COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER AND DEPUTY FIRST MINISTER

OFFICIAL REPORT
(Hansard)

Commission for Victims and Survivors Bill

23 April 2008

Members present for all or part of the proceedings:
Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)
Ms Martina Anderson
Mrs Dolores Kelly
Mr Francie Molloy
Mr Stephen Moutray
Mr Jim Shannon
Mr Jimmy Spratt
Mr Jim Wells

Witnesses:
Mr Jeffrey Donaldson )
Mr Gerry Kelly ) junior Ministers, the Office of the First Minister and deputy First Minister

The Chairperson of the Committee for the Office of the First Minister and deputy First Minister (Mr Kennedy):
We come now to the second reason for the junior Ministers’ attendance in Committee today — the Commission for Victims and Survivors Bill. At yesterday’s plenary session, junior Minister Donaldson stated that he would speak to the Committee on the issue today. The Committee welcomes this opportunity and invites junior Minister Donaldson to address members on the issues surrounding the Bill. I ask that Committee members make themselves available for questions following the briefing. Furthermore, I advise members that this section of the meeting will be recorded by Hansard, and a report will be published.

The junior Minister (Office of the First Minister and deputy First Minister) (Mr Donaldson):
I will be brief in my opening remarks to allow maximum time for questions. As members will be aware, the Consideration Stage of the Commission for Victims and Survivors Bill was not moved yesterday, and we wish to brief the Committee on the reasons for the delay.

When junior Minister Kelly and I attended the Committee early last month, together with the First Minister and deputy First Minister, we emphasised our desire to move ahead with the legislation; legislation that would put the commission on a sound and durable legislative footing. I can assure the Committee that this remains the case.

We appreciate that members will feel that the delay in moving the Bill is at odds with our request for accelerated passage. However, our paramount concern is to ensure that we give the commission the best possible platform from which to take forward its important work. In doing so, we are giving careful consideration to the tabled amendments and are considering possible Office of the First Minister and deputy First Minister (OFMDFM) amendments to the Bill.

All the issues raised in the amendments are being given careful consideration by Ministers in the Department and, in light of the need to engage in further legislative drafting, we decided to postpone the Bill’s Consideration Stage. The Business Committee has provisionally listed the Consideration Stage of the Bill for Tuesday 6 May 2008, and we will do our utmost to ensure that the legislation is progressed then.

We want to assure the Committee that we are working on the issues of concern as a matter of urgency.

The Chairperson:
Thank you very much, Minister. I draw members’ attention to the tabled papers, which include copies of the Bill and the Marshalled List of amendments. I now open the session to questions. If I may, I will ask the first question.

It is important to say that Committee members are unanimous in their desire to see progress made on these important matters. Although political considerations may affect certain aspects of the process, it is the wish of the OFMFDM Committee to see the earliest maximum progress being made on the issues that are affecting victims.

With the benefit of hindsight, which is always considerable, would it have been better to have allowed the Bill its Committee Stage and to have refused the option of accelerated passage? Would that have avoided some of the problems that have emerged? Junior Minister Donaldson said that the 10 amendments on the Marshalled list are under consideration, as well as the amendments that the Department might suggest. Which, if any, of the amendments that appear on the Marshalled List is OFMDFM prepared to accept? Which amendments are being actively considered, and which amendments will be rejected outright? Is OFMDFM optimistic that progress can be made on Tuesday 6 May?

The junior Minister (Office of the First Minister and deputy First Minister) (Mr G Kelly):
I thank the Committee for its expression of unanimity. It is the wish of everyone in the Assembly to make progress as soon as possible so that we can make a difference in the lives of victims and survivors. It is worth saying that the idea of a victims’ commission was first mooted 10 years ago, and many Ministers and others have considered it. We are now trying to grasp that idea and make progress despite the problems that exist.

We want to move ahead with the Bill as soon as possible, but our primary aim is to ensure that the commission has a sound and durable footing, and we will continue to work towards that objective. We asked for accelerated passage with that aim in mind, and that remains our motivation in considering amendments to the Bill. We regret the delay in the passage of the Bill. However, as the Chairperson pointed out, amendments to the Bill have been tabled, and those require careful, rather than hurried, consideration. To answer the question, we are considering those amendments.

We are conscious of the time that has elapsed, but we are sure that all members will agree that it is important not to lose sight of the needs of victims and survivors. I can assure the Committee that the needs of victims and survivors are not being pushed to one side. The Department’s victims’ unit has been working closely with many victims’ groups. We are optimistic that we can sort out this matter, which is why the Business Committee has settled on a provisional date of 6 May for the Consideration Stage of the Bill. We are also investigating the possibility of OFMDFM amendments. All those efforts are being made in order to solve the problem, and many other people are involved in the process, but OFMDFM’s aim is to sort out the difficulties as soon as possible.

Mr Donaldson:
The tabled amendments fit into three broad categories. The first category deals with the possible appointment — from among the commissioners designate — of a chief commissioner. The second relates to the procedures of the commission, including decision making. The third amendment relates to appointments to, and staffing of, the commission. All these areas are under active consideration.

Although we would have preferred to move ahead more quickly — that is why we adopted the accelerated passage route — we felt that the amendments needed to have careful, and not hurried, consideration. It must be recognised that there are sensitive issues here. The real challenge is trying to find a way to deal with those sensitive issues and to take account of viewpoints across the political spectrum. The amendments could simply be ignored, and the Department could press ahead with the Bill, but we do not want to do that. We want detailed consideration of amendments that we hope will be capable of achieving a broad consensus.

We do not want this issue to turn into some kind of party-political football. The issue of victims and survivors is far too important for that. We do not want to reduce the debate to that level. The Department feels that it is better to take time and try and get a consensus if possible. That would send out a positive signal to the people who want this to go ahead the most — the victims and survivors. We recognise that there is an issue with accelerated passage, and our motivation remains to get this Bill through as quickly as possible on a sound legislative footing.

The Chairperson:
On the 10 amendments that have been tabled, is the Department rejecting some or accepting some at this stage? Can any light be shed on the status of each or all of the 10 marshalled amendments?

Mr Donaldson:
They are all under consideration. We have not accepted or rejected anything. The Department is examining the issues on which those amendments touch to see how to present a considered view on them. We have agreed that the Bill can be amended. In their statement yesterday, the First Minister and deputy First Minister made it clear that OFMDFM accepts the principle of amendment on some of these areas. The Department is trying to find a way to reflect the desire for change in the Bill, in amendments that are capable of achieving a consensus.

The Chairperson:
It has been suggested that the Department might table some amendments. Under what territory would those amendments fall?

Mr Donaldson:
They would fall in the three areas that we have discussed. At this stage, as discussions are ongoing, I cannot be clear about whether amendments will be proposed in all three areas. We are considering all the issues raised by the amendments. Although we might not address all the issues, the Department might suggest amendments on some issues and not on others.

Mrs Long:
I wish to draw attention to a couple of issues arising from what we have heard today. There seems to be a lack of recognition, at ministerial level, of the role that this Committee could play in addressing these issues. All the Alliance Party’s suggested amendments focus on the issues highlighted during the first meeting at which the Bill was discussed. These issues include how the commission would function and how its structures would be arranged.

An opportunity has been missed — the Bill could have been discussed by the Committee in conjunction with the OFMDFM Ministers and officials to resolve what are not unreasonable suggested amendments. Engagement with the Committee does not have to be more laborious than the approach that has been taken. It does not have to be a lengthier process than that which has taken place so far. Frankly, it would have been less embarrassing to the Assembly to have had a Committee Stage, before moving through each of the other Stages quickly and efficiently, rather than embarking on the process that we are engaged in at the moment.

The Chairperson:
Can we get to your question?

Mrs Long:
We can. An issue has been made about careful, rather than hurried, consideration of amendments and focusing on getting the Bill right. I agree that that is the most important factor, and there are a couple of questions that I wish to ask.

First, setting aside the debate about a commission versus a commissioner, given that a majority in the Assembly voted for a commission, could the discussion about potential OFMDFM amendments not have taken place during the Bill’s Further Consideration Stage? The issues could have been be aired at Consideration Stage, and the Department could have responded at Further Consideration Stage, allowing the Bill a smoother passage through the House, which might have created greater public confidence.

Secondly, what are the legal consequences? I accept that there is goodwill here to resolve the issue. However, what will the legal consequences be if the next Stage of the Bill cannot proceed? Junior Minister Donaldson said that OFMDFM could simply have pressed ahead with the process. Surely OFMDFM could not simply press ahead because it could not guarantee a majority in the Chamber to overturn the amendments and allow the Bill to go through unamended?

Mr Donaldson:
I thank Mrs Long for her questions. With regard to pressing ahead, I am simply saying that the two parties represented in OFMDFM might have decided to press ahead with an unamended Bill, and THEY would have had sufficient votes to take it through the Assembly. Rather than taking that route, we decided to consider in detail the tabled amendments, because we recognise that this is a sensitive issue and we aim to build as broad a consensus across the Chamber as possible.

I take Mrs Long’s point that we could debate all day about whether it would have been quicker to allow the Bill accelerated passage, or otherwise, and whether it would have been better to have a Committee Stage, and so on. I will not sit here and say that I am right and all of you are wrong. However, we must ensure that the Bill has a sound legislative footing for the longer term. That is why we took the view that rather than press ahead to Consideration Stage — perhaps without as broad a consensus as we would like — it was better to hold back and try to get consensus before moving to the Stage for amending the Bill. For that reason, we decided that, on balance, it was better to try to work out the solution and then move to Consideration Stage and any proposed amendments.

Yes, there is delay, and we regret that. However, we hope that when people will look back in a few months time that the delay will not be the issue — the issue will be whether the Assembly got it right and whether the commission is delivering for victims and survivors. Therefore, this debate will be momentary, and it will pass. However, the commission, the way in which it functions and whether it is on a sound footing will be long-term issues, and that is why it is better to get the Bill right.

Mr G Kelly:
Everyone here knows of victims and survivors — we cannot go through this process without doing so. However, Sinn Féin has had a series of meetings recently, and members are having ongoing talks with victims and survivors. Actually, we have held two types of meeting: with victims and survivors, and public meetings. Mike Nesbitt spoke about this matter this morning, as did the other commissioners designate. Everybody wants to get this Bill right. It looks as though the process has been drawn out, and we have apologised for that, but the fact is that the issue has been around for 10 years. We have a grip on it now; we are trying to move it forward; and we will come to a conclusion.

As for the Consideration and Further Consideration Stages, we must get the Bill right at the Consideration Stage. It cannot necessarily be corrected at the Further Consideration Stage; we must get it right now.

Mrs Long:
I asked a question about legal consequences.

Mr Donaldson:
With regard to the commission’s standing, there is no commission at present. The commissioners have been appointed are commissioners designate; legally, they are not yet commissioners. In the event of the Bill’s not proceeding, we would have to consider how to take the matter forward and deal with the issue of the four commissioners designate.

Quite frankly, at this stage, we are not contemplating that, because we want to ensure the Bill’s success rather than contemplate its failure. I take Mrs Long’s point, however, and that is something that we will bear in mind.

Mrs D Kelly:
There is no getting away from the fact that the Bill’s progress has been a real hames of a job.

During the closed session, I pointed out the policy framework within which the commission should operate and there was recognition that our concerns would be taken on board, but quite plainly they were not.

Will junior Minister Kelly clarify whether he was referring to OFMDFM or Sinn Féin when he said that, “as a party”, they had been talking to victims’ and survivors’ groups?

Mr G Kelly:
I meant Sinn Féin. I am here as a junior Minister, but I was demonstrating that over the past two weeks, my party — like everyone else — has had particularly intense discussions with victims right across the North.

I also understand that the groups generally comprised nationalists and republicans, as opposed to victims overall. However, it is important to explain that we are involved in dialogue, and the feedback that we are getting is that victims and survivors support a commission and want the matter sorted out as quickly as possible. They are looking for leadership, not just from Ministers, but from all Members of the Assembly.

Mrs D Kelly:
We would like the opportunity to show leadership through inclusivity and building a broad consensus.

In press conferences and news releases, particularly involving Sinn Féin, it was very much clear that if OFMDFM was not ready to sign off on the amendments, it was very near to being ready. May we now be told what amendments to the legislation have been accepted by the First Minister and the deputy First Minister?

Mr Donaldson:
At this stage, none of them has been accepted or rejected. We have not yet signed off on any departmental amendments; they are being given detailed consideration. That is why we wanted a little more time to be sure that what we are bringing forward is the best that we can do. At this stage, as I indicated earlier, we have neither ruled out, nor accepted, any of the amendments.

Ms Anderson:
I accept fully what the junior Ministers have said about regretting the delay, wanting to make progress and wanting to get the Bill right. Everyone falls into those three categories on the issue of the victims’ commission. How will the contested issue of defining a victim be resolved?

Mr Donaldson:
During the First Stage of the Bill in the Assembly, the First Minister and the deputy First Minister said that they were aware of the concerns and issues. As a first step, they were minded to seek the views of the proposed victims’ and survivors’ forum about the definition of a victim. We can also adopt other approaches.

Taking off my Ministerial hat for a moment, my party is concerned about the current definition — that concern is shared by others, and we need to find a way of addressing the issue.

We have received legal advice that defining a victim cannot be addressed as part of the current Bill because the issue falls outside the Bill’s narrow scope of establishing a commission. The Speaker’s Office received similar legal advice.

Amendments on the definition of a victim tabled by the Democratic Unionist Party and the Ulster Unionist Party were ruled out because the Bill could not become a vehicle for making such changes. Therefore, as a first step, the Department has indicated that it wants to consult on the issue.

Ms Anderson:
Is the accelerated passage process not undermined by the delays?

Mr G Kelly:
That issue was probably dealt with earlier. Our intention from the outset was, and remains, to provide survivors and victims with a process for which they have waited a long time, 10 years.

Although OFMDFM has been criticised, it is dealing with the progression of the Bill as a matter of urgency. A series of amendments — as listed earlier by the Chairperson — has been tabled. We want to accommodate consideration of those amendments, and none have been rejected or accepted yet because we are keen to maximise the Bill’s benefit to victims and survivors — we want to get this right. In that context, the time spent on it is not excessive.

Mr Molloy:
A previous question suggested that amendments were rejected because they affected the nature of the Bill. Surely most of the amendments that deal with the internal workings of the commission should be rejected on the basis that they do not focus on the short title and very limited scope of the Bill. As the Chairperson indicated, with hindsight, it might be better to approach the issue differently.

Perhaps we could withdraw the amendments and progress with the Bill as proposed. If people genuinely want to progress collectively, surely it would be beneficial to remove the friction and divisiveness that these amendments have caused.

Mrs Long:
We should, perhaps, hold a training session for members on the formation of legislation.

The Chairperson:
Order. The amendments tabled on the Marshalled List — 10 in total — have been accepted by the Speaker and, therefore, must be considered. They are deemed competent. It is reasonable to draw that to your attention.

Mr Donaldson:
That is a fair comment.

The Chairperson:
Do you want to address Mr Molloy’s other comments?

Mr Donaldson:
Realistically, withdrawing amendments to achieve consensus will not happen. Therefore, the Department wants to engage with those amendments, consider them carefully and see how we can reflect those issues in the Bill. We want to achieve as broad a consensus as possible. Dealing with the legacy of three decades of violence is difficult — it is one of the main challenges facing all of us. The community are looking to us to provide the leadership. This Bill, perhaps, presents a test for the Assembly.

I understand the motivation behind Mr Molloy’s question. However, we must recognise that there is not a single monolithic view in the Assembly about how to deal with this issue, and the Department must address sensitivities and introduce proposals to alleviate concerns about the Bill. I hope, after that, the Bill will be approved — that is what everybody wants.

We welcome the Chairperson’s comment that it is the unanimous desire of the Committee to see the Bill passed and the commission established as quickly as possible. OFMDFM shares that view.

The Chairperson:
Given the extension to the Consideration Stage, I presume it is still possible for further amendments to be tabled or existing amendments to be amended.

Mr Donaldson:
Yes, it is. At Further Consideration Stage it is possible for parties and MLAs to table amendments even after the Bill has been amended.

Mr Spratt:
One of the junior Ministers indicated that this process has been ongoing for 10 years, and I am delighted that we now want to get it right. Those who are shouting loudest now had the opportunity to do something — but did nothing.

There are issues concerning money. Some victims’ groups are experiencing financial difficulties and require continuous funding. During this intervening period, will the funding and the process continue? Perhaps the junior Ministers could briefly explain how that process works at the moment.

Mr G Kelly:
We intend that the funding for the Northern Ireland Memorial Fund will continue for a further year, but we will want to work with the fund to identify the priorities for funding — so that will continue. OFMDFM will also work closely with the Northern Ireland Memorial Fund, the Community Relations Council, the new commission, of course, and the victims’ and survivors’ forum to manage the transition to new funding arrangements, which will be set out in the new strategy for victims and survivors. In liaison with the commission, OFMDFM will take forward work on certain areas of need that have already been identified: enhanced support for victims’ and survivors’ groups to provide befriending services for victims and survivors; enhanced provision for respite care, which is very important; and support for general practitioners in dealing with trauma. That is an ongoing engagement.

Mr Spratt makes a pertinent point; we cannot allow a situation to arise whereby the work with victims stops while this matter gets sorted out. I am sure that the member has been approached by constituents who are concerned about funding. I certainly have been approached by a number of groups in my constituency about their fears that funding will be stopped. We are very determined to make sure that that does not happen.

A total of £36 million has been allocated for the next three years for work with victims and survivors, and we will shortly bring forward a strategy for victims and survivors that will set out our plans for future support for work with victims. We are keen to ensure that that work does not fall while we are trying to sort out this matter.

The Chairperson:
What is the current legal status of the four commissioners designate? What are they legally allowed to do? What are they not allowed to do until the legislation is enacted?

Mr Donaldson:
The only restriction on their work at the moment is in respect of data protection — as individual commissioners designate, they do not yet legally constitute a commission. That restriction limits their capacity to take on board information about individual victims. That issue is currently being addressed. The easiest way to resolve it is to get the commission established on a legal footing. However, if we hit a problem and need to look at that matter again, we can certainly do so.

At the moment, the commissioners designate are developing a work programme to be agreed with the Department. We envisage that the work programme will: examine all issues of law and practice affecting victims and survivors; keep under review the adequacy and effectiveness of services; and provide advice on associated issues. The commissioners designate are currently developing their draft work programme and the necessary provisions in the Bill will ensure a strong footing from which to move forward.

The commissioners designate have daily contact with victims’ groups and individual victims. Three of the commissioners are working pretty much full time now, and the fourth is due to come on board fairly soon, following completion of his period of notice with his current employer. Therefore they are carrying out what would have been the preliminary work required of the commission in any event — setting out its work programme and so on. That work will be enhanced when the commission is placed on a legal footing.

We are also working on the draft strategy for victims and survivors, which we hope to publish for consultation soon. That will set out our vision for the victims’ sector for the next few years. At the moment, apart from the data protection issue, there is no hindrance to the commissioners designate getting on with their work.

The Chairperson:
Will the Committee be consulted fully on the strategy?

Mr Donaldson:
Absolutely, yes.

The Chairperson:
Are there any final points of clarification? I am not going to go round the houses again on this matter.

Mrs D Kelly:
I welcome Mr Donaldson’s comments about the need to deal with the past in order to move forward and deal with the future. We must deal with the past.

The Chairperson:
That completes the session on the Commission for Victims and Survivors Bill. I thank the Ministers and the officials for their attendance.