Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): The Department has laid a legislative consent memorandum (LCM), under Standing Order 42A(4)(a), with a draft motion seeking the Assembly's consent for the Public Office (Accountability) Bill, excluding Part 4, to legislate on behalf of the Executive/Department in what are devolved areas.

On 5 November, officials provided an oral briefing on the relevant content of the Bill. At that time, members asked officials for detail of the responses to departmental engagement and level of risk for the LCM. Members were also concerned about slippage in process that would allow the NI Assembly time to provide consent or otherwise. Members will wish to consider a reply from the Department, which indicates:

There is no further detail of the actual responses to the departmental engagement or assessed level of risk for the LCM to proceed.

The LCM was laid in the Business Office during Christmas recess. Now that recess has ended, the Committee has 15 working days under Standing Order 42A(7) to report on the relevant provisions of the Bill should it choose to do so. That would mean the Committee agreeing a report at its meeting next week.

The Department indicates that a number of amendments to the Bill will be made by the UK Government to deal with the extension to devolved jurisdictions. Colleagues at the Department for Science, Innovation and Technology (DSIT) — that is the UK Department — expect the Bill to reach Report Stage in the Commons soon. It does not state what "soon" is. Is that this month?

The Committee Clerk: That will be within weeks. The Report Stage is pending, and that will lead to the Third Reading. It has not gone to the House of Lords yet. We are aware from colleagues that they anticipated that we would be getting a report this week. That has not happened. It is imminent. It may well be next week, and the Third Reading follows quickly after that.

The LCM has been laid under Standing Order 42A(4)(a), so our 15-day window started to tick the minute that we came back from Christmas recess. As you indicated, Chair, that window closes on 23 January, so the Committee needs to be in a position where it has reported. I should also flag up that, even though there were still discussions going on with DSIT on potential further amendments, the Committee is considering the Bill as drafted. That is the Committee's role with a legislative consent motion, because, if timings in Standing Orders were followed exactly, we would have no opportunity to do anything else. Therefore, the Committee will report on the Bill as drafted.

We have seen that, and now we have the 15-day window for a Committee report. The briefing from the Department has already happened. Members have definite issues, and those will be reflected in the Committee report. The plan for that timescale would be to bring that report to next week's Committee meeting, with it going out in this Friday's pack for members to reflect on, and then to see whether you are comfortable with making a decision. Irrespective of that, the Department will be able to bring forward the motion — the draft motion is in the LCM — and the House will decide. As with any LCM, the House will make a decision. That is how the process works. The Committee's role is to make the report potentially to inform the House about where it may wish to go.

This LCM has been slightly better advertised than the cybersecurity one purely because there has been a lengthy passage of discussion. The Public Office (Accountability) Bill has been flagged up as the Hillsborough Law Bill and various other things, and there has been a long period of discussion about it. It also moves on from legislation in GB, primarily for England, around duty of candour in health, which we did not have. That is why the Health Minister has talked about separate subsequent legislation. All those issues needed to be worked out with the Health Department before the Executive were willing to go ahead with this in terms of what it does and what is still missing — what we do not have here but England has. That has been largely established, hence the responses from the Executive and feedback about any risk that still exists. It will cover a certain amount of public office. However, there will still have to be further legislation for the realm of health, because Northern Ireland has not kept up with what has happened in England in particular.

The Chairperson (Mr O'Toole): Is it that the original UK Bill excludes health?

Dr Aiken: No, the original UK Bill has health in it.

The Committee Clerk: This is a subsequent one, so it is adding to that, because, ultimately, as I said, of things that have happened in various discussions. The health one did not cover anything beyond health. This mirrors what was in the original health one for the rest of the public office.

The Chairperson (Mr O'Toole): The current UK Bill does not include health, because —.

The Committee Clerk: It has already been done.

The Chairperson (Mr O'Toole): OK.

The Committee Clerk: But not here, obviously.

The Chairperson (Mr O'Toole): Not here. Indeed. What is in the memorandum and what will be in the legislative consent motion is, effectively, everything in the Bill, apart from Part 4, which is to do with legal aid.

The Committee Clerk: Yes. That is a devolved issue, which they will not touch.

Ms Forsythe: I know that it is for next week, but could we get some quick summarised clarity on this? I am still a little bit confused about the exclusion of Part 4. It does not deal just with legal aid; there are also some duties for public authorities to have regard to some guidance around candour. I know that it states that separate legislation will come forward, but I wonder how the duties that were in Part 4 are planned to be replicated in Northern Ireland. Do we have any idea of that? Is there a little bit more detail about that? It is the one bit that has been dropped, and it just says, "It's because of devolved matters". I would like a little bit more detail of what that is going to look like for us.

The Chairperson (Mr O'Toole): Could we ask the Department of Justice? I do not know whether we have to go to the Committee for Justice or whether we can go straight to the Department of Justice to ask whether it has any plans to mirror. It is a relatively large anomaly if the only thing that does not apply is the ability of —.

The Committee Clerk: It is a matter of timescale, Chair. We will probably not get a reply before the Committee needs to make a decision.

The Chairperson (Mr O'Toole): That brings me to my next point, which is —.

The Committee Clerk: We can raise the issue and put it in the report.

The Chairperson (Mr O'Toole): I can give my view as Chair now, which is that I do not feel that we have the time. My party has been in support of the Bill in principle, including at Westminster. I am not totally sure that the Committee has the time to produce a detailed report, but that is not to say that we cannot flush out important issues and raise them in the Assembly by asking the Finance Minister further questions as he proposes the LCM. That is my current view, but it is open for discussion with the Committee.

Dr Aiken: The health one is important, but so is the justice issue when it comes to the duty of candour. It is also about how the duty of candour is explained. I am quite surprised that the Justice Ministry has not raised any issues about it.

The Chairperson (Mr O'Toole): Sorry, will you say that again?

Dr Aiken: Obviously, we have discussed the health one. The health one is a separate piece of legislation, but there was also an issue to do with inquests. There is a whole raft of stuff. There was also an issue with whether the police are covered by "public office". What are the implications of that? To follow up on what the Deputy Chair raised, an explanation of what is specifically excluded in the Northern Ireland context would be useful. Officials should be able to put their hands directly on that, because that should have been in the briefing note that went to the Executive. They should be able to grab that and tell us what it is.

The Chairperson (Mr O'Toole): Those may well be important questions — I think that they are — that we can raise in this context. Either we will get them back to the Committee, and then we can make them known to the Assembly more widely through various means, or we can flag them up and the Minister can answer them in the Chamber.

The Committee Clerk: Due to the timescale, we will flag up the issue in the report. We will bring forward a draft next week. We will flag up all the issues that have been raised today in the report.

I should have said that the Committee does not have to agree. The Committee — this is commonly done — can reserve its position if it feels that there is still too much going on in the timescale that the Committee has had for consideration. The Committee is quite within its rights to state in its report, "These are things that we have raised and would like to get greater clarification on" and reserve its position. It does not have to be that the Committee agrees or it does not; it can reserve its position.

Dr Aiken: We are the only Committee that this has come to. Is that right?

The Committee Clerk: Yes.

Dr Aiken: It has not gone to the Justice Committee or the Health Committee.

Miss Hargey: I would like a bit of clarity. This had not happened when the briefing was given, but the Manchester Arena families raised the issue around MI5's being included. I know that that is in the reserved space, but it has an impact because it has a presence here. Those families have called for it to be included. Is there any update on that area of work?

Dr Aiken: And the National Crime Agency.

Miss Hargey: Yes.

The Chairperson (Mr O'Toole): What are people's views? Do they have strong feelings that we should endeavour to expedite an agreed Committee report or position on the Bill? Many parties will be supportive of the Bill, politically, but that is not quite the same as the Committee providing a more technical piece of legislative advice to the Assembly. I am not sure that that will be doable within the timetable that we have, but I am open to other views.

Dr Aiken: Enough questions have been raised here for us not to come to an opinion. When you make your remarks from the Floor, you can explain the reasons for that.

The Chairperson (Mr O'Toole): Yes. Certainly, no one could infer from this a sense of opposition —

Dr Aiken: It is not an issue [Inaudible.]

The Chairperson (Mr O'Toole): — on my part — I support the Bill — but they may infer some scepticism from the Committee about our ability to get all the information that we need to provide a response to the Assembly. It is more a question of logistics than of policy.

Dr Aiken: You are perfectly right, Chair.

The Chairperson (Mr O'Toole): Are people happy enough that we get as much information as we can and say that the Committee did not arrive at a final position, purely because we did not have enough time?

The Committee Clerk: All the questions raised by the Committee will be asked. When that information becomes available, the Committee can publish it as an addendum to the report, so that there is as much information as possible to enable Members to make a decision in the House, when the motion is debated. We are not entirely clear on the timescale. The fact that it is set at 15 days in the Standing Orders, unfortunately, puts an immense amount of pressure on Committees. That timescale has long been debated and is an issue that the Committee on Procedures will consider.

The agreement of a report and decision to reserve a position does not stop the Committee from continuing to publish any information that it gets, right up to the point at which the motion is debated, so long as Committee members are agreeable to that.

Dr Aiken: What stage is the Bill at in Parliament?

The Committee Clerk: The Bill Committee is about to report, and the Bill will then go to Third Reading. It has not been through the House of Lords yet. There is probably more time.

The Chairperson (Mr O'Toole): We have only 10 days.

The Committee Clerk: That is one of those things. Standing Orders have already given us more time. As per Standing Orders, the Minister would have put down a memorandum within 10 days of the Bill being introduced. That did not happen, nor does it happen. That gives us a little more time to take briefings and so on, but, once the legislative consent memorandum, under Standing Order 42A(4)(a), comes, that kicks off our 15 working days. As I said, that timescale is very much debateable. It is a little like the timescale of 30 working days for a Committee to report on a Bill, if it does not seek an extension. Unfortunately, this timescale is not open to extension. As I said, however, the Committee can continue to publish any information that it gets as an addendum to the report, right up until the motion is debated.

The Chairperson (Mr O'Toole): That is fine. We can reflect comments that we make and discussions that we have, even if we do not have a formal report. Are members content with that approach?