Scotland’s Commissioner to investigate Gerry Kelly’s attendance and speech at Castlederg parade

With the Northern Ireland Assembly Commissioner for Standards, Douglas Bain, having recused himself from the investigation of the complaints that Sinn Féin MLA Gerry Kelly’s attendance and speech at the controversial Castlederg Parade in August this year was in breach of the code of conduct for MLAs “by glorifying terrorism and damaging community relations”  [Is he washing his hair? – Ed]  He’s a member of the Parades Commission…  ANYhoo…  As the BBC report, the NI Assembly today agreed to appoint Scotland’s Commissioner for Ethical Standards in Public Life, Stuart Allan, as an acting commissioner for the purposes of investigating “any complaint arising from the public assemblies in Castlederg on 11th August 2013”.

In the meantime, the NI Assembly Committee on Standards and Privileges have published their report on a complaint about comments made by Sinn Féin MLA Alex Maskey on the UTV Live Tonight programme on 14 January 2013 – following an investigation by the Northern Ireland Assembly Commissioner.  Here’s their conclusion

15. The Committee has given careful consideration to the evidence gathered by the Commissioner and the reasoning behind his conclusions. The Committee has given particular consideration to the circumstances of the public disorder that evening, the broader context to Mr Maskey’s comments and Counsel’s opinion. Having taken all of these matters into consideration the Committee is satisfied that Mr Maskey has not breached the Code of Conduct. The complaint is not upheld.

16. While the Committee recognises that in the context that Mr Maskey made his remarks, and only in this context, he did not breach the Code of Conduct according to the letter of the law, it wishes to highlight the Commissioner’s comments that Mr Maskey’s comments “were far from prudent”.

17. The Committee believes that the language used by Mr Maskey could have been interpreted by some as inflammatory and could have potentially exacerbated an already tense atmosphere at that time.

18. The Committee would therefore advise Mr Maskey, and all other Members, to exercise great caution in the language that they use when speaking as public representatives, particularly at times when public disorder is occurring or there is the risk that it might occur. [added emphasis]

Interestingly, and perhaps relevant to the Castlederg complaints, during his investigation into the complaint against Alex Maskey, MLA, the Northern Ireland Assembly Commissioner sought Counsel’s opinion “to determine whether the actions that Mr Maskey said he would have taken, in the given circumstances, would have amounted to a criminal act”.  From the Committee’s report

6. The Commissioner considered that the key issue in this complaint was whether the remarks in question were in breach of the public duty principle in the Code which states that Members have a duty to uphold the law and to act on all occasions in accordance with the public trust placed in them. The Commissioner stated that it was therefore crucial to determine whether the actions that Mr Maskey said he would have taken, in the given circumstances, would have amounted to a criminal act.

7. In order to inform his view on this matter, the Commissioner sought Counsel’s opinion. Counsel’s opinion is set out in document 6 of the Commissioner’s report. In essence, the opinion states that even when the throwing of stones results in either personal injury or damage to property it does not invariably follow that there has been a criminal act. There is a defence, in prescribed circumstances, of prevention of crime and protection of property to a person prosecuted for throwing stones. Counsel advised that it was not possible to say determinatively that any of the defences engaged in the circumstances of this matter would definitely have succeeded if prosecution of the stone throwers had followed. Nonetheless it is Counsel’s opinion that if a jury was satisfied that the residents had no other option to protect their homes but to throw stones, this would point towards the defences being successfully made out.

8. Given the facts established, and the advice received, the Commissioner was not satisfied that in the part of the interview that was the subject of the complaint Mr Maskey was condoning or supporting an act, namely stone throwing, that would, in the circumstances, have been criminal conduct. Consequently, the Commissioner was not satisfied that Mr Maskey failed to comply with his duty under the public duty principle to uphold the law. [added emphasis]