COMMITTEE ON STANDARDS AND PRIVILEGES
OFFICIAL REPORT
(Hansard)
Consultation on Proposed Amendments to ‘The Code of Conduct’ and ‘The Guide to the Rules Relating to the Conduct of Members’
4 June 2008
Members present for all or part of the proceedings:
Mrs Carmel Hanna (Chairperson)
Mr Willie Clarke (Deputy Chairperson)
Mr Allan Bresland
Mr Francie Brolly
Rev Dr Robert Coulter
Mr Alex Easton
Mr David Hilditch
Mr Paul Maskey
Mr Alastair Ross
Witnesses:
Mr Bob Collins )
Ms Liz Law ) Equality Commission for Northern Ireland
Ms Antoinette McKeown )
Mr Tom Frawley ) Interim Commissioner for Standards
Mr John MacQuarrie ) Northern Ireland Ombudsman’s Office
Dr Henrietta Campbell )
Mr Michael Gallagher ) Electoral Commission for Northern Ireland
Mr Seamus Magee )
The Chairperson (Mrs Hanna):
Our witnesses this morning represent the Equality Commission for Northern Ireland: Bob Collins, the chief commissioner, Antoinette McKeown, the head of policy and development, and Liz Law. Good morning; you are all very welcome. Do you want to start by making an opening statement or a few remarks?
Mr Bob Collins (Equality Commission for Northern Ireland):
It may be appropriate to make a few brief remarks by way of introduction. I thank the Chair and members of the Committee for the opportunity to be here in order to make some observations and to engage in discussion on the important code of conduct.
From our perspective — and this is the Equality Commission’s position on the entire range of responses to equality considerations — leadership is a key dimension in those public authorities that are designated under the legislation and for all who hold public positions of any significance in the private or public sectors. The Assembly has, at its best, the capacity to be a model for the entire community by working productively and effectively, and developing good relationships.
The Assembly will always, whether it wishes to or not and for good or otherwise, provide leadership or will be perceived as a role model. The leadership role applies not only in the Chamber or Committees but extends to the public lives of individual Members. It is, therefore, desirable that the principles that the Committee has embodied in the code of conduct are reflected in every aspect of a Member’s role.
The code of conduct states that the principles should apply to “Assembly duties”, but Members should adhere to them in other political activity, business engagements and professional involvements, because Members have a role as legislators. Their legislative role is crucial to some of the Equality Commission’s engagements, because the legislation that the Assembly will enact has a real impact on public authorities, specifically on the Departments that will enforce it. Departments are designated public authorities with statutory duties on equality of opportunity and good relations, and there is, therefore, a direct linkage. Assembly Members also have a role as public persons, whose attitudes, positions, policies and utterances can be, and are, powerfully influential.
Individual Members also have a role as employers, and that should not be exempt from the overall deliberations. It is understandable that political opinion will inevitably be a consideration — and properly so — but elected representatives and political parties are not generally exempt from the law on employment contained in the Fair Employment and Treatment (Northern Ireland) Order 1998. Therefore, they have an opportunity to demonstrate openness and inclusiveness on all the grounds that are recognised by the legislation: age, disability, gender, religious belief, sexual orientation and marital status.
Chair, before I hand back to you, I have, if I may, two final points to make. I find the distinction between a Member as a Member of the Assembly and as a member of a political party, or of none, slightly problematical, because it is somewhat difficult to comprehend. It raises questions about its implications, which have real relevance in the context of the inclusion of equality and good relations in the principles of the code of conduct. As I should have said at the outset, the Equality Commission welcomes the code of conduct that is now under discussion, and which the Assembly proposes to adopt, because it is, in virtually every respect, a very good document.
My final point is that equality of opportunity and good relations are positive and dynamic concepts. They are not passive notions. It is not simply the avoidance of discriminatory practice. The obligation that is placed on public authorities — I know that the Assembly is not designated as such, nor are individual Members; however, the Assembly Commission is — to promote equality of opportunity and good relations is a very active responsibility. It is not completely or adequately embraced or captured by the provision in the code of conduct as it stands at the moment.
We are happy for this opportunity to make a presentation to the Committee. We welcome the fact that the code of conduct is being reviewed, that there is a process of engagement with a range of people and that there will be consultation. We specifically welcome the fact that the Committee has decided to move beyond the Nolan principles to encompass a range of other categories and considerations in setting out the fundamental principles of conduct at the beginning of the code.
The Chairperson:
Thank you very much, Bob. Before we move on, I know that the Equality Commission is working with the Department of the Environment on a code of conduct for local government. Perhaps you could say a couple of words about that, and whether that has implications for the Assembly’s code of conduct.
Mr Collins:
The Assembly’s code will certainly have implications for the local government code. Antoinette may want to say something about that.
Ms Antoinette McKeown (Equality Commission for Northern Ireland):
The Equality Commission has been working with our colleagues in the Department of the Environment’s review of public administration implementation team. The issues that our chief commissioner has raised about the Assembly’s code of conduct will largely be similar for that code, but at a local level. Last year, the Equality Commission published a document on embedding equality and good relations at local government level. We found that, by and large, political and public leadership was critical in ensuring the confidence in, and accountability of, local politicians. Communication with the local electorate was also critical, particularly as we move to new institutions as a result of the review of public administration.
We also want public accountability, and information to the public on issues of integrity and public accountability, to be considered. We see collaboration through community planning partnerships as a real opportunity for politicians to demonstrate leadership qualities and engage with the local electorate. The issue of inclusion is also relevant, and that brings us back to the principles of equality, good relations and the participation of all people in community life.
Those are the types of principles that we want to see embodied in a code of conduct at local government level. The commission has published a statement on that, and we are happy to make it available to the Committee Clerk.
The Chairperson:
Perhaps we will come back to that.
Rev Dr Robert Coulter:
Thank you for coming today; your contribution will be useful to the Committee. You have already said that you are not terribly happy about an element of the code. In view of the vision stated by the Assembly Commission, are there any recommendations that you can make or any thoughts that you could give us on any changes, including additions or omissions, to the section of the code that deals with the principles of conduct?
Mr Collins:
In general, the section on principles of conduct is good. We welcome the fact that it extends beyond the strict limits of the Nolan principles and embraces the additional concepts that have been included. There are, perhaps, two or three considerations that may be worth mentioning. The first is that the recital of the basic principle of equality of opportunity or good relations may be a little less ambitious than could be hazarded in this type of document; I will come back to that point.
The second point is that the wording of the section on equality seems to identify treating people with respect as the encapsulation of the full potential of equality of opportunity and non-discrimination. I think that that is less than adequate as a full expression of what equality of opportunity involves.
The third consideration is not so much about what is, or should be, included in the set of principles of conduct; rather, it is the extent to which it is possible to have linkage between the principles, on the one hand, and the mechanisms for giving effect to the code, on the other. I recognise that not every principle can be particularised as “do a, b and c and avoid x, y and z”. However, there is no carry-over from equality and good relations into particular kinds of behaviour.
That links to the point that I made about the distinction between Members of the Assembly and members of a political party, or of none, or persons engaging in political discourse. It touches also on the admissibility of complaints, which are limited to complaints made in regard to “Assembly duties”. There may be circumstances in which the Committee or the Assembly might find that a Member or Members were engaging in public utterances, writing publicly or otherwise representing themselves in a way that is manifestly at variance with the principles, but there does not seem to be a mechanism whereby a citizen can establish a linkage between those two by way of making a complaint. However, what is currently embodied in the set of principles is good.
Mr W Clarke:
An issue raised in a previous complaint was a Member’s right to freedom of speech. One case had a high media profile: the witnesses may be aware of it. Similar complaints might arise in the future, when a Member voices his or her personal opinion, probably in connection with a race or gender issue, and it might be considered offensive.
What advice can the Equality Commission give the Committee in dealing with such cases? The particular case that I have in mind was divisive, even within the Committee.
Mr Collins:
Anything that I say should not be taken as a commentary or a set of observations about any past incident.
Freedom of speech is fundamental. In a parliamentary assembly such as this, it is absolutely critical. That is why Members enjoy privilege, why there is absolute freedom in the Chamber and in Committees and why the code — quite properly — does not permit complaints to be made in relation to observations made in the Chamber. There are other mechanisms in the parliamentary process for dealing with that.
There is an undoubted responsibility on elected representatives to have regard to the fact that, whether they wish it so or not, their activities have consequences. That is true for us all. A social impact flows from comments or observations that Assembly Members make, whether inside or outside the Assembly. There is a point at which the graphs of freedom of speech and of responsibility intersect. We are all familiar with the cliché that no one has the freedom to shout “Fire!” in a crowded cinema when there is no fire because of the appalling consequences that can have.
People are entitled to hold views that are different from mine, and I am entitled to hold views that are different from other people’s. If we lose that freedom, we will have lost the capacity to engage in democratic dialogue.
Although freedom of belief is absolute and freedom to express that belief should be as open and as rich as possible, the Committee and the Assembly must consider how they should respond in circumstances in which, as I said earlier, a Member writes about, or otherwise expresses, views that are manifestly at variance with the principles of others.
It was not by accident that Parliament introduced a hate crime category that elicits accelerated penalties for sectarian, racist or homophobic remarks. That was done because sectarianism, racism and homophobia are difficulties in society, and the Police Service of Northern Ireland has clearly indicated the extent to which they are realities in this community.
There are ways — without being offensive or intimidatory, or which might be perceived to validate inappropriate behaviour — for us all to express our views and which leave freedom of expression untrammelled. That is a somewhat delicately worded way to say that, given the public nature of public representatives’ roles and the fact that they are elected, as well as having the power to move, encourage and rouse, they also have the power to incite people. A danger arises when the utterance of an opinion becomes, in effect, an incitement, and the Committee and the Assembly must find a manner in which to respond that does not diminish people’s right to freedom of speech. None of our rights is absolute, and every right bears a reciprocal responsibility. In this instance, the responsibility for someone exercising freedom of speech is to do so responsibly, sensitively and with regard to the impact of his or her words.
Therefore, it would not be proper for me to offer advice; however, based on your question, freedom of speech is a matter with which the Committee is properly engaging.
Mr Brolly:
The matter of whether an elected Member, as a private individual, may express his or her opinions privately has exercised the Committee greatly. To what extent does an elected Member forfeit the right to freedom of speech, particularly considering that he or she is a person of influence and that a controversial, confrontational or offensive statement from him or her would have much more power than if it came from a member of the public? Obviously, that is something that we will come up against; there may be complaints about a Member’s press statements or interviews, and that Member might claim that he or she was speaking in a private capacity. I feel that a publicly elected person’s right to speak privately is limited by the fact that he or she is publicly elected.
Mr Collins:
That is an age-old problem — I am not sure if anyone has found the right balance between having a public persona and being a private individual. There is also an age-old debate about personal belief and public policy and where they intersect. People who have a public position, for as long as they hold that position, are a little less free to exercise their right to be a private citizen. That does not mean that those people forego entirely their right to privacy or that there should be intrusion into their family lives; there must be a clear divide between holding public office and the right to a private family life.
As long as I am the chief commissioner of the Equality Commission, I feel unfree to express my personal views on any and all issues, because I do not think that I have that entitlement. It is likely that anything that I say — if anyone pays attention — will be linked to the Equality Commission. Therefore, a degree of discretion is necessary. In my past life in the neighbouring state, there were frequent occasions when I wanted to say many things in public, but I could not do so because I was obliged to be objective and impartial. The same is true for elected representatives. At the very least, there is an added duty of caution and responsibility because of the weight that their words will carry simply because they are elected representative. If Joe or Mary Bloggs say something on a street corner, less attention will be paid than if the same thing were said by an MLA. That is an inescapable fact of life.
People should not be precluded from expressing personal views, because that is what a parliamentary assembly is for. However, the notion that one can draw an absolute distinction between being a private citizen and not being one, such as sometimes being an MLA or sometimes being the chief commissioner of the Equality Commission, is more difficult and encapsulates two of the points that I made at the outset.
There is an absence of a mechanism for citizens to invoke a set of principles if they believe that a Member has substantially transcended the duties in the code of conduct, other than the specific provisions on registrable interest and propriety that are effectively covered, and the fact that complaints are exclusively linked to “in regard to Assembly duties.” I do not know what that means. However, that does not mean that there is something wrong with the wording, but perhaps guidance or an explanatory memorandum might capture the meaning. Does the wording mean that a complaint will be accepted about anything said within the curtilage of the Assembly? Does it mean that a complaint must concern an incident when a Member was in his or her representative capacity? One is always a representative once elected by the people.
Therefore, it is worth reflecting on the extent to which citizens can engage with that aspect of the conduct, behaviour or performance of Members if its inclusion is meant to be similar to the section 75 duties on equality of opportunity and good relations. The section 75 duties have profound implications for every aspect of an individual’s public behaviour and performance and impinge on the lives of public authorities by covering every aspect of policy and every function.
Mr P Maskey:
If a Member breaches the code of conduct but no action is taken, where does the Equality Commission fit in? As chief commissioner, what can you do to bring people back into line or warn them that they have breached the code?
Mr Collins:
The commission does not have any capacity or entitlement with regard to any code pertaining to the Assembly. That is exclusively within the Assembly’s competence. In that respect, there are no specific powers vested in the Equality Commission other than the power to express an opinion in certain circumstances, which it is prepared to do and has done. The obligations of section 75 of the Northern Ireland Act 1998 apply only to designated public authorities. By definition, as I have said, individual Assembly Members are not designated. The Assembly Commission is designated, but that is somewhat different. There may be elements of carry-over from one to the other in that respect, but I am afraid that if a Member of the Assembly behaves in a manner that is inconsistent with the code, the Equality Commission does not have a role; it has no statutory entitlement whatsoever.
Mr Hilditch:
Bob, in many of your answers you have referred to section 75 of the Northern Ireland Act 1998. What is your view of the lack of a direct reference in the code to section 75?
Mr Collins:
The Assembly is not a designated public authority; therefore, it is not inappropriate that section 75 is not specifically addressed. There is an argument that it might convey a misleading impression to readers, who might feel that they have access to the recourse that citizens are given under section 75 when, in fact, they do not have it because the Assembly is not designated. Without going on about it at great length, one of the ways to amplify the principles of equality and good relations would be to reflect a little more fully on the underlying purposes of section 75, the mechanisms that it embodies and the reasons for its existence. I do not think that it is inappropriate that there is no specific reference to section 75 in the code.
By way of a follow-up to that point, I will draw members’ attention to a drafting issue. For the sake of coherence, it might be better if the equality paragraph and good relations paragraph were placed consecutively. The paragraph on working relationships, which is internal and is to do with Members and staff, is interposed between those two paragraphs, and the code might read more coherently in linking the equality and good relations principles because of the extent to which they are linked in law.
The Chairperson:
We can certainly take that suggestion on board.
Mr Bresland:
The Committee is concerned about access to the code and the process of lodging a complaint. That may be particularly difficult for people whose first language is not English or for those with a disability. What advice would you offer the Committee to ensure that full access is available to people who wish, for example, to lodge a complaint?
Mr Collins:
We are very familiar with that issue. It is a concern that we have at all times. The greatest source of concern for the Equality Commission is the people who do not avail themselves of our services — who do not come to us or complain to us. The concern is that they are not aware of their entitlements. Clearly, when the Assembly finally promulgates the code, there is a range of issues that can be addressed. The very fact that this process is taking place and that consultation is being undertaken is a positive thing in itself. However, we have to be realistic. The consultation process will not reach the entire population — that is the way of life.
It is highly desirable to promote publicly the fact that a code exists and that individual citizens have a right to make a complaint based on it. Doing so is good because it makes people aware of their entitlements. The fact that the Assembly has a code that is published and is available to the public, who can then make complaints based on it, is also good because it makes a clear statement about the seriousness with which the Assembly takes the responsibility of its Members.
All modern avenues of publicity should be used to advertise the existence of the code. That should include placing advertisements in newspapers — including local newspapers — television advertisements — which are costly but which reach people — and radio advertisements — which can have a particular impact. If those advertisements are done imaginatively, innovatively and cleverly, they can make people aware of their right to complain and can effectively present the Assembly as being positive, open and aware of equality issues.
By definition, documents of this nature will be framed in the kind of language that has to withstand legal scrutiny; therefore, an easy-to-read version of the code is desirable, a copy of which could be sent to every household in Northern Ireland. It is also desirable that the Assembly takes the initiative and makes the document available in a variety of languages. That should include not only the languages that have traditionally been spoken in Northern Ireland, but those that are increasingly spoken by new residents of Northern Ireland. By reaching out to new residents in that way, the Assembly may help them to feel better integrated into this community.
That would be a positive step and would follow on from the initial approach that was taken by the First Minister and deputy First Minister on the day after they assumed office, when a reception was held in this Building for representatives of the diverse communities that now live in Northern Ireland. There are several publications — from the Equality Commission, the Cabinet Office and from other organisations — about the issue of consulting with hard-to-reach groups. Those publications could be useful to the Assembly and to the Committee in order to help identify ways that such groups can be contacted.
One of the most significant points of contact that the Assembly has with the public is through its elected Members, who have daily contact with individual citizens in their constituencies, as have members of district councils. Combining the efforts of both groups of elected representatives could produce a significant level of awareness of the code. Promotional material informing people of the code could be distributed in places such as citizens advice bureaux, district council offices and post offices, for example.
If the code is to be meaningful, people must know that they have a right to complain. It is true that there is a risk that the Assembly will be burdened with a range of complaints that may not meet the criteria set out in the code, but that is a modest price to pay.
Mr Easton:
Do you recommend any changes to the section relating to the principle of conduct?
Mr Collins:
I have not come prepared with alternative wording that is hidden up my sleeve or in my pocket, but the principal change that I would recommend relates to the sections about equality and good relations, which are of particular concern to the Equality Commission because of its remit. Those sections could be more ambitious — that is the word that I used earlier — and a little more comprehensive without being made dramatically longer, because I recognise that the code must be crisp and readable. That may be something that we could engage with the secretariat about separately.
Also, there are ways in which the implications of those principles could be set out a little more clearly for a range of Assembly Members’ activities. As I said, Members are legislators, public people and employers. The last category is not an insignificant area, which is why I referred to it in my opening remarks. It is an important way to demonstrate the openness and inclusiveness of the entire Assembly and individual Members if those principles are reflected and if diversity and variety exist not only across the entire House but in its various elements — that is, the various political parties that constitute it.
That is the main point. The second, lesser point — as regards what is included in the principles of conduct — is how that can be linked to the practical guide to behaviour and citizens’ entitlement to complain. That brings us back to the provision on Assembly duties — what precisely it covers and, more importantly, what precisely it precludes.
Mr Brolly:
To return to the vexed question of the private person versus the public person, should the limit about public utterances, by which someone could complain that he or she spoke as a private individual rather than as an elected representative, be defined? There is no mention of it except, as you said, a fleeting one under the heading “Respect” and, possibly, under “Equality” and “Promoting Good Relations”. Because the question has arisen so often, I have a feeling that the principles should define how public representatives should conduct themselves privately, particularly if they make statements or references that could be construed as racist, sectarian or sexist, for example.
Mr Collins:
There is an opportunity to reflect the fact that Members of a parliamentary assembly have several personae. As I said earlier, it is desirable to reflect the fact that they are legislators, public persons and, in some instances, employers. The intention of principles of conduct is that they govern all aspects of a Member’s presence. At the least, it is possible in the code to identify that one implication of that is that Members have regard to the extent by which the law permits or precludes certain types of public behaviour or utterances. I do not mean behaviour that touches on their individual lives — for example, that they should not rob their local shops. It would be desirable if people were reminded of that.
It would be entirely unacceptable and absolutely perceived to be unacceptable if someone were to make derogatory comments about people who have disabilities — for example, to say that too many disabled people live here. However, there is an apparent acceptance of utterances that relate to other categories of people whose rights are enshrined in legislation and against whom it is unlawful to discriminate. It would be equally unacceptable if Members were to make derogatory ageist remarks, for example. Ways can be found in which that can be reflected. It would be desirable if the fullness, completeness and roundedness of an Assembly Member’s life were more clearly captured in the code without in any way diminishing his or her right to freedom of speech.
The ultimate location of the freedom-of-speech entitlement is the Chamber, where absolute privilege attaches to what any Member says and where the only limit is the tolerance of the Speaker and the rules of procedure. That is wholly right. There should be a wider sense of responsibility because of the fundamental importance of parliamentary assemblies in democratic societies. I believe in parliamentary democracy, and I believe that that is how societies are more properly governed. The right of the public to elect and to remove from office is one of the most fundamental rights that can be contemplated.
The Assembly will assist in becoming more effectively regarded in the public, and to have a more powerful leadership role in this society, as it continues progressively to be embedded in the public life of Northern Ireland and in the way in which it presents itself.
I am not teaching granny to suck eggs, or, worse still, lecturing, but I think that the code is a very important document. It has real potential, and, if it is promoted and presented publicly, as was embodied in a previous question, it can have a real impact on how people perceive not only the Assembly but the entire area of public life in politics. At the moment, it is a convenient Aunt Sally at which people can throw anything they wish.
Rev Dr Robert Coulter:
You mentioned the freedom on the Floor of the Assembly. We do not have the same freedom as Westminster — we have only partial freedom in our Assembly. We were reminded of that yesterday when an accusatory statement was made. In view of that, is the code strong enough in its declarations regarding that partial freedom?
Mr Collins:
I am not a lawyer, and it has been a long time since I studied law. Inevitably, the code probably focuses most of its attention on the issue of financial relationships, as well as financial propriety and integrity in relation to financial or other interests that might be perceived to be in conflict with the discharge of duties as an elected representative, or as part of the promotion, passage or support of legislation. That is understandable, and it is right and proper. This is not the view of the Equality Commission, but I think that the privilege that is given to assemblies of this nature, or to national parliaments, is entirely proper and justifiable. In my view, the more comprehensive the privilege, the better, as it entitles elected representatives to do their parliamentary business.
The code is not deficient in the level of privilege that is enjoyed by Members of the Northern Ireland Assembly. If that is recognised as the context within which this is situated, the code does what it is intended to do.
Mr W Clarke:
If Members speak about their religious beliefs, or speak with a moral conscience, perhaps there should be a caveat in the code to cover times when Members are speaking as led by their faith rather than as elected Members. I am thinking of, for example, interviews or newspaper articles.
Mr Collins:
There are few circumstances in which somebody should be precluded from expressing his or her faith. The right to freedom of belief is meaningless unless one has the right to express and practise that belief. The European Convention on Human Rights reflects that reality.
However, believing something to be so does not entitle one to exemption from the law, nor is it an entitlement to disregard the legal position of others. Less still does it give the right to use behaviour or language that might be perceived as incendiary or inciteful.
It is important that people can express clear views. As I said earlier, I do not have a right to hear only those views with which I agree — no one does, or there would be an end to democratic discussion. I do not have a right not to hear somebody who is trying to persuade me to change my view, because that is part and parcel of the exchange of ideas.
I do have a right not to be denied access to my lawful entitlement because of religious views that are held by someone else. That has been a fundamental principle since the late seventeenth century. That is what the developments that took place in 1688 were all about. Therefore, it would be perfectly proper — although not strictly necessary, given all the other legal provisions — for a code such as the code of conduct to recognise that people have individual values or beliefs, whether they are based on faith or not, and that Members, by virtue of being elected, do not forfeit their entitlement to hold personal beliefs. At the same time, the code should make the point that Members should be expected to adhere to certain principles, because the amended code says:
“Members shall observe the following principles.”
There is no ambiguity about that. It is not a counsel of desirable behaviour; it is an imposition. It is important and desirable to say that that extends to a range of areas. The two concepts are compatible.
At the start of my remarks, I introduced the slight qualification of there being “few circumstances” in which people should be precluded from expressing beliefs, because some people, in some parts of the world, believe very strange things, which law and democracy in Northern Ireland would not permit. I have no difficulty with that. Cultures differ, and this is the culture in which we live.
There are very few faith-based positions that cannot be articulated clearly without being offensive or denigratory or, worse still, capable of inciting others to unlawful activity. All that it requires is attention and genuine regard for the validity of other people’s points of view and the inherent dignity of their humanity.
The Chairperson:
Thank you very much, Bob. We have had a very good exchange. You have captured the dilemma for the Committee in trying to have as strong a code of conduct as possible in order to send out the clear message that this is the Assembly’s code and that it takes it very seriously. We want the public to have confidence in us.
However, it is how that message is expressed that is the issue. It is the dividing line between how a Member expresses his or her views within the law and gives leadership without giving offence. You have talked a lot about leadership, and leadership is important. However, there are grey areas. Our code of conduct deals with certain issues, and if those issues are outside our code, we will refer people further — either to the police or other bodies. Nevertheless, we are limited to some extent. It is a code — a guideline, a regulation — and much of it deals with membership and, as you said, finance.
However, we are trying to be positive, although you said earlier that the code was not sufficiently positive or a live document as regards good relations and equality. I know what you are saying, but that is our challenge.
Mr Collins:
It is extremely difficult to write a code that is, on the one hand, a counsel of good behaviour, a set of legal obligations, a set of legal entitlements for citizens so that they can have recourse and, on the other hand, not represent the Committee as a Salem, or a thought-police group, that assigns a representative to the shoulder of every Member who will be with him or her at all times and will download that Member’s thoughts. One must draw the line somewhere. In general terms, the code navigates those waters fairly effectively.
The statement of principles is good, although it could be a little more ambitious in how it is worded, but not necessarily a great deal longer or embodying any more principles. It could probably be a little bit more effectively committed to the machinery.
How does one make a complaint or investigate a complaint about the absence of selflessness? One cannot. It is a counsel — a principle that should be observed. However, it is possible to give greater meaning to some of the elements that are embodied in the principles of conduct in the more substantive parts of the code without burdening individual Members or without making an impossible task for this Committee or any Committee, or for the Assembly itself.
Ms McKeown:
The Chairperson asked earlier about the links between the Assembly’s code and the code of conduct at local government level, and what the chief commissioner said has particular importance at local government level.
The issues in the code should be reflected at a local level, and if you are setting the bar — for want of a better term — at a regional level, what we want to see at a local level can be better embodied. The fundamental difference between the code of conduct that the Committee is examining and the code of conduct at local level is that local councils are designated for the purposes of section 75 of the Northern Ireland Act 1998, and the new local councils will be designated, and leadership is absolutely critical. The Equality Commission is interested in a code of conduct at a local level because of the potential that it brings to embedding equality and good relations at a local level and because so much of our work is focused on providing advice on those issues to local councils.
As regards the context of new local councils, there will be new institutions and new boundaries that bring new demographics and buzz opportunities, but also recognise challenges and new communities without diminishing the importance and need to preserve the identity of the existing councils, and there will be new members to councils. We are looking not only for support for the effective implementation of section 75 but for proactive leadership in its implementation at local government level.
We commissioned independent research to inform the commission’s recently completed effectiveness review of section 75. The research found that advice provided by local government offices to council members with regard to the implementation of section 75 was often ignored. That concerned the commission. The chief commissioner said earlier that consequences and comments have an impact. Our citizens are still interested in the age-old concept of public good, and when decisions are taken contrary to advice on legislative requirements, that raises a question about the public good.
The commission is interested in how to balance majoritarianism while protecting the interests of minority groups, which will vary in different parts of Northern Ireland with the introduction of new electoral boundaries and local councils. Therefore, the overall public good is important in protecting minority groups.
The commission wants a recognition in the code of conduct that public-service provision in a local council area is for the good of everyone. All ratepayers who pay their rates should benefit equally from public-service provision. We want local council offices and community facilities to be good and harmonious places of employment as well as being welcoming places to ratepayers and local residents to visit and enjoy.
There are links between a code of conduct, the principles of promoting equality and good relations, and value for public money, because the code has to reflect policymaking and public-service provision for all citizens in a local council area. That is why it is critical that, recognising the challenges as laid out by Bob, a way is found to give more expression in the body of the code to the principles of equality and good relations. That would greatly support our work with the Department of the Environment’s review of public administration implementation team and local councils in developing opportunities that the formation of the new councils will bring.
The Chairperson:
Thank you. Your presentation and responses have been very helpful. As you know, this is a consultation document, and we want to get it as right as possible. The Committee will reflect on your views and, I am sure, take some of them on board.
Mr Collins:
Thank you for giving us the opportunity to appear before the Committee.
The Chairperson:
I welcome Mr Tom Frawley, the Interim Commissioner for Standards, and Mr John MacQuarrie, the Deputy Ombudsman in the Northern Ireland Ombudsman’s Office. Our ‘Code of Conduct for Members of the Northern Ireland Assembly’ and ‘Guide to the Rules Relating to the Conduct of Members’ are of particular importance to the work that you carry out on the Committee’s behalf. Therefore, we have a particular interest in what you have to say. I understand that you are to make an opening statement. Witnesses representing the Equality Commission have just given evidence. Listening to them beforehand was a good idea. It was an interesting exchange, and it has probably raised the bar for us.
Mr Tom Frawley (Interim Commissioner for Standards):
I hope that I will not do that. With your permission, Chairman, I will make my opening statement. Later in the consultation process, I may have the opportunity to formalise some of our comments. The Committee published its draft report only last month, and we wish to reflect on the detail and consider what was said during the consultation process. That will be important for us.
I thank the Committee for inviting me to give evidence on its ongoing work on revising the current code of conduct for Members of the Assembly, as set out in your publication ‘Consultation on Proposed Amendments to the Northern Ireland Assembly Code of Conduct and the Guide to the Rules Relating to the Conduct of Members’. My comments should be considered against the backdrop of the current arrangements, which have informed the Committee’s work since it was re-established in May 2007. I commend the Committee’s secretariat for its support and for the significant effort that they have invested in assisting the Committee to bring the draft proposals to their current stage of development.
The theme that underpins my comments is “ethical governance”. My contribution has two distinct components. First, there will be a review of some of the principles that should underpin effective codes of ethical governance and, secondly, I will make observations on how effective codes can be developed and lived out. Taken together, they form a logical and holistic framework — an ethical-governance framework — for the Committee’s consideration.
The work that the Committee has undertaken on the development of the code of conduct is vital. However, ethics cannot be ring-fenced — they are not a set of mechanical, abstract rules to be wheeled out and applied to a particular circumstance. They should inform all the fundamental values that determine our professional and personal behaviour and our conduct. Ethics should be concerned with honesty, fairness, justice and respect for others. Fundamentally, those values should make us think about the impact of our behaviour on others and, by extension, on our reputation.
Ethical behaviour is also fundamentally about culture, capacity and competence to support the highest standards of conduct. That is vital in public life, where our central objective must be to secure and maintain the trust of the public, whom we all serve.
The Committee’s work in formulating a code of conduct is, therefore, not happening in a vacuum. The subject is receiving much attention in different fields across many jurisdictions and sectors, and thus is being applied across a wide spectrum of circumstance. For instance, common themes that receive attention in formulating codes of conduct can include employment, ethical management practices, data and information protection, and public communication and information, which encompasses issues such as access to information and transparency, conflicts of interest and environmental issues. The Committee’s work necessarily focuses on those themes and issues most relevant to considering and dealing with Members’ conduct.
That brings me to the second part of my presentation, which is on how effective codes can be developed and directly influence the way in which Members conduct the business of the Assembly. In the task of developing a code of conduct for Members, the Committee performs an absolutely essential public duty. That fact was brought home to me when reviewing research on this topic in advance of today’s meeting. I read papers from the Standards Board for England, wherein reference was made to the following quotation:
“at the heart of good local democracy is a bond of trust between communities and the people who represent them. High standards of conduct contribute to building an ethical organisation which can establish that bond of trust”.
The Committee is the custodian of that bond of trust, and you, its members, should do all in your power to ensure that your work supports the Assembly and its reputation, the protection of which should be at the core of your work — whatever the outcome of your deliberations. To quote the poet Goethe:
“Things that matter most must never be at the mercy of things that matter least.”
For the specific provision of how best to develop ethical codes of conduct, I commend to you the words of the Organisation for Economic Co-operation and Development (OECD):
“Public service ethics are a prerequisite to, and underpin, public trust, and are a keystone of good governance.”
As such, I suggest that you conduct your deliberations to develop not simply a code of conduct but an ethical-governance framework. The OECD also helpfully points out that the specifics of codes should:
“combine aspirational values and more detailed standards on how to put them into practice.”
I commend the Committee’s efforts to separate the principles that underpin the code from the detailed arrangements. Following on from that observation, I suggest that the Committee adopt a middle-ground approach to structuring the code of conduct so that it is neither too brief nor too lengthy and legalistic. It is essential that the code be accessible to the public. Having reviewed research in that area, I suggest that a best-practice code would include: a specific statement of the Assembly’s core values; a more general statement of public-service standards; and substantive matters pertaining to code provisions. Furthermore, it should contain relevant information and resources, and details of how those can be accessed. The Committee’s draft proposals represent a significant step in that direction.
An effective code of conduct that operates in an ethical-governance framework should identify and express the Assembly’s values. Those values must feature prominently in the code, not simply be presented as a list. The code should explain the meaning of the values and reinforce their importance in the context of the Assembly and its work. Members, and the public whom they represent, need clear definitions of organisational values in order to be able to understand and apply them effectively. I look forward to discussing those matters with you in greater detail, because as Plato once remarked:
“For our discussion is about no ordinary matter, but on the right way to conduct our lives.”
Chairman, I am grateful for the opportunity to make those remarks this morning.
The Chairperson:
Thank you very much, Tom. I welcome and value your opening statement. You have helped to illustrate to us, if we did not already know, the importance of the code and that we must send a message to the public that we take it seriously. We want it to be a code and guide for every Member — it is a relevant and live issue.
I was going to ask you about the role of the commissioner for standards, but I will leave that to the end. It would be better to move on to members’ questions and their responses to some of the challenges that you have set.
The Committee on Standards and Privileges deprecates the making of statements to the press by complainants while an inquiry is in progress. Publication or disclosure of evidence or correspondence to anyone other than the Interim Commissioner or Committee without the Committee’s agreement would be contempt of the House. A Member who engages is such activity is therefore liable to sanctions.
Mr Hilditch:
Under paragraph 14 of “Volume 4: The Complaints Procedure”, the Committee proposes that sanctions may be applied to a Member who lodges a complaint and subsequently discloses to the press, or makes public, any evidence before or during an inquiry. I accept that each case will be different, but what are your thoughts on sanctions, Tom?
Mr Frawley:
The one thing that the Committee does not want is to become a referee in a game of political football, which is about people scoring points. Inevitably, when complaints are made, the opportunity arises to score points, so it is important that Members be constrained from discussing a complaint in public during an investigation. Constraints are not only appropriate but necessary, and the code process must not be allowed merely to provide an opportunity to score political points. If complaints were to become debates in the public arena, it would undermine the seriousness of the Committee’s business and the seriousness with which it takes breaches of the code.
Moreover, the person who stands accused of a serious allegation is entitled to due process and the opportunity to assemble, develop and deliver a defence before a judgement is made, rather than have the matter decided in the media or by the public before the facts have even been assembled. It is, therefore, important that such rules exist, and if rules exist, there must be some sanction for breaching them.
I consider it wholly inappropriate for an MLA or member of the public to announce to the media that he or she is to lodge a complaint or to discuss that complaint before it has been lodged. To some extent, if someone has prejudged an issue in that way, that should affect how, or whether, the complaint is considered.
Therefore, if the issue is about premature disclosure, one must consider the standing of the complaint in that circumstance. It is a difficult issue because the public interest continually, and rightly, pursues transparency and openness. A balance is to be found, but we want to avoid becoming a political football. We want to have an integrity to our process that respects not only the rights of the complainant but the rights of the people who have been complained of to offer a proper response to the complaint.
Mr W Clarke:
Gentlemen, you are welcome. On occasions, the Committee has not accepted cases for investigation because they were based solely on media reports. In one instance, that caused a problem, because the accused party interpreted that as the Committee’s vindicating the Member. You are quite au fait with that case. Clarity is needed, so can you suggest a way forward?
Mr Frawley:
It is hard to offer a definitive response. The first part of your question referred to media reports. On one occasion, I rejected a complaint because I felt that it was entirely based on media reports. That complaint has now been resubmitted with a great deal of supporting information. In such situations, I can tell the complainant that I am initially rejecting the complaint because it is based only on a media report, but that I am willing to reconsider and change my mind in the light of other information or evidence in support of that complaint.
Some media reports have significant public-interest issues attached to them, and those must be dealt with on a case-by-case basis. My general principle, however, is that it is not good enough for someone to ask me in the afternoon to investigate a story that appeared in a newspaper that morning. However, an issue of substance may arise that must be tested and examined. Therefore, I reserve my position; I am not absolute in saying that I would never take on a case that was based on a media report. The nature and detail of that report is important.
I am grateful for the opportunity to speak on the issues that surround the terms “cleared” and “vindicated”, because I feel a little frustrated sometimes. The use of those words is not simply a matter of semantics. In my view, a person who is the subject of a complaint can only be vindicated if the facts have been examined and the complaint against him or her is found to be without basis. That is the definition of vindication. A different issue arises when people feel that they have been vindicated, yet no investigation is initiated. That is a subjective view on their part; an investigatory body would not objectively regard that as vindication. I contend that that does not constitute vindication in the accepted sense of the word.
However, we live in a media-driven world, which looks for sound bites and headlines. The public do not have the time or the patience sometimes to take the time to examine in detail the balance of fine judgement, which may be contained in a carefully prepared investigative analysis. Nonetheless, it is important to remember that this Committee is the guardian of the integrity of the Assembly — a concept that I have raised before. The Committee works not only on behalf of Members but on behalf of the public. Therefore, the Committee cannot afford to bow to pressure to produce reports that fail to examine the complaint in detail, simply due to the fact that no one wants to take the time to read and digest detail because the presentation of that detail is inconvenient.
In some circumstances, there may a case for the Committee to engage the Assembly’s Information Office to prepare a communication strategy when a report is about to issue. Through that process, it is possible that the Committee could focus the media on matters that it considers salient to a proper understanding, because that is sometimes difficult to achieve. In other words, the process cannot all be one way. The Committee must also have an opportunity to state its position in the public arena. That judgement may have to be made on occasions, but a balance must be struck. We are a prisoner of the media’s appetite for headlines, and we must be able to respond to that reality, rather than hope that it will go away.
Rev Dr Robert Coulter:
In its evidence session, the Equality Commission made a statement, which I will sum up as, “An elected representative is never not an elected representative.” Will you explain your thinking on the code of conduct’s definitive statements, or lack of them, on the difference between private and public life?
Mr Frawley:
I will prepare a book on that. [Laughter.]
That is a difficult question to answer. One’s private life must be protected. It has been suggested that people will no longer enter politics because it prevents them from having a private life; for instance, the behaviour of a public representative’s children or spouse becomes a matter of public scrutiny and debate. As individuals, Members have a right to a private life, and a line must be drawn — difficult though it may be.
Perhaps the Committee should offer some protection to an individual, by way of a judgement. Alternatively, the Committee might judge that a private-life defence is not acceptable. In any case, the Committee on Standards and Privileges must demonstrate that it sees a line beyond which it will judge in given circumstances. That is preferred to ruling that nothing is private — as is implicit in the statement attributed to the Equality Commission — because that is a difficult position to sustain.
If one recognises, as the law does, such issues as data protection and personal data, one will realise that, by implication, Members are as entitled to a private life and place as much as anyone else.
It is a more difficult arena for Members, but that is the world in which you live. It will be difficult to find people who are willing to participate and engage in politics unless they are offered them some level of protection when it comes to their private lives, because people will see it as a bridge too far and an area in which they will not want to be involved. That would be regrettable. It is a judgement that the Committee will have to exercise.
Mr Easton:
Do you think that the Committee is brought into disrepute if, after discussion, it recommends that no further action be taken on a complaint, and a party ignores the decision and votes according to its designation rather than the facts? How can we get around that sort of situation’s arising? In fact, such a scenario has already happened in this Committee.
Mr Frawley:
I am always reluctant to enter family arguments, so to speak, but the family metaphor is a good one for the work of the Committee. I know how difficult it is to transcend party politics and, if there is a higher cause, allude to that higher cause.
To return to my opening statement and a theme that, I hope, has been woven through my comments. The business of the Committee is to protect the Assembly’s integrity. Party politics will always be part of who you are and what you are expected to do on occasions. A representative from every party here will find him or herself in a particular situation, and the objective of the Committee must be to uphold the integrity and reputation of the institution. The judgement reached must always be about the reputation of the Assembly and the trust of the public. If one tries to focus on that and to recognise that the realistic circumstance will always have a party dimension to it, and even to acknowledge that in Committee discussions, that will happen over time. You will have to work at it, because the public eye is, and will be, on you.
Unfortunately, the public are rather cynical, and they will assume that they know how you achieved a particular result, how you voted, what you said and from where you are coming. The real challenge for the Committee will be, on occasion, to confound that public perception. It is up to each Committee member to bring such an approach to the table. Outcomes are difficult to predict; however, in difficult moments and when faced with really challenging decisions, rather than seek the right answer for his or her party, members must continue to strive to secure this institution’s integrity.
Mr Brolly:
I was going to ask what is fundamentally the same question. Depending on which party a Member who is facing a complaint belongs to, if, in fact, it comes to a vote, the Committee’s decision-making ability will obviously fall apart if voting is done along party lines. Should we accept the outcome of that vote or simply note that we could not reach a decision?
Mr Frawley:
Whether such an outcome should be the Committee’s decision would be for the Committee to decide. Someone from outside must not be able to say that a decision was clearly made along party lines and, therefore, the outcome is not to be accepted. You experience the discomfort of sitting on this Committee, and the wider membership of the Assembly may not fully understand the responsibility that is invested in the Committee.
I repeat that the Committee on Standards and Privileges represents the integrity, reputation and conscience of the institution, and central to that is the public’s trust that the Committee will act fairly and not be a prisoner of a political position. Ironically, there may be outcomes that are consistent with party wishes, and people may be cynical about that, but in such circumstances to thine own self be true.
I take some comfort from the fact that — I use this language advisedly — I am the Committee’s “instrument”. Supported by Mr MacQuarrie, and to the best of my ability, I investigate as much of the available detail as I can find. I then organise and assemble that information into an analysis, which I submit to you. The Committee is free to say whether that is good enough or whether it likes what I have submitted to it — it is the Committee’s decision. As I intended to say in one of my asides to the secretariat, it is OK to publish such a decision as long as the public are reminded that my report is sitting alongside it. Having seen what Frawley said, and in the knowledge that the Committee — not me — is the ultimate authority, the public would then be able to consider whether the decision was right. Such levels of transparency provide balance and insight, and would prevent people from accusing members of acting along party lines. Committee members are individuals who must act collectively in the name of the Committee, and its decisions are its decisions for better or worse.
Mr Ross:
Some of those questions were more about an internal dispute. I shall seek your opinion on the revised code. Therefore, to return to what you are here for today, is there anything in the revised code that might make your job easier or more difficult? Furthermore, is there anything that could have been included that would make your job easier?
Mr Frawley:
The revised code is a huge step forward. It now includes helpful details and explanations. Eventually, the code will make things more complicated, because people will be able to consider the nuances that different parts of the code offer. In the past, the code was merely a general statement of principles; however, we are now getting detail, which, when applied and interpreted, will be helpful.
As I suggested earlier, it would probably be helpful to reconsider how the code is structured and organised. For example, it requires a crisp and effective introduction in order to map out the document and set it in context with other Assembly guidance.
Whatever happens in the Chamber itself is not a matter for this Committee to deal with but a matter for the Speaker. Equally, what happens in any other Committee is not a matter for this Committee but for the Chairperson of that Committee to deal with. Otherwise, this Committee ends up making judgments about how a Chairperson dealt with a particular issue in Committee, and that is not the intention of the code of conduct. Some clarification and delineation would certainly be helpful to us in those areas.
Another major issue will be that of employment of family members. There are opportunities for developing references in the code to that issue, perhaps by making it clear who is counted as a family member; for example, whether a daughter-in-law is a family member. It is very important that that issue be addressed, because it is in the public mind. It might be helpful were a Member’s declaration to include a statement about the qualifications and skills that a family member brings to a post. If someone has a degree in politics, a good secretarial background, or whatever it may be, that makes it clear that people have not been brought on board because they happen to be an MLA’s family members but because they have the relevant skills. Such expansion of detail would be helpful, because employment of family members will be a contentious issue when the report goes out to consultation. There are other issues, the detail of which I will go into at a later date, but, overall, the review of the code of conduct is a very helpful step forward.
Finally, I can tell Mr Ross that the Committee’s work on the code will never be complete. The Committee must sit down, probably annually, or at least every two years, and ask whether the system is working, based on the previous two years’ experience. Where should it be changed? Are new issues emerging? The nature of the public mind is that it changes, so there must be a response to that. There is never an end point, but the review of the code marks a significant step forward.
Rev Dr Robert Coulter:
Will you provide some clarification on one point? You said that anything that happens in the House is the domain of the Speaker and the Deputy Speakers, and that this Committee should not become involved. What happens if someone makes a statement in the House, which is recorded in Hansard, and someone from outside the Assembly brings a complaint to this Committee? How do we deal with that?
Mr Frawley:
The nature of that statement, whether it was intentionally misleading and what the circumstances were would inform the decision. The Speaker and the Chairperson of this Committee should have a close working relationship, and a discussion should inform whether it is a matter with which the Speaker or the Committee should deal. On occasions, that would be a judgement that only those two key actors could make, because there is a very close relationship, set out in the Standing Orders, between the Speaker and the Chairperson of this Committee, and the Committee itself.
One further matter that is in this Committee’s bailiwick is a failure to declare an interest, in either the Chamber or a Committee; in other words, a breach of the Register of Members’ Interests would be a matter for this Committee. However, behaviour and conduct in Committees, or in the Chamber, is in the realm of the Speaker or the Committee Chairperson. Failure to declare an interest, however, is different. If there is an alleged misleading statement, that should be dealt with in a judgment made by the Chairperson of this Committee in discussion with the Speaker.
Mr Brolly:
To return to the question of how decisions are arrived at in this Committee, there is no mention in the code of conduct of how this Committee should conduct itself. Would it be useful if, for example, reference were made to the possibility of Committee members taking decisions along party lines rather than on the merits, or otherwise, of the case? Should the code perhaps advise Committee members to leave their party hats outside the door?
Mr Frawley:
It seems to me that there may be merit in an introductory paragraph in the code that describes the way in which this Committee should undertake its work, and how it aspires to undertake that work.
I do not think that someone can just say that a Committee member has made a decision on the back of his or her party’s view, or that he or she is wrong and is not to be believed. That will not work. The Committee is here to work collectively, but it should aspire to work on behalf of the Assembly and its Members. It should be aware that its clear responsibility is to maintain the integrity of the institution and, fundamentally, to underpin the trust that the public have in the way in which the institution undertakes its business. If it does not fulfil that role, that trust will be breached, and a fundamental pillar of the Assembly’s relationship with the public is undermined.
Mr W Clarke:
Members may have occasion to defend a statement on the grounds of freedom of speech by saying that they were expressing a personal view, or a religious belief; that it was their faith that led them to make their statement; and that, because they were being guided by their faith, they were not breaking the code of conduct,. How should the Committee deal with such a situation in future? How do we protect vulnerable groups? How do we take the lead and show that we will take those issues seriously, and that there will be no loopholes for people to abuse?
Mr Frawley:
I do not want to revisit complaints that we have dealt with before. However, I will simply say that it is important that people have the right to articulate their firmly held convictions, beliefs or faith — call it what you will. In dealing with the matter before, I asked whether it was better to have people who tell you what they believe and value than to have people who say, “Well, that is what I want you to think I believe, but I don’t actually believe that at all. In fact, I have a totally different view.”
There is a difficult line to be drawn between people’s beliefs and how they express those beliefs within the law, to which everyone is subject. If people break the law by making racist comments, or by making comments about a person’s decisions, behaviour or responsibilities based on gender or sexual orientation, we must judge them in that way. However, if Members participate in a piece of publicity — as they are required to do often in the public eye — during which they are asked about their beliefs, it is important that they are able to articulate those beliefs. Otherwise, the democratic principle that underpins this democracy will be hugely at risk. That is not to be offensive, or to give offence, because that would be to take things to a different place, but it is important that each circumstance be judged on what was said, by whom it was said, where it was said, how it was said and to whom it was said. Then, any clarification or qualification that was put on the statement would give it proper consideration. To simply say “You can say this” or “You cannot say that” would be impossible to police.
Mr W Clarke:
If a Member is being derogatory, or is regularly discriminating against a section of the community, what can we include in the code of conduct to help the Committee to deal with such behaviour?
Mr Frawley:
I say again that there is clarity in the scope for dealing with public and private utterances. I would argue that one should look for a pattern or a trend, if that is the way to examine it, and one should also look at the context for the particular debate. However, it is impossible to put into a code the proviso that, for example, the fourth occasion on which a Member makes a certain statement should be regarded as a breach of the code. One cannot say that, on the first occasion, it is OK; on the second occasion, we can live with it; and, on the third occasion, we start to make an issue of it. With respect, Chairperson, we cannot deal with the world in that fashion. We must examine each circumstance against its context, how the situation arose and how things were said.
I know that Mr Clarke is pressing me to give a definitive answer, and I am trying to be as open-ended as I can. The new commissioner may provide more definitive answers. It is difficult to be definitive. Some people will be described to me as criminals, whereas others would describe them as heroes. Individuals’ different views and experiences impact on their perceptions. Therefore, we must constantly consider the context.
Mr Ross:
I agree that employment of family members and employees’ qualifications are the major issues. You mentioned expanding the code to list Members’ employees’ qualifications. If a complaint were made that a particular Member employed his wife — who did not hold the relevant qualifications — as a researcher or secretary, how could you, practically, investigate that case? How can you determine the qualifications required for a job that is not based on academic qualifications but on people skills, initiative, and so on?
Mr Frawley:
I spend my life examining complaints about employment and recruitment decisions. However, I accept that this situation is different, and I recommend applying some context in order to reassure the public. We could introduce availability criteria that stipulate a requirement to be available on a Friday night or a Sunday morning, and trust is a major factor. Qualifications are not just academic — availability, trust, relationships and commitment are important considerations.
I would not necessarily accept a complaint about an appointee’s lack of qualifications. The inclusion of detailed background would reassure the public that appointments are made on the basis of availability and quality of work, rather than because the appointee is a relative. The public are uncomfortable with the idea of appointing family members.
Members must be transparent and open in explaining that an appointment will not simply place money into a family kitty — as may be the public perception — but will facilitate the greatest level of representation and public interaction. That is not, technically, a qualification against which to judge people; rather, it is a means of support and clarification.
Mr John MacQuarrie ( Northern Ireland Ombudsman’s Office):
The code requires clarification. It will require Members to declare that they employ a close relative. The code is not designed as a complaints process for people who have not been appointed, and, therefore, it does not support complaints from rejected applicants who feel that they are better qualified than the appointee. The requirement to outline the reasons for appointment simply reinforces transparency and demonstrates the specific reasons for the appointment of family members, which might include weekend availability, and so on.
The code is not designed to facilitate complaints about an appointee’s lack of qualifications but to increase transparency by giving Members the opportunity to outline why they appoint a particular family member. The code is not intended as a means of judging a complaint. Furthermore, the Committee’s role is not to judge that type of complaint.
Mr Ross:
I am concerned that people, instead of recognising that the intention is to increase transparency, will focus on that part of code, make their own judgements and then make complaints.
Mr Frawley:
I accept that the code might increase the possibility of that happening. However, the public are currently very cynical and see the current appointments process as a “gravy train” that is being boarded by people who are related to Members. Therefore, a balance must be struck. The code might create other issues, and I am aware that people sometimes challenge transparency on the basis that it creates more possibilities for people to challenge issues. It is new territory and it will be difficult, because Members may feel uneasy or uncomfortable discussing the matter of appointing their staff.
That is why it is important that Members elaborate on the context of appointments, so that people can understand that the issue is not as straightforward as, for example, a Member employing his wife, because there may be a wider rationale for why that appointment works for a particular constituency or a particular office.
The Chairperson:
Thank you very much, Tom and John. Obviously, your input to our consultation is particularly important, because, as a Committee, we respect and value your role, and, in particular, our relationship with you. That is why the Committee takes it on board when you emphasise the fact that the Assembly values what the Committee is trying to do, and the importance of our getting it as right as possible when we put the code and guide together. Sometimes we do not get things right in the Committee either, but the buck stops with us.
The problem is that there are grey areas and dividing lines, and one person’s grey area or dividing line might not be the same as someone else’s. It is difficult to leave the party political baggage at the door, but, at present, that is nowhere more important than with this Committee. It is a real challenge for us.
Mr Frawley:
One image that I will leave with the Committee is that of auditors, who had always been described as the absolute nightmare of most public officials but are increasingly described as the “shield” rather than the “sword”. That is quite a nice image for this Committee — to be regarded as a shield for the Assembly and its membership.
Offering real protection to individuals’ integrity is a position that the Committee must earn, as is a reputation for being fearless and being absolutely clear on what is right for the Assembly, the individual and the complainant. That is the difficult line that the Committee must traverse all the time. That reputation will come over time, because it is not realistic to put a group of people into a really challenging environment such as this and expect it all to work perfectly well. There will be lots of bends and twists in the road, but we must focus on aspirations and ambitions.
The Chairperson:
It is not just about public confidence but about protecting and informing our Members so that we do our best by them.
Tom, I want to mention your role because, as you know, one of the main issues that the Committee must deal with is the appointment of a commissioner for standards. You know that it can be achieved, and the Committee has visited Scotland and has seen how the post operates in other places. The question of how the Committee does that — whether we delegate the responsibility to an office such as your own, or appoint someone on a contractual basis — is the next big item on our agenda after we deal with the code. Do you think that the code and the guide will have to be revisited, depending on the approach that the Committee takes?
Mr Frawley:
I do not think that they will have to be revisited. I do not foresee a problem with a person’s fulfilling the role of commissioner for standards according to the detailed arrangements that are described in the code. I do not want this evidence session to become a job interview, Chairperson, if I can avoid it.
The Chairperson:
I do not either; I am just throwing it out for discussion.
Mr Frawley:
I could see you far enough away a lot of the time — to use that wonderful Irish phrase — when I sit out in the corridor waiting to be summoned.
It will be quite easy to appoint a person to the role of commissioner for standards, so many changes will not be needed in order to do that. The problem arises when there is a new beginning and the basis of the relationship must be re-established, but that is inevitable.
It is a different model here. You could have a commissioner à la Westminster or Cardiff; or, indeed, the Republic, which has its own arrangement. You have chosen this particular arrangement, which gives the Committee primacy. That is an arrangement with which some people are comfortable, and others not. Perhaps some people would like greater independence so that the separation, so to speak, of the roles could be seen. However, I do not see how that would impede the code or change it significantly.
Through the code, you have left me in no doubt that I am the Interim Commissioner for Standards. I counted the number of times that it refers to me, in case I was becoming complacent or thought that I was here for a longer term. I am beginning to feel like a football manager, to be quite honest. [Laughter.] Therefore, please do not give me your confidence or else I will go and resign.
The Chairperson:
You are not the commissioner for standards. [Laughter.] Thank you very much, Tom and John. The Committee values and respects your input, and you have been extremely helpful.
I welcome Dr Henrietta Campbell, Mr Seamus Magee and Mr Michael Gallagher, who are representing the Electoral Commission for Northern Ireland. Much of our discussion will concern the Political Parties, Elections and Referendums Act 2000 (PPERA), and the development of a code of conduct and a guide to the rules on the conduct of Members. Those are still works in progress, but I hope that the meeting will be informative.
Dr Henrietta Campbell (Electoral Commission for Northern Ireland):
Thank you. We were glad to be invited to give evidence to the Committee. Alongside me are Seamus Magee, whom Committee members know, and Michael Gallagher from the Electoral Commission’s London office, whose presence I will explain in a couple of minutes.
We are delighted to answer some of the questions that the Committee has raised. As I have previously explained, we intend to provide a more detailed written submission to the Committee after 10 July. That is because the electoral commissioners will meet in July, when we will bring this topic to the table. Committee members will know that the Committee on Standards and Privileges at Westminster is also discussing this matter. From the Electoral Commission’s viewpoint, it is good that the two processes run in tandem to ensure that we do not say something to MLAs that contradicts what we say at Westminster.
Although the Committee’s brief is comprehensive, out interests are narrow due to our statutory responsibility, and we try to stick to those. As Committee members know, the Electoral Commission has regulatory functions that are dictated by PPERA, and it is our responsibility to fulfil those. Therefore, it is good to work with the Committee to examine how we can ensure that the process becomes easier for you and more responsive to the requirements of the Electoral Commission.
The Electoral Commission supports any mechanism that aims to break down the bureaucracy that tends to exist in mechanisms where there is dual reporting. We want to help to ease the burden on MLAs in reporting, and to work with you to ensure that we streamline that process. Having said that, the Electoral Commission must be absolutely satisfied that any reporting mechanism that is put in place meets the requirements of PPERA, because that legislation underpins those requirements, and the public will expect us to meet our responsibilities as a commission and as regulator. I know that MLAs will want to ensure that they do not fall foul of the legislation. Together, we will ensure that trust is central, and that the public can trust us.
We are happy to respond to any questions. Michael Gallagher is fully conversant with the discussions that are ongoing at Westminster. We are interested in those discussions, from your point of view and from ours, to ensure that they are co-ordinated and responsive to each other. Seamus Magee is conversant with all the detail, and I will rely on him to provide that.
The Chairperson:
Thank you very much. We all know Seamus Magee — we have met him in various places over the past few years. Members are aware of the issues, so I will open the floor to questions.
Mr W Clarke:
You are very welcome. The Committee has recommended that any gifts or hospitality received by a Member’s partner, dependant or children should be registered. Is that reflected in the Electoral Commission’s guidelines?
Mr Seamus Magee (Electoral Commission for Northern Ireland):
No; that is not the case in our guidelines. The Electoral Commission’s register is concerned with regulated donees. In this case, that would be MLAs or other holders of elected office — so it would also cover councillors. The rules do not apply to partners, except in circumstances wherein, for example, someone’s partner was also an elected MLA. Therefore, the commission’s remit does not cover partners, but it does cover those who are elected to office.
Mr Hilditch:
The dual mandate issue affects most Members who serve on this Committee. Will you explain the potential difficulties with dual mandates and the use of local government facilities?
Mr Magee:
Under the provisions of PPERA, local councils in Northern Ireland are not permissible donors. Therefore, local councils cannot make donations to councillors. There are circumstances in which MLAs who are also councillors may wish to hold a surgery in a council-owned facility. In most circumstances, that would be permissible. However, if the amount charged for the hire of the facility is more than £200, it would not be permissible. The important point to remember is that if the hire of the facility costs more than £200, there is an issue. Therefore, if a councillor holds a surgery in a leisure centre, which is normally council owned, and the hire of that facility costs less than £200, it is not an issue in respect of PPERA. However, if the donation is more than £200, it would represent an impermissible donation.
In summary, if the code covers the issue of councillors and dual mandates, it is important that MLAs understand that donations from councils are impermissible, unless they amount to less than £200.
The Chairperson:
We have discussed the matter of dual reporting with you, and we have been examining areas in which we can reduce replication when our code and your requirements cover the same ground. However, I know that you still have an issue regarding confidentiality, on which your position may differ from ours.
Mr Magee:
When the legislation came into force in 2001, political parties and regulated donees in Northern Ireland were excluded. At that time, there were fears that people who donated to political parties could come under threat. However, in 2005, the Government signalled a change in policy. In 2007, further legislation introduced a semi-transparent regime, whereby from 1 November 2007 political parties and regulated donees provide the Electoral Commission with information on a confidential basis. That will be the case until 2010. After 2010, we anticipate that there will be full transparency.
Currently, political parties that receive donations in excess of £5,000 — or, to accounting units, in excess of £1,000 — will report that to us on a quarterly basis. In respect of regulated donees, the rules state that an MLA who receives a permissible donation in excess of £1,000 must report it to the Electoral Commission within 30 days. Therefore, in respect of the register that we hold, there are issues of confidentiality. However, it may be argued that, if MLAs are happy that the information held on the Register of Members’ Interests is publicly available, confidentiality is not an issue.
The Electoral Commission is unable to reveal any information that it receives from a regulated donee — that is, an MLA or a political party. However, we hope that the position will change after 2010, and the Commission’s policy is that full transparency is desirable to bring the position in Northern Ireland into line with that in the rest of the UK. We want to see that as soon as possible.
The Chairperson:
This is a practical matter. If dual reporting continues for the foreseeable future, and MLAs must register interests both in the Register of Members’ Interests and with the Electoral Commission, is there a need to agree where responsibility lies when a Member fails to report information to the commission?
Mr Magee:
Under the provisions of the Political Parties, Elections and Referendums Act 2000, the Electoral Commission is responsible for ensuring compliance with the law. It is a criminal offence for an MLA — that is, a regulated donee — not to provide the Commission with that information. It is important to point that out. We consider that a strong sanction.
We are working with the Government to bring about a range of sanctions so that we can address a range of different regulatory issues, instead of some of the sanctions being criminal offences. However, it is a criminal offence for regulated donees not to provide us with such information.
We understand that this Committee has its own way of dealing with a situation in which Members fail to make returns to the Register of Members’ Interests.
The Chairperson:
For some Members who have been in politics for a long time and who have otherwise taken changes on board, there may still be some confusion about this matter, perhaps because they have not deliberately addressed it. However, we need to ensure that the categories are in agreement with the requirement. That is our bottom line.
Mr Magee:
That is a good point. The Electoral Commission consults the Register of Members’ Interests. Although it is early days in the process, we have identified a few instances in which MLAs have reported information in the Register of Members’ Interests, but not to the Electoral Commission. That is not unsurprising, given that the requirement is new. There is a significant learning curve for MLAs. We have written twice to all MLAs to outline the position. However, any issues that have been flagged up to date have been quickly addressed.
Dr H Campbell:
Seamus and I want to ensure that the Electoral Commission continues to work with MLAs and their advisors. MLAs must be fully conversant with the requirements of the legislation because, as Seamus pointed out, there are not many sanctions available. Rather than bringing criminal prosecutions, we would prefer to prevent such a situation arising in the first place.
Reporting needs to be comprehensive, even if the sums of money involved are relatively small. However, people have busy lives, and the administration of such reporting is difficult. We want to protect MLAs, but we also want to ensure that the Electoral Commission is a good regulator, and that it equips itself as the public would expect.
Mr Magee:
It would be ideal if the Assembly’s code of conduct mirrored the detail of the Political Parties, Elections and Referendums Act 2000. That would go some way towards making single reporting to the Assembly sufficient. It would also ensure co-operation between MLAs and the Electoral Commission in transmitting that information.
We recognise that dual reporting is not in the interests of bureaucracy or MLAs themselves. However, the Electoral Commission’s legislation must be covered in the Assembly’s code of conduct. The current code goes a long way towards meeting that requirement. We could improve it further by highlighting the issues outlined in PPERA that should be included. Completion of that work would enable the implementation of the legislation necessary to end dual reporting. That would be a satisfactory conclusion.
The Chairperson:
That is what we want from the Electoral Commission. We recognise that there is an overlap between the requirements of the Register of Members’ Interests and those of the Electoral Commission. We must consider the ways in which the Assembly’s code of conduct needs to be changed, and we must avoid confusion in making those changes. Any input from the Electoral Commission would be helpful.
Mr Magee:
There are specific reporting requirements that should be contained in the Register of Members’ Interests, but are not. As I said, we can inform you of those requirements. Only a tweaking of the code of conduct is required. If the PPERA definitions are adopted in the code, it will have been a job well done.
Dr H Campbell:
The anonymity of the semi-transparent mode of reporting — which Carmel mentioned — needs to be examined carefully. I hope that that broad system will help to increase MLAs’ confidence in reporting from whom they have received donations. That is the position of the Electoral Commission. If MLAs want to retain anonymity at Assembly level, some mechanism must be put in place to do that. However, the Electoral Commission must receive a full disclosure.
The Chairperson:
We have proposed the retention of anonymity for the interim period because that is still the case with the Electoral Commission. However, we will no doubt receive responses on that matter.
Mr Magee:
Category 4 of registerable interests relates to sponsorship and is contained in the Committee’s ‘Consultation on Proposed Amendments to the Northern Ireland Assembly Code of Conduct and the Guide to the Rules Relating to the Conduct of Members’. One option that could be considered is for information about donations received by the clerk to be retained confidentially in the Register of Members’ Interests, but transmitted to the Electoral Commission for regulatory purposes. On the other hand, MLAs might argue for full transparency. However, those are matters for the Committee and its consultees to discuss.
The Chairperson:
Thank you very much for coming before the Committee. It has been good to see you. We look forward to receiving your detailed submission.