Functioning of Government (Miscellaneous Provisions) Bill: Further Consideration Stage

Private Members' Business – in the Northern Ireland Assembly at 2:45 pm on 19th January 2021.

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Clause 1 (Amendment of the Civil Service (Special Advisers) Act (Northern Ireland) 2013)

Debate resumed on amendment No 1, which amendment was:

In clause 1, page 1, line 5, leave out “amend subsection 3 to read ‘Within” and insert -



“for subsection (3) substitute—


 


‘(3) Within”. — [Mr Murphy (The Minister of Finance).]

The remaining amendments in the group stood on the Marshalled List.

Photo of Christopher Stalford Christopher Stalford DUP

We return to the Further Consideration Stage of the Functioning of Government (Miscellaneous Provisions) Bill. We have a series of Questions to deal with.

Amendment No 1 agreed to.

Amendment No 2 made:

In page 1, line 7, leave out “under” and insert “mentioned in”. — [Mr Murphy (The Minister of Finance).]

Amendment No 3 made:

In page 1, line 12, after “Service” insert -

<BR/>

“, as that code applies to special advisers,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 4 made:

In page 1, line 15, at end insert -



“(3C) For the purposes of subsection (3A), the following are not Ministerial interference—


 


(a) the carrying-out of a role given to a Minister by the disciplinary code mentioned in that subsection;


 


(b) the termination of a special adviser’s appointment by the appointing Minister outside of, or before the conclusion of, any process or procedure under that code.’”. — [Mr Murphy (The Minister of Finance).]

Amendment No 5 made:

In page 1, line 16, leave out subsection (4). — [Mr Murphy (The Minister of Finance).]

Amendment No 6 made:

In page 1, line 18, leave out “After subsection (3)(b),” and insert -



“In section 8(3) (contents of code for appointments), after paragraph (b)”. — [Mr Murphy (The Minister of Finance).]

Amendment No 7 made:

In page 2, line 1, leave out from “above” to “(Grade 5)” on line 2 and insert -



“at a level higher than the highest level under the published pay scale applicable to an Assistant Secretary (Grade 5) in the Northern Ireland Civil Service”. — [Mr Murphy (The Minister of Finance).]

Amendment No 8 made:

In page 2, line 2, at end insert -



“(5A) In section 8, after subsection (5) insert—


 


‘(6) If, at any time after a special adviser is appointed (and whether or not the appointment has taken effect), a senior officer in the Department of Finance is satisfied that a person exercising functions in respect of the appointment did not have regard to the code, the Department of Finance must as soon as reasonably practicable after that time give the special adviser notice terminating the appointment with effect from the giving of the notice, but this—


 


(a) does not apply if the appointment otherwise terminates before the notice is given, and


 


(b) is without prejudice to the person’s rights (if any) to payment in lieu of notice.


 


(7) In subsection (6) ‘senior officer’ has the meaning given by Article 2(3) of the Departments (Northern Ireland) Order 1999.’”. — [Mr Murphy (The Minister of Finance).]

Amendment No 9 made:

In page 2, line 4, leave out “the duly appointed” and insert -



“a person duly appointed as a”. — [Mr Murphy (The Minister of Finance).]

Amendment No 10 made:

In page 2, line 5, after first “the” insert “Minister’s”. — [Mr Murphy (The Minister of Finance).]

Amendment No 11 made:

In page 2, line 6, leave out “post” and insert -



“person’s post as a special adviser”. — [Mr Murphy (The Minister of Finance).]

Amendment No 12 made:

In page 2, line 6, leave out “a permanent secretary” and insert -



“the permanent secretary to a Northern Ireland department”. — [Mr Murphy (The Minister of Finance).]

Amendment No 13 made:

In page 2, leave out lines 10 to 13 and insert -



“(2) A special adviser—


 


(a) in carrying out the functions of their post, is not to be supervised or directed by,


 


(b) is not to report on their carrying-out of the functions of their post to, and


 


(c) is not answerable for their carrying-out of the functions of their post to,


 


any person other than their appointing Minister, save as permitted by subsection (3) or (4) or section 7(3) or required by section 7(3A).


 


(3) A special adviser’s appointing Minister may authorise the special adviser, to such extent as the appointing Minister specifies, to be directed by or report to a junior Minister in the same department as the appointing Minister.


 


(4) Where a special adviser is a member of a profession or organisation, subsection (2) does not stop them being answerable to the profession or organisation for acts done in carrying out the functions of their post if they would be similarly answerable—


 


(a) for corresponding acts done in carrying out the duties of an employment otherwise than as a special adviser, or


 


(b) for corresponding acts done otherwise than in the course of an employment.’”. — [Mr Murphy (The Minister of Finance).]

Clause 2 (Repeal of the Civil Service Commissioners (Amendment) (Northern Ireland) Order in Council 2007)

Amendment No 14 made:

In page 2, line 16, at the beginning insert -



“(1) In article 3 of the Civil Service Commissioners (Northern Ireland) Order 1999 (selection on merit)—


 


(a) in paragraph (3) omit sub-paragraph (d) (and the ‘or’ preceding it); and


 


(b) in paragraph (4) omit the words after ‘paragraph (2)(b)’.


 


(2) In consequence of subsection (1),”. — [Mr Murphy (The Minister of Finance).]

Clause 3 (Repeal of the Civil Service Commissioners (Amendment) Order (Northern Ireland) 2016)

Amendment No 15 made:

In page 2, line 20, at the beginning insert -



“In article 3 of the Civil Service Commissioners (Northern Ireland) Order 1999 (selection on merit)—


 


(a) in paragraph (2), omit sub-paragraph (c) (and the ‘or’ preceding it);


 


(b) omit paragraph (4A); and


 


(c) in paragraph (5), omit ‘or (c)’.


 


(1A) In consequence of subsection (1),”. — [Mr Murphy (The Minister of Finance).]

Clause 4 (Special Advisers in the Executive Office)

Amendment No 16 made:

In page 2, line 28, leave out “on 31 March 2021” and insert -



“at the end of the period of three months, beginning with the day on which this Act receives Royal Assent”. — [Mr Allister.]

Amendment No 17 made:

In page 2, line 30, leave out from “on” to “2021” on line 31 and insert -



“at the end of the period of three months, beginning with the day on which this Act receives Royal Assent”. — [Mr Allister.]

Photo of Christopher Stalford Christopher Stalford DUP

That is the first group of amendments addressed.

Some Members:

There are more.

Photo of Christopher Stalford Christopher Stalford DUP

More?

[Laughter.]

Fair enough. I thought that we were just doing one group, but that is OK. Here we go. We will keep going.

You asked for more, and we now come to the second group of amendments for debate. With amendment No 18, it will be convenient to debate amendment Nos 19 to 47, 54 and 55. Within this group, amendment Nos 21 and 22 are mutually exclusive; amendment No 24 is consequential to amendment No 23; amendment Nos 31 and 32 are mutually exclusive; amendment No 37 is consequential to amendment No 36; amendment Nos 38, 39 and 40 are consequential to amendment No 37; amendment No 41 is consequential to amendment Nos 36 and 37; and amendment No 54 is mutually exclusive with amendment No 35. If you understand that, you are a better man than me.

I call the Minister of Finance to move amendment No 18 and to address the other amendments in the group.

Photo of Conor Murphy Conor Murphy Sinn Féin

Go raibh maith agat, a Phríomh-LeasCheann Comhairle. By way of information and for advice, I assume that amendment Nos 48 to 56, which were part of the first debate, will be voted on at a later stage.

Photo of Conor Murphy Conor Murphy Sinn Féin

Thank you for that.

Clause 5 (Amendment of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011)

Photo of Conor Murphy Conor Murphy Sinn Féin

I beg to move amendment No 18:

In page 2, line 41, leave out “the complaint” and insert -

<BR/>

“in the case of a complaint that it”.

The following amendments stood on the Marshalled List:

No 19: In page 3, line 6, leave out subsection (6) and insert -



“(6) In section 17(3), at the appropriate place insert—


 


‘the Ministerial Code’ means the Ministerial Code of Conduct set out in Schedule 4 to the 1998 Act;.” — [Mr Murphy (The Minister of Finance).]

No 20: In page 3, line 9, leave out “for the purposes of defining ‘relevant time’” and insert -



“, in the definition of ‘relevant time’,”. — [Mr Murphy (The Minister of Finance).]

No 21: Leave out clause 6 and insert -



Records of meetings


 


6. The Civil Service will make and keep an accurate written record of every meeting attended by a Minister in departmental service during which any substantive Ministerial decision including the authorisation of spending, or the development of legislation in the Northern Ireland Assembly is taken.” — [Mr O'Toole.]

No 22: Leave out clause 6 and insert -



Records of meetings


 


6.—(1) The permanent secretary to a Northern Ireland department must ensure that relevant arrangements are put in place.


 


(2) ‘Relevant arrangements’ are arrangements designed to ensure—


 


(a) that an appropriate written record of each relevant meeting is compiled by the civil servant, or one of the civil servants, attending the meeting,


 


(b) that, where an official Ministerial decision is made at a meeting other than a relevant meeting, an appropriate written record of the decision is compiled by a civil servant as soon as reasonably practicable after the decision is first communicated to a civil servant, and


 


(c) that the written records mentioned in paragraphs (a) and (b) are retained in accordance with the department’s policy on the retention and disposal of records.


 


(3) A ‘relevant meeting’ is a pre-arranged meeting set up to conduct official business—


 


(a) where those attending include—


 


(i) at least one Minister, and


 


(ii) at least one civil servant serving in the department, or


 


(b) where those attending include—


 


(i) at least one special adviser,


 


(ii) at least one civil servant serving in the department, and


 


(iii) at least one person who is not a Minister, is not a special adviser and is not a civil servant,


 


but this is subject to subsection (4).


 


(4) The following are not relevant meetings—


 


(a) a meeting of the Assembly;


 


(b) a meeting of any committee of the Assembly other than the Executive Committee of the Assembly;


 


(c) a meeting of any sub-committee of the Assembly other than a sub-committee of the Executive Committee of the Assembly;


 


(d) a meeting within subsection (3)(a) where the official business does not include anything other than the presence of, or a presentation by, the Minister.


 


(5) An ‘official Ministerial decision’ is a decision made by a Minister—


 


(a) under any statutory provision (as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954),


 


(b) in exercising any of the prerogative or other executive powers of Her Majesty in relation to Northern Ireland, or


 


(c) otherwise in the course of official business.


 


(6) In this section ‘civil servant’ means a person serving in the Northern Ireland Civil Service who is not a special adviser.” — [Mr Murphy (The Minister of Finance).]

No 23: Leave out clause 7 and insert -



Presence of civil servants


 


7.—(1) A Minister, or special adviser, who holds a meeting with a third party about official business must take such steps as are reasonable to ensure that the meeting is attended by at least one person serving in the Northern Ireland Civil Service who is not a special adviser.


 


(2) Subsection (1) does not apply if the meeting is for liaison with the Minister’s political party.


 


(3) In this section ‘third party’ means a person who is not acting in the person’s capacity as—


 


(a) a Minister or a Minister of the Crown or a member of the Scottish or Welsh Government or a junior Scottish Minister,


 


(b) a Minister of the Government of Ireland,


 


(c) a member of—


 


(i) the Assembly,


 


(ii) the House of Commons,


 


(iii) the House of Lords,


 


(iv) the Scottish Parliament,


 


(v) Senedd Cymru,


 


(vi) Dáil Éireann, or


 


(vii) Seanad Éireann,


 


(d) a member of the Assembly’s staff,


 


(e) a person serving in any part of the civil service of the State,


 


(f) the Attorney General, or


 


(g) a member of the Attorney General’s staff.


 


(4) The duty under subsection (1) applies only so far as it is exercisable in or as regards Northern Ireland.” — [Mr Murphy (The Minister of Finance).]

No 24: In clause 7, page 3, line 22, after “party” insert -



“or other Members of the Assembly”. — [Mr Allister.]

No 25: In clause 8, page 3, line 25, leave out from “, other” to “then,” on line 26 and insert “being lobbied,”. — [Mr Murphy (The Minister of Finance).]

No 26: In clause 8, page 3, line 27, leave out from “provide” to end of line 28 and insert -



“as soon as reasonably practicable provide their department with a written record of the lobbying; and the department must retain the record in accordance with its policy on the retention and disposal of records.” — [Mr Murphy (The Minister of Finance).]

No 27: In clause 8, page 3, line 33, after “to” insert “seek,”. — [Mr Murphy (The Minister of Finance).]

No 28: In clause 8, page 3, line 40, leave out from second “or” to end of line 41. — [Mr Murphy (The Minister of Finance).]

No 29: In clause 8, page 4, line 2, at end insert -



“(3A) The Minister may determine to waive compliance with subsection (1) if the subject matter is inconsequential.” — [Mr Allister.]

No 30: In clause 8, page 4, line 5, after “Committee” insert -



“of the Assembly or any sub-committee of that Committee or any other committee or sub-committee of the Assembly”. — [Mr Murphy (The Minister of Finance).]

No 31: In clause 8, page 4, line 6, after “party” insert -



“or other Members of the Assembly”. — [Mr Allister.]

No 32: In clause 8, page 4, line 6, after “party” insert -



“or members of the Assembly”. — [Mr Murphy (The Minister of Finance).]

No 33: In clause 8, page 4, line 6, at end insert -



“(c) made at a meeting attended by a person serving in the Northern Ireland Civil Service who is not a special adviser,


 


(d) received personally by a Minister or special adviser after having been first received and recorded by a person serving in the Northern Ireland Civil Service who is not a special adviser, or


 


(e) made to a Minister by a member of the public in their capacity as a member of the public, or in their capacity as a community representative, and relating to a matter in which the person making the communication has only the same interest as all other members of the public or all other members of a section of the public.” — [Mr Murphy (The Minister of Finance).]

No 34: After clause 8 insert -



Use of official systems


 


8A.—(1) A Minister or special adviser when communicating on official business by electronic means should not use personal accounts or anything other than devices issued by the department, systems used by the department and departmental email addresses.


 


(2) If out of necessity it is not possible to comply with the requirements of subsection (1) the Minister or (as the case may be) special adviser must within 48 hours, or as soon thereafter as reasonably practicable,


 


(a) copy to the departmental system any written material generated during the use of non-departmental devices or systems; and


 


(b) make an accurate record on the departmental system of any verbal communications of consequence relating to departmental matters.” — [Mr Allister.]

No 35: In clause 9, page 4, line 20, at end insert -



“(4) For the purposes of subsection (3)(a), two people are partners if—


 


(a) they are civil partners of each other, or


 


(b) they are not married to, or civil partners of, each other but are living together as if spouses of each other.


 


(5) For the purposes of subsection (3)(a) ‘close family member’, in relation to a person, means someone who is—


 


(a) a parent, or parent-in-law, of the person,


 


(b) a child of the person,


 


(c) a whole-blood sibling of the person, or


 


(d) the spouse or civil partner of someone within paragraph (b) or (c).” — [Mr Murphy (The Minister of Finance).]

No 36: In clause 10, page 4, line 24, leave out “, civil servant”. — [Mr Allister.]

No 37: In clause 10, page 4, line 24, leave out from “, civil servant” to end of line 26 and insert -



“or special adviser to communicate official information to another for the financial benefit or other improper advantage of any person or third party, except for a communication arising in the course of liaison with the Minister’s political party.” — [Mr O'Toole.]

No 38: In clause 10, page 4, line 25, leave out “, directly or indirectly,”. — [Mr Murphy (The Minister of Finance).]

No 39: In clause 10, page 4, line 26, leave out “financial or other improper” and insert “improper (financial or other)”. — [Mr Murphy (The Minister of Finance).]

No 40: In clause 10, page 4, line 26, leave out “or third party”. — [Mr Murphy (The Minister of Finance).]

No 41: In clause 10, page 4, line 38, at end insert -



“(5) In this section ‘civil servant’ means a person serving in the Northern Ireland Civil Service who is not a special adviser.” — [Mr Murphy (The Minister of Finance).]

No 42: In clause 10, page 4, line 38, at end insert -



“(6) In this section ‘statutory obligation’ means—


 


(a) an obligation under a statutory provision, as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954, or


 


(b) an obligation under any legislation for the time being in force in any part of Great Britain or in any country or territory outside the United Kingdom.” — [Mr Murphy (The Minister of Finance).]

No 43: In clause 11, page 4, line 40, leave out “Ministers and their departments” and insert -



“A Minister and their department”. — [Mr Murphy (The Minister of Finance).]

No 44: In clause 13, page 5, line 16, leave out “Ministers and their officials” and insert -



“The Minister in charge of a Northern Ireland department, or the department,”. — [Mr Murphy (The Minister of Finance).]

No 45: In clause 13, page 5, line 18, leave out “in advance of it being submitted” and insert -



“no longer than 7 days following submission”. — [Mr O'Toole.]

No 46: In clause 13, page 5, line 20, leave out “Ministerial approval being granted” and insert -



“its being approved by the Executive Committee of the Assembly”. — [Mr Murphy (The Minister of Finance).]

No 47: In clause 13, page 5, line 22, leave out “(1)” and insert “(2)”. — [Mr Murphy (The Minister of Finance).]

No 54: In clause 15, page 5, line 41, at end insert -



“’close family members’ means—


 


(a) parent or parent-in-law;


 


(b) child;


 


(c) brother or sister; and


 


(d) spouse or partner of any person set out in paragraphs (b) or (c).” — [Mr Allister.]

No 55: In clause 15, page 6, leave out lines 1 to 4. — [Mr Murphy (The Minister of Finance).]

Photo of Conor Murphy Conor Murphy Sinn Féin

The second group of amendments is concerned with the role of Ministers, in particular, and administrative matters in Departments, more widely. It is worth reiterating my belief that the legislation is unnecessary. The effect of the Bill becoming law will be that administrative practice becomes a matter of lawfulness and unlawfulness.

The Bill would increase bureaucracy and reduce the scope to operate on the basis of professional judgement and good sense. Government, which is often already risk-averse, would become more defensive rather than responsive. Therefore, I cannot support the legislation, but I will seek to ensure that it does no more damage than it must.

I will take each of the amendments in turn. Amendment No 18 would make a small technical amendment to clause 5 that would amend section 17(1)(a) of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011. It would cover not only complaints but referrals made under Assembly Standing Orders. The amendment clarifies that the amendment to section 17(1)(a) relates only to complaints.

Amendment No 19 would clarify the reference to the ministerial code in clause 5. The definition of "Ministerial Code" inserted by subsection (6) refers to the existing ministerial code, although section 1 of the code includes the Pledge of Office. There would be questions about what was intended if a future revision of the code were restructured so that a new section 1 was not the relevant section.

Amendment No 20 is a technical amendment to clause 5 to use the usual words for amending a definition.

Amendment No 22 is an attempt to provide a more effective and precise clause to replace clause 6. It would require the permanent secretary of a Department to ensure that that Department has arrangements for recording meetings and decisions and for records to be kept in line with existing policies. The clause that is currently in the Bill applies a blanket approach and leaves the key term "meeting" undefined. As a consequence, it would render unlawful any minutes that did not contain specific details, however irrelevant those details might be, and would render unlawful the actions of an official who failed to record something that might or might not be a meeting. It would risk real problems of data protection and clashes with the principles of good records management.

My amendment attempts to make the provision workable. It defines a relevant meeting and a relevant decision in order to capture organised meetings and decisions that are taken outside organised meetings. It would require that an appropriate written record is made, allowing reference to good practice and guidance and to what constitutes an appropriate record. It would ensure that records are kept in line with the existing policy on the retention of records rather than conflicting with existing public records legislation. It would achieve what, I hope, the Bill intends to achieve, which is to prevent ministerial decision-making going unrecorded. I still believe that the provision would require Departments to erect and police bureaucratic structures rather than encourage good practice and engender professionalism and confidence in the Civil Service. That is precisely why such statutory provisions are inappropriate and counterproductive.

Amendment No 23 would replace clause 7 and needs to be read alongside amendment No 22 in the same way as clauses 6 and 7 are closely connected. It would place a duty on the Minister and special adviser to ensure that a civil servant attends every meeting about official business. The civil servant would then record that meeting, as set out in the previous clause. The amendment expresses how reasonable steps should be taken to ensure that a civil servant is present. That is to ensure that the legislation does not render unlawful a situation in which a civil servant could not reasonably be expected to attend, where no civil servant was available to do so, where IT links fail or where planned travel became impossible. Those circumstances may be rare, but the legislation has to take account of them.

The original clause acknowledges that there are occasions where Ministers and their special advisers meet in a wholly political context with their party colleagues. It would not be appropriate for civil servants to attend such meetings, both to preserve the Minister's right to private meetings of a political nature and to protect the political impartiality of the Civil Service. The Bill sponsor has recognised that principle in his amendment to extend the exemption to meetings with MLAs and other parties. My amendment extends that principle so that it is possible but not necessary for Ministers and special advisers to have wholly private meetings of a political nature with other Ministers, legislatures and Assembly staff. It also extends to meetings with the Attorney General and their staff so that legally sensitive matters can be discussed in that context.

Amendment No 25 is intended to correct the drafting in clause 8(1).

Amendment No 26 would change the use of the term "earliest opportunity" in clause 8 to "as soon as reasonably practicable", which allows for appropriate discretion on what is reasonable. It would also ensure that the record of the lobbying was retained in line with the Department's existing policy.

Amendment No 27 is a technical amendment to clause 8 to reflect the fact that Departments do not make primary legislation but seek it. As Members made clear at Consideration Stage, clause 8 as currently drafted would have an immense impact on Ministers, special advisers and their offices, both departmental and constituency. It would require a huge bureaucratic machine to capture and record every communication on any matter in the Department's remit. It would, without doubt, hamper good government. I believe that the Bill sponsor has accepted that and tabled his own amendment to clause 29. I can see the benefits of his amendment, although it would be challenging for any Minister to decide that an issue of real importance to an individual member of the public was, in his words, inconsequential.

I have proposed two amendments likewise intended to limit the damage that the clause would have on good government. Amendment No 28 would remove from the scope of the clause any lobbying on issues that are not about legislation, policy, contracts, grants or licences. The functions of a Minister's Department are so diverse and can cover so many issues close to the interests of so many people that making "lobbying" refer to any communication about any function of a Department is too wide.

Amendment Nos 30, 32 and 33 are also intended to narrow the impact of the clause as drafted. They do so by extending the original list of communications excluded from the requirement on Ministers and special advisers to make a record. I propose that we add communications made in subcommittees of Assembly Committees and the Executive Committee, communications made in meetings with MLAs and meetings attended by a civil servant. Those meetings will be recorded by Assembly staff and civil servants. The list at clause 8(4) would also be extended to include communications already received by a Minister's Department through private offices or otherwise.

The final exclusion in amendment No 33 is an attempt to reflect the real concerns of Members about Ministers and special advisers having to report to the Department every comment or approach by a member of the public that would otherwise be captured by the clause. It is intended to ensure that Ministers and special advisers are not required to report to the Department every casual remark, every comment at a public meeting and every call to a radio phone-in.

Amendment No 35 clarifies the meaning of "partner" in clause 9, which is otherwise ambiguous.

Amendment Nos 38, 39 and 40 attempt to address the language of clause 10. Amendment No 38 removes the phrase "directly or indirectly" from the clause. It is unnecessary, since the key factor is that the communication is made for improper benefit, however it is made. Amendment No 39 corrects the word order to make it clear that not every financial benefit is an improper benefit. As the clause is drafted, any financial benefit, whether improper or proper, would be captured, and that would render the clause wholly damaging to normal government business. Amendment No 40 removes words that add nothing to "any person".

Amendment No 41 clarifies the meaning of "civil servant" in the clause, and, in particular, excludes civil servants working in Whitehall Departments within the jurisdiction.

Amendment No 42 clarifies the meaning of "statutory obligation" in clause 10, and saves officials, when travelling or based in Brussels, Washington or Beijing, from having to rely on the reasonableness defence to justify having complied with local law.

Amendment No 43 is intended to achieve coherence between the opening words of clause 11 and the words in paragraph (b).

Amendment No 44 captures the drafting in clause 13 and ensures that duties are placed on Departments rather than unidentified individual officials.

Amendment No 46 addresses the ambiguity in the term "Ministerial" in the original clause 13, as it could refer to approval by the Minister of Finance ahead of a submission to the Executive.

Amendment No 47 corrects an apparent typographical error in clause 13.

Amendment No 54 defines "close family members" in clause 15 as required for the purposes of registration of interests.

Amendment No 55 removes an unnecessary definition in clause 15. The definition of "department" is unnecessary because the Bill would refer to a Minister's Department, which would, necessarily, be an Executive Department, or expressly to an Executive Department.

Photo of Steve Aiken Steve Aiken UUP 3:00 pm, 19th January 2021

My remarks as Chairperson of the Committee for Finance in relation to group 2 relate solely to clause 13. That is amendment Nos 44 to 47 for those of you who are following it in your paperwork.

As clause 13 was introduced at Consideration Stage, the Committee did not have the opportunity to express a view on it. However, the clause relates to an area within its remit on which the Committee has a very clear view.

The Department of Finance's strategic priority 5 is to:

"Ensure government continues to work in an open and transparent way, by championing open government principles for transparency, accountability, good governance and citizen participation."

One of the Committee for Finance's strategic objectives in our strategic plan is:

"to have in place a Budget Process that supports full consultation by the Department of Finance with the Committee, robust scrutiny across all statutory committees; and open and transparent accountability to the Assembly by the Executive throughout the Budget Cycle."

Guidance and in-year monitoring of public expenditure is issued by the Department of Finance each year, normally in advance of June monitoring.

The current guidance is quite clear about what is expected of Departments as they engage with Committees on monitoring rounds. It states:

"departments must ensure that they engage fully with their Assembly Committees in respect of the In-year Monitoring process."

It continues:

"The extent and timing of this engagement is obviously a matter for individual Committees" rather than for Departments. That means that Committees should have the opportunity to receive oral evidence from their Department, including full details of proposed easements, movements and bids. That is an important part of the monitoring process, especially for bids for resources, in that it provides Committees with information on departmental pressures and the steps proposed to alleviate those pressures.

Generally speaking, the in-year monitoring process largely seems to have been working appropriately since the Assembly returned last year. The Committee has received only two complaints from Statutory Committees about Ministers failing to meet their responsibilities to provide complete and timely information to their Committee. As drafted, clause 13 would provide a legislative basis for what is currently happening in most cases, and it would ensure that, for in-year monitoring, the Committee's objective for openness, transparency and accountability is enshrined in legislation. Amendment No 45, however, would do away with that openness, transparency and accountability by removing the requirement for Departments to share information with their Committee prior to submitting returns to the Department of Finance.

In turn, that would mean that Committees would not receive information on where the pressures are in Departments and that they would have access only to information on successful reallocations to Departments. For example, the Committee for Health may welcome an allocation of £1 million in September monitoring to help support a particular need, but, if the Committee had not seen the original bid information, it would not know that the Department may have requested 10 times that amount, and it would never have known to ask the Department how it proposed to address the outstanding need in the absence of sufficient resources. Providing departmental bids to Committees is an essential part of the scrutiny process, as it is one of the few mechanisms for providing Committees with a detailed insight into the internal pressures in Departments. The Department of Finance's priorities and the Committee for Finance's strategic objectives focus, however, on the need for transparency and accountability. Members may wish to consider whether amendment No 45 is in the spirit of those priorities and objectives. That concludes my remarks on the second group of amendments as the Chairperson of the Committee for Finance.

Photo of Paul Frew Paul Frew DUP

Again, I welcome the debate and commentary so far from the Members who have taken part in the debate on the second group of amendments, as I did from those who spoke to the previous group before lunch.

I know that my colleague across the room Mr O'Dowd will not like me talking about reform again, but it is essential to do so, because this group deals with transparency. It deals with the transparency of the functions of government, which is transparency that allows members of our public and the media to light up the mechanisms and look into the structures, actions and decisions that are taken across all arms of government. That can only be a healthy thing and a healthy place in which to be. The more transparent that we can be, the better that it is for having good government. Transparency should not stop at any one sector, whether that be a ministerial post, a permanent secretary's post or a spad's post, or, indeed, the Civil Service in its entirety. For that matter, nor should it stop at ministerial decisions or Committee structures. Every single function of government should be as transparent as possible in order to allow information to flow, and, with that, scrutiny. It is important that we enhance the requirements of scrutiny in this place, whether that be through the House or through Committee structures. It is vital that we scrutinise every decision that is taken and ensure that those decisions are as solid as they can be and are in the appropriate direction of travel.

Record-keeping is also critical to transparency and scrutiny. All of these things are linked; they are tied together. Ultimately, they lead to better functioning of government. With that in mind and all of those aspects coming together, maybe — just maybe — the people of Northern Ireland will have a Government that actually functions as best it can. Clearly, that has not been the case to date. Whilst there are many good things that happen because of the Executive, the Assembly, all the scrutiny Committees and everything that goes on, there have also been cases where there has been failure. There have sometimes been cases where there has been a failure to be transparent about failure. That is a road to no town. That has to cease. When we make mistakes — and we all make mistakes — we have to be upfront and honest. We have to learn from our mistakes. That is how you will achieve better government, because we cannot get everything right. How could we?

It is important that all those aspects be enshrined in everything we do at every level of government. That is why my party supports reform in those areas. In fact, we always have. It has been in countless manifestos, year in and year out: reform of spad positions, reform of the numbers of spads, reform with regard to transparency and scrutiny. It is all there for anyone who cares to read DUP manifestos. This is a very consistent approach for my party to take. It is one that I will champion for as long as I stand here in the House. It is essential that we keep moving forward and endeavouring to change for the better. I welcome that, whatever guise or form it comes in or direction it comes from.

Here we are, scrutinising the Bill. I thank the Minister and the Department for coming forward with a raft of amendments that make the Bill even better by tidying up some of the wording and clarifying some places and positions that maybe needed to be tidied up. I welcome those, and I will support the Minister in his endeavours with regard to most of those amendments.

Amendment Nos 18, 19 and 20 are all very stylistic; they tidy up language and wording. That is to be welcomed. Amendment No 21 is from the SDLP and my colleagues Matthew O'Toole and Pat Catney; we share time together in the Committee. Amendment No 22 seeks to completely amend clause 6. If I recall correctly, the sponsor of the Bill tried to amend what is now clause 6 at an earlier stage, so that was always going to be a natural movement. I do not know what the SDLP's latest position is, but, whilst I have no problem with amendment No 21, the Minister's amendment contains a lot more clarification and detail.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party 3:15 pm, 19th January 2021

I thank the Member for giving way. When I speak, I will make clear that we will not be moving that particular amendment in favour of the one that the Minister has provided.

Photo of Paul Frew Paul Frew DUP

I thank the Member for that clarification. It is very important. We probably all agree that that is the case with regard to the Minister's amendment No 22. It provides much more clarity for everyone involved, including the Civil Service. That should be welcomed.

On amendment No 23, the Minister stated that they all range together. I agree with him with regard to clause 6, "Records of meetings"; clause 7, "Presence of civil servants"; and, if you like, clause 8, "Record of being lobbied". The Minister has had a stab at amending clause 7 in its entirety by adding all of these legislatures and other political arenas. When I first read that, I was a bit nervous about adding those, because surely when a Minister visits any of those legislatures there would always be civil servants present to support the Minister in his work or to keep a record of action points and matters that were debated or discussed with other Ministers or MPs.

I understand the need to amend clause 7. I am not, however, sure why we need to go into detail on all the different legislatures. I suppose that I am worried that we could leave something vital out. Just because it is in legislation in clause 7, if it is amended, does not mean that you do not have to have civil servants there; they should be there in most cases. I would just like a wee bit more clarity on why the Department of Finance and the Minister needed to list all the legislatures mentioned in amendment No 23.

I have no problems with amendment Nos 24 to —.

Photo of Paul Frew Paul Frew DUP

Yes, I will.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I suggest to the Member that, on amendment No 23, in addition to the concerns that he raised about the exemptions, there is perhaps a more fundamentally alarming thing about the Minister's amendment. The Member will be aware that, in clause 7, as approved at Consideration Stage, a record must be taken of such meetings and that the Department must retain the record. Strangely, the Minister's amendment removes entirely the need to make or to keep any record. Is that not a matter of considerable concern?

Photo of Paul Frew Paul Frew DUP

The Member makes a very valid point. Whilst I did not have long to look at it, it was remiss of me not to mention it. I thank the Member for raising that issue; I am sure that he will speak to it in his contribution. I wait to hear what he has to say and then, hopefully, what the Minister has to say in winding up. It is a fundamental issue. We have not resolved to vote one way or the other on the amendment. I welcome the debate on amendment No 23.

I have no problems with either the Bill sponsor's amendment or the Minister's amendments from amendment Nos 24 to 28. They are tidying-up and stylistic amendments.

Amendment No 33 amends clause 8. Paragraph (e) reads:

"made to a Minister by a member of the public in their capacity as a member of the public, or in their capacity as a community representative, and relating to a matter in which the person making the communication has only the same interest as all other members of the public or all other members of a section of the public."

I may not be reading that correctly, or perhaps my primitive mind cannot get round it, but I ask the Minister to elaborate on what exactly paragraph (e) is designed to do and what it means. I suspect that it has something to do with community groups, chairpersons of community groups, and that type of thing, but it would be good for the House to hear further clarification on it.

Amendment No 34 is the Bill sponsor's attempt to get back in the Bill a provision on the use of official systems, which was negatived at Consideration Stage, albeit without the tariff and the offence. There was merit in the provision. I know that there were concerns in the House about the tariff and the sentencing, but there should be standards. I give the Bill sponsor credit: he moved from a position at the start of the Bill process and amended the clause, having taken regard of the work and the belief of the Committee at that stage. I think that we could support it.

I have no problems with amendment No 35, which is one of the Minister's.

Amendment No 37 is to clause 10. When I first read this, I chuckled to myself — I did not mean to do so — because of how it reads. I am sure that the Members did not mean to word it so that I would interpret it in this way, but it sounded as though it was OK to gain financial benefit and other improper advantages as long as you were liaising with your own party.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I am grateful to the Member, not for giving way exactly but because he has prompted me to say that we will not move that amendment. In deference to other amendments from the Minister that capture the intention of amendment No 37, and, indeed, in deference to amendment No 36 from the Bill sponsor, we will not move that particular amendment.

Photo of Paul Frew Paul Frew DUP

Thanks for that very useful clarification, which has reminded me to go back to amendment No 36, in which the Bill sponsor proposes to leave out "civil servant". I know that the Member who has just intervened was very concerned about the Civil Service being encapsulated in clause 10. I do not share that concern, because I think that it has to be the case that there should be standards here for all, not least the Civil Service. However, I will not die in a ditch over it or divide the House on it. Ministers and spads should be held in the highest esteem, and their standards should be beyond all reproach. However, the same should and could be said for the Civil Service. I do not see the need to take "civil servant" out, but the Bill sponsor has moved in that direction, and I am sure that he did so after liaising with other parties and other members of the Finance Committee. I can only welcome that engagement, because it was very proactive and very important to the political process and the scrutiny of this place. I will not say any more on that.

I do not seem to have any other problems except for the amendment to clause 13 from Mr O'Toole and Mr Catney, which is similar to one that I tabled at Consideration Stage. I have great problems with this issue. The problem is not that Members are trying to amend it — absolutely not — but the impact and effect of it. Since we came back, I have not been 100% convinced that Departments treat Committees with respect. In fact, my experience is that the opposite is true and that Departments still treat Committees with a certain disdain. I wish that I did not have to say that but I believe that it is the case. When Committees ask questions, some are not answered, and other answers are delayed. Sometimes, our questions are only half answered and so much effort is then wasted trying to get to the truth. That is simply not good enough.

Photo of William Humphrey William Humphrey DUP

I am grateful to the Member for giving way. I am Chair of the Public Accounts Committee. I am not sure that that Committee has encountered disdain but it has certainly encountered some withholding of information, whether deliberate or not. Therefore, our Committee policy is to ask witnesses who have not answered questions in a way that we would have liked or as fulsomely as we would have liked, to come back. That is one of the ways in which Committees can ensure that questions are answered and that they can deliver proper scrutiny, which is why they are there.

Photo of Paul Frew Paul Frew DUP

I thank the Member for his intervention. He holds a very esteemed place and position, and he will know better than anyone how these things are dealt with.

It is not good enough for a Committee to have to ask repeatedly for the same information and for the Department to treat that as a new request rather than a repeat of the original request. That takes up a lot of time and effort that could be used by a Committee to support and advise the Department. If we are chasing the Department's tail for information that may not be of any great relevance except that the Committee wants to know, it becomes a major issue; a major story, even. That can erode confidence, not only among the population or the media but among members of the Committee who sit in the House. That is just not acceptable.

This amendment strives to change clause 13 which, as it sits, states:

"Ministers and their officials must provide the relevant Assembly committee with a written or oral briefing on the department’s submission to each monitoring round in advance of it being submitted to the Department of Finance."

What does that really mean? We had a bit of a debate the last time around, and Mr O'Toole said that it is not really for the Committee to change or make a Department do something to a bid to the Finance Minister. I agree 100% with that; it is not up to the Committee, nor do they have they vires, to do that. However, it is just good government for a Department, before submitting a bid to the Finance Department and the Finance Minister, to allow the Committee sight of that bid for the very reasons that my colleague, the Chairperson of the Finance Committee, raised, especially when it comes to financial matters. For example, it is all well and good if the Finance Minister declares, in a positive light, that Health or Education will receive £1 million. That sounds like a really good and positive story, but if the Health Department or Education Department had asked for £1 billion, it then becomes a very negative story. In that light, context is added to the bid. Remember, I am not asking for departmental officials to come before their relevant Committee before they submit a bid; I am asking for a written or oral briefing on a Department's submission in each monitoring round in advance of the bid being submitted to the Department of Finance.

Committees get oral briefings all the time, but we also get written briefings. Documents come to the Committee staff before going into a pack. Members then get the pack in advance of the meeting, at which we discuss the written briefings. If that is done in advance of any bid going to the Department of Finance, it means that the Committee will get good and timely sight of that bid. It does not mean that they can effect change or pressure the Minister or Department into changing the bid, nor does it mean that they have the power to change it; it just means that they get it in good time. It is about respect, more than anything, for the Committee. The Committee's role is not only to scrutinise but to support and advise. Amendment No 45 prolongs that information flow by at least seven days following submission. I really do not see the need for that delay after everything that I have outlined.

It is right that Departments submit their bids, in either written or oral form, to their Committee in advance of them going to the Department of Finance. Remember, some of those bids take weeks to formulate, and there will have been brainstorming throughout the Department on what it does and does not require and what it wants to do and pursue and what it does not. It will have taken weeks — months, in fact — to formulate a bid for a monitoring round, so there is no way that a Committee can just throw its size nine into the middle of that process; it just would not be right, nor would I want it to be the case. It is about transparency and respect, and surely every Department can give that.

Alas, that is not the case, because even the Finance Committee has received complaints from Chairpersons of Committees about late information flow from the Departments on monitoring rounds, no less.

That is why it is vital that, especially as we have a Budget process, albeit that it is consulted on, uniquely throughout the world, through the monitoring rounds — I think that there are three stages now — Committees for every Department get a grip of what is taking place. They need not only the information, the numbers, the noughts and the pound signs but the context. The Committee may say, "What did you bid for, Minister? You bid for £50 million, but what did you get? You got £1 million". That is a debate that is to be had, and it can be had only in the Committee. It is vital that scrutiny Committees are furnished with that information in advance.

I have said enough on that point, and I am sure that Members will agree. We will not support that amendment from the SDLP. I appreciate that the Members have tried, in their eyes, to make the clause better, but I do not see that. That is not what the clause was designed for; it is prolonging it. I have spoken to all the Minister's amendments, and I seek clarification on some points. I look forward to the rest of the debate.

Photo of Philip McGuigan Philip McGuigan Sinn Féin 3:30 pm, 19th January 2021

It is always difficult to speak on any subject after my constituency colleague Paul Frew, because I stand up forgetting what we are talking about. The majority of his conversation had nothing to do with the Bill. In the midst of it, I went off into a wee daydream about warmer days and being out cycling. As people know, I am a keen cyclist. One of the skills of cycling in a bike race is to sit behind others who break the wind for you. You then have to account for only 60% of the energy, they say. The term for those who come to the front and shield the rest from the wind is "domestiques". As Mr Frew was speaking, I was thinking to myself that we really need a phrase for those in the Chamber who do the opposite of breaking the wind and create wind.

Photo of Philip McGuigan Philip McGuigan Sinn Féin

Go ahead. He is going to come up with a French term for that.

Photo of Jonathan Buckley Jonathan Buckley DUP

I thank the Member for giving way. Does the Principal Deputy Speaker agree that, if the Member found it hard to follow Mr Frew's contribution, perhaps he could explain what he is talking about? It is certainly not what we are reading in the Bill today.

Photo of Philip McGuigan Philip McGuigan Sinn Féin

I was making the point through jest.

Photo of Christopher Stalford Christopher Stalford DUP

I was about to say that throughout the debate we have seen long and winding conversations on all sides of the House

[Laughter.]

Photo of Philip McGuigan Philip McGuigan Sinn Féin

I was just about to turn my bicycle around to get to the point.

Sinn Féin will support many of the amendments in group 2. In this morning's debate, we reiterated the point that the Bill is unnecessary and could constrain the work of government. To clarify, Mr Wells laboured on the point that I made about Mr Allister's opposition to the Good Friday Agreement and all that flowed from that, including power-sharing and this institution, and he said that that was the sole reason for Sinn Féin's opposition to the Bill. That is not the case. We said that at the time, and I reiterate it. I do not believe that Mr Allister has had a road to Damascus transformation and suddenly wants Stormont to work. That said, Sinn Féin does. We want good government, and our opposition to the Bill is on that basis. I will just point out that Mr Allister and I, as constituency colleagues, have worked and agreed on plenty of issues. For example, we have agreed time and again on the scandalous behaviour of the DUP MP in North Antrim when he was found to have broken the Westminster code of conduct.

To reiterate a point made by the Minister, the Bill is not filling a vacuum in reform. Codes of practice have been strengthened. The Executive subcommittee has started its work on implementing the RHI recommendations. Let us not forget that at no stage did Justice Coghlin, after rigorous investigation of the issues that led to the DUP-led RHI scandal, recommend legislation in his report. It should also be said that legislation will not necessarily be the deterrent that the Bill sponsor hopes that it will be. Corrupt behaviour can be hard to police, as we saw in the RHI scandal. What is needed is an attitude change in which all those who are in positions of power have due regard for the office that they hold and respect for the people whom they represent.

I turn to the amendments at hand. Amendment No 22 deals with clause 6, which is flawed in its current state. The clause does not even define what a meeting is, and remember that there is no scope for interpretation once this becomes law. A meeting could be someone stopping you for a chat outside Mass or a supermarket and mentioning government business. The amendment sets the parameters of what constitutes a relevant meeting and tidies up clause 6 so that it is workable. The amendment also inserts a provision that requires that appropriate levels of detail are recorded when taking notes of meetings. Otherwise, civil servants could be found to have broken the law for not recording every level of detail in a relevant meeting, even if that information was inconsequential. Even in its fixed state, the clause will add much more bureaucracy than is needed. Departments will be required to police the new system.

Amendment Nos 38 to 42 relate to clause 10, which creates a new criminal offence of the unauthorised disclosure of official information for improper benefit. The clause is flawed and assumes that any kind of financial benefit must be improper. We know that that is not always the case. Amendment No 42 defines what a statutory obligation is and protects special advisers who, in carrying out their duty, may be required to carry out their work outside the jurisdiction. Again, even with the amendments, the clause that creates the offence could have dire consequences for the workings of government.

I finish my remarks by once again asking that Members closely consider the consequences of enacting the Bill as it stands and asking whether we really need to bind ourselves in a straitjacket in that way.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I will reflect on all the amendments in group 2 and will speak to the three amendments in my name and that of my colleague Pat Catney. As I indicated, we will not move two of those amendments. We will not move amendment No 21, which relates to clause 6 and record-keeping. We have talked about that already. We will defer to the Minister's amendment No 22, which, we think, serves the purpose more usefully and, in a sense, underlines the importance of having officials lend their drafting skills to the legislation. We will not move amendment No 21. Likewise, we will not move amendment No 37, because we think that a combination of amendment No 36, which is absolutely critical, and the Finance Minister's subsequent amendments from amendment No 38 onwards do some of the tidying up that we sought to do. I will come to the meat of why amendment No 36 is important and may well be the most important of today's amendments. We have always been extremely careful about the consequences of passing some of the criminalisation clauses into law. We saw more merit in this than in what was originally in clause 9. We did not think that that was an appropriate place to create a criminal offence. There is more merit in this one, but we want to see it sharpened and narrowed, to be perfectly honest. That is why I am pleased that the amendments are on the Marshalled List , and I very much hope that they pass. We will support amendment No 36 in the Bill sponsor's name and the subsequent amendments from the Minister and will not move our amendments.

I go back to the context for the group 2 amendments. Many of the amendments touch directly on the functioning of government. They will affect not only Ministers and special advisers but the Civil Service.

That is why we sought, with an open mind to the legislation, to get it right and to look at where there are useful and substantial things. Just to correct something that the Minister said earlier, the SDLP has not been supportive of elements of the Bill just because we think that the Bill is presentationally good. We think that there are substantial arguments for having parts of the reforms in legislation. That is clear. Not all of the Bill has merit, and that is why we voted against significant parts of it.

To answer the point that Philip McGuigan has just made, with respect, we do not think that the legislation will completely address everything that is in the Coghlin report. There are two things to say. I do not have the quotation to hand, but Patrick Coghlin did not state in his report that his recommendations marked the entirety of what Executive should do. He specifically stated that his report did not preclude or rule out any other reforms. Moreover, we are happy to look at further post-RHI and Civil Service reforms that the Finance Minister brings forward, and we look forward to his doing so.

On the broader context, as I said, we have always sought to approach the legislation with an open but critical mind. As I mentioned, our proposed new clause 6 on a record of meetings sought to address some of the concerns that we and others had about the burden that that would create for the Civil Service. As someone who was a civil servant for many years, I know the volume of meetings that are informal and short, involving a Minister signing off a piece of correspondence or having a chat with an official in a corridor. It was always going to be difficult to codify all that in legislation, and doing so risked adding an undue burden. Our amendment No 21 was designed to ameliorate that and to focus on what is important, which is ensuring proper record-keeping. Let us be honest: it was clear from the Coghlin report that there was a terrible failure of record-keeping in the Northern Ireland Civil Service. The Minister's amendment is better than ours, however, and I am more than happy to admit that and to defer to it. There is no conceit on our part, so we will not be moving amendment No 21, because amendment No 22 does it better than we did.

As I said, amendment No 23 will replace clause 7. The Minister touched a little bit on that. We are not necessarily wholly opposed to the amendment, but some of the concerns that Paul Frew outlined are the things that we would like to hear about. I see some merit in the specific exclusions for the various parliamentary bodies from these islands, so, when the Minister is wrapping up, it would be helpful if he could give a little more clarity on the purpose of the amendment. For example, can he explain whether, in his mind, the clause serves to create an exclusion, whereby Ministers can hold those meetings without civil servants or will it create a default position whereby civil servants do not go to those meetings? I presume that it is the former and not the latter, but it would be helpful to understand what it means.

As I should have said, amendment Nos 18 to 20 are technical amendments. Again, they are a welcome tightening of the language. Amendment Nos 24 to 33 are broadly the same. We are happy with amendment No 33. I should go back and say that some of those amendments are not so much technical. There is a degree of substance in them, because they tighten up some of the exclusions on lobbying. It is important that they do that, and we welcome that.

Amendment No 34 is significant. It is a new clause. In a sense, it is a substitute for the previous clause 9, which created a criminal offence for the use of unofficial systems. For a couple of connected reasons, that gave us pause for thought. One was that, frankly, it seemed fairly draconian to make it into a criminal offence. We could not agree to it being a criminal offence for that reason. Secondly, it did not seem to reflect some of the realities of how not just civil servants but special advisers and Ministers do business, often in an entirely innocent way. The Bill's sponsor addressed some of that in the original clause and has changed some of it here, in the sense that there is a 48-hour period in which you can put information on official systems. However, there are two outstanding questions, and it would be helpful if the Bill's sponsor were to clarify them when he comes to speak. One is around devices. The amendment as currently drafted refers to:

"anything other than devices issued by the department, systems used by the department and departmental email addresses."

That seems to suggest to me that it will capture people, such as many of us in the Chamber, who use our Assembly email on our iPhones or personal phones. There are probably lots of civil servants in a similar position. The amendment, it seems to me, will capture that. I am sure that that is not what it is intended to do, but it would be helpful if the Bill's sponsor could clarify that. Secondly, there will be a significant amount of contact between Ministers of different Departments, and between Ministers and special advisers and other people, via text. Lots of that will be routine and not substantial departmental business. We have a concern that this amendment, as currently drafted, might capture that. It would be helpful if the Bill's sponsor could make clear, when he speaks, his position on that and why he thinks it is or is not included.

I welcome amendment No 35, which is a tidying-up measure.

I am very pleased to see amendment No 36; as I said, we think that it is possibly the most important amendment that we are debating today, and I will explain why. Amendment No 36 removes civil servants from the scope of the criminal offence, which is that of unlawful disclosure. Let us be absolutely clear: as legislators, one of the biggest and most serious things that we can do is to create a criminal offence and, thereby, create a new possibility of someone being deprived of their liberty. It is really important that we are very careful about how we use that power. We felt that, not just in the context of RHI but more broadly, the Bill would be better narrowing the scope of that potential criminal offence to those people whose culpability is, naturally, higher than that of others. If you are a Minister or a special adviser, then your culpability —. Mr Allister knows a lot more about the philosophy of sentencing in the criminal law framework than I ever will, but my understanding is that, the more culpable you are, the more serious the penalty should be. If you are a Minister or a special adviser, your culpability is automatically higher. There are more than 20,000 civil servants in Northern Ireland; to have all of them potentially caught up in a criminal offence would have a chilling effect.

Nevertheless, there is a very real public concern about some of the actions that were highlighted through RHI. There is a broader concern, frankly, that has permeated in the last decade or so around practices, around information being disclosed to certain parties and around levels of good governance and standards. There is a significant argument that, if we can get that criminal offence right, it might help answer some of that concern and create a specific deterrent — that is the word that I was looking for — to certain types of bad behaviour.

As I said, we are not going to move amendment No 37, because others have done it better. I mentioned the Bill sponsor's amendment No 36; the Minister's amendments from No 38 to No 42 are better than ours because they clarify and lead to a more focused clause 10, which will hopefully mean that the offence that will be created if the Bill is passed will be more focused on those whose culpability is highest and that activity that is not sought to be in the scope of the Bill will not be captured. Ideally, this offence would never be invoked and no one ever prosecuted under it, because it improves behaviour.

We have no objection to amendment Nos 43 and 44.

I will move on to amendment No 45. This is the only one of our three amendments that we will move. It relates to clause 13, which is the Frew clause, as it were. It is about scrutiny by Committees. I have been in the Assembly a little over a year, and it is clear to me that the work of Committees is fundamental to the Assembly. It is where some, if not most, of the best work is done.

There are clearly inconsistencies in the information that Departments share with Committees and the level of information that Committees get. There is no doubt about that. Broadly speaking, there is merit in the clause, which is why we supported it at the previous stage. However, our amendment clarifies it. It makes more sense for the Department in question to share information. Statute should provide that the Department has to share its monitoring bid with the Committee within seven days of its having been submitted to the Department of Finance. We want to avoid a bidding war, or a bun fight, inside Committees, before something is submitted to the Department of Finance. There is no SDLP party or departmental interest in this. It is simply put on the basis that this provision would work better.

If this provision goes forward as it is, Departments will have to send stuff to Committees in advance of it going to the Department of Finance. There is nothing to stop a Department doing that if it wants. However, if it is in law that Departments have to share their bid with the Committee before they send it to the Department of Finance, surely that would be a strong political incentive for members of the Health, Education, or Communities Committee to say, "Hang on, why are you not bidding for this, in my constituency? Why are you bidding for that thing?". It is genuinely a straightforward question. Why create a perverse incentive? We are all politicians in this Chamber, apart from the officials who have to sit and listen to us.

Photo of Jim Wells Jim Wells DUP

Would it not be absolutely terrible if members of a Committee, having had that information released to them, used it as an opportunity to push for deserving schemes for the benefit of the people of Northern Ireland or their constituency? We cannot have that going on in the Assembly. That would be terrible.

[Laughter.]

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

There are a couple of things that I can say to that. There is nothing stopping anyone doing that, of course. The logical extension is that you get information, in live time, from the Department and you can check and second-guess every email sent out by a civil servant.

Personally, I do not think that that is a good way to do government or scrutiny. Our job is to scrutinise. Co-creation is a good thing, and, yes, we input into the policymaking process, but there is a limit to which it is constructive to have MLAs second-, third- and fourth-guessing information as it is being debated live in the Executive. There will be no shortage of opportunity for people to call for money to be spent on particular projects. I will be doing a lot more of it in the weeks to come, as we debate and scrutinise the Budget that was presented last night, the January monitoring round.

I worry that, if we create a provision in statute where a bid has to go, effectively before it has been finalised, to a Committee, what you are saying is, "Here is our draft. What do you think of it? Will you help us with our working out?".

Mr Frew is a great speaker and a very good collegiate Committee colleague. I have learnt that he is completely sincere in his belief in the importance of scrutiny. I agree with him on a lot of it. However, we have to be realistic: virtually all of us, with the possible exception of Mr Wells, are members of a political party. Even Mr Wells is not completely apolitical. We are politicians, and getting this information about how much the Health Minister has bid for in relation to a specific area of care or a specific development in a hospital in a particular area is of interest to us.

Not so long ago, Mr Wells convincingly pointed out the difficulty that he had as Health Minister in carrying out important health service reforms because of the tendency for MLAs to be very protective of their local patch and rather parochial about these things. I say this to him: clause 13 would deepen that challenge because it would create an incentive for MLAs to ask, "Why did the Communities Minister not bid for more 3D pitches? I want a 3D pitch in my area". I could go on.

Photo of Paul Frew Paul Frew DUP 4:00 pm, 19th January 2021

I thank the Member for giving way. He is very gracious with his time.

Nowhere in clause 13(1) does it say that any Minister has to gain the approval of or get ratification from their respective Committee before submitting a bid to the centre, and I would not request or support that. It is not a Committee bid or a shared bid; it is the Department's bid. The officials will have spent months on these issues. One thing that I have learnt is that Committee members usually give due respect to the expertise of officials. It is not a Committee member's job to formulate or ratify a bid.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I am grateful to the Member. What he said is true in a literal sense, but my argument is not that clause 13 creates a power for the Committee to say yea or nay to the bid; I am saying that it creates a political incentive for members of that Committee to second-guess and challenge. I am sure that I will challenge the Finance Minister about what is in the Budget before too long, and I will challenge other Ministers on how they have spent money. All I say is that the provision creates a specific unintended consequence. It is not about whether the Committee approves the monitoring bid, and I am not saying that. Unfortunately, it creates a fairly distorted political incentive.

I go back to something else that the Member said about amendment No 45. My Committee colleague Mr Frew said that Committees would never know whether the Department had asked for more money. Nothing is stopping the Committee getting that information. Nothing is stopping the Committee making the request and the Department giving its original bid. I am sure that, very often, it will be in the Department's political interest to say, "We bid for another £50 million, but Conor Murphy did not give it to us". The point that I make is that it is better to do that after the fact. If you insert a Committee process where you suggest, it will create unintended consequences. Therefore, amendment No 45 is the one amendment that we will move today.

Given that we have all spoken for so long on the Bill, I will keep my remarks brief, other than to say that I welcome the fact that we have made progress in particular areas. I am not in any way naive about the capacity of legislation to reform completely the culture of our politics, good practice in governance or standards in the Civil Service; nor am I saying that everything about our system of government is bust. We believe passionately and profoundly in the Good Friday institutions, and that belief is at the core of our party. Given my previous life, I also believe in the role, function and work of special advisers. I believe that most politicians — even politicians in the Chamber with whom I profoundly disagree — want to deliver for their communities and for the people whom they represent. Civil servants do a huge amount of good work. I will never be found wanting when it comes to talking up the capacity of civil servants versus that of politicians because I know the difference between the two roles. Notwithstanding all that, the Bill has substantial merits. The SDLP still has specific reservations but is broadly supportive. As I said, I want a bit more clarity on specific areas, but my mind is not closed. Those areas are the Minister's amendment to clause 7 and the Bill sponsor's amendment No 34. At that, I wrap up my remarks.

Photo of Andrew Muir Andrew Muir Alliance

I rise on behalf of the Alliance Party to speak on the amendments in group 2.

My party will support amendment Nos 18 to 20, which are technical amendments to clause 5.

Amendment Nos 21 and 22 rewrite clause 6 on the requirement to maintain minutes of meetings. Both amendments improve the wording that was passed at Consideration Stage, as they tighten the definition so that it refers only to meetings where policy or spending decisions are taken. I note that the SDLP does not intend to move amendment No 21. Before we even knew that, my party's preference, on balance, was for amendment No 22, which places the requirement on permanent secretaries to put relevant arrangements in place and provides further detail regarding what is and is not a relevant meeting, as well as what constitutes a ministerial decision.

Moving on to clause 7, we support amendment No 23 proposed by the Finance Minister. It tightens the definition with regard to where the presence of a civil servant is required and includes meetings with elected representatives of another Parliament in the UK or Ireland. I know that there are different views on that amendment in the Chamber and welcome the debate. However, on balance, I feel that it is right to support the proposed changes.

We will support amendment Nos 25 to 33, which will help to ensure that clause 8 will not present an unrealistic burden on Ministers and special advisers by clarifying when they need to record lobbying. We maintain that additional specific legislation is required in that area, specifically on the creation of a register of lobbyists and to place more of the burden on the lobbyists. Some of the arguments that were outlined at Consideration Stage still apply with regard to the appropriateness of some key elements of the legislation and whether it will add to the better functioning of government or detract from it.

We will oppose amendment No 34, the new clause 8A, which would reintroduce the provisions on the use of official email systems and devices that were rejected at Consideration Stage, this time without the criminal sanctions. Concerns were raised at Consideration Stage about how that law would work in practice, and they have not been addressed. I have my own iPad, laptop and iPhone; largely, I use my own devices. That is the way of the world nowadays, in 2021. By passing the amendment, we would pass bad, impractical law that would inhibit the functioning of government and would not reflect the reality of how communications occur at the moment. I urge Members not to support the amendment.

Proper record-keeping and the use of official systems by Ministers and spads are essential components of good governance. At this stage, we maintain that that is better dealt with through relevant codes than by inclusion in the legislation. We are passing legislation here — not codes — that places requirements on how government will work. We have to tread carefully.

Amendment No 35 addresses a concern that we raised at Consideration Stage regarding the register of interests and the definition of a "close family member". We note that amendment Nos 35 and 54 substantially attempt to achieve the same thing. We will support amendment No 35 with its definition of "partner" and tighter definition of "close family member".

Amendment Nos 36 to 42 deal with clause 10 on unauthorised disclosures. We raised concerns with clause 10 at Consideration Stage, including the overlap with the offence of misconduct in public office and the potential impact on lower-grade civil servants. The amendments will go some way to dealing with the latter point in particular, but they do not leave the legislation in any way perfect.

We will support the amendments relating to the monitoring rounds tabled by the Finance Minister and the SDLP. Our view is that those changes in relation to monitoring rounds should not be in legislation. We need to be practical about how that will operate. In some ways, the amendments make that more practical, but not passing them would make the issue around monitoring rounds and how they work and the interface with Committees even more cumbersome.

Once again, I thank all those who contributed to the amendments and Members for the important debate. Whilst my party does not agree with everything in the Bill — there is a substantial amount that we do not agree with at all — many of the amendments will improve it before, potentially, it becomes the law of the land. That is why the debate is so important.

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

The amendments that are before us once again prove the weakness of the original piece of draft legislation. The original, as published by Mr Allister, had 15 clauses in a seven-page Bill, which is a very short piece of draft legislation. As a collective, we have tabled a total of 81 amendments to that 15-clause, seven-page Bill. That is 81 amendments to a piece of draft legislation that was published with great gusto as something that was going to cure all the ills of the Assembly and Executive and resolve the issues in the RHI report. Clearly, it was not capable of doing that in its original format. If the Assembly passes the Bill, it will go down in history as Jim Allister's private Members' Bill, but it is no longer Jim Allister's private Members' Bill; it is a Bill that has been brought together by a variety of resources and individuals who are trying to make bad legislation workable.

Photo of Paul Frew Paul Frew DUP

I thank the Member for giving way. Does the Member realise that the way that he comes across makes it sound like a personal vendetta against the Bill's sponsor? Given the way the Bill was designed and notwithstanding the Minister's amendments, I was able to table an amendment that had nothing to do with previous clauses. I was able to add it on. Perhaps that is a positive, not a negative, for the Bill.

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

I do not know how it comes across to the Member. I have no strong personal feelings about Mr Allister either way. I am politically opposed to him. Like the Member, I try to make friends. I know that you spend a lot of time in Committees trying to make friends. I try to make friends too. I am maybe not always as successful as you are, but I do my best.

I want to give an example, and Mr Muir touched on this: we are making legislation, not passing a motion in the Assembly. Legislation has consequences, and the consequences of passing legislation here could have a very detrimental impact on the functioning of government. The purpose of the Bill is to — allegedly — improve the functioning of government.

How will the clauses be implemented? If you look at amendment No 29, you see that it relates to clause 8 and, as we discussed at Consideration Stage, when a Minister is lobbied. How do you define that lobby? How do you manage what is and is not an important lobby? There was some discussion back and forth on that. We have now reached a point where Mr Allister has amended his Bill to say that it is a matter for the Minister to determine whether a matter is "inconsequential". Previously, we used an example of a Minister coming out of a supermarket, so I will stick with that. That Minister might be lobbied about street lighting. The Minister may walk away and say, "That's not important to me. That should not be reported". However, the member of the public thinks that it is important. Perhaps they did not declare that they were the chairperson of the local residents' group and were making a representation on behalf of the group in that area, or they did not declare that, as a result of poor street lighting in the area, someone had been knocked down and killed. The Minister, however, has made the decision in his or her head that it is not important so has not registered it. Six months later, the Minister might be pulled up on it and told, "Minister, you have breached the legislation. You were lobbied on an important issue — street lighting — and a person died as a result of poor street lighting. You did not register it". Who decides who is right or wrong there? The legislation does not give an arbitrator for that. Perhaps it is the courts; maybe that is Mr Allister's intention. It seems a bit extreme, but perhaps the most extreme circumstances would go to the courts.

It strikes me as poor legislation. I know that the Minister tabled amendments for the same clause in an attempt to tidy it up, but it shows that legislating for every incident is, if not impossible, almost impossible.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Does the Member think that when the Copyright Act talks about not needing to do things that are incidental it too is bad legislation?

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

I tip my hat to the Member's knowledge of the Copyright Act. If you pay another barrister enough, I am sure that he or she would argue that point with you, hence the reason why we have so many barristers.

On the statute books, there are laws that are good, bad or unwieldy, but do we need to add other legislation that is the same? I will use this amendment as an example. Those who are genuine about the process are attempting to pass legislation for good governance, but the Bill will not achieve that goal because there are so many different aspects to it.

In the Minister's winding-up speech on the last debate, he pointed out an important issue. The Bill, from the point of view of the sponsor and others, is about improving the functioning of government. Right? The Minister pointed out that there is an agreement in NDNA on how to deal with the recommendations in the RHI report, which is not to legislate. The Minister revealed that there is an Executive agreement — apologies if I am putting words into the Minister's mouth; he can correct me later if I am not exactly right on this — on how to deal with the RHI recommendations, and it did not involve legislation. To those supporting the legislation, tell me this: how can the functioning of government be improved if an agreement is breached? What does that do for the confidence of the parties sitting around the Executive table and working together if the legislation is in breach of an agreement? Think of the consequences of that, if you are not thinking of the consequences that this legislation will have in trying to administer good government.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The basic tenet of the Member's contention is that legislation is not needed because all these things could be provided for in codes. The Member might have more credibility on the issue if he and his party had not voted in 2013, in my first private Member’s Bill, on the necessity for codes. The Civil Service (Special Advisers) Act (Northern Ireland) 2013 provides that codes shall be in place. It was Sinn Féin that sought to vote that down. Now they tell us that codes are enough. Does the Member not think that he should take a look in the mirror before he makes that comment?

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

Again, the Member tries to cite an example as a blanket response to all scenarios. There will be scenarios in which codes or legislation, or a hybrid of both, are enough. You cannot say, "You said a, b or c once, so that is a definitive position on all". Mr Allister, the point is that it was not Sinn Féin that said that codes were enough; the Executive said that codes were enough. A Bill to improve the functioning of government that is based on breaching an agreement from that Government is surely not getting off to a good start. I will end on that point.

Photo of Pat Catney Pat Catney Social Democratic and Labour Party

The group 2 amendments speak to the key reforms that are required in government. They concern reforms of how meetings take place, how they are recorded and how information is provided for those meetings. They address requirements on who must be in attendance at meetings so that there is optimal transparency. They also address reforms of lobbying so that the public can be assured of complete fairness in Ministers' decisions, reforms in how technology is used and provisions for the suitable use of computers and data. It is important, however, that we strike the right balance. The provisions must be effective in promoting reform and transparency, but they must not be cumbersome. The provisions must allow for the effective functioning of government and must not prevent that by creating an environment of restrictions, which require so much time and energy in order to adhere to noting those functions.

Most of the amendments strike that correct balance and will add to and improve the functioning of the Bill.

I welcome the Minister's amendment No 22 to replace clause 6 and thank him for the clarity that he has given. We must be clear about what constitutes a relevant meeting and an official ministerial decision. Ambiguity could lead to inaction, which goes against what the Bill is trying to achieve. The amendment gives clarity, so it is an improvement.

I am happy to support the amendments on lobbying. They allow for the reforms needed and set out how the provisions will operate in real-life terms. That should allow for better functioning of the provisions and an improvement in impact.

On the new clause proposed by amendment No 34, we welcome the movement that the Bill's sponsor has made on the criminal penalty. That was a sticking point for us as well as for the Northern Ireland Human Rights Commission. I am still concerned about the provision, as it will impact on the fast-paced way in which communication occurs in this day and age. I fear that it may be too easy to fall foul of the clause through zero fault. It therefore creates an undue burden.

I want to speak to the amendments standing in my name and that of Matthew, even though some of them will not be moved. Amendment No 21 is adequately covered by amendment No 22, which the Minister tabled, and therefore does not need to be moved. Amendment No 45 would allow for an extended timescale in clause 13. As I said at Consideration Stage, I understand the importance of clause 13 and the need for information to be provided to the House for scrutiny in a timely manner. We all have clear examples of what should not be done: for example, when we debate health regulations that are already a month out of date. This past year, however, has shown us that we can never be sure what is around the corner, and legislation must, as far as is possible, deal with all scenarios. Our amendment No 45 would allow for the scrutiny that is needed, as well as the flexibility. Again, this is about the Bill being able to allow for the normal functioning of political life while creating the reforms necessary.

Photo of Jim Wells Jim Wells DUP

First, I congratulate Mr Allister, because I think that he is on the cusp of being the first MLA in the history of perhaps not just the Assembly but the Northern Ireland Parliament to have successfully steered two private Member's Bills through this Building. That is a remarkable achievement. Mr O'Dowd paid Mr Allister a backhanded compliment by saying that his Bill had attracted 81 amendments: that shows the scrutiny that Mr Allister has had to face to get his Bill through. I have listened to the contributions from Members, and it looks as though he will be successful in that respect; indeed, I understand that he will get a copy from the Palace of his private Member's Act after Her Majesty gives it Royal Assent. At least, Mr McCallister got one for his Caravans Act. He was delighted to have it, and I am sure that it is behind glass in a drawing room somewhere in South Down.

Mr Murphy seems to be somewhat confused about my status in the Building. I am a semi-detached member of the DUP. Outside the Building, I am the official DUP MLA for South Down; inside the Building, I am an independent unionist wandering in the political darkness and wilderness without the friendly advice of spads and Chief Whips. I miss them so much

[Laughter.]

I am therefore Whip-less and spad-less, and it is absolutely blissful. I am in exactly the same position as Mr Jeremy Corbyn, the former leader of the Labour Party, who is still a Labour MP, but, when he is inside Westminster, he is an independent. I know that Mr Murphy and Mr O'Dowd have been agonising over my status for many months, but it gives me the freedom to say that my experience of spads has not been a happy one and I am delighted that Mr Allister's Bill has made so much progress.

Can there have been a Member who has bent further backwards to meet the concerns of Members about his Bill? In the corridors of the Building, I have many times heard, "That was wonderful, that was sensible, but it comes from Jim Allister. If it comes from Jim Allister, it must be suspect". How often do we hear people measure a Bill, a motion or a question not by its content or validity but by the person who is articulating the argument?

We come now to a crucial stage in the Bill. I am glad to say that there seems to be a coalescence, if I read the tea leaves correctly. Even on the second group of amendments, there is a fair degree of agreement, which surprises me. I told the people back at home not to expect to see me until 2.00 am: actually, it looks like they will see me at a sensible time. That shows that sense is prevailing.

I detect from Sinn Féin that it knows that it has lost the battle, that this is the endgame and that Mr Allister has been able to convince many MLAs of the benefit of the Bill. The one thing that neither Mr O'Dowd nor Mr Murphy, who are the two last big hitters left in Sinn Féin in the Building — big in both stature and political experience — has realised is that codes of conduct and legislation are not mutually exclusive. You can have both, and that is what Mr Allister's Bill, along with the amendments, is trying to achieve.

We all hope and pray that the legislation will never be needed. We hope that the great list of codes of conduct and gentlemen's agreements that Mr Murphy has been eulogising will keep the spads under control and that we will not have a repeat of the dreadful, awful situation that arose as a result of RHI, when spads from all parties broke every code of conduct, every rule in the book and every gentlemen's agreement that was possible. Therefore, we hope and pray that Mr Murphy is right. However, just in case he is not, it is good to have effective legislation to set the framework and to let the spads know that their cards have been marked and that, if they step out of line this time, we are taking it extremely seriously. Remember that, as a result of their activity, the Assembly was frozen in time for three years. Important decisions were not taken, and there was no control over the Executive of this country for an entire three years. That was a direct result of the misbehaviour of the spads.

I suppose that Mr O'Dowd and Mr Murphy are concerned that the one thing that the Bill will achieve when it is passed is that it will stop Connolly House becoming the fulcrum of power in this country, where decisions sat waiting to be made — maybe for many months — because shadowy figures in the darkened dungeon or basement of Connolly House decided —.

Photo of Christopher Stalford Christopher Stalford DUP

Perhaps Mr Wells could speak to the specifics of the amendments that are being debated here. I noted his remark that he had warned his people that it might be 2.00 am before he got home, so I hope that he will not take it as a challenge to keep us here that long.

Photo of Jim Wells Jim Wells DUP

I assure you, Mr Principal Deputy Speaker, that, as everybody else has been relatively brief this evening, it is incumbent on me to be the same. However, I still wanted to get one or two final digs in before the end of the debate, and time was running out.

If all we achieve is that we have reduced the number of spads, reduced their pay to a sensible level, stopped them operating out of Connolly House and made them think twice before they leak information to outside bodies, the Bill will have been a success.

Photo of Paul Frew Paul Frew DUP

I thank the Member for giving way. Sinn Féin across the way here has said that the Bill should not go ahead and that the Executive parties should not support it, because of an agreement. However, a subcommittee was set up to review the RHI inquiry and its findings. Surely, if that is all that the Executive can come up with, we have been short-changed as a people. Surely, there has to be more reform from the Executive on the RHI inquiry that the Bill could be part of.

Photo of Jim Wells Jim Wells DUP

The Minister and his permanent secretary, along with senior officials, came before the Committee on many occasions and talked to us about the agreement that had been made by the Executive. That basically indicated to us, as mere Committee members, that the Executive as a corporate body had decided that the legislation was not required and should be opposed.

That was very interesting because four of those parties allowed their members at Second Stage to eulogise Mr Allister's Bill and say that it was the best thing since sliced bread. The Chair of the Committee is the leader of the Ulster Unionist Party, but there was absolutely no indication during the Committee's scrutiny of the Bill that he was tied to any decision that had been made at the Executive.

There have been some tweaks and minor amendments since then. Mr Muir, of course, is speaking the words of Mrs Long; if we want to hear what Mrs Long is thinking, we get it from Mr Muir. By the way, Mr Muir, you will be rewarded in heaven for what you have done today. I know that you are far too intelligent to believe what you said today, but you are following the advice of your leader. I understand that.

The point that I am making is that, even with that, it appears that four of the five parties around the table did not actually believe that they had signed up to that. Even today, the two remaining big hitters of Sinn Féin — the two big beasts in the jungle — believe that some mythical decision was taken to oppose the Bill. Where is the evidence of it? We will be having visions this evening that many of the members who signed up to that so-called Executive decision will vote in favour of Mr Allister's Bill. In fact, some of them will vote to strengthen it. I just do not get that.

The one area on which there has been some debate today is the use of official systems. Again, with Mr O'Toole, you do not get his words; you get those of Mr Eastwood. Mr Eastwood has told Mr O'Toole what to say. Your good work will be rewarded in heaven. You are on the fast track to greatness. I am on the fast track to obscurity; you are on the fast track to promotion.

He fails to read the amendment by Mr Allister. I accept what Mr O'Dowd said: when he goes to the supermarket, he gets lobbied about street lighting, and he takes down material on his personal iPhone. I have the oldest mobile phone in Northern Ireland and probably one of the oldest mobile phones in Europe; it is only 21 years old. We will soon reach the stage at which there will be MLAs in the Building who are younger than my mobile phone. Even I, when I was Minister, would have been caught by a constituent saying, "What are you going to do about that surgery?" or, "What are you going to do about that hospital waiting list?". I would have put the details on the little Dictaphone in my decrepit ancient phone. The amendment is quite reasonable; it states:

"within 48 hours, or as soon thereafter as reasonably practicable, ... copy to the departmental system any written material generated during the use of non-departmental devices or systems".

Mr O'Toole, you are half my age. You have many mobile phones, iPads etc. If you were a Minister — no doubt you will be some day — and got caught in Sainsbury's or, you could —.

Photo of Christopher Stalford Christopher Stalford DUP 4:30 pm, 19th January 2021

Mr Wells, all remarks go through the Chair. You are here long enough to know that.

Photo of Jim Wells Jim Wells DUP

I was here before you were born, Mr Principal Deputy Speaker.

[Laughter.]

You were not born in 1982; I am certain of that.

Photo of Christopher Stalford Christopher Stalford DUP

I was born in 1983.

Photo of Jim Wells Jim Wells DUP

Exactly.

Mr O'Toole can go home to his palatial mansion at the top of the Malone Road and ask one of his domestic servants to download the material and transfer it to the departmental system. A time frame of 48 hours is perfectly reasonable. Why is it a dreadful imposition to ask people to do that?

He asked — it is a valid question — what is important and what is not. Download everything and then you have nothing to worry about; simply transpose everything to the departmental official system. If Mr O'Dowd's suggestion were to arise, in which, while walking through Lurgan, he meets a constituent who complains about street lighting and then, after that conversation, somebody gets killed, the precautionary principle is to send the details of the conversation to the departmental system. He, of all people, should know that; he was Minister of Education for many years. He was certainly an awful lot better than his predecessor, but I guarantee you that that is not a compliment. He would have known, with his vast experience, how to do that. As Minister of Health, I certainly would have known how to do it. Again, Mr Allister bent over backwards to make a reasonable amendment, and amendment No 34 is, in my opinion, more than reasonable.

This entire exercise has been good for the Assembly. It was good for the Finance Committee because there was a keenly fought interchange on the Bill between various Members of the Assembly. For the most part, the Bill has been improved as a result of that scrutiny. Members have articulated very well, often the views of their Minister, no doubt, or the views of their party leader, but they have articulated those extremely well. I have listened to every minute of scrutiny in the Finance Committee and been here for every minute of the debate, and I think that the Assembly will be a much better place. Unfortunately, some of those who transgressed are still stalking the corridors of this Building. Should they ever think of transgressing again, they will think long and hard before doing so. The spectre of Jim Allister will haunt them for many years to come — long after he has left the Building. Yes, that is an awful thought; I realise that. That, to me, will make all of this worthwhile. I am very confident that, when the Division Lobbies are opened — I will be a Teller — Mr Allister will enjoy considerable success, and he is to be congratulated on his efforts.

Photo of Christopher Stalford Christopher Stalford DUP

Mr Allister is to become a spectre, and Mr Muir and Mr O'Toole are on their way to heaven. I am reminded of the line in 'Fawlty Towers':

"If the good Lord is mentioned one more time, I shall move you closer to him."

That is not a threat, Mr Wells, I promise.

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

I will not comment on whether I will get through the gate of heaven. After this debate, it is unlikely.

I want to speak to the clauses behind the amendments in group 2. There is some important stuff in the amendments that my party and I oppose, and I will speak to that now. Recording minutes, having a register of interests and ensuring the presence of a civil servant at meetings are some of the most basic forms of accountability and transparency that should be expected of Ministers. That a Bill is needed to tighten up or, in some cases, introduce those measures is testament to the lack of accountability that we have seen from this Executive for too long.

To be honest, the legislation could go much further. Some amendments, in particular amendment Nos 23 and 28, would even water down transparency and accountability measures. Amendment No 23 would allow for a wide range of meetings about official business at which a civil servant did not need to be present. That could, undoubtedly, result in a meeting between a Minister from the Executive and a Minister from across the water, in which they talk about schemes involving public money, not being recorded and decisions not being registered. It would be a repeat of the lack of transparency that gave rise to the likes of the RHI scheme being implemented. The Minister's reasoning was that asking civil servants to attend every meeting would be too tall a task. My response is that the risk of allowing the official business of Ministers to go unrecorded and unaccounted for is far greater, especially given the various botched schemes and previous scandals that, unfortunately, attest loudly to that.

I do not think that anyone would expect a civil servant to attend a meeting of his Minster's party or every meeting with an MLA in the House. However, when Ministers are acting in an official capacity or engaging in official business, one has to wonder what they would have to hide and why they would oppose a civil servant being in the room. Some time ago, David Sterling mused that records of meetings and recorded minutes might be embarrassing for some Ministers and their parties. Perhaps that is why there is some opposition to having civil servants in such meetings. Whatever the reason, we do not have any truck with it. If you are in official meetings, potentially discussing the expenditure of public funds and making decisions that impact on people in our communities, you should be prepared to be on the record and in the minute book, and you should be prepared to be totally honest about what is being said and, potentially, being agreed. If we expect people on universal credit to detail, in an online journal, every aspect of their life and how they spend it to get very meagre benefits, and if they do not, they are financially penalised, the least that we should expect from our Ministers, who are very well remunerated, is that they ensure that their meetings, especially those relating to their Department and actions taken by them, are recorded. We cannot have one rule for Ministers and another for everybody else.

Amendment No 28 seeks to curtail the need to record lobbying in some instances. Again, for me, this is unacceptable and not necessary. I have not heard a good explanation of the rationale for that either. In this case, the Bill reads:

"'being lobbied' means to receive personally a communication ... relating to: (d) the exercise of any other function of the department."

Lobbying is lobbying is lobbying. If someone, or their party, potentially, sits to gain from that lobbying, it should be registered — simple as that. I cannot think of any function of any Department that should be free of registering lobbying, and I do not see here the justification or rationale for that or the need for the amendment.

An aspect of amendment No 33 would give leeway in the recording of lobbying from community groups when the lobbying is done on an issue which is mutually beneficial to all sections of society. My concern here would be that the judgment of what benefits all of society could vary from Minister to Minister. Indeed, I argue for issues in this Chamber that community groups endorse and that I believe would benefit all aspects of society, but there are people here, probably on the Benches opposite, who would robustly disagree with me on those issues. In this case, I am unconvinced that a Minister could be totally unbiased about the impact of individual cases of lobbying when making a decision in that regard.

I want to speak briefly to amendment No 22, elements of which give concern to me and my party. For instance, in a totally hypothetical scenario, if a Minister and their spad were to hold a meeting with Moy Park as official business but a civil servant was not present, relevant arrangements would not have to be put in place to record an account of that meeting. I do not think that I need to explain to this Chamber why I think that such meetings should be recorded.

That is further reason for our opposition to amendment No 23, which would see vast exemptions to meetings where civil servants need to be present. Again, this is a basic function of transparency and accountability. I hope that, in his closing remarks, the Minister will provide some clarity on the outworkings of amendment No 23.

Finally, I wish to speak to amendment No 36, which we welcome. To lump civil servants in with Ministers and spads would be a mistake, and that was touched upon in the previous debate, many weeks ago. It is not only in the case of culpability, but, hopefully, this amendment can protect the many ordinary workers in the Civil Service who need to be protected by this Bill.

Photo of Christopher Stalford Christopher Stalford DUP

Thank you. I call the sponsor of the Bill, Mr Jim Allister.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

In this group, there are a number of issues of non-controversy and some of some controversy. To begin on a non-controversial note, in respect of clause 5, amendment Nos 18 to 20, I take no issue.

In respect of clause 6, the only one now in play is amendment No 22. I want to get some amplification from the Minister on a couple of aspects of his amendment. When it says:

"The permanent secretary to a Northern Ireland department must ensure that relevant arrangements are put in place." and:

"'Relevant arrangements' are arrangements designed to ensure— (a) that an appropriate written record of each relevant meeting is compiled by the civil servant ... attending the meeting."

What is an "appropriate written record"? That, by its very nature, is wholly subjective. Is that an appropriate written record in the eyes of the Minister or of the civil servant or of someone else? Could it, within that ambit, be appropriate to have no record?

Is that within the ambit, or is it guaranteed to us that there will always be a record of some nature and that the appropriateness informs the extent and the content rather than the existence? I would like some amplification from the Minister on what we should understand by the phrase "an appropriate written record".

The amendment then says:

"the written records mentioned in paragraphs (a) and (b) are retained in accordance with the department's policy on the retention and disposal of records."

A Department's policy on the retention and disposal of records can, of course, be a moveable feast in that over time, presumably, it can change. What may need to be retained today may not need to be retained tomorrow. So are we in that amendment subjecting ourselves to the whim of a particular Department to change what needs to be retained? I would like some insight into and undertaking on that.

(Mr Speaker in the Chair)

Is a Department's policy on the retention and disposal of records itself subject to Assembly scrutiny, or is it a policy that is made and changed internally in that Department without Assembly scrutiny? I would like some clarification on that before I agree to bind myself to amendment No 22.

The final point that I want clarity on is whether each Department can have a different policy on the retention and disposal of documents. The policy is Department-specific, but is there commonality today or tomorrow in Departments' policies on the retention and disposal of records? If the Minister could provide satisfactory responses in those regards, clause 6 as amended by amendment No 22 is something that I would probably be amenable to, but I want those clarifications.

I then want to come to clause —.

Photo of Steve Aiken Steve Aiken UUP 4:45 pm, 19th January 2021

I thank the Member for respectfully giving way. There are concerns with the TRIM system, which is the Civil Service's record-retaining system, and how it retains and accounts for records. The Minister might in his remarks refer to how the systems would be recorded, because there is considerable disquiet with the TRIM system. That might colour the Assembly's view on voting for the amendment.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I am grateful to the Member. I think that the terminology has changed of late from TRIM, but no doubt we will hear about that.

Of all the Minister's amendments, amendment No 23 is the one that gives me the greatest difficulty. In seeking to suggest to the House that it is not an amendment that is worthy of support, I ask it to consider the relative simplicity and intelligibility of the existing clause 7. That simply says:

"A civil servant, other than a special adviser, must be present and take an accurate written record of every meeting held by a Minister or special adviser with non-departmental personnel about official business; except for liaison with the Minister's political party."

To that I intend to add, out of deference to the point that Ms Sugden made:

"or other Members of the Assembly".

Clause 7(2) is very important in this situation. It states:

"The department must retain the record made pursuant to subsection (1)."

Clause 7 requires that a record be made about official business with non-departmental people, and clause 7(2) requires the retention of that record.

The first thing that alarms me about amendment No 23 is that it wishes to remove not clause 7(1) but all of clause 7, including clause 7(2). Therefore, the amendment changes the circumstances in which a note has to be made but obliterates entirely the obligation to retain a note. That is the fatal flaw in amendment No 23. Even when a note is kept, there is no requirement to retain it or to put it on the Department's system, as described in amendment No 22. There is no statutory obligation to keep a note.

Amendment No 23 does two critical things: it diminishes the circumstances in which a note should be taken, and it totally obliterates the need to keep any note that is taken. That is what alarms me most. Amendment No 23 also alarms me because of the scale of the exemptions that are written into it. We need to remember that amendment No 23 is about official business:

"A Minister, or special adviser, who holds a meeting with a third party about official business must take such steps as are reasonable".

We need to disabuse ourselves of the idea that this is anything to do with a supermarket meeting. This is about holding a meeting on official business and then taking such steps as are reasonable to ensure that meetings are attended by at least one person serving in the Civil Service who is not a special adviser. That subsection does not apply if the liaison is with the Minister's political party. Fair enough; common ground there. However, what it then goes on to do is to exempt a series of third parties, including Westminster, Scottish, Welsh and Dublin Ministers, and any Member of any legislative Assembly in the British Isles. What that means in practice is that if, for example, the Minister for Infrastructure, or the Minister for the Economy or whoever, was holding a meeting about the North/South interconnector with her counterpart in Dublin, under amendment No 23, there is no obligation to have a civil servant in attendance or to take or keep a note. If, for example, the Infrastructure Minister was holding a meeting about the A75 with her Scottish counterpart, under amendment No 23 as drafted, there is no need for a civil servant or a note.

Let us make the example a little more poignant.

If the Department for the Economy were working on a new RHI scheme and needed to go to talk to its counterpart in Westminster, no civil servant would be required and no note would be required. My, oh-my, was one of the lessons out of the RHI inquiry not about the trouble that that gets you into? I therefore really do not understand amendment No 23 in the scope of the exemptions that the Minister wants to see.

He talked about excluding meetings with the Attorney General. That, I think, is a red herring. It is not that there should not be a note kept of a meeting with the Attorney General. The point is that professional privilege would attach, and that note would never be seen by anyone, unless the Minister chose to release it. Meetings with the Attorney General are not the issue here, but meetings with other Ministers in other jurisdictions most certainly are. I say to the House that, having come through the experience of RHI, it should view amendment No 23 as really being a charter for non-transparency and worse. It seems to me that amendment No 23 is not one that should be put before the House, nor is it one that should be accepted by it. I therefore give notice that I will oppose amendment No 23. I urge support for amendment No 24, which deals with the previously made Claire Sugden point.

I come now to clause 8 and the amendments affecting it. Amendment Nos 25 to 27 are stylistic and technical, and I have no difficulty with them whatsoever. Amendment No 28 does trouble me, however, because it seeks to diminish the ambit of lobbying. Members will be aware that clause 8(2), with language borrowed from the corresponding GB legislation, which goes under the wonderful title of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, deals with the definition of what it means to be lobbied. It is a lift, effectively, out of the 2014 Act. It includes therefore the line that the Minister wants to exclude, which is that at subsection (2)(d):

"the exercise of any other function of the department."

The only difference there is that, because I am making these obligations Department-specific, it changes the language that was in the 2014 Act of:

"the exercise of any other function of the government" to:

"the exercise of any other function of the department."

If that is the language of the 2014 Act on what lobbying embraces, why would we want to change that? I do not yet understand the logic of amendment No 28. I suggest that the better answer to the supermarket encounter or the lobbying about the pothole is my amendment No 29, which bestows on the Minister the discretion to waive compliance with the need to register it if the subject matter is inconsequential. Obviously, that wording would not appear in this amendment if it were not wording that the Bill Office saw as tenable. I have already pointed out to Mr O'Dowd that language that some might say is imprecise, such as that, already appears in legislation such as the Copyright Act, where it indicates that things that are incidental need not be done.

We all understand what "incidental" and "inconsequential" mean. Certainly, if you were the Minister for Infrastructure or the Agriculture Minister and somebody lobbied you about the need to have a pothole fixed, you might well conclude that that is not something that needs to go into the departmental record. As a constituency Member, you would want to do something about that, but it is not something that you would feel compelled to, maybe, in your own discretion. Or if you met somebody who talked a lot of nonsense to you, as we all do, you might well decide that that was rather inconsequential.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Not in South Down, I am sure. You might decide that that was rather inconsequential and did not need to go into the record. Therefore, I say to the House that, if we accept amendment No 29, there is no need for amendment No 28. I suggest that that is the way to go.

I accept amendment Nos 30 and 32 and am aware that amendment No 31 covers the Claire Sugden point about Members of the Assembly. I then come to amendment No 33. The aspect of amendment No 33 that troubles me — well, there are two points. If we reject amendment No 28 and accept amendment Nos 29, 30 and 32, we do not really need amendment No 33. In some ways, it is anodyne and does not make a huge amount of difference, except that I am struggling to understand proposed clause 8(3)(e):

"made to a Minister by a member of the public in their capacity as a member of the public, or in their capacity as a community representative, and relating to a matter in which the person making the communication has only the same interest as all other members of the public or all other members of a section of the public."

What does that mean? The qualifier seems to be:

"has only the same interest as all other members of the public".

If that is the determinant, does that not make it a matter of public interest? Are we saying, therefore, that a matter of public interest should not be recorded? I am struggling to get my head around what proposed clause 8(3)(e) actually means in practical terms. I would certainly like some amplification on that from the Minister.

I then come to amendment No 34, which is a new clause. Yes, it has echoes of my failed attempt to insert a criminal offence at Consideration Stage, but my concern was that, in rejecting that, we had thrown the baby out with the bathwater, so to speak. I am trying to recover the baby with this amendment. I am not trying to make a criminal offence but to make it very clear in legislation what is expected of Ministers and special advisers. That is why amendment No 34 — the qualifying clause is again "official business" — states:

"when communicating on official business by electronic means" — you cannot use —

"anything other than devices issued by the department, systems used by the department and departmental email addresses" — and, if you do, you should copy it back.

If I understood him correctly, Mr O'Toole asked whether you could not simply use the departmental system on your personal phone. As far as I am concerned, it does not mean that. No matter where you have it, you are using a departmental system. I hope that that allays his concerns on the matter.

His other concern was whether that meant that you had to communicate every tittle-tattle of a text message into the official system. Well, no. The qualifier there is "official business". New clause 8A(2)(b) makes an express exemption that there has to be a record of "verbal communications of consequence". That goes back to the value judgement that the Minister must properly make. It seems to me that the same spirit would apply to your text message — that it has to be something of consequence. It is not setting up a timing arrangement for a meeting or a cup of coffee; it is about doing official business. If you do official business of consequence, it seems to me that the right place for that to be recorded in perpetuity is on the departmental system. It is best if you can do it there and then by using the departmental system, but if, of necessity, you cannot, then the sole obligation of this clause is to advise you that:

"within 48 hours, or as soon thereafter as reasonably practicable" you put it into the official system.

Photo of Andrew Muir Andrew Muir Alliance

Would the Member not consider that the inclusion of the words:

"anything other than devices issued by the department" poses a significant issue? You could log into departmental systems using your own iPad or your home computer or laptop. This amendment has been specifically worded and does not take into account the reality of how civil servants, Ministers and spads work nowadays.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I do not think that that is correct. If you are using your personal device to access the departmental system, I do not see a problem. That would not be thought to be a breach at all. I remind the Member that it is not a criminal sanction; it will not put anyone in trouble, in that sense. Rather, it is a timely reminder that RHI revealed that people were hiding emails.

I will remind the Member of some of the RHI evidence. There was a great search that arose from an issue about whether there was an email trail. There was, but it was not on the official system. Where was it? It was on a spad's DUP account. Eventually, through the actions of another spad, it was uncovered and, eventually, handed over to the RHI inquiry.

If we do not have something like this, how are we to discourage a continuation of that practice? That practice is for one purpose and one purpose only: to hide things. There is no other reason not to want this other than to hide things. Having come through RHI, it is important that we set a standard of what is expected and put it in legislation so that we put up in lights that what went on in the past will not be tolerated and that that is the standard that is expected and which must be adhered to.

Amendment No 34 has merit, and I urge the Member, who intervened on behalf of his party, to consider that his choice in voting on amendment No 34 is whether he wants things as they were, where matters could be hidden, or whether he wants to put something in legislation that dissipates that risk. That is the real choice.

Photo of Andrew Muir Andrew Muir Alliance

I understand the Member's arguments. However, we have to decide whether what we are putting in law is right and proper. Once in law, the only way back is to repeal, and we all know the consequences of trying to do that. That is what we have to consider. I do not judge that putting this in law is the right way to go. If we are putting it in law just to send out a message, the question that has to be asked is this: what is the purpose of that? What is the purpose of this amendment? Is it just to send out a message?

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Legislation can be about messaging, and, my goodness, given what came out of RHI, do we not need messaging? I would have thought that we do. The other side of the coin on the issue that the Member raises is that, if you do nothing, you are endorsing the arrangements whereby that which previously happened — the hiding of information — is an OK thing to do.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

It is interesting to listen to the comments of various Members about amendment No 34. During Consideration Stage, their main reason for opposing it was the penal aspect: the fact that you could give someone a criminal record. Your amendment has removed that reason, and there is no criminal record. However, there is, of course, a code of conduct. As I have said, we do not place much store by codes of conduct. However, stepping outside the terms of this Bill would be a clear breach of a code of conduct, so we are sending out a message.

The problem is that neither Mr Muir nor Mr O'Toole was here during the RHI crisis. I do not think that they experienced the skulduggery behind the scenes from those using off-record messaging. The reality is that most of what happened to bring this place down was carried out outside official departmental systems. It was done on personal email accounts, and the information was never transposed to official accounts. It was fortuitous that one spad decided to blow the whistle, thereby opening the hornets' nest and exposing what was going on. Had he not done that, we would have been none the wiser.

Why, having had the issue of criminal sanction removed, does Mr Muir's party leader now feel that we cannot at least give a very clear signal that, when conducting official departmental business, you have to record it on departmental systems. I wonder why there is this opposition. It was not mentioned last time. Then, it was entirely the issue of criminal sanction.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Member makes fair enough points.

Members, what is the choice in this regard? Is there a problem? If the answer to that is yes, do we want to do anything about it? I say, gently, to Mr Muir, that amendment No 34 was tabled before Christmas. Had he thought that there were real issues with its drafting, he had the opportunity to engage and to seek to amend it. No such opportunity was taken, but that was his prerogative.

Moving on, I accept amendment No 35.

Photo of Steve Aiken Steve Aiken UUP

I thank the Member very much for giving way. Looking at amendment No 34 and the use of official systems, I recall that one of the issues raised during RHI was that of unofficial servers. There had been attempts to move beyond the control of government communication systems, which are provided at considerable expense. They are equipped with the means to prevent their being hacked and with added levels of security, which should be of concern to everybody in the Government at the moment. Not only is this a matter of increasing accountability and transparency, it is a matter of increasing security and ensuring that our official systems, which should be the avenue for official government business, are used exclusively for the protection of us all.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Member makes valid observations, which, I trust, others will listen to.

I can readily accept amendment No 35. My amendment, amendment No 54 will not therefore be necessary.

I then come to Clause 10, the surviving criminal offence in this Bill. I have tabled amendment 36 for two reasons. I will be upfront with the House; I mentioned it this morning: when you are a single Member of the House trying to bring a private Members' Bill, you have to bend and reach an accommodation with others. The fact that the reach of the criminal offence included civil servants was an issue of particular concern to some Members. In principle, it is right that a civil servant who shares information for financial or improper advantage should not be immune from recourse about that. However, I accept the sincerity and the genuineness of those who raised that point.

After Consideration Stage concluded, I went back through my Bill and discovered that this was the only clause of the Bill that imposed a burden — never mind a criminal sanction — on a civil servant. The Bill is now about Ministers and special advisers. So I have been persuaded that it is appropriate, in that context, to remove civil servants from clause 10. The Minister has told us that the Executive are reviewing RHI. They have a subcommittee, and no doubt, they will labour and deliver something in that regard. If that is included, either separately or in tandem with reform of the Civil Service, I presume that that will manifest itself in legislation at some point. If it does, and if the ambit of the Bill permits, I put the Minister on notice that I will be minded at that stage — if it is not already in the Bill — to include some parallel criminal offence for inappropriate leaking by civil servants. However, that is for another day. Today, I am making the concession that some asked for on clause 10, not just because they asked, but because I have come to be persuaded that there is some logic and merit in what they have said.

We are told that amendment 37 is not being moved. I readily accept amendment Nos 38 to 40, and that will cause amendment 41 to fall, if accepted. I accept amendments 42 to 44.

On clause 13 and the interesting debate between Paul Frew and Matthew O'Toole, I am more persuaded by Paul Frew's points than Matthew's. If the SDLP amendment is accepted, it will really neuter clause 13, but that is a matter for the House. It seems to me that clause 13 and clause 11 are, largely, complementary. Clause 11 was introduced for further accountability and puts the duty on Departments to provide information requested. It seems that reads substantially and is compatible with clause 13, but the House will make its choice. I have indicated my view, for what it is worth.

I have covered all the amendments, but I want to make one final point. It has been suggested a couple of times in this debate that we do not need to do any of this, either because of codes or because something more is going to happen. Mr Wells made the very appropriate comment that there is nothing incompatible between codes and legislation. Indeed, we have codes usually only because legislation provides for them. So, it is not an either/or situation.

I do not believe that the Bill answers all the problems that are crying out from RHI. There is a definite piece of work to be done by the Executive, particularly on the Civil Service. I do not think that that was for me to do, but I think that that work exists for the Executive. I am disappointed that, one year on, we have not had any product there. I encourage the Minister to produce something in respect of civil servants so that the Civil Service arrangements can be examined properly by the House. The Bill is not a substitute or proxy for that, nor is it an impediment to it.

Having made those comments, I thank Members for their contributions. Once again, it has been a session where there were positive contributions from most Members. The beneficiaries of that are the House and its standing.

Photo of Alex Maskey Alex Maskey Sinn Féin 5:15 pm, 19th January 2021

I call the Minister of Finance to wind on the debate.

Photo of Conor Murphy Conor Murphy Sinn Féin

We have given close consideration to a very long list of amendments that were tabled in order to improve the Bill. As I stated many times in all stages of debate in the passage of this legislation, I have considerable concerns about the wisdom of legislating in this way. I believe that others in the Chamber agree with that position. Obviously, there is still an opportunity for the Assembly to reject the Bill at Final Stage. That is a matter for the Assembly. In the meantime, it is imperative that we try to improve it as far as we can having not been able to prevent clauses being tabled and agreed at Consideration Stage.

Some of the issues that we addressed are drafting matters that might usefully have been identified and addressed before the Bill was introduced. Others are more substantive and are attempts on my part and that of other Members to mitigate the negative effects of the Bill.

I am happy to address at this stage a number of issues that Members raised. Mr Frew raised a question about what clause 8(4)(e) would actually mean. It would ensure that a member of the public expressing a view to a Minister or special adviser would not be counted as lobbying. "Lobbying" implies that someone is seeking personal or organisational advantage, but a member of the public or community representative setting out their views, which they may share with other members of the public, should not be considered lobbying. It means that the clause would not catch a constituent buttonholing a Minister in a high street about street lights — we talked about some of the examples of how that might be — or tweeting about the coronavirus restrictions that they do not like. It is to ensure that we are clear about what those things actually mean.

Questions were raised about amendment No 23, which is to clause 7, and whether records would properly be kept and how those things would go together. I must say that the greater proportion of meetings that a Minister holds with other Ministers and legislators are attended by at least one civil servant. Ministers and officials are well-served by that default position. However, there may be instances when a Minister will hold a wholly political discussion at which it would be inappropriate for a politically impartial official to be present. If a ministerial decision is taken at such a meeting, that will be conveyed to a civil servant and recorded under clause 6(2)(b) as I propose to amend it. The effect of a ministerial decision being taken has to be communicated to civil servants because there is no other way in which to implement it other than to put it into the system. The Minister cannot take a decision at a whim in some private meeting that can be given effect without going through the Civil Service system. That is as it should be.

Any meeting under clause 7 would either be recorded by a civil servant under clause 6 as amended by my amendment or by the Minister and special adviser under clause 8. That addresses the point that Mr Allister raised about wholly doing away with the requirement for records and retention of records.

Reading the three clauses together should reassure Members that clause 7 does not need to refer to making and retaining a record. It is covered in the additional clauses; it does not stand alone.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I disagree with the Minister. Clause 6 is about departmental meetings, and clause 7 is about meeting third parties, so the obligation under clause 6 to make and keep a note does not extend in its purview to clause 7. Clause 7 is about something else: it is about meeting third parties on official business. Clause 7 is not crafted with regard to protecting political discussions. That does not appear in it. It covers all discussions with Ministers from anywhere else. That is its flaw. Furthermore, there are no notes.

Photo of Conor Murphy Conor Murphy Sinn Féin

If a decision is taken by a Minister as a consequence of any meeting, that requires that decision to be put into the departmental system and recorded accordingly.

Photo of Jim Wells Jim Wells DUP

Mr Allister raised the issue of the Minister for Infrastructure, for example, meeting her counterpart from the Irish Republic to discuss a road scheme or bridge. The Minister indicates that we will have no record of the discussions. We may have a record of the decision to spend x amount on a new bridge or a new road, but he is saying that a civil servant might not be required to be present, and we will never know what happened in the discussions that led to that decision. What is wrong with keeping a record of that meeting? Why is it excluded?

Photo of Conor Murphy Conor Murphy Sinn Féin

Ordinarily, the default position is that a civil servant is present and a record is kept. However, when a political meeting leads to some action by a Minister, that action has to come back into the Department and, therefore, be captured in proper recording processes. A Minister cannot decide to strengthen the Dublin-Belfast railway line and go off and do it on their own. It has to go back to the Department for Infrastructure to be assessed by Translink, for one, and, I am sure, departmental officials, and Iarnród Éireann on the other side. If Ministers meet for a political chat around North/South arrangements and how they might work, and a consequence of that is a decision in relation to a proposal for a decision on the railway, it has to come back through both Departments. It cannot be enacted in any other way.

Mr Allister asked what an "appropriate written record" is. It allows the record to be proportionate to the nature of the meeting. It will be informed by good practice, particularly the guidance of the Information Commissioner and the advice of records management professionals in the Civil Service. If it is based on guidance from the Information Commissioner and the Civil Service records management professionals, that deals with the issue of consistency.

The Chair of the Committee asked about the TRIM system. The records management professionals in the Civil Service have initiated an impartial review of its functionality and taken on board issues raised by the RHI inquiry and issues raised in engagement with staff on their experience of the system. It is important that officials are familiar with TRIM and confident in its use, and it is not an obstacle to good record management. Questions were raised about the TRIM system, and we have to make sure that a proper system is in place for the retention of records.

Other questions were raised in relation to decision-making as a consequence of meetings. I think that I have dealt with them.

Mr Allister also asked about the clause that relates to lobbying and, I think, amendment No 28. He asked why it differs from the language of the 2014 Act. The 2014 Act is predicated on the recording of lobbying by registered lobbyists. This Bill places a duty on the Minister to record all lobbying. It is a completely different scenario and has serious consequences for the management of government business.

I have addressed quite a few of the points. Our attempt to put a framework around what a Minister may or may not consider to be a lobby is much more consistent than Mr Allister's proposition of inconsequential guidance that a Minister would present and provide. I do not think that that would lead to consistency in any way. Let us cast our minds back to some of the meetings and discussions of which records were even changed. A get-out clause for a Minister to decide what is inconsequential means that there would be too much chance of an inconsistent approach being taken, which, in itself, would be detrimental.

Questions were raised about the subcommittee and what else the Executive are doing. I note that Mr Allister wished us well. The work of the RHI subcommittee is all but done. A report will go very shortly to the Executive. In the interim, as they were being developed, we brought a range of policy matters and codes to the Executive for approval, but the final work of the RHI subcommittee is all but done. As with most Executive business, the speed of conclusion has been impacted on by the pandemic. Nonetheless, it has been done in accordance with the report from Judge Coghlin to try to bring those matters to a close. I am sure that it will be a matter for debate in the Chamber in the not-too-distant future.

In closing the debate, I want to reiterate the importance of good government. Anyone who has worked on organisational change will attest to the fact that changing the rules never works by itself. We certainly need to have the right rules in order to provide a framework for new behaviours, but new behaviours grow in a context in which good practice is expected, encouraged and rewarded. Instead, the Bill creates a context in which good practice is demanded, dictated and enforced in law. It risks making administration a matter of defensive compliance and bureaucratic box-ticking, not that of professional competence and sound judgement. It risks undermining, rather than strengthening, good governance.

Amendment No 45 to clause 13 is a matter between Mr Frew and the SDLP. Mr O'Toole's argument is that one of the unforeseen consequences is that people will put forward pet projects. Another unforeseen consequence that I see, and that anyone else with ministerial experience will see, is that Departments will now be obliged to put in all bids from monitoring. The question from Committees will be this: why were bids not put in? To keep themselves right, you will find a glut of bids being put in, rather than reasoned bids that have been properly thought through and that have a genuine expectation of being met. In a back-covering exercise, officials will put forward bids for everything that they wish for, and we will have a much more congested monitoring process. I speak as the Finance Minister, who is on the receiving end of departmental bids. There are discussions with officials to make sure that bids are sensible, are reasonable and have a realistic chance of meeting some outcome. If Departments are obliged to justify their bids to a Committee — even if the Committee does not have a say and an approval role, the Department is still obliged to present them — my suspicion is that Departments will put in the kitchen sink to justify their own position. As an unintended consequence, it is one —.

Photo of Conor Murphy Conor Murphy Sinn Féin

I will. I am just saying that, from a Department of Finance perspective, I expect that the consequence of the new clause that Mr Frew put forward at Consideration Stage is that it will make the monitoring round a much more complex and lengthy process for Departments.

Photo of Paul Frew Paul Frew DUP

The Minister will argue that, but I argue that it will lead to a more transparent process. Does the Minister think that it is beyond the remit and capacity of a Committee to realise what are unrealistic bids and then assess that?

Photo of Conor Murphy Conor Murphy Sinn Féin

It is not beyond your capacity, if that is what you want to occupy yourself with. If departmental officials feel that they are going to be criticised for not bidding for things that a Committee or its individual members might consider important, their likely response, without being too cynical about the Civil Service, will be to put in everything so that they cannot be criticised for leaving something out. All those bids will go to the Department of Finance, and that will lead to a much more lengthy process as a result of officials having to sift through them and trying to draft up a monitoring round proposition. I speak from experience, having dealt with a number of monitoring rounds in the past year, for which we try to get reasonable bids in: bids that have a chance of success and that match the amount of funding that we have. Of course, there are bids in every monitoring round that are not met. If we have every single thing coming from every single Department, I predict a much more lengthy and unnecessarily complex process.

As we vote on the amendments, I ask Members to remember the value of improving the Bill and the serious consequences of letting the text as currently drafted reach the statute book.

It is our duty to the community, as legislators, not to make flawed legislation, and our responsibility as elected representatives not to undermine the effectiveness of government. Mr Allister made the point that nothing was incompatible in having both codes and legislation. Of course, he is correct, if it is good legislation. What we want, if legislation is required, is legislation that complements codes, not legislation that cuts across and contradicts the intent behind those codes.

As I said, the RHI subcommittee will shortly be reporting to the Executive, and I look forward —.

Photo of Conor Murphy Conor Murphy Sinn Féin

I was about to finish, but I will give way for one last time.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Surely, in the pecking order, it is not that legislation should not cut across codes, it is that codes that are lesser in their status should not cut across legislation.

Photo of Conor Murphy Conor Murphy Sinn Féin

If things are incompatible, I think that they should be complementary. As I say, there is nothing to say that codes and legislation are not compatible, but we have to ensure that it is the right legislation and good legislation. In my view, this legislation is bad legislation, it is unnecessary legislation, and we have had to put a substantial amount of time and effort into trying to straighten out some of the worst elements of it. I hope that those amendments do achieve some success. They will not undo some of the damage that this legislation will do to governance but they will try to mitigate some of the bad effects of it.

Photo of Alex Maskey Alex Maskey Sinn Féin

I propose, by leave of the Assembly, to suspend the sitting for 10 minutes for a comfort break.

The sitting was suspended at 5.36 pm and resumed at 5.49 pm.

Photo of Alex Maskey Alex Maskey Sinn Féin

Please take your seats. Thank you.

Clause 5 (Amendment of the Assembly Members (Independent Financial Review andStandards) Act (Northern Ireland) 2011)

Amendment No 18 made:

In page 2, line 41, leave out “the complaint” and insert -

<BR/>

“in the case of a complaint that it”. — [Mr Murphy (The Minister of Finance).]

Amendment No 19 made:

In page 3, line 6, leave out subsection (6) and insert -



“(6) In section 17(3), at the appropriate place insert—


 


‘the Ministerial Code’ means the Ministerial Code of Conduct set out in Schedule 4 to the 1998 Act;.” — [Mr Murphy (The Minister of Finance).]

Amendment No 20 made:

In page 3, line 9, leave out “for the purposes of defining ‘relevant time’” and insert -



“, in the definition of ‘relevant time’,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 21 not moved.

Clause 6 (Records of meetings)

Amendment No 22 made:

Leave out clause 6 and insert -



Records of meetings


 


6.—(1) The permanent secretary to a Northern Ireland department must ensure that relevant arrangements are put in place.


 


(2) ‘Relevant arrangements’ are arrangements designed to ensure—


 


(a) that an appropriate written record of each relevant meeting is compiled by the civil servant, or one of the civil servants, attending the meeting,


 


(b) that, where an official Ministerial decision is made at a meeting other than a relevant meeting, an appropriate written record of the decision is compiled by a civil servant as soon as reasonably practicable after the decision is first communicated to a civil servant, and


 


(c) that the written records mentioned in paragraphs (a) and (b) are retained in accordance with the department’s policy on the retention and disposal of records.


 


(3) A ‘relevant meeting’ is a pre-arranged meeting set up to conduct official business—


 


(a) where those attending include—


 


(i) at least one Minister, and


 


(ii) at least one civil servant serving in the department, or


 


(b) where those attending include—


 


(i) at least one special adviser,


 


(ii) at least one civil servant serving in the department, and


 


(iii) at least one person who is not a Minister, is not a special adviser and is not a civil servant,


 


but this is subject to subsection (4).


 


(4) The following are not relevant meetings—


 


(a) a meeting of the Assembly;


 


(b) a meeting of any committee of the Assembly other than the Executive Committee of the Assembly;


 


(c) a meeting of any sub-committee of the Assembly other than a sub-committee of the Executive Committee of the Assembly;


 


(d) a meeting within subsection (3)(a) where the official business does not include anything other than the presence of, or a presentation by, the Minister.


 


(5) An ‘official Ministerial decision’ is a decision made by a Minister—


 


(a) under any statutory provision (as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954),


 


(b) in exercising any of the prerogative or other executive powers of Her Majesty in relation to Northern Ireland, or


 


(c) otherwise in the course of official business.


 


(6) In this section ‘civil servant’ means a person serving in the Northern Ireland Civil Service who is not a special adviser.” — [Mr Murphy (The Minister of Finance).]

Clause 7 (Presence of civil servants)

Amendment No 23 proposed:

No 23: Leave out clause 7 and insert -



Presence of civil servants


 


7.—(1) A Minister, or special adviser, who holds a meeting with a third party about official business must take such steps as are reasonable to ensure that the meeting is attended by at least one person serving in the Northern Ireland Civil Service who is not a special adviser.


 


(2) Subsection (1) does not apply if the meeting is for liaison with the Minister’s political party.


 


(3) In this section ‘third party’ means a person who is not acting in the person’s capacity as—


 


(a) a Minister or a Minister of the Crown or a member of the Scottish or Welsh Government or a junior Scottish Minister,


 


(b) a Minister of the Government of Ireland,


 


(c) a member of—


 


(i) the Assembly,


 


(ii) the House of Commons,


 


(iii) the House of Lords,


 


(iv) the Scottish Parliament,


 


(v) Senedd Cymru,


 


(vi) Dáil Éireann, or


 


(vii) Seanad Éireann,


 


(d) a member of the Assembly’s staff,


 


(e) a person serving in any part of the civil service of the State,


 


(f) the Attorney General, or


 


(g) a member of the Attorney General’s staff.


 


(4) The duty under subsection (1) applies only so far as it is exercisable in or as regards Northern Ireland.” — [Mr Murphy (The Minister of Finance).]

Question put, That amendment No 23 be made.

Some Members:

Aye.

Some Members:

No.

Photo of Alex Maskey Alex Maskey Sinn Féin

Clear the Lobbies. The Question will be put again in three minutes. I remind Members to continue to observe social distancing in the Chamber.

Before the Assembly divides, I remind you that, as per Standing Order 112, the Assembly has proxy voting arrangements in place. Members who have authorised another Member to vote on their behalf are not entitled to vote in person and should not enter the Lobbies. I also remind you to ensure that social distancing continues to be observed whilst the Division is taking place.

Question, that the amendment be made, put a second time. The Assembly divided.

<SPAN STYLE="font-style:italic;"> Ayes 47; Noes 36

AYES

Ms Anderson, Dr Archibald, Ms Armstrong, Ms Bailey, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Catney, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lynch, Mr Lyttle, Mr McAleer, Mr McCann, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Muir, Ms Mullan, Mr Murphy, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Ms Rogan, Mr Sheehan, Ms Sheerin, Miss Woods

Tellers for the Ayes: Ms Ennis, Mr McGuigan

NOES

Dr Aiken, Mr Allen, Mr Allister, Mrs Barton, Mr Beattie, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mr Butler, Mrs Cameron, Mr Carroll, Mr Chambers, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Nesbitt, Mr Newton, Mr Poots, Mr Robinson, Mr Stewart, Mr Storey, Mr Swann, Mr Weir, Mr Wells

Tellers for the Noes: Mr Allister, Mr Wells

The following Members voted in both Lobbies and are therefore not counted in the result: Mr Easton

Question accordingly agreed to.

Photo of Alex Maskey Alex Maskey Sinn Féin

I will not call amendment no 24 as it is consequential to amendment No 23, which has been made.

Clause 8 (Record of being lobbied)

Amendment No 25 made:

In page 3, line 25, leave out from “, other” to “then,” on line 26 and insert “being lobbied,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 26 made:

In page 3, line 27, leave out from “provide” to end of line 28 and insert -

<BR/>

“as soon as reasonably practicable provide their department with a written record of the lobbying; and the department must retain the record in accordance with its policy on the retention and disposal of records.” — [Mr Murphy (The Minister of Finance).]

Amendment No 27 made:

In page 3, line 33, after “to” insert “seek,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 28 proposed:

In page 3, line 40, leave out from second “or” to end of line 41. — [Mr Murphy (The Minister of Finance).]

Question put, That amendment No 28 be made.

Some Members:

Aye.

Some Members:

No.

Photo of Alex Maskey Alex Maskey Sinn Féin

Members, I have been advised by the party Whips that, in accordance with Standing Order 1(13)(5)(b), there is agreement to dispense with the three minutes and move straight to the Division. Again, I remind all Members to follow the instructions of the Lobby Clerks and to respect the need for social distancing.

Question, that the amendment be made, put a second time. The Assembly divided.

<SPAN STYLE="font-style:italic;"> Ayes 71; Noes 13

AYES

Ms Anderson, Dr Archibald, Ms Armstrong, Mr Blair, Mr Boylan, Mr M Bradley, Ms P Bradley, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mrs Cameron, Mr Catney, Mr Clarke, Mr Dickson, Ms Dillon, Mrs Dodds, Ms Dolan, Mr Dunne, Mr Durkan, Mr Easton, Ms Ennis, Ms Flynn, Mrs Foster, Mr Frew, Mr Gildernew, Mr Givan, Ms Hargey, Mr Harvey, Mr Hilditch, Mr Humphrey, Ms Hunter, Mr Irwin, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lynch, Mr Lyons, Mr Lyttle, Mr McAleer, Mr McCann, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Miss McIlveen, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Middleton, Mr Muir, Ms Mullan, Mr Murphy, Mr Newton, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Mr Poots, Mr Robinson, Ms Rogan, Mr Sheehan, Ms Sheerin, Mr Storey, Mr Weir

Tellers for the Ayes: Ms Ennis, Mr McGuigan

NOES

Dr Aiken, Mr Allen, Mr Allister, Ms Bailey, Mrs Barton, Mr Beattie, Mr Butler, Mr Carroll, Mr Chambers, Mr Nesbitt, Mr Stewart, Mr Swann, Mr Wells

Tellers for the Noes: Mr Allister, Mr Wells

Question accordingly agreed to.

Amendment No 29 not moved.

Amendment No 30 made:

In page 4, line 5, after &quot;Committee&quot; insert -

<BR/>

&quot;of the Assembly or any sub-committee of that Committee or any other committee or sub-committee of the Assembly&quot;. — [Mr Murphy (The Minister of Finance).]

Amendment No 31 not moved.

Photo of Alex Maskey Alex Maskey Sinn Féin

Just pause for a wee second.

Amendment No 32 made:

In page 4, line 6, after “party” insert -

<BR/>

“or members of the Assembly”. — [Mr Murphy (The Minister of Finance).]

Amendment No 33 made:

In page 4, line 6, at end insert -



“(c) made at a meeting attended by a person serving in the Northern Ireland Civil Service who is not a special adviser,


 


(d) received personally by a Minister or special adviser after having been first received and recorded by a person serving in the Northern Ireland Civil Service who is not a special adviser, or


 


(e) made to a Minister by a member of the public in their capacity as a member of the public, or in their capacity as a community representative, and relating to a matter in which the person making the communication has only the same interest as all other members of the public or all other members of a section of the public.” — [Mr Murphy (The Minister of Finance).]

New Clause

Amendment No 34 proposed:

After clause 8 insert -



Use of official systems


 


8A.—(1) A Minister or special adviser when communicating on official business by electronic means should not use personal accounts or anything other than devices issued by the department, systems used by the department and departmental email addresses.


 


(2) If out of necessity it is not possible to comply with the requirements of subsection (1) the Minister or (as the case may be) special adviser must within 48 hours, or as soon thereafter as reasonably practicable,


 


(a) copy to the departmental system any written material generated during the use of non-departmental devices or systems; and


 


(b) make an accurate record on the departmental system of any verbal communications of consequence relating to departmental matters.” — [Mr Allister.]

Question put, That amendment No 34 be made. The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 40; Noes 45

AYES

Dr Aiken, Mr Allen, Mr Allister, Ms Bailey, Mrs Barton, Mr Beattie, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mr Butler, Mrs Cameron, Mr Carroll, Mr Chambers, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Easton, Mrs Foster, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Nesbitt, Mr Newton, Mr Poots, Mr Robinson, Mr Stewart, Mr Storey, Mr Swann, Mr Weir, Mr Wells, Miss Woods

Tellers for the Ayes: Mr Allister, Mr Wells

NOES

Ms Anderson, Dr Archibald, Ms Armstrong, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Catney, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lynch, Mr Lyttle, Mr McAleer, Mr McCann, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Muir, Ms Mullan, Mr Murphy, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Ms Rogan, Mr Sheehan, Ms Sheerin

Tellers for the Noes: Ms Ennis, Mr McGuigan

Question accordingly negatived.

Clause 9 (Register of interests)

Amendment No 35 made:

In page 4, line 20, at end insert



“(4) For the purposes of subsection (3)(a), two people are partners if—


 


(a) they are civil partners of each other, or


 


(b) they are not married to, or civil partners of, each other but are living together as if spouses of each other.


 


(5) For the purposes of subsection (3)(a) ‘close family member’, in relation to a person, means someone who is—


 


(a) a parent, or parent-in-law, of the person,


 


(b) a child of the person,


 


(c) a whole-blood sibling of the person, or


 


(d) the spouse or civil partner of someone within paragraph (b) or (c).” — [Mr Murphy (The Minister of Finance).]

Clause 10 (Offence of unauthorised disclosure)

Amendment No 36 made:

In page 4, line 24, leave out “, civil servant”. — [Mr Allister.]

Photo of Alex Maskey Alex Maskey Sinn Féin 6:30 pm, 19th January 2021

I will not call amendment No 37, as it is consequential to amendment No 36, which has been made.

Amendment No 38 made:

In page 4, line 25, leave out “, directly or indirectly,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 39 made:

In page 4, line 26, leave out “financial or other improper” and insert “improper (financial or other)”. — [Mr Murphy (The Minister of Finance).]

Amendment No 40 made:

In page 4, line 26, leave out “or third party”. — [Mr Murphy (The Minister of Finance).]

Photo of Alex Maskey Alex Maskey Sinn Féin 6:45 pm, 19th January 2021

I will not call amendment No 41, as it is consequential to amendment Nos 36 and 37, one of which has been made.

Amendment No 42 made:

In page 4, line 38, at end insert -

<BR/>

“(6) In this section ‘statutory obligation’ means—


 


(a) an obligation under a statutory provision, as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954, or


 


(b) an obligation under any legislation for the time being in force in any part of Great Britain or in any country or territory outside the United Kingdom.” — [Mr Murphy (The Minister of Finance).]

Clause 11 (Accountability to the Assembly; provision of information)

Amendment No 43 made:

In page 4, line 40, leave out “Ministers and their departments” and insert -



“A Minister and their department”. — [Mr Murphy (The Minister of Finance).]

Clause 13 (Assembly scrutiny of the Executive’s in-year monitoring process)

Amendment No 44 made:

In page 5, line 16, leave out “Ministers and their officials” and insert -


 


The Minister in charge of a Northern Ireland department, or the department,”. — [Mr Murphy (The Minister of Finance).]

Amendment No 45 proposed:

In page 5, line 18, leave out “in advance of it being submitted” and insert -



“no longer than 7 days following submission”. — [Mr O'Toole.]

Question put, That the amendment be made. The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 47; Noes 38

AYES

Ms Anderson, Dr Archibald, Ms Armstrong, Ms Bailey, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Catney, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lynch, Mr Lyttle, Mr McAleer, Mr McCann, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Muir, Ms Mullan, Mr Murphy, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Ms Rogan, Mr Sheehan, Ms Sheerin, Miss Woods

Tellers for the Ayes: Ms Ennis, Mr McGuigan

NOES

Dr Aiken, Mr Allen, Mr Allister, Mrs Barton, Mr Beattie, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mr Butler, Mrs Cameron, Mr Carroll, Mr Chambers, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Easton, Mrs Foster, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Nesbitt, Mr Newton, Mr Poots, Mr Robinson, Mr Stewart, Mr Storey, Mr Swann, Mr Weir, Mr Wells

Tellers for the Noes: Mr Frew, Mr Middleton

Question accordingly agreed to.

Amendment No 46 made:

In page 5, line 20, leave out &quot;Ministerial approval being granted&quot; and insert &quot;its being approved by the Executive Committee of the Assembly&quot;. — [Mr Murphy (The Minister of Finance).]

Amendment No 47 made:

In page 5, line 22, leave out &quot;(1)&quot; and insert &quot;(2)&quot;. — [Mr Murphy (The Minister of Finance).]

Clause 14 (Commencement)

Amendment No 48 made:

In page 5, line 26, at the beginning insert - &quot;(A1) Section 1(3) comes into operation at the end of the period of 6 months beginning with the end ofthe day on which this Act receives Royal Assent.&quot; — [Mr Murphy (The Minister of Finance).]

Amendment No 49 made:

In page 5, line 26, leave out subsection (1). — [Mr Allister.]

Photo of Alex Maskey Alex Maskey Sinn Féin

I will not call amendment No 50 as it is consequential to amendment Nos 15 and 49.

Amendment No 51 not moved.

Clause 15 (Interpretation)

Amendment No 52 made:

In page 5, leave out lines 34 and 35. — [Mr Murphy (The Minister of Finance).]

Amendment No 53 made:

In page 5, line 36, leave out “’the Minister’” and insert “’Minister’”. — [Mr Murphy (The Minister of Finance).]

Photo of Alex Maskey Alex Maskey Sinn Féin

I will not call amendment No 54 as it is mutually exclusive with amendment No 35, which has been made.

Amendment No 55 made:

In page 6, leave out lines 1 to 4. — [Mr Murphy (The Minister of Finance).]

Long Title

Amendment No 56 made:

Leave out from “and Article 3” to “section 17” and insert -

<BR/>

“, repeal the Civil Service Commissioners (Amendment) (Northern Ireland) Order in Council 2007, repeal the Civil Service Commissioners (Amendment) Order (Northern Ireland) 2016, amend sections 17 and 27”. — [Mr Allister.]

Photo of Alex Maskey Alex Maskey Sinn Féin

That concludes the Further Consideration Stage of the Functioning of Government (Miscellaneous Provisions) Bill. The Bill stands referred to the Speaker.

Adjourned at 7.02 pm.