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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“Mr Murphy's response was, "Just strip it out". So, you deal with the behaviour that was excoriated simply by making that excoriated behaviour no longer a breach. That is not good government. That is what amendment No 4 is all about. Amendment No 4 is about putting it back in because the Department could not be trusted to just work it on codes. Sections 7 and 8 of the 2013 Act gave them wide discretion. The code that was produced back then required a candidate pool, selection process, keeping a note — all the things that are in amendment No 4. We then discovered that Executive parties could not be trusted to do that either in RHI, where they simply breached it, or post-RHI, when they stripped it out. The purpose of amendment No 4 is to put it back in but, this time, to put it in legislation.”
“What did Minister Murphy do with those findings? Minister Murphy brought a code that had been found to have been breached multiple times in all those aspects — about candidate pool, candidate profile, setting criteria, documenting the process — and rewrote the code of appointment to simply strip all that out. So, the answer to the criticism that the codes had not been followed was simply to take out of the codes that which had not been followed. How perverse is that? Recommendation 41 of Lord Justice Coghlin was:”
“<BR /> <BR />Amendment No 4 deals with the issue of how a spad is appointed. The Department effectively double-crossed Lord Justice Coghlin on that issue. In his report, Lord Justice Coghlin was aghast at the breaches of the then code on the appointment of spads. Let me remind the House what the old code said. It required a job description. There is no surprise there, because we are filling a publicly paid post, so, surely, there should be a job description. The old code also required criteria by which the selection would be made, a candidate profile and the Minister to document the process. You will recall what Lord Justice Coghlin had to say about how some of that matter was breached. I go to volume 3, page 166, of his report. His findings state that:”
“All that I am taking away from him is the right to interfere in the disciplinary process. He can still be involved and make the reference, and it might still come back to him, but he cannot interfere. That is the principle that lies behind amendment Nos 2 and 3. It lies there because of the experience of such interference in the past. <BR /> <BR />Amendment Nos 2 and 3 are worthy of the support of the House because they fill a gaping gap. It is farcical that a hand-picked spad is only ever subject to the whim and discipline of the person who appointed him, even though, as a civil servant, he could drive a coach and horses through their code and only the Minister can do anything about it. That cannot be right. That is why I am saying that we should make them subject to the Civil Service code of conduct and the disciplinary process.”
“No, I am not, because clause 1(3) recommends that:”
“It is as farcical as it appears. <BR /> <BR />We come back to the fundamental point: if a spad has all the benefits of a civil servant, why should he not be held accountable to the Civil Service code of conduct and the Civil Service provisions in respect of discipline? The point is made to me that the present Civil Service codes do not lend themselves to that. With respect, that is not an answer. It is up to the head of the Civil Service to adjust the codes to deal with the spad situation. It is not for me and it is not for this Bill. If this principle is passed, it is for the Civil Service to accommodate it. <BR /> <BR />I have heard it said that, "Oh, but we are taking away the Minister's entire accountability in respect of his spad".”
“I have to say to the House that neither presentationally nor practically does it resolve the problem, because the problem is this: the Minister hand-picks his spad, who acts as a civil servant but who is immune from Civil Service discipline and instead can be held to account by the one who chose him in the first place. One has to ask how many Ministers have ever been held accountable for a breach of the ministerial code. <BR /> <BR />We are told that you take care of this by putting the Minister in charge and that if he does not act he breaches the ministerial code. That is the theory. The practical question that I have is this: how many Ministers have ever been held accountable for a breach of the ministerial code? In that system, of course, any punishment for the errant spad lies with the one who chose him.”
“<BR /> <BR />We have to remember that the Minister of Finance's view, which was expressed to the Committee, was that the revised ministerial code makes a Minister responsible for, and accountable for, the behaviour of their special advisers. If a Minister does not take action in response to a breach of the special advisers' code, they can be reported and investigated for a breach of the ministerial code. I do not think that I do any injustice to what the Minister's contention to the Committee was. <BR /> <BR />The question is this: is that sufficient?”
“Did it happen? No. Why did it not happen? His Minister overrode it. He said, "We will have none of that and no investigation". <BR /> <BR />The Social Development Committee of the time, of which our current Speaker was the Chair and I was a member, did a report. One of the recommendations of that report was a change to stop the Minister aborting a disciplinary investigation. That was a recommendation in the report brought to the House. Today, I am inviting the House to carry that through by subjecting a civil servant who is a special adviser to the same disciplinary procedures as the Civil Service of which he is a part.”
“The Department of Finance and Personnel, as it then was, independently recommended that he should be subject to a formal disciplinary investigation.”
“My starting point is this: special advisers, so long as they hold office, are civil servants. Temporary civil servants, yes, but civil servants. They are beneficiaries of all the benefits, pension and salary of being civil servants, but, unlike the civil servants with whom they work, they are not subject to the discipline of the Civil Service. That is what I want to correct, because we have had experience in this place of how the discipline of spads worked or did not work. We had an incident way back relating to Red Sky. We had a Mr Stephen Brimstone, a special adviser. He, because of his conduct, was recommended by the Finance Department for formal disciplinary investigation. The Department asked Finance to look at the situation.”
“It is the wider public who are the jury and who will judge today whether we took the steps that they would expect us to take or whether we bottled it in our cocoon by saying, "We can look after all of this by mere codes that are amenable to what suits our interpretation". That is the defining issue. I have already said that codes and legislation can, perfectly happily, coexist. That is the infrastructure that I am inviting the House today to embrace. <BR /> <BR />Mr Deputy Speaker, you will be pleased to hear that I am coming to each of the amendments in turn now, having made those preliminary remarks. Amendment No 1 is purely technical, and I hope that we can all have some agreement on that. It is about tidying up a typographical error in the Bill. <BR /> <BR />Amendment Nos 2 and 3 are about the discipline of spads.”
“There you have it. It is about whether MLAs want the changes arising from the RHI inquiry report to be binding or not. When MLAs vote later today, let this be the compelling thought, "As I express my vote, do I want the changes that need to be made to be binding or not?". That is the defining issue. It is about our durability and the seriousness of our intent on the issue, and it is also a confidence-building measure to the wider public. I do not need to tell anyone in the House that this place suffers from public perception issues. I put it as gently as I can. <BR /> <BR />The Stormont bubble is not the jury in this matter.”
“I understand that, and I have read, obviously, the entirety of the RHI report. Lord Justice Coghlin is not the legislator. This Assembly is the legislator, and it is for this House to decide, with the useful guidance and assistance that came out of the RHI report, how it is going to handle that, and whether, in the circumstances where things have failed in the past, we now do need legislation. <BR /> <BR />Let me be clear. Legislation is binding, in circumstances in which codes are, in the Minister's words, "amenable to interpretation". I told the House at Second Stage about the declaration by Lord Bingham in a case involving a code of practice issued under the Mental Health Act in England. Lord Bingham summed it up very precisely. He said:”
“In a moment. <BR /> <BR />It still admits a role for codes. Sections 7 and 8 of the 2013 Act are explicit. They lay down some minimum requirements in codes and leave the rest to the discretion of the Department. So it is not that you have to choose codes or legislation. The question is: are there some matters where codes have failed and you need to step it up a gear and put it into legislation? That is the contention behind this Bill. <BR /> <BR />I will give way.”
“Yes. I should make the point that it is not an either/or choice. It is not that legislation takes everything that could be in a code and legislates for it. The legislation sets the basic parameters. It still —.”
“I could understand the Member's contribution if we had not had RHI. RHI is the reason why it is demonstrably clear that codes are not enough. I really do think that there is an element of delusion if Members think that codes can do it.”
“When the Health Minister was talking about his inquiry into the urology services — and I say this in the context of the Finance Minister wanting to have the power to decide on interpretation — Mr O'Dowd said:”
“We have just passed through RHI, with all its ugly sides and all its plaintive rebuke of how things were being done, and the Finance Minister writes to the Committee and says, "Codes are enough. We do not want legislation, because we want something that is amenable to interpretation. We want something that allows the application of judgement. We want something that can be developed and enhanced as circumstances require." Why would you want a provision in legislation that says you shall not breach confidentiality and you shall behave with integrity — why would we want that to be amenable to interpretation? I say that the House should not want such to be amenable to interpretation. <BR /> <BR />Indeed, I was sitting in the House waiting for the debate to start, and Mr O'Dowd gave me an excellent line.”
“Will they? Without the certainty of legislation, I seriously doubt that. Why would anyone who is determined to do the right thing fear legislation? Maybe the answer lies in a quite amazing letter that the Finance Minister wrote to the Finance Committee during its scrutiny of this Bill. On 27 April, the Finance Minister wrote to Dr Aiken, the Chair, setting forth his views on the Bill. Let me read a sentence or two from that letter. This is what it says in support of codes:”
“What happened in RHI is the answer. Codes, patently, are not enough. What RHI showed was that the codes were systematically breached. I remind Members that the codes that existed during RHI required confidentiality from spads. Paragraph 24 of their terms and conditions was there, writ large, and it required integrity. Paragraph 5 of the code of conduct also underscored the need for confidentiality. It was all there in black and white: confidentiality and integrity were required by the codes. Did it work? Anyone who recalls some of the evidence, such as the sharing of official information with family members, will readily reach the conclusion that codes, demonstrably, were not enough. As an adequate control mechanism, codes have demonstrably failed. <BR /> <BR />Then, of course, we are given the assurance that things will be different now.”
“The primary Sinn Féin approach seems to be that codes are enough. Indeed, there is a certain irony there, in that we have codes only because of the Civil Service (Special Advisers) Act (Northern Ireland) 2013, sections 7 and 8 of which brought in codes of conduct and appointment for special advisers. Yet the party that, today, will tell us that codes are enough was the very party that voted against even having those codes in the 2013 Act. Such was the party's antipathy to the restraint even of codes that it voted against it. We will hear from the Minister today. I cannot accuse him of voting against it because, in 2013, he was furloughed to Westminster. He was not here, but his party vigorously, vehemently opposed the very idea of codes. Yet, today, that party tells us that codes are enough. <BR /> <BR />Are codes enough?”
“<BR /> <BR />As we go through today, the single most significant ideological, perhaps, and political issue that Members will have to address is whether codes of conduct are sufficient to deal with the issues that have been thrown up or whether we need legislation. That will be a fundamental dividing line in the debate. It is a dividing line to be drawn and a decision to be taken in light of not just the reality of what we need and what we do not but of the perception of the public. Stormont may be something of a bubble. RHI may have been eclipsed in the public focus by the pandemic. However, the issues that arose are such that the House cannot gloss over them. It needs to address and grasp hold of them.”
“It is not about whether you are pro- or anti-Belfast Agreement, as one Sinn Féin Member sought to suggest to me. It is not about attacking these institutions. The House needs no reminder of my view of these institutions, but the Bill is not an assault on the institutions. It is not about attacking the functions of spads. I know that spads have an important and necessary function in government. I am not disputing that; I accept it entirely. It is about bettering government. It is about bringing probity and principle where those have been demonstrated to be deficient. It is, therefore, about improving the standards and principles of the functioning of government, as the title of the Bill suggests.”
“I encountered that again with Mr Pat Sheehan in the Executive Committee, where there was an attitude that the Bill should be rejected, essentially, because of its authorship, not its content. <BR /> <BR />The other major party in the Executive had probably greater reason to be stand-offish. It is, undoubtedly, a difficult topic, arising as it does from RHI and all the misdemeanours that that revealed. However, it is to the credit of the DUP that it took a more mature attitude to the Bill. Similar to the other parties on the Committee — the SDLP and the Ulster Unionists; unfortunately, the Alliance Party is not on that Committee — it took an engaging and mature attitude to issues, which cannot have been easy, in some respects. <BR /> <BR />This is not a green and orange issue. There is nothing about the Bill that is of that nature.”
“That, of course, is the whole purpose of a thoroughgoing Committee Stage. I am grateful for that. <BR /> <BR />It will be noted that not all parties participated as fulsomely as others. Sinn Féin, as was its perfect entitlement, took a different approach. There was, essentially, non-engagement with many of the issues and an unaltered declaration from the beginning that, come what may, it was opposed to each and every clause of the Bill. That is, indeed, its entitlement. It was disappointing to note that the Bill was being judged on the identity of the sponsor rather than on its content. Indeed, Mr O'Dowd made it plain in the Second Stage debate that it was not for me to bring forward a Bill such as this.”
“I thank the Committee as a whole for its thoughtful interrogation of the Bill. Having listened to the points made, most particularly in Committee but also outside, I believe that the amendments provide the opportunity for a better Bill than was first drafted.”
“I will proceed to speak to amendment No 1 and the other amendments in group 1. It is no part of my ambition to beat the record of last Tuesday and to be here at 2.15 am, but let us see how we go. <BR /> <BR />I begin by thanking the staff, including the Bill Office staff and the Committee staff, who, behind the scenes, do a great deal of work and a give a great amount of invaluable guidance and help. I also thank the Business Office staff and the Speaker's Office staff for their roles in progressing matters to this point. It all fits together in the necessary workings of bringing forward a private Member’s Bill. I also thank the witnesses who came to the Committee and gave of their time and knowledge and afforded us useful insights into much pertaining to these matters.”
“Can I seek some clarification from the Minister about whether all of the £338 million that was today is Barnett consequential money from the Treasury, or is it supplemented by any savings that the Executive have made in various Departments? More specifically, what about Belfast International Airport? It is our primary airport, and it is now closed for a number of days each week. I see £1·2 million, again, for the City of Derry Airport, which must be the most over subsidised airport that we have. What about Belfast International Airport? Where is the money for it?”
“Last week, the Executive Office came to the House to make a statement; this week, the Health Minister has been sent. Is that because the Executive Office wants to keep its distance from the unpopular U-turns and the effect on business? <BR /> <BR />Can the Health Minister reconcile for me the return to lockdown with the fact that, from looking at the dashboard this morning, it is demonstrably clear that the number of COVID-positive tests is now half what it was six weeks ago, yet we are heading back into lockdown? <BR /> <BR />As for the Churches, did he even consult them? Does he understand — I am sure that he does — the hurt that has been caused? Will he publish the evidence so that they, too, can know why they are having to close, given that they tried so hard to do all that was asked of them?”
“I regret that, but you have your view and I have mine, and, in due course, we may see the wisdom of whatever path was trod.”
“When you make the offence actual domestic abuse, however, you cannot dodge the necessity, I say, of showing that there is abuse and there is harm. Otherwise, you arrive at the ridiculous situation in which you invite a jury to convict someone who fails in their intent, who fails to cause harm and who fails to cause psychological harm, and nonetheless you say, "Convict". <BR /> <BR />That is why I say that we are doing despite to the essence of the criminal law and the need for an actus reus and a mens rea. All that you have in this offence is mens rea and someone else, who is not the victim but some mythical, reasonable person, who believes that there was an actus reus. That is a bit farcical, but I recognise that I have not persuaded the House.”
“The mischief, surely, is that women and men — but women predominately — are abused. That is why we call the offence "domestic abuse". It says it in there: this offence shall be called the "domestic abuse offence". Yet, we rush our fences to the point where we decide that we do not actually have to have any abuse in order for someone to be guilty of that offence. If the direction of travel is to deal with coercive abuse, why does this legislation not make an offence of coercive abuse? Why is that not the offence? I could understand that: if that is the target, make it the offence. Make the offence "coercive abuse", have the evidence that that was the intention, and, in those circumstances, you could lay a path to justifying external evidence that that would be perceived to be coercive abuse.”
“<BR /> <BR />I am glad that I made the points, because there could come a point when this legislation is looked back upon and questions are asked about why we thought that it was right to create an offence where the law requires an intent or a recklessness to doing harm but we decided that you could be guilty of domestic abuse without actually doing harm. I drew the parallel that you would not think that you could be convicted of theft without actually stealing. However, the House thinks that you can be convicted of domestic abuse without causing the harm from such abuse. In that, I respectfully suggest that the House is wrong and that it does a disservice to the certainty and sanctity of the criminal law. <BR /> <BR />I am not going to labour the point, but I will ask the question, "What is the mischief that we are trying to address?".”
“Thank you, Mr Deputy Speaker. I hope that I do not have to say this, but I will say it: I am not interested in providing any refuge for any domestic abuser. Domestic abuse is insidious and iniquitous, and it deserves the full rigour of the law. I am interested in the sanctity of the criminal law, and that is why I laid out my arguments. I acknowledge that I have not convinced the House, and I have to accept that. I accept that I have not overturned the predetermined collective view of the Committee. I regret that, but it is reality.”
“The harm, as drafted in my amendment, can be "physical and psychological". Physical harm might speak for itself. However, I would have thought that, in any case such as this, particularly of psychological harm, it would be entirely appropriate, just as if it were an assault case, that medical evidence would be called as part of the prosecution. If someone is charged with assault occasioning actual bodily harm or grievous bodily harm, one would expect a medical report to be — often agreed, but if not — contested by the evidence called. More particularly, if there is an allegation of psychological harm, it, almost inevitably, would lead, as part of the proofs of the prosecution, to the calling of evidence from a medical expert.”
“and by taking out clause 3, which is the one that really distorts the whole issue of the essence of criminality: the mens rea and the actus reus. Those are my points, and I put them before the House.”
“All of those points were raised with the Committee, yet we arrive today where we started, which is with an attempt to push through the novelty of an offence without the essential component of the actus reus. "A guilty mind is enough" is really what we are saying here. I respectfully suggest to you that a guilty mind can never be enough to convict anyone beyond all reasonable doubt of a serious offence or of any offence. This is an offence for which the awaiting sentence can be 14 years. I therefore say to the House that we need to pause. There is nothing to lose by putting amendment No 1 into the clause, which requires:”
“the course of behaviour actually causes harm. It is up there in lights: you do not have to cause harm to be convicted of causing harm. That is the essence of it. What is domestic abuse if not harm? You cannot say that domestic abuse is something out in the ether. It is real, except when you get to the Crown Court, where it does not have to be real to have caused harm. It can be mythical, provided a reasonable man says, "Ah, but it should have caused harm". Really? I really think that the House needs to examine that. That is why I was not surprised to read that the Bar Council cautioned about the objective test. It said that you should consider:”
“That brings me back to the central point. The Minister is inviting the Assembly to create a criminal offence, where the critical component of the actus reus of causing harm is absent. Clause 3(1) could not be clearer:”
“I simply make this point: why would we want to go around the houses with all those pedantic examples when the answer lies in the existing law, namely the alternative prosecution for or the alternative conviction of "attempt"? Why would you want to create this mythical situation when you could, very simply, charge attempted abuse, and, because you have not got a victim who claims abuse, you can acquire the conviction.”
“Not as drafted, I do not think there is. I think that you could probably bring a prosecution on this without B ever being a complainant or B ever giving evidence, I suspect. You are depending on the mythical reasonable man. Let us call the "reasonable man". We need not bother calling the "victim". They do not matter here. It is the reasonable man. That is how preposterous this is.”
“It beggars belief, I think, that we would be contemplating that.”
“So, I wrote to the Scottish Justice Minister and asked, effectively, what success Scotland had had in getting convictions where no harm was caused. I have his reply. He had to tell me that they do not have any statistics like that. I am not surprised. Members of this House, do you really think that any jury is going to be impressed, to the point of being satisfied beyond all reasonable doubt, that an offence has been committed where there is no manifest harm, no claim of harm? It is not that somebody is saying that they feel psychologically damaged or that they had a broken wrist and there is a question of fact on whether that is right or wrong. It is not even that that is the case. It is that you do not need any harm, as long as a reasonable person would think that there should have been harm.”
“In a moment. <BR /> <BR />Because he wanted harm and he intended harm and you might think that there would have been harm, we do not have to prove that there was harm, and that is for an offence for which you can get 14 years. Really, I do not think that that is a prospect that this Assembly should entertain, particularly when it knows that the attempt defence is always there. It is always an alternative under the Criminal Law Act 1967. It can be an offence in its own right under the Criminal Attempts and Conspiracy Order 1983. It is there either way, so why on earth would we create an offence of this sort? <BR /> <BR />You might recall that, in the Second Stage debate, we were told that this was modelled on the Scottish system.”
“<BR /> <BR />I would not like to be the prosecutor who would have to put that case to a jury. I would love to be the defence counsel who had to answer that case. It is so preposterous a suggestion to say that you should invite a jury to convict on the basis of, "Here's a victim with no harm, but because he wanted harm," —.”
“There are two points. The first is a bit shorter, so I will take that first. <BR /> <BR />My amendment suggests that B must suffer physical and psychological harm, so that is a jury question. Did the victim suffer harm? That can be physical, it could be a broken arm, it could be the torturous mind that Ms Bradshaw referred to — it can be either. It is a question of fact: did they or did they not suffer harm? If they suffer harm, and they have the guilty mind, the offence is complete. <BR /> <BR />The second question is: if we leave this offence as drafted, what prospect is there of any jury ever convicting anyone? My goodness, you are going to say to a jury of 12 people, "We want you to convict Mr X because he intended harm, abuse towards Mrs X, but he failed in causing harm to Mrs X, but never mind that, you convict him anyway".”
“You cannot say, "We duck and dodge that by simply saying, 'Ah well, never mind, there was no harm, but any reasonable person would think there would've been harm'". Would have been is not good enough. Should have been is not good enough. It has to be the causing of harm, and if it is not the causing of harm, it could still be the attempt to cause harm.”
“In saying that, the Minister has embraced the need for harm, and she is filling the vacuum of the lack of harm by putting it on the shoulders of a reasonable person, and getting out of the finding of harm by saying, "but a reasonable person would think it's harm". You cannot have it both ways. <BR /> <BR />You cannot say that this offence is about a course of action, end of, and then say, "but we need to tick a box about causing harm, so we'll tick it by having some reasonable person say it would be likely to cause harm". It causes harm or it does not, and that is the fundamental choice for the House. Are we going to create an offence that causes harm or not? <BR /> <BR />Certainly, causing harm is the essence of any offence of violence, abuse or anything else.”
“With respect, where I think the Minister is falling into error is this: if she says that the key issue here is the course of behaviour, why do we have clause 1 (2) at all? If that is the offence, a course of behaviour, why do we say:”