employment of anyone engaged under the 2007 Order who has to lose their employment. As I understand it, that simply means that the spad appointed by the Sinn Féin junior Minister in the Executive Office or anyone in position — a David Gordon-type figure — who was appointed under prerogative powers. If such a person was in position, they too would have the three months. Through amendment No 49, I want to take out clause 14(1) because, on reflection, I see no reason to delay the repeal of the 2007 Order, which is the one removing junior Ministers' spads, or the prerogative power Order, which relates to the David Gordon-type appointment.”
“At amendment No 48, the Department seeks to introduce a six-month grace period to revise the Civil Service code as it would apply, disciplinary-wise, to spads. I had a useful engagement last Friday with departmental officials and probed them on why they needed six months, as that struck me as a rather long period. They explained that, because it involves revision of the Civil Service code, there has to be a stipulated process of consultation with the unions and that, of its nature, tends to be longer rather than shorter. Therefore, it was explained that it might take up to six months to complete that process, although hopefully fewer. If that is correct, I will not die in a ditch over it. If the Minister confirms that that is the rationale for the six months, then, although it seems somewhat long, I will not divide the House on it.”
“If you are a single Member trying to introduce legislation, you can only sustain and progress it if you seek to meet the objections raised. I am grateful to those who have acknowledged that I have sought to do that. <BR /> <BR />In amendment Nos 16 and 17, I try to get away from being calendar-led about when the impact of those measures come into effect, recognising that time is telescoping and that there is a better way. The better way is simply to say that clause 4 will come into effect three months after Royal Assent has been given. Those who raised it raised a sensible and rational point, and I am more than happy to meet it. It tangentially affects the link to the commencement clause in 14(1). <BR /> <BR />I want to come briefly to that because amendment Nos 48 to 51 deal with commencement.”
“It is hard to imagine how a senior officer could find anything in terms of process that might have been done inappropriately if the code does not contain any process. The impact of amendment No 8 is more imagined than real. It could become real if we, hopefully, reached the day that the code of appointment actually had proper processes. This legislation would govern that, and that would be good. As of now, I do not see that amendment No 8 makes any tangible difference. <BR /> <BR />I will now move to the first of my amendments — amendment Nos 16 and 17. I am trying to meet some points that were legitimately raised with me during Consideration Stage, and some Members have recognised that I have striven to meet those points. Let us be frank.”
“I want to comment on amendment No 8, because Mr Frew commented on it. Amendment No 8 introduces the idea that a senior officer, as defined in the Departments (Northern Ireland) Order 1999, in the Department of Finance — which, of course, it would be, because ultimately the Department of Finance has responsibility for personnel — can intervene and abort an appointment if it did not follow the code of appointment. <BR /> <BR />That is of incidental significance because the code of appointment does not have any process for appointment, courtesy of Minister Murphy. The code of appointment had all the process stripped out of it whereby you had to have a pool of candidates and keep a record of why you chose whom you chose etc.”
“Yes, but, of course, that relates directly to clause 1(6) of the Bill, because that is precisely what it is directed at: trying to curb that abuse. <BR /> <BR />I want to make another general point, albeit when we come to the Final Stage, in a fortnight's time or thereabouts, there will, no doubt, be more opportunity to make wider comments. Mr Wells made the legitimate point that, post-RHI, if there was one party that, understandably, might have felt a need to bury its head in the sand, it was the DUP, but that, to its credit, in this Bill, it has faced up to issues. On the other hand, Sinn Féin cannot get past the small-mindedness of who is bringing the Bill. That is a commentary more on Sinn Féin than it is on me. <BR /> <BR />I raise no objection to amendment Nos 1 to 15. They are stylistic and textual in nature.”
“Sinn Féin's biggest problem is probably not with just the messenger, which causes them not to look at the message, but with the fact that it is probably continuing to smart over the fact that my first private Member's Bill removed from office convicted terrorists as spads. That still smarts, and I think that bringing a second private Member's Bill stretches Sinn Féin beyond the point where it can be rational and supportive.”
“Thank you, Mr Deputy Speaker. I too will be relatively brief. I am not going to be tempted into a debate about the chronology and history of the Bill. I am big enough to take the churlish jibes of Mr O'Dowd, recognising a sense of embarrassment and discomfort amongst the ranks of Sinn Féin, having spurned every opportunity to help frame the Bill until this last moment. The Chairman made the legitimate point that, when the Department was asked, it had nothing to say. I am glad that it has something to say now, because I have no interest in putting on the statute book anything but the most orderly of legislation. I therefore welcome the assistance being given by way of the various stylistic and textual amendments that have belatedly come forward.”
“Yesterday, the Economy Minister told the House that 20% of Northern Ireland's agri-food traverses to GB through Dublin Port. She called on the Dublin Government to step up and take responsibility for the chaos at Dublin. That caused some Members who are key proponents of the rigorous implementation of the protocol to think that those comments were worthy of laughter. Is it a laughing matter? Does the Minister think that the Dublin Government are doing what they need to do to sort out that chaos?”
“Minister, 2021 will be a very important year for many in this community. It may not matter much to you, but given that this is the intended Budget of the Government of Northern Ireland, how much do the Government of Northern Ireland intend to spend on the centenary and on projects for the centenary? Can you tell us that? Surely it is not nothing, just like the innocent victims of terrorism got. What would that say about the alleged inclusiveness and outreach of the Executive?”
“Mr Deputy Speaker, I put it on the record for the reasons that I have accounted for. It is quite clear that there is no other support, but I am happy that it is on the record.”