Official Report: Tuesday 23 June 2015
The Assembly met at 10:30 am (Mr Speaker in the Chair).
Members observed two minutes' silence.
Mr Campbell: On a point of order, Mr Speaker. I seek your guidance. Some time ago, I tabled a question for written answer to the Minister of Agriculture and received a reply in the past few days. It was in relation to an invite that she had extended to an event at the proposed DARD headquarters at Ballykelly camp. I had asked her whether invites were sent out to local community associations and local representatives. She said that they were. I indicated to her in a subsequent question that it appeared that an unelected representative from another constituency, who was a Westminster candidate a few weeks after the event, was present at the event and, in fact, was photographed beside her and the deputy First Minister. Yet her reply says that no such person was invited either by the Department or by her. I just wonder whether you, Mr Speaker, could investigate the accuracy of the reply and give advance notice to other Ministers to avoid such gatecrashing in the future.
Mr Speaker: The Member has got his point on the record. I suspect that he knows very well that it is not a point of order. Ministers take responsibility for the content of their own answers. It is not a matter for the Speaker. The circumstances of that particular event, as a result of you putting it on the record, permits the Minister and her departmental staff to consider the accuracy of the information that they transmitted. Let us move on.
Mr Nesbitt: On a point of order, Mr Speaker. I am going to crave your indulgence on this point of order. As you will be aware, Councillor John Hanna was killed in a very tragic accident yesterday on the north coast. I know that he is not directly associated with the House, but he served for 22 years as an elected representative, and I would just like Hansard to record the fact that we mourn his passing.
Mr Speaker: Again, it is technically an abuse of the point of order process, but I think that all Members will share the sorrow and extend condolences to the family. I never met the gentleman, but, by all accounts, he was an outstanding public representative and appears to have been a very well-loved figure in his community. The point has been very well made and is on the record.
Before we proceed to today's business, I would like to inform Members that the Business Committee has agreed to reduce the lunchtime suspension to one hour in order to reduce the lateness of today's sitting. It will commence half an hour later, at approximately 1.00 pm, and the sitting will resume at 2.00 pm, when the first business item will be Question Time.
Mr Speaker: As with similar motions, this will be treated as a business motion, so there will be no debate.
That Mr Ross Hussey replace Mrs Sandra Overend as a member of the Committee for Education; and that Mr Robin Swann replace Mr Tom Elliott as a member of the Committee for Agriculture and Rural Development with effect from 30 June 2015. — [Mr Swann.]
Mr Speaker: The Business Committee has agreed to allow up to one hour and 30 minutes for the debate. The proposer will have 10 minutes to propose the motion and 10 minutes to make a winding-up speech. All other Members who wish to speak will have five minutes.
That this Assembly notes the report of the Committee on Standards and Privileges on the Review of the Northern Ireland Assembly Code of Conduct and the Guide to the Rules Relating to the Conduct of Members [NIA 178/11-16]; agrees to the new code of conduct and guide to the rules set out in annex 1 of the report; and further agrees to the other recommendations contained within the report.
I join with what has been said in relation to the late Councillor John Hanna and offer the condolences of my party colleagues on his tragic death yesterday after an accident. I had the privilege of working with John for a number of years on the Northern Ireland Local Government Association, and he was an outstanding public representative.
Over the last year, the Committee on Standards and Privileges has carried out a review of the Assembly’s code of conduct and guide to the rules. I thank everyone who contributed to the review, including those who offered us evidence, those who hosted our visits and those who provided us with answers, research and legal advice. I also thank the former members of the Committee who contributed to the review, particularly my colleague, the previous Chairman, Alastair Ross, who carried out most of the work in relation to this. I also put on record the Committee's gratitude to the Clerk and the other Committee staff for the outstanding support they gave during the review. The collected efforts of all those involved has allowed the Committee to bring forward a new and improved code today for the Assembly’s approval.
Much of our time during the review was spent on the question of when and how the code should apply to Members. That question is not as straightforward as it might seem. There were some, including the Committee on Standards in Public Life, who told us that, in certain circumstances, private behaviour can affect the reputation and integrity of a public institution. They said that, where that happens, there can be a clear public interest in a proportionate intrusion into a Member’s private life.
We disagreed. Of course, a Member’s actions in their private life could affect public confidence in their ability to carry out their role, but that does not provide a rationale for extending the scope of the code, and its standards and rules, to their private life. That would be unfair and disproportionate, even in limited circumstances.
Having said that, it is not always easy to differentiate between a Member’s private life and their wider public life and role as a Member. When we participate in media interviews, attend public events, and use social media, in what capacity are we doing so? The answer, depending on the situation, is not always obvious. The Committee therefore believes that the code should continue to apply in those circumstances, unless it is clear that a Member is acting exclusively in another capacity.
The Committee gave careful consideration to the issue of Members' comments. As a point of principle, the Committee believes, and has consistently stated, that it would be entirely inappropriate for the Assembly to seek to prevent or limit the lawful expression by a Member of any political opinion. That includes opinions on social or moral issues, even when such opinions should be regarded as offensive or inappropriate. The legal position on Members' right to freedom of expression supports that principle. The law gives enhanced protection to political expression and protects not only the substance of what is said but the form in which it is conveyed. Therefore, in the political context:
"a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated".
I am sure that we can all think of some examples of Members making those types of comments. However, the right to freedom of expression should not be misunderstood as allowing Members to bully or harass others. Clearly, that sort of conduct is unacceptable. The new code therefore provides that Members should not subject others to unreasonable and excessive personal attack.
That rule is just one of 21 enforceable rules in the new code. Most of them replicate, clarify or amend existing rules. Others are completely new, so I will say a few words about them. The new code provides that Members must not accept any gift, benefit or hospitality that might reasonably be thought to influence their actions when acting as a Member. Up until now, it has been enough for Members simply to register the receipt of such benefits. Generally speaking, no difficulty arises when they do so, provided that they do not then advocate for the person who provided the benefit. However, the Committee has agreed that, in certain circumstances, the receipt of particular benefits could reasonably be thought to influence Members' actions, even when they register them and comply with the Assembly rule. The Committee agrees that the receipt of such benefits in those circumstances would be unacceptable. Our new rule addresses that and brings us into line with the rules that apply to many other public-office holders.
The new code also provides that Members shall take reasonable care to ensure that their staff, when acting on their behalf, uphold the rules of conduct. That rule recognises, in the first instance, that Members' staff must not be able to act in a manner that improperly places personal interest above public interest. It also recognises, however, the primacy of Members as the employer in ensuring that their staff behave appropriately. Members should ensure that staff working for them are aware of the provisions of the code through appropriate induction, training, management and oversight and through requiring staff to adhere to their own code of conduct. The Committee shall liaise with the Assembly Commission and others to ensure that, if possible, a code of conduct for Members' staff is agreed and introduced to have effect from the start of the next mandate.
In his poem 'Choruses from "The Rock"', T S Eliot decries those who constantly dream of:
"systems so perfect that no one will need to be good."
The Committee understands that. It does not assume that, if Members mechanically follow the 21 rules, all will be well and that standards at the Assembly will be unquestionable.
Members must also take personal responsibility for their behaviour. No matter how comprehensive our rules, adherence to them does not absolve Members of their own personal integrity. Members must want to behave ethically and should base their behaviour not just on rules but on sound values and principles.
For that reason, in addition to rules, the code contains a number of principles. Those principles are aspirational rather than enforceable, but are just as important. The principles reflect the fact that Members should at all times conduct themselves in a manner that will tend to maintain and strengthen the public's trust and confidence, and integrity in the Assembly.
We must not forget that Members of the Assembly can be influential leaders to whom the public often look to provide an example. We know from research that the ethical behaviour of elected representatives can have an impact on the ethical standards and norms displayed across society more generally. The Assembly should therefore encourage and expect Members to observe those aspirational principles of conduct. As the guardian of the principles of conduct at the Assembly, the Committee will consider how best to promote them and will draw attention to practices and conduct that are incompatible with them.
The Committee is confident that the new code and guide will increase the public's confidence in the probity of the Assembly and the accountability of its Members. On behalf of the Committee, I commend the report to the House.
Mr F McCann: Go raibh míle maith agat, a Cheann Comhairle. I would just like to echo the thoughts and prayers that have been offered this morning for John Hanna. As a long-term councillor before I came into this place, I know about the difficult and hard work that is put in by councillors. I know that John had been an active member of NILGA and had worked to establish that organisation. From Sinn Féin, I would like to pass on our prayers and thoughts to the family of John.
My colleague Cathal Boylan was to lead the Sinn Féin position on the code of conduct but, unfortunately, Cathal is in hospital for an operation. We send our best wishes to him for a speedy recovery.
On 14 March 2015, the Committee on Standards and Privileges announced that it would carry out a review of the Assembly code of conduct. Its purpose was to establish the principles of conduct of all Members, to set rules for all Members to adhere to and to provide openness and accountability, thus ensuring public confidence in the standards regime in the Assembly. That wholesale review was agreed with the aim of clarifying what the purpose of a new code of conduct should be. It would define the scope of the code, determine where it does and does not apply and, ultimately, come up with a new draft that is comprehensive, clear and enforceable.
The Committee wrote to key stakeholders, including all Assembly Members, all political parties in the Assembly, the Speaker and the Equality Commission. The Committee published issue papers on the Assembly website, released press statements and took out adverts in the main local papers. In the end, the Committee was satisfied that all relevant stakeholders were approached to secure the widest possible participation. A total of 22 written submissions were received. I understand that Sinn Féin and the Ulster Unionist Party were the only two political parties to submit written submissions, which included recommendations that the Assembly approves the new code of conduct and guide.
The new code and guide include managing conflicts of interest; upholding the law; registering a declaration of interest; prohibition of the receipt of certain gifts; paid advocacy; misuse of payments; guidance and instructions; treatment of confidential information; interference with the performance by the Assembly of its functions; the abuse of position by a Member; and subjecting others to personal attack.
We also discussed Standing Order 69, which should be reviewed to determine whether it should be amended to reflect provisions of the new code and guide. The new code and guide should not come into effect until after the review of Standing Order 69 is complete.
The Assembly welcomes the independent financial review panel's intention to include in this determination for the fifth Assembly a provision for reducing the salary of a Member by 90% for any period during which that Member is imprisoned. The Committee on Procedures should review whether Standing Order 70 is necessary. It should liaise with the Assembly Commission to ensure that a code of conduct for Members' staff is agreed and introduced, to have effect from the start of the next Assembly. The seven principles of public life fulfil the purposes of promoting good behaviour in public life: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership.
The new code includes 21 enforceable rules of conduct. These are clear and concise in spelling out what Members must do and what they must avoid. One new rule requires Members not to accept any gifts or benefits that might influence their actions. This brings us into line with many other public office holders. Some include avoiding conflict between personal interest and public interest; upholding the criminal law; upholding the law in relation to equality; and the Assembly's register of interests and all relevant issues. Members will not misuse any payment, allowance or resources that are available to them for public purposes. These include a new rule that requires Members not to accept any gift, benefit or hospitality that might reasonably be thought to influence their actions as a Member. This brings us into line with many other public office holders. Members will cooperate at all times with any investigation and will not disclose details about such an investigation except when authorised by law or an investigatory authority.
To conclude, the Committee agreed that specific training and education should be made available to Members in a range of areas. The Committee believes that this work would be complemented by Politics Plus and recommends its approach to seek to put in place appropriate training for this range of standards. Overall, we are satisfied that the work that has been carried out will instil public confidence.
Mr Rogers: I also add my condolences to the Hanna family on the death of John. I knew John for many years. He was a councillor on the neighbouring Banbridge District Council. I always found him to be a gentleman. To his wife, Joan, the Hanna family and, indeed, the wider unionist family, I send my sympathies.
I welcome the opportunity to take part in the debate on the review of the code of conduct. As was the case with the last Member who spoke, I am the first sub in place of Committee member Colum Eastwood, who is unable to be here today.
From reading the report, it is clear that the Committee has undertaken significant work to review the Assembly's code of conduct and guide to the rules relating to the conduct of Members and to create a new updated version that draws on the opinions of a wide range of stakeholders from within the Assembly and beyond. This work includes a redefinition of the purpose of the code; a clarified scope; 11 aspirational principles of conduct; 21 enforceable rules of conduct; and a clear and more concise guide to the rules.
Mr Eastwood asked me to thank, on his behalf, the Committee staff, who worked tirelessly throughout the year in the operation of the Committee and the creation of the report that we are considering today.
The Committee's work is prompt. We have seen recent publications from the Council of Europe's Group of States against Corruption and the Committee on Standards in Public Life on best practice in promoting good behaviour in public life. The Committee on Standards and Privileges here is to be commended for its timely response to reports of this nature and the publication of today's report.
I do not intend to give an exhaustive analysis on all issues in the report, but I will highlight a few key areas of work that have been undertaken. The House and its Members should always strive to operate within an established level of conduct that is befitting of elected representatives. A code of conduct should not be a loose guide to defining how Members should conduct their business in public life but should instead be a mechanism for adherence to an established set of principles. It is for this reason that the ombudsman and the commissioner, when considering the Committee's work on the report, welcomed a change in the language in relation to the code of conduct. The word "expected", for example, has been used before in the code. The ombudsman suggested that the word "required" be used instead. This reflects a key theme that has been highlighted by the ombudsman, the commissioner and others, namely that the code of conduct should extend beyond assistance or guidance for Members and have a greater purpose in compelling Members to behave in a certain way.
The Committee examined the scope of the code of conduct in relation to the private and family lives of Members. The Ulster Unionists were particularly strong in their representation on this. The Committee was not convinced that it was responsible or proportionate to extend the code of conduct beyond situations to which Standing Order 65 applies.
That said, there have been incidents, as acknowledged by the ombudsman, when an MLA might have been acting outside the Chamber in his capacity as an elected Member. It is there that the distinction between public duty and private life may become slightly blurred. I believe, having read the report, that the Committee was diligent in considering this issue, and the code has been updated to reflect that.
The Committee's review also considered lobbying. It is clear that lobbying takes place on a much lesser scale here than in other parts of the world: in the United States, for example, lobbying is a highly regulated, multibillion dollar industry. The Committee broadly agreed that lobbying is a legitimate practice that helps democracy and aids policymaking in the Assembly. However, the possibility that undue weight is given to lobbyists who wield the power of money is always there, and the Committee was cognisant of that.
There was a separate discussion about a possible statutory register of lobbyists, as exists in different jurisdictions. That is an interesting idea. However, the Committee was not convinced that the absence of any such register has created problems here. Furthermore, the Committee was wary of creating extra administrative burden and bureaucracy where they were simply not needed.
Having received legal advice, the Committee's view was that Standing Order 69 be reviewed to determine whether it should be amended to reflect the provisions of the new code and guide. Standing Order 69, of course, concerns Members' interests. It is my understanding that the consideration of Standing Order 69 has been passed to the Committee on Procedures and that the code would need to be amended to reflect the considerations of that Committee and any legal advice given. That is a prudent course of action.
I commend the work of Committee members and staff in the creation of this report. I hope that it goes some way to ensuring high standards of behaviour and personal responsibility in the House and beyond.
Mrs Overend: I, too, would like to record my sympathies for Councillor Joan Hanna on the passing of her husband John. He will be sadly missed indeed by so many. My thoughts and prayers are with them all.
I speak on behalf of the Ulster Unionist Party to commend the Committee report, which followed a thorough and lengthy review of the code of conduct. I add my thanks to the Clerk and staff of the Committee for pulling together a vast amount of information.
The review began in March 2014, and I am glad that it reached its conclusion before the end of this mandate. The new code, if agreed today, will be introduced in the new Assembly mandate — I might have added "in May 2016" but the ways things are going around here, you just never know when that might be.
When a complaint against a Member is made, the process is meant to proceed in closed session and behind closed doors. However, many make it into the public domain due to the strong feelings of complainants and the view that they must be seen to have lodged a complaint. In my experience on the Committee, however, it has often been the case throughout this mandate that complaints turn out to be inadmissible as they are outside the scope of the code of conduct. That conclusion is reached following investigations — through written correspondence, oral interviewing or both — by the Commissioner for Standards, who is, currently, Douglas Bain.
A number of difficulties have been experienced with regard to complaints about Members, their conduct and how that has been perceived by the public at large. That is inevitable, considering the political dynamic in Northern Ireland, the history of the Troubles and the fact that we have such vastly differing views of what is acceptable, what is normal and, sometimes, what is the truth.
One of our main concerns about the existing code of conduct was that it was too ambiguous in parts, leading to unrealistic expectations of what it was supposed to do. A major difficulty throughout our evidence sessions and discussions was how to define when an MLA was acting as an MLA. While a Member is certainly entitled to a private and family life, there are occasions when it is difficult to define where that line lies.
The Committee has, therefore, taken the view that the code of conduct should continue to apply in circumstances where a Member only partly accounts for the Member's actions, except when it is clear that a Member is acting exclusively in another capacity. Of course, it shall not be enough for a Member to state that they are not acting as a Member. The commissioner is expected to take into consideration all relevant evidence etc before concluding if a Member is acting exclusively in another capacity. It is extremely important that there is increased clarity in this area.
For these and many other reasons, it is crucial that Members have a clear set of rules and standards. The new code of conduct includes both 11 aspirational principles of conduct and 21 enforceable rules, supplemented by a guide to explain the application of how to comply with the code. The principles are largely similar to what we had before, but the 21 rules are much more clearly defined. Therefore, Members and the public should find it easier to define if the code has been broken without having to process a complaint, which is often a complicated procedure. I have looked to summarise the 21 rules into the following categories: interest and influence; upholding the law; improper use of your position; respect; cooperation with any investigation; not urging other Members to contravene the code; and staff conduct.
I agree with the Committee recommendations that it would be useful if Members and staff were provided with some training on adhering to the code of conduct and in dealing with areas such as social media to ensure that Members know their limitations and act with respect and in an appropriate manner befitting of an MLA.
I must have talked much faster than I anticipated when I wrote this speech. I will draw my remarks to a close by commending the report to the House. It is important that Members act appropriately and avoid bringing the Assembly into disrepute. As one of our witnesses, Dr Tom Walker from Queen's University, said, we are the guardians of its integrity.
Ms Lo: First, I want to thank the Committee staff, particularly the Clerk, Paul Gill, who has ably assisted the Committee in reviewing the code of conduct and the guide to the rules. I joined the Standards and Privileges Committee as its vice-chair in September 2013. In recent months, it has become apparent that the majority of complaints received were inadmissible. While parliamentary privilege in the Chamber is reasonably well known to MLAs and the public, behaviours in Committees and elsewhere are not so clear. On several occasions, breaches of our code determined by the Commissioner for Standards were challenged as being not compatible with human rights convention articles such as the right to life or freedom of expression.
The Committee spent considerable time and effort conducting the review with a widespread consultation and consideration of best practice in other jurisdictions. We have also taken into account the Council of Europe's Group of States against Corruption reports and the UK Committee on Standards in Public Life's review, 'Standards Matter'. I therefore welcome the publication of the Committee report and believe that the revised code and guidance will give us an opportunity to increase public confidence in the integrity of the Assembly and accountability of MLAs, particularly at a time when the institution's rating is at an all-time low.
The new code will provide clarity to aspirational principles and set out enforceable rules that spell out clearly things that Members must and must not do in order to act in a manner consistent with the principles of conduct. When Members and the public know what standards of behaviour are expected of MLAs, this should result in fewer inadmissible complaints. However, it is important to reflect on the Assembly commissioner's remarks that the standards set out in the code are the minimum expected of Members. The Alliance Party endorses the updated 11 principles of conduct, the 21 enforceable rules of conduct, and the guide to the rules.
We welcome in particular the rules that deal with registering interests and prohibiting the receipt of gifts that might reasonably be thought to influence a Member's actions, as they are important to ensure that MLAs act in an impartial way. In terms of receiving payment to advocate for any outside body or individual, the Alliance Party feels very strongly that Members should be prohibited from providing paid advice for lobbyists. If we are to improve the levels of trust and confidence in the political system, we need to be as transparent and open as is possible.
As someone who has received a racist slur on social media, albeit unintentionally, from an MLA's assistant, I personally endorse rule 19, which states that Members:
"shall take reasonable care to ensure that your staff, when acting on your behalf, upholds these rules of conduct."
Finally, the Department of the Environment implemented the 'Northern Ireland Local Government Code of Conduct for Local Councillors' in April 2015. That is based largely on the Assembly's old codes, so there is now a discrepancy between the codes for central and local government. DOE may need to review that in the future to ensure a consistent approach for all public representatives in Northern Ireland. I support the motion.
Mr Ross: I want to record my gratitude to the Chairman of the Committee for acknowledging the work that I did in my time as Chair. I had the privilege of chairing the Committee from 2011 until December 2014, but I have also sat on the Committee since first entering the House in 2007. I approached the inquiry with some knowledge of the difficulties that there were with the old code of conduct and the opportunities that were presented to make a better code of conduct. The review of the code that was undertaken by the Committee was, as other Members have said, incredibly comprehensive. I want to record my thanks to Tom Walker from Queen's University, who, I think, focused the minds of Members on how we could get a code that is both practical and enforceable.
We obviously spoke to our colleagues in the House of Commons, in the Scottish Parliament and the Welsh Assembly, but of course clerks talk to each other all the time, and any changes that happen are usually quite incremental and will follow suit across these isles. However, I think that it is also important that we look beyond the British Isles. I gave evidence to the European Union for the GRECO report and we also engaged with the US House of Representatives Committee on Ethics, the Senate Ethics Committee and the State of Maryland legislature. Those areas deal with different difficulties to those that we face. The rest of Great Britain does not experience the political nature of complaints that we have here in Northern Ireland. In the United States, the debate tends to be around the ethics surrounding financial donations, because of the amount of money that they spend in their election campaigns. I listened to Mr Rogers make that point around lobbying. Because there is so much regulation around lobbying in the States, because Senators and Congressmen and -women are spending millions and millions of dollars on a campaign, that is just not applicable here in Northern Ireland.
We have ended up with a new approach in the code of conduct. As other Members have said, it is a simplified code, boiling everything down to 21 rules, but I think that the most important aspect of this new code of conduct is the fact that there is a separation between the aspirational and enforceable elements of the code. Look at the Nolan principles on public life, which are well known and used in nearly every jurisdiction around the United Kingdom: who could disagree with selflessness, integrity, objectivity, accountability, openness, honesty and leadership? The difficulty for the Committee and indeed for the Commissioner for Standards is how to decide when a Member is being open or honest or objective. How do you know whether a Member is showing leadership? It is very difficult for Committee members or the commissioner to judge whether a Member has breached the code of conduct based on those principles. That is why I think that it is so important that the separation between the aspirational element and the enforceable element has been reinforced in this code. That will make it much easier for Committee members and the commissioner when determining whether Members have breached the code. As Mr McCann said, greater sanctions are now available. The opportunity to dock a Member's salary is something that we called for and has been delivered. It is also incredibly important.
Other aspects of the code are worth highlighting. The right to a private life has been mentioned. It is important that Members are enabled to have a private life. In most cases, the code would not apply to it, nor would that be in the public interest. Freedom of speech is also hugely important. When we talked to politicians in the US, they laughed at some of the complaints we receive here in Northern Ireland on comments that Members have made. Indeed, as the Chairman of the Committee highlighted in his opening comments, article 10 of the European Convention on Human Rights, the law governing freedom of speech, protects Members when using:
"a degree of immoderate, offensive, shocking, disturbing, exaggerated, provocative, colourful, emotive"
language. That may be a challenge to some of us at times, particularly when Members say something that we do not like; but we have to recognise that they have the right to say it, and as long as their comments are lawful, they should be able to make them.
I conclude on two points. One of the difficulties we have faced in Northern Ireland is politically motivated complaints. We have far more complaints by MLAs against other MLAs than anywhere else in these islands. The most unfortunate thing is that a complaint by one MLA against another is nearly always accompanied by a press release. That is an abuse of the system and something we really need to get to grips with.
Finally, Ms Lo made reference to the councillors' code of conduct. It was unfortunate that the Environment Minister went on ahead with his code of conduct, rather than talking to the Committee on Standards and Privileges and trying to develop codes in parallel, which might have delivered much more clarity and a better system of conduct regulation at both council and Assembly level.
I recommend the code to the House.
Mr Newton: I too rise in support of the code. I open my remarks by paying tribute to the Committee staff, who have, in my short time on the Committee, done an excellent job. They have been diligent in their work; they have been excellent in their communication; and they have offered excellent advice to the Committee. I also thank Jimmy Spratt, who has been Chair since I joined the Committee and, indeed, Alastair Ross for the work he has done.
I would like to take a slightly different tack. Rather than delve into aspects of the work that has been done, I will talk about the need, or the perceived need, for the work to be done. Let us remember that this is a review of the code of conduct and that the Assembly already had a code of conduct in operation, which it willingly undertook to review. One might see that as moving towards what is regarded in other areas of work as professional standards. That is to be welcomed. We all use the word — a very important, very small, but very significant word — "trust". People put their trust in politicians at election time, and they look to politicians and this House for good conduct and, indeed, to set an example, both in the Chamber and in the environs of the House, not forgetting that MLAs and politicians from all backgrounds have a private life. Indeed, good guidance has been given in the code on how that should be separated out.
The code offers greater clarity to MLAs and provides for a greater ability to scrutinise the openness and transparency of the work of MLAs. It also recognises that freedom of expression is absolutely necessary in public life, but it does not allow MLAs to step across a boundary.
They have to be, within the code of conduct, more accountable for their behaviour or actions. Indeed, within the 21 points and 11 principles, stronger action can be taken against an MLA who is adjudged to have broken the rules.
In two particular areas, there is use of the word "gifts". I have to say that I do not think that anybody has ever offered me a gift, but, anyway, where there are gifts, the public expect a standard. It is quite obvious, particularly in your role, Mr Speaker, where gifts are given to the Assembly —
Mr Newton: I am going to welcome the fact that there are two display cabinets where gifts that are given to the Assembly are put on display and are recorded as such. Those are not gifts to the individual post holder but to the Assembly itself. That principle needs to be included in all aspects of life.
I will end with these few remarks. The public expect integrity from their politicians and expect politicians to behave in a manner that is perceived to be professional, whether in the Chamber, in Committees, in the public domain or through the conduct of office staff. They expect that professional standard. What we have got in the review of the code of conduct helps us to move in that direction.
Mr Allister: At the outset, I associate myself with the condolences expressed upon the passing of Mr Hanna. He is the husband of a much-valued and very effective councillor in my constituency, Councillor Joan Baird, and my thoughts are very much with her at this very difficult time.
I wish to focus on a certain part of the report, but, before I do that, I want to make a couple of comments.
It is all very good, but part of the issue that can subvert and circumvent the work of the Standards and Privileges Committee and the commissioner is the misuse of the petition of concern. That further drags down the credibility of the situation. When there is a complaint, and a finding by the commissioner or the Committee that is adverse to the Member and perhaps a recommendation for censure, his or her friends and colleagues, if he is from one of the big parties with the capacity to do it, gather round as a human shield to protect him from the censure. That totally undermines the independence and effectiveness of the supposed system of protecting the standards and privileges of the House. We have seen it in the past, and we may well see it again in the not-too-distant future, maybe even next week. It is an abuse of the petition of concern.
When the Procedures Committee, upon which I serve, comes to look at some of these matters, it could do well to make a move to exempt the use of petitions of concern on matters of conduct in the Standards and Privileges Committee. That needs to be looked at, because it really makes a mockery of the system.
The main point I want to make relates to paragraphs 69 to 80, which point out that, in contrast to the holding of Members to account, there is a total lacuna in the ability to hold Ministers to account. Although there is a ministerial code, there is no methodology to enforce that code. The report rightly, though a little timidly, draws attention to that and suggests:
"the Executive should agree to introduce an independent process to investigate complaints which allege that a Minister has failed to observe the Pledge of Office".
Mr Ross: I thank the Member for giving way. He will, of course, acknowledge some of the difficulties with enforcing a ministerial code of conduct because of the composition of our Government. The mechanism for ensuring that the ministerial code of conduct is adhered to is the court system, and we have seen Ministers who have breached the ministerial code of conduct being sanctioned by the courts. There is therefore a mechanism in place to enforce the code of conduct, but it happens to be the court system rather than within government.
Mr Allister: Thank you. The point that I was making is that there is no mechanism and no compulsion to investigate a breach of the ministerial code. That is made very clear in some answers that I received from the First Ministers, to the effect that no mechanism exists and that they have no plans to bring in such a mechanism, whereas in paragraph 77, the report quite rightly suggests that there should be an "independent process to investigate complaints".
That seems to me to be quite incongruous. When there is a complaint made against a Member, as a Member, the Commissioner for Standards will investigate, bring forward his report and interview whomever. There is a proper, due process of investigation. When, however, you have an abuse of the process, such as we had by Minister McCausland as found in the Red Sky case, there is no mechanism to investigate and therefore no path to censure. It is an obvious gap in credibility for the operation of the Assembly that there is no means by which to investigate the alleged actions of Ministers if they fall foul of the ministerial code of conduct.
That is a gaping flaw in the system, which adds to the downward spiral in the credibility of the institutions. Although I welcome the fact that the Committee put its finger on that, the burden is now on the Executive, and the Office of the First Minister and deputy First Minister in particular, to do something about it and to instigate a proper procedure. At the moment, Mr Ross says, "The courts, yes. You can go to the court and ask for a declaration if there has been a breach of the ministerial code". The only other mechanism is that it be brought to the Assembly, either by the First Ministers jointly moving it, which, when most of our Ministers come from their parties, is unlikely to happen —
Mr Allister: — or by 30 Members of the House. The opportunity to investigate properly before you get to that point does not exist, and that is a fatal flaw in the procedures.
Mr Agnew: At the outset, I thank the Chair and the Committee staff for their diligent work on this, as well as the former Chair, Alastair Ross, who I know approached the review with a genuine commitment and desire to improve the working of the code and the standards of Members. I believe that the outcome is that we have a better, clearer code.
An issue that I raised about a number of investigations is the need for help for complainants to understand the code better. I often felt that the complainant was required to be an expert to make a complaint, and that should not be the case. A clearer code can only assist the public and, indeed, those politicians who are bound by it. Hopefully, this clearer code, with its guide, can discourage some of the erroneous complaints that other Members referred to, and, hopefully, we can reduce the number of inadmissible complaints. Sometimes, genuine complaints are made that are inadmissible, but I feel that, too often, complaints are made for political purposes, and I hope that we will move away from that.
The one issue on which I will place on record my discontent is the scope of the code. We have heard about the importance of the separation between our role as an MLA and our private life, which is a proper distinction to make. In our discussions, we talked about being out for a family meal etc, which should be treated as private time and should not be covered by the scope of the code. However, there is a third category, which I urged the Committee to include; it is referred to in the report as "reasonably presumed". I would be even more explicit and say that it should apply when a Member is acting in a political capacity. In our discussions, I used the example of attending or speaking at a political rally. I think it is reasonable that the public can expect the high standards that we have placed in the code of any MLA who speaks in public in a political capacity. It might be as a party representative, but I believe that those are areas that should be covered by the scope of the code.
Mr McCallister: I am grateful to the Member for giving way. Does he accept that, in acting in such a capacity, you are unlikely, if you are not an MLA, to be asked to speak? Therefore, the code should, of course, cover your actions at such an event.
Mr Agnew: I thank the Member for his intervention. That is a point that I make sometimes when I am being interviewed. If I am asked what I personally think, I reply that, if I was not speaking as a representative of a party or as an MLA, the interviewer would not be asking for my views. The views that I give are my political ones. It is important that Members who attend political events should conduct themselves with the levels of integrity and respect that are outlined in the code.
Mr Allister mentioned the ministerial code. The Committee was limited in what it could do. We have written to the First Minister and the deputy First Minister and included in our report the recommendation that there should be a process of investigation. That is right, because the line is often used that there is one rule for some and another rule for others. We have a situation where there are 21 rules for Members and none for Ministers because the ministerial code could be perceived to have been breached on a number of occasions without an independent investigation or a process.
Members of the public and, indeed, some MLAs have written to the Committee about breaches of the ministerial code, but we have had to write back to say that we cannot act and can only treat them as inadmissible complaints. In many cases, there are good reasons behind the complaints but we cannot refer them to another process. We have heard mixed views as to whether writing to the First Minister or the deputy First Minister is, in itself, a process. It appears that they take no responsibility for upholding the ministerial code or for its oversight. As has been pointed out, it has been left to the courts. It is a less than ideal situation that that is the only recourse. We should have a form of self-governance but, of course, the courts should be there as a final resort. As we do with the code for Members, we should have an independent investigation and a process that is clear and coherent to the public.
Mr Agnew: It is unfortunate that that is not in place.
Mr McCallister: I will be very brief. At the outset, I associate myself with the remarks about the late Councillor John Hanna. I knew John very well. I fought my first election campaign in the Knockiveagh ward alongside John so I have many fond memories of him. He will be greatly missed by his party colleagues and his wife, Joan, and I extend to Joan my sincere sympathies at this very difficult time.
I am grateful to the current Chair, the previous Chair and the Committee for bringing the report forward. I have concerns about the issue of respect, mentioned in paragraphs 214 to 225. I feel that there is a gap in that that section does not include Members' staff or, indeed, party staff. That is one of the difficulties that we have here. It applies particularly to staff members of independent Members like me or of smaller parties that maybe do not have the capacity, structure or HR experience to deal with complaints and in which, effectively, there is nowhere for a staff member to go. I would like that to be looked at. Mr Speaker, I wrote to your predecessor about this to see whether we could extend the scope, make sure that the Carecall process is looked at as an option and whether there could be some point of redress for members of staff of small parties or independent Members. Working for a Member is like working for a small business: you are effectively on your own. As a corporate body, we should have an overall responsibility. That needs to be looked at and grappled with.
It is worth supporting Mr Agnew's point about making a complaint and how difficult it is for a Member, a member of the public or a member of staff to make a complaint. It is important that it is not made unnecessarily difficult to have exactly the right language and to meet the standard, because we want this to be of value in upholding this institution and in ensuring that Members are rightly held up by the public as maintaining a high standard in public life. We also question how well equipped any individual commissioner is — not just the current commissioner — to deal with a very sensitive complaint.
Mr Allister made a point about breaching the ministerial code. I accept Mr Ross's point that it is up to a court, but the ministerial code can sometimes be viewed in the same way as ASBOs used to be viewed. It is almost a badge of honour to be accused of breaching the ministerial code when it should be seen as being slightly more serious. Nearly all Ministers seem to have breached the code at some point, regardless of whether they were taken to court. We must have a code that actually means something. That was Mr Allister's driving point, and I concur with it.
Mr Spratt: I thank those who took part in the debate, which has largely been positive. That reflects the constructive and consensual manner in which the Committee carried out the review. The Committee has asked the Assembly to agree the new code. I welcome the apparent support for it across the Chamber. However, the Committee has also made further recommendations, so, before I reflect on the points made during the debate, I will address some of those other issues.
I want to mention the guide to the rules. The Committee has agreed that some of the rules of conduct should be supported by more detailed requirements, revisions and guidance. The new guide to the rules, therefore, sets out such details for rules 4 to 8 of the code. Should it appear to the Committee in the future that any of the other rules in the new code would benefit from more provisions, it will table amendments to the guide for the Assembly’s approval.
Secondly, the Committee recommended that Standing Order 69, on Members' interests, be reviewed in light of the provisions of the new code and guide. The Committee has recommended that the new code and guide not come into effect until after such a review is complete.
The third issue that I want to mention is lobbying, which has caused significant concerns at other legislatures where some Members have clearly acted improperly when making representations on behalf of lobbyists. The Committee is satisfied that lobbying is a legitimate practice that is important for democracy and policymaking. However, it should be managed well to ensure transparency to the public, who need to be assured that undue weight is not given to the power of money behind the scenes. No one should be under the impression that it is necessary to employ the services of a lobbyist to make their views known or gain access to Members.
The Committee is satisfied that the provisions of the new code and guide are sufficient to ensure that misconduct in relation to lobbying does not occur. However, we recognise the argument for, in addition to the mandatory requirements of the code and guide, good practice guidance for Members and their staff when dealing with lobbyists. The Committee has, therefore, agreed 'Guidance for Members on Dealing with Lobbyists', which is included at annex 2 of our report. The Committee also recommended that OFMDFM give consideration to whether a register of lobbyists in Northern Ireland would be appropriate or beneficial.
I now turn to some of the comments made by Members during the debate. Fra McCann pointed out that we welcomed the Independent Financial Review Panel's intention to include in its determination for the fifth Assembly mandate a provision for reducing the salary of a Member by 90% for a period during which that Member is imprisoned. Seán Rogers referred to the GRECO report on preventing corruption in legislatures, and our report takes full account of its recommendations.
Anna Lo and Sandra Overend referred to the number of inadmissible complaints received, and we hope that the new clearer code will reduce the number of those complaints in future. The greater clarity in the code is for Members and the public.
The former Chair, Alastair Ross, spoke about some of the problems that we had with the current code, problems that arose from ambiguities in drafting and the lack of separation of aspirational principles and enforceable rules. The new code clearly addresses that and spells it out that, while the principles are important, they are not enforceable.
My colleague Robin Newton spoke about the trust that is key to the integrity of this institution, and we believe that the new code will enhance trust in standards at the Assembly.
Mr Allister raised two issues, both of which have nothing to do with the conduct of Members. He spoke about petitions of concern, Mr Speaker, but that is not a matter that the Committee could or should address as part of the review. That is, of course, a matter for the Assembly and you as Speaker to decide on. He also raised the ministerial code. Today, we are debating the code of conduct for Members, not the ministerial code.
Mr Spratt: I am not sure. I have really heard enough from you, but I will give way just this once.
Mr Allister: I am a little puzzled, because 12 paragraphs of the report deal with the very subject that I raised: the application of codes to Ministers. It is rather disingenuous to suggest that I raised something that had nothing to do with the report when the report itself has a recommendation in paragraph 77 touching on that very issue.
Mr Spratt: Of course it is not disingenuous, Mr Speaker. The Member could have raised those issues, but he did not provide any feedback to the Committee at an earlier stage in relation to any it. He was obviously asleep at the steering wheel at the time the Committee sent out.
Mr Spratt: Yes, it is in the report, but it also very clearly points out that it is a matter for the Executive in relation to the ministerial code, and that is where the issue lies. It is for the First Minister and the deputy First Minister to make any changes necessary; it is not within the power of the Committee to do that in the code.
Steven Agnew spoke about the application of the code to circumstances where it was unclear in what capacity a Member was acting. However, the code will apply in such circumstances, unless it is clear that a Member was acting exclusively in another capacity.
Mr McCallister raised the issues of Members acting with respect and Members' treatment of their staff. That is more complicated because, ultimately, such behaviour could become the subject of an employment tribunal. The Committee has therefore agreed that it will amend its direction to the commissioner so that he will not investigate complaints that should be properly resolved in another statutory or official forum. However, Mr McCallister may wish to read the Hansard report of the Committee's session with the Clerk to the Assembly/Director General of the Assembly, when it was briefed on the extension of the Carecall welfare service to Members and their staff and the potential for grievance procedures and employment tribunals.
When the Committee on Standards and Privileges commenced the review, it said that it ultimately wanted to produce a new draft code of conduct that was
"relevant, appropriate, comprehensive, well-structured, clear and enforceable";
"confidence to the public about the probity of the Assembly and the accountability of its Members";
"proportionate and reasonable in the requirements it places upon Members".
The Committee has done that unanimously and in cooperation with the commissioner, having undertaken a careful, detailed consideration of a wide range of issues. The new code establishes the principles of conduct expected from all Members, sets the rules of conduct that flow from these standards and provides openness and accountability to ensure public confidence in the standards of the Assembly. On behalf of the Committee on Standards and Privileges, I ask the Assembly to agree the new code and guide.
Question put and agreed to.
That this Assembly notes the report of the Committee on Standards and Privileges on the Review of the Northern Ireland Assembly Code of Conduct and the Guide to the Rules Relating to the Conduct of Members [NIA 178/11-16]; agrees to the new code of conduct and guide to the rules set out in annex 1 of the report; and further agrees to the other recommendations contained within the report.
Mr Speaker: Minister, this is my first opportunity to congratulate you on your appointment, so congratulations.
Mr Bell (The Minister of Enterprise, Trade and Investment): Thank you, Mr Speaker, for those congratulations. I beg your indulgence to be associated with the sympathy that has been expressed in the House for Councillor John Hanna. I was with him on Thursday evening in Scarva. He had a love for the area that he had represented for over two decades and the people of the area had a love for him. He was a fine Christian man, and our deepest sympathy goes out to his family circle.
I beg to introduce the Credit Unions and Co-operative and Community Benefit Societies Bill [NIA 56/11-16], which is a Bill to make provision about credit unions and cooperative and community benefit societies and for connected purposes.
Bill passed First Stage and ordered to be printed.
Mr Speaker: This item may not proceed, as the Second Stage of the Bill has not yet been agreed. A revised Order Paper will issue for a sitting tomorrow which will include the Second Stage of the Bill, and the Consideration Stage will be scheduled by the Business Committee following notification from the Executive.
Mr Speaker: I call the Minister of Enterprise, Trade and Investment, Mr Jonathan Bell, to move the Consideration Stage of the Insolvency (Amendment) Bill.
Moved. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
Mr Speaker: Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list. There are two groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1 to 11, 13 to 35, and 47 to 50, which are technical amendments.
The second debate will be on amendment Nos 12 and 36 to 46, which deal with recognised professional bodies and authorisation of insolvency practitioners. I remind Members intending to speak during the debates on the two groups of amendments that they should address all the amendments in each group on which they wish to comment. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If all that is clear, we shall proceed.
No amendments have been tabled to clauses 1 and 2. I propose, by leave of the Assembly, to group these clauses for the Question on stand part.
Clauses 1 and 2 ordered to stand part of the Bill.
Clause 3 (Requirements relating to meetings)
Mr Speaker: We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 11, 13 to 35 and 47 to 50, which are technical amendments, including an amendment to modify Assembly control of subordinate legislation.
In page 5, line 30, leave out "at year’s end". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
The following amendments stood on the Marshalled List:
No 2: In page 5, line 31, leave out from "in" to "year," on line 32. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 3: In page 6, line 5, leave out "at year’s end". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 4: In page 6, line 6, leave out from "If" to "year," on line 7. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 5: In page 6, line 20, leave out "at year's end". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 6: In page 6, line 23, leave out "at". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 7: In page 6, leave out line 24. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 8: In clause 11, page 9, line 38, leave out subsection (3) and insert
"(3) No order may be made under subsection (2) containing provision which amends or repeals a provision of an Act of Parliament or Northern Ireland legislation unless a draft of the order has been laid before, and approved by resolution of, the Assembly.
(4) Any other orders under subsection (2) are subject to negative resolution.". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 9: In clause 13, page 10, line 9, at end insert
"(za) in the words before sub-paragraph (a), after "service" insert "on the bankrupt";". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 10: In clause 13, page 10, line 15, leave out the first "the". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 11: In clause 13, page 10, line 16, after "Article" insert
"(and whether before or after service on the bankrupt of a notice under this Article)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 13: In clause 14, page 11, line 15, after "authorised" insert
"to act as an insolvency practitioner in relation to companies". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 14: In clause 14, page 11, line 15, after "may" insert "nonetheless". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 15: In clause 14, page 11, line 16, leave out "as an insolvency practitioner". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 16: In clause 14, page 11, line 17, leave out "or an individual". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 17: In clause 14, page 11, line 18, leave out "or individual". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 18: In clause 14, page 11, line 20, at end insert
"(1A) A person who is partially authorised to act as an insolvency practitioner in relation to individuals may nonetheless not accept an appointment to act in relation to an individual if at the time of the appointment the person is aware that the individual—
(a) is or was a member of a partnership other than a Scottish partnership, and
(b) has outstanding liabilities in relation to the partnership.". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 19: In clause 14, page 11, line 21, after "authorised" insert
"to act as an insolvency practitioner in relation to companies". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 20: In clause 14, page 11, line 21, after "may" insert "nonetheless". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 21: In clause 14, page 11, line 22, leave out "as an insolvency practitioner". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 22: In clause 14, page 11, line 23, leave out "or an individual". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 23: In clause 14, page 11, line 23, leave out from second "or" to "individual" on line 24. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 24: In clause 14, page 11, line 28, at end insert
"(2A) Subject to paragraph (7), a person who is partially authorised to act as an insolvency practitioner in relation to individuals may nonetheless not continue to act in relation to an individual if the person becomes aware that the individual—
(a) is or was a member of a partnership other than a Scottish partnership, and
(b) has outstanding liabilities in relation to the partnership,
unless the person is granted permission to continue to act by the High Court.". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 25: In clause 14, page 11, line 29, leave out "the" and insert "a". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 26: In clause 14, page 11, line 29, after "act" insert
"for the purposes of paragraph (2) or (2A)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 27: In clause 14, page 11, line 32, after "(2)" insert "or (2A)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 28: In clause 14, page 11, line 38, after "company," insert "this Article or, if it applies,". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 29: In clause 14, page 11, line 38, leave out from "or" to "Article" on line 39. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 30: In clause 14, page 11, line 40, after "individual," insert "this Article or, if it applies,". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 31: In clause 14, page 11, line 40, leave out from "or" to "Article" on line 41. — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 32: In clause 14, page 11, line 43, leave out "paragraph (1) or (2)" and insert "any of paragraphs (1) to (2A)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 33: In clause 14, page 12, line 1, after "(2)" insert "or (2A)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 34: In clause 14, page 12, line 4, leave out "paragraph (2)" and insert "the paragraph". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 35: In clause 14, page 12, line 13, after "(2)" insert "or (2A)". — [Mr Bell (The Minister of Enterprise, Trade and Investment).]
No 47: In schedule 2, page 18, line 15, at end insert
"3A. In Article 14(2), omit "or authorised to act as nominee,".
3B. In Article 15(4), omit ", or authorised to act as nominee,".
3C. In Article 17(2), omit "or authorised to act as nominee,".