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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“There must be no more equivocation but a facing up to the fact that it was wrong in all its dimensions and robbed a family of a young mother who was going about a public duty. I will listen, more in hope, maybe, than in expectation, for the junior Minister to step up to the plate on behalf of his republican movement and face the facts of that awful, cruel murder. <BR /> <BR />I will turn to the content of the census order. When he introduced the order, the other junior Minister underscored the significance and importance of the census in obtaining reliable information, which is then utilised to shape Government policy and funding. It is fundamental to the whole process of governing. Given its fundamental nature, therefore, it is critical that it is made foolproof in order to be reliable.”
“Of course, at that time, the commander of the IRA in that city was, we are told, one Martin McGuinness, who, sadly, took to his grave such knowledge as he had of that fiendish murder. I do not think that any of us, when we hear the word "census", should do other than reflect upon the awfulness, cruelty and vileness of that hideous murder. <BR /> <BR />The junior Minister who will respond to the debate has always been very upfront as a propagandist for the republican movement, both in his speeches and in his writings. I trust that he will take the opportunity, without weasel words, to apologise unambiguously, on behalf of the republican movement, for that hideous murder.”
“I cannot and will not take part in a debate on the census without reflecting on the fact that, in a past census, one of the most brutal and callous acts of the Provisional IRA was the cold-blooded murder of a census collector, Mrs Joanne Mathers, as she did her public duty in the city of Londonderry. In the annals of all murders, that murder stands out for its particular cruelty and utter lack of anything that could ever be dressed up as justification. Of course, it came at a time when the republican movement sought to thwart the taking of a census. It went to the lengths of that brutal murder, and then, of course, tried to cover it up and deny that it was a murder by the Provisional IRA.”
“Can I take the Minister back to the haulage sector? If the Executive are considering a support package for that sector, will the Minister deal with a rumour that circulated in that sector over the weekend that the Executive are minded to limit such a package to haulage companies with 90 lorries or fewer? That, of course, would be devastating for a major employer such as McBurney Transport in my constituency. Can the Minister assure me that any package will be open to all, will be fair and will be proportionate?”
“The Business Committee could have brought, along with the motion, a motion to suspend Standing Order 12(7) to allow debate on what we are going to be asked to nod through. It did not even do that. That is wholly disrespectful of the rights of the House and the scrutiny that the House is supposed to afford to Ministers.”
“On a point of order, Mr Principal Deputy Speaker. I again object that for the fourth time without debate — that is critical — the House is about to abrogate fundamental scrutiny powers of Ministers by, yet again, removing the right of Members of the House to ask questions for oral answer and topical questions of Ministers. I think that that is a fundamental mistake in itself. I understand that some Ministers are at the forefront of the coronavirus crisis and the handling of it, but some are not. Why can they not come to the House and answer questions? Why should the House decide another month's exclusion of that — another month of trampling of scrutiny in the House — and to do all that without debate?”
“It was not unreasonable to ask the Minister about this. The offence has at its heart stopping abusive behaviour and defines abusive behaviour as violence and threatening or coercive behaviour — I paraphrase — but is she seriously saying to the House that, in the absence of those, behaviour that has none of those anticipated consequences can still be found to be criminal? I will put it to her like this: does she seriously expect any jury ever to convict anyone if they are told, "This is about domestic abuse against Mrs Brown. Mrs Brown suffered no harm and suffered none of the matters that make up abuse, but you should convict anyhow"? Does she seriously think that she will ever get a conviction based on that?”
“I would like to hear from the Minister what it means when it says that the representative that is appointed is "not responsible to the party". What on earth is that meant to mean? I will leave it there.”
“means. The way in which cross-examination works is that you take your instructions through your solicitor from your client. They tell you, "This is what my case is. This is the case I want to put". You are then responsible for the putting of that case. In that, there is client/solicitor privilege. How do you get your instructions if you are not responsible? How do you handle those instructions in terms of solicitor/client privilege if you are not responsible? Why would you not be responsible to the person on whose behalf you act? If you are not responsible to him, who are you responsible to? In whose interests are you acting? There is no point in saying to a man or a woman, "We will give you legal representation, but the person who represents you will have no loyalty or duty to you". Whom they have it to I do not know.”
“I would like to hear from the Minister what”
“I am sorry: these are family proceedings, so it could be the respondent or the applicant —”
“I trust that it has not fallen on deaf ears, but we will see. I think that I have made that point. <BR /> <BR />Let me go to clause 26 and a less major point but one that needs to be made. This is the circumstance where personal cross-examination is prohibited. That is fair enough. The person themselves is not allowed to cross-examine. They do not nominate a lawyer to do it for them, and you arrive at the situation where the court makes the judgement that a lawyer should cross-examine for them. We find that, under article 11G, which is being interposed into the other legislation:”
“If you want to be effective and create a viable offence, cut out all the chaff. Get to the heart of the matter, as the Westminster Bill does, and specify precisely what domestic abuse is. Do not muddle it with what the reasonable man might or might not think. Do not muddle it to the point where, even though there is no complaint of abuse and no objective finding of harm, this reasonable man can nonetheless send you to jail for 14 years. How could that be? Yet, that is how those clauses are constructed. Simplify them, make them forthright and clear and take away the hiding holes. I spent a career in the criminal courts, and legislation that had hiding holes was a gift to defence lawyers. This will be a gift to defence lawyers.”
“Does that mean that the reasonable man might think that there is enough for the prosecution to continue but some other mythical reasonable man is meant to think that what was said and done was reasonable? That is the impossible conundrum of clause 12 because of clause 3 and what goes before it about the reasonable man.”
“Let us imagine that we have got to the situation in a trial where, because of clause 3, you have got past the direction stage, where a judge in any criminal case — at the halfway point, as it were; at the end of the prosecution case — has to consider whether there is enough evidence to go to the jury and the defence can apply for a direction that there is not. Let us say that you have got past that stage on the basis of one of the particular circumstances here: because a reasonable person thinks that the abuse outlined was likely to have one of the likely effects, even though it had none of those effects, and the judge holds that there is enough on that basis to get to this point. Then, you read clause 12, which says:”
“It, in effect, builds an offence, which far from being crisp, intelligible, straightforward, and with very few escape routes, creates one of the various opposite description. That is why I think that these clauses, this definition of the offence, is not going to deliver the clear-cut conviction rate that we need for domestic abuse. <BR /> <BR />Let me just take a little further this idea of the reasonable man deciding that is enough if a reasonable person thinks it is likely to cause one of the impacts. Go, then, to clause 12 and you will see, "Defence on grounds of reasonableness".”
“That is it. That is clear, it is unambiguous, largely, and it is intelligible. Compare that with clauses 1, 2, 3 and 4 — particularly 1, 2 and 3 — of our legislation. That is why I said it is a muddle. <BR /> <BR />I say to the Justice Committee, when you come to look at this legislation, set down in front of you the definition of domestic abuse in the Westminster Bill and set down the multiple clauses in this Bill, which define it in this jurisdiction, and ask yourself this question, "Which is the better of the two?". Ask it in this context, and I say this somewhat from my professional experience: any criminal offence is most effective the simpler it is. The more convolutions you build into a criminal offence, the more refuge there is to avoid conviction. That is exactly the flaw of the Scottish Act and this Bill.”
“I want to remind you of all the convolutions I took you through about how you create our offence. Compare it now to the definition in clause 1 of the domestic abuse Bill:”
“It is not that the victim says they have not suffered; the law says, objectively, you find there has been no harm. <BR /> <BR />It is enough to get to that point if some reasonable person thinks that it could have had — even though it did not — that effect. If a reasonable person thinks that it could have had that effect, even though they are wrong, and it did not, it still is an offence. That is absurd. <BR /> <BR />It is clause 3, in my respectful opinion, that makes this offence something which will be very difficult, in many circumstances, to bring home in a prosecution. That is why I said that this offence is far too convoluted. It is a convoluted muddle. <BR /> <BR />Let me contrast that with what is happening today in Westminster. At this very time, coincidentally, Westminster is discussing its domestic abuse Bill.”
“one of the relevant effects. <BR /> <BR />That is an objective assessment. Did the victim suffer harm? If the answer to that is no, did the victim suffer any of the relevant effects, such as being deprived of freedom of action, being controlled or being dependent on? If the answer to that is no, then, nonetheless, you can have the commission of an offence. <BR /> <BR />I ask the question, where is the actus reus of this event? In criminal law, there are two components to an offence: the mens rea, the intention to do it or recklessness, and the actus reus, the actual doing of it. If clause 3 begins by telling you they have not actually succeeded in doing anything, how can there be an offence? Yet that is what this legislation says. So it is a crime with no victim, in a sense.”
“The sort referred to in section 1(2) is "physical or psychological". When it says that the domestic abuse offence can be committed "whether or not" behaviour actually causes, that is saying, whether or not objectively it actually causes. It is not saying, as I heard one Member infer, whether or not the victim thinks they have not suffered that. It does not say that the domestic abuse offence can be committed whether or not the victim acknowledges, accepts, or admits, that it has caused any of those effects. What it actually says is:”
“set out in clause 2. So, whether or not you cause physical or psychological harm, or whether or not you cause one of the relevant effects — the subordination, the isolating, the controlling, the depriving, making them feel frightened or humiliated — whether you achieve any of those, the perpetrator can be guilty of the offence nonetheless. <BR /> <BR />Let us take the first one:”
“the perpetrator's behaviour actually causes the victim to suffer harm or psychological harm. <BR /> <BR />Think about that. A criminal offence, for which you can get 14 years in prison, can be committed whether or not the person against whom it is said to be committed actually suffers the physical or psychological harm that is the telltale sign of the abuse. <BR /> <BR />It goes on to say that the perpetrator's behaviour "can be abusive" of the victim, whether or not their:”
“You have to show that the purpose is one of those relevant effects, or that a reasonable person would think that the effect is likely to be one of those. <BR /> <BR />We come to the most remarkable clause in the Bill. Clause 3 is astounding, I believe. It says:”
“the victim's day-to-day activities; depriving the victim, or restricting the victim's freedom of action; making the victim:”
“The relevant effects are listed: making the victim "dependent on, or subordinate to" the perpetrator, whatever that means; isolating the victim:”
“Remember, clause 1 required the perpetrator to either "intend" or to be "reckless" to causing the abuse. Now we are introducing a new dimension that, rather than having the purpose of one of the relevant effects, it is enough if it:”
“— here we are heading down the road of convolution —”
“that harm occurs, or not. <BR /> <BR />Let us move to clause 2. The Minister said that there was no definition of abusive behaviour, however clause 2 is in fact the definition. The title of it is, "What amounts to abusive behaviour" — in other words, what defines. So, this is the definition. The behaviour referred to has to be either "violent" — fair enough, that is good — or "threatening" — good — or behaviour directed at the victim that:”
“That is exactly what you would expect, and that either the person:”
“The House will get no quibble from me about the need to address the pernicious and insidious issue of domestic abuse. However, the critical test of how we are addressing it comes in an inspection of the offence that the legislation will create, and there the House will get quibble from me about whether or not this offence, as drafted in the Bill, is efficiently sufficient to address this issue. In summary, I believe that, as drafted and running over five clauses, this offence is more convoluted than it needs to be. <BR /> <BR />I recognise that it is really a cut-and-paste from the Scottish legislation, but that is not a good enough answer in respect of why it is in the form it is in. If we take the time to look at the component parts of the offence, in clause 1 we discover, not surprisingly, that there has to be:”
“Well not only because there isn't one but because his powers are restricted to the actions of MLAs, not Ministers. Indeed, now that you have given me the opportunity, I hope to bring legislation before the House that will plug that lacuna. The actions of a Minister — it was a Minister acting as a Minister who misled the House — cannot be investigated by the standards commissioner. I certainly think that the Standards and Privileges Committee is the right place for this to be inquired into. If you require me to write to the Speaker's Office and put in writing what I have said here — it will appear in the public record, so it seems a bit unnecessary — I will do it, nonetheless.”
“Further to that point of order, if you are suggesting that the matter could be referred to the Commissioner for Standards, I have to respectfully suggest that it could not.”
“None of that was correct. The House was misled by a senior Minister. I ask you, as the person occupying the Speaker's Chair today, to take action on that. I respectfully suggest that the appropriate action would be to refer the matter to the Standards and Privileges Committee.”
“Yet, today, we had a debate where there was an opportunity for the deputy First Minister, under Executive Office business, to come to the House to correct, withdraw and apologise for misleading the House, but it is clear that she has not done that. That is why I left it to the end of the debate to raise the issue that, on 23 March, in response to Mr McNulty, she said:”
“On a point of order, Mr Principal Deputy Speaker. Any Parliament or Assembly worthy of the name takes a serious view of a Minister misleading it, and it is such an episode that I want to draw to your attention. On 23 March, the deputy First Minister, no less, told the House that the Executive had signed a contract for PPE, implying that it was with China and causing great hope and expectation amongst our hard-pressed National Health Service workers. It turned out there was no such contract. I say that on the basis of what her colleague the Finance Minister, Mr Murphy, told the Finance Committee on 8 April, which was that no contract had been signed. He did not know why the deputy First Minister had claimed that and, I say, misled the House.”
“The junior Minister says, "We will do this; we will do that. We will take all these things into consideration". Have the Executive already discussed this issue and decided to make no change? Can the junior Minister be forthright with us on that? If the Executive have decided to make no change to the regulations on cemeteries, could he please explain it to us?”
“What does the science tell the junior Minister about it being OK to utilise the closed space of an off-licence but it being wrong to singularly utilise the open space of a cemetery? Can he expound on that science, please?”
“The danger with the regulations is that, in some ways, we get used to their abnormality. They are abnormal restrictions. We must not, as politicians and as a House, get used to them as the norm. We must re-establish the rights of people to go about their daily business as they see fit. We must lift the hand of government from oppressing in that manner. Yes, we must do it when it is safe to do so, but there are some things in here that I, Mr Buckley and Mr Nesbitt have referred to that are utterly oppressive and utterly unnecessary and should be removed forthwith.”
“To try to square that circle, the Economy Minister established a stakeholders' forum. For three weeks, the mountain laboured and, at the end of it, it brought forward a mouse. We are no further forward. Again, take it to mean what you want it to mean, and that is a lamentable failure of the Executive. The junior Minister need not talk about united leadership if Ministers in the Executive cannot agree that if a factory can operate social distancing, it can and should be open. At the end this, we have to have an economy. Therefore, the common sense that is so often missing needs to be applied.”
“You can walk and you can drive. To take exercise, you can walk or you can drive. To seek medical assistance, you can walk or you can drive, and yet, we have had the folly of a senior police officer telling the public that you cannot drive to take exercise. It does not say that and it does not do anything for public confidence when an Assistant Chief Constable cannot adequately read the regulations, so I am glad that that matter was spelled out today. <BR /> <BR />Other issues that still require definition and refinement are the important issues related to the opening of manufacturing and other factories. It is still opaque. It is still whatever you want it to mean and it should not be like that. Three weeks ago — more now — the Executive feuded over what factories could be open and what factories could be closed.”
“I noted that the junior Minister said in his opening statement that there was nothing to stop you driving, within reason, to a park. I hope that the PSNI were listening, and I hope that we will not have a repeat of an Assistant Chief Constable making a fool of himself on the radio by blatantly misinterpreting the regulations. Anyone who reads them would surely know that, in regulation 5, there is no restriction on driving to a park for exercise. It is quite clear:”
“It really is beyond belief that that restriction exists while you can queue up and mingle in the closed environment of an off-licence or supermarket, but you cannot go to the open environment of a graveyard. That issue really needs to be addressed and to be addressed quickly. <BR /> <BR />I will make a few other comments. Some parks have reopened, and I do not take issue with that. Again, they are open spaces where social distancing applies. The People's Park, in Ballymena in my constituency, was opened. The throughput has been 15 people an hour. What is wrong with that? Some of the medical experts say that being out in the open air is the best possible provision that you can make for respiratory problems, so why should people not be in parks and why should they not drive to be in a park?”
“That is the restriction that is giving the difficulty. If I read regulation 2(3) correctly, the Department of Health could remove that constriction. Can the junior Minister specify whether it is correct that the Department of Health, and therefore the Minister of Health in his own right, could remove the restriction affecting burial grounds in 4(8) and that it does not require Executive permission? If that is so, I urge the Minister of Health to do it and do it now, because it is most grievous to many. If the Minister of Health cannot do it and it requires the Executive, it will be a test of the humanity of that Executive as to whether or not they do it.”
“and it is burial grounds that I am talking about —”
“The restriction or requirement that I am referring to is that which is found in regulation 4(8), where it says:”
“not the Executive Office, the Department of Health —”
“Yet, we are told that, on Friday, the Executive could not agree on that. My goodness. The junior Minister finished his remarks by talking about united leadership. If we cannot even get leadership on an issue as elementary as that, what hope is there for us? <BR /> <BR />When I read the regulations, I have a query for the junior Minister, presumably Minister Lyons, to respond to. Within these regulations, who has the authority to change that? I read in regulation 2(3):”
“Graveyards are not the gathering places of large numbers — outside of funerals, which are separately taken care of. They are solitary places where people go, often individually. On the radio this morning, we heard a former Member of the House, Kieran McCarthy, talking about being unable to go to visit the grave of his daughter. They are solitary visits in the main. They are not rowdy, rumbustious situations that get out of hand. They are singular, but they are critical to the grieving process and indeed to the mental health of many. Though, apparently, we have passed the first review of these regulations, they still maintain this outrageous restriction on any member of the public going to the grave of a loved one. If there is any compassion, that needs to be addressed.”
“None of us are particularly comfortable with the regulations, nor should we be. They are in the main necessary, though they are not perfect. As time goes on, we will need, proactively, to address the imperfections. <BR /> <BR />Mr Nesbitt and Mr Buckley have put their finger on one of the most poignant inadequacies in the regulations, which is the quite distressing situation that people are forbidden by law to visit the graves of their loved ones in a cemetery. Mr Buckley pointed out that the regulations preserve the rights of people to go to an off-licence but they prohibit a citizen to go to a graveyard. You can go to the enclosed space of an off-licence, but you cannot go to the open space of a graveyard. How preposterous is that? Yet, that is what these regulations provide for.”