Sinn Féin says it will oppose attempt to jail those guilty of RHI-type behaviour

The private member’s bill from TUV leader Jim Allister was debated by the Assembly for the first time on Monday night, something which revealed a split between the DUP and Sinn Féin over the issue.

Even though it was the DUP which was far more responsible for the RHI scandal than Sinn Féin, the DUP said that it will support the bill.

Mr Allister, a QC and the Executive’s most vocal critic, said that his Functioning of Government (Miscellaneous Provisions) Bill was as a result of watching the RHI Inquiry’s evidence where “it was abundantly clear that there were many issues — some of them compellingly basic — that needed to be addressed”.

The North Antrim MLA said: “It would astound anyone from outside Northern Ireland who starts to read the Coghlin report to see such basic gaps in how this place has been administered, that there has been a lack of taking minutes of meetings.”

However, Sinn Féin’s chief whip John O’Dowd made clear for the first time that Sinn Fein will vote against the legislation – although the party will not on its own be able to veto it unless other parties join it in signing a petition of concern.

Mr O’Dowd made clear that one of his reasons for opposing the bill was because it was being brought forward by an individual MLA, rather than by the Executive. He said: “I will set out my party’s position on this bill. We will not support it....many of the clauses are unnecessary, and I do not think that a private Member should introduce this legislation.”

However, DUP MLA Paul Frew objected to that argument, saying that it was disrespectful to MLAs to say that they should not introduce such legislation when they are elected as legislators and are allowed to do so.

Mr O’Dowd also told MLAs: “Is it necessary to send someone to jail? Not in the circumstances that he set out.”

Mr Allister argued that the current position of having a code of conduct for spads was insufficient because that code could be changed at the whim of the DUP and Sinn Fein.”

Setting out the importance of banning the use of private email accounts being used for government business, he said: “The RHI inquiry was littered with evidence of people consciously not using the official email and electronic systems. Why? I would say that it was because they wanted to hide matters.”

DUP MLA Paul Frew told the Assembly: “We support the core principles of the bill. In light of the findings of the RHI inquiry, every party and every department has a responsibility to pursue reforms that rebuild public confidence in the governance of Northern Ireland.

“We have nothing to fear and much to gain from a better system of government, with a transparent challenge function and an accountable Executive. We can never ever go back to business as usual.

“We will not get a second shot at this. We need to treat the public with respect. The Executive need to treat MLAs with respect. MLAs have to do their job, which is to scrutinise through asking ministerial questions and in the scrutiny Committees, and the Departments must furnish all information to the Committees so that we can do our job.

“I hope that the bill can be used as a vehicle for change, and that we can change the practices that we have had to live with regarding spads: their appointment, their behaviour and the input that they have had into departmental offices.

The bill passed its second reading stage.

How would the legislation change Stormont?

The two most significant elements of Jim Allister’s bill would create new criminal offences for some of the conduct which featured during the RHI scandal.

Mr Allister’s legislation would make it a criminal offence for any minister, civil servant or spad to electronically communicate government business using personal email or other accounts – something which hides government business by keeping it off the grid.

The widespread use of private email systems, private phones and other electronic communications by many DUP and Sinn Fein ministers and spads added to the cost of the RHI Inquiry, making it time-consuming and in some cases impossible to piece together what had gone on within government.

That information should all have been held centrally within the department and accessible to an inquiry or a court if necessary.

The bill would make it a defence for anyone charged with such an offence to show that they had “reasonable excuse” for the failure to use official systems.

However, if they were convicted by a court the offence would carry a prison sentence of up to two years.

Mr Allister’s bill would also make it a criminal offence for a minister or special adviser to communicate confidential government information to a third party, something which happened on multiple occasions during the RHI scandal, including when Arlene Foster’s then spad, Andrew Crawford, sent to family members confidential ministerial papers setting out how cash for ash was soon going to be brought to an end.

With the threat of a five-year prison term, the bill would make it a criminal conviction for any minister, spad or civil servant “to communicate, directly or indirectly, confidential and/or commercially sensitive information to any natural person or legal entity for the financial or other potential benefit of any natural person, legal entity, minister, special adviser or civil servant”.

The legislation would also retain a spad in each Executive department but would end the current situation whereby there are allowed to be eight spads in The Executive Office – four each for the DUP and Sinn Fein, although at present the parties have only three each in that deparmtent.

Mr Allister’s bill would halve the total number to two for each party.

Even if the bill was passed into law, it would not apply retrospectively to any of those involved in the RHI scandal.

The bill would also attempt to:

• Prevent Sinn Féin’s use of unofficial spads, facilitated by the civil service, to get around past legislation which barred those with serious criminal convictions from acting as government advisers;

• Make spads subject to the processes and procedures of the civil service disciplinary code;

• Slash the upper level of spad pay to bring it into line with that of a senior civil servant at assistant secretary (grade five) level;

• Allow the Assembly’s Commissioner for Standards to investigate complaints against ministers;

• Place a duty on the civil service to “make and keep an accurate written record of every meeting attended by a minister in departmental service, recording, in particular, those present, date and time, topics discussed, each ministerial indication of intent and every decision and action point”.