Special Advisers Bill Passes Second Stage
Commenting after his Private Members Bill passed its second stage in the Assembly yesterday TUV leader Jim Allister said:
“I am delighted that my Special Advisers Bill was passed at second stage by a handsome margin of 62 votes to 32 and would like to thank all MLAs – Unionist and Nationalists – who supported the Bill’s passage.”
Mr Allister’s speech introducing the Bill yesterday is reproduced below:
I begin by thanking the staff of the Bill Office and Legal Services for the very extensive help that they have been throughout this process. Any Member who has sponsored a private Member's Bill will know that it is a complex procedure, through which many hoops have to be passed. I am very grateful for the professional guidance of the staff and the extremely professional manner in which they conducted themselves and assisted me at all times. Whatever happens to the Bill, I come away from this process with a very enhanced view of the professional staff in the Bill Office and in Legal Services. I think that it is right and proper that I put that on the record in the House.
Everyone probably knows that the genesis of the Bill is the audacious and calculated appointment by the Culture Minister of Mary McArdle as her special adviser, and the hurt that that caused, in particular to the victim family most affected by that, the Travers family. That is what crystallised my thought processes and determination to seek to do something about that situation. The Bill flows from that determination.
I pay tribute to the Travers family. I take that back to Tom Travers, who served this country as a resident magistrate for many years. As a young barrister, I spent many days in Tommy Travers's court representing those who had got themselves into difficulty. Whereas Mr Travers was not a great one for easy acquittals, if I can put it like that, when it came to dealing with individuals, he was a most compassionate man. He was a man who would give anyone a second chance, and if there was a positive way forward for someone, he would seek it out. His humanity and compassion always struck me. In April 1984, of course, a most grotesque and murderous attack was made not just on him but on all his family members who were with him at St Brigid's chapel on Derryvolgie Avenue.
Mary Travers was 22 years of age, full of life and enthusiasm, and embarking on a teaching career. Everything I have heard about her indicates that she carried with her those same characteristics of compassion and humanity and great gentleness. She was brutally shot in the back. Her father was shot six times and grievously injured, and the intention was that her mother was to be shot also, because, as she tended to Mary, the gun was pointed at her head and the trigger was pulled but, mercifully, the gun jammed. That was one of the most touching episodes in all of the Troubles. I think it touched folk of all religions and persuasions that a young girl going about her Sunday morning religious activities could be, with the rest of her family, picked out for murder in such horrendous circumstances.
Mr A Maginness: The Member rightly raises the fact that Mr Travers was a resident magistrate, and that murder was attempted on him. One can associate that with the attempted murder of County Court Judge Garrett McGrath and the murder of County Court Judge Billy Doyle. All three of those outstanding members of the legal profession were Catholics. Would one not deduce from that that the IRA specifically identified those people in a campaign to drive Catholics out of the judiciary?
Mr Allister: The Member is absolutely right. I think it is indisputable that those who dared to serve and to dispense justice in Northern Ireland were particular objects of the murder campaign of the IRA. They were brave men who, despite the risks, did not take the easy option of simply carrying on in private practice, but burdened themselves with the duty of serving on the bench. Then and now, this community owes a debt of gratitude to them all.
I also commend the most courageous stand that has been taken by Mary Travers's surviving sister, Ann Travers. Tommy Travers was a man who, as I have described, was gentle and compassionate, but he was also most stoic and determined. That was clear from the manner in which he returned to the bench, despite his injuries, and gave many more years of service. It seems to me that his daughter Ann inherited those characteristics of determination. The manner in which she has spoken out courageously in difficult circumstances, and the manner in which she has stuck to that course, demonstrates how stoic an individual she is. This society owes her a tribute too for her strength and courage in facing up to and facing down the circumstances that arose from the appointment of Mary McArdle. Today, as it is now a matter of public record and knowledge, I hope that most in this House would join in wishing Ann Travers a full recovery from the health battle that she is fighting. If ever there was a courageous woman, it is Ann Travers.
In part inspired by and driven on by what I saw in that family, I bring the Bill to the House, so that it has the opportunity of saying that never again will someone guilty of such a vile, vicious murder be elevated to one of the top administrative posts in this land. The Bill will also ensure that, in accordance with the standard of probity that we expect in public life, that insult will not again be visited upon either a victim's family or the law-abiding community of this land.
I will move on to some of the details of the Bill. There is nothing novel about imposing the absence of a criminal conviction as a qualification for a job. I could give many examples. Estate agents cannot, by law, be estate agents if they hold certain convictions. Solicitors' clerks cannot be solicitors' clerks if they hold certain convictions, so why not special advisers in government? Special advisers are in a very special, very privileged place. They are senior civil servants in status and in reward. They have access to all government papers and are pivotal in the making of, and in coming to, government decisions. Some might say that, de facto, they are the Government at times in the negotiations that they conduct, particularly in an arrangement such as that which prevails here. Yet, they are appointed in a process of political patronage in which they are exempted from the merit principle and exempted, as things stand, from security vetting, which gave rise, just over a year ago, to the fact that the Culture Minister could appoint her former commander from the prison as her special adviser. That is unconscionable. It is wrong. Steps must be taken to ensure that it can never happen again.
My Bill addresses four issues that affect special advisers. Number one is who cannot be appointed and why. Number two creates accountability to the Assembly by introducing an annual report on special advisers. Number three takes codes of conduct and appointment that exist as guidance and puts them on a statutory basis. Fourthly, it removes an anomaly that, I am sorry to say, affects you, Mr Speaker, whereby the Speaker, over and above the help that he has from the Commission-appointed adviser, has the capacity to himself appoint a political special adviser, a step that has not been exercised by our present Speaker. Thus, it has become something of an anomaly.
Clause 1 defines a special adviser in pretty regular and uncontroversial terms as someone appointed by the Minister. They continue in office as long as the Minister holds office and are the Minister's choice for that position. Clause 2 introduces, as a qualification for holding that position, the absence of serious criminal conviction. It is not just terrorist conviction. It is a conviction for any serious crime, be it rape, murder, or robbery — any offence collecting a sentence of five years or more.
The Bill also seeks to provide that anyone in office as a special adviser who collects such a conviction loses their position and anyone already in position who has such a conviction loses their position, with the appropriate compensation, as provided for in schedule 1. I will come back to that.
Some say that I am seeking to introduce retrospective legislation. Let me say straight away that the Bill is prospective, not retrospective. It applies from the day it is made. If it was retrospective, it would take effect before it was made and would be deemed to have always had effect. The Bill will not change the legal nature of a past event. It will simply make a past event a condition of current eligibility for a position.
There are many authorities that I could take the House to, but I will mention only one, Bennion, a very famous writer on these matters, who said:
"Changes relating to the past are objectionable only if they alter the legal nature of an act or omission in itself. A change in the law is not objectionable merely because it takes note that a past event has happened, and bases new legal consequences upon it."
The Bill does not state that the appointment of a special adviser with a serious criminal conviction was void from the outset. It does not seek to claw back salary paid to such an adviser. It simply states that, from this point in time onwards, that person is ineligible to be a special adviser.
I mentioned the position of solicitors' clerks. That issue was taken to the Court of Appeal, and a very famous judgement was issued in that regard, holding that that Act was not retrospective. The court stated that:
"It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order-was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past."
That leads me on to deal with a point that has been touched on by the Attorney General, who, in evidence to the Committee for Finance and Personnel just last week, tentatively suggested that there could be a potential infringement of article 7 of the European Convention on Human Rights. Let me read article 7.1 of the convention. I think that, as the House follows it, it will see how strained the suggestion is that the Bill could breach article 7. It states:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
From first principles, what does that mean? I am clear that it prohibits retrospective criminal penalties. You cannot be found guilty of something that was not an offence when you committed it, nor can you be given a penalty that is greater than that which pertained when you committed the offence.
The Attorney General suggests that it prohibits the imposition of a conviction as a qualification for a post, because that has the effect of increasing the penalty. I utterly disagree with that. I even dare to suggest that it seems he disagrees with himself. If it were right that you could not impose the absence of a conviction as a qualification for a post after that conviction and sentence had been imposed, then the Justice Bill that this House passed last year would have been beyond the competence of this House.
Paragraph 9(3) of schedule 1 to the Justice Act (Northern Ireland) 2011 introduces something new. It states:
"A person is disqualified for being an independent member of a PCSP if —
(a) that person has been convicted in Northern Ireland or elsewhere of any offence and a sentence of imprisonment or detention has been passed on that person".
What is that doing other than saying that you can retrospectively, in that sense, impose a disqualification on someone because of an earlier conviction when, at that earlier time, that disqualification was not in vogue? That is exactly and precisely what clause 2 of my Bill seeks to do, where it says that a conviction disqualifies you from holding a certain post.
As I understand it, the Attorney General is not quibbling over the possibility of someone being displaced because the compensation afforded them meets their convention rights in that regard, but he is suggesting that having any regard to an historic or pre-existing conviction offends article 7. It patently did not in the case of the Justice Bill, so why should it be so with this Bill?
Likewise, Westminster recently passed the Police Reform and Social Responsibility Act 2011, which deals with the appointment of police commissioners. It also provides something new, in that someone with a pre-existing conviction is disqualified from holding the post of a police commissioner. That was not the position when that aspirant might have committed the offence; it is the position now, and as that Act runs from now, so to speak, it now imposes that disqualification.
Again, there is no suggestion that that provision was not article 7 compliant or was not human rights compliant, not to mention the extensive legislation that prohibits people with certain earlier convictions from working with children — again, something that was introduced retrospectively, if you like.
I also note that having this debate — the Bill having been introduced and having reached Second Stage — is confirmation that the authorities of this House regard the Bill as competent. It could not be held to be competent if it were not thought to be European Convention compliant. With the legal advice that he gets, the Speaker has decreed the Bill to be competent. So, not only have I the meagre support of my own opinion, the help of the draftsman and the legal advisers, but I have the clear indication that the Bill is competent arising from the fact that it is before us at all.
I will move to some of the other clauses. Clause 3 simply defines a serious criminal conviction as anything involving a five-year sentence or more. Let me say that there is nothing magical about five years. Five years is quite often regarded in law as a significant benchmark between very serious crimes and not so serious crimes. However, there is nothing magical about it. I am not wedded to it. If the House in its wisdom thinks that a different tariff is the appropriate benchmark, so be it.
I move to clause 4. In a couple of places in the Bill, I seek to borrow from provisions in Westminster legislation that touch on special advisers. The legislation that does that the most and is most pertinent to this Bill is the Constitutional Reform and Governance Act 2010. It provides that an annual report shall be laid in respect of the number and cost of special advisers. It does that for England and Wales and, interestingly, for Scotland. It includes the devolved institutions in Wales and Scotland, but the absentee from the list is Northern Ireland. I am saying that we could do a lot worse than follow that example to bring ourselves up to speed with what is provided elsewhere.
In the Bill, apart from its main thrust, I am taking opportunities to tidy up the law here and there to what I suggest is the betterment of the situation. One of those opportunities is to bring in that reporting restriction, which is not onerous. There has been controversy and questions in the media and elsewhere — I might have generated some of those myself — about the cost of special advisers to our Exchequer. We probably all know that there are currently 19 special advisers. This report would simply entail the Finance Minister lodging an annual report about the number and cost of special advisers. If he wants to give more detail, so much the better, but that would be the de minimis requirement of him. I do not think that anyone should have anything to hide in that regard. It would be in the very prudent hands, no doubt, of the Finance Minister.
I move to clause 5. Again, this is modelled on section 8 of the Constitutional Reform and Governance Act 2010, which provides the basic tenets of a code of conduct. The Minister of Finance has such a code of conduct, and I am not criticising it or saying that it is deficient. I am simply saying that it should be put on a statutory footing to give it the extra strength, the lack of wriggle room and the lack of dissent that that affords. Let us put it on a statutory basis and get it as is done elsewhere. Clause 5(2) sets out some of the minimum things that need to be in a code of conduct. It is not that there cannot be more. There is more in the present code, and there should be more in the present code. Clause 5(2) simply states that there are minimum things that should be in it.
I come to clause 6, which again is based on the 2010 Act. It suggests that the code of appointment of special advisers should be put on a statutory footing. Why? I am not saying that the present code for the appointment of special advisers — whichever is the present code — or the guidance is wrong or glaringly deficient. I am simply saying: let us put that on a statutory footing.
So, let us insert the minimum requirement into statute, as clause 6(2) does. Clause 6(2) states that, "without prejudice" to whatever else is in the code, it:
"must provide that the appointment of special advisers must be subject to the same vetting procedures"
as the appointment of civil servants. What on earth could be wrong with that? You could have people exercising, shoulder to shoulder with permanent secretaries, the functions of a special adviser with equivalent status and the same ability to call for and examine papers and all of that; yet, one of them has been vetted before getting his or her job and the other has not. The House should say, "We expect no less". If it is right for civil servants to be vetted, it is right for civil servants called "special advisers" to be vetted. Never forget that they are civil servants. Clause 6 nails that down, removes the wriggle room and means that any change would have to pass through the Assembly.
I say that particularly because of the controversy that has attended the Minister's gallant attempts to improve the code on appointments. Last September, he issued new guidance on the code of appointment that built into the code vetting of applicants for the role of special adviser. That code has not been put into effect by all parties in this House. Sinn Féin Ministers, who have since appointed special advisers, have refused to operate the new code on appointments and refused to submit their appointees to vetting. As a consequence of that impasse, their special advisers are not being paid from the public purse. I know that because of an answer, hot off the press, that I received today from the Minister of Finance and Personnel. I asked him how many special advisers had been appointed by Sinn Féin Ministers in full compliance with his guidance on the appointment of special advisers and were being paid as civil servants directly from public funds since he introduced that guidance in September 2011. His answer was "None".
So, we have guidance that is fine in every regard except that it is not being adhered to. I say that the answer to that is clause 6, which will put it on a statutory footing and will put it in statute the fact that vetting is required. Therefore, it will become inescapable. If Ministers then want special advisers appointed to the Civil Service, they will have to comply with what the law says, as the ministerial code requires them to. So, I say that that is a sensible provision to make.
I now come to the fourth purpose of the Bill, which is to remove from you, Mr Speaker, the right to appoint a special adviser. It is now largely an anomaly. When the 1999 order was passed, enabling Ministers to appoint special advisers, included in it was the same right for the Presiding Officer to appoint a political special adviser by political patronage. However, we have moved way beyond that. In recent years, the Assembly Commission has appointed, by due process of recruitment, a specific adviser to the Speaker. That person's post is not dependent on a particular person holding the Speakership; they are there to advise the Speaker, whoever he or she might be. That is the way that it should be. It is, therefore, now anomalous and unnecessary for the Speaker to have the additional and unexercised power to appoint, by political patronage, a special adviser. Not only is that now effectively defunct, but, secondly, it does not sit comfortably with the independence of the Speaker to have him able to appoint by political patronage a political special adviser. For those two reasons, now is the opportunity, with this Bill, to remove that from the 1999 order and regularise that situation.
In introducing my Bill, I highlight those points. The Mary McArdle appointment highlighted a significant gap in our law, and, as legislators, we either face up to it or we ignore it. Let each Member decide whether it is right that someone with serious convictions, which can include murder, can hold a position not only to which they are not appointed on merit but to which they are appointed in spite of the pain and anguish that that causes to their victims. They are not just appointed to any post but to one of the most seminal posts in public administration. Some can be paid up to £90,000 a year out of public funds for doing the job. It is for each Member to weigh up whether they are comfortable with an arrangement that allows that to happen or whether they are sufficiently exercised to want to do something about it. The Bill, in terms that I suggest are modest, proportionate and necessary, affords the House the opportunity to do something about it. I trust that that opportunity will be taken.