Official Report (Hansard)

Session: 2007/2008

Date: Tuesday, 18 December 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

Witnesses:
Mr P J Fitzpatrick ) Chief Executive, Courts Service of Ireland
Professor John Jackson ) Queen’s University Belfast

The Chairperson (Mr Donaldson):
Good morning. As part of the Committee’s inquiry into the devolution of policing and justice matters, I welcome Mr P J Fitzpatrick, chief executive officer of the Courts Service of Ireland to today’s evidence session. Mr Fitzpatrick has provided a written submission setting out some issues that the Committee might wish to explore with him.

We appreciate the time that you have taken, Mr Fitzpatrick, not just to provide us with a written submission but to join us today. It is, perhaps, somewhat unusual but not unprecedented that we should have a witness from a different jurisdiction, and we are delighted to have you with us this morning. We are also pleased to see your colleague, Mr David Lavery, the director of the Northern Ireland Court Service.

I would also like to acknowledge the assistance kindly afforded to the Committee by Justice Denham, who recommended Mr Fitzpatrick as a suitable source of advice for our inquiry. As you will be aware, Mr Fitzpatrick, the Assembly has tasked the Committee with responsibility for considering the preparations that must be made in advance of the devolution of policing and justice powers from Westminster to the Northern Ireland Assembly and the Executive. We are very pleased that you have so willingly offered us your expert advice.

We are particularly interested in the Irish courts system. We have taken evidence from a number of interested parties who have suggested that, in Northern Ireland, we may wish to pursue changes to our system that would reflect the arrangements currently in place in the Republic, particularly with regard to the independence of the Courts Service of Ireland from the Department of Justice, Equality and Law Reform. We have been examining that situation carefully and are keen to explore with you how the system works in practice, the evolution of the courts service under the new arrangements, and its relationship with the Department. One of the Committee’s main concerns is to ensure that proper lines of accountability exist between the courts service, the judicial system, the legislature and the Executive. We will be keen to explore that in some detail.

First, I invite members to declare any relevant interest. I declare an interest as a member of the Privy Council and the Northern Ireland Policing Board.

Mr G Robinson:
I have no interest to declare other than as a member of my local district policing partnership.

Mr P J Fitzpatrick (Courts Service of Ireland):
Thank you for your kind invitation, Chairman. As you said, Judge Denham and our chief justice were anxious that we should assist the Committee in whatever way possible. Judge Denham asked me to tell Committee members that if they wish to meet her at a later stage in their deliberations, she would be happy to oblige. I am very pleased to assist the Committee with its important deliberations.

In the paper that I forwarded to the Committee ahead of today’s meeting, I sought to describe the arrangements in the Republic of Ireland and, in so doing, to address the list of issues that the Committee Clerk sent to me. I do not propose to repeat the content of that paper in detail.

The working group on the courts commission, which was chaired by Mrs Justice Denham, a judge of our Supreme Court, studied examples of courts administration throughout the world. The working group concluded that an independent courts service, with a board chaired by the Chief Justice and containing majority representation from the judiciary, provided the best solution to the need to strike a balance between appropriate judicial independence and accountability to Government.

The recommended model has worked well. I was recruited as the first chief executive of the Courts Service of Ireland. I did not work in the courts previously, and I am not a lawyer — I came from elsewhere in the public sector. I had been a chief executive and had therefore been used to a non-commercial state body, which is the term used to describe public bodies in Ireland that are other than ministerial Departments.

I am very happy to share our experience with the Committee, but, in doing so, I am very conscious that each jurisdiction, or country, must design and develop a courts system that is suitable for its jurisdiction and that provides confidence for its communities. Having said that, there are many similarities in our respective legal systems and in the problems we face.

Recently, I was asked to assist the Scottish Court Service with its plans to become a non-ministerial Department. It is appropriate that I take the opportunity to place on record in this forum that the courts administrations of the United Kingdom and of the Republic of Ireland have forged very strong links and maintained regular liaison over several years, with a view to sharing ideas on issues and challenges of common interest, of which there are many. I pay particular tribute to my counterpart David Lavery and his colleagues in the Northern Ireland Court Service, with whom we have established a particularly warm relationship and an excellent productive dialogue.

With your permission, Chairman, I will make a few comments on the list of specific issues that were sent to me. I will do so in the order in which they appear on the list, after which I will be happy to answer questions from members, in so far as I can.

The first issue is accountability, which you mentioned in your opening remarks, Chairman. Under the legislation, the Courts Service of Ireland is accountable to the Minister for Justice, Equality and Law Reform, and, through the Minister, to the Government. It is also accountable to the Oireachtas. I am the accounting officer for the Courts Service and as such I am obliged to appear before the Committee of Public Accounts annually as regards the appropriation accounts.

I appear before other Committees frequently, for example, the Joint Committee on Justice, Equality, and Law Reform, and the Joint Committee on Health and Children, which had concerns about children’s courts, social inclusion and drugs. I appear before many Committees in my capacity as accounting officer.

Members will see from my paper that the Courts Service must have regard to any policy or objective of the Government, or a Minister of the Government, concerning its functions. The Courts Service must submit a strategic plan to the Minister for approval every three years, which, when approved — with or without amendments — the Minister must lay before both Houses of the Oireachtas.

The Courts Service also submits an annual report and such other information that the Minister might require. An obvious example would relate to parliamentary questions. We have a very tight time frame for turning those around to ensure that the Minister is in a position to answer them.

The bulk of funding for the Courts Service is provided by the Government. It seems to me that an independent, non-commercial state body is independent to the extent that legislation, funding and other governance arrangements allow it to be. It is not, and never could be, independent to the extent that the Courts Service or any other independent, non-commercial state body in Ireland could do its own thing irrespective of the wishes of the Government. That is not possible, and I suspect that if we were to attempt to do that, we would be abolished quickly.

In Ireland, judicial independence is provided for, primarily, in a written constitution. There is specific provision in the legislation establishing the Courts Service to protect the independence of the judiciary. The chief executive — not the Chief Justice — is the accounting officer and must appear before Oireachtas Committees. Legislation precludes the Courts Service from functioning in such a way as to interfere with the conduct of court business by judges or to impugn the independence of the judiciary in performing its judicial functions.

The law also precludes me or any chief executive from answering before the Oireachtas any question relating to the exercise of a judge’s judicial functions. However, in the event of a dispute as to whether a question constitutes a judicial matter, either the committee or I, or both, can refer to the High Court for a ruling, although that has never happened.

As regards who is responsible for determining policy, the division of responsibility between the Courts Service, the Minister and Government can be summarised as follows: the Minister is responsible for policy for the justice sector generally and for legislation; the Courts Service determines operational policy for the Courts Service; for example, prioritisation of capital building programmes, capital ICT projects, etc.

The Courts Service board is free, within the constraints of its strategic plan, which is approved by the Minister, to allocate resources within the funding and staff numbers that have been approved by Government.

As regards the mix of judicial, lay, and other membership of the board, membership includes judges, representatives of court users, both sides of the legal profession, an officer of the Minister for Justice, Equality and Law Reform, and so on, and that mix has worked well. The Courts Service has had a great deal of consensus and I cannot recall ever having had a vote to resolve an issue. All members contribute equally, and there is no inhibition or constraint on a non-judicial member contributing in the same way as a judicial member. In fact, the Chief Justice who chairs the board would probably ensure that the balance falls in favour of non-judicial members, and that is important.

The board determines policy for the service and oversees the implementation of policy by the chief executive. It appoints the chief executive, and the chief executive holds his or her contract with the board and has no other reporting arrangement other than to the board. In other words, the board hires and fires the chief executive — if that situation were to arise.

I have been with the Courts Service since it was established in 1999, and the involvement of judges on the board was the single most important recommendation — after the recommendation to establish a Courts Service — contained in the working group’s report. Judges were concerned about how that might impact in the separation of powers, and what impact it would have on their judicial functions. After lengthy and careful consideration, the working group concluded that it would be appropriate for judges to work alongside others on a board, given that the functions of the service were concerned with the management and administration of the courts, rather than the administration of justice itself.

I have no doubt, whatsoever, that had that not happened; much of our success would not have been possible. There is little that we do — or that we can do — that does not require the support and engagement of the judiciary. The Chief Justice, the president of each court, and a judge who is elected by his colleagues, are on the board. That has made it significantly easier for me, as chief executive, to obtain the engagement, co-operation and assistance of judges — at all levels — in implementing what is, by Irish standards, a radical change programme to a system that had remained virtually unchanged since the foundation of the state. That is what the working group has said and not what I am saying.

The change programme, for judges and staff — and for the people who use the courts — has been huge. An example of that change can be seen in the fact that, in 1999, there was no email facility as court buildings were not cabled for IT. There are lots of other examples, but I will not bore you with them.

One good example of change has been the establishment of a new commercial court. We were aware of the serious problem with regard to inward and foreign investment in that Dublin lacked a court that could resolve major, complex commercial disputes speedily. Through our reform and development directorate, and through our representation on the Superior Court Rules Committee, we were able to develop — with the judiciary — the commercial court case management regime and many other initiatives on rationalisation of procedures and case management. Much of that would not have happened, or would have been significantly more difficult to achieve, had the judges not been on the board, both the presidents and judges who were elected by their colleagues.

I was also asked to talk about legal aid. The Courts Service does not have any responsibility for legal aid. There is a civil legal aid board, which is another independent board. Criminal legal aid is undertaken by the Department of Justice, Equality and Law Reform directly. Judicial appointments do not fall within the Courts Service’s remit. There is a judicial appointments advisory board, which is a statutory board that makes recommendations to the Government about judicial appointments. The Courts Service provides secretarial and administrative support for that board simply because there is no one else to do so.

I will mention early warning systems, which is something that was not included on the list of issues. One critical issue for any independent body is having early warning systems for the Minister and the Government. At the outset, we put mechanisms in place that were quite apart from the accountability provisions that were set out in the legislation. We put those systems in place so that if an incident occurred in the courts in Kerry or Cork, the Minister’s office — and the Secretary-General of the Department — would be alerted immediately. That works both ways; they alert us to issues that would be raised in the Dáil and to those that the Minister encounters as he goes around the country. That early warning system was vital and has worked well so far.

Another important point is the relationship between the independent body and its parent Department. Earlier, I said that a body is as independent as the legislation and funding allows it to be. The Courts Service could not work without a good, constructive working relationship with the Department of Justice, Equality and Law Reform. From the outset, we sought to ensure that we would have such a relationship. I meet the Secretary-General every fortnight and I, certainly, talk to him every week. Staff at different levels do likewise with their counterparts in the Department. The Chairman and I meet the Minister, regularly. Obviously, I am giving you a Courts Service perspective on that relationship. However, last week, I took the opportunity of talking to the Secretary-General about my visit to the Assembly and I asked him if he had a perspective on it. I did so, because, the Committee is entitled to say that that is my perspective. The Secretary-General, Sean Aylward, asked me to say that:

“The arrangements have surpassed the Department’s expectations.”

He also suggested that, if the Committee considered it to be useful, he would be happy to talk about how the system has worked from his perspective. There are two parties in the relationship. He asked me to emphasise the fact that he would be happy to talk to the Committee, or the Secretariat, or to meet with the Committee and its Chairman.

The Courts Service is staffed by civil servants, so there is movement to and from the wider Civil Service. In fact, there is more movement now than there was before the Courts Service was established. Our establishing legislation is quite similar to that for any other independent non-commercial body.

Again, thank you Chairman and members for your invitation, and I hope that my visit will assist the Committee in its very important deliberations. I repeat that every country and jurisdiction must design systems that are appropriate for them. I have described our system, which works well for us. Some elements may be of help to you, and, if I can be of any further assistance to you by answering questions or providing clarification, I am happy to do so.

Finally, I wish the Committee every success during the coming months in its very important work.

The Chairperson:
Thank you very much, Mr Fitzpatrick. That was very helpful. You have given us a very useful summary of the benefits of the independence of the Courts Service, as you see them, and useful information on accountability, which I mentioned at the outset.

What have been the top three benefits of the Courts Service’s having moved from being an integral part of the Department to being separate from it with the lines of accountability that you have discussed?

Mr Fitzpatrick:
To answer that, I must talk about the context in which the Courts Service was set up. The courts system had remained virtually unaltered since the establishment of the state and was light years behind the rest of the public service. The courts lagged behind even the rest of the justice sector.

The main benefit of setting up the Courts Service was that there would be a dedicated agency with an agenda to modernise and manage the courts — there would be a single focus. For example, the organisation would not be trying to manage the courts, the Garda Síochána and so on. There would be an organisation with the single task of bringing the courts into the twenty-first century.

The second big benefit was, without doubt, involving judges on the board of the Courts Service. I omitted to say earlier that not only are judges on the Courts Service board, they are on all of the committees, including the building committee, the ICT committee, and the family-law development committee. The total number of judges involved at any one time — between the board and committees — could be 40 or thereabouts.

Had the Chief Justice, presidents and judges not been on the board, judges would have been reluctant to have become involved in committees, because the issue of the compatibility of doing so vis-à-vis the separation of powers would not have been teased out, as it was by Justice Denham’s working group. That has been hugely important.

We have also been able to have people representing users on our board. We have a big board, but we cannot be representative of all users. However, as you know, there is a strong social-partnership agreement between Government, the employers and the trade unions, so our board has representatives from business, the congress of trade unions and the law profession, as well as somebody to represent users. In addition, we have set up user groups on a structured, formal basis, so we have national user groups for criminal, civil, family law, and so on. We have regional user groups. Therefore, the Courts Service receives feedback from people who use the courts, and a mechanism has been provided for them that did not exist before. The other benefit of that is the sense of ownership.

Since the Courts Service has been established, it has been fortunate that its budget, particularly with regard to capital, has been quite good. However, its revenue budget has been quite tight. The judges’ presence on the board means that there is greater appreciation that the board determines priorities and that there will never be enough money in any public sector body to go around. People ask how that would work if times were difficult and there were reductions in spending. At present, the judges’ view is that, at least, they would still be in a position to influence the areas in which reductions in spending would happen, at a policy level, rather than those being imposed and, therefore, there being no sense of ownership.

The Chairperson:
That was helpful. I invite members to ask further questions.

Mr O’Dowd:
I thank Mr Fitzpatrick for his useful presentation. I noted in his comments that he is the board’s accounting officer and that he reports to the various Committees. As Chairperson of the Public Accounts Committee in the Assembly, I have a particular interest in the matter and would be more than keen to have the Courts Service before that Committee in the future. Mr Fitzpatrick said that he reports to the various Committees and that the Chief Justice is the chairperson of the board. Who holds the Chief Justice to account?

Mr Fitzpatrick:
The board is accountable to the Minister and, through the Minister, to the Government for the performance of its functions. The reason that I am its accounting officer is because in the Republic of Ireland, due to the separation of powers and the written constitution, there is a clear separation between the Executive, the judiciary and the legislature. It is for those reasons that the Secretary-General of a Government Department and, in most cases, the chief executive is the accounting officer.

However, in some non-commercial state boards, the chairman could be, and has been, summoned to appear before an Oireachtas Committee. The specific provision in the Republic’s legislation is that the chief executive appears before the Committee of Public Accounts and other Oireachtas Committees. If the Minister has a serious concern, however, he or she would write to the chairman of the board. Formal communication would normally take place between Minister and chairman and between Secretary-General and chief executive at a formal level. Obviously, at an informal level, I would meet the Minister. At formal level, the chairman would meet the Minister. In doing so, the Chief Justice would act in an administrative capacity, rather than in a judicial capacity, as chairman of the board. He would only be accountable for the functions of the Courts Service, not for his other, different role as head of the judiciary. I understand that that is somewhat confusing. There are two distinct roles: one is to be head of the judiciary and the other is to be chairman of the board.

Mr O’Dowd:
I want to tease that out. I appreciate the answer and the clarification. However, the reason that I asked the question is because the judiciary has the majority of seats on the board and because the Chief Justice is the chairman of the board. Mr Fitzpatrick explained that the structures work well so far. Clearly, the judiciary has an important role to play in running the board and in the Courts Service. However, an important element would be to ensure that it does not become an overly dominant force in that structure. How is that ensured?

Mr Fitzpatrick:
That certainly has not happened. The judiciary has not sought to dominate the board. In fact, there has been consensus at board level. The Chief Justice, who chairs the board, seeks to ensure that the voices of non-judicial members are given the opportunity to be heard. Therefore, domination by the judiciary has certainly not been the experience. I suppose that it could happen if it were the majority in a polarised board. However, that has not happened.

The judiciary also appreciates that the other people on the board — from the business world, the Irish Congress of Trade Unions and the Department of Justice — bring a different perspective of which judges may not be aware. It is, therefore, helpful to have that perspective.

A huge amount of the work is done through the committees. Therefore, many items that come to the board have been agreed and recommended by a committee. The committee system has worked well. There are a number of non-board members on committees, such as judges. Judges do not make up the majority on any committees; I cannot think of any committee on which that is the case.

Mr McFarland:
I am sorry that I missed the beginning of your presentation. I am a layman to most of this — unlike some of my lawyer friends. Are the Minister or the Oireachtas committees entitled to call the Chief Justice to explain to them why something has gone wrong if they are unhappy with some administrative problems in your Courts Service? Any major mess-ups in the Courts Service are, ultimately, the responsibility of the board which, in turn, is answerable to the Minister. Can the Minister summon the Chief Justice or the board to explain what has gone wrong?

John O’Dowd touched on the issue of accountability, and that is what we are trying to explore. I am happy that a degree of independence is required for things to run themselves. However, if the legislature makes the law and provides the money to enforce it, the people whom the legislature represents — the public — will want someone to explain what has gone wrong and why it has gone wrong. The Minister will have to stand up in the Oireachtas and explain that the Courts Service collapsed in a heap and that everything is a shambles, and there will have to be an explanation as to why that is the case. How is that problem tackled in your jurisdiction?

Mr Fitzpatrick:
Thankfully, such a situation has not arisen. However, if it were to happen, I cannot see anything in the legislation that precludes the Minister from writing to, or raising an issue with, the chairman of the board. I am the accounting officer, and I attend the Committee of Public Accounts and other Oireachtas, or parliamentary, committees. There is nothing in the legislation to preclude the Minister from taking up an issue with the board through its chairman. It has not happened, but if something did go horribly wrong, the Minister is permitted to talk to the committee chairperson about it, because the Courts Service and the board are accountable to the Minister: the legislation is clear on that.

Mr McFarland:
We have powerful Committees, and I presume that you have the same. Our Committees have powers to summon and papers. Can your committees summon you as a matter of legal right? Can the Minister summon the chairman of the board as a matter of legal right? Or is he merely invited to have a word with the Minister?

Mr Fitzpatrick:
I get invited to the Committees all the time, but those invitations are more of a direction to attend.

Mr McFarland:
Do your committees have the power to summon you? I understand that there is not a problem with this when things are working well. However, a difficulty will arise when there is some drama in the Courts Service about which it will be tentative. Does the Courts Service have the power to refuse to appear before an Oireachtas committee or a Minister?

Mr Fitzpatrick:
I do not have that option. I shall attend committees; that is clear. There is no provision for the chairman to attend. I do not envisage a situation in which the chairman will attend an Oireachtas committee, because he is the Chief Justice. In view of the separation of powers, there is no situation in which the Chief Justice or judges will appear before an Oireachtas committee. However, I see no reason why the Minister would not raise any concerns with the chairman or with the entire board.

Mr McFarland:
The separation of powers is to do with their judicial responsibilities, which has traditionally been the position of judges. The difficulty is that in our case the Lord Chief Justice has proposed that judges become administrators, which has already happened in the Republic of Ireland. There is an absolute separation of powers when judges wear their legal hats but, as they will wear two hats in the future, it could be argued that the moment that they put on an administration hat the separation of powers will not have the same effect. People will want them to be accountable and able to be summoned when they wear their chairman/administration hat, and it would be perfectly legitimate for the legislature and the TDs to expect them to explain administrative problems, which they clearly would not be able to do in their legal role.

I appreciate that this all hypothetical, but we are trying to devise a system that learns from current practice. We have had the Scottish and Irish models recommended to us, and we would like to hear your thoughts on the matter before we plump for one system or the other.

Is there a problem with judges being administrators, and then potentially hiding under the separation of powers because they are judges?

Mr Fitzpatrick:
It was never contemplated that the Chief Justice would appear before an Oireachtas committee, and that has never happened. There is nothing to stop the Minister raising an issue with the Chief Justice as chairperson of the board about the functions of the board or a matter that the Minister was uneasy about.

Mr McFarland:
Is that a legal right of the Minister?

Mr Fitzpatrick:
The Act says that the board is accountable to the Minister for the performance of its functions, so it seems logical that if the Minister had a concern he would be entitled to raise it with the chairman of the board and the entire board.

The specific provision that I referred to was the appearance before Oireachtas committees, which was never contemplated, and that is why a particular provision was included to allow me, as the chief executive, to be the accountable accounting officer. The service, however, is accountable to the Minister. In those circumstances there is nothing to prevent the Minister raising an issue with the chairman of the board.

The Chairperson:
It would appear from your paper, Mr Fitzpatrick, that in respect of your role as accounting officer you cannot be requested to give account for any matter relating to:

“(a) the exercise by a judge of his or her judicial functions

or

(b) the exercise by a person other than a judge of limited jurisdiction of a judicial nature”.

There is a very clear and defined separation even in your role. While you can give account of general administration, you cannot be held to account by committees of the Oireachtas in respect of the functions of a judge.

Mr Fitzpatrick:
Exactly, Chairman. There are potentially some grey areas, and there is a provision that in the event of a dispute — which has never happened, by the way — between the Oireachtas committee and the chief executive either can refer the question to the High Court for a ruling. When I draw attention to the fact that that is a judicial function, by and large that is accepted. Otherwise, I am happy to deal with whatever questions I am asked.

Mr McCartney:
In your written submission you say that the term of office for board members is generally three years. Who determines when a person leaves the board? Is it the nominating body, or the board?

Mr Fitzpatrick:
It depends. The Chief Justice, the presidents and the chief executive are ex officio members of the board. The president of the Law Society and the chairman of the Bar Council, or their nominees, are members of the board, and they can either sit on the board themselves, or nominate someone else. The others are nominated for three-year terms, and this is the third anniversary of our establishment. The membership is not staggered, and there could conceivably be a high turnover, although that has not tended to happen. Unlike some boards, where half the members leave at one time and the remainder leave later, the membership of the board is fixed at a term of three years, which is relatively short.

Mr McCartney:
Is it possible for someone to stand down after three years and immediately be renominated?

Mr Fitzpatrick:
There is nothing to prevent that. In fact, it has happened, and a small number of people have been on the board for three terms, but others change regularly.

Mr McCartney:
Has the Chief Justice, who has the power to nominate another judge in the Supreme Court, remained as chairperson since its inception?

Mr Fitzpatrick:
Three Chief Justices, one of whom retired soon after our establishment, have held that position. Mr Justice Ronan Keane then became Chief Justice, and he asked Judge Denham to chair for about four or five months before he retired. The current Chief Justice, the Honourable Mr John L Murray, chairs the board now. Therefore, with the exception of a few months, the Chief Justice has chaired the board.

The Chairperson:
Who develops and sets sentencing policy under the current arrangements?

Mr Fitzpatrick:
Some of it is set out in legislation, and the Appeal Court lays down guidelines, but there is no sentencing body. There are proposals to establish a judicial council, and it is envisaged that sentencing policy might be incorporated into its role. However, at present, sentencing is mostly set out in legislation — and that is limited mainly to mandatory sentences, such as for murder. Other than that, the Appeal Court decides the sentences.

The Chairperson:
Is there discussion, from time to time, between the Department and the board on sentencing policy?

Mr Fitzpatrick:
No, because sentencing is more of a judicial role. In the absence of anyone else, the board decided, on the instigation of the Chief Justice, to establish a committee to prepare for judges information on the sentencing in different courts. It was titled the committee to provide information on sentencing, because the provision of sentencing guidelines for judges would have been a step too far beyond our remit.

Given that there was no one else to provide the information, the board decided that the next best thing was to set up the committee, which is currently collating information on sentencing to circulate to judges to inform them about how their colleagues are setting sentences, and so forth. It is being done in a vacuum because there was no one else to do it.

The Chairperson:
This may be an unfair question, but if you were able to design a solution, how would you want that vacuum to be filled? Would the current arrangement of a committee of the board be made permanent, or is there a better option?

Mr Fitzpatrick:
Sentencing policy should fall within one of the several remits of a judicial council that would also be responsible for judicial training. That is probably the logical home for sentencing eventually.

The Chairperson:
Sentencing limits and mandatory sentences are set down in legislation in the Oireachtas. Where is the connection between that arrangement and the Oireachtas in setting sentencing limits?

Mr Fitzpatrick:
The legislators set the sentencing limits where there are mandatory sentences.

The Chairperson:
Should the judiciary desire sentences for murder to be strengthened in some way, how would that be communicated to the legislature?

Mr Fitzpatrick:
If problems were to arise in the courts, there is a judicial support unit in the Courts Service. Under the Courts Service Act 1998, we have the option to make proposals to the Minister.

The Chairperson:
Does the board make those proposals?

Mr Fitzpatrick:
We bring the proposals to the board. However, it is a sensitive area, because the judges are concerned about the separation of powers, but they are equally concerned that they do not trespass on the legislators’ role. Therefore, judges will be careful about interfering. They see it as the function of the legislators and the executive to legislate and for them to implement the legislation.

There is a unit that is involved in modernising court rules, practices and procedures. It has a close working relationship with the Department of Justice, Equality and Law Reform. It sometimes address issues that are causing concern or that are presenting difficulties in the courts. It is a tricky situation at times.

Mr Attwood:
Mr Fitzpatrick, it is always useful for the Committee to get real-world evidence. You have certainly helped in that regard. You may have included this in your written submission, but if you have not, and if you have the time, it may be useful if you could send a note to the Committee elaborating on the roles of the national user group and the regional user groups. While it may not be immediately relevant to the Committee’s work, it may be useful in the longer term to consider models of that sort.

I was a little surprised that you said that the reason the Denham report went in the direction that it did was to bring the Courts Service into the twenty-first century. I can understand that. Were there other reasons as to why that model was preferred? There is a perception that the Department of Justice, Equality and Law Reform in the South has had a big influence on the management of the criminal justice system. Was that a factor in leading Susan Denham to make the conclusions that she did? Would there have been resistance from the judiciary regarding the model that Justice Denham came up with? Would it have preferred one of the various other models? Were there a number of factors that led to the outcomes that are now in place, rather than the managerial factors that you have suggested?

Mr Fitzpatrick:
In relation to the first point, I have no problem providing the Committee with a description of the user groups, their memberships and the arrangements that are in place, because they are very good. I will send that to the Committee.

I became chief executive officer of the Courts Service in 1999. I have no recollection of any concern about interference in judicial functions contributing to the establishment of the Courts Service. The first report of the working group sets out the reasons for its decisions. That report shows that those reasons had more to do with the state of the service, including the lack of investment and the lack of modernisation.

There was an unusual situation in which local authorities or county councils were responsible for the buildings, even though, in some cases, they rarely used them. Therefore, many of the buildings — which were fine buildings — were closed because there were dangers of ceilings falling in, and so on. The buildings were in a poor condition with literally no ICT, and I am talking about less than 10 years ago. The training budget for 1,000 members of staff nationwide was €5,000 and manual systems were all over the place, for example. We managed €1 billion in respect of wards of court and for minors who had been made wards of court. That was all done in ledgers with 22,000 separate accounts.

As I said earlier, at that time some judges did have grave concerns about being involved and about the new proposal because of the issue of the separation of powers. There was an element of people simply being used to a certain system that they knew well.

A couple of major incidents happened in the 1990s; one, in particular, concerned the delisting of a judge from the Special Criminal Court, which created major difficulties for the Minister at the time. Overall, there was probably very little interference. The judges’ concern was that insufficient resources were being put into the courts. It was to do with the state of the courts, rather than with interference.

Mr Attwood:
It is interesting that the argument that you have restated is not applicable in the North. Our Court Service has been and continues to be modernised substantially. My second question arises from that. I am mindful that you are a civil servant —

Mr Fitzpatrick:
I am sorry; that is not so. I am on a contract.

Mr Attwood:
Then you are much freer to answer my question. Would it make much difference if the Courts Service board were to be chaired by the Minister, and if its majority membership were non-judicial? Do you see advantages to that situation? Would it give a greater sense of accountability, or an even wider sense of ownership, bearing in mind what the Courts Service does? In your professional judgement, and with your nine years’ experience, do you think there would be advantages if the Minister chaired the board, the majority of members was non-judicial, but everything else was kept as it is?

Mr Fitzpatrick:
The model that we have is not unusual in the Republic. We have a lot of state boards, which are responsible for the operational side of the business — local authorities, for example. Ministers retain accountability and policy-making functions.

We have no agenda, except to modernise, develop and manage the courts, so we have a single focus. Having worked in that capacity for nine years, my considered opinion is that much of what we have done would not have been possible without the involvement of the judges at the highest level. The Chief Justice, the presidents and judges elected by their colleagues are on the Courts Service board. Other judges followed and became involved in committees. I was surprised at the extraordinary amount of interest that many judges took in getting involved and influencing decisions. They sit in the courts, so having them outside was unthinkable.

One judge explained to me that the product of our system is a judgment, whether written or summary. Everything else — buildings, IT systems, or whatever — exists to help produce the product. If the judges, who deliver the product, are not involved, they would be outside the system. I do not wish to labour the point, but that is the greatest benefit that our system offers. It helps me to introduce a huge programme of change.

Mr Attwood:
What the Committee hears is that it is important to have members of the judiciary involved in many dimensions of the life of the courts and the administration of justice. The Committee should listen and reflect upon that in making its final report.

My question, however, was whether there might be a greater sense of ownership and a greater level of appropriate accountability if the Courts Service board were to be chaired by the Minister for Justice, Equality and Law Reform and if the majority of its membership, although including a heavy judicial involvement, were to be non-judicial. Would that enhance the sense of accountability and ownership around the administration of the Courts Service?

Mr Fitzpatrick:
That is difficult to answer. I am not aware of any board in Ireland that would have a Minister as its chairperson. There is a deliberate policy of Ministers keeping a distance from the executive agencies. The agencies do the day-to-day work and, if something goes wrong, Ministers hold them accountable. Otherwise, Ministers would, on the one hand, be involved in developing policy and, on the other, in its implementation, and that could become difficult. Our experience in the South is of boards not dissimilar to our own.

Mr Attwood:
I appreciate your point; however Alan McFarland’s point was that the Chief Justice in the South has a dual role. He chairs your board, and he is a senior judge. Let us suppose that the Minister, or someone representing the Minister, chaired your board with a reconfigured membership In effect, the Justice Ministry would have a couple of roles rather than the Chief Justice chairing the judiciary and the Courts Service board. Would that not create more accountability and a greater sense of ownership? I have asked that question three times, and maybe that is enough.

Finally, is there a criminal justice board in the South, on which representatives from the entire criminal justice family can sit together on a statutory basis?

Mr Fitzpatrick:
Not on a statutory basis.

Mr Attwood:
Is there a non-statutory model, in which everybody sits down together on an ongoing basis, including judges and representatives of the Courts Service, the Probation Service, the Justice Ministry and the High Court?

Mr Fitzpatrick:
No, we do not have a statutory criminal justice board. However, the Courts Service participates in meetings within the justice sector, including with the Garda Commissioner, the head of the Prison Service, the head of the Probation Service and a range of other agencies. Judges are not directly involved in those discussions, but, if issues arise, I will talk to the judges. Therefore, although not on a statutory basis, that arrangement operates within the justice sector. There is also a lot of interoperability between the Courts Service and the police and prisons on IT projects, and so on.

Mr Kennedy:
Welcome, Mr Fitzpatrick; I apologise for being slightly late. I presume that decisions about the board membership and the term of membership — which is generally for three years — are entirely separate from the political process. For example, a general election does not mean that the board has to be reconfigured. Given that at least three appointments to the board are at the Minister of the day’s discretion, is it the case that those are really political appointments? Are those people the Minister’s representatives on earth?

Mr Fitzpatrick:
Those are ministerial appointments. However, there is no evidence at the board that they have a political agenda. One appointee is a civil servant, who is an officer in the Minister’s Department. Another appointee, who happens to be a former director of the Rape Crisis Network, represents victims or users, and the third represents the business sector. Sometimes those appointees have political affiliations and, at other times, they do not. In my experience, the manner of their appointment has not made a difference to the work of the board. In that sense, the board is non-political.

The Chairperson:
Thank you Mr Fitzpatrick; your evidence has been very helpful. The Committee appreciates your candour and the quality of your evidence, which has given us much food for thought.

Mr Attwood:
I am sure that the director of the Northern Ireland Court Service listened closely to the fact that the chief executive officer of the Courts Service of Ireland is not a civil servant.

The Chairperson:
Indeed. Mr Fitzpatrick, I wish you a happy Christmas and a successful new year. Thank you for visiting the Committee.

Mr Fitzpatrick:
I thank the Chairperson and Members for their courtesy and invitation to visit. As I said, I am happy to assist the Committee and provide it with the benefit of my experience, or otherwise. I wish the Committee every success in completing the important task ahead, a happy Christmas and good luck in 2008. I will send the information on the user groups to the Committee, but if any other information is required let us know.

The Chairperson:
Thank you. I now welcome Professor John Jackson from Queen’s University Belfast. Professor Jackson is on sabbatical from Queen’s University and, in recent weeks, has been based in Italy. We appreciate the time that he has devoted to providing us with advice and assistance in our preparatory work on the devolution of policing and justice powers to the Assembly and Executive.

Before we proceed, do members have any interests to declare? I declare an interest as a member of the Privy Council and the Northern Ireland Policing Board. Professor Jackson, do you want to make a statement before the Committee asks questions?

Professor John Jackson (Queen’s University Belfast):
If it is appropriate, I will say a few words. I thank the Committee for the opportunity to address it. I am here to assist the Committee on matters relating to prosecution.

The Committee has a copy of a paper that sets out the thinking behind the criminal justice review, which has laid the foundations for some of the changes. The criminal justice review was asked to give close attention to prosecution arrangements; research was commissioned and two broad trends, which could be seen across several countries in recent years, were identified. First, there was a movement towards the independence of prosecution decision-making from political influence. Secondly, there was a movement towards greater transparency through a variety of explanatory mechanisms.

Since the review team reported, those trends have been reflected in European standards on prosecution that were published in 2000, which state that specific instructions by Governments not to prosecute individuals should — in principle — be prohibited. Democratic states, in which Government Ministers seek to influence decision-making on prosecutions, run into trouble because of perceived political bias. That was a recent problem for the previous Attorney General for England and Wales, Lord Goldsmith, as he insisted on making prosecution decisions concerning the cash-for-honours case. As a result, the current Attorney General for England and Wales — under Gordon Brown’s Administration — said that she will not take individual prosecution decisions, except on matters of national security or where the law requires it.

In my submission I mentioned that a paper on the role of the Attorney General in England and Wales is currently out for consultation. In order to avoid those problems, the criminal justice review considered that there should be a consultative relationship between the Attorney General and the Director of Public Prosecutions (DPP), rather than one through which the Attorney General could direct the DPP on those matters.

To say that there is a need for independence when it comes to prosecution decisions does not mean that there should be any lack of accountability for those decisions. Again, European standards make it clear that there is a need for transparency of the principles of prosecution, which are set out and published, and some mechanism by which individuals can challenge those decisions, if necessary, through the courts. In addition, the criminal justice review added two mechanisms for review of decisions: first, an inspection mechanism, which in July 2007 published a considerable report on the decision-making of the public prosecution service in Northern Ireland; and secondly, the entitlement of individuals to reasons for decisions. That has developed slowly in the new service, but it is now possible for individuals to obtain detailed reasons where available.

The review considered that there was a significant role for the Assembly with respect to political accountability. It would not be appropriate for the Assembly to get involved in individual decisions because of the perception of political interference, but it should have a role in issues such as public confidence in the effectiveness and workability of the prosecution service. The Attorney General should answer to the Assembly for the work of the public prosecution service (PPS), and, specifically, the DPP should answer questions on administration and finance.

The current debate in England and Wales shows that is not easy to get the right balance between independence and accountability. In Northern Ireland, we have an opportunity to break new ground, and we can do so provided that in order to command confidence, we must try to obtain some independence for individual decision-making. At the same time, we must have some form of accountability for the work of the PPS.

The Chairperson:
Thank you very much, Professor Jackson. We appreciate the time that you have taken to provide a written submission to the Committee, which is very useful.

Do you see the transfer of powers of section 41 of the Justice ( Northern Ireland) Act 2002 as a significant change, given the degree of independence of the DPP?

Professor Jackson:
Yes. The Act is spelling out the situations in which decisions that were formerly taken by the Attorney General such as consent to various prosecutions or withdrawing prosecutions in specific situations would be transferred to the DPP.

The Chairperson:
You will be aware that the criminal justice review described the role of the Attorney General as one of oversight in relation to prosecutions. How will the relationship operate in practice?

Professor Jackson:
The Attorney General may have to consult with the DPP, as the Act puts it, from time to time. I hope that a good relationship would develop in that respect, so that the Attorney General obtains a detailed understanding of the work of the PPS to enable him to answer questions on that matter from the relevant Assembly Committee, which will obviously have an interest in ensuring that the PPS is working effectively.

The Chairperson:
One issue that the Committee is considering is where the PPS fits in with departmental responsibility in the Assembly and the Executive. Do you have a view on where the PPS should slot in?

Professor Jackson:
I do not have a particular view on it. I understand that the arrangements that are envisaged are that the Office of the First and deputy First Minister (OFMDFM) would provide the funding for the PPS and that the DPP would be accountable to the Assembly for the general administration and finance of the PPS. Other matters relating to the work of the PPS, which might also involve the policies of the PPS, would be matters for the Attorney General to take up and answers questions on. I do not have a particular view on whether there should be any other arrangement.

I do not think that it would be appropriate to locate the PPS within a Department of justice because there are few precedents for that in other countries. Therefore, it would be a rather strange step if the PPS were to be placed under the mantle of a general Department of justice. However there must, of course, also be accountability for the PPS.

The Chairperson:
That is correct, and the Criminal Justice Inspection (CJI) has suggested that the Attorney General will not provide an effective line of accountability because the Attorney General is not directly responsible for the work of the PPS. Therefore, do you have an opinion on how the PPS can be held accountable for the quality of its service while preserving its independence?

Professor Jackson:
You have come to the nub of the issue — the relationship between the Attorney General and the DPP is a consultative one. As you said, it will not be possible for the Attorney General to command responsibility for the work of the PPS. However, the review considered that there would be answerability to the Attorney General on the work of the service. That scrutiny could be quite detailed, and that would provide a mechanism for concerns to be raised. Those matters, along with the funding mechanism through OFMDFM, would have to be taken into consideration.

The Chairperson:
Is there anything in addition to that, which could be put in place to enhance the accountability but not interfere with the independence of the PPS?

Professor Jackson:
I am not sure whether the CJI report pointed in that direction; it deliberately refrained from recommending a specific structure to effect that. However, one alternative mechanism would be for the public prosecution service to be funded directly by the Office of the Attorney General and to make the Attorney General responsible and accountable for the work of the service. Those types of arrangements are in place in England and Wales. If they were introduced here, clarity would have to be established so that the Attorney General would have either no role or only a consultative role. The Attorney General would be able to hold the DPP accountable for the operational delivery of the service. However, those arrangements are not envisaged under the Justice ( Northern Ireland) Act 2002.

Mr Attwood:
I have three questions. First, the CJI has given written evidence to the Committee, recommending that there should not only be a separate, free-standing Ministry, but that the PPS should be funded by and report to that Ministry. Contrary to other evidence that has been given to the Committee, the CJI said that the proposed Ministry should act as the funding body, rather than OFMDFM or any other part of the Executive. Would Professor Jackson comment on that?

What will be the relationship between our PPS and the British justice system in non-devolved matters such as where there would be an incident involving national security in the North? Such a matter would be managed by the PSNI which would pass papers to our PPS. What will be the interface between the PPS and London? Would the Advocate General fill the role that the Attorney General would normally fill in the North? How will that work? During your participation in the criminal justice review, did you make any recommendations about how our Attorney General and justice ministry would be sited — for want of a better word — on events in the North that were not the responsibility of a Minister or the Assembly? The management of non-devolved matters by the PPS and PSNI in areas over which our institutions have no legal standing, is a critical matter.

Professor Jackson:
I will take the second of your two exacting questions first. The Advocate General would have a role on matters of national security and on any excepted matters relating to prosecution. The Act envisages that there will be a consultative relationship in that regard. The Advocate General, here, will be held to answer to Parliament if necessary for such excepted matters. There must, therefore, be a clear channel of communication so that the Advocate General would be able to answer in detail questions arising from a matter of national security. Those events always create a lot of public attention. The relationship would be consultative, and in that respect it would differ from the relationship in England and Wales where the Attorney General seems to have a power of direction in matters of security. There would be a consultative relationship — even with regard to excepted matters.

Mr Attwood:
Am I correct in saying that the Advocate General has more than a consultative role in matters of national security? Can he direct the PPS on what to do?

Professor Jackson:
No. Under the legislation, it is still a consultative relationship. It is the same relationship as that of our local Attorney General. The Westminster Government will have an interest in matters of national security here, and the Attorney General will be answerable to Parliament on those.

Mr Attwood:
Do you mean the British Attorney General or our Attorney General?

Professor Jackson:
The English Attorney General will act in the role of the Advocate General on those matters.

Mr Attwood:
Will there be a relationship between the British Attorney General and our political system with regard to matters that, for instance, touch on national security — on which decisions are made by the PPS — and where, in the normal course of events, our institutions do not have any responsibility?

Professor Jackson:
There will not be, probably.

Mr Attwood:
That is my understanding also. My second question relates to the giving of reasons. Professor Jackson was a bit cryptic when he spoke about the code; I think that he said it was moving slowly. In a startling moment of unanimity at the Programme for Government Committee in the summer of last year, all parties agreed that the PPS should explain its actions more fully.

That arose in a rather acute way in connection with the Donaldson, Kearney and other prosecutions associated with the Stormont spy ring. The case collapsed and little was forthcoming from the then Attorney General. The Committee on the Programme for Government agreed unanimously then that more should be done in terms of giving reasons.

As a member of the Criminal Justice Review Group, and mindful of what the Committee on the Programme for Government has said, will you help this Committee further as to what should be done about the giving of reasons? Thus far, the PPS has been slow to develop its code and operation.

Professor Jackson:
In fairness to the PPS, it has described this as an evolving matter. It has been slow, but it must be recognised, nevertheless, that there has been movement. In the code, there seems to be agreement, in principle, to give detailed reasons where that is possible. That will also relate to a situation of public concern. If the Assembly were concerned about a high-profile matter, I do not see why reasons could not be given, through the Attorney General, to an Assembly Committee.

Mr Attwood:
That is interesting.

Professor Jackson:
That position is not far removed from that which the PPS is moving towards — if it has not reached it already. I understand that that is the practice across the water. In England and Wales there is now a clear stance in favour of giving reasons, where it is possible for the Crown Prosecution Service to do so.

You mentioned the report of Criminal Justice Inspection Northern Ireland. It said that it did not want to give a specific recommendation as to which Minister the service should be accountable. The report states that there must be accountability through the funding body. That makes me think that the Attorney General might be a possible avenue. To have accountability through a justice Minister would be a departure from practice in other countries.

Mr Attwood:
All of that is useful. You may be right. The CJI submission to the Committee says that the PPS should be funded by and report to that Ministry. That may go a bit further than the report that it did on the PPS; and it might, in any case, be vague in meaning. However, the CJI may have gone a bit further in its evidence to the Committee than in its report of last summer.

The Chairperson:
Professor Jackson, may I ask you about that? If we were to go down the route of the Attorney General taking on more responsibility vis à vis the accountability of the PPS, should the Attorney General then have a seat in the Executive?

Professor Jackson:
I would tend to say no. The Criminal Justice Review Group considered it important for the new Attorney General not to be a member of the Executive, in order to maintain the necessary distance. If we were to go down that route, the Attorney General would clearly have a close working relationship with the Executive and perhaps be in attendance at meetings of the Executive and be, not merely accountable to the Assembly, but more involved in the workings of the Executive.

Mr McFarland:
Is the Attorney General’s post a full-time one? If so, what will he or she do? If the DPP runs the prosecution side of things, and the Lord Chief Justice runs the whole Court Service, what will the Attorney General’s role be, if he does not have the role that the Chairperson has described? There must be some form of responsibility? I am trying to clarify that for myself. Presumably, we will pay that person enormous amounts of money.

Professor Jackson:
The member has raised a question concerning the Attorney General’s role, to which I must confess detailed attention was not given during the criminal justice review. However, it was envisaged that, in addition to oversight of the Public Prosecution Service and of being answerable for it to the Assembly, the Attorney General would have a role in legislation that is going through the Assembly. At present, one of the Attorney General’s roles with regard to all Bills is to ensure that they are properly human-rights proofed. Someone would have to take on that role.

Mr McFarland:
It is fair to say that there is already an entire department dedicated to that. Is that correct?

The Chairperson:
Yes.

Professor Jackson:
Someone must take the role of accounting to the Assembly on those matters. I presume that it would be the Attorney General. There may be other matters that need to be considered. The Attorney General has a role generally as a guardian of justice, who steps in, for example, when there are cases of contempt of court and in certain family and child matters. As to how considerable the post should be — whether it is full time, for example — that is a matter of judgement. I am unsure about whether the Justice ( Northern Ireland) Act 2002 actually specifies whether that is necessary.

Mr McCartney:
Further to Mr Attwood’s question; in the future, when a prosecution is not pursued or breaks down, who will decide what information the PPS will make available? Does it remain in the gift of the director? Can that information be shared with anyone or only in the department?

Professor Jackson:
No. Any such matter is subject to the DPP’s decision to drop a prosecution, as it would be to institute a prosecution. Those are all matters for the DPP. However, as I have said, the Attorney General would have an advisory role on such matters in the consultative relationship. I understand that it would be at the behest of the either the Attorney General or the DPP to seek a consultation on any particular matter. If the Attorney General is concerned about a certain matter, he or she certainly has the right to raise it with the DPP, and to be consulted fully on it.

Mr McCartney:
Would the Attorney General expect to be consulted, or must be consulted?

Professor Jackson:
The relationship is such that the Attorney General should be consulted. The Act suggests that they may consult each other from time to time. It will, obviously, be an evolving relationship. However, if it is to work properly, either party should be able to insist on consultation on any matter. It would not be right for one party to refuse to consult the other on a particular issue.

Mr McCartney:
If the director refused to share information with the Attorney General, what would be the position?

Professor Jackson:
Ultimately, under the arrangements that are currently foreseen, it would be open to the DPP to, perhaps, refuse to share information. However, that may go outside the remit of what is meant by consultation.

The Chairperson:
Mr Jackson, in paragraphs 11, 14 and 15 of your paper, you touched on the importance of ensuring clarity in the relationships between the PPS, the Attorney General, the First Minister, the deputy First Minister, the Assembly and the public. Do you agree that the justice Minister or Ministers should be included in that mix? In particular, given the different interests, what do you believe should be the balance of power among the various constituents involved? Who should be responsible for what?

Professor Jackson:
Formally, I envisage prosecution as being somewhat hived off from the justice Ministry. However, that is a matter of formality: the necessity for each part of a justice system to work in partnership with the others is increasingly being realised. We keep coming back to the Criminal Justice Inspectorate’s report, which also drew attention to that issue. There has, perhaps, been difficulty with that in the past because there has been the Court Service, the Public Prosecution Service, the police, and so on. There has not been the smooth working relationship between those departments that there should have been because of the difficulties of the past. I see a partnership relationship developing between the Attorney General, the DPP and the proposed justice Ministry, and that is essential. If the public are called as witnesses to court, they want to see the system running smoothly between the police, the PPS and the Court Service. That has not always been the case.

The Chairperson:
Would that partnership be formalised?

Professor Jackson:
I have not given consideration to formalising it. I do not think that that would be necessary in the first instance. One would expect those bodies to work together in a partnership, and one would expect the Ministers to liaise with each other and to be held accountable to the Assembly for its smooth running — and that is why the role of the Attorney General is important. Those Ministers would be held accountable if issues were clearly not working. It would not be necessary to formalise it beyond that at this point.

The Chairperson:
Are you satisfied that the degree of political accountability for individual decisions has been adequately provided for in the post-devolution arrangements for Northern Ireland?

Professor Jackson:
Yes. One has to ensure that when people are independent, there is some accountability at the end of the day. The role of the inspectorate is important in individual decision-making, and, as indicated, the role of reasons is very important. If those are seen to be operating fully and are rigorous enough, then there is a fairly effective mechanism for accountability.

Mr Attwood:
There would be accountability, but that would not be the case for excepted matters — terror, national security, organised crime, and all the other matters that would still be the responsibility of London.

Professor Jackson:
Yes, but that is how the arrangements are foreseen.

Mr Attwood:
I appreciate that. However, there are gaps. Those issues are extremely sensitive and could, potentially, have a destabilising effect. They are of enormous importance and public interest, yet we have no standing as an Assembly, as a Committee in the Assembly, as any future Minister, OFMDFM — none. We are unsighted on all of that, and it has the potential to be an unstable situation.

The Chairperson:
Professor Jackson, thank you very much for your evidence. We appreciate it and wish you well with your sabbatical. Have a very happy Christmas and — I hope — a restful 2008. We look forward to the product of your sabbatical in due course.

Professor Jackson:
Thank you very much.

The Chairperson:
The next issue relates to a reply that the Committee has had from the Office of the First Minister and deputy First Minister. Given the nature of the response, is it the Committee’s preference to discuss the correspondence in private session?

Mr McFarland:
Yes, if that is your recommendation.

The Chairperson:
OK.

Mr Attwood:
There are matters arising from some of the points that Professor Jackson made. He said that post-devolution, one of the accountability and oversight mechanisms will be the Criminal Justice Inspection: whatever the Assembly or a Minister does, the CJI will have a role in respect of the PPS or the PSNI. The CJI submission to this Committee was circulated to one of the Ad Hoc Committee last week. There are issues in that submission that the Committee needs to consider — one way or the other. For example, there could be an odd situation where CJI reports on the PPS would be tabled at Westminster after devolution rather than here. That would be bizarre. The Committee needs to ensure that that issue is taken care of.

There are also a whole range of other, more substantial matters. I do not want to overload the Committee or the secretariat, but there are issues about the CJI’s functions that need to be regularised in the event of devolution, otherwise the CJI’s functions will be in London instead of here. I advised the Committee Clerk that I would be flagging up the matter, as it needs consideration.

The Chairperson:
You raise some very valid points, Alex. I propose that those issues are addressed in the context of the structures and governance arrangements that we have to discuss after Christmas.

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