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Members’ Rights

private members’ business – in the Northern Ireland Assembly at 5:45 pm on 3rd March 2009.

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Photo of David McClarty David McClarty UUP 5:45 pm, 3rd March 2009

Before we begin, I remind Members of their general duty to behave responsibly and to exercise caution to ensure that nothing that they say may prejudice any matter that may come before the courts. In particular, I caution Members that certain matters associated with the inquiry into the death of Mr Billy Wright are at present sub judice. In accordance with the requirements of Standing Order 73, such matters should not be referred to during the debate.

The Business Committee has agreed to allow up to one hour and 30 minutes for the debate. The proposer will have 10 minutes to propose the motion and 10 minutes to make a winding-up speech. All other Members who wish to speak will have five minutes.

Photo of Lord Maurice Morrow Lord Maurice Morrow DUP

I beg to move

That this Assembly recognises the need for elected representatives to be able to protect the confidentiality of information brought to them by constituents and sources; acknowledges the importance of being able to pass on to the appropriate authority information in the public interest without breaching that confidentiality; believes that an erosion of these expectations and rights would seriously undermine the ability of the public representatives to perform their duty and, if unchecked, will emasculate the powers of the Assembly, and undermine the role and trust the public must have in its elected representatives to protect and represent them without fear of prosecution or interference.

In bringing this important motion to the House, I seek the support of the Assembly for the protection of public representatives who are regularly given information of an important and sometimes sensitive nature. Invariably, that information is given because it is in the public interest to have the particular matter examined. Such information would never have been disclosed if the discloser felt that his or her anonymity were not protected. The question for the House is whether public representatives should betray their source or informant, or should the person giving the information be totally satisfied that the information disclosed by the source will be protected.

(Mr Speaker in the Chair)

At this stage, I stress that there is a vast difference between information imparted in the public interest and that of a malicious nature. The protection of information, including the identity of the source, is not something to be taken lightly. If something is disclosed in confidence, that confidence should be respected. Where would public confidence lie if everyone using their freedom of speech were immediately shopped by their elected representatives? I suspect that there is not one Member of this House who has not, at some time, been given information of a confidential nature, with the informant, or person who delivered the information, expecting their identity to remain confidential.

I venture to suggest that there are Members who hold information on the perpetrators of some of the worst atrocities that Northern Ireland has come through. However, nothing and no one is calling on them to disclose that information under the threat of prosecution. Similarly, when asked to disclose who fled their ranks for the greener fields of dissident republicanism, those Members will not be drawn. Although that is not right, it is their right to remain silent. That said, the authorities have yet to attempt that method of investigation.

In general, data protection legislation means that information cannot be disclosed that could harm the credibility, safety or security of an individual. There is an additional exemption for those covered by client confidentiality. Many professionals, including solicitors, journalists, clergy and doctors, are exempt from the threat of prosecution for not revealing the personal details of anyone whom they represent or deal with.

New attitudes towards the victims of domestic violence mean that the Public Prosecution Service and the police no longer have to rely on the injured party to provide a statement about his or her attacker. Instead, an investigation is carried out, and a case is built on the facts as gathered. That alleviates the victim from pressure and from fear of reprisals.

If journalists were made to name their sources, very little information would succeed in reaching the public domain. It is written in the National Union of Journalist’s code of conduct that under no circumstances can sources be divulged, and, on the whole, the courts have accepted that. The code forbids journalists from divulging information that has been passed to them. It says that a journalist:

“At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed”.

It states that a journalist should differentiate between fact and opinion. The code of conduct also says that a journalist:

“Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work”.

Those who have sought to legally challenge journalists to name their sources have made very little headway. It usually ends up with the reporter coming out a hero for standing his or her ground.

Why then should we, as public representatives tasked with speaking for constituents and their issues, be subject to a rule any different to the rules for the aforementioned? Constituent confidentiality is vital and something that public representatives strive to uphold.

In the Northern Ireland Assembly code of conduct, under the heading “Public duty”, it states:

“Members have a general duty to act in the interests of the electorate and the community as a whole; and a special duty to their constituents.”

Under the heading “Selflessness”, it states:

“Holders of public office should take decisions solely in terms of the public interest.”

Therefore, we are duty-bound, under statute, to address the inconsistencies and injustices that, unfortunately, occur in daily life. Not to do so would be to default on our roles, abandon our principles and, of course, betray our constituents.

If we in Government cannot be permitted to tackle issues on the strength of whistle-blower or tip-off scenarios, I suggest that very little would ever reach the Floor of this House. Gross injustices could come about if whistle-blowers are stifled, which is exactly what will happen if people lose their trust in Members’ ability to deal meaningfully with issues. Client confidentiality should not be limited to the professions that I have mentioned; it should be automatically extended to cover public representatives.

In a question on 10 May 2007, a Member of the House of Commons said that it was wholly unacceptable that private and confidential correspondence involving constituency issues between a Member and a Minister was released into the public domain. In answer to that, Jack Straw said:

“I share his concern … The issue is not about protecting the … Members of Parliament; it is about protecting the rights of our constituents to correspond with us in confidence.”

Taking another angle, I am concerned about what those who request such information require it for. What do they plan to do with it? Could it be that it is to hound or discredit a whistle-blower or to shine a more positive light on a potentially embarrassing or volatile situation that the individual concerned has exposed? If an incident or issue has been flagged up and reaches the public eye, it is vital that not only is that problem appropriately addressed but that the person who divulged the information is protected from any harm for their efforts.

I call on Members to support the motion, which is built on not only security but on freedom of speech. People will stop coming forward and will, therefore, continue in situations that are grossly wrong. Elected representatives are people who are elected by the community for the community to address their concerns and to speak out on their behalf. I am drawn to the use of the phrase “don’t shoot the messenger”. If Members are approached by someone who wishes to remain anonymous, we must respect their right, and that person should be protected, rather than pressured into disclosing more about the problem.

I commend the motion to the House, and I look forward to hearing what others have to say on it.

Photo of John O'Dowd John O'Dowd Sinn Féin

Go raibh maith agat, a Cheann Comhairle. Sinn Féin will abstain from the vote on the motion. We had hoped that the contribution of the first Member from the DUP to speak might have shed more light on why it tabled the motion at this time. However, following the comments of the previous Member who spoke, I am no further enlightened as to why the motion has been tabled. The speculation and suspicion that was in my mind before I came into the Chamber is only further embedded by the Member’s comments. I am conscious of the guidance that the LeasCheann Comhairle issued before the debate started, so I will ensure that I stay inside the lines that have been drawn for us.

Sinn Féin supports parliamentary privilege. We do not support the abuse of parliamentary privilege. The motion, as it is worded, is too wide-ranging for us to add our names to, because we believe that it could be used to abuse parliamentary privilege. In the past, Members opposite have used the British House of Commons as a showpiece where they get up and name individuals, blaming them for all sorts of acts and leaving those individuals vulnerable to attacks from other sources with no right of defence in any court in the land. Therefore, we will not support any system that allows the abuse of parliamentary privilege and the abuse of other people’s rights.

The proposer of the motion did not say whether he sought privilege for knowledge of criminal acts. Is the DUP suggesting that if someone comes to any Member of the House with information about a criminal act, we have the right to hold that information? Is no guidance contained in the motion to say that Members have a duty to take that information to the PSNI? I cannot consciously stand here in front of you and say that, under my parliamentary privilege, I will hold on to that information. Therefore, all those questions are still racing around my mind having listened to the previous Member who spoke.

Therefore, given that Members are somewhat restricted, and understandably so, in what we can say in the House, I will cut my comments short and say that the DUP has not given enough clarification about why it has tabled the motion. The motion is too broad-based and in our opinion, allows for the abuse of parliamentary privilege. Much more work would be required on the subject before Sinn Féin could sign up to any guidance or privilege to which the DUP referred. Go raibh maith agat.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party 6:00 pm, 3rd March 2009

I want to say at the outset that the subject of the motion is a complex legal issue. I am not certain that this particular motion, no matter how well intentioned, addresses the issue, which is obviously very important. I suggest that the motion should not be put to a vote. Although the important issues should be aired and discussed, the motion should not be put to a vote in order that a more definitive position can arise from the debate.

Any privilege that Members of this House have is based on statute. No inherent privilege is based in this House; however, in the House of Commons, for example, an inherent privilege exists that does not arise out of statute. Therefore, the Assembly’s situation is completely different from that of the Houses of Parliament. However, all Members instinctively and naturally accept the need for elected representatives to be able to protect the confidentiality of information that is brought to them by constituents or, indeed, that comes from other sources.

The question is whether that protection of confident­iality should be absolute or qualified. If it is to be qualified, to what extent and in what circumstances? It goes without saying that it is important for public representatives to be able to pass on information that is in the public interest without breaching confidentiality. The question is whether such a right exists at present. I am not certain that it does, in fact, exist in law.

I appeal to the proposers of the motion to ask the House to seek legal opinion and expert advice on this important issue; I have not seen any sort of legal advice that could inform the House properly on the motion. I want to see the legal basis of any such right that Members purport exists for individual MLAs.

Certainly, in the Republic, such a right was asserted in the Brendan Howlin case. In circumstances that were similar to those that have been discussed in the debate, a TD was expected to reveal his confidential sources to a tribunal of inquiry. He refused to do so. In that case, the Supreme Court decided that the TD did not have a right to protect his source and, therefore, he had to reveal it to the tribunal. That raises an important point: if a tribunal of inquiry is to carry out its work, it needs to be able to probe information and facts. That may require the disclosure of a source in order to provide proper and credible evidence to the inquiry so that it can carry out its task properly and thoroughly.

I do not believe that the law would be any different or much wider in Northern Ireland as regards giving an absolute right to a Member of this House. It is probably true to say that any erosion of the perceived right to confidentiality could undermine the public’s trust and confidence in dealing with MLAs, with the result that that trust and confidence could be affected adversely.

The Assembly must consider the matter very carefully before reaching specific conclusions. There have been circumstances in the House in which a Member has purported to have got information from the IRA — in the case of Conor Murphy, for example — about a killing in south Armagh.

In those circumstances, is it right for a Member of the House —

Photo of William Hay William Hay Speaker

The Member must draw his remarks to a close.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

In those circumstances, is it right for a Member to protect and to not reveal his source? I will leave that question to the House.

Photo of Stephen Farry Stephen Farry Alliance

We can speculate about the set of circumstances that has prompted the Members to propose the motion. I will judge the issue based on the wording of the motion, make general comments and avoid straying into particular cases that may be pertinent at the moment.

It is worth noting that the motion is almost a self-declaration, and its proposers could, perhaps, clarify its ultimate purpose. Does it call on another body to recognise that right, or do the proposers feel that motion will establish those rights? I have no difficulty with the wording of the motion. I am conscious that MLAs are not simply legislators whose role is to pass judgement on draft Bills. We also hold the Executive to account and represent constituents. In that sense, although our role is not the full equivalent of an MP under the British constitution, it mirrors it to a large extent.

MPs and MLAs have an important function to provide an effective challenge to the Executive and other authorities. Our role sometimes involves bringing information, which would not otherwise have been known, into the public domain. There are plenty of examples of situations in which such actions have been deemed to be in the wider public interest, several of which arose in the British system recently. That is important.

If there is potential to disclose such information, does that provide a fundamental barrier to individuals passing information to MPs or MLAs with confidence that that information will remain secure? A question mark about that matter could create difficulties. At one end of the scale, we might talk about serious matters of Executive misconduct or, indeed, criminal offences. At the other end of the spectrum, people might offer information on a constituency casework basis. It is a broad issue, and it is important that constituents have full confidence in our ability to respond to their needs.

I concur with remarks that public representatives must act responsibly and trustfully. I take on board John O’Dowd’s comments on that matter and his perception of the situation. He, and others, might believe that privileges have been abused in the past. It is incumbent on MPs and other public representatives to demonstrate discretion and responsibility when conducting their actions.

In some senses, the UK has an unwritten constitution, in which there are an implicit set of checks and balances. In Northern Ireland, given that we are in a subordinate situation, those balances are more formal. There is a tradition and an assumption to place trust in public representatives. In recent years, that trust has been called into question because of a series of financial and other scandals. There has been a loss of confidence in the system.

I appreciate that from some people’s perspective, the ability to allow MPs and MLAs an unfettered sense of responsibility has, perhaps, been compromised to a certain extent. Nonetheless, it is important to return to first principles and recognise the basis of the function of a public representative, which is not unique to Northern Ireland and applies in other contexts. Furthermore, we must appreciate the importance of public representatives’ ability to do a job, not only on behalf of their constituents, but in the wider public interest.

I await the rest of the debate with interest, but I am minded to support the motion.

Photo of John McCallister John McCallister UUP

Like other Members, I recognise the importance and need for elected representatives to treat with respect information brought to them by constituents. Every Member will have worked for constituents who have presented them with highly sensitive issues, which are often borne out of vulnerable positions. It is crucial that we respect the information that is presented to us as much as possible within the law. It is vital that the public have confidence and trust in their representatives if democracy is to work.

With that in mind, the Ulster Unionist Party recognises the merits of much of the motion. All Members will know that we are given the protection to speak freely in the Chamber — however, parliamentary privilege is extended to ensure that democratic debate is uninhibited. We cannot expect the extension of parliamentary privilege — in the Assembly or at Westminster — to all aspects of an MLA’s conduct and life. In that regard, I question the link between protecting information given to MLAs by constituents with the undermining of the ability of public representatives to perform their duty in the Chamber and the emasculation of the powers of the Assembly.

How individual Members treat information given to them by their constituents is up to their own discretion and understanding of the law. They should know that if they make information public, they, and the person they represent, will be open to the rigours of the law.

There is legislation to deal with the passing of information to the appropriate authority in the public interest without breaching confidentiality. The Public Interest Disclosure Act 1998 — or whistle-blower legislation — provides a framework of legal protection for individuals who disclose information to expose malpractice or matters of similar concern. The Act covers the raising of genuine concerns about crime, civil offences, miscarriages of justice, danger to health and safety or the environment, and the cover-up of any of those. It covers almost all employees in almost all professions.

We all want to protect those who confide in us and who trust us with information, but more important still is the protection of the democratic integrity of the House and the justice system. However, having said that, I respect and understand the principles of those who proposed the motion.

Photo of Alex Attwood Alex Attwood Social Democratic and Labour Party

I did not anticipate being called to speak — I think that I have been ambushed by my own party in case I do not take the right line. I concur with Mr Maginness. I ask the DUP to consider not moving the motion — which has happened on previous occasions — given the context of the debate and having heard the concerns that were raised. Without prejudice to whatever the motivations may be behind the intentions of the motion, that would be the right course of action.

It would be the right course of action for several reasons. First, the language of such a motion must create certainty and avoid doubt; that should be the standard against which any motion of this sort in particular — although it applies generally — is judged. With a motion of this nature — which has implications for difficult issues of law, as Mr Maginness and others outlined, and where there are already existing legal provisions, as outlined by the Member who spoke previously — if the proposer of the motion wants to get the support and sympathy of the House, its drafting should be absolutely precise to remove doubt and create certainty.

I suggest to those who drafted the motion that although a great sense of the thinking behind the motion can be grasped, as Lord Morrow fully outlined, nonetheless, the motion must be measured against existing legal provisions, precedents and standards in other legislatures.

6.15 pm

Is the DUP satisfied that the wording of the motion is consistent and can be reconciled with the existing legal provisions that were outlined by Mr McCallister and by the existing requirements and standards that govern these issues in legislatures, including our own? That is a simple question, and the DUP must be able to say with certainty that it has measured and tested the wording of the motion against those standards.

I listened to Lord Morrow’s remarks, and I have enormous sympathy for his position. In recent weeks, visitors to my constituency office have given me certain information that is not only about individual cases but raises much more general issues about the conduct of certain people in my constituency. Therefore, I have a great sense of my obligations in respect of such matters.

Although I have not been given any specific information — for example, about an individual or about particular acts of criminality — I have been given information in the round about widespread issues of criminality that may involve a range of people and organisations. I have to decide what to do with that information, so I have a great deal of sympathy for Lord Morrow’s point of view. However, I do not know whether this approach, whatever the motivation might be, is the right way to deal with the issue.

I want to be crystal clear about one point, which was touched on by my colleague Alban Maginness. In circumstances in which it is brought to our attention that criminal activity has taken place, and in which there may be information that is of interest to the police and the legal authorities — particularly when a case is live — the balance of argument may be swayed in favour of the obligation to pass that information to the PSNI.

I mention the case that Mr Maginness described only because it has already been raised and not to make a wider political point. However, when a Member of the House met members of the IRA, was the information imparted at that meeting not within the gift of that Member, and should it, therefore, have been passed to the police, given that there were issues about the IRA and that it was alleged to have been an illegal organisation? Furthermore, given that, in a particular case, information might have been made available to —

Photo of William Hay William Hay Speaker

I ask the Member to draw his remarks to a close.

Photo of Ian Paisley Jnr Ian Paisley Jnr DUP

I thank all Members who participated in the debate. When my colleague Lord Morrow proposed the motion, he made it clear that no Member of this or any other House should be above the law. That goes without saying, so I was somewhat surprised that the Member for Upper Bann Mr O’Dowd said that the debate was about the privilege of the House. The debate has nothing to do with the privilege of the House. If Members wish to table a motion about privilege in the House and how it should operate, that is a separate matter, which may indeed warrant a debate at another time. However, the motion deals with something entirely different, which goes to the heart of our constitutional rights.

Edmund Burke made his feelings clear to his constituents when he said:

“Your Representative owes you, not his industry only, but his judgement”.

On that basis, the House has a responsibility to lay down a firm marker about the level of respect and position that the House and its Members should have when it deals with the public and when the public deals with it. The motion makes that abundantly clear and accords a proper standing to the Assembly and its Members. It seeks to protect Members so that they can do their job without interference or molestation and without being forced to compromise the people who send us here.

It is important that those principles and markers be laid down firmly. In moving the motion, Lord Morrow mentioned that other sections of the community appear to have certain protections. For example, the legal and medical professions have client confidentiality. Indeed, certain clerics and priests also claim confidentiality. Such protections — as well as those that are enshrined in the journalistic code, which Lord Morrow mentioned — are all recognised, and that is important.

We have brought to this House today a very important contest that examines where power and responsibility rest. Do they rest with the courts? Do they rest with inquiries? Do they rest with Parliament? What is the role accorded to Members of the Assembly in that contest? I believe that there is a struggle —

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I do not think that the Member was minded to do what I had suggested, which was not to move the motion. That might have been an appropriate way in which to deal with this matter. If the Member had not moved the motion, he could have referred this matter to the Committee on Standards and Privileges and let it consider the issue and substance of the motion. That might have been a reasonable way in which to deal with this matter.

The issues that have been raised have been raised properly. They are issues of great merit — nobody disputes that. However, they are complex. It would have been much better if the House was not divided, but had got proper legal advice on this matter, so that it could have come to a definitive view based on the advice of the Committee on Standards and Privileges.

Photo of Ian Paisley Jnr Ian Paisley Jnr DUP

I will come to that point; I will not avoid it. I was going to address that issue later on.

As I was saying, we should recognise that there is a struggle of constitutional proportions taking place. Are this Assembly and its Members to be slapped around and to kowtow to others, or have we been accorded a proper place? We should guard jealously the general position that the people have given to us. If we throw that away lightly, we will regret it in time. It has come to the point where this Assembly and its Members are starting to be challenged. Other people are pushing the envelope in respect of the role this Assembly plays. In other words, are the people really in control of this country’s destiny? We should lay down a firm marker as to where we believe the demarcation lines are.

In May 2007, in the House of Commons, Jack Straw was asked about correspondence between a Member of Parliament and a Minister. He made it clear that the names of constituents should be protected — even from freedom of information inquiries — because of the constitutional right of constituents to correspond freely. That right is not about protecting a Minister, a Member, or a privilege; it is about protecting the rights of the people, and that is what this motion is about.

I agree that, on the one level, this is a complex matter, but it is one that we should seek to grapple with immediately. This motion has been down for debate for two weeks. Members have had the opportunity to consider the motion and to speak to each other about it. Indeed, the Business Committee has discussed it. Members should have used that time wisely. They should not have to come to this House seeking to push the issue further down the pipe and talk about it at another time. Rather, Members should have come to this debate with their minds firmly cast on where they want to go. I take the point that that Members can take this matter forward in a number of ways, if the motion is supported. Mr Maginness suggested two ways in which that can happen. He suggested seeking legal advice or taking the matter to Committee on Standards and Privileges.

Those are matters that Members can then take forward. However, there must be a starting point, and that starting point has come. For that reason, we should pass the motion.

The Member for Upper Bann Mr O’Dowd said that this was about the privileges of the House — the motion is not about privilege as defined when a Member speaks in the House, it is about a much wider and more important constitutional issue.

I welcome the general comments of support by the Member for North Down Dr Farry and the general support and merit given to the motion by the Member for South Down Mr Wells.

It is a matter of public record that a number of inquiries are taking place in Northern Ireland. It is a matter of public record that an inquiry into the death of Billy Wright is taking place. It is also a matter of public record that several Members have been called to give evidence to that inquiry. It is a matter of public record that there are High Court proceedings taking place to compel Members to divulge their sources to that inquiry. Those are all matters of public record.

The House must decide whether Members should be allowed to be bullied, pushed or squeezed to name constituents in order to satisfy the ego of someone else, or whether the rights and liberties of the people of Northern Ireland, which we should guard jealously, should be protected by our actions and by our judgements as to whether we name, or do not name, people. That is the matter before the House; nothing else.

Question put and agreed to.

Resolved:

That this Assembly recognises the need for elected representatives to be able to protect the confidentiality of information brought to them by constituents and sources; acknowledges the importance of being able to pass on to the appropriate authority information in the public interest without breaching that confidentiality; believes that an erosion of these expectations and rights would seriously undermine the ability of the public representatives to perform their duty and, if unchecked, will emasculate the powers of the Assembly, and undermine the role and trust the public must have in its elected representatives to protect and represent them without fear of prosecution or interference

Motion made:

That the Assembly do now adjourn — [Mr Speaker.]