Northern Ireland Assembly, 19 February 2013

388 contributions from 51 members. The official report.

Executive Committee Business

William Hay (Speaker, Foyle)

I call the Minister of Justice to move the Further Consideration Stage of the Budget Bill.

Moved. — [Mr Ford (The Minister of Justice).]

William Hay (Speaker, Foyle)

No amendments have been tabled, so there is no opportunity to discuss the Budget Bill at this stage. The Bill's Further Consideration Stage is therefore concluded. The Bill stands referred to the Speaker.

William Hay (Speaker, Foyle)

I advise Members that a petition of concern was tabled this morning to amendment Nos 21, 24 and 26. Today's proceedings on the Bill will therefore stop after the Question on amendment No 20. The Questions on the remainder of the Bill will be put at the next sitting of the House.

I call the Minister of Justice, Mr David Ford, to move the Consideration Stage of the Criminal Justice Bill.

David Ford (Alliance, South Antrim)

I am sure that Members will be pleased that Sammy Wilson is not now on his feet. Before introducing the amendments for debate, I will say a few words about the progress of the Bill to date. I thank the Committee for its assistance in getting a relatively short but fairly complex Bill to Consideration Stage within the allotted time.

William Hay (Speaker, Foyle)

Minister, you just have to move the Bill at this stage.

David Ford (Alliance, South Antrim)

Mr Speaker, I beg to move amendment No 1.

William Hay (Speaker, Foyle)

Minister, you just have to move the Bill at this stage.

Moved. — [Mr Ford (The Minister of Justice).]

William Hay (Speaker, Foyle)

Members will have a copy of the Marshalled List of amendments detailing the order of consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list.

There are three groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1 to 13 and Nos 35 to 37, which deal with notification requirements for sex offenders and making human trafficking offences triable on indictment only. The second debate will be on amendment Nos 14 to 17 and Nos 38 to 41, which deal with the release on licence of children convicted of a serious offence; enabling the operation of registered intermediary schemes; and the abolition of the offence of scandalising the judiciary. The third debate will be on amendment Nos 18 to 34, which deal with the retention of DNA profiles, fingerprints and photographic material.

Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

Clause 1 ordered to stand part of the Bill.

William Hay (Speaker, Foyle)

We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 13 and Nos 35 to 37. The amendments deal with increasing sex offender notification requirements and ensuring that human trafficking offences are triable on indictment only.

David Ford (Alliance, South Antrim)

I beg to move amendment No 1: After clause 1 insert

“Notification requirements: absence from notified residence

1A.—(1) Part 2 of the Sexual Offences Act 2003 is amended as follows.

(2) After section 85 insert—

“Notification requirements: absence from notified residence

85A.—(1) This section applies to a relevant offender at any time if the last home address notified by him under section 83(1),84(1) or 85(1) was an address in Northern Ireland such as is mentioned in section 83(7)(a) (sole or main residence).

(2) If the relevant offender intends to be absent from that home address for a period of more than 3 days (“the relevant period”), the relevant offender must, not less than 12 hours before leaving that home address, notify to the police the information set out in subsection (3).

(3) The information is—

(a) the date on which the relevant offender will leave that home address;

(b) such details as the relevant offender holds about—

(i) his travel arrangements during the relevant period;

(ii) his accommodation arrangements during that period;

(iii) his date of return to that home address.

(4) In this section—

“travel arrangements” include, in particular, details of the means of transport to be used and the dates of travel,

“accommodation arrangements” include, in particular, the address of any accommodation at which the relevant offender will spend the night during the relevant period and the nature of that accommodation.

(5) Where—

(a) a relevant offender has given a notification under subsection (2), and

(b) at any time before that mentioned in that subsection, the information notified becomes inaccurate or incomplete,

the relevant offender must give a further notification under subsection (2).

(6) Where a relevant offender—

(a) has notified a date of return to his home address, but

(b) returns to his home address on a date other than that notified,

the relevant offender must notify the date of his actual return to the police within 3 days of his actual return.

(7) Nothing in this section requires an offender to notify any information which falls to be notified in accordance with a requirement imposed by regulations under section 86.

(8) In calculating the relevant period for the purposes of this section there is to be disregarded—

(a) any period or periods which the relevant offender intends to spend at, or travelling directly to or from, an address of the kind mentioned in section 83(5)(g) notified to the police under section 83 or 85;

(b) any period or periods which the relevant offender intends to spend at, or travelling directly to or from, any premises, if his stay at those premises would give rise to a requirement to notify the address of those premises under section 84(1)(c).

(9) This section applies in relation to any relevant period which begins on or after the day after the coming into operation of section (Notification requirements: absence from notified residence) of the Criminal Justice Act (Northern Ireland) 2013.”.

(3) In section 87(1) and (4) (method of notification) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”.

(4) In section 91 (offences)—

(a) in subsection (1)(a) after “85(1)” insert “, 85A(2) or (6)”;

(b) in subsection (1)(b) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”;

(c) in subsection (3) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”.”

The following amendments stood on the Marshalled List:

No 2: In clause 3, page 2, line 31, leave out "an EEA State other than" and insert "a country outside". — [Mr Ford (The Minister of Justice ).]

No 3: In clause 3, page 2, line 32, leave out "an EEA State other than" and insert "a country outside". — [Mr Ford (The Minister of Justice ).]

No 4: In clause 3, page 2, line 35, leave out "an EEA State other than" and insert "a country outside". — [Mr Ford (The Minister of Justice ).]

No 5: In clause 3, page 3, line 14, leave out "State" and insert "country". — [Mr Ford (The Minister of Justice ).]

No 6: In clause 3, page 3, line 24, leave out

"to the modifications set out below"

and insert

"—

(a) in all cases, to the modifications set out below; and

(b) in a case where the first condition mentioned in subsection (2) is met by reason of a conviction, finding or caution in a country which is not a member of the Council of Europe, to the further provisions in section 96AA." — [Mr Ford (The Minister of Justice.]

No 7: In clause 3, page 4, line 18, leave out "State" and insert "country". — [Mr Ford (The Minister of Justice ).]

No 8: In clause 3, page 4, line 24, leave out "an EEA State other than" and insert "a country outside". — [Mr Ford (The Minister of Justice ).]

No 9: In clause 3, page 4, line 25, at end insert

"Convictions, etc. in a country which is not a member of the Council of Europe

96AA.—(1) The further provisions referred to in section 96A(5)(b) are as follows.

(2) Where P is charged with an offence under section 91(1)(a), it is a defence for P to prove that the relevant conviction, finding or caution falls within subsection (4).

(3) P shall cease to be subject to the notification requirements of this Part by virtue of section 96A if the High Court, on an application made by P in accordance with rules of court, so orders; but the High Court shall not make such an order unless it is satisfied that the relevant conviction, finding or caution falls within subsection (4).

(4) A conviction, finding or caution falls within this subsection if the relevant court is satisfied—

(a) that any investigations or proceedings leading to it were conducted in a way which contravened any of the Convention rights which P would have had if those investigations or proceedings had taken place in the United Kingdom; and

(b) that contravention was such that, in the opinion of the court, the conviction, finding or caution cannot safely be relied on for the purposes of meeting the condition in section 96A(2).

(5) In this section—

“the relevant conviction, finding or caution” means the conviction, finding or caution by reason of which P is subject, by virtue of section 96A, to the notification requirements of this Part;

“the relevant court” means—

(a) in a case to which subsection (2) applies, the court before which P is charged;

(b) in a case to which subsection (3) applies, the High Court." — [Mr Ford (The Minister of Justice ).]

No 10: In clause 3, page 4, line 26, leave out from beginning to "section 97" in line 29 and insert

"(3) Omit sections 97 to 101 (notification orders).

(4) Subsection (3) (and the related repeals in Part 1 of Schedule 4) do not affect the validity or effect of any order made under section 97 or 100". — [Mr Ford (The Minister of Justice ).]

No 11: In clause 3, page 4, leave out line 33 and insert "for “98” substitute “96A(6)” ". — [Mr Ford (The Minister of Justice ).]

No 12: In clause 5, page 6, line 2, leave out paragraph (a). — [Mr Ford (The Minister of Justice ).]

No 13: After clause 6 insert

"Trafficking offences to be triable only on indictment

6A.—(1) In section 57(2) of the Sexual Offences Act 2003 (trafficking into the UK for sexual exploitation) omit paragraph (a).

(2) In section 58(2) of that Act (trafficking within the UK for sexual exploitation) omit paragraph (a).

(3) In section 59(2) of that Act (trafficking out of the UK for sexual exploitation) omit paragraph (a).

(4) In section 4(5) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation) omit paragraph (b).

(5) This section does not apply in relation to an offence committed before this section comes into operation." — [Mr Ford (The Minister of Justice ).]

No 35: In schedule 4, page 24, line 17, at end insert

"PART 1

SEX OFFENDERS

Short Title

Extent of Repeal

The Sexual Offences Act 2003 (c. 42)

Sections 97 to 101

In section 136(8) “101”. "

— [Mr Ford (The Minister of Justice ).]

No 36: In schedule 4, page 24, leave out line 25 and insert

"In section 4(5), paragraph (b) and the word “or” immediately before it.

Section 5(1).

Section 5(13)."

— [Mr Ford (The Minister of Justice ).]

No 37: In schedule 4, page 24, line 26, column 2, at beginning insert

"Section 57(2)(a).

Section 58(2)(a).

Section 59(2)(a)."

— [Mr Ford (The Minister of Justice ).]

David Ford (Alliance, South Antrim)

The new clause inserted by amendment No 1 will add to the range of information that a convicted sex offender is required to give to the police if they are subject to the notification framework set out in Part 2 of the Sexual Offences Act 2003. That framework is designed to assist the police to protect the public and prevent crime. The new provision will require sex offenders to notify the police of travel plans within the UK.

We know that sex offenders travel to commit crimes, and, too often, we have seen horrific sexual murders take place in areas that were not the home of the offender. One example was Robert Black's conviction in 2011 for the murder of Jennifer Cardy. The current notification regime addresses that issue in two ways. First, it requires offenders to tell the police in advance if they plan to travel to destinations outside the UK. This aims to make it more difficult for sex offenders to offend abroad by travelling to other jurisdictions where exploitation of children for sexual abuse is all too prevalent. There are many examples of such cases. The law can also prevent an offender from travelling to any country or all countries outside the UK for the purposes of protecting children from serious sexual harm. Secondly, the law requires offenders to tell the police of any address or addresses in the UK where they have stayed for at least seven days within a 12-month period. Thus, police will know the likely or possible whereabouts of an individual if he is not at his main address. This is all useful information for the police to have to prevent crime and protect the public.

There is one loophole apparent in the provisions that this amendment seeks to address. The police brought this to our attention as the result of a particular case where an offender spent a large amount of time away from his home address but had not registered a second address. Although no offending behaviour was identified in that case, it became clear that those who, for example, travel with a touring caravan or stay at bed and breakfast accommodation for no longer than six nights at a time can be anywhere in the UK for any length of time without any requirement to tell the police. Since then, my officials have worked with the police and other key stakeholders to address the issue. The emerging proposals were shared with the Justice Committee, and members have been supportive. The resulting amendment before the House today aims to provide a method to plug the identified gap.

The provision will require an offender to notify the police in advance of their intention to travel away from their registered home address for more than three days. That will not be necessary if they are going to stay at another registered address or if they will be required to notify that address under existing law. In other words, if they are simply going to travel from place to place for short periods, they must at least tell police in advance of their plans. Such a requirement can never ensure that the police will know where an offender is all the time. That is an impossibility. Of course, the provision is only as good as the information that the offender can give at the time. However, it will at least allow the police to know that one of the notified offenders is travelling to another part of the UK and, where applicable, to inform the other police service of the likely presence of a known sex offender in that area. It may also allow the police to intervene if an offender plans to go somewhere where, the police believe, the offender may pose a specific risk, such as a theme park, perhaps.

I have consulted the Attorney about this provision. Although cautioning that the measure may draw close to a disproportionate interference, he considered that the proposed restriction on private life is likely to withstand a challenge on article 8 grounds on the basis of the legitimate aim of crime prevention. Our aim is to take effective but proportionate measures to ensure the safety of the public from harm, and I consider this measure to meet that aim.

The second group of amendments — Nos 2 to 11 — are to the sex offender provisions and extend the provision in clause 3 to require offenders with convictions from all other countries, not just those within the European Economic Area (EEA), to notify the police if they are in Northern Ireland. The existing provision is limited to those with convictions from EEA countries. This was a result of concerns expressed to me by the Attorney General, who felt that a wider application would not be compatible with article 6 of the European Convention on Human Rights (ECHR). However, the limited application of the provision did not find support from members of the Executive when I asked for approval to introduce the Bill. I therefore gave a commitment to work with the Attorney and with the Justice Committee during the passage of the Bill to bring forward an amendment to allow for a single, enhanced process for attaching notification. My Department worked with the Attorney's office and brought proposals to the Justice Committee. The amendment provides that a sex offender with a conviction from any country outside the UK will be statutorily bound to tell the police of his presence in Northern Ireland rather than having a court order made, as at present. However, to address the Attorney's article 6 concerns, there will be safeguards for those from countries outwith the Council of Europe. They will be able to apply to the High Court for the removal of any notification requirements on the basis that the conviction from their state of origin was unsound due to human rights abuses. There is also a defence on identical grounds against any charge of failure to comply. The Justice Committee supported the amended proposals, which we consider to be a proportionate method to meet the aim of improving public protection.

I will turn to amendment Nos 12 and 13, which make human trafficking offences triable on indictment only. Amendment No 13 inserts a new clause that amends sections 57, 58 and 59 of the Sexual Offences Act 2003 and section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to remove the existing provision for summary convictions for human trafficking offences. At present, a trial may be directed to either the Magistrates' Court, where the maximum term of imprisonment is six months, or to the Crown Court, where the maximum term of imprisonment is generally 14 years. The proposed new clause will ensure that, from commencement, all future offences of human trafficking, whether for sexual or other forms of exploitation, are triable on indictment in the Crown Court and will attract a maximum sentence of 14 years' imprisonment. A further consequence of the amendment is that sentences for human trafficking offences will automatically be included in the scheduled offences referable to the Court of Appeal by the Director of Public Prosecutions on the grounds that he considers sentences unduly lenient. I am sure that Members will welcome that particular provision.

In the course of the consultation on the Bill, strong views were expressed that sentencing for human trafficking offences should be an effective deterrent to this heinous crime. Those views were echoed by the Justice Committee, which emphasised its desire to see the strongest possible legislation introduced in Northern Ireland on human trafficking. Recent judgements in Northern Ireland have also reinforced the seriousness of human trafficking. In one case, Judge Burgess noted:

"Any case involving the trafficking of other human beings is a serious case and will merit a sentence which is proportionate to the offending and is a genuine and real deterrent."

This, of course, is also in line with the spirit of the EU directive that highlights the gravity of the offence. I believe that the changes provided for in amendment Nos 12 and 13 reflect the seriousness of the offence and will act as an effective deterrent to traffickers. I therefore commend amendment Nos 1 to 13 and Nos 35 to 37 to the House.

Paul Givan (DUP, Lagan Valley)

Before addressing the first group of amendments, with your indulgence, Mr Speaker, I wish to make a few general remarks about the Bill in my capacity as Chairman of the Committee for Justice. Although the Committee for Justice has agreed the clauses in the Bill as drafted or as drafted with proposed departmental amendments, as I indicated at Second Stage, the reality is that the Bill is considered a necessity rather than one that is particularly welcome. It is fair to say that the only parts of the Bill that had the wholehearted support of the Committee were the provisions introducing new offences to tackle human trafficking and sex offender provisions that will improve public protection arrangements. The Bill has, however, provided an opportunity for the Committee to table an amendment to do away with the archaic offence of scandalising the court. I will say more about that during the debate on the second group of amendments.

Given the importance of the three policy areas covered by the Bill — changes to the law on sex offender notification requirements; the introduction of two new offences aimed at preventing and combating human trafficking and protecting its victims; and the establishment of a new legislative framework for the retention of fingerprints and DNA samples and profiles — the Committee extended the Committee Stage of the Bill by a number of weeks to enable detailed and careful scrutiny of the 10 clauses and the four schedules. The Committee also considered other proposed provisions on unrelated issues that the Department indicated it intended to bring forward at Consideration Stage.

The Committee sought a wide range of views as part of its deliberations on the Bill and requested evidence from interested organisations and individuals, as well as from the Department of Justice. Written responses were received from 27 individuals and organisations, and the Committee took oral evidence from eight organisations. The written and oral evidence raised a number of issues and concerns, particularly in relation to human trafficking and the proposed new fingerprint and DNA retention framework.

I thank the members of the Committee for their contributions to the discussion on and consideration of the Bill at Committee Stage. The detail in the Committee report demonstrates that we scrutinised and considered all aspects of the Bill in a full and thorough manner. I also thank the witnesses, who provided useful written and oral evidence, and the departmental officials, who provided clarification and additional information to the Committee throughout the process.

I turn to amendment No 1. During Committee Stage, the Department advised the Committee of its intention to table the amendment, which will make it necessary for a sex offender to notify the police if he plans to be away from his home address for more than three days without leaving the United Kingdom. That provided us with an opportunity to consider it. The PSNI had drawn the attention of the Department to a perceived loophole in the current legislation, meaning that a sex offender who travelled within the UK could use a series of addresses for up to six days at a time without notifying the police. During evidence to the Committee, the Police Service explained that the issue had come to light when there had been difficulty keeping track of an offender who had travelled around the UK but had not stayed at one address for long enough to have to notify the police under the current provisions. The Committee welcomes and fully supports the amendment, as it develops and strengthens the policy in relation to notification requirements and will provide greater public protection.

The Committee also welcomes the Department's intention to introduce secondary legislation that will require an offender to notify all travel outside of the UK and not just travel of three days or more, as is currently the case. The exception to that will be cross-border travel to the Republic of Ireland, which, for practical reasons, will remain unchanged at three days or longer.

While the Committee fully supports the amendment, the same cannot be said of clause 1 and schedule 1, which provide for a review mechanism to enable offenders who are subject to an indefinite period of notification to apply to have the requirements reviewed and discharged after a period of 15 years from the date of initial notification or, in the case of an offender under the age of 18, after eight years. Some members, including me, supported their inclusion in the Bill only on the basis that legislative change is required to ensure that Northern Ireland complies with the 2010 Supreme Court ruling in the case of R and Thompson v Secretary of State for the Home Department. As the Minister has already highlighted, a similar provision was opposed during the passage of the 2010 Justice Bill. Since then, a number of welcome changes have been made that are reflected in this Bill. They include an increase in the further review period from five years to eight years for offenders over the age of 18 and the inclusion in the list of criteria to be taken into account by the Chief Constable when considering an application of information relating to convictions for non-sexual offences, where behaviour since indicates a risk of sexual harm. Some of us also find reassurance in the fact that the review mechanism to be adopted in England and Wales now more closely mirrors the one in front of us today with regard to an application being made to a court for a further determination rather than by way of a judicial review, which was initially considered for that jurisdiction.

I move on to amendment Nos 2 to 11. At Second Stage, the Minister highlighted the fact that the Executive had made it clear that they could not support the introduction of the Bill unless he gave a commitment to table an amendment to clause 3 to allow for a single enhanced process for attaching notification to offenders with convictions from outside the United Kingdom, rather than just from another European Economic Area country, which is what the clause currently covers on the advice of the Attorney General, who was concerned that the Bill would not be compliant with ECHR obligations and would, therefore, be outside the competence of the Assembly if the statutory requirements were placed on offenders from all states outside the United Kingdom.

The Department provided the Committee with information on options to amend clause 3, together with the benefits and drawbacks of each approach. The amendments before us today represent an approach that addresses the concerns of the Executive and the Attorney General. It will place a statutory requirement on offenders with convictions from countries outside the United Kingdom to notify the police after being in residence in Northern Ireland for seven days but provide safeguards to enable offenders to seek to have the requirements discharged by the court if they believe that their conviction in the other country was obtained by abuse of convention rights or to deploy such a defence if charged with an offence of failing to comply with the notification requirements. The Committee is content that this twin approach addresses the issues that have been raised and supports the amendments.

I now turn to the amendments in this group that relate to the human trafficking provisions. Clauses 5 and 6, which cover human trafficking, attracted substantial responses from a number of organisations during Committee Stage. Although there was broad support for the two new human trafficking offences created by the clauses, other issues were raised in the evidence received by the Committee that are not covered in the Bill.

I will deal with one of the most important issues first, which is addressed by amendment Nos 12 and 13. At the outset, the Committee made it very clear to the Minister that it wanted to see the strongest possible legislation introduced in Northern Ireland in relation to human trafficking. The Committee expressed concerns to the Department about the possibility that, under the Bill as currently drafted, conviction of human trafficking offences would attract a sentence of less than six months or a fine. The Committee felt very strongly that this did not reflect the gravity of the offences. The Committee asked whether the Department had given any consideration to including a mandatory minimum custodial sentence in the legislation. In response, the Department advised that the Minister fully supported the Committee's strongly held view that Northern Ireland should be seen as a hostile place for traffickers and noted that sentencing was one of the tools for tackling this crime. However, the Minister felt that sentencing in an individual case should be a matter for an independent judiciary and highlighted the fact that mandatory minimum sentences allowed no room for discretion and made no allowance for the exceptional case.

The Department subsequently indicated that, in response to the Committee's concerns, the Minister was considering whether there was a case to make the human trafficking offences indictable only, which would mean that offences would be heard in the Crown Court, where the maximum term of imprisonment is 14 years. As a result, the Minister has tabled amendment Nos 12 and 13, which will make the human trafficking offences in the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and the new offences created by this Bill triable on indictment only. The Committee is of the view that this more adequately reflects the seriousness of the crime and, therefore, supports the amendments.

In the evidence received by the Committee it was clear that a number of voluntary organisations felt that there was an opportunity to put additional human trafficking measures into legislation by way of the Bill, particularly in relation to protection, assistance and support for victims, including children, training and the availability of proper investigative tools, which they felt the Department had missed. In fact, one of the main criticisms of this area of the Bill was that the Department had adopted a minimalist approach in implementing the EU directive on human trafficking. The Department refutes that claim, indicating that further legislative provision is not required to implement the EU directive, except in the area of support for victims, where consideration is being given to subordinate legislation. It outlined other work that is being taken forward in a wide range of areas. The Committee, however, recognises the merit in making further legislative provision in the additional areas mentioned. It has agreed that it will give further consideration to the matter in the context of Lord Morrow's private Member's Bill on human trafficking, once it is introduced in the Assembly. The Committee will also closely scrutinise the secondary legislation to be brought by the Department to strengthen support for victims of human trafficking.

Another issue that arose during the Committee's scrutiny of this area of the Bill was the complex, piecemeal approach to human trafficking legislation. In particular, there was concern that that approach to legislative reform could lead to a complex and potentially weak legal framework that would make it more difficult for law enforcement officials and legal practitioners to combat human trafficking and to protect and support victims. The Committee understands that the proposals in the Bill seek to copy England and Wales in the substance of the changes to be introduced but achieves that through a different means with the outcome that more trafficking offences will be applicable in Northern Ireland than in England and Wales. Concerned that that might cause confusion for victims and create difficulties for law enforcement officials, the Committee raised the matter with the Department. In response, the Department highlighted that the clauses in the Criminal Justice Bill, although drafted in a different style, cover the same range of criminal activities as in England and Wales and mirror the additional provisions introduced in Scotland in relation to the extraterritorial jurisdiction. The Department also indicated that none of the law enforcement agencies that work with the legislative framework had experienced difficulties. It did, however, indicate that it may consider an exercise of consolidation of human trafficking legislation when other pressing areas of work have been completed. That will need to be kept under review, with further thought given to it if there is evidence of confusion.

The last issue that I want to cover relates to the establishment of a national rapporteur for human trafficking. Although the interdepartmental ministerial group, together with the UK Human Trafficking Centre, fulfils the UK obligations in relation to a national rapporteur, some concerns have been raised that the process is not independent of government. The evidence received suggested that countries that have created an independent overseer have seen real success in the quality of information available on human trafficking and the profile of trafficking in their Parliaments. The Committee agreed to raise the issue of an independent national rapporteur with the Minister and may wish to return to that issue during consideration of Lord Morrow's private Member's Bill.

Given our desire to see the strongest possible human trafficking legislation introduced in Northern Ireland, the Committee supports the amendments tabled by the Minister in response to its concerns regarding the sentencing framework for these offences and looks forward to considering the proposals in Lord Morrow's private Member's Bill.

Sean Lynch (Sinn Féin, Fermanagh and South Tyrone)

Go raibh maith agat, a Cheann Comhairle. I want to speak specifically to the sex offenders aspect of the Bill. The Sexual Offences Act featured in the last Justice Bill. It was not voted through as a result of a petition of concern. We now agree on the amendments to the Bill and are now satisfied that the Bill is ECHR-compliant. That is the proper basis on which the Bill should go forward.

Tom Elliott (UUP, Fermanagh and South Tyrone)

I thank the Minister for bringing the Bill forward and progressing issues such as this within the Northern Ireland Assembly and our framework for making powers and legislation. We want to ensure that we, in Northern Ireland, are not seen to be soft on crime or criminals. I hope that the Bill will help us to achieve that. We must also ensure that we remain compliant with human rights legislation. However, it is important that all citizens and, indeed, visitors are given the maximum protection by law, irrespective of what that requires.

To stop human trafficking and sexual exploitation, we need legislation that will inhibit this scourge on our society. We must take every possible step to ensure that those involved in such criminal activity are stopped.

I am pleased that the amendments generally widen the powers of the authorities to deal with such cases. This is particularly relevant in the notification requirement when someone is absent, or will be absent, from a notified residence. Clearly, the amendments also deal with criminal activities outside the European Union. We discussed the National Crime Agency recently, and these are areas in which Northern Ireland would benefit from that agency. That is why I am so disappointed that Members on the opposite side of the House refused to support the proposal for the National Crime Agency to operate here. I cannot understand why they did that — maybe they will be prepared to tell us today — when we could have assistance on issues such as the ones addressed in the Bill —

William Hay (Speaker, Foyle)

I encourage the Member to stay within the Bill. We would certainly widen the debate if we went down the avenue that the Member has just gone down. Let us try, as far as possible, to deal with the Bill.

Tom Elliott (UUP, Fermanagh and South Tyrone)

Thank you very much for that guidance, Mr Speaker. It is much appreciated.

The Bill will have very wide-ranging effects in Northern Ireland. I wonder whether the Minister is preparing to table any further amendments at Further Consideration Stage. We heard the Chair of the Committee talking about Lord Morrow's Bill and whether any other aspects could be incorporated into it. So I would be interested to hear from the Minister on that. The Ulster Unionist Party supports the Bill and the amendments in this group.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

It is important to note the work of the Committee, in conjunction with the Department and the Minister, on the Bill. There has been a very good rapport between the Committee and the Minister on the amendments, particularly those in group 1. That is a good example of working together and building consensus.

Clearly, there are concerns about sex offenders and their travels, both within this country and abroad. It is important that notification requirements are made stricter so that one can prevent offences being committed, particularly against children. All of us in the House are very concerned about the welfare of children. We in the SDLP welcome this aspect of the Bill. We believe that the improvements that have been made to the Bill, particularly those that emanated from the Committee, in association with outside groups who informed the Committee very well on the issues that arose, are a good example of working together.

I understand the concerns that people had about the Supreme Court decision in R and Thompson v Secretary of State, which dealt with the indefinite nature of sex offenders being on the sex offenders' register. I understand that people felt that, because of this case, there would be some relaxation in the notification requirements and in the maintenance of that register. However, the Bill has made reasonable and sensible changes: the periods are reasonable and sensible, and the proposed mechanism is a very sensible way of going forward. It provides the public with reassurance that we are not being light on sex offenders and that they will still have strenuous conditions to comply with. That is worthy of note, and we are doing useful business in translating the effects of R and Thompson into law in this jurisdiction.

(Mr Deputy Speaker [Mr Dallat] in the Chair)

I believe the human trafficking provisions to be sensible, and Members should be confident that that is the right approach. I think that there is a general satisfaction among members of the public and the police with what is proposed, and we are fulfilling our mandate from the public by providing them with protection and by being compliant with human rights. We have taken on board what the Human Rights Commission said and what the Attorney General said about our international obligations, and we should be satisfied with the first group of amendments.

Maurice (DUP, Fermanagh and South Tyrone)

I am pleased to have the opportunity to contribute to the Consideration Stage of the Criminal Justice Bill.

My remarks will focus in particular on clauses 5 and 6 and the Minister's proposed amendments to them. Like many Members from all sides of the House, I am very much in favour of what is proposed under clauses 5 and 6. The two clauses will bring Northern Ireland into line with article 10 of the European directive on human trafficking and are undoubtedly a positive step forward in tackling that heinous crime in Northern Ireland.

I further welcome the Minister's decision to introduce amendment No 13, and the decision to put into statute a requirement for all human trafficking offences to be triable only on indictment will ensure that appropriate penalties are handed down for those who are convicted of such offences. Members from all sides of the House will agree with the introduction of that amendment, and I thank the Minister for bringing it forward.

I also want to put on record my thanks to the Minister for his decision to introduce an annual human trafficking action plan, which will be reviewed annually. I would prefer to see such a plan placed on a statutory footing, but I believe that it is a positive step forward that will improve the response of the Executive and law enforcement agencies to human trafficking in the Province. In the light of the Minister's decision, I will review whether to include clause 13 of my draft Bill in the final Bill, which will be brought to the Assembly in the very near future.

However, in spite of those positive steps, I must put on record my great disappointment with the minimalist approach that the Minister has taken in the Bill to ensuring compliance with the European directive on human trafficking. It is patently obvious that he has largely decided to follow the coalition Government at Westminster on the implementing measures to ensure that Northern Ireland is compliant with the EU directive. The Bill fails to ensure compliance with the directive in numerous areas, and I will outline only a few today.

The Bill does not set out in statute a list of aggravating factors that courts need to take into account in sentencing those found guilty of human trafficking and does not ensure in statute that special measures will be provided to victims of human trafficking as of right, as is suggested by GRETA and the European directive. The Bill does not ensure, as article 9.1 recommends, that proceedings should be dependent on the reporting or accusation by the victim and that proceedings should be able to continue if a victim withdraws his or her statement.

Furthermore, the Bill does not seek to introduce a legal advocate for children under the age of 18, which is recommended by articles 14.2 and 16.3 of the European directive and by the Group of Experts on Action against Trafficking in Human Beings (GRETA) report on this subject. Furthermore, the Bill does not seek to introduce an independent national rapporteur, as is set down by article 19 of the directive. The Minister continues to maintain that the interdepartmental ministerial group is sufficient for this task, but I do not see how it can be argued that Ministers who set policy in this area can be described in any way as independent.

I believe that we have been elected to this House to make real differences to the lives of the most vulnerable. It is apparent to Members from all sides of this House that victims of human trafficking and exploitation in this Province are some of the most vulnerable people on our shores. It is incumbent on us that we seek to ensure that the most effective measures are in place to protect them and support them. It is for this reason that I have put down my own human trafficking and exploitation Bill, which will be coming to the Assembly very shortly. I hope that the Assembly will back my Bill, which seeks to ensure that Northern Ireland is fully compliant with the EU directive on human trafficking.

I thank the Minister for introducing the measures that are outlined in clauses 5 and 6 of the Bill, for introducing amendment No 13 and for his decision to introduce an annual plan with regard to human trafficking. However, I strongly believe that further action is necessary, and I urge the Minister to consider further the measures that I have outlined in my Bill. I would be failing in my duties if I did not say that there are many gaps in this Bill, and, hopefully, my private Member’s Bill will seek to close those gaps.

Stewart Dickson (Alliance, East Antrim)

I am delighted to speak on the Bill's Consideration Stage, because it has been and is an important piece of work. As the Chair and others said, the Committee has worked very well in the scrutiny phase of the Bill, working with the Minister, the Department and, most importantly, the stakeholders who have an interest in the areas that we have been dealing with in this group of amendments. I thank the hard-working Committee staff for the work that they have done, and I thank all those who contributed to get the Bill to the point where we are today.

The Minister has gone through and explained the amendments that he has brought forward, but I will add the weight of my comments to a few of them. It is important to recognise that the provision for notification by sex offenders, which has been raised by every Member who has spoken thus far, will be unique to Northern Ireland, and it is encouraging that the Assembly is demonstrating its ability to provide legislation not only for people in this jurisdiction but to lead the way. It will be interesting to see whether other jurisdictions in the United Kingdom choose to take interest in what we are doing. It is encouraging that the police brought this to our attention and that the Department has acted on that information. It is encouraging that we are now sitting in this place legislating for that. As well as providing additional protection to the public and assistance to the police, it demonstrates the continued benefits of devolved policing and justice.

I also welcome the amendments to clause 3, which should offer the appropriate protection, while providing for people from states with poor human rights standards who may have been wrongly convicted. It provides a clear and real opportunity for those matters to be dealt with. The NSPCC in particular highlighted the importance of the provision requiring offenders to notify the police on entry to Northern Ireland, as the current arrangements placed unnecessary responsibility on the police to find those offenders and to get them to a register and apply a notification order. The Minister has very helpfully explained to the House that the existing provision is limited because of the concerns that were expressed by the Attorney General, but I thank the Minister and the Attorney General for working together and working out a resolution to this matter. They have worked out the difficulties and worked through this in the scrutiny process with us in the Committee.

I turn to amendment Nos 12 and 13 and welcome the proposals that all human trafficking offences will now be tried on indictment in the Crown Court. This sends out a very clear message that offenders can be sentenced for up to, generally, 14 years.

In recent years, the horrors of human trafficking have become more and more apparent, and society rightly calls, and has called for, a robust response. It is imperative that those crimes are treated seriously and that the sentences reflect the gravity of the offences. I welcome that those sentences will be included in the schedule of offences that can be referred to the Court of Appeal on the grounds that they may be considered unduly lenient. I think that that also sends out a very clear message when dealing with those matters.

It is vital that we make clear that we abhor at all times human trafficking and all that flows from it and that it will not be tolerated in Northern Ireland. Northern Ireland is sending out a very clear message today that we are closed to human traffickers. That is the objective and the core of amendment Nos 12 and 13.

I support the amendments, and I believe that they will strengthen the Bill. The Alliance Party will support this group of amendments.

Rosaleen McCorley (Sinn Féin, Belfast West)

Go raibh maith agat, a LeasCheann Comhairle. Ba mhaith liom tagairt a dhéanamh do na clásail a bhaineas le human trafficking.

I would like to refer to the clauses relating to human trafficking. Like others on the Committee, we share concerns about the rising incidence of human trafficking, and we wish to see what measures need to be taken to address it. Therefore, we welcome the recommended changes, and we would like to see the law strengthened in that regard.

Tacaímid leis na leasuithe. We support the amendments.

David McIlveen (DUP, North Antrim)

I support this part of the Bill.

I now chair the all-party group on human trafficking. The issues on the trading of human beings as objects has been well rehearsed in the Assembly, so I do not think that it is necessary to go down that road again. Obviously, I take heart in hearing from my colleague Lord Morrow, because I believe that some additional tightening-up is required for this whole issue and that Lord Morrow's Bill will seek to do that.

We have to acknowledge that considerable advances have been made. I support, in particular, the provision that states that:

"A person found guilty of an offence under this section is liable ... on conviction on indictment, to imprisonment for a term not exceeding 14 years."

We have a position at the minute whereby someone who has been trafficking human beings can go before a magistrate and effectively be viewed in the same way as someone who has committed a speeding offence. We should bear in mind that article 4 of the European Convention on Human Rights states very clearly that the trading of human beings and forced labour are grotesque crimes. I think that it is essential that higher penalties are imposed and that this place is made as hostile for human traffickers as we can possibly have it.

Moving forward, we also need to look at how this whole business is promoted. I obviously support the fact that we are looking at a private Member's Bill that will effectively make it illegal for someone to pay for sexual services. However, I think that, at a later stage, we will need to look at how we can deal with the advertising of sexual services. I am thinking particularly about the idea of escorts. I think that there is a traditional view of an escort, who used to be a rather lovely person for somebody to spend an evening with. Obviously, the 21st century definition of the word "escort" has changed somewhat. We now have the word "escort" used as a euphemism to try to legitimately put forward services that also cover human trafficking. So, I think that we will have to look at that issue to see how the advertising of sexual services and of people who could be victims of trafficking may be looked into in the future.

We need to keep our finger on the pulse of the issues that are before us. I believe that the Bill implements a number of recommendations that have already been put forward, particularly from the GRETA report. We need better central data collection for this issue. This is still a problem. We need to look at how quickly victims are repatriated, and those are all bigger issues specifically around human trafficking that need to be addressed. Unfortunately, the facts in Northern Ireland speak for themselves. We have seen only two convictions for human trafficking. More has to be done, given the problem that we have here.

I believe that we have certainly come far in the few years that this has been put at the top of the agenda with the all-party group and now the private Member's Bill. However, we have to continue to make sure that we are not a gateway to the UK. We have been identified as a weak link when it comes to transporting victims of trafficking from other parts of the European Union into this part of the United Kingdom, and then on to England, Scotland and Wales. We have to recognise the unfortunately unique position that we find ourselves in geographically with having another European Union country with a land border here in Northern Ireland.

I support the Bill and the amendments, and commend them to the House. However, I hope that we will continue to deal with the grotesque issue of human trafficking and that support will be given, as Lord Morrow has said, for his Bill, which, I believe, will further tighten up the law around that issue.

Jim Allister (Traditional Unionist Voice, North Antrim)

I generally welcome the Bill. In this group of amendments, I particularly welcome the moves being taken to deal more adequately with trafficking offences, the removal of those offences to the Crown Court, and the capacity to make those referable by the authorities in terms of the adequacy of sentences. Those are sensible, wise and necessary provisions.

In looking at the detail of amendment No 1, there are a couple of issues that I would like the Minister to address and to satisfy himself that the clause, as drafted, is exactly as intended and will not create unwarranted circumstances that could be avoidable. Amendment No 1, as I understand it, will, understandably, introduce the requirement for sex offenders to give notification of their travel and accommodation plans if they are travelling for more than three days. That will apply whether they are going to Suffolk, Portrush or anywhere in the United Kingdom. The requirement in amendment No 1, under what will be section 85A(2) of the Sexual Offences Act 2003, is that the relevant offender, not less than 12 hours before leaving his home address, must notify the police of the required information.

The circumstance that I want to address the Minister's mind to is this: what happens when someone is faced with an emergency requirement to travel? They are, in the terms of the legislation, a sex offender. I remind the House that the ambit of sex offender is huge under schedule 3 of the 2003 Act. It includes the person who has a conviction for unlawful carnal knowledge with a girl under the age of 17 at the time in Northern Ireland and who, himself, was over 20. That person attaches to himself the categorisation of sex offender. Some years may have passed, and they may be a much more settled individual. Yet if that person, in a family situation, has an emergency or is required, because of a family accident, to travel to Scotland or Fermanagh to be with someone who has been critically injured in an accident, they must go. However, they cannot go for 12 hours because they must let 12 hours pass before they can notify. Is that really what the Minister intends?

I understand perfectly that the recidivist sex offender must and should be sat upon very severely by the law in terms of their movements. That is essential, necessary and right. But when we draft laws, we draft them for the wide ambit of people to whom they apply. They also apply to individuals at the margins, both in time and quality, of the offending. I ask the Minister whether it is necessary on that detail to have that restriction, that time limitation of not less than 12 hours before they can leave their home address to deal with what could be a family emergency. That is something that the Minister should look at.

Remember, too, that the penalty in some sex offending that puts you on the register can be a caution. That can be a consequence that makes you into a sex offender. So I am not dissenting from the wisdom and necessity of requiring sex offenders to give notification. I am questioning whether, in every circumstance and every case, a blanket application such as here is doing justice to the circumstances. I invite the Minister to respond and consider that.

I invite him also to tell the House: what is the parallel provision with the person faced with the need to travel within Northern Ireland, to which this new sanction will apply, and the person desiring to travel to, say, Donegal? If someone wants to go to Portrush for three days, they must notify. If they want to go to Donegal for three days, is it the same provision? Must they equally notify? Perhaps the Minister will clarify that, because it is important that there is some parity of approach on these matters.

You may have people who, at relatively short notice, are offered three days' work somewhere. They go, they stay, they work. Are they subject to the same provisions whether that job is across the border or in Northern Ireland? Have we got that parity of provision?

I stress that I very much support the general thrust of the Bill, particularly the provisions on trafficking. Apart from those few remarks, I am very happy to support the direction of travel of the Bill.

David Ford (Alliance, South Antrim)

I thank those Members who took part in this section of the debate. I also thank those who took part in the work of the Committee, and my staff who engaged with the Committee. As has been acknowledged by a number of Members around the House, there has been very positive and useful engagement between the Department and the Committee, which has produced a set of largely agreed amendments.

On the specific issue of the first group of amendments relating to sex offenders, I believe that we are showing in the Bill that our primary aim is to continue to offer the best possible protection for all the community in Northern Ireland from the risk posed by sex offenders.

The notification requirements of the Sexual Offences Act 2003 are important to realising that aim. I wish to acknowledge that, in his contribution, the Committee Chair noted that some members were not entirely enthusiastic about that provision, but have accepted that it is balanced and necessary, given our obligations. As other Members highlighted, notably Alban Maginness and Stewart Dickson, it is a matter of the balance of our obligations.

Specifically, the new clause on travel within the UK, which has just been referred to by Mr Allister, allows us to add to the effectiveness of the information that has to be given to the police and represents a balanced response to the current gap in the overall provisions. My understanding, as I am sure some Members will be pleased to regard, is that travel to the Republic of Ireland, including short distances across the border into Donegal, is already covered by provisions in legislation relating to international travel. This is about ensuring that we maintain similar provisions within the United Kingdom. So, there is already provision if somebody is going to Dunfanaghy. The issue now is to ensure that we have suitable provisions should they go to Downpatrick.

It has been recognised that extending the process to offenders coming from all jurisdictions outside the UK is a positive step forward; one which required considerable work by the Attorney General and the Committee. I am grateful for what has been done to ensure that we strengthen our arrangements, make them more effective and enhance the ability to protect people from risk.

We have an obligation, this morning, to acknowledge the good work done by a number of agencies, led principally by the probation service and the police within the public protection arrangements; organisations that will use and enforce the legislation. The new proposal will underpin the work that they do to make the difference in keeping society safe.

It is fair to say that there was more discussion on the general issue of human trafficking than on the sex offender notifications. There are clearly issues that Members see as going beyond proposed amendment Nos 12 and 13. However, there does seem to be a general welcome for those amendments, in particular to ensure that we regard the offence of human trafficking sufficiently seriously that it is triable only on indictment in the Crown Courts. Mr Elliott asked whether I am planning further amendments in that respect. The answer is no, I am not. I believe that the provisions we already have in statute and the provisions we are introducing in the Bill as amended reflect the seriousness of human trafficking offences in terms of the consequences for victims and send out the strong message that this abhorrent crime will not be tolerated in Northern Ireland.

Lord Morrow asked a series of questions, and Paul Givan, as Committee Chair, started off with a reference to the national rapporteur. I will deal briefly with some of those points, although I suspect that it is an issue that is likely to come before the House again in different guises.

The specific point of the directive for a national rapporteur is that it is for a national rapporteur, not a regional rapporteur. We do not have the ability to establish a national rapporteur. As a member of the Home Office-led interdepartmental ministerial group on human trafficking, I argued at the first meeting I went to for a wider involvement of NGOs in that work; specifically, as a minimum, the NGOs that provide direct services to the victims of trafficking. It was an argument made by some other Ministers. It was an argument that did not win favour with the Home Office, which provides the lead for the UK as a whole. We may wish to see greater provisions around the national rapporteur, but that is a matter that lies in the gift of the Westminster Parliament and the Home Office. It is not something that we can deal with here.

f

However, I reject the suggestion that what the Department of Justice is doing is a minimalist approach to legislation, simply mirroring that of the Government of England and Wales, which is, in that context, what the Home Office largely is. I do not believe that that is the case. In many ways, the provisions that we have put in the Bill and those that are already in place in Northern Ireland go significantly beyond the provisions for England and Wales. For example, we have implemented some of the discretionary issues referred to in the EU directive, not merely the mandatory ones, so that we extend the law to habitual residents of Northern Ireland and to bodies incorporated under the law of any part of the United Kingdom. That is going beyond a minimalist approach. The maximum penalty for human trafficking offences in Northern Ireland being set at 14 years and the guarantee that all offences will go to the Crown Court exceeds the mandatory requirement under the EU directive. Ensuring that trials are only on indictment will guarantee and underpin that that is how we see things there.

I have also said that I am looking at the option of secondary legislation for putting assistance and support for victims during the recovery and reflection period on a statutory basis, and my officials are examining how that would work. The administrative arrangements for support for victims, again, go beyond the minimum 30-day requirement that exists under the directive. These measures, and anything we propose, have to add to the existing position and not simply replicate what exists in other places.

Similarly, Lord Morrow raised the issue of a legal advocate for children. That is perfectly reasonable, but it is a matter for the Minister of Health, Social Services and Public Safety and not for the Minister of Justice. I understand entirely the motivation, but I cannot interfere with another Department on that.

Mr McIlveen raised the issue of there having been only two convictions for human trafficking in Northern Ireland. That, of course, is an operational issue for the relevant bodies, but there have been two prosecutions and both resulted in conviction. Other cases are in the system, and a landmark judgement has made it clear how seriously the courts take the matter. Potential victims in Northern Ireland have been rescued from trafficking. Of course, we also wish there to be prosecutions, where prosecutions are possible. I believe, however, that we are already showing, for example, in general legislation, that aggravating factors are taken into account in all criminal cases and do not need to be specified for trafficking. Special measures are available for all vulnerable victims and do not need to be added purely for victims of trafficking.

The issue of whether proceedings can continue, depending on whether a statement is withdrawn by a witness, comes within the existing prosecutorial test administered by the PPS.

All of those are key points in which matters are being dealt with, and adequately so, at present. I certainly do not wish Northern Ireland to be seen, in any way, as a friendly place for traffickers, but I do not believe that that is the case. I believe that our legislation, underpinned by what we propose today, will ensure that that message is sent out. We will continue to keep operational matters under review, without necessarily needing to say that everything needs to be in statute. Indeed, I welcome Lord Morrow's acceptance that it is not necessarily beneficial for the annual plan to be in statute. What is important is that we have the annual plan and that we show that that is an important issue for all of us.

Finally, I return to the sex offender issue and the final point made by Jim Allister about emergency travel. It appears to me that Mr Allister quite reasonably points out that the provisions of the proposed new clause are reasonable, but that there may be certain circumstances, which, I suspect, even he will agree are fairly rare, in which somebody may, because of a family illness or bereavement, wish to travel in an emergency and not be able to give 12 hours' notice. If Mr Allister is prepared to accept that we should pass this new clause today, I will certainly undertake to look to use Further Consideration Stage in the way that it is intended to see whether it is possible to introduce a further subsection that would make it clear what needs to apply should emergency travel be needed for that kind of family emergency.

Jim Allister (Traditional Unionist Voice, North Antrim)

Will the Minister give way?

David Ford (Alliance, South Antrim)

Certainly.

Jim Allister (Traditional Unionist Voice, North Antrim)

Does the Minister accept that the matter could be rectified very straightforwardly by inserting a clause to the effect that there is a defence if there is reasonable excuse. If, for instance, without reasonable excuse, someone travels without giving the required notice, they have offended the law, but, if they can show reasonable excuse, they have not offended the law. I think that something along those lines would meet the situation.

David Ford (Alliance, South Antrim)

It is always good to have a lawyer behind me, as well as the lawyers who advise me elsewhere. We can discuss the precise details of that point. Mr Allister's suggestion may well be the best way of dealing with it, but I think that there is an acceptance around the House that what is proposed is appropriate but requires a little tweaking to deal with emergency situations. I am happy to give an undertaking that we will do that and return at Further Consideration Stage, if the House agrees the new clause today.

That, I believe, Mr Deputy Speaker, has summarised the key comments that were made in the debate. I am extremely grateful for the broad support from all sides of the House for this group of amendments.

Maurice (DUP, Fermanagh and South Tyrone)

Before the Minister sits down, will he give way? He mentioned the fact that I had welcomed —

John Dallat (Social Democratic and Labour Party, East Londonderry)

Sorry, Lord Morrow. I believe that the Minister had already —

Maurice (DUP, Fermanagh and South Tyrone)

He had given way.

David Ford (Alliance, South Antrim)

Mr Deputy Speaker, if Lord Morrow wishes to intervene quickly, I am prepared to stand up again and continue with further thanks to Members.

Maurice (DUP, Fermanagh and South Tyrone)

I ask the Minister to give way. I suspect that he would. Thank you, Mr Deputy Speaker. Thanks, too, to the Minister. I just want to clarify a point. He is right as far as he goes. He said that I had welcomed the fact and had acknowledged the introduction of an annual human-trafficking action plan. However, the wee bit that he, conveniently, left out, which I did go on to say, was that I would like to have seen that put on a statutory basis. I ask the Minister to take cognisance of that.

David Ford (Alliance, South Antrim)

I thought that I had actually said that in my remarks. I certainly acknowledge that Lord Morrow believes that the annual plan should be statutory. My position is that if the Department is committed to publishing a plan annually in consultation with other elements of the justice system, it is not necessary to put it on a statutory basis. We are all agreed on the importance of a plan. We are all agreed on the importance of showing that the House and the justice system are united against those who would engage in the foul crime of trafficking. As for the precise method and whether the plan is statutory, Lord Morrow and I will have to continue to debate those issues.

Question, That amendment No 1 be made, put and agreed to.

New clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

John Dallat (Social Democratic and Labour Party, East Londonderry)

Amendment Nos 10 and 11 have already been debated and are consequential to a number of earlier amendments to clause 3. I propose, therefore, by leave of the Assembly to group these amendments for the question.

Amendment No 10 made: In page 4, line 26, leave out from beginning to "section 97" in line 29 and insert

"(3) Omit sections 97 to 101 (notification orders).

(4) Subsection (3) (and the related repeals in Part 1 of Schedule 4) do not affect the validity or effect of any order made under section 97 or 100". — [Mr Ford (The Minister of Justice ).]

Amendment No 11 made: In page 4, leave out line 33 and insert "for “98” substitute “96A(6)" “. — [Mr Ford (The Minister of Justice ).]

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

John Dallat (Social Democratic and Labour Party, East Londonderry)

Amendment No 13 has already been debated and is consequential to amendment No 12.

Amendment No 13 made: After clause 6 insert

"Trafficking offences to be triable only on indictment

6A.—(1) In section 57(2) of the Sexual Offences Act 2003 (trafficking into the UK for sexual exploitation) omit paragraph (a).

(2) In section 58(2) of that Act (trafficking within the UK for sexual exploitation) omit paragraph (a).

(3) In section 59(2) of that Act (trafficking out of the UK for sexual exploitation) omit paragraph (a).

(4) In section 4(5) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation) omit paragraph (b).

(5) This section does not apply in relation to an offence committed before this section comes into operation." — [Mr Ford (The Minister of Justice ).]

New clause ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.

John Dallat (Social Democratic and Labour Party, East Londonderry)

We now come to the second group of amendments for debate. With amendment No 14, it will be convenient to debate amendment Nos 15 to 17 and Nos 38 to 41. Those amendments deal with the release on licence of children convicted of serious crime, the examination of a defendant through a registered intermediary and the abolition of the offence of scandalising the judiciary.

I call the Minister of Justice to move amendment No 14 and to address the other amendments in the group.

David Ford (Alliance, South Antrim)

I beg to move amendment No 14: After clause 7 insert

"Release on licence of child convicted of serious offence

Release on licence of child convicted of serious offence

7A.—(1) In Article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (child convicted of serious offence) for “notwithstanding any other provisions of this Order” substitute “subject to Articles 46 to 46B”.

(2) In Article 45 of that Order after paragraph (2) insert—

“(2A) Where a court passes a sentence under paragraph (2), the court shall specify such part of the sentence as the court considers appropriate as the relevant part of the sentence for the purposes of Article 46 (release on licence).”.

(3) For Article 46 of that Order substitute—

“Release on licence

46.—(1) In this Article—

(a) “P” means a person detained under Article 45(2);

(b) “the Commissioners” means the Parole Commissioners for Northern Ireland;

(c) “the Department” means the Department of Justice; and

(d) references to the relevant part of P’s sentence are references to the part of P’s sentence specified as such under Article 45(2A).

(2) As soon as—

(a) P has served the relevant part of P’s sentence, and

(b) the Commissioners have directed P’s release under this Article, the Department shall release P on licence.

(3) The Commissioners shall not give a direction under paragraph (2) with respect to P unless—

(a) the Department has referred P’s case to the Commissioners; and

(b) the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that P should be detained.

(4) P may require the Department to refer P’s case to the Commissioners at any time—

(a) after P has served the relevant part of P’s sentence; and

(b) where there has been a previous reference of P’s case to the Commissioners under paragraph (3) or Article 46B(4), after the end of the period of 12 months beginning with the disposal of that reference.

(5) In determining for the purposes of this Article whether P has served the relevant part of P’s sentence, no account shall be taken of any time during which P was unlawfully at large, unless the Department otherwise directs.

(6) The Department may at any time release P on licence if it is satisfied that exceptional circumstances exist which justify P’s release on compassionate grounds.

(7) Before releasing P under paragraph (6), the Department shall consult the Commissioners, unless the circumstances are such as to render such consultation impracticable.

(8) Nothing in this Article requires the Department to release a person in respect of a sentence under Article 45(2) at any time when that person is liable to be detained in respect of any other sentence.

Duration and conditions of licences under Article 46

46A.—(1) Where a person is released on licence under Article 46, the licence shall, unless previously revoked under Article 46B, remain in force until the expiry of the period for which the person was sentenced to be detained.

(2) A person released on licence under Article 46 shall comply with such conditions as may for the time being be specified in the licence (which may include on release conditions as to supervision by a probation officer).

(3) The Department of Justice shall not, except in accordance with recommendations of the Parole Commissioners for Northern Ireland—

(a) include a condition in a licence on release,

(b) subsequently insert a condition in a licence, or

(c) vary or cancel any condition in a licence.

Recall of licensees

46B.—(1) In this Article—

“P” means a person who has been released on licence under Article 46;

“the Commissioners” and “the Department” have the meanings given in Article 46(1).

(2) The Department may revoke P’s licence and recall P to detention—

(a) if recommended to do so by the Commissioners, or

(b) without such a recommendation, if it appears to the Department that it is expedient in the public interest to recall P before such a recommendation is practicable.

(3) P—

(a) shall, on P’s return to detention, be informed of the reasons for the recall and of the right conferred by sub-paragraph (b); and

(b) may make representations in writing to the Department with respect to the recall.

(4) The Department shall refer P’s case to the Commissioners.

(5) Where on a reference under paragraph (4) the Commissioners direct P’s immediate release on licence under Article 46, the Department shall give effect to the direction.

(6) The Commissioners shall not give a direction under paragraph (5) unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that P should be detained.

(7) On the revocation of P’s licence, P shall be liable to be detained in pursuance of P’s sentence and, if at large, shall be treated as being unlawfully at large.”.

(4) In Article 46(3) of the Criminal Justice (Northern Ireland) Order 2008 (functions of Parole Commissioners for Northern Ireland) at the end add “or Articles 46 to 46B of the Criminal Justice (Children) (Northern Ireland) Order 1998.”

(5) Where—

(a) on commencement a person is detained in pursuance of a sentence under Article 45(2) of the 1998 Order, and

(b) the Department, after consultation with the Lord Chief Justice and the trial judge if available, certifies its opinion that, if the amendments made by this section had been in operation at the time when that person was sentenced, the court by which that person was sentenced would have specified as the relevant part of the sentence such part as is specified in the certificate,

Article 46 of the 1998 Order (as substituted) shall apply as if the relevant part of that person’s sentence for the purposes of that Article were the part specified in the certificate.

(6) But subsection (5) does not apply (and subsection (7) applies instead) where that person is a person whose licence has been revoked under Article 46(2) of the 1998 Order.

(7) Where this subsection applies, paragraphs (3) to (6) of Article 46B of the 1998 Order have effect as if that person had been recalled to prison under paragraph (2) of that Article on commencement.

(8) Articles 46A and 46B of the 1998 Order apply to an existing licensee as they apply to a person who is released on licence under Article 46 of that Order (as substituted).

(9) In this section—

“commencement” means the date on which this section comes into operation;

“existing licensee” means a person who, before commencement, has been discharged on licence under Article 46 of the 1998 Order and whose licence is in force on commencement;

“the 1998 Order” means the Criminal Justice (Children) (Northern Ireland) Order 1998."

The following amendments stood on the Marshalled List:

No 15: After clause 7 insert

"Examination of accused through intermediary

Examination of accused through intermediary

7B.—(1) In section 12(1) of the Justice Act (Northern Ireland) 2011 (which at the passing of this Act is not in operation), the inserted Article 21BA of the Criminal Evidence (Northern Ireland) Order 1999 is amended as follows.

(2) At the beginning of paragraph (2) insert “Subject to paragraph (2A),”.

(3) After paragraph (2) insert—

“(2A) A court may not give a direction under paragraph (3) unless—

(a) the court has been notified by the Department of Justice that arrangements for implementing such a direction have been made in relation to that court; and

(b) the notice has not been withdrawn.

(2B) The withdrawal of a notice given to a court under paragraph (2A) does not affect the operation of any direction under paragraph (3) given by that court before the notice is withdrawn.”.” — [Mr Ford (The Minister of Justice ).]

No 16: After clause 7 insert

"Abolition of scandalising the judiciary as form of contempt of court

7C.—(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law.

(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court." — [Mr Givan (The Chairperson of the Committee for Justice ).]

No 17: In clause 9, page 8, line 2, leave out subsections (1) and (2) and insert

"(1) Except as provided by subsection (2), this Act comes into operation on the day after Royal Assent.

(2) The following provisions of this Act come into operation on such day or days as the Department may by order appoint—

(a) section 1 and Schedule 1;

(b) section (Notification requirements: absence from notified address);

(c) sections 3 and 4;

(d) section 7 and Schedules 2 and 3;

(e) Parts 1 and 3 of Schedule 4 and section 8 so far as relating thereto." — [Mr Ford (The Minister of Justice ).]

No 38: In the long title, leave out "and to" and insert "; to". — [Mr Ford (The Minister of Justice ).]

No 39: In the long title, at end insert

"; to provide for the release on licence of persons detained under Article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998". — [Mr Ford (The Minister of Justice ).]

No 40: In the long title, at end insert

"; and to amend Article 21BA of the Criminal Evidence (Northern Ireland) Order 1999".— [Mr Ford (The Minister of Justice ).]

No 41: In the long title, at end insert

"and to abolish the common law offence of scandalising the judiciary". — [Mr Givan (The Chairperson of the Committee for Justice ).]

David Ford (Alliance, South Antrim)

We all know that, every so often, children commit and are convicted of grave offences. In law, that is defined as an offence for which an adult could receive a custodial sentence of 14 years or more. Typically, it will involve a very serious sexual or physical assault. In those circumstances, the standard juvenile justice centre order, with its maximum duration of two years, is not always adequate.

Courts, therefore, have at their disposal determinate detention orders under article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998, which allows them to pass sentences that properly reflect the gravity of the crime. There have been only four or five such orders in the past 10 years, and none has been made since 2008.

Under existing provisions, it is entirely a matter for the Minister of Justice to determine when or if during the sentence a child should be released on licence, the conditions of that licence and matters of breach of licence and recall to custody. As currently framed, the Minister's power is completely unfettered.

Following a recent legal challenge, article 45(2) detention orders and associated article 46 licences have been declared non-compliant with articles 5 and 6 of the European Convention on Human Rights in that they make no provision for the required inclusion in the process of an independent judicial element to determine matters of release, licence conditions and recall to custody. The amendment remedies the matter by removing the Minister of Justice from the process, requiring the court to specify a point at which release on licence should be considered and introducing the Parole Commissioners for Northern Ireland as the appropriate independent judicial element for determining matters of release, licence conditions and recall to custody.

This not only makes the provisions ECHR compliant but brings them fully into line with all other similar custodial sentences that involve release on licence, such as the extended and indeterminate custodial orders used for public protection. We are, in effect, doing no more than replicating the arrangements that already exist for those other orders.

Amending the provisions in this way maintains an important sentencing option for the courts, meets our convention obligations, links the detention orders to established provisions for other similar orders and strengthens the processes for establishing risk and protecting the public. Crucially, it will also allow us to place the management of the small number of existing cases on a rational and compliant footing.

I now turn to amendment No 15, which inserts a new clause 7B, which involves a minor technical amendment to article 21BA of the Criminal Evidence (Northern Ireland) Order 1999. That order deals with the examination of an accused person through a registered intermediary. Intermediaries are communication specialists who assist victims, witnesses and defendants with significant communication deficits to communicate their answers more effectively during interview and when giving evidence at trial.

The registered intermediary scheme will be piloted at the Crown Court sitting in Belfast for certain types of offences following commencement of this provision. The new clause inserts a requirement that a statutory notice must be given to a court by the Department before that court may give a direction permitting the examination of an accused through an intermediary. It also provides that the notice can be withdrawn by the Department, and the power of the court to give an intermediary direction, therefore, ceases to exist. The amendment is technical in that it ensures that there is legislative consistency in this respect between the provisions dealing with the accused, and victims and witnesses.

The amendment standing in the name of the Committee Chair relates to the repeal of the common law offence of scandalising the court. I thank the Committee for the work that it has undertaken in bringing forward this amendment. The amendment to insert a new clause 7C equates to that which has been brought forward for England and Wales in the Crime and Courts Bill [HL].

As Members will know, I declined an offer to include Northern Ireland in that Bill because I believe that this is the appropriate place for legislation to be shaped for Northern Ireland — in this Assembly. Before bringing forward an amendment to repeal the offence, England and Wales had the benefit of a Law Commission consultation to gauge views. My preference would have allowed for an opportunity to consult similarly in Northern Ireland at an appropriate time, and to find out whether there were other changes that might be needed to protect the courts. The Committee, however, has chosen, as is its right, to bring forward this amendment, which it is able to do with less of a consultation process than the Department would have been obliged to carry out. I am entirely content that the House decide the issue today.

Finally in this group of amendments is the issue of amendment No 17, which amends the Bill's commencement arrangements. As was the case at introduction, the provision on sex offenders, except those relating to obsolete offences, and on DNA and fingerprints will be commenced by order at a date or dates to be determined. All the other provisions now in the Bill, however, will come into operation immediately after Royal Assent. Amendment Nos 38 to 41 similarly augment the long title to reflect the addition of the new provisions.

I recommend the amendments standing in my name to the House. I am certainly interested to hear the comments from around the House on the Committee Chair's amendment.

Paul Givan (DUP, Lagan Valley)

First, I wish to speak on amendment No 16, which the Committee for Justice has brought to the Assembly and which seeks to abolish the offence of scandalising the judiciary as a form of contempt of court under common law, and amendment No 41, which is a consequential amendment that is needed to the long title as a result of our proposed amendment.

I am very pleased to bring amendment No 16 to the House today. The rationale for such an offence derived from the need to uphold public confidence in the administration of justice. However, the last recorded successful prosecutions in England and Wales were in the 1930s. The offence has recently been described as "virtually obsolete." The offence is archaic and should be consigned to the history books.

Members will be well aware that, in March 2012, the Attorney General for Northern Ireland brought a prosecution against Peter Hain MP for the common-law offence of scandalising the court for statements that he made in his book 'Outside In', in which he criticised a judge. The court was invited to make no order after Mr Hain clarified the intention behind his remarks. The prosecution attracted significant media and political interest at the time, with questions being raised about the right to freedom of expression and such criticism being regarded as political speech, and, therefore, under the European Convention on Human Rights, subject to the highest degree of protection, although absolute, and whether the offence was obsolete. Indeed, it was raised by the former Home Secretary, Mr David Blunkett, during Prime Minister's Questions, when he asked:

"Should not respect for the ... judiciary be balanced with the rights of individuals to fair comment on that judiciary?"

The Prime Minister replied:

"let me just say this: there are occasions, as we all know, when judges make critical remarks about politicians; and there are occasions when politicians make critical remarks about judges. To me, that is part of life in a modern democracy, and we ought to keep these things, as far as possible, out of the courtroom."

The prosecution prompted an amendment to be laid by Lord Pannick QC in the House of Lords in relation to the Crime and Courts Bill, proposing the repeal without replacement of the offence of scandalising the court for England, Wales and Northern Ireland. In bringing forward the amendment, Lord Pannick argued:

"There is simply no justification today for maintaining a criminal offence of being rude about the judiciary-scandalising the judges or, as the Scots call it, murmuring judges. We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance. A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors."

When referring to the case taken by the Attorney General for Northern Ireland against Peter Hain, Lord Pannick stated:

"This bizarre episode has damaged the reputation of the legal system in Northern Ireland".

The amendment was withdrawn at Committee Stage to allow the Government time to consider the matter.

The Minister of Justice subsequently wrote to the Committee, informing it that the Minister of State, Lord McNally, had advised that, having considered and consulted on the issue, the Government were minded to support the amendment and wished to know whether Northern Ireland wanted to be included in it. The Minister indicated his preference for local legislation, and stated that he considered that it would be more appropriate for the matter to be looked at separately in a Northern Ireland context.

He, therefore, advised Lord McNally that Northern Ireland should not be included in the Crime and Courts Bill, and asked his officials to take forward work to seek views on this in Northern Ireland. When asked by the Committee for the timescale for completion of that work, the Minister indicated that, subject to any other competing priorities, he planned to take forward a consultation on the issue in the new year.

The Committee considered the matter, and was of the view that the Criminal Justice Bill could provide an appropriate vehicle in which to take forward the repeal of that offence now. The Committee, therefore, agreed that an amendment should be drafted on that basis, and sought advice on whether such an amendment would fall within the scope of the Bill. The Committee also agreed to seek the views of the Attorney General for Northern Ireland, given his interest in the matter, and noted the results of the consultation that was undertaken by the Law Commission in England and Wales, in which there was general support for abolition of the offence in those jurisdictions.

The Attorney General responded by outlining that the Criminal Justice Bill might provide an opportunity to recast scandalising contempt in statutory form rather than repealing the offence. The Committee, however, disagreed, and stated that it wished to see the offence of scandalising the court abolished in Northern Ireland and was content to take forward an appropriate amendment.

Subsequently, during the debate in the House of Lords on 10 December to ratify the amendment in the Crime and Courts Bill, Lord Carswell, a former Lord Chief Justice of Northern Ireland, indicated his support for the amendment.

He stated:

"I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation."

When he said "they", he was referring to the authorities in Northern Ireland.

Following confirmation that the amendment was admissible, the Committee finalised its wording, which is in front of Members today. On the basis that I have outlined, the right thing to do is to abolish the offence in Northern Ireland. The Committee seeks the support of the Assembly for amendment Nos 16 and 41.

Before I proceed, I also want to speak about this in my capacity as an individual Member. I want to cover a number of areas for the benefit of Members.

First, I want to put on record my appreciation to Lord Justice Girvan and the Attorney General for taking the actions they did. As a result of their actions, this amendment is before us, and the House can ensure that public confidence is not damaged any further than it was by the action taken against Peter Hain. If Members have not reflected on the commentary on this issue in the House of Lords, where there has been considerable debate, there are a number of quotes that, I think, they would benefit from hearing. With Members' indulgence, I plan to go through some of them.

Obviously, Members are aware of Peter Hain's book. Lord Pannick quoted from it in the House of Lords, for Members' benefit, when he said:

"Mr Hain had described the judge and his conduct as 'high-handed and idiosyncratic' and he added that he thought the judge 'off his rocker'."

Lord Pannick went on to say:

"Whatever the merits or lack of — I take no position on this — in Mr Hain's critical comments, surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence."

I share that view. Lord Pannick also said:

"The irony is that public confidence in the judiciary is undermined far more by legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored."

I share entirely the sentiments expressed by Lord Pannick.

This place has the duty — above the judiciary — to ensure that the public have confidence in and support for the functions exercised by the judiciary. That is why the amendment is before Members today. It is there so that we can undo the damage caused by the ridicule and embarrassment that resulted from the case that was taken against Peter Hain.

It is unfair for Members to lay the blame for this solely at the feet of the Attorney General. I disagree with his actions in taking that case, but he made it clear to the Justice Committee that he had received correspondence from Lord Justice Girvan on the issue. So, we had a judge corresponding with the Attorney General on the matter: that is inappropriate. It is not just the Attorney General who we are having to deal with through the amendment. We are also having to ensure that public confidence in our judiciary and the way it operates is not further damaged. Indeed, by passing the amendment today, we can restore public confidence in the way in which the judiciary operates.

The case was withdrawn, and it is important to acknowledge that the Attorney General did not, ultimately, proceed. However, it is important for Members to put the reason why the case did not proceed into context. It did not proceed because Peter Hain provided clarification that it was not his intention to undermine judicial independence in any way. That is why the case did not proceed. It was not necessarily because of the public furore that surrounded it, including the Prime Minister getting involved at Question Time; it was because Peter Hain clarified that that was not his intention, Interestingly, that was touched on in the House of Lords by Lord Bew:

"The Attorney-General made it clear that he would not have set aside the proceedings until the receipt of the letter from the former Secretary of State for Northern Ireland, Mr Hain. In that letter, Mr Hain effectively argued that it had not been his intention in any way to challenge the independence and fairness of the judiciary in Northern Ireland. This is an important point, because I think it quite likely that the Attorney-General for Northern Ireland had in mind the dictum of Lord Russell of Killowen, perhaps the greatest of all the Northern Irish judges of the last century. In 1900, as Chief Justice of England, he offered a dictum in this sort of case that intention was crucial and that there had to be a calculated and clearly deliberate attempt to challenge the independence of the judiciary. By his letter, the former Secretary of State for Northern Ireland, Mr Hain, put himself on the right side of that dictum by saying that he had no intention in any way to challenge the independence of the judiciary in Northern Ireland.

What this reveals is that the Attorney-General and Sir Declan Morgan, the Lord Chief Justice, as far as I can understand from the remarks that he made at the time that this was a public matter, believe that there was in principle a case in law here, and a legal case that could be taken. That is why we have proposed this amendment. If there is any possibility that there could be such a case brought, which I think would widely be regarded as absurd, we must do what we can to eliminate that possibility."

That, in my view, puts into context why the case did not proceed. That is why I agree with Lord Bew that, if there is any prospect of this case being taken forward, on whatever grounds, it does not merit being treated as a criminal offence. Therefore, I trust that amendment No 16 will be supported by all Members.

It is also important for Members to note that Lord —

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I thank the Member for giving way. I note that he emphasised that there should be no criminal proceedings in this or similar cases. I agree with the Member on that. However, does the Member not agree that, given the gravity of the allegations made against Lord Justice Girvan, some alternative civil proceedings could and should have been taken to protect his reputation and standing or, indeed, the reputation and standing of any other judicial figure in a similar situation? Mr Hain's written comments went beyond mere criticism and offence. They tended to verge on challenging the integrity of Lord Justice Girvan, for whom many in the legal profession have a great regard. I think that his standing among his peers is second to none.

Paul Givan (DUP, Lagan Valley)

The Member's contribution is important, and I will come to that point. In no way should Members regard the amendment as an opportunity for open season on the judiciary. I agree with comments that elected representatives need to demonstrate self-restraint. There is a role for us to uphold the independence of the judiciary. However, there is a balance to all that.

The Member, quite rightly, pointed out that there may have been another vehicle for bringing a challenge, if somebody is offended by a statement made about them. I share that view. Lord Justice Sedley, for example, is the most recent judge to sue for libel. His case against 'The Daily Telegraph' was an example of a Lord Justice clearly feeling that criticism had gone beyond what was reasonable, and he was able to sue for libel. I disagree, however, with attaching a criminal offence to criticism of the judiciary. That is inappropriate. It is inappropriate for a taxpayer-funded Attorney General to be able to take cases of that nature against ordinary citizens, Members of the Assembly or, indeed, for that matter, the former Secretary of State, Peter Hain, with whom I have many disagreements about politics. I am not doing this because I have any particular liking for Peter Hain, but it is the principle that I wish to comment on.

It is important to note that, during the debate in the House of Lords, Lord Goldsmith also commented on the issue. He said:

"I was the Attorney-General for Northern Ireland for six years and I was never asked to, nor did I, consider that offence in Northern Ireland-or, indeed, in England and Wales, of which I was also Attorney-General. There does not seem to be any need for the offence and I never saw any need for it at the time."

It is useful to have those statements from a previous Attorney General and someone of such standing as Lord Goldsmith. Lord Carswell, whom I quoted earlier, is a former Chief Justice for Northern Ireland, so I think Members should take on board his comments on the issue. I will quote from Lord Carswell, because these eminent individuals are much more capable than I of articulating what I am trying to convey, and they carry much more weight than I do, certainly within the environs in which they operate in the legal system. Lord Carswell said:

"I did not consider for a moment instigating a prosecution or suggesting to the Attorney-General — who was not the noble and learned Lord, Lord Goldsmith, but a predecessor — that a prosecution should be bought. There were deeply scandalous assertions in a certain newspaper that I had come to the conclusions I had reached in criminal trials on the instructions of the Government, more or less, without saying it, as their cat's paw. I was deeply offended and I deeply resented it. I was scandalised, but not for one moment would I have considered asking the Attorney-General whether he would consider bringing contempt proceedings — or, rather, a scandalising prosecution ... it is not necessary in modern conditions; not necessary for a sophisticated society; and not necessary for judges who have to have the hardihood to put up with comments which sometimes may be unfair, badly based and just plain vulgar rudeness. However, that is part of what they have to do: they have to shrug their shoulders and get on with it. It is for that reason that, although I was very cross at the time about it, I certainly did not invoke the criminal law."

Lord Carswell's opinion of how the case to do with Peter Hain was handled by the Attorney General and the judiciary in Northern Ireland is pretty devastating.

I will pick up on some other quotes. During the debate, Lord Pannick and a number of Members intimated their unease that Northern Ireland was not moving on the issue. Lord Pannick made the point that he was disappointed that Northern Ireland was not going to move on it — I think it was in the debate of 10 December — and he made the following commentary on that:

"It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland."

He makes a valid point. How absurd would it be, given that the case emanated from Northern Ireland, if they abolished the offence in England and Wales but it is retained in Northern Ireland? That would be simply absurd, and it is therefore important that we move to deal with this amendment.

Lord Lester of Herne Hill said:

"Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales."

Maybe he was right in that respect — that the Executive had not been looking at the issue and the Minister had not brought it to the Executive's attention — but the Justice Committee of this place has decided to take action in respect of that. So, in response to Lord Pannick and Lord Lester of Herne Hill, I say that I appreciate their interest in the affairs of Northern Ireland and they can be assured that this Assembly has decided to ensure that Northern Ireland is not left in the dark ages when it comes to this offence.

It is important that Members recognise that the actions that resulted from this case have a chilling effect on the citizen's ability to pass comment on judicial decisions. I certainly recognise that. I know that many in this place are certainly no shrinking violets when it comes to expressing their opinions, and I would not for one moment think that Members of this place would shirk their responsibilities, where criticism is merited, to pass judgement on judicial decisions. Indeed, I have done so. I was critical of the sentence awarded to one of the killers of Constable Carroll, a sentence handed down by Lord Justice Girvan. That sentence has now been referred, and I trust that that matter will be dealt with, as the Director of Public Prosecutions now deals with that case.

Devolution of justice is new to Northern Ireland, and Members are seeking to tread carefully on this issue. We are seeking to build relationships. In that respect, I commend the Lord Chief Justice, Sir Declan Morgan, in all this. I have found him always to be amenable. He has offered to come to the Committee for Justice, which will be the first occasion on which a Lord Chief Justice has been prepared to engage with this place on judicial matters beyond his scope as chairman of the Northern Ireland Judicial Appointments Commission. We will be able to engage with him on judicial matters, which is a very welcome development. I want to encourage Sir Declan Morgan to continue to bring the judiciary forward with him. It is important that that work continues.

The Lord Chief Justice, in a speech to the Law Society of Ireland in Dublin on 10 May 2012, commented on this issue. He gave a lecture on the impact of the Human Rights Act 1998 and on how it has given the judiciary a greater role in the interchange with the legislatures. He said:

"The principal purpose of this lecture is to demonstrate that in my jurisdiction the incorporation of significant elements of the European Convention on Human Rights into domestic law has caused a change in the relationship between the judiciary, the executive and the legislature."

He went on to say:

"In carrying out the task of securing equilibrium we must all remember that our principal objective is to secure public confidence in the administration of justice."

He continued:

"It also means that an independent judiciary is entitled to expect its position to be respected and secured by Ministers and legislators, but must itself show proper respect for the role which others play in our justice system."

I support that comment. The independent judiciary has the right to require that legislators and the executive uphold the right to judicial independence. However, let me make it very clear: this place has primacy. We set the law, and we make the law. Judges make their decisions within the legal framework that we set as the elected representatives, as the people ask us to do. We will uphold the right of the judiciary to take those decisions within the legal framework that is established by this place, which has primacy in all this. It is important that we show respect in the way in which we conduct ourselves with the judiciary. I agree with that.

I will conclude this part of my speech on this group of amendments by bringing Members' attention once again to the Lord Chief Justice's speech. He said:

"The judiciary, as I often say, is independent, but it is not isolated. We participate and we listen willingly to the other voices in the conversation. For my part, I will do all that I can to ensure that the difficult issues we face as we establish our devolved justice institutions are determined in an atmosphere of mutual respect. At the end of the day, we are all working towards the same goal of ensuring our justice system has the full and deserved confidence of the public."

I agree with that quote from the Lord Chief Justice. Let me conclude on this point by quoting Lord Pannick as he concluded his speech in the debate in the House of Lords:

"As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger, 'to the degree that it is earned, rather than to the extent that it is commanded'."

I urge Members to support the Committee on the amendment. We tabled it to deal with this issue effectively and conclusively.

In my capacity as Chairman of the Committee, I turn to amendment Nos 14 and 15, both of which were brought to the Committee by the Department at Committee Stage. The Committee received information in relation to the new clause created by amendment No 14 only a few days before the Committee Stage was completed, which provided virtually no time for the Committee to consider the proposed clause properly. Noting that a legal challenge in an existing case has exposed that the current legislation concerning licence arrangements relating to the release of young offenders convicted of certain serious crimes is unlikely to be compliant with the European Convention on Human Rights, the Committee briefly considered the Department's proposed provision. Given that the principal test under the new arrangements will be the protection of the public, the Committee is content to support that amendment.

As the Minister has outlined, amendment No 15 is required to address an omission with regard to the planned registered intermediary scheme and the issuing and withdrawal of statutory notices in relation to the examination of vulnerable defendants through an intermediary. The Committee noted that the Department considers it unlikely that the power to suspend the scheme will need to be exercised but it is prudent to have the safeguard in place. The Committee is content to support the inclusion of the new clause through amendment No 15.

Raymond McCartney (Sinn Féin, Foyle)

Go raibh maith agat, a LeasCheann Comhairle. I support the amendments tabled by the Minister and those on scandalising the court tabled by the Committee Chair. I want to say a few words on scandalising the court. The Minister has said that he spurned the opportunity to allow Westminster to legislate on the matter. That is a very good principle and perhaps one that we will follow in future. The Chair said, in relation to the Assembly, that:

"We set the law, and we make the law."

It is interesting that, not so long ago, we were criticised for not supporting a legislative consent motion on the National Crime Agency (NCA). Perhaps if we all —

David Ford (Alliance, South Antrim)

Will the Member give way?

Raymond McCartney (Sinn Féin, Foyle)

I will give way, certainly.

David Ford (Alliance, South Antrim)

While the Member definitely makes a good political point, he needs to acknowledge that there is a difference between Westminster legislation that deals with UK-wide matters that impinge on Northern Ireland and an issue that lies solely with this House. The issue of scandalising the court is the latter, and that is why I was so determined that we would not consider Westminster legislating for us.

Raymond McCartney (Sinn Féin, Foyle)

I will quote the Chair again:

"We set the law, and we make the law."

Let that be our guiding principle.

The Chair said that he did not often find himself agreeing with Peter Hain. I want to be very careful here. Peter Hain said that a judge was "off his rocker". At that, I will — what would they say in court, Alban? — rest my case. I do not want to make any further comment on that. The reason why we support the repeal of this legislation is that we believe that there is already sufficient legislative protection in place for anybody in public office who feels that their integrity or the role that they play in the judiciary or another public office is being attacked.

I followed the commentary on the issue, and it was interesting that a lot of people at Westminster, in particular, seemed to get very upset about this. However, they missed an aspect of it in some regards. The Attorney General addressed that at the Committee and in some of his public commentary. Peter Hain did not just say that a particular judge was off his rocker; he went on to say something else in his role as British Secretary of State. Indeed, the reason why he said that the judge was off his rocker is that he lost a case against him. It is some criterion if you are part of a process to appoint somebody to the higher levels of the judiciary and, having lost a case against them and said that they are off their rocker, you can then say, "I will not let you become a High Court judge". There might be many people working in the judicial process who are saying today, "I hope that Members of the Assembly are never put in a position where they can do that". That was the essence of the case, as well. That needed to be there, because Peter Hain should not have said that. He could have said the judge was off his rocker or stupid in the decision he made, but he should not have alluded to the fact that, if he had had his way, he would have prevented somebody going into public office simply because he lost a case against him. That is not a standard that we should allow to prevail.

The Chair spoke about this, and Albie Sachs is an exemplary person to set the standard. Whatever respect people have for the judicial process, it should be earned and not commanded. I agree with that. In Committee, we said, particularly when the Minister came around that time, that independence is one thing as a principle but it does not free any person, be it a judge or anybody else, from criticism of what they do. As I said in Committee, people have raised their voice against judicial decisions — they may not have described people who then became Lord Chief Justice in another jurisdiction as "off their rocker", but what they said was that they were wrong — and they were proved, eventually, to be right. When we had this discussion before, Tom Elliott, I think, accused us of not supporting the rule of law because we might question a judicial system or a police decision. As I pointed out to him then, the rule of law is not absolute either. It does not stand apart from the right of people to say that it is wrong. If you do not say that it is wrong, you end up with injustice being heaped upon injustice.

So, although we agree that this legislation is archaic and out of date, the Attorney General said clearly that Peter Hain corrected what he had said and, in essence, changed the sense of what he had said. He may still think that Lord Chief Justice Girvan is off his rocker — he may think all those things — but I think he accepted that, when you are in high office, you cannot hold against a judicial figure the fact that you lost a case and use it as an impediment to him or her progressing their career. That was the core of the message, and it was missed by all the great and the good in Westminster. Sometimes, having "Lord" or "Lord Chief Justice" in front of your name does not make you impeccable. There are many Lord Chief Justices who were in charge of tribunals and judges in charge of cases in England who became the Lord Chief Justice about whom many, many people said that they were rewarded by people like the British Prime Minister. So, the British Prime Minister may have got a laugh or two in Westminster when Mr Hain made his comments, but British Prime Ministers are not beyond reproach either.

The debate stood suspended.

The sitting was suspended at 12.28 pm.

On resuming (Mr Speaker in the Chair) —

Oral Answers to Questions

William Hay (Speaker, Foyle)

Yesterday, I raised the issue of Members not being in their place during Question Time, especially Members who have their name on the Order Paper for a question. One Member, Caitríona Ruane, has come through my door to apologise. Thus far, I have had nobody else. We know which Members were not in their place yesterday, and there is still time for Members either to come to this House and apologise or come through my office door and apologise. I will take confessions, wherever they may be.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

Especially during Lent.

William Hay (Speaker, Foyle)

Yes, during any time, whether in my office or here in the Chamber.

Let us move on to questions to the Education Minister. Question 4 has been withdrawn.

Colum Eastwood (Social Democratic and Labour Party, Foyle)

1. asked the Minister of Education to outline the rationale for the proposed relocation of Woodlands speech and language unit to three separate primary schools. (AQO 3427/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

Article 7 of the Education Order 1996 provides that children with special educational needs will be educated in mainstream schools. That also applies to children who have statements of special educational needs, unless that is incompatible with a parent’s wishes or with the provision of efficient education for other children.

All education and library boards and schools have a duty to comply with that legislation. The Western Education and Library Board has, therefore, developed a policy that requires such facilities to be located at mainstream schools. In line with its policy, the Western Education and Library Board had been in discussions with the board of governors of Belmont House Special School about the relocation and extension of the current provision.

The proposal is to relocate and increase the four speech and language classes to six units at three mainstream primary school locations in both the controlled and maintained sectors. Following consultation with parents and other directly affected parties, the board and the Council for Catholic Maintained Schools have now brought forward development proposals to support that intent. Copies of the proposal can be viewed on the Western Board’s website. Those development proposals were published in the week beginning 21 January 2013 and are, therefore, in the statutory two-month period during which any interested party may make their views known to the Department.

I have accepted an invitation to visit the unit during the consultation period. Once the consultation has ended, I will take account of all the issues and then make a decision on the proposals based on what I believe is in the best educational interests of the children concerned.

Colum Eastwood (Social Democratic and Labour Party, Foyle)

I thank the Minister for his answer. We have been told by parents and staff that this will be an extremely traumatic move for many pupils, many of whom have a high level of need. Can the Minister outline the perceived benefit for those kids if they are moved into three separate primary schools, given that so many relationships and so much experience has been built up in that one unit?

John O'Dowd (Sinn Féin, Upper Bann)

I thank the Member for his supplementary. I am in a somewhat difficult position when answering questions on this matter at this time, because I am the adjudicator in the case. I am involved in a statutory process, and I have to adhere to all the legislation. I am involved in a consultation process and have not come to any conclusions on the matter.

I will visit the school in a number of weeks to talk to the parents, teachers and pupils directly and to listen to their experiences. When I have gathered all the other consultation responses, I will make an informed decision. I understand that the Member has the right to raise the matter during Question Time, but, as a Minister, I am in a somewhat difficult position in giving detailed answers to questions posed at this time.

Mervyn Storey (DUP, North Antrim)

I appreciate what the Minister says about being able to answer specific questions on this case. Special needs provision that historically has been in the controlled sector is being divided up into other sectors, and that is setting a bad precedent. Will he give this House an assurance that, if we move towards any new structures under the Education and Skills Authority (ESA), the special needs provision that has been in the controlled sector will still be provided in the controlled sector?

John O'Dowd (Sinn Féin, Upper Bann)

Again, the Member invites me to respond to specifics on the issue, and I cannot do that. I will take into consideration all the matters pertinent to the case before I make a decision. Part of that decision-making process will be not only about whether the school should close but where the children will be dispersed to and what the mechanisms and management types of those schools will be should dispersion take place. I will take into account all of those matters.

Michaela Boyle (Sinn Féin, West Tyrone)

Go raibh maith agat, a Cheann Comhairle. I do not want the Minister to repeat himself, as he has gone some way to answer my supplementary. Given the significant concerns among the parents and, indeed, the pupils, will the Minister, when he has considered all of the concerns, come back and inform the House of the outcome?

John O'Dowd (Sinn Féin, Upper Bann)

I assure the Member that I will take into consideration the issues raised with me by all respondents to the consultation, particularly the parents and pupils affected. The usual process for an announcement on a development proposal is not to make a statement to the House but to make a written proclamation of what has been decided. First to receive that will be the school, parents and pupils, and it will then be made public.

George Robinson (DUP, East Londonderry)

2. asked the Minister of Education how small rural primary schools will be protected in light of the review of the common funding formula recommended by Sir Robert Salisbury. (AQO 3428/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

Last summer, I appointed Sir Robert Salisbury to carry out a completely independent review of the common funding scheme. I received his report last month, and I am now considering its findings and recommendations in depth.

The review has raised concerns that small schools support is currently provided to all small schools, irrespective of circumstances or location. In the current financial year, £29 million was distributed via the small schools support factor in the current common funding formula. The small schools support factor allocates a tapered lump sum to all primary schools with fewer than 300 pupils and post-primary schools with fewer than 550 pupils.

The Salisbury report recommends the development of a small schools policy, whereby strategically necessary small schools, most likely to be small rural primary schools, would be funded outside the formula to ensure that they have sufficient funds to meet their needs. I will assess the impact of this recommendation, along with the others in the report, very carefully to inform my proposals for change, which I intend to submit later in the year. These will, of course, be subject to public consultation.

I reiterate that schools will not be closed simply because they fall below a threshold. Where it can be demonstrated that a small school is needed and can provide the appropriate quality of education, it should be retained and supported.

George Robinson (DUP, East Londonderry)

Will the Minister tell us whether he still accepts the criterion set out by the Bain report that 105 is the appropriate number of pupils for a sustainable rural primary school?

John O'Dowd (Sinn Féin, Upper Bann)

I have always said that it is not a numbers game on either side of the argument, whether the numbers meet the sustainable schools criteria or fall below them. There are six factors to be taken into account when assessing whether a school is viable into the future, and all of those will be taken into account in making any decisions on small schools.

The Salisbury report calls on my Department to bring forward a policy on funding for small schools and the identification of small schools. The Member will note that the current funding formula does not match the sustainable schools funding formula. For instance, all primary schools with fewer than 300 pupils receive a small schools grant, and all post-primary schools with fewer than 550 pupils receive that grant. Those figures do not match those in the sustainable schools policy. However, I emphasise again that it is not a numbers game.

Sean Lynch (Sinn Féin, Fermanagh and South Tyrone)

Go raibh maith agat, a Cheann Comhairle. Gabhaimm buíochas leis an Aire as a fhreagra. Will the Minister outline the ways in which the revised common funding formula will help to tackle educational disadvantage in all communities, whether rural or urban?

John O'Dowd (Sinn Féin, Upper Bann)

One of the main drivers behind my commissioning of the Salisbury review was to ensure that we are targeting social need, and that was stated in the review's terms of reference. All the evidence shows, as the Audit Office report showed again this morning, that educational underattainment exists largely in communities that suffer social deprivation. Therefore, I want to ensure that the Department directs its finances to the schools that service the communities that suffer most from socio-economic deprivation.

The Salisbury report has made a number of recommendations on how we can do that. I am considering those along with all of the other recommendations because I want to ensure that my Department's budget is used to create a world-class education system and tackle educational underachievement. If we are to do that, we have to back up our policies with our finances.

Danny Kinahan (UUP, South Antrim)

I thank the Minister for his answers so far. Parents of primary-school children are very concerned, especially after the Bain report on school numbers and now the Salisbury report on funding. Has the Minister looked at what the timing will be when he comes back with his proposals on area planning so that we can stop frightening parents and produce something solid at the end?

John O'Dowd (Sinn Féin, Upper Bann)

I do not accept this terminology of frightened parents, etc. Of course, I am glad to say that parents take a keen interest in their children's education and in the schools estate. However, I am of the view that the majority of people realise that we have an unsustainable schools estate and that, if we are to use our limited resources properly, we should use them for sustainable schools that are properly planned and able to provide a modern education system for children. So, I do not accept some of the Member's terminology.

I hope to be in a position to make a statement to the Assembly next week on post-primary area plans. As a part of that statement, I will outline my way forward for primary-school area plans.

Leslie Cree (UUP, North Down)

3. asked the Minister of Education to outline the projected annual budget of the proposed Education and Skills Authority. (AQO 3429/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

It is expected that the projected annual budget for the Education and Skills Authority (ESA) will largely be the sum of the budgets of the existing eight arm’s-length bodies that will transfer to ESA. Those are: the five education and library boards; the Council for Catholic Maintained Schools (CCMS); the staff commission; and the Youth Council. The budget in 2012-13 for those eight bodies was £1·476 billion resource and £58 million capital.

In addition, the Department currently carries out the role of funding authority for voluntary grammar and grant-maintained integrated schools. That function and some other operational duties that the Department carries out, such as capital funding for the voluntary maintained schools, will also transfer to ESA, along with any associated resources.

Work is ongoing to establish the level of funding for ESA, but, at this stage, a high-level estimate of the annual budget is somewhere in the region of £1·8 billion resource and £0·2 billion capital. That is based on the budget that is currently available for education in 2014-15.

Leslie Cree (UUP, North Down)

I thank the Minister for that response. ESA is meant to be about saving money and being more efficient, but it will effectively become possibly the largest quango in Europe. Will the Minister detail exactly when he will bring the business case for ESA to the Department of Finance and Personnel so that the true scale of the cost will be known?

John O'Dowd (Sinn Féin, Upper Bann)

I do not accept the Member's description of ESA, and I note his party's stated opposition to it, although I am not absolutely clear what that opposition is based on. I suspect that it is more political than educational. If it is political, as I suspect, his party could be in danger of damaging our society's educational potential. I have yet to hear a rational argument why his party is opposed to ESA.

It will not be the largest quango in Europe or anywhere near that size. In fact, I question whether ESA meets the definition of a quango, considering that it is democratically accountable to my Department and the Executive.

On the question of when the business case will come forward, my Department is currently working on it and it will be presented in due course.

Gregory Campbell (DUP, East Londonderry)

The Minister previously outlined a number of administrative savings that are ongoing and that have been ongoing in recent years. Does he envisage further savings if and when ESA is established?

John O'Dowd (Sinn Féin, Upper Bann)

Continued savings will be a matter for the ESA board and will also depend on what the education budget looks like at that time. However, it is expected that the establishment of ESA will initially save around £25 million a year on professional support for schools, as we will have an amalgamated service. The rationalisation of education administration under ESA will help to deliver £15 million of savings made a year from the administration and management costs of the Department of Education's arm's-length bodies.

The savings issue is vital, but the main driver behind ESA is to ensure that we have an educational body that will deliver a modern, fit-for-purpose education service for the communities that it serves. The education boards are outdated. That in no way undermines the good work that their officers and board members carried out, but our current management system is outdated. ESA's function is to modernise that and deliver an effective, efficient education service to the people it serves.

John Dallat (Social Democratic and Labour Party, East Londonderry)

I have listened very carefully to the Minister's replies so far. I am sure that he is aware that there was another publication from the Audit Office on literacy and numeracy today. Will the Minister assure the House that, once and for all, ESA will put an end to the affront of 9,000 children a year leaving school without the ability to read and write?

John O'Dowd (Sinn Féin, Upper Bann)

The report does not state that 9,000 children are leaving school without the ability to read and write. It states that there are 9,000 children whose numeracy and literacy skills are not what they should be.

Will the Member, as a member of the Public Accounts Committee, assure me that he will give the report a fair hearing? I note from reading the papers today that he has already made judgement on it without even a hearing at the Public Accounts Committee. As Minister, I expect that the Public Accounts Committee will give the Audit Office report a fair hearing. I welcome the Audit Office report; however, it does not tell us anything that we did not already know. No Member of the House should be surprised by the findings of the Audit Office report.

My party has been shouting from the hilltops for years about the fact that we do not have a world-class education system, while others were shouting back that we had, and telling us, "If it's not broke, don't fix it." We were saying that it desperately needs to be fixed. The Audit Office report highlights the fact that policies are in place that will fix it, but that will take time and further resources. However, I await the Public Accounts Committee's hearing in relation to the Audit Office report, and I will study the recommendations very carefully.

William Hay (Speaker, Foyle)

Question 4 has been withdrawn.

Alasdair McDonnell (Social Democratic and Labour Party, Belfast South)

5. asked the Minister of Education for an update on the newbuild proposals for St Columbanus' College, Bangor, which were agreed by his Department in 2006. (AQO 3431/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

In my statement to the Assembly in the autumn of 2011 entitled 'Putting Pupils First: Shaping Our Future', I set out the challenges associated with the schools estate. One of the major challenges is the need to balance limited capital resources with the large-scale investment needed across the estate. Using the strategic work on area planning, I have moved to ensure that capital investment is targeted to ensure the delivery of modern, fit-for-purpose schools that will be sustainable in the future.

In June 2012, I set out my Department’s capital investment plans to invest over £133 million in 18 newbuild projects. On 22 January, I made a further statement to the Assembly, indicating that I proposed to advance in planning 22 school building projects as part of a £220 million investment.

I understand that St Columba's will be disappointed not to be included in my announcement. However, I must stress that this in no way implies that the newbuild proposal at the school will not be considered at a later stage. The reality is that the need for investment across the estate far exceeds the funds available to me through the remainder of this spending review period. I will continue to examine the case for capital investment, including the proposals for schools such as St Columba's, which will be considered alongside other priorities as part of any future capital announcement.

Alasdair McDonnell (Social Democratic and Labour Party, Belfast South)

I thank the Minister for his answer. Does he agree that that school meets the criteria as an effective school and as an outstanding example of shared education in practice? Will he tell us what the governors of the school must do to ensure that St Columbanus is part of the next newbuild round?

John O'Dowd (Sinn Féin, Upper Bann)

I apologise: it is St Columbanus; I referred to St Columba's during my response.

The reports from the school are all very good. Many schools out there were not included in my capital builds announcement. That is in no way a reflection on the school, its management or the quality of education there. It is a reflection of the fact that we have a very limited capital budget to work with, and I have to have some form of criteria to match my need for builds against the budget.

I have published the criteria that I used on the Department's website. St Columbanus went through that criteria but it did not score as high as other schools. I intend to continue to work with my Executive colleagues to see whether we can secure capital funding. I am looking at my own budget to see whether further capital funding can be secured, and I want to be in a position to make further announcements in the future.

The chapter is not closed in relation to St Columbanus, or many other schools out there. I assure the Member that I continue to examine all possible ways forward to secure future builds.

Steven Agnew (Green, North Down)

I thank the Minister for his answers. I am still unclear, though, after his response to Mr McDonnell, whether he accepts that St Columbanus’ requires a newbuild and, if it was not a case of limited finances, would he be in a position to say that that school requires a newbuild should finances become available?

John O'Dowd (Sinn Féin, Upper Bann)

I accept that St Columbanus requires a newbuild. I also realise that I do not have enough funds to rebuild all the schools that are out there. I require continued work on area planning in that constituency, however, and there has to be work carried out between that education and library board and the Belfast board on the number of pupils leaving Bangor and going back and forth to Belfast, etc. However, I accept here today that St Columbanus is on a lengthy list of other schools that require a newbuild. I also accept that we have to try to secure further funding to build them.

Judith Cochrane (Alliance, Belfast East)

6. asked the Minister of Education what meetings he has held in 2013 with representatives of the voluntary grammar schools concerning the Education Bill. (AQO 3432/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

I have not met representatives of any voluntary grammar school this year specifically concerning the Education Bill; nor were any requests received by my office to do so. The Education Bill is being considered by the Education Committee. I understand that voluntary grammar schools have made representations to the Committee and I await the Committee's report.

Judith Cochrane (Alliance, Belfast East)

I thank the Minister for his answer. What steps could the Minister take to allay concerns about potential departmental interference in employment arrangements in that sector?

John O'Dowd (Sinn Féin, Upper Bann)

Departmental interference in employment arrangements in that sector? May I remind the Member that the Department, on behalf of the people, funds that sector to the tune of hundreds of millions of pounds. So, it is not interference; it is called public accountability with regard to employment and funding matters.

The voluntary principle is somewhat of a misnomer in the sense that if schools wanted to go voluntary and fund themselves, I would agree that the Department, the Assembly or anyone else should not interfere in their business. However, as long as any sector is funded from the public purse, in my opinion the Department has a duty to be involved in those schools, although not on a day-to-day basis, a weekly basis or even a monthly basis.

The ESA Bill as set out clause by clause is loyal to the heads of agreement, which allows voluntary grammar schools to continue to be voluntary grammar schools. It does not interfere with the voluntary principle in any way and allows those schools to continue unhindered as they were before.

In relation to employment matters, I think it is important that ESA becomes the single employer. I ask Members to cast their minds back to the dispute over classroom assistants at the start of the last mandate. All Members and parties quite rightly supported classroom assistants in achieving a pay rise. All were very vocal and supportive about that, and a settlement was eventually reached. A number of classroom assistants in voluntary grammar schools have still not received that award.

I use that as an example. However, if we had a single employing authority, that matter would not arise. Everyone would be entitled to the minimum standards of employment and wage control, and that is to the benefit of the employer. We should also be looking to the benefits for the employee in these matters, because every worker in the education sector should be treated the same.

Trevor Lunn (Alliance, Lagan Valley)

I thank the Minister for his answers so far. I think I heard him say that it is desirable that ESA should be the ultimate employer for all staff. I know that I am jumping ahead to what is in question 8, but how does he reconcile that with 10(c) of the heads of agreement, which says the opposite?

John O'Dowd (Sinn Féin, Upper Bann)

I do not believe that there is a contradiction between 10(c) and ESA as the employing authority — 10(c) is there to offer reassurances to the voluntary sector in this matter. I believe that the Bill reflects the heads of agreement quite loyally. ESA is the employing authority. The day-to-day employment schemes of a school are the responsibility of the school. For the want of a better phrase, the hiring and firing of staff remains the responsibility of the school. That is in legislation.

The original question asked whether I could offer reassurances. The question is, do people want to be reassured or is their opposition really to ESA? I cannot reassure someone who does not want to be reassured.

Ian McCrea (DUP, Mid Ulster)

The Minister stated that he did not receive any request from or, indeed, met the voluntary grammar sector. Will he confirm whether he has or has not met with the Catholic maintained sector, either the governing body or trustees?

John O'Dowd (Sinn Féin, Upper Bann)

I can confirm it, because I have had a request to meet them, and I accepted that request. Does the Member want me to write to all the bodies and ask whether they want to meet me? That is not how it works. Representative bodies write to me. They ask the Minister for a meeting.

In my term as Minister, I have met representatives of the voluntary grammar sector on several occasions. I have spoken at conferences where there has been a large representation from the voluntary grammar sector. I have engaged in debate with the sector, and will continue to, around the matter. I have no problem meeting the voluntary grammar sector on this or any other subject. My response clearly states that I have not been asked for a meeting on this matter.

The Education Committee is dealing with the Bill. I am keeping abreast of developments in Committee. There have been several representations, as there should have been, from the voluntary grammar sector to the Education Committee. I await the Education Committee's report. If the voluntary sector wishes to meet me on the subject, my door is open.

Michael McGimpsey (UUP, Belfast South)

Is the Minister prepared to accept amendments to the Bill to ensure fair representation for the voluntary grammar sector, the integrated sector and other sectors?

John O'Dowd (Sinn Féin, Upper Bann)

I find it amazing that, on the day on which the Audit Office report is published — a report that highlights in particular the need in working-class communities for equitable access to education — the only question that I am asked in the Chamber on the ESA Bill is on the needs of the voluntary grammar sector. Is any Member on the opposite Benches ever going to get around to asking this question: how does ESA meet the needs of the working-class Protestant communities? Will any Member on the opposite Benches ever get around to asking that question? I have been debating ESA in the Chamber for several years, even before I was Minister. I have yet to hear a Member from the opposite Benches ask this question: how does ESA meet the needs of Protestant working-class communities?

Jim Allister (Traditional Unionist Voice, North Antrim)

Having avoided the question from Mr McGimpsey, will the Minister tell me why it is that the voluntary sector, which educates almost one third of children in the post-primary education field, is denied in his Bill representation in the composition of the board and funding for that sectoral representation and body? Why is that, if he has not got an innate bias towards the sector?

John O'Dowd (Sinn Féin, Upper Bann)

When the Member is standing at his next flag protest, whipping up the concerns of the Protestant working class, perhaps he can talk to them about educational underachievement. Perhaps he can talk to them about the Audit Office report. Perhaps he can tell them — [Interruption.]

William Hay (Speaker, Foyle)

Order. The Minister must be heard.

John O'Dowd (Sinn Féin, Upper Bann)

Perhaps he can tell them how he is so concerned about the needs of the Protestant working-class community that he has joined the opposite Benches, in that he has not asked a single question about it in his two years in office.

Jim Allister (Traditional Unionist Voice, North Antrim)

Answer the question.

John O'Dowd (Sinn Féin, Upper Bann)

I will answer the question — [Interruption.]

William Hay (Speaker, Foyle)

Order.

John O'Dowd (Sinn Féin, Upper Bann)

I will answer the question for the Member, because he has never put a question to me yet that I could not answer. [Interruption.]

William Hay (Speaker, Foyle)

Order.

John O'Dowd (Sinn Féin, Upper Bann)

The answer is quite simple. The Member is aware of the heads of agreement document from the First Minister and the deputy First Minister. I was tasked, as Minister of Education, to faithfully produce legislation that matched the heads of agreement. I have faithfully produced legislation that matches the heads of agreement.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

7. asked the Minister of Education what opportunities exist for parents of autistic children who wish to implement specific home-based education. (AQO 3433/11-15)

John O'Dowd (Sinn Féin, Upper Bann)

Parents of children of compulsory school age, including parents of children with special educational needs such as autism, may choose to educate their child at home. The parent has a statutory duty to ensure that the education provided is suited to the child’s age, ability, aptitude and any special educational needs that the child may have.

The education and library boards are required to ensure that children in their area are receiving efficient, full-time education that is appropriate to the child’s age, ability, aptitude and any special educational needs. In discharging that duty, the boards ensure that special educational needs provision is matched to the individual needs of each child. That is the case whether it is provided in special schools, in special units attached to mainstream schools, in mainstream schools themselves, at hospital or through home education.

Support provided by the boards may include advice and guidance to the parent on suitable learning materials, training or examination options. The level of training and advisory support will relate to the age and developmental profile of the child or young person. The board will monitor the educational provision in place to ensure that it is effective and that the needs of the child continue to be met.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I thank the Minister for his answer. Can he indicate whether he is prepared to ensure that there is no variance from board to board in supporting home-based education?

John O'Dowd (Sinn Féin, Upper Bann)

That relates to the debate on the previous question. One of the reasons behind ESA was to bring in equality of provision across all areas of the North to ensure that there was not a postcode lottery, particularly with regard to special educational needs. The Member will be aware that we have gone through the SEN review. My Department is drawing up legislation regarding that matter to ensure that there is equality of provision with regard to special educational needs throughout the North.

William Hay (Speaker, Foyle)

Question 5 has been withdrawn and transferred to DFP.

Conall McDevitt (Social Democratic and Labour Party, Belfast South)

1. asked the Minister of Enterprise, Trade and Investment to outline any planned trade missions involving her Department during 2013. (AQO 3442/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

Invest Northern Ireland’s annual programme of trade exhibitions and missions offers opportunities for companies to visit markets of potential. The January 2013 to March 2014 programme includes over 85 exhibitions and missions to more than 35 countries or regions, including China, Europe, India, Kurdistan, the Middle East, New Zealand, North America, Russia, South Africa and South America.

Conall McDevitt (Social Democratic and Labour Party, Belfast South)

Thank you, indeed, Mr Speaker. I join the Minister in acknowledging the very good work that Invest Northern Ireland does on behalf of our region. Of course, another component of international trade development is the development of our tourism market. Can the Minister confirm to the House that her Department supports the global greening initiative, which, this year, will see world landmarks including the pyramids in Egypt and the Christ the Redeemer statue in Rio de Janeiro turn green? Can she confirm that the First Minister and deputy First Minister will be able to support, in person, the Rio de Janeiro initiative, when they soon visit Brazil?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I thank the Member for his question. Of course, the greening initiative is Tourism Ireland's initiative, and it has been going on for a considerable time. I think that it has got the leaning tower of Pisa and Sydney Opera House involved in the past, and I think they are looking for new and innovative ways of doing it. So, Tourism Ireland will continue to look to that. I am interested in how Tourism Ireland will give standout to Northern Ireland in respect of what it does across the world, particularly in relation to Belfast and the difficulties that have been ongoing. I am interested in how it will address those issues — [Interruption.] Sorry?

William Hay (Speaker, Foyle)

Order. The Minister is speaking.

Arlene Foster (DUP, Fermanagh and South Tyrone)

— particularly in the Great Britain market. I know that Members would like us all to go to Brazil to see the Christ the Redeemer statue, but I am looking at the Great Britain market to see how we can deal with those issues there. That is where my main focus is. Mr Speaker, I think Mr McDevitt would like another question.

Ian McCrea (DUP, Mid Ulster)

Will the Minister update the House on the Gulfood event that is planned? What does she hope to achieve out of it?

Arlene Foster (DUP, Fermanagh and South Tyrone)

The Gulfood event takes place next week, and I am very much looking forward to being part of that trade mission and exhibition. We are taking companies out with us to underline the message about good food coming from Northern Ireland, not only for people in Northern Ireland — goodness knows, that message needs to be reinforced during these days — but in relation to exports across the world. It is an event that is held annually in Dubai, and it is billed as the world's biggest annual food and hospitality show. It covers food, beverages, ingredients, food service and hospitality. It has been running for over 25 years and attracts potential buyers across the Middle East, Africa and south Asia, so we very much look forward to that exhibition and hope that our companies get good feedback from that — if you will pardon the pun.

Danny Kinahan (UUP, South Antrim)

Can the Minister clarify how successful she has been in getting Northern Ireland representation on to trade missions facilitated by UK Trade and Investment?

Arlene Foster (DUP, Fermanagh and South Tyrone)

We are working more closely than ever with UK Trade and Investment, and we very much welcome the support that we now receive from our embassies across the world when we go out there. Now, they are more focused on how they can help businesses in the UK than on matters of diplomacy, as they were, primarily, in the past. We very much welcome that because they can help us with meeting people when we are out in the market and with giving us that little bit of extra knowledge, particularly in relation to culture and customs. So, we very much use the embassy network right across the world. Often, in that embassy network, UKTI sits side by side. We work closely with UKTI, and I would like to see more and more of our companies going on UKTI missions. Obviously, we have our own mission agenda, which I laid out in my substantive answer, but I very much want to encourage companies to be part of UKTI trade missions as well.

Tom Elliott (UUP, Fermanagh and South Tyrone)

2. asked the Minister of Enterprise, Trade and Investment to outline her Department's target in reducing the productivity gap with the rest of the United Kingdom. (AQO 3443/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

My Department does not have any explicit target relating to reducing the productivity gap with the rest of the UK.

Tom Elliott (UUP, Fermanagh and South Tyrone)

Obviously, the Minister will be aware that there was a target for the productivity gap in the PFG for 2008-2011. How will she monitor the ongoing productivity gap between Northern Ireland and the rest of the UK in the current financial period?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I thank the Member for his question. Of course, he is correct to say that we had a target in the previous Programme for Government. We moved away from that because the independent review of economic policy felt that we really needed to look at export-related growth and to prioritise exports as a key driver of economic growth at regional level.

We will monitor very closely, for our own purposes and, indeed, for those of the economic strategy, the productivity gap between Northern Ireland and the rest of the UK. The Member probably recalls that the target in the Programme for Government 2008-2011 was to halve the private sector productivity gap with the UK average, excluding the greater south-east, by 2015. Of course, we will continue to monitor that.

George Robinson (DUP, East Londonderry)

Can the Minister give an update on recent investment success delivered by Invest Northern Ireland?

Arlene Foster (DUP, Fermanagh and South Tyrone)

We were very pleased to see the announcement last week by Caterpillar of the 200 new jobs that it is creating at Springvale in west Belfast. We are very pleased indeed because that came as a result of interventions that we made after the devastating announcement in September last year of the loss of manufacturing jobs at FG Wilson, now Caterpillar. Sometimes, we have to say to companies, "You may have decided to move these jobs to another area, but is there something else that Northern Ireland can help you with?". We ask them what else we can help them to achieve from their company's point of view. In that respect, we have been able to bring those jobs to Northern Ireland and Belfast. They are shared services jobs. We are facilitating the Caterpillar group right across Europe, the Middle East and Africa. I understand that those jobs will service around 28,000 people in human resources, accountancy and all those issues. We should be proud that we have been able to bring those jobs here to Belfast.

Phil Flanagan (Sinn Féin, Fermanagh and South Tyrone)

Go raibh maith agat, a Cheann Comhairle. Does the Minister agree that moves to increase productivity here could really be enhanced if we had access to complete and accurate public accounts and a stronger suite of economic indicators specific to this region?

Arlene Foster (DUP, Fermanagh and South Tyrone)

That is why the independent review of economic policy asked us to get those indicators. The Member will know — at least, I hope that he knows — that those indicators came out about two weeks ago. They will continue to inform us moving forward.

Seán Rogers (Social Democratic and Labour Party, South Down)

Does the Minister agree that the skills gap that employers find when hiring is a serious problem in dealing with low productivity and that a strategy between our schools, colleges and industry is essential if we are really to address that?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I suppose that the answer to that question really depends on the sector that the Member is talking about. There are some sectors where, I think, we are meeting employers' skills needs. However, in certain sectors where we have seen quite rapid growth over the past number of years — I am pleased to see that rapid growth — we need to do more on skills. Sometimes, when parents want their children and young people to move into professions such as law or accountancy or, indeed, to become a doctor, I ask them where the jobs will be for our young people. Certainly, in IT, a wide range of jobs is available to young people. Indeed, there seem to be a number of jobs in anything that has a science, technology, engineering and maths background.

I agree with the Member. I have been working closely with the Minister for Employment and Learning on skills, We have looked at skills in the area of renewable energy and heavy manufacturing, and we are looking at the IT sector. However, he is right to say that it goes back to the education sector as well. We need to start looking at younger people much earlier so that we can get the appropriate skills for the economy.

John Dallat (Social Democratic and Labour Party, East Londonderry)

3. asked the Minister of Enterprise, Trade and Investment what changes are being made to the tourism strategy to deal with any impact on visitor numbers caused by the images of violence and protests in recent weeks that have been shown on news around the world. (AQO 3444/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

On 23 January 2013, I announced that, following a meeting with representatives of traders, my Department, through the Northern Ireland Tourist Board (NITB), had agreed to provide financial support to help with the promotion of Belfast city centre. DETI, NITB, Belfast City Council and Belfast Visitor and Convention Bureau are working together on a recovery plan for Belfast. The broad elements of the package will include a contribution to the Backin’ Belfast marketing campaign, an animation programme for Belfast and broader tourism messaging in the Republic of Ireland and Great Britain markets, which will include some co-operative marketing with carriers.

John Dallat (Social Democratic and Labour Party, East Londonderry)

I welcome the Minister's answer. Does she agree that the damage done by the recent protests was not confined to Belfast and that action is necessary to counteract the awful damage done right across Northern Ireland and, indeed, beyond?

Arlene Foster (DUP, Fermanagh and South Tyrone)

Last year was, of course, a tremendously successful one. The 2012 campaign worked on a number of levels by bringing Northern Ireland to prominence in people's minds for a number of reasons. We had some very successful campaigns, and I was pleased to see the civic pride that people took in Northern Ireland throughout last year. There is no doubt that damage was caused towards the end of last year, and we can all revisit why that was the case. I could stand here and talk about why Belfast City Council felt that it was necessary to proceed with that vote, I could talk about flag protests, but I want to concentrate on 2013 and how we can get back into the market and get that positive civic pride back in Northern Ireland.

Although we have contributed money to Backin' Belfast, which, anecdotally, I understand is working and proving successful, we will, of course, continue to market the whole of Northern Ireland overseas. We are pushing ahead with travel, trade and consumer holiday shows. In our biggest market — GB — we had 40 days of news coverage about Northern Ireland, so we really need to get the message out that Northern Ireland has the lowest crime level in Europe, which I think we should be very proud of. We need to say to people that, if you come to Belfast or anywhere else in Northern Ireland, you will get a very warm welcome, good food and good hospitality. Those are the key messages to get out. So I make this appeal to Members right across the House: please look forward, and, when you talk to potential visitors, say right across the piece that we need them to come to Northern Ireland because it is a good place to work, study, visit and, indeed, do business in.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a Cheann Comhairle. The Minister talked about promoting the North. Maybe she should consider using "The Gathering" as a promotional tool for that.

When will the final figures for overseas visitors and tourist spend for 2012 be published?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I am still waiting for the Republic of Ireland figures. I am not clear in my mind when those will come out, but I think that it will be within the next two months. We will then have a clearer vision of what happened in 2012 all round.

Adrian McQuillan (DUP, East Londonderry)

Does the Minister agree that, when we as public representatives make statements to the press, it is important that we do not say things that will further harm the tourist product and pump up tensions?

Arlene Foster (DUP, Fermanagh and South Tyrone)

We can sometimes be drawn into situations in which we think that we are speaking only to our constituency and our people here in Northern Ireland. What really brought that home to me was when I spoke to one of our investors from the United States, who had a better knowledge of what was going on on the streets than I did. They pore over all the press cuttings and all the video footage on the internet. So, people need to realise that, when they say anything in here or outside, it will be reported across the world, which, of course, has an impact on Northern Ireland.

Kieran McCarthy (Alliance, Strangford)

The Minister referred to activities last year. I refer to activities last weekend and the disgraceful scenes when an ordinary, simple football match had to be cancelled because of the activities of some clowns on the street. The Police and Fire Games are just around the corner. With those scenes from last weekend, which were not the fault of footballers or the IFA but other people, is there any — [Interruption.]

William Hay (Speaker, Foyle)

Let the Member finish.

Kieran McCarthy (Alliance, Strangford)

— indication that the sportspeople who are due to come here will still come?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I made a plea that we watch our language, and then the Member gets up and calls some people "clowns". I do not think that it is helpful at all to refer to people as "clowns".

We had a very successful launch, which the CAL Minister and I attended along with the Mayor of Belfast. The figure for accommodation for the World Police and Fire Games has passed the £2 million mark, which I very much welcome. Some competitors from the previous games were over, and, frankly, they had a very good time across Northern Ireland. They visited Fermanagh, the Mountains of Mourne, the north coast, and, of course, they were in Belfast. They were singing the praises of this place as a destination. So, that is the sort of positive message that we want to send out. I hope to welcome, along with the rest of the Assembly, World Police and Fire Games members when they come here in August. I know that they will have a great time and a great games as well.

Colum Eastwood (Social Democratic and Labour Party, Foyle)

4. asked the Minister of Enterprise, Trade and Investment for an update on the marketing fund being supplied to aid Derry/Londonderry UK City of Culture 2013. (AQO 3445/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

The Northern Ireland Tourist Board and Tourism Ireland are liaising closely with Derry City Council and the Culture Company to develop aligned marketing and communications plans going forward. The Northern Ireland Tourist Board's spring marketing campaign promoting short breaks in the Northern Ireland and Republic of Ireland markets launched on Monday 28 January 2013, and the 30-second TV advert has a strong focus on Londonderry as the UK City of Culture 2013. A bespoke Londonderry 10-second edit has been airing from Monday 4 February 2013. Tourism Ireland is implementing a comprehensive programme of promotional activity to highlight Londonderry as the UK City of Culture 2013 in Great Britain and overseas.

Colum Eastwood (Social Democratic and Labour Party, Foyle)

I thank the Minister for her answer and for all her Department's work to date in this regard. We fully support the Backin' Belfast campaign, but, given that Derry City Council has had a business case in for the past number of months looking for help and support with marketing for the City of Culture, will her Department engage fully with Derry City Council to try to ensure that we have the biggest available marketing budget for what is the biggest event in 2013?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I thank the Member for his question. The Member will, of course, know that it is not just about my Department. We have been working very closely with the city council and the Culture Company on the marketing and communications plan. Under the new Executive advertising guidelines, I have to obtain permission for any marketing and communications campaigns in Northern Ireland and the Republic of Ireland market. There is a proposal for a bespoke marketing campaign for the UK City of Culture, and OFMDFM is considering that, so I am hopeful that a decision will be taken in the very near future.

Maeve McLaughlin (Sinn Féin, Foyle)

I thank the Minister for that update. I am aware that a meeting is due to take place with her Department next week about the issue. Will she give us a timeline for the release of the £1·3 million that was bid for in the iON marketing plan? Go raibh maith agat.

Arlene Foster (DUP, Fermanagh and South Tyrone)

I hope to be in a position to have a decision on the money connected with my Department — I understand that it is £400,000 — by the end of this week.

Gregory Campbell (DUP, East Londonderry)

The Minister may be aware of the series of meetings and discussions that have taken place with senior officials at the Culture Company and officials of the city council to ensure that there is a broad balance in the UK City of Culture events to which people of all communities and none can come. Does she support that drive and objective, and will she ensure, in so far as her Department's input can be ascertained, that that continues to be the case?

Arlene Foster (DUP, Fermanagh and South Tyrone)

Certainly, that is my hope. Officials are fully aware of that. I have been saying right across the piece since we started to look at this tremendous initiative, which will bring much added value to the region — not just this year; it will leave a long-term legacy, not least because it is the first UK City of Culture — that it is an opportunity for the city to really provide a benchmark for everything that comes after it. Given that this is Northern Ireland, there needs to be buy-in from all sectors. I was pleased to be in Londonderry on Friday, and I met some of the residents of Nelson Drive estate. They are holding a celebration in July, and they had their launch on Saturday evening. I wish them well, and I hope that all the communities get involved in what will be a tremendous year for the city.

William Hay (Speaker, Foyle)

Question 5 has been withdrawn.

Michael Copeland (UUP, Belfast East)

6. asked the Minister of Enterprise, Trade and Investment what action she is taking to address rising food costs as outlined in a recent report by the Consumer Council. (AQO 3447/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

Northern Ireland is part of a highly complex and integrated global food supply chain. We are not unique in that the food prices charged in our shops are influenced by a wide range of factors beyond our control. Food bills are increasing at a time when the spending ability of households in Northern Ireland is coming under increasing pressure. The 50% drop in farm incomes in the past year is a clear indication of the pressures being placed on household budgets. However, there are factors that we can seek to influence when it comes to food prices. The major retailers have an important role to play in that regard because they occupy a crucial position at the top of the food supply chain in Northern Ireland. I encourage them to engage proactively and positively about pricing with producers and processors.

Michael Copeland (UUP, Belfast East)

I thank the Minister for her answer. She indicated that she is aware that the cost of grocery shopping is a major concern. She may also be aware of the Consumer Council's proposed recommendations on food prices, pricing policies and the balance of special offers. Will the Minister indicate any level of work that she feels she will be able to undertake to implement specific recommendations?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I know that the Member has read the Consumer Council's report on the rising cost of food, but perhaps it is not a good time to talk about the issue. One of the difficulties for many of our food producers in Northern Ireland is the fact that they have been heavily pressurised by retailers to produce cheaper food. The farmers are not getting the benefit of that; the people who get the benefit are the retailers. That is why I say very clearly that there is a need for us to engage — I intend to do that after things have settled and the current difficulties have passed — so that we can have a real conversation about the price of food. Many food processors feel that they are coming under increasing pressure to deliver cheap food, as a result of which we have had some difficulties in the immediate past.

I take the Member's point, particularly the fact that consumers have less money now than perhaps a number of years ago. However, Northern Ireland food is very good for you. It is traceable. We should encourage retailers to make sure that they stock good, traceable food so that we know its heritage and history. I take the point about the cost of food, but there is no such thing as cheap food.

Mervyn Storey (DUP, North Antrim)

I thank the Minister for her reply. In some respects, she has answered the question that I was going to ask. Although the issue of rising food costs is very pertinent to many families, the issue of food contamination is causing grave concern. In light of the comments that she has made, will she assure the House that her Department and others that have responsibility for this issue will continue to ensure that we promote Northern Ireland home-grown produce, which is —

William Hay (Speaker, Foyle)

Will the Member finish?

Mervyn Storey (DUP, North Antrim)

— safe to eat, and that she will support every effort to ensure that that continues to be the case?

The horse meat contamination story has not been a good one. Large retailers have a crucial role to play in restoring consumer confidence. When consumers buy a meat product, they expect to get the meat product that was advertised. We need to engage in a meaningful way with the retailers and make sure that we get that message across.

Oliver McMullan (Sinn Féin, East Antrim)

Go raibh maith agat, a Cheann Comhairle. I thank the Minister for her answers so far. How will the Department work with the EU to bring forward its consumer agenda 2014-2020 to the North of Ireland?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I am sorry; I am not aware of that policy at all.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I thank the Minister for her previous answers. Has the Minister already met the Consumer Council in relation to its report on the cost of food? If she has not, has she any plans to do so in the immediate future?

Arlene Foster (DUP, Fermanagh and South Tyrone)

No, I have not met the Consumer Council yet. Indeed, I am not sure whether there is a request in to meet me. If there is, it will be dealt with in the usual fashion. However, I have not had the opportunity to speak with the Consumer Council as yet.

Gerry Kelly (Sinn Féin, Belfast North)

7. asked the Minister of Enterprise, Trade and Investment what progress has been made in meeting the Programme for Government targets for renewable electricity and heat. (AQO 3448/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

The 12% by 2012 target for electricity generation from renewable sources has been exceeded. At the end of January 2013, the rolling average for the financial year to date was actually 13·6%. The target for renewable heat is 4% by 2015, from a baseline of 1·7%. Good progress has been made towards encouraging renewable heat through the introduction of the Northern Ireland renewable heat incentive for non-domestic installations in November 2012 and the premium payment scheme for domestic installations in May 2012.

Gerry Kelly (Sinn Féin, Belfast North)

Gabhaim buíochas leis an Aire as ucht a freagra. I thank the Minister for her answer. Is the Minister aware of Kirklees Council's warm zone scheme? The flip side of what she has talked about in terms of renewable energy, of course, is saving energy and heat. That council carried out a project over a three-year period that involved 165,000 homes, and it has been evaluated as an excellent project for saving electricity and heat. If she knows about that scheme, will she support it —

William Hay (Speaker, Foyle)

Time.

Gerry Kelly (Sinn Féin, Belfast North)

— and, with other Ministers, bring it to the Executive?

Arlene Foster (DUP, Fermanagh and South Tyrone)

I am sorry; I did not quite catch the name of the area.

Gerry Kelly (Sinn Féin, Belfast North)

Kirklees Council.

Arlene Foster (DUP, Fermanagh and South Tyrone)

Yes, I am aware of Kirklees. We had the debate yesterday about sustainable energy and, as well as renewable energy, one of the key elements of sustainability is energy efficiency. Therefore, I welcome any move to help with energy efficiency. Indeed, the Energy Bill that will come to the Floor of the House will introduce an energy efficiency obligation to deal with such matters. One of the key issues for us is to use energy in the most efficient manner.

Paul Girvan (DUP, South Antrim)

8. asked the Minister of Enterprise, Trade and Investment what action she is taking to utilise vacant land held by Invest NI in South Antrim. (AQO 3449/11-15)

Arlene Foster (DUP, Fermanagh and South Tyrone)

In the South Antrim constituency, Invest Northern Ireland owns 394 acres of land. The majority of this land is occupied. However, 106 acres remain available at Global Point business park, Hightown industrial estate and Antrim technology park. Invest Northern Ireland land is held in support of economic development, and the agency is currently working with several businesses to develop interests in acquiring land in the area.

Invest Northern Ireland’s property is proactively marketed to foreign and indigenous investors. The final decision on location rests solely with investors. It is important to be aware that Invest Northern Ireland operates in the area of property as a result of market failure. As a result, its primary remit is not to maximise occupancy, rental or profit. Instead, it employs a long-term strategy in respect of its property holdings.

Paul Girvan (DUP, South Antrim)

I thank the Minister for her answer. In relation to the 106 acres at the Global Point site, I was wondering if there had been any communications between the Department for Regional Development and the Department of Enterprise, Trade and Investment with reference to an extension or the inclusion of park-and-ride facilities at this location?

Arlene Foster (DUP, Fermanagh and South Tyrone)

There are not 106 acres at Global Point. The 106 acres figure includes land at Hightown and Antrim. Only 91 acres are at Global Point.

On the Member's point about DRD, I understand that there are discussions between Invest Northern Ireland and the Members for South Antrim, who are understandably keen to have Global Point dealt with. Indeed, I recall the MP for the area, Mr William McCrea, lobbying me on the matter some time ago. Therefore, it is something that Invest Northern Ireland has at the front of its mind in relation to its property portfolio. I am sure that its chief executive would welcome any meeting with Members for the constituency.

William Hay (Speaker, Foyle)

That concludes Question Time. I ask the House to take its ease as we return to the Criminal Justice Bill.

Mervyn Storey (DUP, North Antrim)

On a point of order, Mr Speaker. During Question Time, the Education Minister asserted that, during his time as Minister, he has heard no representation from this side of the House about working-class Protestants. I put it clearly on the record that the Education Minister has heard about the controlled sector repeatedly from my party, and that is why the controlled sector body has been proposed.

Mr Speaker, will you also ensure that an inaccuracy about working-class boys not attending grammar schools — [Interruption.]

William Hay (Speaker, Foyle)

Order. I have given the Member some leeway. He will know that, as Speaker, I do not get involved in how Ministers answer questions, but the Member now has his comments on the record.

(Mr Deputy Speaker [Mr Beggs] in the Chair)

Executive Committee Business

Tom Elliott (UUP, Fermanagh and South Tyrone)

I will speak briefly to the second group of amendments. Amendment No 14 puts what I would call boundaries into place for the releasing on licence of a child convicted of a serious offence. I assume that the proposed new clause to some extent takes powers away from the Minister, powers that he appears quite willing to give up. I believe that it puts in place a better basis for that decision-making process, so I am content with the amendment.

Amendment No 15 concerns the "Examination of accused through intermediary". The detail is quite limited in the Bill, but we got a significant briefing in Committee, and we are again content to accept the amendment.

Amendment No 16 was tabled by the Committee in the name of its Chair. It is important that there be public confidence in the courts and the judicial system. There needs to be an opportunity for the judiciary to come under close scrutiny from everyone: members of the public; elected representatives; and other bodies. That scrutiny could often be a challenge to the courts, the judiciary in general or, in some cases, individual judges, in the same way in which a referee comes under scrutiny from spectators at a football match. That is right and proper, which is not to say that judges get every decision right or wrong.

I do not know how individual judges view the amendment to abolish the law of scandalising the court. However, I would be very surprised if they were opposed to its removal. I hope that judges would not want any personalised protection from comments that may be made about them above and beyond what other members of the public and those in public life are entitled to.

It is vital that judges and the judiciary have an independence that is required for their roles and responsibilities, without being totally protected by criminal legislation. I think that this is putting the judiciary and individual judges on a level footing with the rest of the community and those of us in public life. It allows people the opportunity to openly and freely have their say on what they think about judges and their decisions.

I listened to Mr McCartney, in his earlier contribution, referring to me and what I thought about what his party had said about some aspects. On occasions, I am sure that Mr McCartney and his party have said quite a lot about judges, the judiciary and the law that I would not agree with. Indeed, I am sure that, on occasion, some Sinn Féin members would not have been afraid to even go outside that law to say what they thought.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

The SDLP supports the second set of amendments. I will comment as briefly as I can on the matter raised by the Committee about the abolition of the offence of scandalising the court. The Committee has again shown itself to be exercising its functions and its power in an innovative way in the Assembly. I pay tribute to the Chair for leading the Committee in that regard on that particular provision. That is to the credit of the Committee, and it is perhaps to the deficit of the Executive at large for not grasping the issue themselves. We are performing a good service on this matter.

The remarks by Mr Hain in his book, which I happen to have here in the Chamber, and which I might refer to, gave rise to this issue. The remarks that he made were very unfortunate, and they were beyond simple criticism of a judge's judgement. We have to take that into consideration, but I think it was wrong to challenge Mr Hain in the manner in which it was proposed through that archaic legislation or law — I am not even quite sure whether it is actual legislation.

To use a criminal sanction was quite definitely wrong, but that does not mean to say that there was no merit in the reaction of the Attorney General, or, indeed, the reaction of the Lord Chief Justice. I will briefly refer to what the Lord Chief Justice said about Mr Hain and his remarks in his book. Sir Declan Morgan said that Mr Hain had made "unwarranted and wholly inappropriate remarks" about a decision made by a Belfast judge. Remember, Mr Hain's comments were not about the judge per se, but about his decision-making. It is very important to take that into consideration.

The fact that Lord Justice Girvan ruled against Mr Hain was very important. That point was raised by Mr McCartney earlier in this debate. Mr Hain seems to have overreacted to the way in which Lord Justice Girvan dealt with the case. He claimed that the decision had been "idiosyncratic" and "high-handed".

The Lord Chief Justice described the comments as having the potential to amount to:

"an assault on the wider independence of the judiciary".

He also said:

"There is a statutory obligation on those in ministerial office to uphold judicial independence."

He went on to conclude:

"In this instance however, it is difficult to regard the remarks as anything other than undermining and unhelpful to the administration of justice in Northern Ireland."

Those are pretty damning remarks by the Lord Chief Justice. Of course, it is a rare thing for the Lord Chief Justice to make public comment, but he did so on this occasion. That showed the extent to which he felt that the administration of justice had, in fact, been compromised.

Of course, Mr Hain was not in office when he wrote that particular book. Nonetheless, it reflected what he thought while he was in office, and to say that he was just making some criticisms of the judge was an underestimate of the damage that Mr Hain caused to the wider administration of justice.

It would be helpful to remind ourselves of what Mr Hain actually said. Remember, this was in the aftermath of an application to judicially review the Secretary of State for the appointment of a victims' commissioner. Mr Hain felt that this political decision should not have been brought before the court whatsoever. In his book, on page 333, Mr Hain said:

"The Appeal Court was similarly dismissive of his charges except on a procedural technicality. Having had run-ins with judges during my time as an anti-apartheid protestor, I did wonder whether some history explained the eccentricity of the judge or even whether in common with other high earners he had been unhappy about my reforms of the property tax system which raised rates for larger houses."

That, I have to say, borders not just on contempt but on undermining the integrity of the judge in that situation.

Mr Hain goes on to say:

"It certainly was, when I was invited to confirm the promotion of the said Justice Girvan to become the Right Honourable Lord Girvan in Northern Ireland's Appeal Court."

He goes on, saying that there was a document that he had to sign:

"Pondering the document in my red box at Hillsborough on Christmas Eve, could I in all honesty agree to this when the Lord Justice's legal capabilities seemed so flawed? It was a momentary rather than a serious thought."

Then he goes on to say:

"I knew full well that that would provoke an even greater fuss, and just to be sure, called Charlie Falconer"

— who was then the Lord Chancellor and was actually on holiday in the Caribbean —

"I agree with you, not a wise thing to do, he said, amused. Nevertheless, promoting someone who was going out of his way legally to damage me seemed a novel obligation."

That is a very serious statement. If it is not contempt, it certainly borders on contempt. It certainly impinges on the independence of the judiciary. He had it within his gift to promote this judge but decided that he perhaps should not. That is a very serious thing for Mr Hain to admit to. The fact that he did not do it is merciful. Nonetheless, he had it in his mind to do so. If he had not been able to contact Charlie Falconer, who was on holiday in the Caribbean, he might have stopped the promotion. That would have been extremely unfair. Here would have been a politician actively interfering in the appointment of a judge from one division to another, from the High Court to the Court of Appeal. So this is not a small thing. It is not just simply a matter of a level playing field, in my view. Judges have been —

Tom Elliott (UUP, Fermanagh and South Tyrone)

I thank the Member for giving way. He makes quite an interesting point. However, I assume that a judge who has been treated unfairly in any appointment process has a due process that he can go through in the same way as anybody else who is not appointed or given a promotion, where applicable. I do not see what relevance that has to this amendment.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

It is relevant in so far as the amendment arises from a consideration of this situation. The amendment would not arise if this situation had not arisen in the aftermath of the judicial review, which failed to satisfy the Secretary of State at that time. That is the important thing.

Jim Allister (Traditional Unionist Voice, North Antrim)

Will the Member give way?

Alban Maginness (Social Democratic and Labour Party, Belfast North)

Yes.

Jim Allister (Traditional Unionist Voice, North Antrim)

Surely Mr Elliott is quite wrong. The appointment of someone from the High Court to the Court of Appeal is surely a prerogative appointment that would not be subject to the normal reviews and restraints of any other job and promotion therein. Is that not the case?

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I am grateful to my learned colleague for his intervention. I think that that is true. It would not be subject to the same rigours as —

Tom Elliott (UUP, Fermanagh and South Tyrone)

I thank the Member for giving way again. The point that I was trying to make is that having this point in law is not actually helping that case if a criminal charge of scandalising the court can be brought.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I accept your point that this was the wrong way of doing it and that the Attorney General went down the wrong route. The opinion on that is almost unanimous, although I do not think that the Attorney General would agree.

Nonetheless, this matter was very serious. It was dismissed at Westminster by the House of Lords and House of Commons, and the Prime Minister's reaction was dismissive. That was quite wrong. If something similar had happened in England, there probably would have been a much greater reaction on the part of the Prime Minister in dealing with the situation. I do not think that he would have dealt with it in such a dismissive fashion. We were another jurisdiction, and I think that the Prime Minister was able to deal with the situation in such a dismissive fashion because of that. It did not immediately affect the judiciary in England or Wales, so there was an under-reaction in Britain.

I am not certain that everybody read Mr Hain's comments. If they had, I think that they would have been outraged by them. The Lord Chief Justice in this jurisdiction was outraged by them. I was, and I know that other people were, although they did not get the publicity or media coverage that those who criticised the Attorney General got.

Going back to Mr Allister's point, the remarks were not subject to some form of scrutiny. Therefore, what was the judge to do if something was not done by the Attorney General? I think that the only alternative that the learned judge had was to bring an action for libel. I am not so certain that a judge can freely take an action for libel. First of all, my understanding is that he needs the Lord Chief Justice's permission. Secondly, he opens himself up to all sorts of public scrutiny and so forth, which is inappropriate for a judge, because after the trial is over, he has to go on and carry out his public duty. So, it is a bit unfair to expect a judge to simply take the initiative with a libel action. Therefore, there may well be need for some other process to deal with a similar situation.

In conclusion, this was a serious situation. It has brought about the very reasonable amendment that the Committee tabled. I support that, as does my party, but it may well be that we need to look at some mechanism to deal with similar situations in the future. I am not sure how we would deal with it, but it was a serious situation that those at Westminster diminished. I think that we should take a very serious look at it.

Stewart Dickson (Alliance, East Antrim)

In this group of amendments, we are looking at the issue of releasing of children who have been convicted of serious offences. Although every criminal offence is regrettable, we are very fortunate that the number of detention orders under article 45(2) of the Criminal Justice (Children) Order is very low. However, as the Minister explained, when the orders are issued, it is entirely a matter for him to determine whether a child is released on licence. It is quite clear that that does not comply with the ECHR, and the independent judicial element is essential. For that reason, we are happy to support the amendment.

I listened to the Chair of the Committee and to Mr Maginness in particular, who described the issue of scandalising the court and the particular case that was raised. First of all, I am pleased that the Minister is happy for the House to make a determination on the matter, as that allows me to support the Committee. In those circumstances, we are going to make the right decision on the matter.

Paul Givan (DUP, Lagan Valley)

I thank the Member for giving way. Mr Dickson was enthusiastic at the Committee in his support for this. I trust that, in being given a free vote, he has been able to try to put some of that enthusiasm into the Minister so that the Minister can join with the House in abolishing the offence today.

Stewart Dickson (Alliance, East Antrim)

I am sure that the Minister will join me in the Lobby should that be necessary.

Mr Maginness made some very important points, as did the Chair of the Committee, in describing the circumstances in which we find ourselves. Mr Maginness ended on a particularly important point, which, in layperson's terms, is that this should not send out the signal that it is open season on judges. That is probably the most important thing that needs to be said about this. While we may be removing particularly arcane legislation, we are, nevertheless, making it very clear that this House and Northern Ireland has high respect and regard for its judges.

Should our judges not be in a position to protect themselves from public comment that is unwarranted, unreasonable or breaches the law in any way, the matter can be referred back to this House, and we can consider the potential for legislation. While people might find comments offensive, as Mr Maginness has described, or quite funny, it is, nevertheless, inappropriate to take a poke at our judges in that way, and a very clear signal needs to go out from this House that we do not in any way condone that type of comment about the judiciary. Our judges in Northern Ireland have to take clear and proper independent decisions on very complex areas of the law and matters that are put in front of them. They must and do have the confidence of this House and the public in Northern Ireland.

Edwin Poots (DUP, Lagan Valley)

It is an interesting debate and interesting legislation, and I welcome and support the amendments.

Scandalising the court is an archaic law that most people did not realise existed until Peter Hain's book came out. Mr Maginness quoted from it quite liberally, but I think that Peter Hain deliberately set out to develop some sensational comments in his book to try to sell it. Using the terminology "off his rocker" to describe one of our most senior judges is wholly inappropriate, but, nonetheless, through his response, the noble lord fell hook, line and sinker for what Mr Hain wanted, which was to create publicity for his book to ensure that as many people as possible were aware of its existence. I have absolutely no doubt that he achieved that goal through that piece of sensationalism.

The Lord Chief Justice initially responded to it, and many people thought that that was where it would rest, because the Lord Chief Justice was very clear in that response. However, the Attorney General was clearly prompted by Lord Chief Justice Girvan to take it somewhat further, and that caused huge controversy, not just here but at Westminster. That brought us to our knowledge of this law and has perhaps drawn to our attention that it is no longer necessary for Northern Ireland.

The Lord Chief Justice made it very clear that it is important that Ministers recognise the independence of judges, and I will come to that in a moment. However, it was somewhat bizarre this afternoon when Mr McCartney, a former hunger striker, placed a shield around Lord Chief Justice Girvan and offered him protection from the evil Peter Hain, who did not really want to appoint him as a judge but was left with no choice.

I can assure Mr McCartney that he does not actually need to offer any of the noble judges protection in this instance, because his party will have no role in appointing judges. Nor, indeed, will any other politician in Northern Ireland. The judges will be appointing the judges, and, as part of the devolution of justice, we as a party saw it as considerably the lesser of two evils: having judges appointing themselves, as opposed to the deputy First Minister having a role in their appointment .

To that extent, judges in Northern Ireland have a greater degree of independence than in any other part of the UK, and that brings with it a huge, significant and grave responsibility, because the same checks and balances are not in place. Where judges are perceived not to have been paying as much attention to public policy and the legislature as they should, when promotions become available, politicians have absolutely no role in the judge being promoted.

Therefore, judges need to pay a considerable amount of attention and respect to the legislature, and Chief Justice Sir Declan Morgan has recognised that. In fact, in Dublin last year, he talked at length about the importance of equilibrium. He said:

"In carrying out the task of securing equilibrium, we must remember that our principal objective is to secure public confidence in the administration of justice. We are all committed to the rule of law ... It also means that the independent judiciary is entitled to expect its position to be respected and secured by Ministers and legislators but must itself show proper respect for the role which others play in our justice system."

We are playing a role in the justice system today in this House. We are legislating, and due respect should be given to the legislative body — which is this Assembly — by our noble judges in what they do.

It was somewhat striking that, at the weekend, it became apparent that legislation was going to have to be done for a second time at Westminster relating to the deportation of individuals — deportation of criminals — from the United Kingdom. Legislation was passed, and the intent of Parliament was clear, but some judges decided that certain elements of human rights law would actually supersede what was passed at Westminster, and therefore did not give the judgements that the legislature would have expected. In that instance, Parliament is going to have to go and legislate again. Clearly, the equilibrium balance has fallen the wrong way in that instance, because Parliament should not have to go a second time to legislate for something that was very clear was the wishes of the public the first time around.

Very often, we hear judges playing out the human rights arguments and making decisions based upon human rights. Very often, the decisions that are made to ensure the human rights of one party actually deny the human rights of another party. A very clear example is the recent European judgement where a couple who own a guest house —

Roy Beggs (UUP, East Antrim)

I remind the Member to talk on the amendments in this grouping. The discussion should be relevant to it.

Edwin Poots (DUP, Lagan Valley)

Thank you, Mr Deputy Speaker. I will respect your indications. I am talking about the right to criticise judges and their decisions without actually scandalising them. It is not breaking the law. I will follow your guidance on this.

In truth, the judiciary have far greater independence here than elsewhere, and, therefore, that needs to be respected. At the same time, as politicians, we need to show due respect for the judiciary, and we need to be receptive of their judgements and decisions. However, this legislature needs to have the opportunity to pass its legislation and not get to a point at which it is critical of court outcomes.

A huge number of decisions will be taken on social policy, for example. Northern Ireland passes legislation, and it is the Assembly that passes it. I sometimes hear people say, "The noble Lord has said this, and we should therefore follow that." This legislature makes those decisions. Judges do not make legislation. This House makes legislation, and I think that we have to have due respect for that.

Therefore, on scandalising the court, I want to make it absolutely clear that we have to get to the point at which there is the equilibrium that the Lord Chief Justice has identified. He referred to a conversation that needed to take place. That was back in May 2012. I am not aware of that conversation having taken place. It may have taken place, but I am not aware of the conversation that has taken place to identify where that equilibrium lies. It is absolutely critical that we have that balance, and that that respect is shown to the courts. We should not hold the courts in contempt, because that would be wrong. We should not scandalise them, because that would also be wrong. However, the courts should have the same degree of respect for the decisions made by this House, when those decisions are made in good faith and on behalf of the public.

It is absolutely essential that all of us recognise that, whether you are in the Royal Courts of Justice or, indeed, in this Assembly, subject to Her Majesty, we are all subject to the will of the people. We are here as servants of the people, and courts are servants of the people. The first element of any democracy is justice, and, therefore, the role that courts play is absolutely critical in that.

I want to see and ensure that, although we remove this provision today, we show our courts due courtesy. However, I also want to see that our courts show due respect for this House, and, indeed, for other Houses that pass legislation and that the will of the people is something that is granted and not superseded. When we come to these fine definitions, where one person's human rights are considerably different from those of another, judges need to give a wider view based on the wider view held by the public and ensure that they respect everyone's human rights, not just those of one individual.

Jim Allister (Traditional Unionist Voice, North Antrim)

I want to focus on amendment No 16, which has arisen from quite a deep-seated controversy that broke last year over the action of the Attorney General. The Attorney General came in for a lot of criticism about his course of action. Just like a judge, he is not and should not be above criticism, but I think that he is as entitled as any of us to have that criticism be balanced and considered, rather than suffer knee-jerk and imbalanced criticism.

I will approach the matter in this way. If some right-wing extremist had said something extraordinarily offensive about a judge, attacked his personal, judicial and professional integrity, and the Attorney General had acted against that far-right — British National Party or whatever — individual, would the Prime Minister have risen at the Dispatch Box to condemn the Attorney General? Would politicians have been falling over themselves to condemn the Attorney General, or was it simply because it was the well-connected Peter Hain who was drawing the wrath of the Attorney General that we saw that reaction? That is a point worth pondering.

The Attorney General's position was this: he did not evolve the common law; he was put in that position by politicians, effectively, where he had to deal with the situation whereby the common law said that it was a contempt offence to scandalise a judge. Was he to ignore that, turn his back on it and pretend that it did not exist, or was he to address it? This House today will relieve him of that responsibility, because this House today will abrogate the provision in the common law whereby it is a contempt offence to scandalise a judge.

However, that was not the situation this time last year. That was not the situation when this book hit the book stands. The Attorney General was in a position where the law provided — not legislative law but common law and of equal strength in circumstances where there is no legislation — that it was a contempt offence to scandalise a judge. So, he had a judgement to make. He read, as, I suspect most in this House have or should have read, that Mr Peter Hain — it could only come from someone as supercilious and arrogant as Mr Hain — took great offence at being rebuked by the courts of this land and that he took it personally that what was a politically agreed appointment of an Interim Victims' Commissioner was questioned and challenged in the courts, for he — the mighty Mr Hain — is above all that. It is quite clear from the content and tenor of his book that he is not to be challenged. How dare anyone challenge the mighty Mr Hain, who was doing it all in the name of peace? He was serving that greatest of causes, and yet some jumped-up judge dared to take seriously a challenge to his actions and dared to question what the mighty Mr Hain had done. So, when Mr Hain came to write what he calls his memoirs, he had a score or two to settle. Yes, he had some other interesting things to tell us, because when you pick up this book, all sorts of interesting facts come out of it. He had interesting things to tell us about how he bought the DUP by flattery and by threatening to close the Assembly and stop their salaries. There are all sorts of interesting things, but I will not be sidetracked, because you would pull me up, Mr Deputy Speaker, I am sure.

He certainly had a score to settle with Lord Justice Girvan, and so he gets himself right down into the gutter. That is where he went: right down into the gutter. He said — he inferred — that what motivated Lord Justice Girvan was some personal issue with the fact that Hain had reformed property tax, and that people who lived in big houses did not like it. The shame is on Mr Hain for daring to think and express that.

I have had run-ins with many judges in court. I know Lord Justice Girvan and there is no more independent-minded man sitting on the bench in Northern Ireland. I have had issues with him, disagreed with judgements and been on the wrong side of his wrath — all of that. However, I can recognise from it that there is no more independent-minded man on the bench than Lord Justice Girvan.

It was shameful and scurrilous to suggest that he may be motivated by something as base as the fact that a politician in the form of Mr Hain had interfered and pushed up his rates — a scandalous suggestion. Then to go on, as Mr Maginness drew to our attention today, to ponder, when it came to the justified promotion of the Lord Justice, that his legal capabilities seemed so flawed. Not satisfied with attacking his personal integrity by suggesting that he would be influenced by something such as a hike in his rates, he was now prepared to attack his professional capability and integrity.

I come back to my first point: if someone on the raving loony right — or left, where Mr Hain used to be — had said that of a judge, and the Attorney General had acted, would he have borne any criticism? I suspect not.

Edwin Poots (DUP, Lagan Valley)

I appreciate the Member's line of argument. However, if I was to describe the Member in some of the ways that Mr Hain chose to describe Lord Justice Girvan, the Member may choose to take a case against me for doing so. In that respect, why would we be in a position where we give judges greater protection than other members of the public or, indeed, Members of this House or Government Ministers? Should we put some special blanket of protection around retired Ministers or, indeed, current Ministers? Why should we have that scandalisation just for judges? I take it that the Member is arguing that we do not change this today. In that respect, why would Lord Justice Girvan not be in a similar position as myself or the Member to take someone to court if they slandered or libelled him?

Jim Allister (Traditional Unionist Voice, North Antrim)

The Member raises a fair point, although he makes a wrong assumption about my position on this amendment. Just to crystallise that, I think that it is right that we make this amendment but wrong that we leave a vacuum having made the amendment.

Let me expound on that, if I may, and to do it in the context of how the Member raised the point: could not Lord Justice Girvan or any other judge so scandalised simply sue for libel? Yes and no is the answer. Yes, in theory; in practice, very difficult. Who hears his case? One of the other dozen judges who sit with him in the High Court? A judge is in a very delicate, difficult position where he cannot really defend himself in the manner that you, I or anyone else can defend themselves without impinging, I perceive, on the performance of his duties on the bench. A judge sues today for libel, and a colleague hears the case. You can already imagine —

Raymond McCartney (Sinn Féin, Foyle)

Will the Member give way?

Jim Allister (Traditional Unionist Voice, North Antrim)

Just let me finish the point.

You can imagine the innuendo that would arise. The judge succeeds in his case, and it is a nudge, nudge, wink, wink situation. Of course, he was always going to succeed. Was one of his colleagues not hearing the case? If the judge fails, where does he then stand as a judge coming into court to preside over the next libel trial? Whether the judge wins or loses, where does he stand as a judge coming into court to preside over the next libel trial? He stands in a very invidious position. That is why I think it too trite to say that he has the same rights as all the rest of us. He might in theory; in practice, it is a very different matter.

That is why I think that there is a bit of a gap, which now needs to be filled. If we are taking away the common law provision, we need to have some hedge of protection to avoid it being open season. Remember this: libel is a useful protection only if you have someone worth suing. If some vagabond worth nothing says something about you, there is no point in suing — no point whatsoever — so it is not just as easy as saying, "Let him sue." The House has to address whether any safety protection is required to stop it being open season through scurrilous remarks of the ilk of those made by Mr Hain.

Raymond McCartney (Sinn Féin, Foyle)

Who would hear the case under current legislation? Would the same points not apply?

Jim Allister (Traditional Unionist Voice, North Antrim)

Yes, and that is one of the problems of a small jurisdiction. In Northern Ireland, obviously, the judges and practitioners all know one another. That is one of the consequences of a small jurisdiction. In England and Wales, you could well have judges who have never met and know nothing about one other, and so you might have more obvious scope for the freedom of litigation without the inhibitions that I am talking about. If proceedings had been brought, they would have been, at least initially, determined here, and, quite potentially, could have gone ultimately to the Supreme Court, where at least there would be a degree of remoteness. However, there are certain constraints to a small jurisdiction, and the Member identifies one of them.

Edwin Poots (DUP, Lagan Valley)

Will the Member give way?

Jim Allister (Traditional Unionist Voice, North Antrim)

Yes.

Edwin Poots (DUP, Lagan Valley)

I appreciate where the Member's comments are coming from. My understanding is that Lord Justice Sedley successfully took a case against 'The Daily Telegraph', so this is not something that has not happened before.

I caution that the import of the Member's remarks, if not the intent, is that a judge may be only a little impartial if one of his colleagues brought a case before him. I have no doubt that the judiciary would have acted with total impartiality had Lord Justice Girvan taken a case against Peter Hain and brought it before the courts.

Maurice (DUP, Fermanagh and South Tyrone)

Will the Member give way?

Jim Allister (Traditional Unionist Voice, North Antrim)

Yes, if I may deal with this intervention first.

I agree, and my expectation is that the judiciary would have acted impartially. However, that would not stop the proverbial man in the street, whatever way the case turned out, saying that it was a fix. That is ready-made territory for someone to say that.

Yes, a High Court judge in England did successfully sue for libel, but this comes back to the point that Mr McCartney made. That judge sued in a very much larger jurisdiction, where there was not the personal interface between the litigant and the decider, or someone key to the decision-making. So it is a problem and a difficulty. Although the House has been well persuaded that the common law should be abrogated, I think that the House is now leaving a gap. The House needs to think about that.