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Mr. Robinson: Members of the Democratic Unionist party are certainly committed to using every platform that that Assembly will provide to speak on behalf of the people of Northern Ireland, and to test the Secretary of State in terms of agreements that we can reach with others on key matters relating to education, the review of public administration, rating and the economy in general. We will speak on behalf of the people of Northern Ireland, and the people of Northern Ireland want us to have that voice. More than that, they want the Government to heed that voice. For that reason, the Secretary of State could go a long way to add to the importance and vitality of that Assembly were he willing to accept the amendment tabled by the SDLP.
Lembit Öpik: Does the hon. Gentleman agree that, if he is at all worried about getting permission from the decision makers, he could phone Sinn Fein and get its permission, because it would probably also like to have those powers? Whatever other differences there are, I have little doubt that Sinn Fein could see the benefits of having those powers bestowed on this interim Assembly.
Mr. Robinson: I will leave it to the hon. Gentleman to speak on behalf of Sinn Fein. I will certainly not attempt to do so. I simply know that the people of Northern Ireland want to have real decisions taken within that Assembly. They want it to have as much power as is possible. If it is not possible immediately to have an Executive set up, the Members of that Assembly should press the Secretary of State to divest himself of some of the powers that this legislation gives him, and to devolve some of those powers in whatever way is possible, whether through a corporate Assembly, legislative devolution or administration devolution, to the elected representatives of the people of Northern Ireland.
On privilege, again, I have difficulty with the position of the hon. Member for North Down (Lady Hermon). First, the terms are almost identical to those in 1998. Far
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from opposing the position in 1998, her party supported it. Therefore, what the Government are doing in relation to the privilege of the Assembly has consistency. Having discovered that, I think that she decided to see whether she could find some more secure ground, and became a defender of the media and the pressnot always a popular position among politicians, but then she cannot be accused of always taking popular positions. I do not think, however, that the press have anything to fear. The Secretary of State may tell the hon. Lady and me whether this is indeed the case, but according to my reading of the legislation the statement, not the Member, is covered by privilege. If the statement is reported, it is covered by privilege, and the media are therefore entitled to publish it. The media will be covered in exactly the same way as the Member, because it is the statement that enjoys the privilege.
As the hon. Lady said, the privilege is not the full privilege enjoyed by the House of Commons and the Northern Ireland Assembly created under the 1998 Act, but I do not believe that the distinction will have any real implications for Assembly Members or for the press. I agree with those who have said that it will be very difficult for anyone to prove malice in the courts. Indeed, I am not entirely sure whether it is right, if a Member usesor abusesprivilege and attempts, with malice, to damage and defame individuals, for even this House to confer such a degree of privilege.
I have used the privilege of this House on many occasions. I have named individuals, and made clear what information I have had about the activities of those individuals. However, I have never done that with malice. I have done it because I have believed it to be in the public interest, and have believed my facts to be accurate. If any Member stands up in the Northern Ireland Assembly and, with malice, determines to "out" or defame someone, I am not sure that that Member should enjoy the privilege of the Assemblybut I repeat yet again that it will not be the full-blown Assembly in which, normally, robust exchanges would take place that might require the exercise of that privilege.
As a party that is always very careful about what it says and would not seek to stretch the bounds of privilege, my party has nothing to fear. I hope that the hon. Lady's remarks are not a harbinger of something from which some of her Assembly colleagues may need protection.
Lady Hermon: I cannot possibly speak for my Assembly colleagues. I could not tie their hands or gag them, for that matter. I have never been able to do so in the past, and I shall not be able to do so in the future.
will be covered by limited privilege in this new creature, the Assembly. The key word that is missing is "publication": no privilege will attach to publication of a statement made by a Member of the Assembly.
The statement is covered by privilege, whether it is heard directly, heard through transmission or read in newspapers. If that is not the case, the Secretary of State ought to tell us, or at least tell the
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media, but according to my everyday understanding of the language, the statement is covered irrespective of whether it is repeated by a Member or by the press, and therefore no action can be taken against either.
Mr. Clifton-Brown: I wonder whether the hon. Gentleman ought to give some credence to what has been said by the hon. Member for North Down (Lady Hermon). Section 50(1) of the Northern Ireland Act 1998 is very clear about the position that obtained before that date. It states:
I am not sure whether schedule 1 would cover publication, and I think that we need clarification from the Secretary of State. Furthermore, the hon. Gentleman will doubtless agree that lawyers who do not want statements to be covered by privilege will try to argue that they are made maliciously. As drafted, this provision could lead to considerable arguments and put the leader of the Assembly in a difficult position.
Mr. Robinson: I suspect that the person who made the statement would be in a difficult position, rather than the Assembly's Presiding Officer. I assume that the section that the hon. Gentleman quoted from is from the 1998 Act.
Mr. Robinson: Therefore, under it, both the publication and the person to whom the remarks are attributed are covered by full privilege; however, the Bill establishes that they will not be so covered. Privilege will be qualified, in that such a statement must have been made without malice; alternatively, it must be impossible to prove that it has been made with malice.
There are two further issues on which I want to comment, the first of which is the powers of the Secretary of State. I said to the hon. Member for North Down in the House yesterday that I concurred with many of her misgivings about the storing up of more and more powerindeed, unfettered powerin the Secretary of State. Effectively, in many instances he can do what he thinks fit, which is clearly a cause for concern. However, the difficulty is that although the hon. Lady has taken away such responsibilities from the Secretary of State through her amendment, she has given them to no one else.
That takes us back to the question of why the Secretary of State is setting up "the Assembly", rather than "the Northern Ireland Assembly". Had he detailed all such responsibilities and designated them to various individuals, or groups of individuals, in effect he would have been amending the entire 1998 Act. I would not have worried greatly about amending the 1998 Act, but I suspect that there are some people sitting behind the Minister who would not be too keen on doing so.
Of course, the reality is that the jobs that the Secretary of State has been given the power to perform under the Bill have to be performed. If we are to remove his
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responsibility for performing them, we must also amend the Bill to give that responsibility to the Assembly or someone else. That is the deficiency in the amendment tabled by the hon. Member for North Down, but I concur with her view that the Secretary of State is taking far too much on to himself. It would show greater faith in the elected representatives of Northern Ireland if he vested some of that responsibility in the Assembly itself.
I turn finally to the election of the Presiding Officer. The wording in paragraph 2(6) of schedule 2 is clumsy and unusual, even if it is not such that I would oppose it outright. I do not like the idea of somebody appointed by a Secretary of State being
The Secretary of State is not the Northern Ireland electoratehe does not have the power to elect anybody in Northern Ireland. He can appoint, and I would have been quite content for him to make the "appointment", and for it to stand until the Northern Ireland Assembly itself elected someone. Paragraph 2(6) of schedule 2 states:
I hope that that will not be an issue. I would far rather that the Assembly met and elected its own Presiding Officer or Speaker. That would be an indication of the maturity of the Assembly and its ability to reach agreement. Indeed, if it could not reach agreement on such issues, one must question whether it would reach agreement on some of the greater issues that it will face. I hope that it does not become an issue, but I do not like the idea that the Secretary of State can be deemed to have elected a Presiding Officer for the Assembly. In reality, the person concerned will be the Secretary of State's appointee and, with due respect to the Secretary of State, will have less authority as an appointee than if elected by the Assembly as its Speaker.
I hope that the Assembly will elect a Speaker, but I am concerned by the terminology in the legislation. It suggests that the Secretary of State can allow the Assembly to elect its Speaker, but it does not have the power to do so until such time as it reverts to Northern Ireland Assembly mode. Under the present mode, it will not have the power through this legislation or under the draft standing orderssome of us at least have seen themto elect a Speaker.
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