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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“I accept that, but I hope that in putting forward those amendments the Department and Minister are not attempting in some way to blunt the effect of the decision of the Assembly in relation to committal proceedings. The important issue is the interests of justice test. That is the abiding rule, or test, for the use of preliminary investigations. I hope that the amendments that the Minister brought forward will not undermine that in any way. I ask the Minister to reassure me on that at the conclusion of this part of the debate. <BR /> <BR />I accept that there is a necessity that the Magistrates' Courts rules be amended, consistent with the position that the Assembly has adopted.”
“Incidentally, it may also inform other pieces of legislation, because other Ministers will, of course, be bringing similar provisions in other Bills. This Bill could well act as a template for future legislation. <BR /> <BR />I move on to amendment Nos 2 and 3. The Minister has accepted the will of the House. I know that he does not agree with the position adopted by the House in relation to committal proceedings, but he has, quite properly, accepted that position and moved significant amendments, as he described them, in amendment Nos 2 and 3. <BR /> <BR />He quite rightly said that there was a requirement for textual amendments.”
“I suppose there is not an awful lot more to be added on this Bill. I congratulate the Minister on his acceptance of the substance of amendment No 1 and for bringing it to the Assembly. I think it is a good example of how a Committee can influence and reshape legislation and do so in a very constructive way with the Minister. I think that he quite properly acted on the advice and concerns that were expressed by the Committee. I think that congratulations are due to him for reacting in that constructive and very positive way.”
“I also think that legislators within this House should seriously examine every aspect of this so that we get it right from day one. <BR /> <BR />I do not want to go over the ground that the Minister very meticulously outlined. I agree in the main with what she said. I think that she is striking the right approach to compensation. I believe that we can look forward to a good piece of legislation that will enhance both branches of the legal profession and the confidence of the public that those professional people are carrying out their work properly and take complaints seriously. I think that that is very important within our society. <BR /> <BR />I will leave it there, and I look forward to further proceedings on the Bill. I give apologies on behalf of Dominic Bradley, who is unable to attend today for family reasons.”
“Professor Bain found that the professional bodies had a reasonably good record of self-regulation, but, despite that, he was insistent and recommended that there be greater transparency and oversight of the function. Thus we have the commissioner, who I believe will exercise a very important role. If the new system does not work, it will be subject to public scrutiny and to further scrutiny by the House and the Executive. I think it is important that that be noted, because if this system fails, we will have to look afresh to see how it can be improved. <BR /> <BR />However, I am fairly confident that this new system will receive the support of the public, as well as of the professions, and I think it is important that we encourage a close and critical examination of the new system by the public at large.”
“We are now addressing that aspect of the complaints system, and I think that it is very, very important to remember that. <BR /> <BR />The legal profession, whether it be barristers or solicitors, I believe, is supportive of the approach in the Bill. When the Committee comes to consider the Bill in detail, it is important that it is closely examined in relation to how that profession proposes to deal with the new system. I think it is important to have positive engagement with the legal petitioners on the Bill.”
“Nonetheless, one welcomes the fact that the Bill is before the House now and will be considered thoroughly in due course by the Finance and Personnel Committee. <BR /> <BR />It is important to establish the principle that complaints by the public against professional bodies should not be exclusively arbitrated or judged by that professional body. Whether it be complaints against solicitors or barristers, there should be a significant lay element involved in assessing and dealing with those complaints. The Bill requires a greater involvement of laypeople and greater participation in the process of analysing and dealing with complaints. That is to be welcomed. The idea of a profession simply policing itself is wrong in principle.”
“I think that that was an important contribution to the analysis of what needed to be done here, because, in his view, the approach that was taken in England and Wales was not the appropriate approach to be taken here. He specifically found that there was a very different legal system here in Northern Ireland, compared with that in England and Wales, so the Clementi-type solution was not suitable. <BR /> <BR />We are indebted to Professor Bain. His contribution to public life here has been very significant and, in relation to this piece of work, I think, very valuable. It is a pity that, although the report was compiled in 2006, it has taken nine years for the matter to get to the Assembly in its present form.”
“On behalf of the SDLP, I support the Bill. The Bill strikes a fair balance; I think that that is the important aspect of it. The Minister has described it as proportionate. I agree with the Minister in that regard. <BR /> <BR />The Bill, of course, finds its genesis in the report of Professor Bain, who did a thorough piece of work in relation to the legal profession, particularly legal complaints against professionals within both branches of legal services here in Northern Ireland. The report by Professor Bain was, I think, a very fair and balanced report, and one which recognised the differences between here and England and Wales.”
“Perhaps to cover up their own roles in that organisation.”
“Yes, there were other agents as well. <BR /> <BR />It is important, if we are going to get at the truth, that there is a truth. Mr Kelly has talked about Sinn Féin wanting the truth. Well, tell us the truth about those people who were in the IRA and acted in such a manner, carrying out murders, perhaps to cover up —”
“They are totally silent about his activities. Indeed, when he was revealed as an agent, they said that he was a republican in good standing. Is he still a republican in good standing?”
“I cannot — the value that should underpin any democracy, which is the rule of law. That is what is required, and that is why we support the legacy institutions under the Stormont House Agreement, but they do not go far enough in our opinion. They are only half of what Haass proposed. We believe that there should be a thorough process. <BR /> <BR />Let me say this to Ms Ruane and the other Sinn Féin Members: there is a blindness in what they say and in their view of what happened. What about Freddie Scappaticci? What happened to Caroline Moreland? What happened to Joe Mulhern? They were murdered by the IRA, by people acting within the IRA — acting, one would suggest, on behalf of a British agent. It was accepted that Mr Scappaticci was an agent, but what does Sinn Féin say about that? What does the IRA say? They turn a blind eye.”
“— in murder. That is unacceptable; unacceptable in a civilised democratic society. That is what we in the SDLP hold dear —”
“Thank you, Mr Speaker, I appreciate that. There is nothing wrong with the Sinn Féin motion, but there was plenty wrong with Ms Ruane's address to this Assembly. She abandoned any attempt to look at the truth. She abandoned any attempt to be objective. <BR /> <BR />It behoves us all in this Chamber to be objective about what happened. Yes, there was collusion — Stevens says there was; other reports have said there was; future reports will say there was — but the narrative that is put forward is of collusion only between loyalists and the British Army and the police. The reality is that there was collusion between agents in the republican movement and British intelligence and the RUC Special Branch. The same people who were involved in collusion were also involved in criminal activity —”
“I thank the Member for giving way. Quite rightly, he says that the issue has poisoned political discourse, but would a proper truth recovery process not liberate the political process and allow it to get better and be more constructive?”
“Just in relation to agents, of course there will be agents, but what we are talking about here is allowing those agents to commit criminal offences, and in particular murder, on a systematic basis. That is the problem, and that is what needs to be examined.”
“I thank the Member for giving way. Given the lack of balance that has been exhibited by Ms Ruane and, indeed, Mr Poots, and given the fact that we have so much information now that involves republicans and loyalists, British intelligence services and the RUC, is it now more necessary for there to be a firm and established process that establishes the balance of truth here in Northern Ireland and that we work towards that as soon as we can?”
“Will the Minister agree that the recent visit by Prince Charles to Saint Patrick's Church in Donegall Street was a recognition by Prince Charles that such an institution and such a building should be respected by all, including the loyal orders? Does he agree that people, not just those involved in parades but those who protest, should learn the lesson from the Prince that there should be mutual respect in our society?”
“I did not refuse. I was under time pressure, and I said that I would come back to you if I could get the opportunity.”
“On a point of order, Mr Speaker. My understanding is that there was to be one speaker from each party in this House in relation to this debate. We in the SDLP confined ourselves to one speaker, Sinn Féin confined itself to one speaker, the DUP confined itself to one speaker and the Chair of the Committee, yet the Alliance Party has broken that and put forward three speakers. I do not understand how such agreement was reached in order to minimise debate in the House and it has now been breached on two separate occasions.”
“It said that it had no regulation or control over the clinic.”
“I think that it is sad that a petition of concern has been applied here because the Assembly is the right body to determine this issue untrammelled. I think that we have been deprived of the right to determine that issue. I say once again that this is not an issue for or against abortion; this is an issue about control, regulation and supervision.”
“All I would say in conclusion is that, first, there is no human right to abortion. There is absolutely none in international law and certainly not any in European law. Anybody who says that there is is inaccurate and is simply wrong. The Attorney General gave the Justice Committee advice and said that the amendment was compatible with the convention. He said that the amendment was within the competence of the Assembly. The Human Rights Commission has chosen a different view. I respect that, but I believe that it is wrong. I think that it is better to prefer the advice in these circumstances of the independent law officer in relation to the governance of Northern Ireland. <BR /> <BR />I will conclude on that point, and I think that this amendment is worthy of support.”
“In fact, in the A, B and C v Ireland case, the Court dismissed the article 2 complaint that was brought by complainants in that case and said that those rights did not apply. If article 2 rights did not apply in the A, B and C v Ireland case, they surely do not apply in our case either.”
“That is the jurisprudence of the European Court. The Northern Ireland Human Rights Commission should go back and look at that and respect what the European Court is actually saying in relation to the issue. It is therefore right and proper for the Assembly to make its decision on abortion and the criminal law. I respect the Human Rights Commission, and it has a duty to advise the Assembly, but it is in error in relation to the law on abortion. Article 8 rights are not engaged in relation to our law, and you cannot apply the Polish decisions, which are based on article 8, to our situation. <BR /> <BR />Finally, the Northern Ireland Human Rights Commission says that article 2 rights are also engaged.”
“That is the basic position established by the European Court in our nearest neighbour and the nearest situation analogous to the law that exists here on abortion. <BR /> <BR />The court also considered the European-wide consensus in favour of greater access to abortion. The court did not consider:”
“<BR /> <BR />Further to that, if you look at A, B and C v Ireland case of 2010, the Grand Chamber, applying the margin of appreciation, rejected the argument — based on article 8 of the European Convention, which concerns the right to privacy — that Irish law needed to be revised so as not to criminalise those seeking an abortion on health or well-being grounds. The court found:”
“That comes from a Polish case — P and S v Poland, 2013 — which does not apply to our law in Northern Ireland. In Poland, there is a positive legislative provision in relation to abortion. Where there is a positive legislative provision that is made for lawful abortion and is applicable, those decisions do not apply to our law here, because our law is based on a different premise. Therefore, the Polish cases are not applicable. That is why the commission has got it wrong: it has got it wrong legally in the applicability of the law to our situation in Northern Ireland.”
“There is a fundamental misunderstanding in legal terms by the commission of the relevant convention jurisprudence. That is compounded in its assessment that the amendment would hinder the Northern Ireland Executive's:”
“I want to get on, and I know that my time is limited. If I can come back to you, I will. <BR /> <BR />The Northern Ireland Human Rights Commission has given evidence to the Committee. It is their duty to give evidence to the Committee, and I do not in any way query that. However, the advice that they have given is ill founded. Fundamental to the advice that they gave was the point that the amendment was incompatible with the European Convention on Human Rights and with the Assembly's competence: I reject that entirely.”
“I accept in the main the point that the Member makes. I am not certain whether everyone is saying that they want abortion on demand: some do not, some want a limited reform. I do not understand the proposition that you are pro-life but want abortion in certain circumstances. It is like saying that you are against capital punishment but you could have capital punishment for treason or something like that or the murder of a child. It just does not make sense. You are either —”
“In this amendment, you have that reflected, because it deals with an urgent situation. In some ways, the amendment, which has been criticised by people in the House and outside it, reflects that aspect of the 1967 Act. <BR /> <BR />Let me say this: there has been considerable opposition to the amendment, not just in this form today but in 2013, and the opposition to it was on the basis that there was not sufficient consultation in relation to the amendment. The amendment has been consulted on exhaustively in the Committee, there have been numerous articles in the press and on television and so forth and all sorts of organisations have given evidence to the Assembly through the Justice Committee. There has been an enormous public reaction to it, both for and against. The reason why a petition of concern —”
“The people who drafted that legislation envisaged that abortions would take place on national health premises, as indeed, this amendment does. I concede the point that, further to this legislation, there have been amendments in relation to the performance of abortions. However, subsection (4) goes on to say:”
“<BR /> <BR />Another interesting fact is this: if one looks at the original 1967 Abortion Act for Britain, one sees that, at section 1(3), it says as follows:”
“At the outset, I will say that the amendment should not be about whether you support or do not support abortion. Even if you support abortion or a wider range of abortion in Northern Ireland, you could quite easily support the amendment. The amendment is about regulation, supervision and control over a private commercial abortion clinic in Northern Ireland. The fact that the Marie Stopes clinic is, in fact, a private commercial concern should give rise to concern for all of us in the Chamber. When the RQIA gave its evidence to the Committee, it made it plain that it would have no control, supervision or regulation in relation to a private clinic. It was as simple as that, and the RQIA was very honest and frank in its evidence to the Committee. That is the reality of the situation, and the amendment deals with that reality.”
“It is an academic exercise, but, for the record, we would support it, given the fact that a sunset clause was quite properly added to the proposition. I conclude there.”
“<BR /> <BR />It was thought — I think Mr McCartney was right — to bring some sort of time limitation into it, that there could be a proper review and that a sunset clause would serve that purpose so as to analyse exactly how the amendment would work in practice and see that it would not, for example, overburden health officials, have an adverse impact on their performance or inhibit them in carrying out their proper affairs in relation to their professional duties. The determining factor in the SDLP supporting the amendment was, in fact, the sunset clause. However, it has all been rendered nugatory by the fact that there is a petition of concern. I am mystified as to why there is a petition of concern. Nobody has told me, and perhaps I will never learn in any event.”
“It was further complicated for me when my brother gave evidence to the Committee against the proposition that the Attorney General had put forward. Nonetheless, I put that aside and made up my own mind. My colleague Mr McGlone also made up his mind in relation to it, and we were still divided. Eventually, we considered that it was useful to propose a sunset clause, because one of the principal arguments against the proposition that the Attorney General put forward was that, if you changed the law and allowed this to happen, there could be an accretion in power and an interference in the system that would be adverse.”
“Both outlined them very accurately and very well, but I think that anybody listening to both contributions would come to the conclusion that there are issues on both sides and it is difficult to make one's mind up on whether to support the proposition of the Attorney General or not.”
“I do not intend to speak for long on these matters. First of all, in general terms, my party supports the amendments tabled by the Minister of Justice. They are helpful and worthy of support. <BR /> <BR />Amendment No 50, which has been tabled by Mr McCartney and his colleagues in Sinn Féin, relates to a proposition by the Attorney General that the Committee had considerable difficulty in agreeing to. Eventually, no agreement was reached, and the proposition put forward by the Attorney General was not endorsed by the Committee. The arguments on both sides were well balanced, and the Chair of the Committee has outlined the arguments against, in the main, and Mr McCartney the arguments for.”
“I have very little to add to the learned treatise given by the very learned Chair of the Justice Committee. The only thing I would add is that Henry VIII is not the most popular person in history, particularly in Ireland, but he did introduce the harp as an official symbol for Ireland. He was king of not only England and France but Ireland. That is just a little historical footnote. We have been dealing with tradition and history all day today. I endorse everything that the Chair said in relation to this matter.”
“I am not suggesting in any way that the Minister is misleading anybody in the House, but to say that it is a halfway house is wrong, insofar as there is the total abolition of any exercise for testing, cross-examining or examining-in-chief a witness. That goes completely. Therefore, in that sense, what you are proposing cannot be considered to be a halfway house. Effectively, from now on in, if the clause were to pass, what you are proposing would be totally a paper exercise. Mr Allister is suggesting that that does not meet the justice of the case, as it were, so that, in fact, there is an opportunity — admittedly, a very limited opportunity — for a witness or some witnesses to be examined.”
“I have nothing further to say about any of the other amendments or about this section.”
“I know what it is intended to do, but I am not certain that it is the right thing to do in all circumstances. I am tempted to oppose clause 78 standing part of the Bill, but I would like the Minister to look at it seriously, because I do not believe that there is any great value in it.”
“I am not certain, Mr Deputy Speaker, that it is really necessary. It just overcomplicates things. It is almost a bureaucratic response to the courtroom situation that will not help resolve matters.”
“I do not know how such a tribunal would deal with this matter. It seems to me that there are certain matters between a solicitor and client that are indeed privileged, and it could well be that, where there is a dispute over whether the solicitor gave this advice, there would be breaches of privilege. Whether or not that happens, it complicates the relationship between the solicitor and the client. This clause could have unintended adverse consequences. I ask the Minister to look seriously at withdrawing the clause, which does not in any way add usefully to the role of a solicitor in a criminal trial. It really is ill thought out. I quote:”
“I am unhappy with clause 78. I think that it is unnecessary. It imposes a duty on solicitors to advise clients about early guilty pleas, and this will be a statutory duty imposed on solicitors. I do not think that it is necessary. Any solicitor worth his salt will advise his client on an early guilty plea. It is unnecessary for this House to impose a further statutory duty on the solicitor. It could also complicate the relationship between the solicitor and the client. Clause 78(5) says:”
“<BR /> <BR />Mr Deputy Speaker, I welcome the single jurisdiction, although we have had county court divisions in Northern Ireland for many years, and it is a pity to lose them. We are losing a bit of our history but, nonetheless, given the efficiencies arising out of a single jurisdiction, perhaps we can overlook that little bit of history. Mr Allister is, of course, the Traditional Unionist Voice, but I was minded when he was speaking that he might well now be called the "Traditional Legal Voice" in this House. It is important that we look at changes to our system. The proposal in relation to prosecutorial fines is worthy, and it is important that we move in that direction and be innovative and imaginative in what we do; I welcome that. <BR /> <BR />I refer the House to clause 78. Amendment No 40 relates to 78(3).”
“<BR /> <BR />If there are various pre-trial issues that would normally be dealt with at a committal level that are not dealt with, there may be a greater preponderance, when something comes to trial, of no bills or applications to the Crown Court judge to deal with matters that should properly have been dealt with at committal level. You cannot call witnesses to examine those issues at that stage, nonetheless there could be further hold-ups in the smooth running of a Crown Court trial. That would be disagreeable and not intentional, but it could happen as a result of the changes proposed by the Minister. I ask the House to take that into consideration, because the aim of this legislation is to speed up the process, not delay it further, and that is a very laudable aim.”