As my hon. Friend the Member for South Down (Ms Ritchie) said, the SDLP has tabled several amendments in this issue. I take on board what the Minister said in an attempt to give a “prebuttal” of our amendments, and I will come on to amendment 6, which was tabled by the hon. Member for North Down (Lady Hermon), when I speak to clause 8.
We have tabled amendments 8 to 12 to clause 7. The Minister tried to say there would be no tension in interpretation between different parts of the proposed pledge of office. Proposed new sub-paragraphs (cf) and (cg) of schedule 4 to the Northern Ireland Act 1998—
“to work collectively with the other members of the Executive Committee to achieve a society free of paramilitarism”
and
“to challenge all paramilitary activity and associated criminality”—
could well find themselves in tension with another Minister’s understanding of proposed new sub-paragraph (cj), which is to
“support those who are determined to make the transition away from paramilitarism.”
My hon. Friend the Member for South Down described the situation in which she found herself. She tried, as stated in proposed sub-paragraph (cf), to
“work collectively with other members of the Executive…to achieve a society free of paramilitarism”,
and she was told at that time, “No, it’s in your Department. You do your own thing. You make that decision.” She then acted on the basis of, as in proposed sub-paragraph (cg), challenging
“all paramilitary activity and associated criminality”
only to find herself undermined by other members of the Executive, who said that they were actually discharging the requirement of proposed sub-paragraph (cj) as supporting
“those who are determined to make the transition away from paramilitarism”.
That issue ended up in the courts, so there is already proven experience of exactly the contradictions and tensions that can exist between these things when they are different bullet points that can be quoted separately. This is a recipe for confusion, nonsense and obfuscation.
We also need to recognise that people will interpret various parts of the pledge differently. Will the Minister tell us whether denying something as paramilitary activity breaches the line in the pledge to
“challenge all paramilitary activity and associated criminality”?
When someone turns around and says, “Oh no, so and so is not engaged in paramilitary activity or associated criminality; they are a good republican,” does that mean they are in breach of proposed sub-paragraph (cg)? Is that a failure to challenge? Is denial a failure to challenge, or can denial exist alongside the commitment to challenge all paramilitary activity, because someone can say that as paramilitary activity and associated criminality is not defined by anybody else, it is what anybody wants to define it to be? This touches on a point made earlier by the hon. Member for South Antrim (Danny Kinahan) on the earlier group.
Clause 7 is wide open for misinterpretation and misapplication, which will lead to people being scandalised. It will not avoid us being in exactly the sort of crisis situation we had last year. In the aftermath of a horrible crime and comments that the Chief Constable could not avoid making, we then had political difficulties. The terms of the pledge of office and the undertaking are meant to avoid our being back in that situation, but they will clearly fail to do so. That is why we have tabled our amendments.
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Amendment 8 would ensure better reconciliation between paragraphs (cf) and (cj) so that the pledge would read:
“to work collectively with the other members of the Executive Committee to achieve a society free of paramilitarism…including agreed support measures for those who are evidently making the transition away from paramilitarism”.
That recognises that the agreed support mechanisms would be those agreed by the Executive. It would not be people making up their own minds about what they were doing or how they were to interpret the words. The amendment seems solid and cogent.
The Minister pointed out an error in our printed amendment 10, in that it refers to “paragraph (e)”, but that is because we went back to the original 1998 Act, which of course was changed, including by the St Andrew’s agreement legislation. The aim of the amendment was to ensure that the commitment in the pledge of office, taken by Ministers, to act in accordance with all decisions of the Executive Committee and the Assembly was not trumped or qualified by paragraph (ck), which reads:
“to accept no authority, direction or control on my political activities other than my democratic mandate alongside my own personal and party judgment”.
Anyone could easily say that, in defying or failing to abide by a decision of the Executive, they were acting, in good conscience, in accordance with paragraph (ck). Why leave ourselves with such a difficulty? Our amendment would simply qualify paragraph (ck) so that it could not be read in absence of the overall commitment to respect the decisions of the Executive Committee and Assembly. I cannot see where the Minister gets his argument against that.
Our amendments to clause 8 seek to make good issues similar to those addressed in our amendments to clause 7 on the pledge. There is no provision for how an alleged breach would be investigated, just as, currently, there is no clear mechanism for dealing with alleged breaches of the ministerial code, or any other breaches of the pledge of office. As the person who drafted the first terms of the pledge of office when we were negotiating the Good Friday agreement, I recognise that that has been a consistent dereliction ever since.
It has been recognised several times since by various First Ministers and Deputy First Ministers that something needs to be done to make good that gap, but we keep tripping over issues and concerns that only re-open the gap, so we never actually fill it. Our amendments might not be the perfect filler, but Members should not pretend that a serious gap does not exist. What does adding these fine but confusing, inconsistent and arguable words achieve, given that there is no mechanism to investigate or to recommend that action be taken as a result of an investigation?
Our amendment 12 tries to make that good by providing that the Northern Ireland Commissioner for Complaints—more frequently known as the Ombudsman—would receive any complaints and by giving them the power to appoint a pledge adjudicator. It might well be that some of the breaches need somebody with more legal competence or experience, so the amendment would provide for the commissioner to make such an appointment, in consultation with the Lord Chief Justice for Northern Ireland.
In respect of the pledge, we see the gap that the hon. Member for North Down talked about in respect of the undertaking in clause 8, and it was clear that the hon. Member for East Antrim (Sammy Wilson) agreed with that logic. If we recognise the gap in the undertaking, we should also recognise the serious gap in the pledge. There are people who have their own version of what constitutes paramilitary activity. Hon. Members have referred to past murders, such as those of Robert McCartney and Paul Quinn.
There were people who ended up as Ministers or senior MLAs after the Executive was restored who tried to tell us that the IRA had no involvement in Robert McCartney’s murder and that it was an unfortunate example of knife culture. They were in complete denial. We also had the denial of the IRA’s involvement in Paul Quinn’s murder, as well as all the other denials. Let us recognise that there are issues. We hope that such issues and concerns do not arise again, but we cannot pretend that they will not; otherwise, why would we be passing the Bill in the first place? Why would we be having these pledges and undertakings if we thought the issues had disappeared?
Our amendment 11 to clause 7 would require the pledge of office to be taken orally in front of the Assembly by the First Minister and Deputy First Minister, as was the original intention when we negotiated and wrote the agreement. It was intended that the First Minister and Deputy First Minister, who were then to be elected jointly by the Assembly, would take the pledge of office together. That was why some parties supported the concept of the pledge of office—they liked what might be called the constitutional liturgy of their taking a joint pledge of office that referred unambiguously to serving all the people of Northern Ireland equally, along with the other principles.
It was for some other convenience—more a bureaucratic or procedural convenience—that a version was drawn up with words that allowed the First Minister and Deputy First Minister simply to affirm the terms of the pledge of office, as in the 1998 Act. I see no reason why there should not be a wider commitment. It would be more helpful, particularly given that we keep adding terms to the pledge of office. It would do no harm if they were actually vocalised. If that happened, people might remember and register them more and have more input.
The amendments to clause 8 take up parallel issues to those raised in our amendments to clause 7. They address and try to resolve the inconsistencies between the wording of different parts of the undertaking, not least between the sixth part and some of the other parts. Consistent with the whole community approach, we have tried to extend the wording so that the under- taking applies not just to working together with other Assembly Members but to working with others. Assembly Members need to work with councillors, MPs and other representatives in the community if we are serious about confronting paramilitarism, working together and supporting those making a transition. The idea that that falls to Assembly Members alone is nonsense. Again, our amendments are consistent with what we have said.
It is a bit much for the Minister to say, “We cannot have any amendments, because there was a consensus in the Fresh Start negotiations”. There was not a consensus for what we have ended up with in the “Fresh Start” agreement. He tells us that something on which there was no consensus was agreed as though there was a consensus. We are trying to fill in gaps that even DUP Members, who support the “Fresh Start” agreement, now see in the Bill. Perhaps the Bill does need to be improved. There is a consensus on these Benches that remedial work is needed, but still the Minister waves his hands and says, “No, there is no consensus for it”, while ignoring the consensus emerging on at least some of these points.
Our amendment 17 would provide for the Assembly Commissioner for Standards to be the point of reference for complaints about the undertaking and allow the commissioner, if they want, to appoint somebody with particular experience to deal with complaints and to use the facility of the pledge adjudicator, as appointed by the Commissioner for Complaints. If there were complaints about the undertaking or the pledge, there would probably be parallel or rival complaints, and this facility would allow that to be taken care of and avoid separate and rival investigations into issues deemed to be relevant or paired.
That would help us to go forward. It is about making good the gap that the hon. Member for East Antrim talked about when he intervened on the hon. Member for North Down. There is no way of ensuring a standard of adherence to the undertaking, no way of investigating breaches, nowhere to take a complaint or anything else. That is where I have some difficulty with the proposal made by the hon. Member for North Down that the answer lies in Standing Orders. If there is a Division, I will support her proposal purely to show the deficiency of the Bill and the clause, but I do not believe that the answer lies in Standing Orders.
Standing Orders are about the conduct of business and proceedings in the House. They are not normally about investigating things that have happened outside the House or allegations of various activities or consorting with people engaged in various activities. I am not sure that dealing with investigations and sanctions is normally the stuff of Standing Orders, so I do not think that the proposal best answers the issue. That is why we have tried to answer it differently in our amendments.