Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): The main purpose of today's meeting is a briefing from the Department of Finance on the legislative consent memorandum (LCM), or lack thereof, for the Data (Use and Access) Bill. A serious situation has emerged in which the Committee extremely belatedly received notification of an LCM. That is despite the fact that it was clear from last autumn that the UK Government (UKG) were going to introduce the legislation, with parts of it applicable not just in Northern Ireland but in all the devolved areas, creating, therefore, the necessity for a legislative consent memorandum.

As members will know, convention for the devolved regions of the UK, known as the Sewel convention, is that the UK Government shall not legislate in devolved areas without seeking the specific legislative consent of the devolved legislatures. Scotland and Wales managed to lay their legislative consent memorandums, do the necessary scrutiny and pass, in April and May, respectively, legislative consent motions. We have not done any of those things. On, I believe, 28 May 2025, we received notification that the LCM would be coming to the Committee. That was a plain breach of Standing Orders, which necessitate that the LCM process be invoked no more than 10 working days after a Bill is introduced by the UK Government or new clauses are added to a Bill via amendment. None of that has happened. We are in a position in which we literally cannot pass an LCM, or, if we pass an LCM, it would be so outwith the boundaries of convention and meaning that it would make an absurdity of the process.

It is important to understand how this happened, where we go from here and what lessons can be drawn from the situation. To that end, we have two officials here: the permanent secretary of the Department, Neil Gibson; and Paul Duffy, deputy secretary, digital security and finance shared services. It would be helpful if one of you could make a brief opening statement to tell us, with the greatest respect, how the bleep this happened.

Mr Neil Gibson (Department of Finance): Thank you, Chair, I will provide the opening remarks. Good morning, Chair, Deputy Chair and members. I welcome the opportunity to be here this morning with Paul. May I start with an apology? This is not a situation in which we should have found ourselves. As permanent secretary to the Department, I take full responsibility for the issue with which we find ourselves today. I have taken it upon myself to try to understand better why we got to the this point, and I will try, in the next couple of moments, to give you a flavour of how we got to where we got to and, importantly, what we intend to do now and what lessons we might have taken from this. As always, we welcome the Committee's engagement on this, and I am sure that you will have points to make.

There were things that were not handled in the way that I, as permanent secretary, strive to make them happen. I hope that the Committee will recognise, from our engagement thus far, that we aim and strive to be a transparent and open Department. Therefore, there was no intent to keep the Committee away from this issue. Rather, we were going through a particular journey that we had not experienced before, and we think that there will be some very important lessons to be learned, not just for the Department and me but, indeed, for the wider service, as we will touch on some issues today that are likely to come up again.

I will not go into the ins and outs of the Bill: you will have seen the correspondence on that, and Paul can answer any specific questions in a moment. I will give you a flavour of what happened and talk a little about how we got to where we are today.

As the Chair said before introducing us, we are dealing with the issue that the Committee received the details of the devolved provisions too late to allow it to do the proper scrutiny that it would have expected to do. The Bill, as the Chair mentioned, was introduced in the House of Lords in late October 2024. The Minister wrote to the Secretary of State for Science, Innovation and Technology in mid-November to agree, in principle, to the progressing of the legislative consent memorandum. However, given the nature of the Bill, the UKG were required to complete an article 2(1) Windsor framework assessment, and the Department engaged the Departmental Solicitor's Office (DSO) to provide a view on the UK's assessment. Unfortunately, the UKG were unable to share that full assessment with us to enable us to scrutinise their assessment. Therefore, DSO did not have sufficient detail to provide a clear enough view. That required us to have ongoing, direct engagement between DSO and Department for Science, Information and Technology (DSIT) officials to allow them to provide the advice accordingly. That complex process took about two and a half months to complete: notably, a process that Wales and Scotland do not have to follow. That led to the situation in which we find ourselves: the LCM was passed to the Assembly too late. You will see in the timeline that you have been provided the delay of two and a half months as that legal work was carried out. As is normal, we also had a number of queries on the legislation from the Minister to answer.

The Chairperson (Mr O'Toole): Why, Neil, did the Department not see fit to tell us that the LCM was being delayed for that reason? On behalf of our able clerking team, I should say that the Clerks engaged with the Department immediately they became aware, from the Business Office, that this would be pertinent and that there would have to be an LCM and when it was clear, from the Speaker's Office, that the LCM would have to be laid. Why did you not tell us that that was the reason for the delay?

Mr Gibson: With hindsight, it seems obvious that we should have done that. One of the things that we will enact after this is a tracker of all the LCMs that we have so that we can keep you regularly updated, month by month, on whether an LCM is coming forward, whether it has gone for assessment under the Windsor framework and what the delay might be. Not having been proactive in telling you what the stages were is absolutely on us. Indeed, it is important that I have that tracker to hand, because, when one goes off into the legal world, one has to remember to keep chasing to see where legislation is at. That is an obvious area for improvement. I am sure that we will pick that up in questions about the process.

The question, then, is about what to do now. Over the past week, we have engaged with the Business Office, the Clerk, the NIO and DSIT to chart the way forward. In essence, there are three options on the table. The first is to move forward with the current process, but, as you said, Chair, that offers limited ability to provide the kind of scrutiny that might be expected. It seems highly unlikely that that would be the most prudent course and that any motion would be carried under those circumstances. The second option is to withdraw entirely from the LCM process, which would not be good for relations with UKG and the Assembly. The preferred option and the one with which, last evening, the Minister gave permission for us to proceed, is to work with an amended process that has come from the Business Office, through the legislation machinery of government branch in TEO, as a preferred approach. The process allows for discussion, but the motion is for noting by the Assembly rather than for its consent. That will not answer all the questions that you have, but it will at least allow a conversation on the Bill to take place in the House. As I said, the Minister agreed late last night that that would be the preferred approach.

The Chairperson (Mr O'Toole): To be clear, will the Minister or the Department recommend legislative consent to the Assembly?

Mr Gibson: No, he will ask the Assembly to note the Bill.

The Chairperson (Mr O'Toole): It will be like most of the other debates that we have. It will be simply a take-note debate.

Mr Gibson: It will be a take-note debate because, for the reasons that you stated, you will not have time to do the kind of scrutiny that you might expect to do. It does, at least, allow a conversation to take place about the Bill.

With hindsight, given the timescales and challenges, we should have considered the alternative option earlier. Recognising the challenges that the Windsor framework assessment might bring to the process, we probably should have had that option on the table earlier as a way forward. Regrettably, it was not an option that was familiar to me or to Paul, but it will certainly be on the list in future. We will supplement this approach with a motion for the Assembly to note the Bill's passage and to further note the provisions that deal with devolved matters, but it will not be a traditional LCM.

I will finish where I started, by apologising. I do not want this to happen again. We will have a better tracking system and will engage with the Committee with a regular update on the progress of any outstanding LCMs that we have. As I said, it was complex for us to engage with the Windsor framework legal advice, and I contend that we will see this happen again. We are engaging and will engage with NIO on its ability to reflect on the time that might be needed for Windsor framework considerations to be taken locally whenever that exercise needs to be carried out. This will not be the last time that it happens. In a way, those are new areas, so the legal process can be complex. We hope to receive the full UKG assessment on future occasions so that we can do the work a bit faster. My biggest regret is the level of update that could have been provided to the Committee on the steps that we were taking, which you mentioned, Chair. We were working on it, but, hopefully, that has given some explanation of how we got to where we are today.

Paul and I are happy to take questions.

The Chairperson (Mr O'Toole): OK, thank you. Committee members should indicate if they wish to ask a question.

It would be worth, first of all, establishing what the Bill is and what it does, because, during our previous session on it, it was not entirely clear that the officials were totally abreast of what the Bill does. It is important to understand what the Bill does as a whole if we are to understand the bits that engage the devolved competencies and that therefore require an LCM. Will someone give us very brief overview of the purpose of the Data (Use and Access) Bill?

Mr Gibson: I will pass over to Paul for that, but it is worth saying that our focus is always on the bits on which we have a locus. When it comes to our ability to understand a wider Bill that is considered in Westminster, we will not necessarily know all the detail that you might —.

The Chairperson (Mr O'Toole): You are not writing the Bill, but, surely, being broadly aware of the point of an entire Bill is basic. You cannot understand how it interacts with the devolved scene, competence or statute book unless you understand the broader competence. Paul, will you give us a brief overview?

Mr Paul Duffy (Department of Finance): Overall, the stated purpose of the Bill is to harness the power of data. It is largely about how that data can be used for economic growth, supporting modern digital government and improving people's lives. It is quite a wide-ranging Bill. At the moment, some issues relating to artificial intelligence and copyright law are holding the Bill up, which has meant that the Bill has been ping-ponging between the House of Lords and the House of Commons.

As the Committee was updated on, the three areas of the Bill that deal with devolution matters are smart data, which falls to the Department for the Economy; the National Underground Asset Register (NUAR), which falls to the Department for Infrastructure; and amendments to the Digital Economy Act 2017 around the data-sharing gateway, which the Department of Finance has been leading on. Those are the three main elements. The smart data element is about making sure that there is an opportunity to secure the sharing of customer data with authorised parties upon the customer's request. That would facilitate things such as open banking and the switching of bank accounts. The issue around the National Underground Asset Register relates to the recording of apparatuses that are on our streets and underneath the ground. The final element is the data-sharing gateway. The Digital Economy Act 2017 was not enacted in Northern Ireland, so, although there is a change to the provisions, legislation would be needed to enact the Digital Economy Act in Northern Ireland. That Bill went through in 2017, at a time when the Assembly was not sitting.

The Chairperson (Mr O'Toole): Given your account that the main reason for the delay was that you were seeking clarity on the Windsor framework implications, what specific questions were you asking? Article 2 of the Windsor framework covers there being no diminution of rights. What were the specific concerns? I know that the Northern Ireland Human Rights Commission raised concerns.

Mr Duffy: The engagement on the Windsor framework implications was largely between legal representatives. To be fair, when we asked the UK Government for their assessment, we got a couple of lines that said simply that "the data protection rights and safeguards fall outside the scope of article 2 of the Windsor framework" and that, even if those were within its scope, they believed that there were "strong arguments that the Bill's provisions do not diminish these rights".

The Chairperson (Mr O'Toole): All that you got from the UK Government was three lines?

Mr Duffy: Yes.

The Chairperson (Mr O'Toole): OK.

Mr Duffy: On that basis, we asked the DSO to engage with DSIT, because we were not getting direct engagement. That was the piece of work that took three months. That was so that DSO could be satisfied with the engagement with and feedback from DSIT colleagues.

The Chairperson (Mr O'Toole): Was the concern that those would be rights under GDPR?

Mr Duffy: That was an element of it. DSO concluded that it agreed with DSIT's assessment at that time.

The Chairperson (Mr O'Toole): The DSO here agreed with the UK Government's assessment, so what was the hold-up?

Mr Duffy: It took three months before DSO was satisfied.

The Chairperson (Mr O'Toole): It took three months for DSO to be satisfied?

Mr Duffy: Yes.

The Chairperson (Mr O'Toole): It would have been helpful for us to know at that point that that discussion was happening.

I will get to the specific points about GDPR, the Windsor framework and article 2. This will seem fairly hieroglyphic to some people watching.

GDPR is an EU regulation on general data protection rules. It governs how data is shared, including across borders. Those rules on how your data is protected are very important, but they also have a significant cross-border impact for any organisation that moves data on a cross-border basis, be it a news organisation that wants people to see its content in both jurisdictions, the GAA or the Church of Ireland. It impacts on all organisations that need to use data on a cross-border basis. That is, I presume, part of the context.

Mr Duffy: Yes. It is about ensuring that there is no future divergence between UK and EU data protection.

The Chairperson (Mr O'Toole): At the minute, the EU says that the UK's GDPR regime is fine. It says that it has "adequacy".

Mr Duffy: Yes.

The Chairperson (Mr O'Toole): If it says that it is not fine, it is a big deal, including for businesses and civic society in Northern Ireland.

Mr Duffy: Absolutely.

The Chairperson (Mr O'Toole): Has it said anything about the Bill?

Mr Duffy: Not that I am aware of.

The Chairperson (Mr O'Toole): The EU has not said anything about the Bill to the UK Government.

Mr Duffy: Not that I am aware of.

The Chairperson (Mr O'Toole): Not that you are aware of. OK. Is it important for the Executive to find that out? Has the Minister asked?

Mr Gibson: The Minister has not asked, but, again, the focus has been on the areas that are in the devolved space. There is, obviously, Westminster scrutiny of any of those bigger issues about the relationship with the EU. Certainly, our focus has been on the three areas of devolved competency.

The Chairperson (Mr O'Toole): Was the issue in the Minister's first-day brief?

Mr Gibson: I cannot recall whether it was. I do not want to give a misleading answer, so I will check that for you.

The Chairperson (Mr O'Toole): Were both this Minister and the previous Minister aware that an LCM had to be sought for this?

Mr Gibson: Yes.

The Chairperson (Mr O'Toole): Did they ask, at any point, where the process was or when there would be an LCM that they would have to bring before the Assembly?

Mr Gibson: Certainly, there were catch-ups, but, to be fair, I take responsibility for not bringing it up. I have a weekly key issues meeting with the Minister, and — I will be honest with the Committee — that was not at the top of my list when I was updating the Minister, but we provided ongoing updates when asked. I was not as proactive on that as I probably should have been.

The Chairperson (Mr O'Toole): OK, but both Ministers were aware the whole way through that it was happening.

Mr Gibson: Yes.

The Chairperson (Mr O'Toole): Recently, in the Commons, a UK Minister, Chris Bryant, appeared to be under a bit of a misapprehension, because he said that this was all sorted. Has the Department corrected him?

Mr Gibson: Yes, we are engaging to make sure that the understanding has improved on both sides, if you will, and that there is a better understanding of our considerations in a local context on Windsor framework matters. We are engaging at official level on the matter.

The Chairperson (Mr O'Toole): Just to be clear, as we sit here right now, what do the UK Government think will happen with the LCM? Are they aware that there will not be an LCM?

Mr Duffy: We have had engagement through the NIO to inform them that the Assembly will note the position and that consent will not be sought.

The Chairperson (Mr O'Toole): It is very important that they are clear that there will not be an LCM —

Mr Duffy: Yes.

The Chairperson (Mr O'Toole): — because, on the basis of what Chris Bryant said in Parliament, it appeared as though he was almost implying that this was all in hand and would happen soon. That is just not true.

Mr Duffy: The NIO is aware that the process that we will follow is to ask the Assembly to note the motion, rather than give consent, given that we completely accept that we are past the stage where any amendments could be reflected in the UK Bill.

The Chairperson (Mr O'Toole): OK. Approval for the urgent procedure was sought from the First Minister, the deputy First Minister and the Executive on 16 May. At that point, did you think, "This is a bit mad. We can't really ask the Assembly to give legislative consent to something on this timescale"?

Mr Duffy: Chair, this is where we have to apologise for our lack of understanding of an alternative approach, which is the approach that we are now taking. We should have taken that approach earlier. However, we should never have found ourselves in the position of having to adopt that approach in the first place. We certainly should have had much closer scrutiny of or an update on where the Windsor framework considerations had got to. When we saw those taking longer, we should have taken steps to escalate that matter to DSIT and to keep the Committee informed of what was happening. That should have driven that process to be a lot shorter than it turned out to be. If you look back, you see that Scotland laid its LCM on 22 November. We had already started our Windsor framework deliberations prior to that. It was three months after that that we were in a position to have clarity on the Windsor framework issue. We need to find a way of going through that process more quickly or starting it earlier.

The Chairperson (Mr O'Toole): I worry that the LCM process has been fatally damaged by there not being an Assembly and by a Brexit process in which, basically, the will of the devolved legislatures was steamrollered. I worry that this is another big reputational hit to the very idea of LCMs and the Sewel convention.

I will bring in members.

Ms Forsythe: Thank you, both, for coming. Neil, thank you for acknowledging responsibility and setting out how you hope to change things, particularly with the LCM tracker so that we will get used to knowing what we are looking for. This instance is very unfortunate, but it certainly brings to light how article 2 of the Windsor framework really adds to the frustration in some of the processes that we have in place.

In this one specifically, you have outlined how you had three months' worth of going back and forward over article 2 — the "diminution of rights" — between solicitors. To me, that implies that you would have been more likely to raise concerns with the Committee, rather than the need to bring it to the attention of the Committee slipping the Department's mind. It leads to concern about why, when there was so much back and forth, the Committee was not involved. Do you understand our concern about that? We were not kept in the loop over a three-month back and forth between solicitors, the Department of Finance and the UK Government.

Mr Gibson: Absolutely. As is often the case when something is set out like that, it sounds obvious: why would you not? However, in each of those weeks, you do not know that that is not to be the last week. It speaks to the need for the tracker that I mentioned. When you are trying to run a Department and you have a weekly log of all the problems that you have to solve, you must have something that says, "A month has been triggered on that" and "Two months have been triggered on that" so that you can then ask, "Where are we?".

It was also a little bit unknown. We had assumed that we would get the full UK Government assessment that would allow us to consider, from a legal perspective, exactly what they thought and how they had walked through it. Not having that was a bit of a surprise for us. The first few weeks were spent finding out whether we could get that and why we could not. To be fair, in speaking to UKG, they were very willing to put forward their legal people to discuss it with our legal people. I do not know the extent to which that represented a long back and forth or a number of questions that took a while to get a response to. I do not have the detail of the legal back and forth, so I was not aware of whether it was a series of 20 or 30 questions or whether it was a set of questions that took a number of weeks to get a response to, given pressures on the UKG side as well as on ours. Therefore, I do not know whether it was the level of complexity that made the decision difficult to take, or whether a large part of it was to do with the fact that we did not expect to be in the position of not being able to see the full assessment.

We have the right legal expertise for this, but a lot of this is new ground, so there are new issues being teased out for the first time. Therefore, doing it for the first time probably takes a little longer than you might find it taking the next time, when you will know where you need to get to.

To be honest and transparent in my answer, I cannot honestly say to you whether it was a series of exchanges in which we tended not to look into things but let the legal process do its piece and waited for the result. It is not a case of my being able to say to the Committee, "There were 40 issues of complexity". I do not know the honest answer to that.

Ms Forsythe: Thank you. A number of issues with this particular Bill have bounced back and forth between the Lords and the Commons, and it is really disappointing that the Assembly will not be given the opportunity to go through the detail. As you said, we will be asked to take note of, rather than give consent to, issues on which a lot of us have significant concerns.

Has the Minister provided his view to the UK Government on whether there should be more than two genders permitted when someone creates a digital account or identity?

Mr Gibson: Not that I am aware of. No.

Ms Forsythe: Thank you. Again, that is one of the things on which it would be good to have clarity on what the Northern Ireland position is and what our Minister put forward on this. It is very disappointing that we have not had the opportunity to go through this at Committee. Process was not followed. For those out there who are looking on, that sets a dangerous tone. We hope that, as these things progress, the tracker will help to capture things as they go forward. We will look on to see how this progresses through Westminster.

Mr Gibson: Yes, thank you. I again give you my assurance that we will not be in this position again. I have certainly learned considerably from the level of —. Certainly something in my career as a permanent secretary that I am learning more and more about is the importance of keeping people involved in the journey. In my previous roles, I always tried to solve the problem and bring the answer. It is very important from a scrutiny perspective that, as we go on the journey, the level of transparency is as high as it can be. I have certainly learned considerably from the process of this one and its unfortunate circumstances.

Dr Aiken: Thanks very much indeed, team. A lot of things about this are very unsettling. I made my declaration earlier because I also sit on the Windsor Framework Democratic Scrutiny Committee. Of course, one of the things that we have is the risk register produced by TEO for all pieces of legislation, not just those that are coming forward specifically about areas where there are likely to be concerns. I read that assiduously, and I did not see any indication of any reds or anything on this whatsoever. The question from this Committee or from the Windsor Framework Democratic Scrutiny Committee will be this: why did that not happen? If this was a significant risk, why was it not raised, why was it not identified, and why was it not identified to the Windsor Framework Democratic Scrutiny Committee, either?

I hear what you say, but we know that the Northern Ireland Human Rights Commission was all over this because it was briefed right at the beginning. Therefore, it knew what the issues were, and it actually raised its concerns directly to the House of Lords General Committee in March 2025. It is clear that the commission was aware of some of the issues with the Windsor framework and the article 2 compliance issues, and the House of Lords was aware of it. Indeed, the House of Commons was aware of it because the honourable Robin Swann, MP for South Antrim, would not have raised questions with the Minister unless he had concerns about it. How did we get into a situation where the Human Rights Commission was over the issues with article 2 and the Assembly was not?

Mr Gibson: There are a couple of things there. I accept your first point regarding the assessment of risks, but, as I said earlier — again, it is something for me to consider — we put our focus on where the legislation was in the devolved arena as opposed to the wider consideration of the Bill at Westminster. Our big focus, therefore, was on whether the areas on which they are legislating in the devolved space interact with concerns that the Human Rights Commission had. The advice that we received — after the protracted period — was that it was not in the areas where they were legislating in the devolved space that there were those concerns, and therefore they were not relevant to the consideration of the three items that we had our focus on.

The Minister was very much aware of the wider consideration and asked frequently about the human rights issues. His press on us was to determine whether the areas that were being legislated for in the devolved space were the areas in which the Human Rights Commission's concerns intersected, and the legal advice for us was that it was not.

Dr Aiken: So the Minister was concerned about the human rights issues that had been raised all the way through this process?

Mr Gibson: But they are not in the devolved space.

Dr Aiken: If the Minister was concerned about it, there was obviously a degree of concern out there about the process that was ongoing. Even if it was to come back to us to say in the Assembly, "These are issues that are outwith the legislative consent measures and the wider Windsor framework issues", why was there no communication?

Mr Gibson: I take that point. Certainly, my responsibility was for understanding at what point that communication could be given; obviously waiting to get that legal advice, to making sure that that was the position, and then providing that to the Minister for that reassurance as to where those issues were. On the point about the level communication to the Committee, that is absolutely on me.

Dr Aiken: Sorry, but it is not just for this Committee; it is for other Committees. There is a cultural issue here around the Windsor framework about informing people and informing issues, and that has been highlighted by this. That brings me to another thing, which is a real concern for me. Your proposal to deal with this issue is that the Assembly is going "to note". As part of the overall process for legislative consent measures, Scotland votes on it, Wales votes on it, but, in Northern Ireland, we note it because of the difficulties of the Windsor framework. Therefore, we are setting a precedent. What are the views of the Attorney General on that?

Mr Gibson: I have not sought them, so I do not know.

Dr Aiken: You are coming to us with a proposal on how you are going to deal with this — a fundamental constitutional change to how the system works across the United Kingdom — and you have not sought legal advice from the Attorney General.

Mr Gibson: I will take that away.

The Chairperson (Mr O'Toole): I am not entirely sure that it is a fundamental constitutional change. I am not quite sure that I understand that.

Dr Aiken: I think that it is, Chair, because, previously, legislative consent motions were required to be signed off by the three regional Parliaments, and, on this occasion, we are not doing that. This is really significant, as you have already pointed out, Chair, with regard to GDPR and other issues. We are only noting that the legislation will go through. There is no reason why that cannot be used as a precedent, unless I can get some definition from the Attorney General or the legal process that it is, in fact, the case.

The Chairperson (Mr O'Toole): I am happy for us to pursue that. This is a total fiasco, but it is also important to say that LCMs are not legally binding.

Dr Aiken: Right, but —.

The Chairperson (Mr O'Toole): As we know, Parliament is sovereign. I have to clarify that point: this will have no legal standing. Constitutionally, it might, potentially, because the UK constitution is based heavily on convention, but that convention has been trampled all over before. There is a deeper question about the understanding of LCMs and competence, but it is important to say that, in legal terms, this will have very limited, if any, legal standing, in fact, because those are not legal instruments. Go on ahead.

Dr Aiken: Chair, I acknowledge what you say, but I fundamentally disagree with that. This is significant. If we are taking the point —.

The Chairperson (Mr O'Toole): It is definitely significant, but whether it is legal is a different thing. Anyway, go on ahead.

Dr Aiken: I think that it is a considerable concern.

I have already raised the issue of risk registers and informing people of concerns. Neil, I am actually really glad to hear a permanent secretary taking responsibility for once. You are the first one whom I have heard do that in a very long time. One issue that we need to ensure here is the processes that cross the culture of the Northern Ireland Civil Service on risk registers and reporting concerns, particularly with regard to the Windsor framework. This is a fundamental one, and it did not even register. I will have to check again where that actually is, because there are reams of that stuff, but I am not quite sure how we get to the stage where we are using the Windsor framework as an excuse for that to occur when the likes of the Human Rights Commission and various other people throughout the whole mechanism of government were informed of that and the Committee was not. That is the second point. I will leave that one on the record.

I want to tease out a third point. I am speaking in my position as a Deputy Speaker. Yesterday, the Speaker raised concerns about how we are being kept informed and how we are doing that. At the moment, there is an issue at Westminster. A Minister of the Crown responded to a Member of Parliament on an issue. For the record, I do not think that we have had clarity yet on how that has been or will be resolved. That is an issue for another place, which is Westminster, but, obviously, there is a now an issue in that, potentially, a Minister, for whatever reason — though not intentionally — has misled a Member of Parliament about a piece of wider legislation. I would like to have a bit more clarity about what is being done to resolve that. Has anybody considered writing to the Speaker of the House of Commons to apologise for the process that has happened?

Mr Gibson: I do not have an answer to that yet. I will take that away and consider what is most appropriate. As you said, I do not think that there was any intent to mislead. The question is that we learn the lessons on both sides.

I should also say, with regard to your previous question, that we are engaging carefully with our TEO colleagues. Obviously, our guidelines on how to handle LCMs are due a refresh anyway, at least to refer to how to deal with LCMs through the Windsor framework. Indeed, I have been speaking to the Clerk and others about how to use his expertise to work alongside our board to ensure that all officials are fully briefed. Clearly, there is a lesson for me, too, to ensure that understanding of the legislative process is a little bit more informed than it was going into this.

One of the most important points that you referred to, which is one that I struggle with quite a bit, was the ability to be able to note when something is becoming more of an issue. You start out with something and think that it will take a week or two; then the world comes in around you, and you think, "Well, I need to check up on that". Then, you start setting lists, and they are hundreds of items long. We need to ensure that we get a much tighter process around that; again, recognising that the big exam question here is about how we handle Windsor framework assessments, because that was why Scotland and Wales could move at a different pace to us.

The Chairperson (Mr O'Toole): It is important to say, though, that, as Dr Aiken said, if there is any legal context to that, my broad understanding of LCMs is that they are constitutionally significant conventions, but that is not the same thing as being legally binding. If there is any legal advice that the Department has sought or received, not just about the specifics of where article 2 is engaged but on the LCM process, we would like to see that. It may be that one of the actions coming out of this is a more root-and-branch look at how LCMs are understood at the Assembly level.

Mr Brett: Thank you, colleagues, and apologies for my lateness this morning. Fair play to you for fronting up to the fact that you made a mistake. We all do it, but it is about how you learn from it and react to it.

Paul said that there were competencies for other Committees; I think, he said Infrastructure and Economy. Had those Ministers given approval for the Finance Minister to take forward the LCM?

Mr Duffy: There was engagement with Executive colleagues on it.

Mr Brett: OK. I sit on one of those Committees, and it did not come to the Economy Committee to say that the Economy Minister had given her approval for the Finance Minister to take forward the LCM.

Mr Duffy: There was engagement with the other two lead Departments — the Department for the Economy and the Department for Infrastructure. The Minister then wrote to Executive colleagues to get agreement for the LCM.

Mr Brett: OK. No problem at all.

The week before last, when Paul and his colleagues were on the Zoom call, one of the officials mentioned that weekly meetings were taking place between the Department of Finance, the devolved regions and the UK Government's sponsoring Department. What was discussed at those meetings, given the fact that officials clearly did not understand the LCM process?

Mr Duffy: I was not part of those discussions.

Mr Brett: What level was the official who sat on those representing the Northern Ireland Executive?

Mr Duffy: It would have been a grade 7 in the Civil Service.

Mr Brett: Is that normal procedure?

Mr Duffy: It would be, yes. I imagine that a lot of the discussion would have been about where the Bill was in the parliamentary process, with updates from officials from each of the devolved Administrations on where they were with their particular process at the time.

Mr Brett: This is not an attack on officials, because I do not understand it either, but do you think that there is a failure in the Department of Finance to fully comprehend the legislative process that Westminster goes through?

Mr Gibson: As the head of that Department, I think that we have a lot to learn. We are not a Department that does a lot of legislation, so we do not have a huge cadre of people who have been through many of these, and, indeed, LCMs with the Windsor framework are cutting new ground in a way. It is something that we want to make sure has a system. It would not be an area that we would invest heavily in, because we do not do it very often, but it is about making sure that we have the right support from others in TEO and elsewhere. There will be a learning from it to make sure that we are as up to date as possible and for me, in particular, so that I can provide the right prompts and challenges. You are absolutely correct in saying that our expertise, knowledge and ability to navigate a complicated and unusual LCM journey that brought in the new Windsor framework considerations was not as refined as I hope that it will be going forward.

Mr Brett: The Minister of Finance had written to Executive colleagues, particularly the Department for Infrastructure and the Department for the Economy, to get approval for the LCM. If that approval came forward, why did the Minister only write on 16 May to the First Minister and deputy First Minister seeking urgent procedure?

Mr Duffy: It is my understanding that the Minister wrote to Executive colleagues on 9 May, and the issue was to be considered at the Executive meeting on 15 May. However, it was brought up under any other business, and the Minister then wrote to the First Minister and deputy First Minister on 16 May to move the issue forward under urgent procedures.

Mr Brett: The Department for Infrastructure and the Department for the Economy were only told about the LCM on 9 May.

Mr Duffy: Yes.

Mr Brett: Given the fact that the Department knew that there was competency for both Infrastructure and Economy, because it had been sitting in on weekly meetings for over a year, at what stage did it say, "Oh, actually, we might need to tell our two departmental colleagues that they will be required to approve it"?

Mr Duffy: There was certainly engagement at a departmental level with the two other Departments. The Department for the Economy and the Department for Infrastructure were engaged on the provisions in the Bill that related to their areas, and neither Department had any issues and actually welcomed what was coming forward.

Mr Brett: This is the final question from me: what was the trigger point for the 9 May letter/16 May urgent procedure when the Minister of Finance realised there had been a huge difficulty with the process and due process had not been followed? What was the trigger point?

Mr Duffy: The trigger was the parliamentary process reaching a conclusion in the Houses of Parliament.

Mr Brett: That was —?

Mr Gibson: What was particular to us was getting back the legal advice and our response to the queries that the Minister had raised. Once he was content with the queries, he was in a position to take that forward. The legal advice on the Windsor framework and the answers to any ministerial queries were part of the consideration that he had to give before he brought it forward.

Mr Brett: At what point, Neil, did you go to the Minister and say, "We have missed the boat on this. You need to urgently write to the First Minister and deputy First Minister to try to get this cleared"?

Mr Gibson: Once we had clarity and the legal advice, we put the papers, as soon as we were ready with them, straight to the Minister for consideration. I have to be honest — again, it is a lesson for me — I did not hold up an alert to the Minister about the deadline. We were working back from Royal Assent, and we were still working to that time frame. My focus was on getting answers to the queries and the legal advice. I did not do the escalation that you talked about, and I should have done that.

Mr Brett: What date did the final submission go to the Minister from you?

Mr Gibson: I will need to check the date after we got the legal advice and will come back with that. I do not want to give you the wrong date, so I will confirm that.

The Chairperson (Mr O'Toole): We need that date, please, to understand.

Mr Gibson: I will confirm that for you.

Mr Brett: The main takeaway is that it is a difficult scenario, but you and your colleagues have been very generous with your time and also self-deprecating. Fair play to you.

Dr Aiken: The legal advice will probably be restricted, but can we have a covered version?

The Chairperson (Mr O'Toole): We will discuss that at the end of the session under any further actions.

Miss Hargey: As has been said, the tracker will be useful. It would be useful to share it with other Committees, because it is not unique to this Committee. It is not just down to you, and the situation shows the complexity of LCMs and legislation, particularly when it is draconian in nature at Westminster, and the challenges that that presents.

Article 2 of the Windsor framework presents challenges, but it also presents human rights protections. We saw that with the Dillon case in the Court of Appeal and that rights should be seen broadly as civil rights. Some of those rights interact with this Bill. It may not be in the constrained legislative consent areas but is certainly in the broader aspects. Part of the difficulty that you have highlighted has been the challenge or interpretation of the impact on article 2. Westminster has said one thing, and legal advice or the Human Rights Commission has a different view. That has come up as an issue with LCMs in other Committees, to the extent that the Human Rights Commission's concerns have not been represented. Going forward, it would be useful with any LCMs — not uniquely to this area — to have any written response from the Human Rights Commission here included in the packs, so that we can all have the information up front.

Last week, I highlighted the fact that I thought that the Minister was querying some of the human rights implications and what that would mean for citizens here, and that is the right thing to do. It is part of the Committee's role and the protections around the Windsor framework. It is complex, and that is why the Human Rights Commission has set up a department in the commission to look at article 2. It is a huge area of complex legislation, which continues to change and where legal challenges cement some of those areas of work. Going forward, can we ensure that the responses are included?

What engagement can be had across the Executive to get a consistent approach to some of the challenges? There may be some LCMs that do not interact in the same way with rights, but it is learning for us all. In fairness, you have recognised that and have put your hands up to that. However, it is not unique to the Finance Department; it is across all Departments. As you said, Neil, there is learning from this, but how do we ensure that it is replicated across all the Departments?

Mr Gibson: Yes, and we will be liaising closely with TEO colleagues about the guidelines to all Committees and engaging closely with our UKG colleagues as well, as we try to understand the time that we need for scrutiny.

Miss Hargey: Do you believe —?

The Chairperson (Mr O'Toole): Briefly, Deirdre. The plenary sitting is kicking off in a few minutes, and there will be members who will want to get in for a Matter of the Day. We may not be quorate at that point. Go ahead, but I will need to put not a hard stop but a probable stop at 10.30 am.

Miss Hargey: The engagement with Westminster is a key part as well, because, from some of the responses that come back, particularly around the Windsor framework, it looks as though there are no human rights implications, when our Human Rights Commission here will say something different. That is why it is important to put its information front and centre, so that we can view that as well, and to push back at Westminster to make sure that there is no diminution of rights, going forward.

Mr Gibson: Yes, and, as you mentioned, each is different, so you cannot say how long the process would take; you never can legally. It is about the recognition of the legal process and due diligence that we need to do here, locally, to be able to provide feedback to UKG, so we will continue that engagement.

Miss Hargey: Thank you.

The Chairperson (Mr O'Toole): OK. There are several bits that we need to follow up on. I acknowledge that you have both come, and there was an evidence session, a couple of weeks ago, when Paul and his colleagues came. That, obviously, is a plea in mitigation, but it is important that we are clear that the situation that we find ourselves in is not acceptable. I accept that we have had accountability and responsibility taken by you, but we need to better understand a little bit of the process. We got a lot of the detail today, but, in response to Mr Brett's question, we do need to understand when the Minister was briefed and what he was told about time pressure. We also need to understand what exactly has been communicated to the UK Government.

My worry, in a broader sense, is that this undermines the already heavily undermined and discredited process of legislative consent, which is supposed to be a big part of the devolved element here. It has been trampled over repeatedly by successive British Governments, particularly through the Brexit process. If they are standing up in the Commons and saying, "Ah well, this is just a procedural thing, and Northern Ireland will give its consent". I do not want to hear a UK Minister stand up and say, "Well, they have kind of given their consent; they have debated it, and a kind of a semi-consent has been given". That is not the case. This is a situation where we will have a slightly surreal moment of a debate that, in fairness, is like most of the debates that we have in the Assembly Chamber in that it is a debate without a particular consequence — it is a take-note debate — but the UK Government need to understand that that is not legislative consent, nor is it even an imitation or shadow of legislative consent. Those bits of information are critical, going forward.

We also need to understand, in a broader sense, something that you touched on today, Neil: what specific actions are coming out for your counterparts across the Executive, including in the Executive Office, in order to have a Northern Ireland Civil Service-wide understanding of the LCM process and the legislative process, because it appears, frankly, to have fallen apart disastrously in this instance? Thankfully, it is not a piece of primary legislation in a devolved context, but it raises questions about legislative competence more generally. Obviously, we are still less than a decade on from the renewable heat incentive scandal, and that is in the back of people's minds when they think of the credibility of our institutions and our Civil Service, so we have to show that we understand when we have got things wrong. There is clearly a Brexit and Windsor framework context to this. There are specific lessons there, including for the Windsor Framework Democratic Scrutiny Committee.

No one has indicated that they wish to ask any further questions. We do want to follow up on the specific points that we have raised. There will be more for us and others to do, but, at this point, we will draw the proceedings to a conclusion. Thank you.

Mr Gibson: Thank you very much.