Northern Ireland Assembly

Assembly: New Member

At the sitting of 4 December, I informed Members of the resignation of Mr John Hume as a Member of the Northern Ireland Assembly for the Foyle constituency. I have been advised by the Chief Electoral Officer that the new Member for that constituency is to be Mrs Annie Courtney. I invite Mrs Courtney to take her seat by signing the Roll of Members.

I am satisfied that the Member has signed the Roll and confirmed her designation. Mrs Courtney has now taken her seat.

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Assembly Business

On a point of order, Mr Speaker. On Thursday 7 December, my party was informed that today’s business would include a motion from the Executive on the Civic Forum. I understand that the First Minister and the Deputy First Minister have withdrawn that motion and will not proceed with it at this time. I do not know their reason, but that is not relevant to the point of order.

A hole has been left in our business that could have been filled by one of a long list of motions that are queued up for consideration. May I move the suspension of Standing Orders to allow the Business Committee to consider over lunch whether it might take one of the motions from the list and put it at the end of today’s sitting after all other business on the Order Paper has been dealt with?

As the House will know, sometimes the business that the Business Committee has agreed — whether a motion, a Bill or some other matter — is withdrawn. That is the case for private Members, and I regret to say that it has happened on several occasions. It also happens from time to time with Ministers and others.

The Member is correct that that alters the business, but at least Members know what the business is when they receive the Order Paper. I regret that it is not possible to table a motion for a suspension of Standing Orders, on this or any other matter, without its being on the Order Paper.

Further to that point of order, Mr Speaker. I am grateful, but I wish to make certain that I understood what you said. I see no stipulation in Standing Order 72 that that must be done by way of a written motion.

Standing Order 12(7) states that

"Motions relating to the business of the Assembly" —

for example, suspension of Standing Orders —

"shall be taken at the commencement of public business after notice and shall be decided without amendment or debate."

Members have not had written notice, which must be on the Order Paper. That is how we have proceeded heretofore.

I accept that. Perhaps I should have expressed myself more clearly. I refer to Standing Order 72, which would enable us to suspend the Standing Order to which you refer, if Members so wished. There was no edge to my comments about the withdrawal of the motion. It is simply a matter of good business practice to let everyone deal with a motion sought by one or more Members in the normal way, rather than give them the afternoon off.

I understand that the Member is referring to Standing Order 72. However, a motion for suspension is no different from any other motion, and under Standing Order 12(7) a motion for suspension of Standing Orders — a motion on the business of the House — would have to be on the Order Paper. I make no comment about whether that is a good way to arrange business under Standing Orders; I am simply doing my best to interpret Standing Orders and keep everything in order. I regret that we must now move on.

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Electronic Communications Bill: First Stage

I beg leave to lay before the Assembly a Bill to make provision to facilitate the use of electronic communications and electronic data storage.

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Dogs (Amendment) Bill: Further Consideration Stage

Under the powers given to me in Standing Order 34(1) I have decided to accept a late amendment to this Bill, tabled by Mr P Robinson, on the ground of exceptional circumstances. I trust that the circumstances will indeed prove to be exceptional.

The Bill was, as I understand it, listed in the forthcoming business sheet for the week beginning 15 January 2001, or later. At an earlier stage a number of points, including the matter at issue, had been raised by Mr Robinson, and a ministerial reply was expected. I understand that when the Bill was rescheduled for today the ministerial reply had not been received. I cannot say whether it was sent. As I pointed out to the Business Committee, the whole purpose of the Further Consideration Stage becomes nugatory if Members are unable to table amendments. They only know from the Order Paper of the final opportunity for amendments after the deadline for the submission of amendments.

I hope that these circumstances will be exceptional, and on that ground I have accepted this amendment. It is the only amendment on the Marshalled List, and I trust that Members have received it.

I beg to move amendment number 1: In page 1, line 7, after "shall" insert

‘, unless, having taken account of all the circumstances, it appears to the court that exceptional mitigating factors exist,’.

I had expected, at the beginning of Further Consideration Stage, some explanation from the Minister as to why the Bill was being debated earlier than had been contemplated. It was on the list of forthcoming business scheduled for the week commencing 15 January 2001.

The handling of the Bill has perhaps been the worst practice of any Department that I have seen for a long time. First, the Bill was introduced without consulting those who have to enforce it, namely local authorities. To this day, they complain about aspects of the Bill and the fact that they have never been asked to comment on it. In her reply, which I eventually received, the Minister offered as an excuse the circumstances relating to the setting up of devolution in Northern Ireland as the reason why proper consultation did not take place. Of course, she and her Department did have time to consult with the Ulster Society for the Prevention of Cruelty to Animals (USPCA), but she did not have time to consult with the statutory body responsible for enforcing dogs legislation — namely, local government in Northern Ireland.

Even after receiving complaints from local government, the Minister did not attempt to consult it on the issue. In effect, if it had not been for the exercise of the Speaker’s discretion, the Department would have succeeded in time-barring the Assembly from putting down any amendments. I shall quote the undertaking given by the Minister at the Consideration Stage, when she could not answer the questions that I had asked:

"As regards the other questions to which the Member seems to think he has received no answers, I am perfectly open in saying that I have not answered all his questions because I had no notice of them. There are issues involved which I, as a Minister, would be foolish to address off the top of my head."

The Minister of Agriculture and Rural Development undertook to answer in writing, and she made it clear during the course of the debate that if Members were dissatisfied, they could table amendments at this stage. Therefore it was not unusual for a Member to hold back before tabling an amendment to see whether the Minister could resolve the difficulties raised at the earlier stage.

However, I had to ring the Minister’s Department last Thursday to ask for a copy of a letter that it said had been sent to me. Indeed, it was sent to me, after the request had gone to the Business Committee to consider this matter for this week’s business. Therefore, in effect, when I received the communication it was too late, according to the Standing Orders, to put down any amendment. However, with the exercise of your discretion, Mr Speaker, it has been possible for this amendment to be taken.

It is important that I set my amendment in context. As Members will know, a district council has no discretion at present — if a dog is proven to have attacked a person or to have worried sheep, the council must seek a destruction order in the courts. Equally, the courts have no discretion if they find that a dog did attack a person. "Attack", in this sense, it is worth pointing out, has a wider meaning than would otherwise be assumed. The interpretation given in the Dogs (Northern Ireland) Order 1983 includes not only a physical attack on a person but the case in which the dog has behaved

"in such a manner so as to cause a person apprehension of being attacked".

At present, if a person is left with the apprehension that he or she is being attacked, that is sufficient for the courts to make a judgement on the matter, and they have no choice on what that judgement should be. They have to issue a destruction order on the dog.

It is obvious that this piece of legislation is intended to give some limited scope to the courts. In fact, the Bill itself does not offer any discretion to the council. It will still be necessary to take the case to the courts, and the courts will then have only limited discretion as to what they may do. They can, of course, issue a destruction order, or they can consider some other measure that should be taken by way of what might be described as punishment if it has been proved that an attack took place.

The Bill does not provide the courts with the discretion to determine that the dog should be exonerated in all the circumstances. How can the Minister argue that it is right to let the courts have discretion to determine whether the dog should be destroyed or whether some measures falling short of destruction should be applied, while not giving them the discretion to determine whether no action should be taken?

When the case comes to court, if an attack has taken place and the dog has been found guilty, only the extent of the punishment is to be determined. The Department is, in effect, saying to the Assembly that there are no circumstances in which a dog might attack or behave

"in such a manner so as to cause a person apprehension of being attacked"

that can be justified. A dog can never be justified in attacking an individual. That is the Department’s argument. I do not agree. I mentioned one such set of circumstances at the Consideration Stage.

I shall refer to it as the "Rover to the rescue" scenario, in which a dog comes to the rescue of its owner if the owner is under attack. One could perhaps hypothesise about several other possibilities: if a dog were the subject of severe brutality, it might be justified in its attempts to extricate itself from those circumstances. I have not tried to stretch my imagination too far in providing those examples, but I am sure, given the vivid imagination of some Assembly Members, that they could provide other examples. However, that does raise the question of why the Minister is insisting that a dog must be punished in those circumstances.

Does the Minister not trust the courts to exercise their discretion properly? One can only assume that she has confidence in the courts, otherwise she would not be giving them that additional element of discretion. Indeed, given the courts’ past practice, there is no justification for not giving them this further element of discretion. My amendment is framed to ensure that the courts know that only in rare and manifestly justifiable circumstances will they be able to exercise their discretion to the extent of exonerating the dog.

Mr Speaker, you set an excellent example when you exercised your discretion and said that you are prepared to do so only in very limited circumstances. The amendment is framed in such a way that it is made clear to the courts that they can exercise their discretion only in very rare and limited circumstances. It would be unreasonable for the Minister to resist the amendment.

I have attempted to determine why, in her response to me, the Minister was not prepared to accept the substance of the amendment. I suppose that when attempting to guess other people’s motives, one is treading on dangerous territory, but it strikes me that this is, perhaps, departmental arrogance. Is it a question of "Our officials framed this piece of legislation; the experts drafted it. How dare those Assembly Members think that they will be able to find some imperfection in our handiwork." Perhaps there is a direct rule legacy in the Department — "We are the people who will decide these matters, and we do not want any interference in the process from elected representatives."

Even in the correspondence that I received from her, the Minister gives little glimpse as to why she would turn down the amendment. From her correspondence, I can only deduce one explicit reason that she offers and, perhaps, one implicit reason. I want to deal with both of these. In her letter to me, she says:

"I fully understand the kind of situation you describe, i.e. where the dog is defending his owner and bites an attacker or intruder, and in those circumstances I could foresee the courts operating with a fairly light touch."

That is a telling sentence. It is a recognition on the part of the Department and the Minister that they recognise a set of circumstances as being valid. However, in dealing with that, all the Minister has to say is that she recognises that that set of circumstances could come about, and she hopes that the courts will let the dog off lightly "for its gallantry". That is only a "hope", of course, because it is left to the discretion of the courts as to how they interpret the legislation. That seems to be a strange approach by the Minister. I suspect that if a soldier were to come to the rescue of a member of the public he would be mentioned in dispatches.

If another citizen came to the rescue of a member of the public, he or she might be awarded a medal. The press might even bestow some credit on that person. However, if a faithful dog that loves its owner is prepared to put itself in harm’s way in order to protect its owner, the Minister’s answer is, "Well, you do not necessarily have to kill it; you can just punish it slightly." That does not seem to be a very humane approach to the matter, and it is a definition of mercy and compassion that I would not want to share. I can see no logic in the thinking behind that.

The other implicit reason given by the Minister in her correspondence for making no change in the Bill is that, based on past experience, there would be very few such occasions. The Minister said

"There are relatively few destruction orders made each year; in 1999 there were 40 attacks on people and 16 attacks on livestock; and I would envisage only a very few of those raising issues which might lead the Courts to consider that measures other than destruction could be taken to prevent the dog being a danger to the public or to livestock."

I do not know for how many years we might expect this piece of legislation to be in force in its present form. The last similar piece of legislation came forward in 1983. Therefore, for the purpose of my calculation, I am going to take a period of 17 years. On the 1999 figures provided by the Minister, that makes about 1,000 cases that may come before the courts.

I do not know — and neither does the Minister — how many of those cases would be of the kind for which the amendment might be applied. I do not think that it is a sensible approach for the Minister to say that it is not worth making the change that we could make today with so little effort. She would rather punish gallant dogs and be unjust than allow her Bill to be changed in any way.

Mr Speaker, you will know from your experience in another place that amendments generally fall into one of three categories. First, amendments can be tabled with the intention of doing violence to the Bill, of changing its direction, of attempting to undermine the key principles. In those circumstances, I would never be surprised if a Minister were to oppose an amendment. The second category is where somebody takes the opportunity that the Bill raises of riding his hobby horse across the pages of the Bill and putting down an amendment to extend it in some direction. I would seldom be surprised if a Minister might resist his or her Bill being used in that manner of convenience. However, there is a third category where Members try to improve the legislation to enhance the intention of the Bill, and are being helpful to the Minister and the Department.

It is obvious that this amendment does no violence to the principle that the Minister has included in this Bill. It is consistent with the purpose of the Bill, which is to allow the courts to have more discretion. I do not see how the Minister could argue that the amendment takes the Bill off in another direction — it is riding the same path that the Minister is riding. The only issue is whether it is right that in certain circumstances it might be opportune for the court to have the discretion not to destroy or to instruct that measures be applied to punish the dog for any action in which it has been involved.

As my amendment seeks only to improve and enhance the stated intention of the Bill, any attempt by the Minister to defeat the change will leave her defending the incomprehensible and appearing obstinate and arrogant. She will be seen to be defending her Department’s shortcomings with the same vigour as she might defend her honour or virtue.

For the sake of completeness, I should say that there is at least one type of amendment in addition to the list that the Member has given. It is not uncommon for probing amendments to be put down. Their purpose is not to wreck or divert the Bill or divide the House, but to ensure that the Minister will put something on the record. That could be by way of an undertaking for a later stage, which is not relevant at this stage of the Bill, or something might be said by the Minister that could, subsequent to the Pepper v Hart judgement, be used by the courts in the interpretation of a piece of legislation, if it were unclear what the legislation intended.

The Member has helpfully referred to the fact that there are different kinds of amendments used by the House, and by Members, in different ways. This amendment has, however, been tabled and proposed.

On a point of order, Mr Speaker. I intend to accept the amendment. Does that remove the need for a debate?

It is possible for the Minister to respond by way of acceptance, but normally Members could make some other remarks if they wanted to do so. Some of those remarks may be tempered by the Minister’s intervention.

I support the amendment. I know that the Minister has said that she will accept the amendment, but I cannot leave this issue without reiterating the criticism of the handling of the Bill. There has not been the kind of consultation for which one would have hoped for, especially with those who will have to enforce the legislation. As has been said, this is not unique to the Department of Agriculture and Rural Development. There is still a pervading sense in Departments that the expertise lies with their own legislative draftsmen. How dare anybody from outside criticise that?

We shall also find that problem with other Bills. Ministers ought to give due consideration to the people who have to implement legislation. They know where difficulties arise and where problems have occurred in the past. Therefore, they can see the flaws in the legislation, which in many cases is drawn up from the point of view of academic expertise rather than experience.

I shall reinforce my Colleague’s point. I am glad that the Minister has accepted the amendment, for a couple of reasons. First, one thing that has attracted much bad publicity to councils — and it has been the case in the council on which I serve — is when a destruction order on a dog has been made that, in the circumstances, has been patently unfair. Councils have no powers of discretion. The officer on the ground cannot make a judgement.

He cannot say, "There are mitigating circumstances that persuade me not to pursue this case in the courts." Under the terms of the Bill, the courts will not be able to exercise discretion in the circumstances that were described by my Colleague. Ultimately, the council will be at the front line when it comes to making destruction orders and will therefore attract all the bad publicity. The Bill gives the court some limited discretion, but, without the amendment, it does not give the court the discretion to do nothing.

It was ironic that the Minister had to rely on the argument that a court might "deal lightly" with a dog "in certain circumstances". What does that mean? The options open to a court, if it decides not to require that a dog be put down, are to muzzle it, confine it, exclude it or neuter it — all that from a Minister whose party has complained vigorously about the Government’s attempts to muzzle terrorists.

Order.

I am trying to draw a parallel.

Order. I can think of another parallel — how the Speaker should deal with Members. The Member should review what he said about the meaning of the phrase "dealing lightly" in tomorrow’s Hansard. He should be cautious about making comparisons with other areas, as the Speaker might be tempted to do so as well. The Member must remain tightly within the confines of the amendment and not wander too far from it.

I hope that you were not considering the fourth option that I mentioned, Mr Speaker. I could have gone on to speak about exclusion orders or incarceration, which the Minister’s party has deemed to be inappropriate for terrorists.

The clause sets out how a court might "deal lightly" with a dog that has been protecting its owner or his owner’s property. The Department should accept the amendment. We must be vigilant about allowing Departments to think that they know better and that they can railroad measures. That would be against the whole ethos of devolution.

I am aware of the practice of tabling probing amendments, and deliberately did not mention it lest it give the Minister an easy route out.

The courts often consider the intentions of legislators. There is a sentence in the Minister’s letter that follows on from what my hon Friend said about the four specific measures mentioned in the Bill. In the letter the Minister says

"The kind of restrictions mentioned in clause 1 sets the parameters for the restrictions which the court could place on a dog but there is no reason why the courts should not, if it thought circumstances so dictated, define other measures sufficient to prevent the dog being a danger to the public or to livestock."

I simply put the matter on record because the courts may want to know that they have that additional measure of flexibility.

It is important to have that matter on the record because — as Mr Robinson pointed out — the courts will often look at the intention behind legislation when it was being debated.

Finally — and I know that this has been raised before — there is concern as to how this legislation is to be enforced. The restraining, confining or exclusion of dogs will mean additional work for a local authority, although that is not being made clear. If that is to be the case, perhaps the Minister will clarify whether she intends for additional resources to be made available. Will those funds have to be found by local councils?

It seems that the mover of the amendment has pre-empted my thinking and has presumed that I would not accept his amendment. Perhaps he underestimates his own powers of persuasion. He is very good on rhetoric but sometimes not so good on substance. It was interesting; perhaps he is not used to dealing with people with open minds. I am pleased that the Members opposite recognise the value of devolution and hope that they will continue to recognise it.

I did not have any amendments at the Consideration Stage, but Members will be aware that the Bill passed Committee Stage and — as Mr Robinson acknowledged when speaking at Consideration Stage — missed some key points. It is interesting that the Committee, of which he seemed to be somewhat critical, is chaired by his party leader and includes two more of his party members.

The timing of the Bill is not a matter for the Department, as the Member will probably be aware. The issue of consultation has been discussed at length in the House and at Committee Stage, and the reasons have already been given. I do not intend to go over them again. As regards additional resources, application of the legislation would be a matter for the RUC.

I have carefully considered the proposed amendment to clause 1. It seeks to further extend the courts’ discretion on whether to order the destruction of a dog or apply a lesser penalty, such as muzzling or confinement, where the dog has attacked people or livestock. The clause was drafted on the basis that if it were proved to the satisfaction of the court that an attack had taken place, the court would take any mitigating circumstances into account. Nevertheless, the court would still have to apply a penalty provision at whatever level it thought fit, in accordance with the provisions in the Bill.

That said, insofar as the terms of the proposed amendment offer the court the option of not applying a penalty at all, I am happy to accept it on the grounds that it is limited to circumstances in which exceptional mitigating factors exist. As such, it will offer the courts the widest possible discretion in any case of a dog attacking a person or worrying livestock. The Bill will therefore be amended accordingly.

The Minister has said that the timing of the Bill is not a matter for the Department. That, of course, is correct. It is, however, a matter for the Executive Committee, under Standing Order 12(4). It was at that Committee’s request that the Bill was introduced at this time.

The Minister is right in saying that I am somewhat surprised that she has accepted the amendment. It is not because of her ability to take into account any reasoned argument put forward, nor is it because I consider the Minister to be incapable of comprehending reasoned arguments. When the Minister wrote to me regarding the matters that I raised, which included this one, at Consideration Stage, I expected her to say that she was willing to accept an amendment, or to put down an amendment herself. She did not; therefore I tabled the amendment. I am pleasantly surprised, if not delighted, that the Minister is prepared to accept it.

I do not wish to appear churlish, but the amendment does improve the Bill considerably. Despite the Minister giving me what might be described as dog’s abuse in her remarks, I must say that at no stage did I offer any criticism of the Committee — neither at Further Consideration Stage nor at Consideration Stage in November 2000. My criticism was of the Department, which has a responsibility to consult with those persons responsible for enforcing legislation that passes through the House. A Department cannot assume that a Committee will do the work for it. Instead, Departments should to be managing the wider consultation, especially in the light of the amount of work with which Committees are faced. It is not possible for Committees to bring in various interested parties for every Bill that comes before them.

The Minister may think it a telling point when she says to us that there is a value in devolution. I do not know where the Minister has been, but the Democratic Unionist Party is a devolution party. We believe in devolution. We believe that devolution is in the best interests of the people of Northern Ireland for precisely the reasons she is explaining. Certainly, we have major difficulties and objections to the form of devolution being exercised in Northern Ireland, but that does not detract from our adherence to the principles of devolution, which we believe is in the best interests of the people of Northern Ireland.

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Part-Time Workers Regulations

I beg to move

That the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 be approved.

I shall refer to these Regulations as the Part-time Regulations. They were brought before the Assembly on 27 June 2000 and came into operation on 1 July 2000. They are subject to confirmation by the Assembly within six months of the date that they came into operation.

The Regulations implemented European Directive 97/81/EC, as extended to the UK by Directive 98/23/EC, in Northern Ireland, and correspond closely to those made by the Secretary of State for Trade and Industry in Britain, which also came into force on 1 July 2000. Their aim is straightforward: they make it unlawful for unscrupulous employers to treat part-time workers less favourably than comparable full-timers.

Part-time workers, therefore, must receive the same hourly rate of pay as full-timers, the same access to occupational pension schemes, the same access to training and the same entitlement to annual, parental and maternity leave on a pro rata basis. In that way we can ensure that part-time workers are not treated less favourably in their contractual terms and conditions than comparable full- timers, unless different treatment is justified on objective grounds.

I commend the Regulations to the Assembly.

I am grateful for the opportunity to make some comments on my own behalf and on behalf of the Committee. I appreciate the Minister’s remarks. It is of note that equivalent Regulations now apply in the other parts of the United Kingdom and that these Regulations have been in operation in Northern Ireland since July. As the Minister said, it is somewhat imperative that we confirm these Regulations today so that in meeting required timescales we comply with European law.

The underlying reason is the possibility of so-called Frankovich cases. The European Court has now made provision for individuals to sue the Government in their jurisdiction if that Government fail to implement current European Directives and Regulations. The Committee regrets that suspension between February and June cut short any contribution from the Committee at drafting stage of the Regulations in Northern Ireland. Notwithstanding that, on 9 November, the Committee took evidence on the Regulations and, on 10 November, we wrote to the Minister, listing some of our main concerns. It was not felt that those concerns merited a special report to the Assembly.

The burden of our concern is with respect to the limitation on the comparators against which part-time workers under this Directive are to be compared. It implies that only some, not all, part-timers will be able to avail of protection under the Regulations. Particularly of note is the fact that in these Regulations, unlike the Sex Discrimination (NI) Order 1976, there is no provision for a so-called hypothetical comparator.

The Committee supports the motion because it approves of the broad principles of equity contained in the Regulations. At the same time, it is concerned about some of the details. In this matter, we are constrained to a great extent to comply with the rest of the European Union. Nevertheless, the Committee stresses the value and appropriateness of an early review on the part of the Minister and the Department of the implementation of the Regulations to ensure that they are achieving their objective, which is the equitable treatment of part-timers relative to full-time workers.

I urge support for the motion.

I agree with Dr Birnie. I welcome the extension of statutory rights of equal treatment to part-time workers. Although the Committee raised several issues with the Minister, it is aware that the legislation needs to be brought into force. Apart from the absence of the hypothetical comparator referred to by Dr Birnie, the Committee was concerned at the absence of a code of practice, which many of the bodies responding to the Department’s consultation process had asked for. Although that is not a flaw in the legislation itself, we believe that a statutory code of practice would give extra weight to the legislation and give clear guidance to part-time workers on their rights.

Many part-time workers are employed by small organisations that do not have the resources to make the advice available. A code of practice conveys good practice guidelines. I note that a similar document supporting legislation on recruitment and selection helped to change the culture in that area, as well as providing useful guidance for employers and employees alike.

The Committee also examined guidance on the Regulations that has been made available in all jobcentres. Although easily readable, the guide, we found, was confusing in some areas, and at times it gave misleading or perhaps unlawful guidance. Our views on that have been submitted to the Minister. In particular, the lack of statutory guidance on what comprises objective grounds for an appeal under the legislation leaves the whole issue to be sorted out at a tribunal. The onus is on the individual to identify his or her rights as a part-timer. We consider that employers should periodically review how individuals are provided with information on their rights as part-time workers.

I note that House of Commons staff are specifically mentioned in the corresponding legislation. Individuals in the Assembly have not been included in the Northern Ireland Regulations that we examined. I am especially concerned that staff working in the Northern Ireland Assembly should be covered by the legislation.

I too wonder how the effect of these Regulations will be evaluated. There should be some form of future inspection to ensure that the Regulations have been implemented properly and are being adhered to by employers. Despite my reservations, I agree with the Chairman about the importance of the Regulations.

I support the motion and commend it to the House.

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