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 do not think that that is too onerous. It is twice a term — twice a mandate, essentially — so that the House can consider whether there are other things that we need to improve. Of course, to do that they would consult all the relevant commissioners and ombudsmen and all who are listed there. <BR /> <BR />These are sensible and rational proposals. There is nothing in the Bill that is green or orange; it is just about doing things better. MLAs may not agree with everything in it, but I hope that they believe in the general principles, in a circumstance in which the public most definitively expect change. Simply rejecting the Bill would be to defy public expectation. The other night, Mrs Foster told UTV that mistakes had been made and that what is important now is that we put in place structures to make sure that we do not do it again.”
“I bring you back to clause 12, the last substantive clause. Its purpose is to ensure that this is not just a one-off event. It is clear to us all that there are things that need to be fixed, but, as time progresses, it will equally become clear that there are other things that need to be fixed. Therefore, in clause 12, I wish to impose an obligation that the First Minister and the deputy First Minister bring a report to the House every two years on any further proposals that there can be to improve the functioning of government. In any two years, there will, for example, be judicial reviews in which High Court judges will have criticised how things are done in various facets. Why should we not learn from that? The way to make sure that we learn from that is to have a review report and proposals every two years.”
“Putting in a positive filter would be a protection for MLAs and for Ministers, particularly for Ministers, who could be the object of capricious complaints such as that. If the standards commissioner has to be satisfied before he starts investigating and must continue to be satisfied throughout that the complaint is not frivolous or vexatious, that affords a protection that would be worthwhile, viable and well worth doing.”
“The Member makes a good point. It is a point that was made to me at the Committee, and I have been thinking about it since. I think the answer is an amendment to insert a filter into the complaints process that provides that the commissioner must be satisfied that a complaint is not frivolous or vexatious or otherwise an abuse of the complaints process before he investigates it.”
“Alternatively, if 30 Members can get their act together in the House, they could bring it to the House. That is not good enough in terms of a transparent, fulsome disciplinary process for Ministers. Clause 5 is simple and straightforward, and it sets the matter in very clear terms.”
“Why not give that standards commissioner a widening of his ambit to include the ministerial code as well as the code of conduct? That would put everyone in the House on the same footing. Instead, the proposition is that we should spend £120,000 a year on three new panellists. It really is delusional. <BR /> <BR />When you go to what has been said today and what is in 'New Decade, New Approach', you see that the panel can reach a view but cannot recommend sanction. Only the party of the complained-against Minister, or the Assembly, can decide whether there will be a sanction. What is that all about, other than the optics? You will have a panel to determine what happened, but it will not be able to recommend sanction; it will hand over the matter to the Minister's party, which will decide what to do.”
“At the moment, Members are accountable through the standards commissioner for their behaviour and any breaches that are alleged against them in respect of their code of conduct. Ministers have a ministerial code, but there is no accountability. The last act of the House before the Assembly fell in January 2017 was to pass a motion, without division, saying that Ministers equally should be subject to the aegis of the standards commissioner. That is exactly what clause 5 seeks to do. <BR /> <BR />If MLAs are subject to the Assembly commissioner, why not Ministers? Today we have heard an announcement, "Oh, but we're going to appoint a panel". Why are we reinventing the wheel? We have a situation where we have, or should have, a standards commissioner to deal with issues of conduct.”
“<BR /> <BR />Why should there be a facility to change the law behind the back of the legislative Assembly? That is what we are about — a legislative Assembly — and yet legislation was able to be changed behind the back of the House. That cannot be right and cannot be healthy, so that is why clause 3(2) is there. <BR /> <BR />In clause 4, I am saying that, if we were to reduce the number of spads, the date to do that would be the end of the next financial year, to give plenty of notice and time. Clause 4 is about providing those who are displaced and do not come back in as special advisers with their rights to a degree of compensation that is fair and reasonable. This clause and the schedule deal with that. <BR /> <BR />Clause 5 seeks to address a fundamental lacuna in accountability in the House.”
“Members will recall how Mr David Gordon was mysteriously appointed as a super press secretary in the Executive Office. That was done by the then First Minister, Mr Robinson, and the late Mr McGuinness by exercising a royal prerogative power from section 23 of the Northern Ireland Act 1998. They exercised that prerogative power, without the Assembly knowing about it, to change the Civil Service Commissioners Order 1999 to give them the power to make that appointment. That was done behind everyone's back, in this House. That is not healthy or good, so I want to remove the amendment that was made, and I want, for the future, to impose in clause 3(2) a stipulation that no such change can be made in future unless a draft of it is laid before the House, and approved by the House.”
“I think four is a better number, but there will be different views about that, and if this Bill proceeds, there will no doubt be debates about where the right number lies. Is the right mechanism to reduce the First Minister and deputy First Minister's special advisers, as I am proposing, from three to one — granted that there is a junior Minister — or is it better to take away the junior Ministers' special advisers and adjust the number for the First Minister and deputy First Minister? Those are all debateable points, but the principle is that it is really unsustainable to say that one Department in this House needs the same number of special advisers as the entire Welsh Government. The public, more than ever, are looking at us and we need to respond with sensitivity. <BR /> <BR />Clause 3 is a little bit technical.”
“No Ted Howell, no Wilson, just the Minister. That is an important thing to put into law, in respect of these matters. <BR /> <BR />Clause 2 deals with the numbers. The House will be aware that in statute, at present, the Executive Office can have eight special advisers: three for the First Minister, three for the deputy First Minister and one for each of the junior Ministers. Historically, before 2007, there were none for the junior Ministers. That was brought in by a change in the law in 2007. You now have eight. That is the same number as the entire Welsh Government: that is unconscionable. <BR /> <BR />I notice, so far, I think, that the Executive Office has only appointed six spads, with three for each party. Maybe that is a recognition that it was being overdone at eight.”
“We cannot have those phoney, substitute special advisers running about as special advisers, if there is going to be any order whatsoever in these matters. <BR /> <BR />I also want to put in that:”
“The evidence from the RHI inquiry is that the permanent secretary knew that was happening, gave them a free run of Stormont Castle and simply closed his eyes to it. I want to put a statutory duty on a permanent secretary so that they:”
“<BR /> <BR />Clause 1(6) is all about the fact that the evidence was very clear in the RHI inquiry that, after the passing of the Civil Service (Special Advisers) Act 2013 — the Bill that I steered through the House — which removed from office those with criminal convictions of a serious nature, the evidence was that Sinn Féin deliberately circumvented the legislation by appointing an effective super-spad, paid not from the public purse but paid, presumably, out of party funds, and that that person, nonetheless, was able to exercise all the functions of a spad and, indeed, oversaw the rest of the spads. That is why, in clause 1(6), I want to impose a statutory duty not just on the Minister but on the permanent secretary.”
“It is the situation that a spad is in office only as long as his Minister is in office, but I think that the Member is making a different point, which is that, when the Minister falls from grace or moves on, the spad seems to live on, because he is moved elsewhere. It is an equitable thing to say, "Let's take this out of the hands of the politicians. They can decide how best to fix the bands, but let's put a cap on salary so that you cannot be remunerated above the level of an assistant secretary in the Civil Service". That does not seem to me to be at all unreasonable. That is what clause 1(5) is about.”
“I am talking only about the maximum. I am quite happy to leave in the code three bands, two bands, one band or whatever, but it would be far more preferable if we put in statute that there must be a statutory cap, and the statutory cap would be that of a grade 5, an assistant secretary. It is no mean salary. At present, a grade 5's salary can go as high as £80,800.”
“With clause 1(5), we come to the tetchy area of salary. There was public unease, to put it like that, that special advisers were in some cases eligible for a salary above that of their Minister. Some of them could be paid up to £92,000. I note that, in the recent code, that has been reduced to £85,000 max. As I understand it, four of the spads are on £78,000. It is better not to have salaries in a political code at all, because the code is written by a Minister. It would be far better to link, and cap, the salary of special advisers to a Civil Service grade. <BR /> <BR />Indeed, I was doing a bit of research in the Library, and I came across a little booklet that looks at ministerial advisers across the world. It tells me that, in 75% of countries, an adviser's salary scale is linked to the public service's.”
“We need to address that by formally putting special advisers within the ambit of the disciplinary code pertaining to the Civil Service.”
“Yes, Mr Brimstone's path at that point was, yes, promotion into the Office of the First Minister, yet there was a report in the Department of Finance recommending a formal disciplinary investigation, which his Minister was able to overrule. That should not happen. If a special adviser, as a civil servant, deserves to be disciplined, he should be disciplined. New Decade, New Approach simply leaves it in the hands of the Minister. That is not, I suggest, good enough.”
“I think that clause 1(2) is important. <BR /> <BR />Clause 1(3) takes us to the issue of discipline. My proposition here is quite a simple one. If a special adviser is a civil servant, with all the benefits and privileges of being a civil servant, why should he not be subject to the discipline of the Civil Service? I remind you of a situation during the Red Sky investigation, which emerged through the work of the Committee for Social Development. Mr Brimstone, because of what had been going on, had been investigated independently by civil servants in the Department of Finance, who recommended that he should be disciplined. The Minister of the day simply said no, he quashed it and would not allow it to happen. He left his spad beyond discipline.”
“The Member said it, not me, but he might well be right. He said that with feeling and maybe a little experience.”
“Timothy Cairns gave that evidence in regard to Timothy Johnson, and Timothy Johnson eventually changed his evidence to admit that there was a hierarchy. The point was adopted and seen by Lord Justice Coghlin: if a special adviser is a special adviser to a Minister — yes, their duty is to the whole Executive — then by creating a hierarchy of spads, their loyalty transfers to the top of the pile in respect of the hierarchy of spads. I think that that was the evidence. Mr Cairns, for example, felt greater deference and need to accord with the wills of Mr Johnson than maybe he did with his Minister. It is wrong to have a hierarchy of spads, other than within the Executive Office, where there is more than one. Clause 1(2) seeks to restrict any hierarchy of spads to the Executive Office.”
“This has been raised with me: might that be a deterrent to whistle-blowers? I do not think that it would be, but I am more than open to an amendment that would make that abundantly clear. I am also open to an amendment that would import here, as in clause 9, the reasonable excuse defence. Those are some of the practical things. We do not need to wait a long time on them; we just need to recognise that putting them in a code is not enough. They need to be in legislation, and, by putting them in legislation, we meet public expectation and declare that we are serious about this business. <BR /> <BR />Let me take you back to clauses 1 to 5 very quickly. Clause 1(2) is a response to Mr McCormick's evidence to the inquiry. He perceived, in regard to the DUP, that there was a rank structure of spads.”
“Privileged legal documents were given to Gareth Robinson. Why should that not be a criminal offence? There was the evidence that Timothy Johnston got the list of recipients of RHI via Robinson from McCormick. Of course, there are findings relating to this: findings 179 and 185 and recommendation 41. I say that we should make the unauthorised disclosure of such information a criminal offence as a deterrent so that it does not happen. <BR /> <BR />Spads are already subject to the Official Secrets Act, but, in reality, the Official Secrets Act deals with high-level issues pertaining to national security. It seems to me that, for the sort of thing that was exposed in the RHI inquiry, there needs to be a new criminal offence as an active deterrent and as a demonstration that such a thing will not be tolerated.”
“Interestingly enough, New Decade, New Approach talks about addressing the issue of a register of interests, but where it falls down is that it does not require it to be published. It simply requires it to be formed. If we are in the business of openness and transparency, just as the MLAs' register of interests is declared, that of a special adviser, and, indeed, a Minister, should be published. That is what clause 10 is all about. <BR /> <BR />Clause 11 brings us to the second new criminal offence: the offence of unauthorised disclosure. Examples are multiple, such as Dr Crawford to his family, information to a brother-in-law, and all of that, and confidential information to Gareth Robinson. Remember the evidence about that, Members? There was confidential information given to Gareth Robinson for another individual.”
“You think of John Robinson, who had family members in the RHI scheme but was the spad in the Department for the Economy, which was administering it. You think of Mr Brimstone, who was a beneficiary of the scheme but who never recorded anything in a register of interests. You think of the evidence about Dr Crawford removing the reference in a document to the poultry industry being a cause of the spike. On a more trivial level, you think of Mr Bell and his big turkey. <BR /> <BR />Findings 310 and 212 and recommendation 40 of the RHI inquiry report all refer to the requirement for a register of interests. The system that I have suggested is that the register of interests should be held in the Department of Finance and that it should be published.”
“Yes, quite so. Lord Justice Coghlin made that point in passing at one stage. Indeed, it might be a suitable amendment to clause 9 to impose such an obligation on someone in circumstances where they have used unofficial facilities, so that it is all regularised. Again, it seems to me that these are pretty self-evident things that need to be addressed and should be addressed. <BR /> <BR />Clause 10 is about the register of interests. It is important that public servants, and civil servants who are special advisers, need to be under a statutory obligation to make a declaration of interest. Until now, they effectively have not been. You think of the links that Dr Crawford patently had, through family, with Moy Park.”
“However, I recognise that there can be unforeseen circumstances, situations in extremis, where someone does not have immediate access to the official systems and has to use their own phone, private email or whatever; fair enough. That is why I provide within this a defence of "reasonable excuse" if anyone is charged. Of course, to be charged with any criminal offence, it has to be in the public interest. It is pretty unimaginable that, if someone used a non-official facility in a situation in extremis, it would ever pass the public interest test to prosecute them.”
“That brings me to the use of official systems. The RHI inquiry was littered with evidence of people consciously not using the official email and electronic systems. Why? I would say that it was because they wanted to hide matters. You will recall the evidence of Minister Bell. Though he said that he used only his departmental emails, in fact, the evidence turned out to be that he used only his Hotmail account; Dr Crawford likewise. Mr McCormick gave evidence about it being expedient to do that. I direct you to Lord Justice Coghlin's finding 204 and recommendation 41 that electronic means of an official nature should be that which is used. I want to make the non-use of official systems a criminal offence so as to create a real deterrent.”
“Yes, that will happen but that is why clause 7 is there. You then log that fact — "I had a conversation last night at a dinner. It was about Moy Park or whatever" — so that there is a record. Clauses 6, 7 and 8 complement each other in that regard.”
“I remind you that the evidence was that, the Monday after that meeting, Moy Park started to push for new applications before closure; that is in the evidence. We know that there was then a meeting in Brazil between the leaders of Moy Park and Mrs Foster, Dr Crawford and Alastair Hamilton, the CEO of Invest NI. They were all on a trade-type mission to Brazil. They had civil servants with them, but the evidence to the inquiry was that, consciously, the meeting was held without civil servants. Why? Why should the House accept that? I say that it should not, and that is why a clause such as clause 8 is necessary. Some might say — and it has been said to me — "You cannot account for every single incident when, as a Minister, you bump into somebody and they say, 'Can I have a word with you? I want to raise this or that' and they raise it".”
“I will give Members a couple of glaring examples where that did not happen. I have mentioned the then Minister Storey's meeting with Moy Park.”
“I will give Members one or two examples. The House may recall the evidence that a former Finance Minister, Mr Storey, held a meeting with Moy Park along with Dr Crawford, with no civil servants present and no notes kept. That is exactly the sort of item for which a log should be made if there was no note — "Today we met with". There has to be a trail of such things. Indeed, we also know that there were multiple meetings between Dr Crawford and Moy Park, none of them logged whatsoever. That is just not good enough. It does not speak to good and accountable government. It is something that needs to be changed. <BR /> <BR />That takes me to clause 8, which is about the presence of civil servants. They:”
“<BR /> <BR />Clause 7, then, requires Ministers and special advisers to:”
“<BR /> <BR />It is quite clear — the findings of Lord Justice Coghlin are there, and recommendations 26 and 27 make it plain — that there should be notes. There are eight separate findings in Coghlin's report that there was no keeping of notes when there should have been, hence recommendations 26 and 27. I say to the House that, codes in the past having been breached, it is not enough. We need to move to a statutory provision requiring the keeping of minutes. The keeping of minutes is a protection for everyone, not least for the civil servants. Indeed, one of the things that is striking about the inquiry report and the evidence is that, more often than not, the civil servants did not have answers that might well have been there had notes been kept. It is a protection for anyone.”
“Now, I remind Members that Dr Crawford told the inquiry that, in seven years in DETI, he had never seen minutes of a meeting involving a Minister. That is astounding. In fact, Members will recall that the evidence was that the Minister and her spad communicated by Post-its, which were then readily disposable — politics by Post-its. Members will recall that Mrs Hepper told the inquiry that no records were kept about the whistle-blower. Mr Sterling told the inquiry that there was a conscious decision not to record, for fear of FOI requests. Mr Brimstone told the inquiry that that was not the way they worked. Mr Ó Muilleoir said that there were no minutes of the important meetings that he had with Simon Hamilton about the business case — but he did, of course, email Padraic Wilson.”
“Not one Minister has been prepared to answer those questions. They have all taken refuge in saying that they made appointments in accordance with the existing code. That was not my question. The question was this: how many were in the candidate pool, and did they keep a note of that? They failed to answer. Even on the openness and transparency business, that is a failing. Codes are not enough. Matters need to be put in legislation because only legislation gives binding effect. <BR /> <BR />Let me move to some of the Bill's clauses. Clause 6, of course, is that which requires the records of meetings by the Civil Service. It states that:”
“It was quite clear that Lord Justice Coghlin was aghast that when the codes, which did exist, did require a pool of candidates to be considered and did require a record of that to be kept, were just ignored, it created the circumstances of which he speaks. <BR /> <BR />Yet, instead of strengthening that, we now have a situation where that code has been weakened; stripped out of it is the requirement for candidate pools, and everything else. If the Bill proceeds, I will, at a further stage, seek to strengthen — actually strengthen — the code of appointments, not weaken it in the manner in which that has been done. <BR /> <BR />That caused me to ask a series of questions for written answer of the Ministers: how many were in the candidate pool that they considered? Did they keep a note or record?”
“It goes on, in finding 308, to state that:”
“If you look at some of the findings in respect of that, findings 305 to 307, you will be struck by how critical he was of steps that were taken in that regard. Findings 305 to 307 state that:”
“<BR /> <BR />Of course, we are in the bizarre situation that, although 'New Decade, New Approach' promised that existing codes would be strengthened, in fact, when it came to the code on the appointment of special advisers, they were significantly weakened. The old code required Ministers, in making their choice, to have a pool of candidates from which they made that choice. The old code required that they should keep a written record of how and why they made that choice. The Minister of Finance came along and stripped all that out of the code of appointment. How was that strengthening the code? <BR /> <BR />Of course, that is exactly an issue that was raised by Lord Justice Coghlin.”
“<BR /> <BR />On the point of how easily codes are made and unmade, we saw how, overnight, the previous First Minister, along with the Finance Minister of the day, simply changed the pay bands in the codes in respect of special advisers and boosted them from the £70,000s to £92,000 a year. A code can be made and unmade as easily as that. I do not think that that is a healthy position to be in. <BR /> <BR />Little wonder then, I suggest, that, when the Minister published updates on his codes of conduct and codes of appointment, the editorial in the Belfast 'News Letter' had no hesitation in saying that codes are not enough. <BR /> <BR />John Manley said something similar in 'The Irish News'. Suzanne Breen said something similar in the 'Belfast Telegraph'. All of them are respected political analysts and journalists.”
“They must not disclose information that is held in confidence. <BR /> <BR />So, we already had provisions in codes, but what worth were they when it came to some of the evidence in regard to RHI? It is quite clear from that evidence that special advisers, or one in particular, despite the protections of the code, was, nonetheless, doing the very thing that was prohibited. That makes the point that a code is fine but is not enough. That is why I argue that we need to put all those things into statutory form, so that they have, in the words of Lord Bingham, "binding effect" and so that to defy them is to break the law. We may have thought a few years ago that you would not need to reach that position, but I think that it is quite clear that we need to get to that position.”
“That is a truism. There it is. A code does not have the binding effect that a statute has. <BR /> <BR />Perhaps the most compelling argument for why these matters should not be left to codes is that codes already, in the experience of this House, have proved insufficient. The old code, for example, on special advisers, specified:”
“I have heard it asked, when I appeared before some of the Committees, "Can we not handle all this through codes? Do we not have codes of conduct and a ministerial code? We have a code of conduct for special advisers. Is all that not enough?". The answer, in querying whether that is enough, is to recognise that codes are exactly that: they are just codes. They can be unmade as quickly as they are made. Indeed, there was significant legal action across the water about a code of practice that was made by the Health Secretary under the Mental Health Act. That case went all the way to the House of Lords, and Lord Bingham, who is noted for his contributions on public law jurisprudence, had a very concise riposte on the status and value of codes. He said:”
“None of that requires to be ruminated on by the Executive. That all speaks for itself. Clauses 6 to 11 of the Bill, which I will come to shortly, are all crisp, almost self-contained issues, each of which is crying out for action.”
“Thank you. Well, the public may well observe the studied disinterest in making things better in regard to these things. <BR /> <BR />There is a public expectation that action will be taken as swiftly as it can be taken on issues that can be addressed — such basic things as making sure in law that there is a requirement for minutes to be kept of meetings. It would astound anyone from outside Northern Ireland who starts to read the Coghlin report to see such basic gaps in how this place has been administered, that there has been a lack of taking minutes of meetings. Equally, there is nothing to stop us — indeed, there is everything to speed us — taking action against the leaking of confidential information and taking action in favour of statutory requirements to register interests.”
“However, there are other issues that can be actioned now; indeed, I believe that there is a public expectation, having listened to the evidence, that those issues will be addressed. We have had lots of words today about the Coghlin report. Now is an opportunity to put some of those words into action.”
“For me, the catalyst in drafting and moving the Bill undoubtedly was much of the evidence that was laid before the RHI inquiry. Even before we had a report, it was abundantly clear that there were many issues — some of them compellingly basic — that needed to be addressed by the House. That is what the Bill would do. <BR /> <BR />I make it plain that I am not in the business of usurping the role of the Executive in what they need to do in consequence of the Coghlin report. The greater number of recommendations — matters touching on the future of the Civil Service, on the management of public money, on all those things — patently fall within the ambit of and require consideration by the Executive.”
“Will the Minister look afresh at the efficiency and suitability of his Department's hardship relief scheme for rates? He will be aware that, in a recent answer to me, he indicated that, in this current year, there have been only nine successful applications to it. In the past five years, the success rate has been about 25%. Does that not suggest, having regard to the hardship that businesses are passing through, that that scheme is not fit for purpose and needs to be revisited and made more usable by those who are in hardship?”