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 40 of 95.
“One will always find reasons not to do something. Of course, that is the fundamental approach of the Department and the Minister. You would nearly think that RHI had never happened or that we did not have the scandals to which I referred, because such are the little things that have happened that they can all be dealt with by codes — codes that the Minister, in his own words, wants to keep as flexible as possible and "amenable to interpretation". What does it say about an intent to address those issues seriously to say that the answer lies in flexible codes that are amenable to the Minister's interpretation? <BR /> <BR />That is the choice that remains. It was the choice at the beginning of the debate, and it is the choice at the end of the debate.”
“As I sit here, I think that I have been persuaded by Mr Muir that amendment No 18 may not be as appropriate as I thought, so I am minded, in winding up on the group, to indicate that I will not move amendment No 18, at least until I give it further consideration. However, I think that we still have to have some definition of a close family member.”
“If the Member had taken up my repeated invitations to sit down and discuss those issues with me, perhaps there would have been an opportunity to meet the Member's concerns. I repeat: if the Member has concerns about the width of the ambit of clause 6, I am still prepared to have that discussion before Further Consideration Stage. However, I find it rather surprising that he never took the opportunity to discuss the concerns that he is now articulating about that clause.”
“Perhaps the Member should read the amendments because he would then know that that is not the proposition.”
“Amendment Nos 17 and 19 are merely to align the time frames with what is in the code, changing them in the Bill from 21 days to 28 days, so that there is continuity. I think that that is sensible. Amendment No 18, if it recommends itself to the House, is to better define the relationship of family members, and it draws on a definition already in Assembly legislation. <BR /> <BR />That is my run-through the amendments in this group. Clauses 6, 7 and 8, and the associated amendments, deal with record-keeping, and clauses 9 and 11 deal with the serious issue of providing real deterrents for would-be wrongdoers. Clause 10 deals with the register of interests.”
“There is no register of interests in the new code. There is only a declaration of interests, which is unpublished. That is not good enough. If a register of interests is good enough for MLAs, it is good enough for Ministers and spads. That is why clause 10 puts an obligation on the Department of Finance to be the recipient of declarations and to publish them in a routine fashion.”
“A criminal sanction speaks deterrence and causes those minded to do things to stop and think, because of the knowledge that, if they do them, they are breaking the law and could go to prison. That is a far greater deterrent and compulsion than thinking, "If I break this code, so what?". This is the real essence. Codes were not good enough in the past, and I do not believe that they will be good enough in the future. If they are good enough for the House, clauses 9 and 11 will not be supported; if we have learnt the lessons, the House will support the clauses. <BR /> <BR />I will go back to clause 10, which deals with the establishment of a register of interests for Ministers and spads. Again, we are told that the new code is adequate: it is not.”
“We need to plug it with an offence of unauthorised disclosure, and that is why amendment No 20 sets out in the terms that it does that proposition. I recommend that amendment to the House. It is essential and necessary. <BR /> <BR />We will be told that codes can cover that. Let me remind the House that the old codes required integrity, honesty and confidentiality. Did they work? Patently not. With that patent failure, why would we put our trust in codes? The real importance of this is this: if codes were not a deterrent for spads who had in their terms and conditions references to integrity, honesty and confidentiality, why would they be a deterrent in the future? That is where a criminal sanction comes into its own.”
“He admitted that he gave confidential information to Gareth Robinson, son of the then First Minister, for a third party whom he named as a Mr Green. He gave a privileged legal document to Gareth Robinson. A civil servant, Mr Wightman, acknowledged that he gave documents to Moy Park about the tariff reduction. Of course, Mr Simon Hamilton and Mr John Robinson leaked emails from their own Department back to their permanent secretary and to the 'News Letter' to lay a false trail and create a diversion. Were those not things done for the improper benefit of third parties? I suggest that they were, yet I have in my possession a letter from the Chief Constable saying that no investigations are arising out of RHI of any of those people. Does that not tell the House that there is a gaping hole in our criminal law that we need to plug?”
“The word "improper" is used on the advice of the Northern Ireland Human Rights Commission. Therefore, if, for the purpose of "financial or other improper benefit", someone discloses official information, it becomes a criminal offence. However, again, there are the two critical defences of the public interest, which could be for a whistle-blower, or reasonable behaviour. Again, if those are raised, the prosecution has to disprove them. <BR /> <BR />Why is that offence necessary? We all know the sort of things that happened in RHI. Let me remind you of some of them. One spad, Mr Crawford, admitted that, in 2013 and 2015, he gave documents to family members. He admitted that he knew that it was confidential information. He gave information to his brother-in-law. All of that was happening at the time when the tariffs were going to change.”
“which might be a spad briefing the press on the instructions of his Minister, a lawful duty. Therefore, save in those situations:”
“which might be fulfilling an FOI request,”
“which is to say that there may be issues about national security. They fall under that; that is not what this is dealing with. The amendment continues:”
“After I reduced the penalty from five years to two in clause 11 — I will come to that shortly — I received a letter from the permanent secretary of the Department dated 16 October saying that the Department of Justice would consider the revised criminal sanctions in amended clauses 9 and 11 to be consistent and proportionate. That was the point that the Human Rights Commission raised. The Department of Justice raised it, and it appears now to be properly satisfied about that matter. That is clause 9. <BR /> <BR />I will return to amendment Nos 17 to 19 in a moment. However, because we are talking about the criminal offences, I will go to clause 11, which is about creating a criminal offence. To that I have proposed amendment No 20, which begins:”
“Of course, you can never be an accused, let us remember, unless there is a prosecution brought that passes the Public Prosecution Service tests of "reasonable prospect of conviction" and being "in the public interest" — being "in the public interest" might be very germane to a prosecution such as this — but, if it gets past that and there is a prosecution, I have cast this in such a way that, once the accused raises the reasonable excuse or public interest defences, with some evidence, it is for the prosecution to disprove that beyond all reasonable doubt. It is hedged about with many protections, so that people should not unwittingly fall victim to it. <BR /> <BR />The penalties are as specified. There was an issue from the Department of Justice on whether the penalties were proportionate.”
“Again, that is to make sure that that which hitherto was being hidden cannot continue to be hidden. The Minister will tell us, "Oh, it's all now in the codes. Codes require you to do all this". I will say it again: the codes are a broken reed. They neither deliver on past performance nor buy the street cred that is required. Of course, where this offence is concerned, lest some hapless civil servant find himself inappropriately on the wrong side of the law, there is the reasonable excuse defence and the public interest defence; indeed, I go further in the amendment.”
“In other words, subsection (1) is the expectation that you use official systems. The amendment states:”
“From the evidence given, I was readily persuaded that there are circumstances where, with the best will in the world, Ministers, spads and civil servants might have no option but to use their private systems by virtue of where they are etc. That is not a problem, provided that they put it on to the official system. That is what amendment No 16 now focuses on. It simply says:”
“I move on to clauses 9 and 11. The House will be aware of the embarrassments caused by how some spads conducted themselves. The House will remember the evidence in the RHI inquiry that, by dint of using private email accounts etc, information was hidden; indeed, only in the latter stages of the RHI inquiry did some of it come to light. The motivation was pretty obvious: if things were not on the official system, they were never going to be discovered in a departmental search and were never going to be subject to FOI. Thus, the thrust of clause 9, although I have recast its wording, is to ensure that a process that facilitated hiding information is pulled up short. I recast it in a way that means that the mischief that it now addresses is the hiding of information by failure to put it on to the official system.”
“This is not about a Machiavellian way to undermine the institutions; indeed, the tempting and easy thing for me, given my political standpoint, would be to sit back and watch the Executive wallow in the disasters of their own making. That would be tempting and easy, but it is not the course that I choose to take. There is no political agenda. I said at the start of the debate that this is not about green or orange. It is not about being for or against the Executive or the Belfast Agreement. It is about trying to get better and more credible working functions in government. That is not too much to ask.”
“It is not just about the politics of the House; it is about the public looking to see whether we have made any credible changes. Have we put anything in place that will ensure that things like this will not happen again? We owe it to the public to do that. We heard some ridiculous lines today that this is all about me trying to undermine the structures of government. Think about it: "Transparency and openness will undermine the structures of government". I do not like these structures of government — that is no secret — but I live in this place and want things to be as good as they can be, within the limitations of those structures, for ordinary people. I have a vested interest in making things better, wholly without prejudice to my view of the institutions.”
“I do not want to diminish this to a point at which a Minister who is asked about a street light has to record that. You would like to think that a Minister would do something about it, but it is not necessary to record it. I am content to remove that difficulty for Sinn Féin by agreeing to an amendment to take out the line that appears at proposed clause 8A(2)(d). If that solves the issue and gets Sinn Féin on board, that would be a plus. I am happy to do that. However, the fundamentals here need to be addressed. <BR /> <BR />Frankly, colleagues, it is an embarrassment that so much happened with RHI. If those who had cause to be embarrassed the most have the maturity to face up to that, why are others dragging their feet?”
“The Minister is giving examples in extremis, but, if it helps, I will not die over proposed clause 8A(2)(d). If, at Further Consideration Stage, you want to remove the reference to the "exercise of any other function", I am amenable to that. The key things are the making of policy, the making of legislation, the granting of benefits, contracts, licences and all of that. If it helps Sinn Féin to support the amendment, I am happy to undertake that at Further Consideration Stage, I will move an amendment to remove the reference to:”
“I recommend to the House that there should be a clear and consistent requirement across that. That is why we need the statutory duty. It seems that, in other places, the party most opposed to this idea — Sinn Féin — thinks that it is quite a good idea, because, tonight or tomorrow, as we heard, a Sinn Féin member is introducing a private Member’s Bill on lobbying in the Dáil. Well, if it is good enough for the Dáil, Sinn Féin might think that it is good enough for here.”
“That might well be the Minister coming into the private office on Monday morning and saying, "At the golf club dinner on Saturday night, I was lobbied about our upcoming energy policy in order to make sure that there is more generosity for wind turbines". As long as that is recorded in the private office and there is a record, I am not prescribing the specifics. It is really for the Department of Finance, which has all these systems with HP, KN and everything else, to give a directive as to where it should be recorded. However, at the minute, there does not seem to be a system that is consistently in place. Again, the importance of that is that the RHI inquiry threw up the evident deficiency in recording and the concealment of lobbying. That is not good for transparency or openness, nor is it a healthy situation in government.”
“There is a new dimension. When they answer the question, we have other Departments that tell us that things are logged on the HP records management system. However, we have the Department of Finance telling us that, if someone is lobbied, you are required to advise the private office. What I draw from that is that, in truth, there is no system; otherwise, you would not have all those disparate answers, which are telling us that they, each to their own, do different things, if they do anything. <BR /> <BR />That is why I recommend amendment No 15 to the House: make it abundantly clear that, if you are lobbied, a record of that might be kept.”
“I remind you that the question was this: "What process or mechanism exists whereby a written record is kept of any lobbying?". I was not asking about invitations or ministerial correspondence, but that is what I was told. <BR /> <BR />This is what the Department of Finance said:”
“Health and Education claim that they have such records. The Minister for the Economy gave this answer:”
“The Departments of Education and Health gave me an identical answer:”
“I am sure that it is, but that was not the question. Does one infer from that answer that there is no process, even yet, for the logging of lobbying?”
“Members will have noted that that was not the question. The question was about lobbying. The answer is:”
“I have had no answer from the Executive Office, I have had no answer from the Department for Communities, and I have had a variety of answers from some other Departments. The Department of Agriculture, Environment and Rural Affairs said:”
“So, in recent weeks, I tabled this question to every Minister:”
“If someone comes along, and says, "I hope you will be able to make the following change in the law, I'd like that to happen" for whatever reason, or someone coming along, and saying, "A policy needs adopted, a policy needs modified", or someone coming along and wanting to talk, as amendment No 15 lists, about a contract, grant or licence — if you are lobbied on those kernel things or on any other function of the Department, there should be a record retained. <BR /> <BR />We all know that in respect of RHI there was effective cover-up of lobbying. Meetings were held with Moy Park, for example, at home and abroad, of which no notes or records were kept. That is a matter of record. <BR /> <BR />Why should there not be a record? Of course there should. Now we are told, "Oh, the codes will take care of that".”
“Deliberately, it does not specify the precise mechanics of that written record, but all such lobbying must be placed on record, and the Department must retain those records. <BR /> <BR />Just a word about what "lobbying" means. It does not mean Minister Murphy being lobbied about something in the Department for Communities. It restricts the lobbying to his own Department — to any Minister's own Department. It is not a catch-all in respect of all government. In one way, it would be good to have that, but it gets a bit unwieldy. It restricts it to specifics, proposals:”
“that is to say, other than at an organised meeting with a third party —”
“I move to amendment No 15. I recast that clause considerably to put the focus on lobbying. The definition of "lobbying" I have taken from the ingloriously named legislation in England, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. There, "lobbying" is defined, and I have used the same definition. I am saying in amendment No 15:”
“where official business is discussed. The only exception to that is the necessary political exception of where the Minister is meeting with his political party. It is not for the House to pry into the representations made to a Minister in his own political group, so there is an exemption for that.”
“I say this to the House: who could object to that? If you object to it, why? What would anyone want to hide by not having a statutory duty? If we had never had RHI, I could understand why people would say to me, "Oh, you're being unnecessarily burdensome and cumbersome, and all that's too much", but we had RHI. I am not asking for anything more in legislation than what we are told is now in the codes. The practical outworking — the work product required — of putting it in legislation is no greater, so why not do it? <BR /> <BR />Amendment No 14 deals with third-party meetings with non-departmental staff. I am sure that it is a relatively regular occurrence for a Minister to be asked to meet lobby groups and various others. Such groups will meet the Minister at Stormont, in his office or wherever. What amendment No 14 requires is that:”
“Of course, there are the natural prerequisites of noting:”
“After hearing that notes were deliberately not taken because they might unleash an FOI and that guidance was just ignored, I do not think that too many of those people who sat shaking their head would be satisfied if we said, "Oh, it's OK, because we're going to put it in a code". They want better than that, and they are looking to the House for something better than that. They are looking to the House to put it in legislation. The public trust issue could not be more stark, given what Mr Sterling told the inquiry. How, in light of that, could codes ever suffice? If we now intend to do things right, what do we fear? <BR /> <BR />In light of some points made to me, amendment No 13 somewhat reduces the ambit of clause 6 by taking out the requirement for noting "ministerial indication of intent". It keeps it tighter. It is about noting:”
“Not to those who do things right. Will it be a burden to those who want to cut corners? Yes, and so it should be. If the protestation is, "We're in a new culture. All is now well. That was the past. This is the now", there is no burden in putting it in legislation. Resistance to putting it in legislation raises this obvious question: what is one afraid of? If notes are to be kept anyway, and if the codes say that they should be kept, where is the burden in putting that in legislation? <BR /> <BR />It is a public trust issue. Public trust was shot through by RHI. My goodness, I am sure that, many's a night, ordinary citizens sat in their living rooms watching TV reports and shook their head at how things were done.”
“There you have it, fellow Members: a culture, as established from those who gave evidence, of patent defiance of the normal expectation that records would be kept. Hence, clause 6 imposes an obligation for the keeping of records. Some might ask why that is needed in legislation and say, "We will do it in codes". Is that like the private office guidance to which Lord Justice Coghlin referred, which required the keeping of notes but none was kept? <BR /> <BR />The fallibility of codes is beyond dispute. Their public credibility is so shot through that, frankly, it is untenable, if not unconscionable, to say that we can deal with all those things merely through codes without legislation. Codes have demonstrably failed. Why? Because they have no bite. Legislation gives bite. That is why we need to put it in legislation. Will it be a burden?”
“We also know from the inquiry report that, whatever guidance there was, it was never followed. I take you to finding 299 in volume 3. It is one of the findings by Lord Justice Coghlin about meetings with Ofgem etc:”
“We also had the infamous evidence of Mr Sterling, who said that a conscious decision had been taken not to keep records for fear of FOI, because, he told us, the major Executive parties did not want matters to be recorded that were discoverable under FOI. On record-keeping, Mr Brimstone told the inquiry:”
“The report goes on to state —. In fact, that is the essence of it. For the sake of time, I will not read any more from it. It is clear. It is our primary scrutineers — the ombudsman, the Comptroller and Auditor General and the head of ICO regions — who are making it very clear that good record-keeping is critical. That may be obvious, but they are still making it very clear. <BR /> <BR />We know from RHI, however, how deficient record-keeping was, and why. Let me remind the House of some of the evidence. Andrew Crawford told the inquiry that, in seven years, he never saw minutes of a meeting involving a Minister. We all recall the whistle-blower, Ms Hepper. It emerged in evidence from the whistle-blower that no records had been kept.”
“That is to deal with the situation where Ministers, in respect of their own Department, find themselves lobbied about an issue, probably on an unscheduled and unsolicited basis. If it were a scheduled meeting with an interested party, it would be covered by clause 7, now amendment No 14, but you are talking about a situation unscheduled and unsolicited where a Minister or special adviser are lobbied about a matter. That is what amendment No 15 will now cover. <BR /> <BR />These are about keeping proper records of all of that. There was an interesting short report from very influential sources at the beginning of this year. Our Public Services Ombudsman, our Audit Office Comptroller and Auditor General and the Information Commissioner's Office (ICO) produced a short little pamphlet called 'Records Matter'.”
“I want to take a moment to explain the architecture of the Bill at these sections and of the amendments. Clauses 6 to 8 hang together. There is a tripartite structure here, which is anticipated when you read through the amendments to come into place. Clause 6 is to deal with the regular departmental meetings where decisions are taken and the Minister is present. Clause 6, in consequence, requires that a proper note should be kept. Old clause 7, which will now be on foot of amendment No 14, if accepted, deals with scheduled meetings with third parties by the Minister, etc. Again, under amendment No 14, proper note should be taken. Old clause 8 is now restructured through amendment No 15 and recast in terms of lobbying.”
“So, the commissioner is given very strong powers to require resources to deploy services. If the commissioner finds that he needs the assistance of an expert in something, under paragraph 4 of schedule 4, he has the authority to get that. It all can be done, it all should be done and clause 5 is a very important opportunity for the House to demonstrate that there are no protected species and that Ministers are subject to scrutiny. Is that not a good place to be?”
“If we amend the Act to impose the investigation of Ministers upon the commissioner, it follows that the Assembly Commission will be under the obligation to provide extra support if he needs it. I remind the House that the last commissioner said in his annual report that he thought that that could be done without any stretch on resources, but if he was wrong about that, the provision already exists for it and he does not have to wait on the Executive or anything else, because the obligation is on the Commission. <BR /> <BR />Paragraph 4 in the schedule states:”