Official Report: Minutes of Evidence

The Chairperson (Mr McGrath): The Bill is sponsored by Mr Jim Allister MLA. He has joined us this afternoon as he makes his way round the various Committees that have ping-ponged discussions on this Bill. Maybe before you give us an update on the policy objectives and clauses of the Bill, I will update Members that I, as Chair of the Committee, met other Chairs of other relevant Committees to discuss with the Committee Clerks about which Committee would be best placed to take this forward. I have been told to leave this until after the session, but I am there now. Under Standing Order 64A, the Chairperson of the Finance Committee agreed that the Committee of Finance will carry out the Committee Stage of the Bill. It should be noted that this Committee will need to take evidence on the relevant clauses and report any findings back to the lead Committee. There will still be work for us to do because quite a number of the clauses that were assessed by the Committee Clerks come under the direct responsibility of the Executive Office and, therefore, fall to the competencies of this Committee. That will be for us to progress later in the term.

Mr Allister, I pass over to you to give us a short input on the Bill.

Mr Jim Allister (Member of the Legislative Assembly): Thank you very much. Thanks for the opportunity. The catalyst for wanting to introduce the Bill was the evidence that was reported in the renewable heat incentive (RHI) inquiry. Much of that evidence affronted many in the general public and raised an expectation that things would be amended and actions taken.

The Bill has three strands. Clauses 6 to 11 directly address some issues that can be tracked right to the RHI inquiry: matters such as not keeping records of meetings and contacts, meetings without civil servants, the use of unofficial devices, registers of interests and the unlawful or unauthorised disclosure of information. I am happy to discuss each clause in due course, if required, but those issues are reflected essentially in clauses 6 to 11.

Clauses 1 to 5 focus on changes to the existing law and address issues such as the number of special advisers. It seems quite shocking that the office of the First Minister and deputy First Minister has, or can have, the same number of special advisers as the entire Welsh Government. I think that they have only appointed six recently, but they have an entitlement to appoint eight. It is also shocking that our special advisers run at a cost that is twice that of Scotland and Wales. Therefore, I thought it appropriate to seek to reduce the number of special advisers in that office. I have suggested four, and I think that they have presently appointed six.

There are two ways of doing that. The historical arrangement was that the First Minister had three and the deputy First Minister had three, and that was it. Then, in 2007, a provision was brought in to allow each junior Minister to have a special adviser, making a total of eight. From my perspective, if you want to reduce that to four, there are two ways of doing it: take away the junior Ministers' special advisers and one from the First Minister and one from the deputy First Minister; or simply reduce the special advisers for the First Minister and the deputy First Minister from three to one and retain the special advisers for the junior Ministers. Either would make four. That is an item chosen from clause 2.

In another reflection on some of the evidence given to the RHI inquiry, the Bill seeks to stop a hierarchy of special advisors who seek to impose control across Departments — there was some evidence about that — other than in the Executive Office. I think that is obviously understandable. As special advisers are temporary civil servants, who are subject to all the benefits and privileges of the Civil Service, it seems incongruous that they are not subject to the disciplinary procedures of the Civil Service, so clause 1(3) seeks to do that.

Clause 1(6) seeks to thwart the efforts that were made to circumvent the 2013 Act, which removed people with serious criminal convictions from holding the position of a spad, by putting party officials into Stormont Castle to act as if they were special advisers with access to everything that goes with it. Clause 1(6) would seek to impose a duty on the permanent secretary to make sure that:

would not be allowed to anyone else. I think that is appropriate.

Clause 3 arises from a specific situation. Members will recall that at the time when David Gordon was appointed, that appointment was possible because, secretly and unknown to the Assembly, the 1999 Order was amended by prerogative powers, with the First Minister and deputy First Minister purporting to exercise prerogative powers to change the law. I want to reverse that and make any such change exercisable only by affirmative resolution so that the law cannot be changed behind the back of the Assembly, and that the Assembly would have to approve any change in the law.

Clause 4 is a natural follow-through. If there is going to be a reduction, there has to be compensation at the kick-in point.

Clause 5 makes the suggestion that breaches of the ministerial code should be able to be considered by the standards commissioner. Effectively, there is not an adequate complaints or investigation process against Ministers for a breach of the ministerial code. This clause seeks to use the straightforward device of extending the powers of the standards commissioner to cover not just MLAs but Ministers, and therefore to look at not just the code for MLAs but the ministerial code. That is totally in keeping with the last resolution that the Assembly passed before it collapsed in 2017. The last motion passed in this House in January 2017 was to extend the powers of the Assembly Commissioner for Standards to include Ministers.

New Decade, New Approach (NDNA) has something to say about this. To me, it seems a bit like reinventing the wheel. It is elaborate; it is about appointing new commissioners etc, but the real problem with it is that, at the end of the day, even though you appoint additional commissioners to examine alleged breaches of the ministerial code, they cannot recommend any sanction, and there can be no sanction — it is all in the gift of the First Minister or deputy First Minister or whoever.

That does not seem to be a good way to do business or meet the expectations of the public that there will be accountability. I think that, out there, this Assembly is not in great standing. There is an expectation that action will be taken to improve matters. Those are the sort of issues that we need to look at.

The third aspect of the Bill that I will draw to your attention is clause 12. I do not want this to be a Bill that, when it is passed, that is it. I want to create a process of rolling review, so clause 12 is important. It creates a situation whereby, every two years, the First Minister and deputy First Minister will bring a report to the Assembly on the functioning of government, having looked at judicial review criticisms in the previous two years and what other commissioners etc for these things have to say. They would report on where improvements could be further made in the functioning of government. It is important that we do not just pass a piece of legislation, park it and forget about it; we activate a process.

That is a quick overview of the Bill. It is probably more useful if I simply deal with whatever questions you have.

The Chairperson (Mr McGrath): OK, Mr Allister. Thank you very much indeed for that quick introduction to the Bill. We will open discussion through questions, and I will commence.

It is important to acknowledge and note that the appointment and the terms, conditions and powers of spads have lost the faith of the public. That is a fair point that you make. Since the resetting of the Assembly and the Executive, through New Decade, New Approach, there is an expectation among the public that some of the bad practices of the past will be changed. I think that all parties acknowledged that, and constructive work was done through the openness and transparency strand of the talks, last summer, contributions from which were made to the relevant sections of the 'NDNA' document. A review of the practice and powers of spads is certainly necessary and, given the backdrop of our return, timely.

I have a few questions. There is a suggestion that there was no need to reconsult as consultations had been carried out previously. Did the previous consultations definitely cover all of the clauses that are in your Bill? Given that the RHI report has not been published yet, how confident are you that the proposals that you are making will address the issues that might be raised there?

Mr Allister: You raise a couple of relevant points. Clauses 1 to 4, not entirely, but substantially, reflect what was in a Bill that I introduced in 2015, which did not get past Second Stage. In drafting that Bill, which related to a reduction in the number of spads and putting them under a disciplinary code etc, I had conducted a public consultation, which was reported at the time. The other clauses, which arise out of what has been unfolding with RHI, have not been subjected to a formal public consultation. There are two reasons for that. First, it seems to me self-evident that the public are appalled at what has been happening and there is an appetite for change. Secondly, there are two ways of bringing a private Member's Bill. The first, and probably most normal way, is to go to the Bill Office and say, "I've got an idea. I'd like to bring legislation about it", and they formulate it. You are then obligated to have a formal consultation process. The other way of putting a private Member's Bill is to draft it yourself and simply present it to the Speaker's Office. Provided that it is legislatively competent, it moves forward. In those circumstances there is no obligation for formal consultation. That is the route that I took. I drafted the Bill and presented it to the Speaker's Office etc. Primarily, I have already consulted on some parts of the Bill, and it is evident that the public are crying out for it and it is in tune with public expectation. That is why there has been no formal consultation.

The Chairperson (Mr McGrath): You are proposing reducing the number of spads in the Executive Office from eight to four. Have you taken views on what impact that reduction might have on the workload in the Department?

Mr Allister: That was part of what I consulted on back in 2015, and the response to that was positive. If you look at the most recently published figures for Northern Ireland spads, you will discover that there was a cost of over £2 million for the number that we had, then you look at corresponding years for Scotland and discover it was just over £1 million and, in Wales, just under £1 million for a total of eight special advisers. Our First Minister and deputy First Minister's Office has eight. It does not add up that TEO needs the same number of special advisers as the whole Welsh Government. There is an extravagance there. It is interesting that, to date, although they still have the capacity to appoint two more, they have apparently appointed only six. Within that must be some recognition that it was being overdone at eight. That is why I am suggesting four. If the Bill gets through Consideration Stage and the House thinks four is not the right number, it might think two would do, or six. Who knows? It is all within the gift of the House.

The Chairperson (Mr McGrath): I would entirely expect that, if the roles were reversed, you would say this to me: that was a great answer, but it did not answer my question. Have you taken views on what the impact of the reduction would be, as opposed to just benchmarking it against other jurisdictions?

Mr Allister: If you mean, "Have I gone and discussed it with the vested interests of the Executive Office?", no, I have not. I have approached it from the basis that the thing speaks for itself in that, if Wales can do with eight in total, what on earth are we doing with eight in one office?

The Chairperson (Mr McGrath): Finally, a couple of the clauses make provision for offences that are criminal, and there is even the penalty of imprisonment. That seems somewhat harsh for people carrying out their work but who do so incorrectly. Again, has that been benchmarked against the guidelines that spads follow in the other devolved jurisdictions? Do their codes of conduct include criminal offences?

Mr Allister: No, it has not. It is tailored very much to what I perceive to be the need emerging from the RHI inquiry. One of the most scandalous things that emerged from the RHI inquiry was the deliberate hiding of information through the deployment of private electronic means, so I think that that needs to be addressed in such a way as to create a significant deterrent against it.

An even more shocking revelation, probably, in the RHI evidence was of a spad distributing confidential information to family and friends. That seems to me to require a statutory deterrent. I say that for this reason: the old code already prohibited that. The old code, in fact, said at, paragraph 5 of schedule 2, that special advisers should conduct themselves with integrity and honesty and should not disclose confidential information. Though that was in a code, it still happened, and that causes me to conclude that a code is not enough.

It was also, in fact, in the terms and conditions of former special advisers. Paragraph 24 of the old code imposed a confidentiality clause, but that did not stop it. If it is a mischief that needs to be addressed, and if addressing it through a code has not delivered the product, the next step is to address it through legislation. It does not seem to me unreasonable that it should be a criminal offence if someone, in the terms of clause 11, for advantage to others or themselves, exploits their office by taking confidential information that they have and distributing that to others. Special advisers are already subject to the Official Secrets Act, but the Official Secrets Act really takes care of high-level matters such as national security. What is needed here is a specific deterrent of an offence that, if you distribute confidential information to your brother, your cousin or whoever, it is a criminal offence. I think that that is a reasonable riposte to some of the evidence that we saw in RHI.

The Chairperson (Mr McGrath): Is it clear in the clauses that it would be specifically for something that breaks the rules in that way, by providing for financial gain to each other? My reading of it is that, if they were to use a personal email, in any shape or form, they could be subject to criminal proceedings.

Mr Allister: Sorry, Chair. There are two offences. I am talking about clause 11, the offence of unauthorised disclosure, and it is specifically for the financial or other benefit of any other person.

The Chairperson (Mr McGrath): Clause 9 suggests that if somebody sent an email —.

Mr Allister: Clause 9 is about the use of official systems.

The Chairperson (Mr McGrath): If they forwarded an email incorrectly, with their own email address, they could go to prison for two years.

Mr Allister: No, because clause 9(2) states:

There is another thing about that. You can only be prosecuted for an offence if it is in the public interest. The two tests are: sufficiency of evidence to make a conviction likely; and the prosecution being in the public interest.

It would never be in the public interest to prosecute someone for inadvertently using the wrong phone, but, if someone deliberately and consciously avoids using the official systems in order to ensure that there is no record of it, as happened in RHI, that should be a criminal offence. There can be no reasonable excuse for that.

Now, it could be that when a Minister or a special adviser are out and about somewhere, there is an unforeseen eventuality and they do not have the official system with them. If they have to use their own device, that is a reasonable excuse, and no one is sending them to prison for that. However, if they know that they are doing something that they should not be doing and they do it on private channels and processes in order to not make it either FOI-able or ever discoverable, there should be a deterrent about that. That is what clause 9 is about.

Mr Nesbitt: Jim, you are very welcome. We have been told to expect the report on the renewable heat incentive to be published on Friday 13 March, which looks like it will be ahead of the Second Stage of the Bill.

Mr Allister: Yes.

Mr Nesbitt: That is a decision that you have made?

Mr Allister: Yes.

Mr Nesbitt: Why are you so confident that you can second-guess Sir Patrick Coghlin?

Mr Allister: I am not confident at all. That is why —.

Mr Nesbitt: Well, then, why not wait?

Mr Allister: I am waiting until after his report. That is why I am not asking for the Second Stage debate until we see what is in the report. The reason for that is that I deliberately drafted the long title of the Bill to make it as wide as possible so that it can accommodate as wide a range of amendments as possible.

The long title is about making any additional provisions for the functioning of government and connected purposes. So, if Sir Patrick Coghlin comes up with multiple recommendations that require statutory provision, here, on the tracks, ready to go, is a Bill to which can be added, at Members' desire, multiple amendments, because it is wide enough in ambit to accept amendments.

The alternative is to sit back, having waited for however long it is to get the Coghlin report, and then ruminate on it for another six, eight, 10 or 12 months before anyone does anything about it, whereas the Bill, although it anticipates the need from the evidence, does not prescribe that these are the only steps that can be taken. It seems to me to be appropriate that we have a mechanism that can accommodate, if Members wish it to accommodate, other things that Sir Patrick Coghlin throws up.

Mr Nesbitt: You do not subscribe, then, to the view that, if a private Member brings forward a Bill that has to be amended and amended and amended, that reflects poorly on their judgement?

Mr Allister: No, I do not. A Bill that provides a framework that is capable of being improved is always a good thing. There is no Bill that has ever been created that could not be improved. Therefore, a Bill that identifies targets that need to be addressed may not foresee everything, but if the field of vision improves to show something that needs to be addressed — or if Mike Nesbitt thinks that there is something that needs to be addressed — here is a vehicle and an opportunity to move an amendment to do it. That is exactly how a legislative Assembly should work: that there is a Bill that the House can mould to its desire.

Mr Nesbitt: I understand that you have offered to discuss your Bill with the main political parties. How has that gone for you?

Mr Allister: I have had discussions with your party and the Alliance Party. I have had a promise of discussions, which have not yet happened, with the SDLP. That is as far as it has gone.

Mr Nesbitt: At this stage, do you anticipate any amendments?

Mr Allister: Yes. I anticipate some from myself. [Laughter.]

For example, I am minded to put into clause 5 — the one about the standards commissioner — an amendment that would prohibit the use of the petition of concern on any such report, because we have had that in the past. I am sure that there are many other amendments. In my discussions with the Finance Committee, I have probably been persuaded by contributions from Matthew O'Toole and Paul Frew that clause 11 should include the same lawful excuse defence that clause 9 does, not least, maybe, to provide more of a cushion for whistle-blowers. Yes, I am sure that there is room for much improvement.

Mr Nesbitt: I have a final question, Jim. One of your intents seems to be to tie the spads more closely to their Ministers, but the Finance Minister, Conor Murphy, in amending the codes, has made it clear that spads will be for the entire Executive not just for Ministers. There is a clear tension there, and I would like you to address that.

Mr Allister: They are still the appointees of the individual Minister. Under Mr Murphy's code, it is still the individual Minister who has responsibility for ensuring that they comply with the spad code and who has responsibility, such as it is, for their discipline. They are still identified as individual spads specific to a particular Department. I do not see anything in my Bill that conflicts with their generic duty to the whole Executive. I do not think that there is anything in my Bill that conflicts with that. I am simply asking that they live by the legislation, that they are subject to adequate discipline, and all of that can be within the ambit of them serving the Executive as a whole as much as serving their individual Minister.

The Chairperson (Mr McGrath): Trevor, do you have a supplementary and then we will move on?

Mr Clarke: Just following on from Mike's point: how would that work if a special adviser was working for a different Minister and broke the code? How then can you tie the Minister to that?

Mr Allister: I do not think that the code of conduct, as it now is, anticipates that it would be different compartments, as it were; that one day you are working for one Minister and the next day you are working for another. I think that you are always the spad of the Agriculture Minister, say, but you have to perform your duties with a view to the overall intent and purposes of the Executive. I do not think that there is a conflict there.

Mr Clarke: I thought maybe taking from what —.

The Chairperson (Mr McGrath): Can we come back to you and let you unpack your thoughts, and we will go to Emma?

Mr Clarke: It is relevant to what Mike said.

The Chairperson (Mr McGrath): It is also now a supplementary to a supplementary, and it is unfair.

Mr Clarke: Then I will just leave it. If we cannot scrutinise it, I will just leave it.

The Chairperson (Mr McGrath): I will come back to you at the end and let you come in. There are others in front of you.

Mr Clarke: This is ridiculous.

Ms Sheerin: Jim, to follow on from the question that Mike asked you, I thought that it was interesting that the first point that you made in reference to the Bill is that it was formed as a result of the RHI inquiry, yet we have yet to see the report and the recommendations of an independent inquiry. You have given your rationale as being about speediness or the time that it would take. Surely, it would have been simpler to have those recommendations and then to make an informed decision about what you want to have in your Bill from there.

Mr Allister: As I tried to indicate, I do not see any conflict in that. It is quite clear to me that there are issues already in the public domain that need to be addressed, like someone distributing material to family members. We cannot close our eyes to that. We do not need Sir Patrick Coghlin to tell us that that was wrong. We do not need Sir Patrick Coghlin to tell us that it is wrong to try to conceal things on private devices. Those are things that we can act on. We do not need Sir Patrick Coghlin to tell us that it is wrong not to keep a note of a meeting. We can get ready to act on all those with a vehicle that enables us to also swiftly deal with other issues that he throws up.

Ms Sheerin: You are still holding off on acting on that until after the conclusion of the inquiry and the release of the report. You either let the independent inquiry run its course, have your report and see what is flagged up from that, or you do this, which some may call awkwardness and political point-scoring.

Mr Allister: No, I do not see it like that, because —.

Ms Sheerin: Can you see how it would?

Mr Allister: No. I am not asking the Assembly to commit to anything in advance of seeing Sir Patrick Coghlin's report, because the Bill's Second Stage will not take place until after Sir Patrick Coghlin's report. We will all come to the Second Stage debate well informed about what the Coghlin report says, and then we can benchmark the Bill against it and see if it helps or if it hinders.

I do not see any contradiction. I could understand if I had pre-empted it, come forward with the Bill and had the debate before the Coghlin report comes out. Then, of course, it would be a legitimate point to ask, "Why are you pre-empting it?". I am not: I am waiting to see what Coghlin says, and then I am saying, "Here is a vehicle to help to deal with some of those things".

Ms Sheerin: Surely, in the drafting of the Bill, you are pre-empting it.

Mr Allister: No. I am anticipating, in some of the things that I have identified.

Ms Sheerin: That is language.

Mr Allister: No matter what Sir Patrick says, it is wrong to distribute confidential information to your friends. No matter what he says, it is wrong to hold meetings that you do not minute so that they can never be FOI-ed. Those things are so glaringly wrong. We do not need a report to tell us that, but, when we get the report, we may see that there are other things that need to be addressed as well. I think that, in large measure, the do-nothing school of thought may be an excuse for exactly that: to do nothing. I do not think that that is tenable.

As to its being point-scoring, let me be very clear: my view of these institutions would make it very simple for me to sit back, watch them wallow and do nothing, but I believe that we cannot go on as things are. We need to bring some order where there is disorder. We need to address the issues. That is my motivation. I trust that the Assembly will judge the Bill not on who is bringing it forward but on what it contains.

The Chairperson (Mr McGrath): Fra, you may ask one supplementary question.

Mr McCann: If the Coghlin report contains in its recommendations the vast majority of what you speak about and the Executive accept the report and will push it forward, will you withdraw the Bill?

Mr Allister: No, I will say, "Here is a good vehicle by which to push it forward", because the Coghlin report cannot change the law. The Coghlin report can make recommendations. It will then be up to the Assembly to say, "What are we going to do about this?".

Let me make this point: New Decade, New Approach anticipates some of the Coghlin report by making changes to the codes etc. That is fair enough, but it seems that it is all right for them to do it, but not for me. The point that I really want to make about that is this: a code, at the end of the day, is still only a code. It can be unmade as quickly as it can be made. Therefore, it is not a foolproof, satisfactory way in which to deal with something. Legislation is needed to make change.

Let me give you a very simple quotation. It is a truism, but it bears repetition. A statutory code of practice was issued in GB by the Secretary of State for Health under the Mental Health Act 1983. Then, there was litigation about the impact, import and effect of that code of practice. The case went all the way to the House of Lords, where Lord Bingham said:

That might be self-evident, but it needs to be said. Any code, no matter how good, is not as good as statute. It does not have the binding effect of a statutory provision or statutory instrument. Codes can be changed. My goodness, we have lived through an experience when those codes were changed overnight. I remind you that, in the original code of conduct, the salary scale for special advisers was, at the high level, somewhere in the £70,000s. Overnight, the Finance Minister at the time changed it to £92,000. Codes are pliable instruments. They can be changed. Yes, legislation can be changed, but the process by which to change it is difficult. It requires scrutiny and investigation. It is far better to put something in a piece of legislation than to put it in a code. That does not mean that codes do not have their place. Indeed, I remind you that there would not be codes of conduct but for my first special advisers Bill. It was the 2013 Act that brought in the statutory requirement for codes of appointments, something which the questioner's party voted against. The very existence of codes of conduct and codes of appointment are thanks to legislation that I steered through the House. I am now saying that, because, as RHI showed, some of those codes have been demonstrably broken in the past, we need to go a step further and to have it in legislation. That is the rationale.

Mr Sheehan: I suppose that there is always a suspicion that Jim comes at these issues from a very negative perspective. We all know his views on the Good Friday Agreement and the institutions here, and many people think that Jim just wants to keep chipping away at the institutions in a very negative way. We are well used to Jim's negativity, his insularity and his being inward-looking, but I was very heartened to hear him talk in the Chamber, the other day, about what he used to refer to as a foreign country, about how interested he was in the economy down there and how much the Dublin Government are paying to the EU and so on.

Mr Stalford: Mr Chairman —.

The Chairperson (Mr McGrath): If the member could keep to the subject rather than the person, it would be appreciated.

Mr Sheehan: That was very heartening for me. That was a bit of positivity, a chink of light and great to see, Jim. Maith an fear. Thanks very much. Good man.

Mr Allister: If the member is not big enough to look past who is bringing forward the Bill and to look at its content, it says more about him than me.

Mr Lunn: My computer has got tired of this. Sorry, here we are now.

Jim, as far as pre-empting the Coghlin report is concerned, it is fair to say that some of the things that you want to address were unearthed by the Public Accounts Committee before Coghlin took over.

Mr Allister: Yes, that is fair enough.

Mr Lunn: I appreciate that the Coghlin report might require you to make some amendments to the Bill, but the actual thrust of it and the things that you are trying to address to improve the situation partly arose from what was already discovered.

Mr Allister: That is fair enough.

Mr Lunn: My computer has gone off.

Clause 9 deals with a "reasonable excuse" for the use of unauthorised electronic equipment for government business. There could be myriad reasonable excuses. Most of us, as I certainly do on my phone, have more than one email account, and you could accidentally use the wrong one. Is there not room there for a requirement that you not only would have to come up with a reasonable excuse as to why you used the wrong equipment but would be required to reveal the nature of the content of what was on the electronic device that was used illegally?

Mr Allister: That is an interesting and slightly different point.

Mr Lunn: Clause 11 refers to revealing information that may be for financial advantage, but there is plenty of secret or confidential information that goes across the internet that does not fit that qualification.

Mr Allister: Yes, but this is not addressed at a qualitative assessment of what the information is. This is addressed at the inappropriate use of the mechanism to divulge or pass it, whatever it was. You are right: anyone could contrive in their mind a reasonable excuse. A reasonable excuse is what we call a classic jury question. If someone is charged with an offence and there is a reasonable excuse defence to it that they seek to raise, a classic question to ask of the jury is, "Do you think that that was reasonable? Do you believe him or her?".

In the legislation, it is not just a matter of saying, "Ah, I had a reasonable excuse". The court, jury or judge has to believe that it was a reasonable excuse before it qualifies as such. It is not just a let-off clause to say, "Oh, I had a reasonable excuse". You have to demonstrate that there was a reasonable excuse, and that is a classic question for a jury to decide.

Mr Lunn: Do you really expect Ministers to end up in court over this? The clause is pretty draconic.

Mr Allister: It depends on how bad the situation is. I remind you that, for anyone to end up in court, they have to pass the public interest test that it was in the public interest to prosecute them. That will never be passed if it is some incidental, mistaken situation that arose. However, if they were deliberately using devices to maybe undermine something that Government were doing or to inappropriately attain some objective, why could that not end up in court?

Mr Lunn: It seems to me that the thrust of what you are trying to do with that clause is to make sure that government officials or Ministers, as far as possible, cannot hide stuff.

Mr Allister: Yes. They cannot hide it. This is a deterrent not to hide it.

Mr Lunn: If they have attempted to hide it, is it not reasonable that they should be expected, as part of their coming clean — for want of a better word — to reveal what it was?

Mr Allister: If someone ends up at the point of being prosecuted, what it was that they were hiding will be part of the proofs, because, to show that it was in the public interest to prosecute, I think that you would have to know what it is that they were hiding. I think that that will inevitably become part of the process.

Mr Lunn: That would be drawn out in court.

Mr Allister: I think so, or before you ever get there.

Mr Lunn: Yes, before you ever get there is the point, I would hope. I would not like to think that any of our Ministers or even spads would end up in court over this.

Mr Allister: No. I am not looking to lock anyone up, but I am looking to create a real deterrent, because we have the situation where the old code said that you cannot do certain things, but they did them. Codes were not enough. Now, we have to step it up a gear and say, "Right, there is a criminal offence if you distribute material inappropriately". It does not mean that some people will not get away with it, but you could say that about any criminal offence.

The Chairperson (Mr McGrath): Earlier, Trevor Clarke was next on the list. Do you want to make your points?

Mr Clarke: No, it is all right.

The Chairperson (Mr McGrath): We can move to Christopher.

Mr Stalford: Thank you, and it is good to see you again. Clause 9 and clause 11 refer to a term of five years. People go to jail for less time than that for GBH. Why five years?

Mr Allister: Clause 11 and five years: again, it is a moveable feast. The Assembly may want to move it, if Members think that it is not enough or is too much. Five years, I thought, is the bottom end of serious criminality, generally. I thought that it probably did not merit more than that because, if there was a massive issue that touched on national security, for example, they are likely to be prosecuted under the Official Secrets Act, which is why the clause begins by saying:

That will take care of the high-end stuff. The clause deals with — I will not say trivial — lesser stuff. When five years is specified, it is the maximum. It is the upper end, the optimum. It does not mean that anyone gets anywhere close to the five years. Maybe it is right; maybe it is wrong; I think that it is about appropriate. I thought that the other matter in clause 11 was objectively less serious, so I set the tariff at two years.

Mr Stalford: As a general observation, I was at the openness and transparency element of the talks, and, I think, there is broad agreement around a lot of this stuff. I would not want you to go away from the Committee thinking that that was not the case. Certainly, as someone who was elected to this place in 2016 — call me Jonah Stalford: I got here and the place fell apart — I think that there is a broad acceptance that, out there, in the public, the standing of these institutions is at a low and that, whether it is through this vehicle or through other means, all of us recognise that action needs to be taken to try to restore that standing.

Mr Allister: I think that you are absolutely right, and I have to say that, if Lord Justice Coghlin's report is as shocking as some of the evidence was and the Assembly is presented with an opportunity to begin to do something about it and says, "No, thank you", I think that the public will understand even less and it will damage even more the public perception. I think that there is an appetite for and a belief in something needing to be done. This may not be everything that needs to be done by any manner or means, but I think that it is a start. I present it to the Committee not as a fait accompli but for a Second Stage as something that is acceptable and can be worked with. As a single Member, I cannot really control where the Bill goes. It will be in the gift of the whole House as to where it goes, and that could be killed at Second Stage, or it could be taken and moulded in different ways. I simply present it to you as, I believe, a necessary starting point in this process.

The Chairperson (Mr McGrath): Christopher, you might have wrecked the place, but you did your bit in putting it back together again.

Mr Stalford: I do not know whether Jim thinks that is a good idea or not.

The Chairperson (Mr McGrath): I am just trying to get brownie points to get extra questions in at Question Time.

Mr Allister, that is us complete. Everybody has asked their questions. Thank you for coming along and giving us those explanations.

Mr Allister: Thanks for the opportunity.

The Chairperson (Mr McGrath): That is certainly appreciated, and we will no doubt be in contact again to have further conversations.