Why Bryson should be heard in public

18 Sep 2015 Nick Garbutt    Last updated: 19 Sep 2015

Judith Cochrane MLA, acted on legal advice

Scope editor Nick Garbutt argues that the decision to hold part of the Finance Committee's Nama investigation in private is a subversion of democracy. 

One of the most important tasks of any legislative body is to hold the government, the executive, to account. 

It is hard to conceive of any more serious allegations than those that lie at the heart of the NAMA controversy, with claims of shady dealings involving business men, law firms and even politicians.

No wonder the Finance Committee is conducting an investigation into these matters, it is its duty to do so. We need to ensure that the governance of Northern Ireland is beyond reproach and that’s partly why we have MLAs and the Assembly, to scrutinise the Executive without fear or favour.

To date the committee has been hampered in its work because several witnesses have either declined to appear citing legal reasons or else turned up, given their names and job titles and then failed to answer any questions as if they were prisoners of war in one of those old WW2 movies.

The latest development has been the decision to hold the hearing with loyalist blogger Jamie Bryson in private session.

Bryson has apparently made a series of allegations about the NAMA affair in a blog, which for rather different legal reasons, nobody else can read. What he has to say may be fact, fantasy or a heady cocktail of the two. We don’t know because we’ve not read it.

However the fact is that he made himself available to appear before the committee and the committee has asked him to appear, provided he confines his testimony to its terms of reference, he has also agreed to do that.

Now apparently the committee has been furnished with legal advice which has yet to be put into the public domain which led Alliance MLA Judith Cochrane to propose that the session with Bryson should be held in camera with minutes, if necessary redacted, published in a few weeks’ time.

Last night Scope tweeted Alliance to ask if this was the official party position or if Ms Cochrane had acted on her own initiative. We were advised that she had acted on legal advice and that any other member of the party would have followed that advice.

It is hard to know what that this advice was and who furnished it. But we can probably surmise that it was to the effect that what Bryson might have to say could potentially impede or compromise police and other investigations and committee members might also have been concerned that he would somehow use the  privilege provided by Assembly proceedings to stray outside the terms of reference and make defamatory comments without being legally answerable for the consequences.

The police may be investigating the matter but no charges have been laid and we have no idea how long their investigation will take, so it is hard to see the inquiry discussing matters which are sub judice. Furthermore there is plenty of precedence for matters to be subjected to parliamentary inquiries, police and independent investigations at the same time. We only have to go back to the recent press and media scandals. Media conduct was being scrutinised by the Leveson Inquiry, the Culture and Media Committee and the police. Nobody even raised that as an issue.

People have fought and died to uphold the supremacy of parliamentary proceedings and MLAs have no obligation whatsoever to do what lawyers tell them, no matter how well meaning the advice.

There are two other factors.

The first is that Bryson has been invited to appear before an Assembly committee. We elect politicians and proceedings of the Assembly should be held in public. That is a fundamental democratic principle. So if the committee had concerns that their proceedings would be hijacked or subverted it should not have invited him to appear in the first place.

Secondly by taking this stance, and also, incidentally, by accepting witnesses’ refusals to attend or refusing to answer reasonable questions for “legal reasons” the committee is undermining itself and the Assembly.

Accepting that their own particular legal concerns are more important than an inquiry by the legislature raises disturbing questions, because it clearly implies that Ms Cochrane and her allies believe that the judicial process is more important than the legislature. This is a subversion of democracy and one which would not be tolerated at Westminster. This is a very simple principle: the law, as enacted by parliament, is the will of the people, the legal process is there to enforce it, it does not sit above it.  Parliament is ultimately supreme.

Committee investigations are conducted without fear or favour and if witnesses say something that can then trigger legal action, that’s their problem.

When Westminster committees are conducting investigations, witnesses are summoned and can be compelled to attend. A good example of that is the Northern Ireland Committee’s absolute insistence in hearing from Tony Blair when investigating the On the Runs controversy earlier this year. The Assembly also has the power to compel attendance but has never exercised it.

If witnesses fail to attend at Westminster there is the ultimate sanction which has not been required for centuries but still exists: holding people in contempt of parliament for which they could even be imprisoned.

A culture at Stormont whereby MLAs meekly follow legal advice needs to be challenged. 

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