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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“I was minded to table an amendment that would prohibit the petition of concern being used on any Assembly Commission report, but the advice was that the petitions of concern are excepted matters and are outside the competence of the Bill. That is why that amendment is not there. <BR /> <BR />Mr O'Toole asked whether the commissioner would be properly resourced and who would resource them. The answer is that the Assembly Commission would, because schedule 4 to the 2011 Act is very clear. It says in paragraph 3.1:”
“This is redundant and is not needed." For nine or 10 months, there has been no delivery. Is there going to be legislation to establish those three commissioners? Where is that? Really, the Minister is suggesting and saying to the House, "Even though we, the Ministers, haven't done anything about it, you shouldn't do anything about it and you certainly shouldn't put Ministers under the same scrutiny as MLAs". That is not tenable, and the passage of time has made it even more untenable. <BR /> <BR />Turning to some of the points that Mr Dickson made, he said that his party would like to get rid of the petition of concern on these issues. So would I.”
“Yet the Minister is contending that, while ordinary MLAs should be subjected to the rigour of such a process, Ministers should be exempt from that and that, rather, they should be treated with, as I will put it, kid gloves by three hand-picked commissioners who have no powers to get to the truth about anything. That is what the Minister is offering the House: second-grade and second-rate accountability for Ministers, as opposed to Rolls Royce accountability for MLAs. That is patently inequitable. <BR /> <BR />Of course, when you look further at it, you may ask this: if the system that the Minister is proposing is so foolproof and so good, where is it? The greatest challenge to clause 5 would be to have the three commissioners in place so that he could say, "We have delivered.”
“Let us consider and contrast this. The Commissioner for Standards, who deals with MLAs, is appointed having been identified through a fair and open competition. Contrast that with three hand-picked commissioners. The Assembly Commissioner for Standards has the power to compel documents and witnesses. Contrast that with the three commissioners, who have to rely on the information that the head of Civil Service gives them. The Commissioner for Standards can take evidence on oath, but there is no such provision for the three commissioners. It is a criminal offence not to cooperate with and answer questions from the Commissioner for Standards. There is no such provision for the three commissioners, so there is no comparison.”
“The Minister has just said that the Assembly Commissioner for Standards is hand-picked.”
“The amendment would afford that to complaints against MLAs as well. Any complaint would be sifted to determine whether it was vexatious or frivolous. That is right.”
“That was about clause 12. I meant to say that the Carnegie UK Trust had supported that. <BR /> <BR />This new clause seems to be justified in its own right. If it is what the Department is already doing, well and good, but it puts it on a statutory footing, which means that there is no wriggle room. There is no opportunity to play around with it, so the amendments in this group and the clauses to which they relate are worthy of your support.”
“It is about toughening up the provisions of the legislation and underscoring the accountability to the Assembly of the Executive and the Ministers by imposing a statutory duty to provide information, and it sets the conditions for that. Again, that can only be a good thing; it strengthens scrutiny, and I do not see why anyone would object to that. <BR /> <BR />When the Carnegie UK Trust, which is much respected in these matters, sent us evidence, it was quite effusive about the idea and thought that it would very much improve openness and transparency. It said this — sorry, this is about clause 12, but I will quote it now that I have come to it:”
“Of course, we have scrutiny Committees, but it surprised me somewhat, when I got down to studying the legislation, that there is no statutory duty to service those Committees with papers that are requested. There is, of course, in section 44 of the 1998 Act, the facility for a Committee that is dissatisfied with the cooperation to go to the point of compelling the production of documents. Any Committee that has ever used that facility knows that it is a last resort, is complex and is laborious, and it eventually falls to the Speaker to make various orders. The idea of this new clause is that by establishing a statutory duty on Departments to do what they should already be doing — in most cases, I suspect, they already are doing it — you would probably dissipate the need to resort to section 44.”
“Clause 12 can make it a launch pad for keeping those matters under review by making it a statutory requirement that every two years there is a report to this House. That way, we can all see what we have not done and what we need to do. Why would we fear that? Would that not be a good thing? Clause 12 is in those terms. <BR /> <BR />Mr Frew has an amendment, and I will not steal his thunder other than to say that I generally support the proposition; the more scrutiny opportunities that we have, the better. The other amendment that arises in this group as far as I am concerned inserts a new clause and is amendment No 23 — sorry, amendment No 21; I was about to steal his thunder. Amendment No 21 states:”
“How can we improve that?". That is what clause 12 is all about. <BR /> <BR />There is another example that might come to this House. I am on the Audit Committee, which is beginning an investigation of the oversight of the Audit Office. It has come as a considerable surprise to some of us that there is no independent board governing the Audit Office; there is elsewhere in the four nations generally, but here there is no such supervision. That is something, subject to what the Audit Committee says, that this House may be advised to act upon. <BR /> <BR />There will be many unforeseen but inevitable propositions coming forward to make improvements. I make the point again: this Bill, in its own small way, tries to improve aspects of the functioning of government, but it is not an end in itself.”
“When the former Commissioner for Public Appointments appeared before us, she drew our attention very compellingly to the deficiencies in the set-up of that office in that its set-up and operation does not meet international standards. Therefore, that will need to be addressed, and if that is still an extant issue, you would expect it to be addressed in one of these biennial reports. With some recommendations, you do not have to wait for the two years — I am not suggesting that you should — to address something; if it is crying out to be addressed, it needs to be addressed. However, there will be issues from reports that are gathering dust on the shelves, and we are all familiar with that. Those need to be taken down and examined, and every two years we need to ask, "Have we ticked that box? Have we done that? Have we improved that?”
“Every two years, the First Minister and deputy First Minister would bring a report to the House, and that would gather together things that had emerged in the previous two years, maybe from the Audit Office, from the ombudsman, from the Commissioner for Public Appointments and, doubtless, from judicial reviews, because, very often, judicial reviews turn upon the procedures of the issue being challenged, and, very often, judges say, "government should not be doing that in this way. It should be doing it in some other way". There will be many lessons to be drawn, so clause 12 is about drawing those lessons together and setting out what the propositions are and how they will be resolved. <BR /> <BR />Indeed, the Committee report before the House today identifies one such issue, and the Chair has already referred to it.”
“Amendment No 12 is simply a tidy-up amendment to make sure that the whole thing reads fluently in regard to the legislation and adds a Minister to the ambit of it. That is the essence of clause 5 and the amendments relating to it. <BR /> <BR />I will move to clause 12, which I thought would probably be the most non-controversial part of the Bill. It simply takes the standpoint that improving the functioning of government is not a one-off event or a snapshot in time. It should be an ongoing process because things change, and that is why clause 12 recommends a biennial report from the First Minister and deputy First Minister setting out matters pertaining to the functioning of government and bringing forward resolutions to any issues that have been thrown up.”
“It has been said of old that what is sauce for the goose is sauce for the gander, and that applies equally to the process of investigation, so amendment No 10 supplements the levelling-up process in that regard. <BR /> <BR />Amendment No 11 flows from evidence supplied by, I think, the Executive Office, which helpfully pointed out that, as originally drafted, the Bill embraced the entire ministerial code. There was some stuff in the ministerial code that was not really about conduct but about cooperating North/South and all that sort of thing, so I tabled an amendment that would restrict the ambit of investigations to paragraph 1 of the ministerial code; that is to say, the standards that are required in public office.”
“There is no such protection for you as an MLA, so amendment No 10 is about giving not just you but Ministers that same protection to insert into the legislation that a complaint proceeds:”
“Then there are three amendments to clause 5. You will have noted that, in 'New Decade, New Approach', there is a protection at paragraph 1.5 of annex A, which says:”
“It recommended the very thing that I am suggesting: Ministers, equally with MLAs, should be subject to the work and oversight of a standards commissioner. That seemed to be sensible to that jurisdiction, and I suggest to you that it should be sensible to this House. So, clause 5 is about a levelling up in that regard.”
“If the present standards commissioner was acting as a commissioner investigating a Minister, he would have none of the powers that he has in his real role of investigating an MLA. He would simply be able to go the head of the Civil Service and ask for the facts. What he is told he is told. He could not compel witnesses or documents, and he certainly could not take evidence under oath. He would be second-rate when performing that role, as opposed to the first-rate facility that he has when performing his regular role. I can think of no sensible compelling reason why the Assembly commissioner, as the House decided in January, should not also exercise their powers in respect of Ministers. <BR /> <BR />The Standards of Conduct Committee at the Welsh Assembly produced a very interesting report in 2018.”
“It is abundantly clear that, for the standards commissioner, the whole architecture already exists; the functions and the powers are already there. Why, oh why, therefore, would we come up with some other scheme that was not as vigorous as the one to which MLAs are subject? This is about an essential levelling up of accountability; it is indefensible that Ministers are in this special category. They are the people with the real power; we are the people with lesser power, but we are subject to the higher investigation and they to the lower. That is a preposterous situation for the House to sustain, and clause 5 gives us an opportunity to address it. <BR /> <BR />Part of the farce is illustrated by the fact that it says in New Decade, New Approach that the existing standards commissioner could assist the three commissioners.”
“He can take evidence against you on oath, can compel papers and documents, and can really interrogate the allegation. However, when it comes to Ministers: no, no, we do not want any of that. We do not want commissioners who have teeth, powers and who can take evidence on oath. We just want commissioners to investigate what the head of the Civil Service tells them". <BR /> <BR />Frankly, why should we, as MLAs, be subject to the rigours — it is right that we should be — of the standards commissioner but Ministers be exempt? That is what lies at the heart of clause 5. We should have an equal playing field: if MLAs are to be investigated for breaches of our code, and so we should, Ministers should be likewise investigated for breaches of the ministerial code. It is a question of a level playing field, equity and fairness.”
“Indeed, pitifully, their accumulation of evidence, if we can call it that, is confined to what the permanent secretary or the secretary to the Executive tells them. The commissioners, according to New Decade, New Approach, may ask for facts from the secretary to the Executive to inform their decision. However, in their own right, they have no powers to collect evidence, to interrogate evidence or to take evidence under oath; it is all a sham. They are hand-picked by the First Minister and the deputy First Minister and appointed with no powers of enforcement. Compare that with the standards commissioner. The Executive are saying to us, "You, as mere MLAs, will be subject to the full panoply of investigative powers of the standards commissioner.”
“No, he is appointed by open competition. That is in section 19 of the Assembly Members (Independent Financial Review and Standards) Act 2011. <BR /> <BR />Here comes the real significance. The standards commissioner has the statutory power to compel witnesses and to command the production of papers. That is in sections 28 and 29 of the 2011 Act. He can take evidence on oath. That is in section 30. It is a criminal offence not to cooperate with or answer questions from the standards commissioner. That is in section 31. He has statutory independence. That is in section 18. Compare that with the notion that three hand-picked ministerial commissioners would investigate alleged complaints against Ministers. Those commissioners would have no powers to compel the production of papers, to compel witnesses or to take evidence on oath.”
“That is what is proposed there. What I want to do now is to compare the mechanics and usefulness of that process with what the process would be if the powers were given to the standards commissioner. There are many striking distinctions between the two that go to the very heart of the veracity of the process that would be involved. <BR /> <BR />The first distinction is that the standards commissioner is set up in statute and his function and powers are laid out. It is not clear to me whether the powers of the three commissioners would be in statute, but I have certainly seen no sign of such. The commissioner in question, namely the standards commissioner, is appointed by open competition. He is not an individual hand-picked by the First Minister and the deputy First Minister like the three ministerial commissioners would be.”
“Here we have the then Commissioner for Standards saying that it would be perfectly feasible to do it and that it would not have many resource implications. In other words, he was saying that the process and the infrastructure are already in place so that he or she could take on the extra work. That seems to me to be eminently sensible. <BR /> <BR />'New Decade, New Approach' called for something a bit different. Of course, it has not advanced the situation very far. It states:”
“Since that essential mechanism and process exists, my basic and simplistic contention is this: why would we reinvent the wheel when all that we have to do is expand the remit of the standards commissioner? <BR /> <BR />The last motion that the Assembly passed before it fell apart in January 2017 was proposed by Steven Agnew and passed without division. It, in essence, did what I am seeking to do here. It called for the expansion of the powers of the standards commissioner to also deal with complaints against Executive Ministers. When that motion was passed, it gave rise to the then standards commissioner making comment on it in his 2016-17 report. In paragraph 2.3 of that report, he wrote:”
“New Decade, New Approach suggested that there should be a process whereby the First Minister and deputy First Minister would appoint three commissioners who could report on any complaint against a Minister. What I primarily want to do here is compare and contrast how that would work with how my proposal that it should go to the standards commissioner would function; in other words, that we should have a single standards commissioner that deals with you, whether you are a Minister or an MLA. Of course, Ministers are both. At the moment, we have a bit of a ludicrous situation where a Minister can be proceeded against by the standards commissioner but only in respect of his role as an MLA, not in respect of his role as a Minister.”
“In this group, we come to deal essentially with clauses 5 and 12, plus my suggestion to insert a new clause. Clause 5 deals with the tricky issue of how complaints against Ministers should be dealt with. We all know that we, as Members of the Legislative Assembly, have a Commissioner for Standards. A new person was appointed recently. We all know that, if someone has a complaint to make against us, they are the arbiter in that. They decide whether to uphold the complaint or not and report the matter back to the Assembly. Until this point, within the Executive, there was, of course, not really a process for a complaint against a Minister. It was a bit of a mystery as to how that would be advanced.”
“That never strikes me as being a fruitful exercise. I hope that I have dealt with the issues. Since no one is seeking to intervene, I will assume that I have done that, satisfactorily or otherwise. Therefore, on that basis, I will conclude my remarks.”
“I have suggested to the House that there are two remedies to that situation: that person could be appointed as a consultant in the Department, or prerogative powers could be used to create an appointment, subject to the approval of the House. Therefore, if the situation were arrived at where maximum flexibility was needed to address an issue such as that, there is a mechanism for it. It is not all or nothing here. A cap on pay, in principle, is right. I do not think that it is inflexible in that it will move as the grade moves. However, if it proved to be less than satisfactory for the filling of a particular post, there is an opportunity to do something about it through the other mechanisms. <BR /> <BR />I hope that I have dealt with the main points. I have not gone through what everyone did and did not say.”
“I would have thought that that was highly preferable. <BR /> <BR />Mr Frew asked whether it was inflexible. The answer, of course, would be to have no ceiling and not have £85,000 in the bands. If one wants maximum flexibility, one must remove everything. However, the principle is about where the upper limit should be set. Should it be set by a Department through its officials and approved by Ministers, or should it be set by a linkage to a Civil Service grade? I think that the latter is the better prospect. <BR /> <BR />There is, perhaps, a legitimate concern: what if we need a super-duper expert on something or other, and he turns his nose up at £81,000 or £82,000?”
“The Minister is half right; I acknowledge that. However, it is then still subject to a political process of approval. The codes have to be approved. That is where the political imprimatur comes in, whereas, if the ceiling were set with a linkage to a generous Civil Service grade, no one could say that it was politicians looking after their own. That is why it makes good sense to link it to a Civil Service grade. There is nothing to say that, in future, those bands could not be radically revisited. However, under my system, they or the ceiling would be revisited according to the natural progression of grades in the Civil Service. That is how it should be. I have heard no one say that a grade 5 salary is not generous enough. Some have said that it is too generous. I think that it is about right. That takes it out of the political arena.”
“I will make it plain again: all that I seek to do is to insert a ceiling. I am not interfering with the bands or the Department's discretion to juggle the bands or do anything else. I am simply saying that for two reasons: one is because it is good to depoliticise and not have Ministers being accused of upping the salary just to placate their special advisers, which, as we know, happened in the past —”
“<BR /> <BR />The very fact that this is an amendment and was not in the original Bill is because it took me greatly by surprise that the Minister came forward with a proposition as brazen as he did that the code of appointments should be stripped out of the very things that were in the old code and that, as Ms Sugden said, should be happening anyway, but they did not happen. That is why we now need to put them in legislation. That is why, I believe, the Committee, at that stage, was convinced of the merits of amendment No 4 and voted for it. <BR /> <BR />The other point that I want to deal with is the point that Mr Frew raised about the cap on pay.”
“Absolutely, and, if it had not been so flagrantly breached, as illustrated in RHI, this would never have been necessary. Indeed, I remind the House that amendment No 4 brings something that was not in the Bill initially, because the Bill was drafted before the new code of appointments stripped all this out. I never for a moment thought, given the evidence at the RHI inquiry, that any Minister would be so brazen as to take out the very criteria that had been breached and had been criticised by a Lord Justice for being breached, and that the answer to that would simply be, "Excoriate the criteria, take them out and then no one can say that we are in breach".”
“It does that because Lord Justice Coghlin said that those codes on appointment needed to be rigorously implemented, having pointed out how flippantly they were treated in the appointment process heretofore. <BR /> <BR />It is nothing new that suddenly would have to be done. It is something that always should have been done, and now it is being given the bite by putting it in legislation. If it helps the House and others, I do not see the difficulty with a "For the avoidance of doubt" clause, which I will undertake to discuss with those who are interested before Further Consideration Stage and bring that forward as an amendment.”
“<BR /> <BR />The point of amendment No 4 is that it is an insult to the intelligence of the paying public that you never even have to have a job description for a job that they are going to pay for; you never even have to have any requirement set forth for a job that they are going to pay for; you never even have to consider more than one person for a job that they are going to pay for; and you never even have to keep a note in respect of a job that they are going to pay for. <BR /> <BR />That is why I say that amendment No 4, which draws carefully and exclusively on what was in the old code, does not go beyond that and does not expand it. It draws carefully and explicitly on what was in the old code; a code that existed for many years. It simply puts it into legislative form. Why does it do that?”
“Yes, and, if that is required in legislation, that can be in legislation. My point is that amendment No 4 is not prescriptive of everything. You would still have your essential criteria, and you, as the Minister, could put in your essential criteria a requirement that applicants must have a political empathy with the Minister’s political stand. That would be entirely lawful. Churches do that sort of thing, and they are not breaking the law. Likewise, a Minister who puts that in here would not be breaking the law.”
“Yes, I appreciate that. I pointed out this morning that we have, in the Fair Employment Order, that protection; you cannot be guilty of discrimination on the grounds of political opinion if you are making a political appointment. So, it is already there, in a sense. However, if it helps, I anticipate that it would be possible, at Further Consideration Stage, to add to amendment No 4 and align something to the effect of, "For the avoidance of doubt, since these are political appointments, there is no issue relating to making a political choice". I am sure that there is wording that could be much more polished than that, and it seems to be entirely compatible with the 1998 Order and, if it is required on the face of the Bill, it can be put there.”
“What the job description was, no one knows. How that person met any perceived description, no one knows. Was more than one person considered? No one knows. I remind you of the evidence of Felicity Huston: you cannot conduct recruitment to a public post in that clandestine manner.”
“Create a job description, set out the requirements for a successful applicant, achieve a candidate pool, complete and retain the documentation. That is exactly what Ms Sugden described herself as doing. It does not say that you have to put an advert in the 'Belfast Telegraph' to say, "I'm going to appoint a spad", but it does require a job specification and job criteria. It does require a candidate pool, but the legislation is not prescriptive on how you assemble that candidate pool. You must have a pool, otherwise it is open to the public ridicule that you simply appointed your best mate, with no objective rational explanation and no need to even keep a record of why you appointed them. The first thing that the Department knows is that Joe Bloggs has been appointed. What the criteria for the post were no one knows.”
“Coming on to amendment No 4, some parties have said that they cannot support it. Can I start by making this point? The Minister said that they had strengthened the codes. Well, you certainly cannot say that about the code of appointment, because, as I pointed out this morning, the old code of appointment required you to consider a pool of candidates, required you to have the criteria for the post and required you to keep a note of why you chose the person you chose. Of course, Mr Murphy came along and stripped all of that out. He did not strengthen the code; he weakened it. <BR /> <BR />Amendment No 4 seeks to put back in that which was previously in the codes, which Justice Coghlin found was simply ignored, so that it will be given the bite of being in legislation.”
“What could be wrong with that for a spad who is a civil servant? It is important not to distort what clause 1(3) is about.”
“According to how the Civil Service drafts this, and provided it is all within the code of conduct, that can still preserve a key role for the appointing Minister. That point needs to be very clear. Ms Sugden asked that question, and that is the point that I have been trying to deal with — this blurring of the relationship, as she said. <BR /> <BR />It is quite possible that, under clause 1(3), the Civil Service does the investigation — it might have been initiated by the Minister or it might have been initiated by someone else — and the outcome is referred to the Minister and the Minister acts accordingly. That is all entirely feasible under clause 1(3). However, clause 1(3) makes sure that there is a process that is proper and fit for standard and one governed by the process that affects other civil servants.”
“The Minister is prevented from interfering, from stopping the process, and from meddling in it, but he can still be involved in the sense of making the referral in the first place or dealing with the outcome in the second place. It is a fiction to suggest that this denudes the Minister of any control over a spad. <BR /> <BR />What control did the Minister have in the past? The Minister, in the past, could have sacked his spad provided he did it in compliance with employment law. The Minister could still sack his spad provided he does it in compliance with employment law. There is nothing here that reduces that right for the Minister. It ensures that any errant spad who is a civil servant must face the rigours of the Civil Service process in respect of his discipline.”
“Who is he kidding? He is certainly not kidding the public, because the public know that there is nothing about this system that is capable of that level of enforcement. <BR /> <BR />On the issue of disciplining a civil servant, the starting point and the premise is that they are civil servants and so there is no exemption, but there is an involvement for the Minister. That is plain in the Bill. The Minister maintains his involvement in that process, and it could well be that the provisions that the Civil Service specifically drafts for the disciplining of spads might involve the Civil Service independent investigation presenting the evidence to the Minister and requiring the Minister to take the decision. There is nothing in my Bill that does not allow that.”
“How cosy is that? How farcical is that? How destructive is that to public confidence in a system? Although, theoretically, a Minister can be held liable in respect of a breach of the ministerial code, he will be held liable only by his own party and his own appointers. <BR /> <BR />I asked this morning, and I repeat it: has a Minister ever — ever — been held liable for a breach of the ministerial code under this system? I am firmly positive that the answer is no, and the reason is that it is a system that is guaranteed to provide a human shield for the Minister. In each party, there is a human shield of protection under the provisions pertaining to the ministerial code, so the Minister need not talk to the House in glowing terms about how, if he or some other Minister failed to discipline, they themselves would be in breach of discipline.”
“Let us consider that. The Minister says that the Minister then, for failing to discipline, could be in breach of the ministerial code. Who decides whether the Minister deserves discipline? The incestuous arrangement is that the nominating officer who put him or her in the post is the very person who then decides whether the Minister has breached the ministerial code.”
“Secondly, I remind the House that, on the one occasion in our history where a spad was being disciplined, the Finance Department conducted the investigation according to its rules and found that a disciplinary process was justified, but a Minister intervened and said, "No. It will not happen". That is exactly what Minister Murphy wants to continue with.”
“As I said this morning, if one were determined to do the right thing, why would one fear legislation? Legislation is only a restraint from wrongdoing if you are minded to do wrong. It is not a restraint if you are minded to do right. That is a very apt point. <BR /> <BR />I will home in on two issues in particular that excited most comment from the House and posed to me, very properly, questions. Clause 1(3) is about subjecting the special adviser to the Civil Service disciplinary procedures. I remind the House of two points. First, special advisers are civil servants. They have all the benefits and all the privileges, so they are civil servants. What the Minister wants is that, although they are civil servants, they should be exempt from the discipline of the Civil Service.”