Alban Maginness
North Belfast · Social Democratic and Labour Party · Northern Ireland
“I look at the Justice Committee, which was mentioned yesterday during the Justice Bill debate, and see it as an exemplar of how people can work together, despite their political differences, and create a political consensus in order to make worthwhile changes in the justice system.”
“I hope that, as I leave this place and a new mandate starts, I can relinquish the function of alchemist and that we will have a new dispensation in which we can, in fact, create that reconciliation, because the Assembly was created as a forum for reconciliation.”
“— people used to ask me what I did. I said that I was a fireman — a political fireman who put out political fires. That is what we did for the first five years or so: we put out political fires. I have become redundant, or semi-redundant, in relation to putting out political fires.”
“There is, indeed, a dark shadow over the Assembly as we prepare for the elections. The attack on Adrian Ismay was not just an attack on a prison officer; it was an attack on the Assembly, it was an attack on the political process and it was an attack on non-violence and peaceful politics.”
“I thank the representative of the Commission for her kind words. I have enjoyed working with Karen McKevitt and, indeed, with the Commission. In the programme, will there be an emphasis on dealing with legislation, particularly draft legislation? It is a process that needs considerable skill and knowledge. Is that available?”
“On this legislation, he helped to put forcefully the views of the Committee to the Assembly, the Minister and the Department of Justice, and I compliment him on his work. It has been very positive.”
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“The Bill is entitled "Environmental Better Regulation Bill", and the aim is to get better regulation but, at the same time, protect the environment so that one does not throw away environmental protection but reduces the burden on small and big businesses in this jurisdiction so that they can carry out their work properly, efficiently and effectively while protecting the environment. <BR /> <BR />Most of the amendments clarify the language. Amendment No 1 to clause 3 seeks to clarify whom the Department must consult when making regulations under clause 2, and amendment No 2 creates a new clause after clause 3. The new clause creates an onus on regulations relating to protecting and improving the environment.”
“This is a good example of a Committee working with the Minister and the Department of the Environment to improve a Bill. The Minister has listened carefully to the views expressed by the Committee. Those have been outlined succinctly and well by the Chair of the Committee, Ms Lo. It is important that we recognise that the Committee has worked constructively with the Minister and that he has responded constructively and tabled amendments that will improve the Bill. It is a win-win for everybody.”
“I thank the Minister for his very comprehensive and detailed report to the Assembly. The trilateral cross-border ministerial meeting must be a very significant meeting indeed. Does the Minister envisage that meeting being repeated? Will the task force that was established as a result of the Stormont House negotiations be given teeth, and will it be able to attack criminality between North and South? Will the Minister reassure the House about that?”
“I thank the Minister for a detailed reply, and I agree with much of what he said. The failure in the recent talks to agree on the HIU leaves a terrible gap in dealing with the past. Is the Minister telling the House that there is no additional funding coming to the PSNI to deal with legacy issues either from the Department or through it from the British Government? Is that the position, or can some of the moneys that were, at least, notionally committed by the British Government during the talks come forward to assist the PSNI, at least in the interim period?”
“<BR /> <BR />The insurance companies really need to start responding to what we are doing as an Assembly. The message from Cathal Boylan and the Committee Chair was very strong and should be heard by them. I do not accept the rather cold point, which I know was well intended by Trevor Lunn, that they simply respond to the level of accidents or whatever. They have to take into consideration the reasonable measures that we have taken here and the reasonable measures that the Minister has quite imaginatively introduced to constructively bring about change. The insurance companies would do well to listen to us on the Floor of the House today. I hope that the Minister can give a strong message to the insurance companies that we expect a serious response from them.”
“When I say that they should respond in kind, I mean that they should respond by reducing the premiums, particularly for young people. It is a serious burden on families and young people who are just commencing work or whatever. Therefore, the insurance companies should respond. We are not introducing these measures for fun, as it were. We are introducing them because people like the insurance companies said that they should be introduced. I am old enough to recall that, years ago, the insurance companies said to the legal profession — I was a legal practitioner dealing with road traffic accidents and so forth — "Do away with juries. Juries bring in big awards, and it is too onerous for us as insurance companies. If you do that, you will see a difference". Well, we did not see a difference.”
“A new discipline can emerge, particularly in relation to young drivers. The restriction, although it may perhaps seem more light touch than heavy touch, creates the sense among young drivers that they have to be extra careful. That is part of the learning process. I welcome this and think that it is important. The points raised about young rural drivers are very important, as are those about not inconveniencing families and, in particular, those going to recreational activities, church activities, work or other useful activities at night-time. <BR /> <BR />I welcome this, but I want to reiterate what the Committee Chair and Cathal Boylan said about the insurance companies. They should take note of these changes and respond in kind.”
“That is important, and it shows how constructively a Committee can work with a Minister who is anxious to respond reasonably to the reasonable demands of colleagues from other parties on the Committee. The compromise is proportionate and reasonable and will contribute to road safety, where there is clearly an issue. <BR /> <BR />We will create a new discipline. The fact that people are forbidden to use mobile phones creates a new discipline. It makes people more responsible and more road safety wise, in the same way as you now think it natural to put on a seat belt when you get into a car. When seat belts were introduced many years ago, people ignored them or said, "We will never wear these. These are a restriction on our freedom." Gradually, the law has taken root and a new discipline has emerged.”
“Those are memorable and shocking statistics that we as legislators have to take into consideration and that the Department and the Minister have, quite properly, taken into consideration. <BR /> <BR />Throughout the Bill, the Minister constructed a new approach that reflects the graduated driving learning experience in other jurisdictions and will, hopefully, create a new driving discipline in our society. It will take some time for that to bed in, but, hopefully, it will. <BR /> <BR />Amendment No 1 is the product of common sense and good lobbying by the Committee and its members. Sandra Overend, in particular, brought it to the attention of the Committee and the Minister and, very usefully, arrived at a compromise that is acceptable across the House.”
“It is good to see Cathal Boylan back in the driving seat, given his long period out due to illness. It is great to see him back and contributing to the debate and to the Committee, as he has done over eight long years. I have never experienced the sort of pain or suffering that Cathal Boylan's family suffered during the summer. He has very eloquently and poignantly presented the dreadful effect that traffic accidents can have on any family. <BR /> <BR />When young people go out, you worry all the time because of the obvious dangers. Young people are three times more likely to be killed on our roads and four times more likely to be responsible for road traffic deaths.”
“I thank the Minister for his answers. Is there a health dimension to the all-Ireland research on fracking, and, if not, does he believe that one could usefully be added?”
“I thank the Minister for his answer. Quite clearly, he did not give me a definitive yes or no. His answer was about trying to inform the electorate of the issues, and I welcome that. I inform him that I would vote yes. Further to that, does he foresee, at any stage, any merit in Northern Ireland being outside the European Union?”
“I thank the Minister for a very interesting, clear and instructive statement. Has she in mind any specific policy for early years intervention? I note that she mentions that in her statement. It strikes me that it will be a very important step in trying to equalise things, if that can ever be achieved for those suffering from profound deafness.”
“I agree entirely with that. It is a very important body that may have increasing importance given the political developments in Scotland and the UK generally. The issue that really struck me was refugees and the experiences of all the Administrations in relation to them. Did the First Minister learn anything of value in relation to refugees, particularly Syrian refugees, that can be applied here? Further to that point, if you will indulge me, Mr Principal Deputy Speaker, there is an anti-refugee demonstration called for Saturday. I ask the First Minister to give his view on whether that rally should take place.”
“I thank the First Minister for his statement. In it, he points out the "unique and important role" of the BIC:”
“We must build a very firm consensus. I believe that the Environment Committee has done good work and will continue to do so, showing leadership to the political community here.”
“I support the Minister in his laudatory aim of bringing climate change legislation to the Executive and to the Chamber. I hope that that can make a difference — it must make a difference. The consultation process must continue, but we must also see an emergence of political consensus. That will not happen in this mandate, but it can be realised in the next one. It is not a pipe dream; it is right and proper. We must cooperate with colleagues in the rest of the UK and Ireland because it affects our geography. It affects our two islands so intimately and is so important that we have common measures to deal with all the problems that we are faced with and will be faced with in the near future. <BR /> <BR />I look forward to further political developments on these issues. It is important that we support the Minister and other colleagues.”
“Unfortunately, we do not have the political consensus in this Chamber, the Executive and society at large to bring forward climate change legislation. However, we have to do it. We cannot squander time in speculating whether there are ill consequences as a result of climate change. Climate change is here. It is a scientific fact, proven in the international community. We have to wake up to the realities of that and take action.”
“The Member reinforces the point that I was perhaps inadequately trying to make. Certainly, our whole world will be affected. We are custodians of the earth. We do not own the earth. We have to hand that earth over to other generations, so we must look after what we have been given. <BR /> <BR />I commend the Minister for going to Paris. Some may say, "What's the point of a Minister from here going to Paris? Sure, he'll have no effect." It is important for us to send out a strong message that we are interested and concerned, that we are part of the UK and part of Ireland, we are part of Europe and part of the world, and we want to make our contribution. It is very important that the Minister does that. <BR /> <BR />He has a strong and very clear belief that there should be climate change legislation.”
“That reflects very much the view of other churchmen, for example Pope Francis, who has put the environment at the very top of the agenda in dealing with not simply an environmental issue but, as Mr Agnew said, an issue of social justice. This is not just a scientific issue. This is an issue of social justice as well as a political issue because, if our climate deteriorates and our world overheats, as it were, the consequences for the poorer people in the world will be disproportionately devastating. Of course, we in the West will suffer as well, as we are suffering at the moment because of the effects of industrialisation since the middle of the 19th century. We have got to address this issue and do it locally.”
“I thank the Chairperson of the Environment Committee for bringing this motion to the House. Obviously, it is a timely motion. One that will be helpful to the whole House, the Executive, which will be represented in Paris by the Minister, and in dealing with climate change as it relates to our situation locally. <BR /> <BR />There were rallies yesterday throughout the world to highlight this issue, including one in Belfast. Canon Michael Parker of St Anne's Cathedral, Belfast, said that there was a:”
“However, in certain circumstances, lawyers should be involved if people want them. I ask the Chair of the Committee for OFMDFM to confirm whether there was such evidence to suggest that that particular power should be remedied.”
“I thank the Member for giving way. In relation to the point that you raised about representation, was there any evidence given to the Committee to suggest that there was any element of abuse of representation during the course of the investigations by the ombudsman, that it had produced a situation where the investigations were over-legalised, if I can use that term, or that there were some problems arising out of the legal representation being granted to any person or body? <BR /> <BR />I am unaware of such evidence being presented to the Ad Hoc Committee and, in the written representations made by the ombudsman, that point was not made. The ombudsman was saying, "This is an inquisitorial process. It's much better without lawyers." Effectively, that is what he was saying, and I agree with him.”
“I just reiterate the point that the amendment does not imply in any way that the cost or the burden of such representation should be borne by the NIPSO. It is clear from the wording that you cannot infer that. It would certainly be very strange in the circumstances of somebody requesting representation saying, "And, by the way, you will pay for this as well". It is just not something that can be imported into that amendment. It is clear from the points that have been made in the debate that that was never the intention.”
“It is taken for granted that, if anybody has requested representation and been granted it, the cost of that representation is borne by the person who has requested it. There has never been any discussion about the NIPSO paying for representation for anybody whom it may grant representation to, even under the present draft Bill, because it is naturally assumed that, if you are making such representations and you are granted that, you pay for it yourself. I cannot see how one can in any way infer that from the simple meaning of the amendment that has been tabled.”
“We cannot, however, when making law in this House, simply rely on the goodwill or experience of the ombudsman to reassure ourselves that article 6 rights and the general right to representation are being properly afforded to individuals in difficult circumstances. It is right and proper that this amendment has been brought to rectify the situation by ensuring that representation will be there on request, rather than at the discretion of the ombudsman. I believe that there are strong arguments for the change. Indeed, the merits of the case being put forward are irresistible. The House should not support what is currently in clause 30(7)(b), but should prefer the amendment. I will leave it there.”
“However, anybody under investigation and subject to a potentially adverse impact on his or her professional life and, indeed, livelihood, should be afforded legal representation where they want it, at their own expense, of course. One does not demand that the state, or anybody else, cover such expenditure. <BR /> <BR />It engages article 6 rights under the European Convention: the right to a fair trial. It is right and proper that the Assembly is cognisant of that. I also note, of course, that the present ombudsman has given very useful and helpful comments in relation to all this legislation and, in particular, the issue arising out of discretionary representation. The ombudsman says that he will carefully reflect on that representation and will exercise his function and discretion reasonably, as one would expect.”
“It does not seem to me that there has been any abuse of that representation hitherto; if there has been, it has certainly not been highlighted. There needs to be a real and serious explanation for this departure. That is the reason why Mr Lunn and I brought forward this amendment: it allows a person who requests representation, in certain circumstances, to be granted it. It seems to me that this is supported, and the Chair of the Ad Hoc Committee mentioned this in his remarks to the Chamber, by the Bar Council and also by the Law Society, as I understand. It is also supported by organisations such as the BMA. <BR /> <BR />It may seem of little consequence to most Members whether representation is discretionary or otherwise.”
“It is plain that the right of legal or other representation, such as by a trades union or by a professional organisation, is given under article 12 of the 1996 Order. <BR /> <BR />Clause 30(7) allows representation to take place at the discretion of the ombudsman. If the Bill goes through in its present form, with subsection 7, any representation will be at the discretion of the ombudsman. That is a departure from the current position where, on request to the ombudsman, a person against whom a complaint has been laid can ask, in certain circumstances, for representation. That, I believe, is right and proper. A person should have the opportunity to have legal or professional representation if they want it. I do not understand why there is a departure from the 1996 Order.”
“The thrust of my comments relates to the amendment to clause 30, which deals with potential representation for those subject to investigation. Hitherto, under the Commissioner for Complaints (Northern Ireland) Order 1996, legal and other representation was available in certain circumstances under article 12(7):”
“I thank the Member for giving way. Mr Nesbitt raised a point about other jurisdictions that have the power to make a special report, but those jurisdictions do not have the power that currently resides with the ombudsman in our legislation. If the person or body complained about does not settle, the complainant can go to the County Court. No other jurisdiction has that power, and that is a very good reason to make us an exception.”
“We know that we are up against it; nonetheless, we think that the merits of the amendment are on our side. We hope that the Assembly will reasonably and rationally consider what we say, because we believe that the amendment is important in protecting individual practitioners. We are not protecting the big trusts and big public organisations. They are not protected, but the individual should be protected. Thank you.”
“I simply say to the Assembly that there are not sufficient safeguards here to protect the individual, and we risk the creation of an adverse impact on somebody's professional or reputational standing. I do not think that that is good enough for us as an Assembly. We should be good legislators; we should scrutinise things carefully, and we should be protective. I am very jealous and protective of the rights of complainants. Their rights should be protected. However, I do not see how this provision advances the rights of any complainant when they have an alternative and sufficient remedy — a remedy that does not exist in any other jurisdiction within these islands. That is why I and Mr Lunn, who also served on the Ad Hoc Committee, have brought this amendment.”
“To be fair to the current ombudsman and his office, they have said that the special reports could be anonymised and that that would protect the identify of the individual involved. We live in a very, very small and close-knit society, and it does not take very much for an individual to be clearly identified, even if the name or names of some individuals are not disclosed. So, despite anonymisation, there is still a problem. I accept the bona fides of the current ombudsman when he says that he assumes that his office would continue to view this in the same manner. I have no doubt about that; but he cannot vouch for somebody else who will be his successor. <BR /> <BR />As Lord Morrow pointed out, this is, in effect, coercive, or could be coercive, but not in all circumstances; the potential is there. We have to protect against that.”
“If there were adequate safeguards in the Bill, there might be no need to remove this, but that is an additional point.”
“Articles 6 and 8 of the European Convention are involved in this. Article 6, the right to a fair trial, is engaged. It is not a trial in the sense that you go to court and are in front of a judge and jury, and so forth; it is a trial in the sense that your actions are being arbitrated upon. Therefore, it is very important, when we give these sorts of powers, that we look at them very carefully and seek to protect article 6 rights, as well as article 8 rights, the right to a private life, a family and so forth. All those things need to be protected. It is insufficient for us, as an Assembly, to say, "Well, we'll leave it up to somebody else to do this". That is, effectively, what we are doing. There is nothing in the Bill, in relation to this provision, that provides adequate safeguards.”
“I accept the point that you are making. The Bill is an attempt to do that. All that I am saying is that I think that, in this instance, we are going too far in relation to special reports. As far as the person going to the County Court is concerned, they go, as far as I can see, at no risk whatsoever in legal terms. It may have a cost risk, but I cannot see how any order of costs would be given against the person because their case will be successful in any event. So I do not really regard that as issue. <BR /> <BR />Let us go to the point that Mr Nesbitt made in his submission as Chair of the OFMDFM Committee.”
“The evidence of the ombudsman is sufficient to establish the claim in the County Court. You are effectively talking about a monetary element that the court can determine so that it is just and right in all circumstances. <BR /> <BR />The point that I make is that the power that we have here as far as the County Court is concerned is unique and is also very easy to access. The County Court is not like the High Court; you just go to the County Court, and the hearing takes place. It is a fairly straightforward process. On the point that I made about article 19, it seems to me that, under clause 46, this is in fact a new power. I do not understand why this new power is being introduced.”
“Yes, injustice is the first leg of this aspect; the second leg is that that injustice has not been adequately remedied. I go back to the original point that a person can go to court and receive the proper relief that that person deserves in the court, whether it be money, an apology or whatever the terms that are concerned. That is an important feature. It is a unique feature of the ombudsman's office here in Northern Ireland; that power does not exist elsewhere. That power is there for a specific reason. If a settlement does not come into being, if it is not accepted by the person complained about, the complainant can go to the County Court and get a remedy. Whenever the person goes to the County Court, you do not have to rehearse all the evidence that has been derived in the case.”
“Yes, and I take the latter point that you made. With regard to the current ombudsman, there is no suggestion that there would be anything other than a proper and thorough report that was fairly and properly carried out. I pay tribute to the current holder of the office because he has carried out a very good job that we should all applaud. However, we are making law. We are not giving a character reference for any individual or body. We have to make law that meets the concerns of everybody, and we have to strike a balance. As I understand it, article 19 allows for a report to the Assembly under the 1996 Order. This, however, is a new element: it reflects article 19, but it is a new element and means a special report. I will come to that in a minute. <BR /> <BR />I want to go back to the point that you made about injustice.”
“I cannot understand the sense of that paragraph.”
“In circumstances where the person complained against rejects that and says, "No. I am not going to do that, because I do not think that I have been found to be reprehensible", the complainant can go to the County Court. If I am wrong about that, let someone tell me. Previously, individual medical practitioners could not be brought to the County Court, but I believe that, under this Bill, they can be. If that is the case, where is the lack of remedy in relation to somebody whose complaint has been upheld? Why can that person not go to the County Court and get the necessary remedy? My point is that clause 46(2)(b) states:”
“the ombudsman may lay a special report before the Assembly. <BR /> <BR />I want to look at that particular subclause because, given the power that the Ombudsman's Office has, I am not convinced that there could be such an injustice that will not be adequately remedied. From reading the Bill, I understand that if a complaint is made against an individual — I refer particularly to medical practitioners — and a settlement is proposed by the ombudsman, who also makes certain recommendations, the person complained against does not have to accept those recommendations. However, in normal circumstances, the person complained about does accept the recommendations and a settlement is entered into — normally an apology, and maybe a sum of money.”
“— I have no problem with the one under section 8 —”
“In other words, the person who is reported could well suffer quite significant reputational or professional damage. That is particularly so if a person is living in a small community such as a village or a small town. The Assembly must consider that very carefully today, because we must realise what power we are giving the ombudsman. <BR /> <BR />I know that the provision that we are looking at today, "Reports to the Assembly", is framed differently. Clause 46(2) states:”
“That may or may not include a special report. However, I do not believe that that particular article makes provision for a special report. We all accept that the annual report is the ordinary annual report that any public body would make to the Assembly. However, a special report to the Assembly is, I suppose, in common parlance, a name or shame type of report. In other words, a body or an individual, which is my concern here, may be named or shamed in that report. I believe that to be a very sensitive function, if it is to be carried out at all, for any ombudsman, and something that we have to look at closely in the round and scrutinise. We cannot just give blanket permission to an ombudsman to make a special report that could — as the Chair of the Ad Hoc Committee very fairly pointed out — have an adverse reputational impact.”
“I will deal specifically with amendment No 139, which Members who spoke previously have focused on. First, under article 19 of the Commissioner for Complaints (Northern Ireland) Order 1996, there is a provision in relation to reports to the Assembly. The Chair of the Ad Hoc Committee referred to that. It states:”
“I also welcome the fact that the Minister has maintained parity by bringing the Bill through the Assembly by way of accelerated passage. The SDLP supports the Bill. <BR /> <BR />In conclusion, the Bill seeks to introduce new flexibilities to the way in which savers can access their defined contribution pots, with the stated aim of giving people more choice about how they fund their retirement. We believe that to be a right and proper opportunity for people to deal with money that they have invested for themselves, and they should be given more autonomy on that. With that, I conclude and reiterate that we support the Bill.”
“It aims to establish three mutually exclusive definitions for scheme types defined as a pension promise. Those can be defined benefit schemes, shared risk schemes or defined contribution schemes. Part 2 defines the concept of collective benefits and makes provision for regulation-making powers in relation to them. Part 3 mainly deals with amendments to existing legislation, mostly as a consequence of the change to scheme definitions. <BR /> <BR />The SDLP had some concerns about the Bill, which we mentioned during the Second Stage debate. Those included ensuring that we adequately safeguard the members' interests, ensuring that there is sound independent financial advice and ensuring a proper regulatory framework. We welcome the Minister's previous comments on the issues that I have just outlined.”
“Pension reform has been ongoing, and I believe that there will be further changes over the coming years, in the public sector and the private sector — perhaps even as soon as tomorrow, as the Minister said. <BR /> <BR />I will quickly mention some of the main aspects of the Bill. The main thrust of the Bill is to provide people with more flexibility and choice, and that should be seen as a good thing. Of course, we all welcome that. As the Minister said, and I take his words very seriously, there should be proportionate regulation. I welcome that, and I hope that that will be the outcome of the Bill and that the regulation will be proportionate. <BR /> <BR />Part 1 relates to the categories of pension schemes and contains provisions for a new framework in relation to categories of pension schemes.”