Public Services Ombudsman Bill: Exceptional Further Consideration Stage

Committee Business – in the Northern Ireland Assembly at 4:00 pm on 1 February 2016.

Alert me about debates like this

Photo of John Dallat John Dallat Social Democratic and Labour Party 4:00, 1 February 2016

I call the Chairperson of the Committee for the Office of the First Minister and deputy First Minister, Mr Mike Nesbitt, to move the Bill.

Moved.—[Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Photo of John Dallat John Dallat Social Democratic and Labour Party

A single amendment has been tabled for debate. Members will have received a copy of the Marshalled List, which provides details of the amendment. The amendment deals with a reference to public safety. I remind Members who intend to speak that they should address their comments only to the amendment. If that is clear, we shall proceed.

Clause 50 (Disclosure contrary to public interest)

Photo of Mike Nesbitt Mike Nesbitt UUP

I beg to move the following amendment:

In page 20, line 2, leave out from "the safety" to "United Kingdom" on line 3 and insert "public safety".

The Committee agreed to bring the amendment to address a concern that was raised by the Attorney General that clause 50 was outside the legislative competence of the Assembly. Prior to exercising the power in clause 50 to issue a non-disclosure notice, a Northern Ireland Minister or the Secretary of State must form the opinion that disclosure of a document or information would be prejudicial to the safety of Northern Ireland or the United Kingdom or otherwise contrary to the public interest. The Attorney General's concern arises from the reference to the "United Kingdom" in clause 50, which he considers may mean that the clause would be outside the legislative competence of the Assembly because of section 6(2)(a) of the Northern Ireland Act 1998.

Section 6(1) of the 1998 Act provides that:

"A provision of an Act is not law if it is outside the legislative competence of the Assembly."

Section 6(2) states:

"A provision is outside that competence if any of the following paragraphs apply— (a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland".

The Attorney General considers that conferral of the power to issue such a notice would take clause 50 outwith legislative competence because of the inclusion of the term "United Kingdom". It might be used where the danger in disclosing the document relates to, for example, only Wales and not in or as regards Northern Ireland.

While the Committee does not agree with the Attorney General, it was mindful that referral by the Attorney General to the Supreme Court would inevitably delay Royal Assent and create uncertainty about commencement and implementation planning. Accordingly, the Committee engaged with the Attorney General's office and the Northern Ireland Office to see whether a pragmatic solution could be found. That solution is reflected in the amendment before the House.

In essence, it replaces the reference in clause 50(1)(b):

"prejudicial to the safety of Northern Ireland or the United Kingdom" with the words:

"prejudicial to public safety".

A Northern Ireland Minister or the Secretary of State would, therefore, have to form the opinion that disclosure of the information or document in question:

"would be prejudicial to public safety or otherwise contrary to the public interest".

The Attorney General and the Northern Ireland Office are content with that amendment.

While some Members and parties have consistently opposed this type of power in principle, they have, nevertheless, consistently supported the Bill as a whole as a worthwhile measure of reform and have recognised the need for the amendment to progress the Bill. The Committee is mindful that this power has existed in our ombudsman legislation since 1969 and, so far as anybody knows, has never been exercised here.

I commend the amendment to the Assembly.

Photo of Gordon Lyons Gordon Lyons DUP 4:15, 1 February 2016

The Chair of the Committee set out the reasons why we have had this Exceptional Further Consideration Stage. Obviously, the Attorney General had an issue with clause 50. The Chair is absolutely right in saying that we have found a way to combat that, even though there were disagreements about the effect it might have. However, we came to a consensus, you could say, by the fact that we have this amendment. I think nobody wanted to see the Bill derailed at this stage. That is why we have the amendment and why I am more than happy to give it my support.

Photo of Alex Maskey Alex Maskey Sinn Féin

Go raibh maith agat, a LeasCheann Comhairle. The Committee Chairperson alluded to the fact that a number of members on the Committee, as a matter of principle, consistently voted against the provisions in the Bill that would provide for non-disclosure, as was described by, I think, the term "national security".

Obviously, our party has been consistent in this matter. We see absolutely no need whatsoever for such a provision in the Bill and in the role of the ombudsman, presently to be the NIPSO. We have made that very clear on the record since the Bill was tabled.

We were content to support the suspension of Standing Orders to have an Exceptional Further Consideration Stage. However, I put on the record on behalf of Sinn Féin that we still see no need whatsoever for any provision relating to what is called "national security" in the NIPSO Bill. We will vote against the amendment, but we will not push the Assembly to a Division.

Photo of Alex Attwood Alex Attwood Social Democratic and Labour Party

I acknowledge the role of the Assembly structures and the Speaker in allowing this Exceptional Further Consideration Stage. This is a very rare moment in the life of the Assembly. I think it might have arisen once before in this mandate, although I will stand corrected on that. It is a proper interpretation of the role of the Assembly and the processes on legislation that this Exceptional Further Consideration Stage has been enabled to deal with this outstanding matter, not least because of the reasons the Chair outlined.

This is a worthwhile measure of reform that has been in gestation for probably as long as some of us have been Members and certainly longer than some others have been Members. Therefore, having got to this stage of creating an office of some authority — time will tell whether its authority is all that it should be — and given that the legislation has got this far after this long period of time, it would be unfortunate if it was derailed.

As the Chair indicated, there were members of the Committee — maybe all the members, although I will stand corrected on that — who might differ from the Attorney General's interpretation of things. That is healthy, because the Attorney General may have a particular role in respect of the law in Northern Ireland under the relevant legislation, but he is another lawyer, and people can accept or reject legal advice. The view of many people, maybe on other issues beyond this one, is not to accept the advice of the Attorney General. Certainly, my view on this matter is that the Attorney General may be false in his interpretation and may be in a different place from many other interpretations on this legislation.

It is curious, of course, that, as the Chair read into the record, the references to issues of disclosure now refer to those that are prejudicial to public safety or otherwise contrary to the public interest. They are very wide words, and, therefore, they themselves could be interpreted in different ways and, indeed, be open to abuse. They do not refer to the issue of national security, although that may well be captured or, in the view of some, will certainly be captured in those words. It is curious that, when we come to legislate, we do not refer to those words even if other words are meant to capture that particular issue. I think that it is better of us to do it in that way than to rely upon these highly charged words of "national security", which is in the gift of the British Government and exclusively interpreted by the British Government. I think that it is good that we are not using their language, even if those words may be very extensive. Given the narrative and the history around all this legislation, our party, in line with Mr Maskey's comments, will not support this particular approach, but we will not force a Division in the House on this occasion.

Photo of Mike Nesbitt Mike Nesbitt UUP

I thank the three Members who contributed. Mr Lyons was content. I acknowledge again that Mr Maskey and his party had deep concerns and expressed them consistently and rightly the whole way through the debate or certainly the part of it that I was around for. As Mr Attwood said, this has been in gestation for longer than some of us have been Members of the House. In fact, in my case, it has been in gestation for more than twice as long as I have been a Member. It has taken 11 years to get to this point. I can put it no more starkly than to say that, when the passage began, few if any of the Members of the House had ever heard of Barack Obama, and we will just get this into law before he completes his second and final term as president of the United States.

As I said, I think that there has been an entirely pragmatic approach by all to this legislation, which will improve services and, particularly, the ability of our citizens to complain when they believe that they have been let down by public services. I commend all the members of the current Committee and thank them for their cooperation and their pragmatism in getting us to the stage where we will back, I hope, next week for the Final Stage of the Bill.

Amendment agreed to.

Photo of John Dallat John Dallat Social Democratic and Labour Party

That concludes the Exceptional Further Consideration Stage of the Public Services Ombudsman Bill. The Bill stands referred to the Speaker.

Adjourned at 4.24 pm.