Official Report (Hansard)

Session: 2007/2008

Date: Tuesday, 12 February 2008

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 Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr George Robinson

The Chairperson (Mr Donaldson):

Members will recall that at the last meeting on Thursday, we agreed to consult parties on the naming of the new Department. "The Department for Policing and Justice" was suggested as a possible name. The DUP discussed the matter. "The Department for Home Affairs" was also suggested as an option for the Committee: that was the option which applied when we last had devolution of policing and justice powers. Does anyone else want to comment on the name of the Department?

Mr McFarland:

We, too, discussed "home affairs"; "homeland security" was also suggested. We also considered the justice title, which seemed to us to encompass everything.

The Chairperson:

Two parties considered "home affairs".

Mr Attwood:

We are not considering "home affairs".

[Laughter.]

The Chairperson:

That will come as great shock to the nation, Alex.

Mr Attwood:

You will not get consensus on that proposition.

We think the title should be "justice and policing", because it sends out the political message that there is a big responsibility in this building. Justice is a generic term and it could cover all bases; I am sure that this is what Alan is thinking. However, to demonstrate political ownership of those functions, "justice and policing" is a better way to get out the full political message that we have authority on those matters.

Mr McCartney:

My party realises that the first task is to assist the process of the draft legislation. We are comfortable with the idea of a "Minister for Justice and Policing".

The Chairperson:

In that order?

Mr McCartney:

Yes.

The Chairperson:

The suggestion was "policing and justice".

Mr McCartney:

I am sorry: I thought that there were four options. My mistake.

The Chairperson:

No — that was one suggestion. I wanted to be clear —

Mr McCartney:

That is fine.

To be fair and honest, Sinn Féin realises that this could be revisited in time.

The Chairperson:

Do you have a strong view on whether the Department would be called "justice and policing" or "policing and justice"?

Mr McCartney:

Yes, we would prefer to see a "Minister for Justice and Policing".

Mr McFarland:

Northern Ireland would be different in that policing and justice would be in one Department. The Ulster Unionist Party is keen on there being a Minister because, if policing and justice is ready to be devolved, there is enough confidence to have a Minister.

The title of the Department that you mentioned signified that it would have two parts. We would be uncomfortable if the Department were divvied up so that one Minister took policing and the other took justice. At one stage, a strong attempt was made to organise OFMDFM on such a basis that the First Minister had some areas of responsibility, and the deputy First Minister had others, completely negating the purpose of having a joint office. If such a compromise were reached, that would destroy the joint nature of the arrangement and that would not be the right signal to send out. On the other had, I wonder whether a Department "for justice", or "of justice", would be one entity, and whether the two Ministers would be Ministers of one entity? If that were the case, there would be no temptation to divvy it up with one Minister responsible for one slice of it and the other responsible for the other.

The Chairperson:

I almost had a nightmare last night, because when a name is introduced into the politics of Northern Ireland, difficulties immediately emerge on getting agreement on that name. Various options have been put forward.

Alan, you seem to be saying that your preference is for a Department with a single descriptor, whether Department of home affairs or Department of justice.

Mr McFarland:

That would signify that policing and justice are together in the Department, and that there would not be a Department for policing and a Department for justice. Much of the work of Departments is done by agencies anyway. For at least the past two years, you will have heard my endless speeches about the fact that, since much of the work is contracted out, devolution of policing and justice will not be the great joy that the Minister or Ministers might think it is. However, because it is a neuralgic issue, the idea of separating policing and justice into two parts of one Department is dangerous. There would be a temptation to attempt to divvy it up.

The Chairperson:

The DUP is in favour of the Department being called the "Department of Home Affairs", and the UUP is in favour of either "Department of Home Affairs" or "Department of Justice". The SDLP is in favour of "Department of Policing and Justice" or "Department of Justice and Policing", and Sinn Féin is in favour of "Department for Justice and Policing". How do we propose to unravel that?

The Committee Clerk:

You can use the tried-and-trusted form of words that there were diverse opinions and the Committee was unable to reach a consensus on that for the purposes of the report. The original reason that the Committee considered the title of the Department was to assist the NIO in the development of the legislation so that it could use a generic title for the transfer of all of the functions that will be required. Potentially, that means that that detail will have to be ironed out prior to the conclusion of the legislation and the devolution settlement.

The Chairperson:

What is the current default in the legislation?

The Committee Clerk:

The NIO shows it in shorthand as "D o J".

Mr McFarland:

The NIO is using "Department of Justice".

The Chairperson:

That is the NIO’s default position, but it has not indicated that it will impose a name. Members, I can only suggest that we reflect on our respective positions, and perhaps consult with our parties. In the meantime, I ask the Clerk to draft the usual formula of words into the report to reflect the position of each of the parties that there is not a consensus in the Committee on the name of the new Department.

In the meantime, we will have a couple more bites of the cherry between now and the report’s being signed off. Members might want to reflect further on the matter. Are Members happy to proceed on that basis?

Mr McCartney:

Should we try to agree on a working title? I ask that because, I can imagine people saying that the Committee could not even agree on the name of the Department, and that might override all our work.

The Chairperson:

That is a concern of mine also. Unfortunately, journalists tend to focus on those sorts of issues, rather than the bigger, more important ones. Nevertheless, I do not want to minimise the name’s significance to some people.

Mr McFarland:

Presumably the NIO will continue to refer to it in its documents as "Department of Justice". The question is whether we accept that as a working title for the moment.

Mr McCausland:

Why do we need a working title? Why do we not simply refer to it as "the Department" in the report?

The Chairperson:

It is not essential to have a full working title. We can refer to it simply as "the Department". If members want to amplify what that means, we can say that, for the purposes of the report, "the Department" means the Department that will exercise responsibility for policing and justice powers. The Committee’s report will be on the devolution of policing and justice matters. Officially, that is what we have been working on. We can adopt the working title of "the Department for Policing and Justice" without prejudice to the outcome of this process — on the basis that our inquiry is about policing and justice matters — or we can use the shorthand title of "the Department".

Mr McCausland:

We should use the shorthand of "the Department", because that seems to have advantages.

The Chairperson:

Clerk, we will refer to "the Department" in the report. However, at the beginning of the report, there should be an explanatory note to say that the Department referred to in the report is the Department that will exercise powers in relation to policing and justice matters. Are members content that we use "the Department" as the working title?

Members indicated assent.

The Committee Clerk:

That leaves the issue of the legislation that is to be ironed out at some point after the publication of the report. It will have to be more precise.

The Chairperson:

At the end of the report we will have a section that will summarise — perhaps in bullet points for simplicity and ease of reference — the outstanding issues that must be resolved prior to devolution. Some of the issues that we touched on can be dealt with after devolution. However, some matters must be resolved before devolution: i.e. the name of the Department; the number of Ministers; and whether there is one Department, or two. There seems to be consensus that there should be one Department, so we can proceed on that basis.

There are some matters, such as those involving the PPS and the attorney general, which must be resolved before devolution. I envisage that, at the end of the report, there will be a reference section that will highlight those issues that remain to be resolved prior to devolution. We are obliged to inform the Assembly of those aspects of the preparations for devolution that are not yet completed. The name of the Department may be one of those issues.

We will move on to the matters of structure and accountability, continuing the discussion that we had last Thursday on the respective party position papers. To remind members and those colleagues who were unable to attend last Thursday, the issues that were not dealt with at that meeting include the role of the Attorney General, how that post will relate to other offices, and whether it should be a full- or part-time post. There is also the issue of the costs associated with that office — in other words, who will fund it.

The Chairperson:

We then deal with the matters that are known as excepted matters, which specifically relate to the Serious and Organised Crime Agency (SOCA) and the security services, and the lines of communication and accountability of SOCA and the security services to the new Department in relation to excepted matters such as national security and organised crime.

The third aspect is the North/South arrangements: the status of the North/South agreements after devolution in relation to devolved matters; whether they require renegotiation by the new Department; and whether there are any further cross-border intergovernmental agreements that require consideration prior to devolution.

We then have the question of the Northern Ireland Police Fund, namely whether it is part of the block grant or a separate arrangement and, if it is a separate arrangement, whether that will continue after devolution. The Committee may be interested to know if the allocations of money have been further developed since then, and if so, how. An initial response from the NIO said that the Police Fund was part of the block grant, but we will need to look at that in more detail.

At last week’s meeting we discussed structures and accountability, and several matters required further clarification following the receipt of draft legislation from the NIO. Members also discussed the Life Sentence Review Commissioners and requested clarification on the future status of the Life Sentence Review Commissioners as set out in the recent NIO draft legislation.

We will return to the matter of the Life Sentence Review Commissioners, as it is somewhat complex. We will deal instead with the Attorney General; excepted matters; North/South agreements; and the Northern Ireland Police Fund. Before doing that, I refer members to the minutes of the meeting of 7 February, when we discussed the issues of compensation, community safety partnerships, the chief inspector of criminal justice and the Northern Ireland Law Commission. However, members can see that there was agreement on most of those issues from the minutes of the meeting. Clerk, do you have a note for the members who were not present about the structures and accountability that we signed off on last Thursday?

The Committee Clerk:

A transcript of that session will be coming out, which records all the details. I was concerned that if the minutes of proceeding were recorded, it would represent a public report of matters discussed in private. The transcript of the proceedings should be available soon, possibly this afternoon or tomorrow, and that will provide a summary for the members who were not present at last week’s discussions.

The Chairperson:

OK.

We now turn to the role and relationship of the Attorney General. The question is whether the post of Attorney General will be full- or part-time. There was a fairly broad consensus in the party position papers that, at least initially, the role should be full-time. Sinn Féin’s position was that it would return to the matter.

Mr McCartney:

Sinn Féin is happy for the post to be full-time.

The Chairperson:

Do any members have strong views on the matter? From memory, Mr Attwood indicated initially that the post would be full-time, but —

Mr Attwood:

I recommended a full-time post.

The Chairperson:

It was the UUP then, who suggested a full-time role initially, with the possibility of it being reviewed after a period.

Is the UUP content that, initially, the post of Attorney General should be a full-time role?

Mr McFarland:

Yes; it has to be a full-time role. We thought that after things settled down, and the Attorney General’s post increasingly became a monitoring job, it could be reclassified as a part-time role. However, that was not something on which we were exercised.

The Chairperson:

Raymond has indicated that, subject to everything being equal, and without prejudice to what happens outside this meeting, Sinn Féin will not object to the post of Attorney General being a full-time position. Is there consensus among the parties that the post of Attorney General should be a full-time position?

Members indicated assent.

The Chairperson:

The status of the Attorney General will change under devolution. At present, the Attorney General for England and Wales also covers Northern Ireland and has a superintendent’s role over the Public Prosecution Service (PPS). Under the proposals for devolution, Northern Ireland will have its own Attorney General, who will not have a superintendent’s role over the PPS. The DUP was concerned that that will diminish the accountability of the PPS to the devolved structures. Although the Attorney General may come to the Assembly to answer questions, and the director of the PPS may also visit to answer questions on narrow issues of PPS administration and finances, there would be no one to answer questions on prosecutions in general. By contrast, the Lord Advocate has visited the Scottish Parliament and answered questions about prosecutions. Does the Committee accept the Northern Ireland Office proposal that the Attorney General should not have a superintendent’s role over the PPS?

Mr McFarland:

We have been caught up in the fallout of what happened in England. In England, the Attorney General is, effectively, a member of the Cabinet. After the problems around the decision to go to war in Iraq, there has been a feeling that someone who is, effectively, a Government Minister should not be in charge of the PPS. It was recommended that the Attorney General should no longer be a Government Minister. That recommendation has been incorporated into our situation, so we are caught in the confusion of a situation that has nothing to do with us and are in danger of losing accountability on prosecutions.

Last week, Mr Attwood highlighted that, although we do not want a system that interferes with the Department of Public Prosecutions (DPP), if we are responsible for policing and justice, we require a system where someone explains and defends the policy of the DPP. Maybe we have missed a trick by accepting a roll-out of what happened in England for reasons that do not concern us.

The Chairperson:

Indeed. That is why I did not want us to miss a trick, in case there is something that the Committee should say to the Assembly on whether the Attorney General should have a superintendent’s role — whether that role remains the same as it is now is a matter for debate. The Committee must decide either to make a firm recommendation to the Assembly or to suggest that the Assembly considers the issue after the devolution of policing and justice powers. The matter is important, and we should try to get it right before the powers are devolved. Would primary legislation be required to put it right?

Mr Attwood:

Going down that road would require primary legislation because the position of our Attorney General is outlined in the two Justice Acts, which require primary legislation to be amended. However, sometimes amendments can be made by Order — I am not sure, we must get advice on that.

Alan’s argument is right, but he is wrong about the timing. The decision that the Attorney General should not have a superintendent’s role arose from the fact that the Attorney General was seen to have influence in the Public Prosecution Service on hard cases. Historically, we have seen that in the North. The criminal justice review said that because of public concern that an Attorney General should have such power, it would not be appropriate for him or her to have that power. People in England are looking at the power of the Attorney General as a consequence of the Iraq war, and the actions or inactions of Lord Goldsmith.

I am not in favour of an Attorney General here having powers of superintendence over the PPS because of the danger of replicating the historic issues associated with the powers of the Attorney General over the PPS over the past 30 or 40 years. I am in favour of more accountability on the part of the PPS. There are ways to improve the position of the Attorney General that would create a sense of greater oversight of the PPS — without giving him or her powers of superintendence. Remember, however, that that would involve a middleman, namely the Attorney General.

The alternative to that is to build up the powers of the scrutiny Committee in the Assembly, or to create a management board of some sort, around the PPS; for example, by borrowing from the Northern Ireland Court Service agency model, or from the teaching board models. However, one way or the other, as outlined in the SDLP paper, we want a discussion on how to have accountability on the part of the PPS. It is not there at the moment, as you outlined. There is accountability for finance and administration, but not for policies, or practices or patterns, or for the rest of the life of the PPS. I recognise that one should ask questions about individual decisions, but one should not be seen to interfere in any individual decision.

The Chairperson:

Alex has suggested a model of higher oversight that could be exercised through the Assembly Committee, or a model similar to the Policing Board. A third option would be a management board, similar to an agency approach, on the Court Service model. The difficulty with the management board model is that it is still at arm’s length from both the Department and the Assembly. Whereas it might give some kind of public input, and the Department might have representation on that board, it does not give the Assembly a great deal of accountability.

We have seen that sentencing policy and prosecution are big issues. Some of the biggest stories in the news media in recent months have been about why this person was not prosecuted, or why that person received such-and-such a sentence. There is a broad consensus that we need to strengthen lines of accountability between the PPS and the Assembly and/or the Department.

One way to do it might be to establish that the development of policy for the PPS should be taken forward in consultation with the Department. We need to look, however, at how that would make the PPS accountable to the Assembly. A scrutiny Committee may scrutinise the work of the Department, but it cannot oversee the policies of the PPS. It will be a frustrated scrutiny Committee: particularly as the Assembly will take grief over this issue, if there are not lines of accountability that respect the operational independence of the PPS. I suspect that members will want to revisit this issue.

It will be useful if we could find a mechanism that draws a consensus within this Committee, so that we can present the Assembly with a recommendation as to how the issue should be dealt with.

Do any of the evidence that we have received over the course of the inquiry touch on this matter? Obviously, Alex has suggested some models, but has anyone else given evidence on this issue?

The Committee Clerk:

From memory, the only evidence that the Committee received on that matter was that given by Professor Jackson of Queen’s University, Belfast. He talked about whether the Public Prosecution Service should come under the remit of the Office of the First Minister and deputy First Minister — which is the assumption that the Northern Ireland Office is working on — or whether it could be attached to a new Department of policing and justice.

I am not sure that his advice was specific as to how that might work in practice. If the PPS were attached to the Office of the First Minister and deputy First Minister for pay and administrative purposes, there would still be scope for a Department of justice and a scrutiny Committee to call the director to account on policy matters and on the way in which he and the PPS operate.

I expect that the Assembly and the scrutiny Committee would have the normal powers to call people to give evidence and to request to see papers on policy matters, as distinct from getting involved in individual cases. A recommendation or a general statement on that potential relationship is perhaps something that the Committee might want to articulate in its report.

Mr McFarland:

We have considered a number of scenarios about the new Department being responsible for policy in order to give it something to do. Logically, that is what would happen because a mechanism for developing policy and a system for calling people to account is required.

If the new Department is to be responsible for policy, logically, the relevant Ministers and the scrutiny Committee would have a relationship similar to that of the Chief Constable and the Policing Board. Although the Committee would not have the responsibility for personnel issues and owning the police estate, it would have the job of ankle-biting and scrutinising the work of the Department, the PPS and, perhaps, even the Court Service on policy matters.

The Chairperson:

There is a consensus that policy matters on issues such as legal aid, which are the responsibility of the Court Service, should transfer to the new Department. The question is whether the same should happen with public prosecutions.

Mr McFarland:

Can we recap? Is there not a separate sentencing organisation that monitors policy? I thought that judges had a grouping in which they modify policy regarding court cases that have occurred. I should know this, but I cannot remember.

Mr McCartney:

Do they not do that in the golf club?

Mr McFarland:

Certainly not. Is there not a monitoring organisation? I am sure that the Lord Chief Justice referred to a body that updates and modifies policies and procedures regarding sentencing.

The Chairperson:

I am not aware of any such body.

Mr Attwood:

England has the Sentencing Guidelines Council.

Mr McFarland:

Yes. Do we not have that here?

Mr Attwood:

No.

Mr McFarland:

Therefore, the Sentencing Guidelines Council does not affect us. I thought that something was mentioned about setting up some such body.

Mr Attwood:

When questioning the Lord Chief Justice and, maybe, other witnesses, I asked whether there was a need to create those sorts of structures in which a local sentencing guidelines council would give its opinions on sentencing policy to the judiciary. I was mindful that a sentencing guidelines council would be an independent body.

Mr McFarland:

Would the new Department also have responsibility for a sentencing guidelines council? If so, that would give it some oversight into sentencing and prosecutions. The Minister would also be in a position to explain the workings of any such council.

Mr Attwood:

In principle, the first issue that needs to be addressed is the involvement of the judiciary in the wider criminal justice institutions. For example, when policing and justice powers are devolved, the Criminal Justice Board — which is a powerful beast that the NIO is part of — will be a powerful beast in the devolved Ministry.

That is made up of police, probation, the Court Service, prisons, the criminal justice section of the NIO, etc. In England, the judiciary sits on the Sentencing Guidelines Council, but over here, as I understand it, the judiciary declined to sit on it. There are issues generally about the judiciary and its involvement in a structured way with the other members of the criminal justice family.

The second issue is building and mechanisms around the judiciary that can give it proper advice, such as a sentencing guidelines council.

We have been talking about the third issue, and I do not know whether we can get it resolved. However, there must be new levels of accountability and oversight for the PPS, which, perhaps, the 2001 criminal justice review did not cover sufficiently. That may involve the scrutiny Committee or some other third-party body monitoring the PPS, but, whatever happens, there must be some structure. I am prepared to live with an Assembly Committee taking on that role as a kicking-off point, and that might be the best way to do it. I am not hung up on any particular model. It could be a scrutiny Committee, with the right statutory functions, but we do not have that at the moment. There would have to be new legislation, taken forward by us in the event of devolution — say in May — to accommodate us having that statutory function. We would then work out what areas would be covered under that statutory function. A good precedent has been set by the Policing Board as to how a scrutiny Committee could probe into the policy, practice and patterns of the PPS in a way that does not compromise its independence.

The Chairperson:

Rather than creating new bodies and having yet another body in orbit floating around the criminal justice system, I feel that we need to look at how the lines of accountability can be strengthened on this side in relation to the legislature. In the end, it will be the legislature that will deal with the law, which will include issues such as sentencing. If we were to make the law, but could not have an input into the policy and procedure, it would become very difficult, disjointed and dysfunctional.

I have a lot of sympathy for what Alex Attwood said about looking at whether the scrutiny Committee should have additional statutory functions that would enable it to do that. Where would the policy sit? Would it sit in the Public Prosecution Service or in the Department? The scrutiny Committee having statutory functions to call to account and to investigate and enquire into policies and practices is one thing, but who would it be enquiring into? Would it be enquiring into the Department or into the PPS, or both?

We must consider whether we make a recommendation to strengthen the lines of accountability of the criminal justice system, without compromising the operational independence of any of those bodies that we might want to strengthen with the statutory functions of that Committee. Secondly, we must consider where policy rests. Does it rest in the Department or, in relation to prosecutions, in the PPS? If so, how do we design the statutory function for the Committee that takes account of either of those options?

Mr McCartney:

There is a need for greater accountability. Alex Attwood outlined a good example. However, in regard to the relationship between the Committee and the ministry, I assume that the Minister would have the same responsibility. If the Committee had that statutory right, one would assume that the Minister would also desire that.

The Chairperson:

As I understand it, if a Department has a function, be it policy, the scrutiny Committees, as happens now, have the powers that they need to call them to account. If the PPS has the statutory responsibility, as things sit, the degree to which it can be held to account is limited. That is the scenario that Alex is suggesting; in which case, the Committee’s statutory powers may need to be strengthened.

Mr McFarland:

Do we require more information about that from the PPS or the DPP? If we make suggestions — which we seem likely to do — that are different from what the Lord Chief Justice spoke to us about, the chances are that he will disagree. Although I am not referring to him, in some of those criminal-justice organisations there is a sense that people are empire-building and that they perceive an opportunity to ring-fence themselves in order to get others out of their hair. Perhaps there are reasons that we have not considered that would make it dangerous to move policy from the PPS to the Department, and it might be useful to investigate those.

The Chairperson:

Indeed, I would be particularly interested to find out about the Scottish model for interaction between its prosecution service, Justice Department and Parliament.

Mr McFarland:

In Scotland, rather than the Minister, the Advocate General is responsible for coming to the table to answer questions. That would be the same as us giving policy superintendence to the Attorney General in order that we could summon him or her to ask about what is going on and why.

The Chairperson:

Clearly, we are not going to reach consensus about the Attorney General having superintendence powers. However, is there consensus about the PPS continuing to be responsible for policy in addition to strengthening the scrutiny Committee’s statutory functions in order that it can call the director of the PPS to account on policy issues? The third option is to give such powers to the Department, which would mean that the scrutiny Committee would have the right to call the Minister to account.

Mr McFarland:

Previously, we decided that it would not be healthy for the organisation that administers the law to make policy decisions. On several occasions, we have taken execution powers into Departments and away from policy makers. If the Department were to make policy decisions, would there be an issue if the PPS and the DPP were to decide on individual cases and administer policy?

The Chairperson:

We require more information about the implications of either policy responsibility being transferred from the PPS to the Department, or the PPS retaining that responsibility and the scrutiny Committee’s statutory functions being strengthened to enable the director of the PPS to be held to account on more than just administration and finance.

Mr McFarland:

Can we also have similar arrangements between the Court Service and the judiciary clarified? I am unclear about whether we have had conflicting evidence from those bodies.

The Chairperson:

Are you saying that statutory functions should be extended to enable us to call the Lord Chief Justice?

Mr McFarland:

During our evidence sessions, when we were trawling for opinions,we were not expecting that point to arise. We heard evidence from David Lavery, the Lord Chief Justice, Vernon Bogdanor and others, and it would be a matter of re-examining that evidence in order to ascertain who develops the guidelines by which judges make judgements. I assume that it is the judges who, throughout the UK, talk among themselves and decide on general ways to deal with situations. However, who decides on sentencing policy in Northern Ireland? Is it the Department or the Secretary of State — I do not know?

I am not clear on those issues, because we have not been approaching them from that direction. As a general principle, policy should rest with the Department, unless there is a particular reason why it should rest with the executive arm, meaning judges, the Court Service or the PPS. The Department would be in a position to co-ordinate policy, and it would be relatively easy for the Department to interface with the Assembly because the Minister could be called to the Committee to be scrutinised. If policy is left to the Court Service, the judges and the PPS, mechanisms must be developed to allow people from those organisations to explain why they are doing things. Those organisations are keen for the Assembly not to scrutinise them. The Committee has heard evidence that they should be at arm’s length from politicians, who should not trouble their tiny minds with such matters. However, I am not sure that politicians here see it in that way. Am I making sense?

The Chairperson:

You are making sense. We must clarify the position on a number of key areas. First, under the current proposals from the NIO for devolution, who will set sentencing policy? Secondly, we must consider the issue of the policy on prosecutions. Under the NIO model, one assumes that that will rest with the PPS, without any accountability to the Department or the Assembly. However, I am not sure about that, and there might be something with the Department that we do not know about. Thirdly, what implications would there be if we were to retain policy in the PPS but strengthen the statutory function of the scrutiny Committee to hold the director to account on policy? If we were to take the policy from the PPS and give it to the Department, what implications would there be for the PPS?

Mr McCartney:

The Lord Advocate of Scotland made a presentation to a conference in the Stormont Hotel, and someone who was at it said that they were impressed by what she said about being called in front of the Scottish Parliament about a breakdown in prosecutions. A clause allows her to opt out of giving a reason, if that is in the public interest. If the PPS is left to make a decision that giving information is not in the public interest, a mechanism would be needed to decide who the arbiter of that is.

The Chairperson:

A third option is to consider Alex Attwood’s suggestion that the role of the Attorney General in answering for the PPS in the Assembly might be strengthened, without that being a superintendent’s role. That might be similar to the role of the Advocate General in Scotland. That is a third option to explore. The lines of accountability might come through the Attorney General, rather than through the Department.

Mr Attwood:

That is such a big issue, and some of best minds tried to work it out in the criminal justice review. We only have a couple of weeks to do that, so we will not be able to work it out. However, it would be significant if we could reach a consensus that there must be greater oversight, and if we considered models.

The Chairperson:

That would be significant, and it would then be a matter for the Assembly whether it wanted to carry out that work pre-devolution or post-devolution. In order to inform the Assembly, we need to know what the position would be if the current NIO model were to proceed under devolution. We need to know what the current position is on sentencing policy, and on the lines of accountability for the PPS, and who those are routed through.

Therefore, in our report to the Assembly, we must set out what the current model is. If there is consensus that the current model needs to be strengthened as regards the lines of accountability, then what are the options? One possibility could be to examine the role of the Attorney General. The second option would involve the transfer of policy responsibility from the PPS to the Department, and the third would involve strengthening the statutory functions of the scrutiny Committee so that the director of the PPS could be held more to account on policy matters. Those are at least three models that the Committee might examine and present to the Assembly for further consideration, either before or after devolution.

Mr Attwood:

A fourth option would involve a structure similar to that of the Policing Board.

The Chairperson:

A fourth option would be to open up for debate the status of the PPS. It is a non-departmental public body that operates at arm’s length from the Department. Could the structure of the PPS be changed to strengthen accountability, albeit at arm’s length? That would be a fourth option that the Assembly might examine.

Are Members content that we ask the Clerk to draw up a paper for us to look at — with the assistance of Assembly research services and whoever else he needs to call on — to see whether we can reach consensus to at least highlight the issue, and our thoughts on it, in the report? There is a consensus that we are not happy that the potential arrangements for sentencing and prosecutions are sufficiently strong to ensure public accountability through the legislature here. Members have expressed unease about the safeguards, and we must then consider how that will be reflected in the report.

Mr McCartney:

And then the mechanism can be dealt with.

The Chairperson:

Alex is right; in the time remaining to us, we are not going to come up with a single model.

The Committee Clerk:

The context of today’s conversation is different to that of last week’s conversation, which was on a range of other matters that were in the party position papers. It was clear that the Committee’s concerns about the issues that were discussed last week were to be picked up by the Minister or Ministers of policing and justice and the Statutory Committee post-devolution.

However, today you are asking that I get information, particularly on the PPS, that would inform the Committee’s report so that it might make recommendations in a pre-devolution situation, or at least partially in a pre-devolution situation — and, arguably, in a post-devolution situation. Given the time available, I do not believe that it is likely that that will be wholly possible. I will certainly ask the question. I do not think that it is a matter for Assembly research services, if I may say so. I accept entirely that this issue has emerged very late in the inquiry, but research and library services generated a series of papers, and a body of written evidence was supplied to the Committee on all of those issues. I do not sense that this matter has been an issue until now. I simply wish to flag up the fact that the Committee is due to report by 29 February, which is two weeks away, and it must consider how it might resolve any, or all, of those issues. For instance, the report could say that the issue exercised the minds of Committee members to a great extent and that there were various options considered as perhaps better working solutions than the current arrangements or the arrangements on devolution, and that it would then be a matter for the Minister or Ministers and the statutory Committee in a post-devolution situation.

However, it would be difficult to make progress in the time that remains for the Committee to report.

The Chairperson:

I take your point, but this issue differs from other issues that we have dealt with, because in the public mind, this issue will be a significant post-devolution factor. We have identified four options — none of which damage the respective positions of any of the political parties — and there is value in outlining them. I would like the report to state clearly that the Committee is concerned about the lines of accountability and that those lines should be strengthened appropriately to ensure that the public interest is served but the operational independence of the criminal justice institutions is respected. Therefore, the Assembly should explore further ways in which we can strengthen those lines of accountability, as they are not now sufficient to strike the right balance. It is a matter for the Assembly to determine whether that is done by way of an instruction to the Department.

The process concerns me a little — I have a vision of the issue rolling down the road ahead of us — yet it may be the only way in which we can deal with it. The stronger we make our case in the report, the more likely it is that the Assembly will take note of it and prioritise it. This issue may come down to the timing of devolution: if there is no consensus for it to occur in May, the Assembly may take the view that someone could take forward this work in the interim. That is why I am reluctant to say that it should simply be dealt with after devolution. The Assembly may take a different view and decide to make use of any delay by addressing the inadequacies that the Committee has identified in respect of the proposed arrangements.

The Assembly would then decide whether it wishes to set up a Standing Committee, which would be similar to the Preparation for Government Committee, to take forward some of the work and to produce a report. If the Committee goes down the road of deciding that the Department should deal with the issue after devolution, it does not leave open the option for the Assembly to consider whether that work could be usefully taken forward in the interim within an agreed timetable.

Mr McFarland:

Members must clarify the information in their minds. We may be able to narrow the options down to two, but it is incumbent on us to clarify matters in our minds so that we can give guidance to the Assembly. After all, we will have to take the lead on debates relating to the issue, and we will have guide people on what issues need to be addressed. The deadline is getting tight, but it would be useful to re-examine the evidence, because two or three options may simply fall off the edge — in which case we will be a little further on. However, we have a duty to clarify the matter in our minds before we move on.

The Chairperson:

Is the Committee content with the suggestion that the Committee Clerk should draft a response to the effect that we have identified this as a major issue that must be addressed? We have to inform the Assembly that, in the context of its report to the Secretary of State, it will have to consider how it wishes to take the matter forward. Further to that, it must decide whether there are matters that it wishes to address, before or after devolution. I would not try to guide the Assembly any further than that, or ask whether or not the matter should be dealt with by the new Department.

The Committee Clerk:

Procedurally, that is entirely in keeping with section 18(1)(a) of the Northern Ireland (St Andrews Agreement) Act 2006, which refers to

"the preparations that the Assembly has made, and needs to make".

Mr McFarland:

We must have clarity, for example, about the role of the Attorney General. The holder of that post must be in place on devolution. I know that it is unlikely, but technically in May, we could have devolution here, in which case OFMDFM must quickly put in place a process for recruitment of the Attorney General, who must be in post on devolution, as I understand it. We must have clarity about what the Attorney General is going to do, and whether or not he has a duty to appear before the Committee.

The Chairperson:

There is a consensus among the four party positions that the Attorney General should appear before the Assembly. I have a question for the Committee Clerk: I believe that the position at present in the NIO proposals is that the Attorney General has the right to attend meetings of the Executive, but not to vote. Is that correct?

The Committee Clerk:

Yes.

The Chairperson:

That is the current position. I believe that legislative provision has been made to enable the Attorney General to appear on the Floor of the House and to answer questions.

Mr McFarland:

That legislation must be made in the Assembly.

The Committee Clerk:

It is also the case that, if an Attorney General for Northern Ireland is not appointed on devolution, the Attorney General for England and Wales will continue to carry out the required functions until such times as a local appointment is made.

The Chairperson:

OK. There is a default position. It is my understanding that the funding for the Attorney General’s office comes from the Department. Is that correct? The Public Prosecution Service is funded by OFMDFM. How is the Attorney General’s office to be funded, according to the current NIO proposals?

The Committee Clerk:

I am not sure that that is specified. However, it would be an office in its own right. In order to protect the integrity and the independence of the Attorney General, the budget for that office would not necessarily be associated with any new Department of policing and justice. The question is addressed here because members have, from time to time, raised the issues associated with creating another office.

The Chairperson:

The Minister of Finance and Personnel read out a list of bodies in the House yesterday. It seems that the Food Standards Agency gets a special mention every time there is an allocation of funding. It struck me that that Agency gets it funding directly from the block grant rather than being channelled through the relevant Department. I assume, therefore, that the Attorney General’s office will be funded in the same way. Is the Policing Board also directly funded? The question then is: who determines the allocation? Is it the Minister of Finance and Personnel?

Mr Attwood:

Yes. The justice and policing budget will be found from the block grant. Those moneys will not be protected.

The Chairperson:

Yes. Therefore, the allocation to the Department will be determined by the Minister of Finance and Personnel. The allocation will then be disbursed to the various agencies and boards that are the constituent parts of the Department, which will include the Attorney General’s office.

Are members content that the funding for the Attorney General’s office is kept separate, and comes out of the block grant directly, rather than being routed through either the Department or the Office of the First Minister and deputy First Minister?

Mr I McCrea:

I was going to ask if OFMDFM had given a view on the matter. However, I now know the answer to that question.

The Chairperson:

OFMDFM has not given a view on the matter. That Department said that the Committee could form its own view without prejudice to any view that that Department might form in due course. It is proposed that the PPS will be funded through OFMDFM. The distinction between the PPS and the Attorney General is that he or she will have a seat on the Executive. Consequently, the office of the Attorney General is almost a ministerial office. Therefore, if funding is routed through another Department, does that potentially prejudice the uniqueness of that role?

Mr Attwood:

To whom will the Attorney General be accountable for his or her budget?

The Chairperson:

I suppose that he will be accountable to the Minister of Finance and Personnel for his budget.

Mr Attwood:

Although I am sure that the SDLP will agree that matter, I would like to think about it.

Mr McFarland:

Therefore, will the Finance and Personnel Committee be responsible for scrutinising the Attorney General’s budget?

The Chairperson:

The Clerk has told me that, because the Attorney General is appointed through the Office of the First Minister and deputy First Minister, that office would have a role in the financial allocations.

Mr McFarland:

That seems to be a more sensible way of dealing with the matter.

The Chairperson:

It means that the Attorney General’s office will be included in the same Department as the PPS.

Mr McFarland:

But only for the administrative side of that office?

Mr Attwood:

We have not agreed whether the office should be funded by OFMDFM.

The Chairperson:

No, we have not: under the current NIO proposals the Attorney General’s office and the PPS are part of OFMDFM.

The Committee Clerk:

Under the arrangements that would come into force on devolution of policing and justice, the responsibility for prosecution policy rests with the Director of Public Prosecutions and not with the Attorney General.

Mr McFarland:

Nevertheless, the question is whether the policy remit should devolve to the Department or whether it should rest with the Director — because the Director is the operational arm. Should the person who operates the policy be the same person who decides the policy?

The Committee Clerk:

That is the fundamental point about the independent role of the Public Prosecution Service.

Mr McFarland:

No. They are independent in their decisions on who should, or should not, be prosecuted.

The Committee Clerk:

The policy on that rests with the Director of Public Prosecutions.

Mr McFarland:

It does at the moment. However, the question is, should —

The Committee Clerk:

In the future, that policy will rest with the Director of Public Prosecutions.

Mr McFarland:

Is that only if we agree to it?

The Chairperson:

We have been looking at the question of whether, if that is the case — and it is under the current proposal — we should strengthen the statutory functions of the scrutiny committee to hold the Director to account for that role, or should we remove that power from the Director and transfer it to the Department. Those are the two options on the policy remit. Perhaps it might be left as it is, but something could be built around the PPS that increases its accountability — such as a management board or something similar to the Policing Board.

Mr McFarland:

Is there something, of which we are unaware, that would make the moving of responsibility for policy from the DPP to the Department a complete disaster that might wreck the PPS?

The Chairperson:

I believe that we are agreed that that is something that we are not going to be able to consider. Therefore, we may flag it up as an option. Then, it would be the responsibility of the Assembly to determine how the matter should be further investigated.

Mr McFarland:

Can we not — with a phone call — find out if there is a responsibility —

The Chairperson:

We might get one view on the matter as a result of a phone call. However, that view may not be impartial. I am not sure that it would provide a holistic approach.

Mr McFarland:

Can we re-examine the body of evidence that we have on the issue?

The Chairperson:

If the PPS says that it will be the end of the world for prosecutions in Northern Ireland if it loses its policy remit, is that an objective one?

Mr McFarland:

No, it is clearly not, but the question is why? If there is a logical reason why he can say that then we can accept that it would. If it is a case of him feeling that we are interfering with his empire, and he will be left with nothing to do, that is a different issue.

The Chairperson:

There may well be a valid reason why the Director of Public Prosecutions and the PPS should continue to deal with policy. We cannot get into a further detailed examination of any of the four options that we have already identified, and there may be other options that will emerge. The best that we can do at this stage is to flag them up to the Assembly.

Mr McFarland:

We do not need to have another meeting of the Committee or we would be doing that over every issue. It is just not clear at the moment whether we could come to a decision if we had more clarity of information, because what we do know is that we cannot summon the Director of Public Prosecutions to appear in front of a Committee. We have been told to forget that, because as the Lord Chief Justice (LCJ) argues, if he is in front a Committee he might be asked questions that are to do with his decision-making process on whether to prosecute or not, and, you will recall, that the LCJ said that he was not prepared to put any judge in that position.

The Chairperson:

Three of the four options that we are looking at result in the policy remaining with the director. The first one is that the director has policy responsibility, but the scrutiny Committee’s statutory function will be strengthened to hold him, or her, to account.

The second option is that the director has the policy responsibility, but the Attorney General’s role is strengthened so that he or she is answerable to the Assembly for policy issues relating to the Public Prosecution Service.

The third option is to build some kind of an accountability mechanism around the PPS itself, at arms length from the legislator, be that a management board, or a police board role.

It is only in the fourth option, where you suggest the possibility of transferring policy to the Department, that the question arises of the implications for public prosecutions in Northern Ireland. Can we get a quick answer to that question that might inform us as to whether or not we should continue to flag that option up, or do we just run with the three options that envisage the Director having policy responsibility, but with the lines of accountability strengthened.

The Committee Clerk:

The honest answer is that I do not know how quickly I can get an answer.

The Chairperson:

Could we make an attempt, and what would you suggest that attempt might be, Alan? Should it be to talk to the Director of Public Prosecutions or to the Northern Ireland Office or both?

Mr McFarland:

I am asking whether there are indications as to which we should do in the body of evidence that we have received so far. I have not trawled through that, because we have been looking at this only lately from a different angle. We were going along with maintaining the status quo, but Alex raised a number of questions that perhaps we should have thought about earlier. They then raised doubts in my mind. I have been puzzling for some time about politicians being told to get their hands off the judicial system and not interfere in prosecutions or the Court Service. We were told to back off, and I was going along with that, although I was uneasy, because if we are making the law and providing the money we have a duty to make sure that the law is functioning properly, and the money is being spent properly

That is the duty with which the Committee is charged. If it is hands-off in several of those areas, it will be prevented from doing its duty. There are, rightly, some matters in which the Committee should not be allowed to interfere, such as judicial judgements and decisions on who is prosecuted. However, inside those narrow parameters, the Committee could argue that it has a vested interest in ensuring that the rest of those bodies — the Court Service, the judicial system and the PPS — work properly. The next question is how that is ensured.

That is the point at which we have arrived, albeit belatedly: how best can politicians fulfil their duty with regard to those matters? I am asking only some logical questions. I appreciate that it is a bit late in the day. However, I am trying to determine whether, even at this late stage, the Committee could get a bit more clarity that might inform its decision-making. On the other hand, we can park the issue and deal with it later. I do not mind if anyone wishes to do that.

The Chairperson:

Before I invite Mr McCartney to speak, there are two issues that I want to discuss. One is the principle of who deals with public prosecutions policy. Depending on the answer to that question, the second issue must be dealt with; how it will be ensured that there are proper lines of accountability between whoever is responsible for policy and the Assembly. I believe that Mr McFarland is asking whether there is any way that the Committee can get an answer to the first question, which might, at least, inform us on the models with which we would answer the second question.

Mr McFarland:

Is there any easy way to get the answers? I do not want to create a lot of extra work. Clearly, there is a timeframe. Can we consider the matter quickly? If we cannot find a quick answer, we will have to park the matter.

The Chairperson:

My recollection is that we have not received enough evidence to date to adequately deal with the question of who should have policy responsibility. It is a big question. I am not sure that in the time that is available, we can get a satisfactory answer that we could, with justification, bring to the Assembly to contend that we believe that responsibility for policy should be taken from the director. We do not have sufficient evidence before us to justify making that recommendation at present. I believe that that is evident from the conversation that we have had.

Nevertheless, concern has been raised around the table about whether it is right that the director continues to have responsibility for policy or whether we need to beef up the Department and give it policy responsibility. I am not content that we have enough evidence before us with which to make that judgement, nor am I content that we can do justice to answering the question in the time that is available. However, I believe that it should be flagged up in the report. In doing so, it should also be flagged up in the report that the decision on that has implications for the lines of accountability. The Committee is not happy with current proposals on the lines of accountability. There is a feeling — a sense of unease — that the lines of accountability are not strong enough with the director’s having policy responsibility. Therefore, there are some models that the Assembly might wish to explore further. It is up to the Assembly to decide how it wants to take the matter forward.

Although I accept your point, Mr McFarland, I believe that that is the best that we can do even if there were an easy answer to your question. However, I do not believe that there is an easy answer. The issue is too complex and important for the Committee simply to say that because the director says something, it should be the basis on which a judgement is made.

The Committee Clerk:

Chairperson, it is probably worth recognising that any of the evidence that the Committee has heard is based on the premise of decisions that would be taken on devolution that are contained in the Justice (Northern Ireland) Act 2002 and the Justice (Northern Ireland) Act 2004; that there would be no superintendence role, and that responsibility for prosecution policy would rest with the director.

The Chairperson:

At present, that is the default position. I sense that none of us is happy with the lines of accountability that are created in the new post-devolution system. It is simply a matter of reflecting that strongly and prioritising it in our report to the Assembly, and, in so doing, saying that the Committee believes that that issue must be dealt with. How it is dealt with is a matter for the Assembly.

We simply want to flag up that, in considering the direct lines of accountability, the question arises as to whether it is appropriate for the director to be responsible for developing policy on prosecution, or might the Assembly wish to consider removing that power and giving it to the Department. That is the best that we can do at this stage, Alan. I do not want the issue to be parked: I want the Committee to flag it up in terms that make clear to the Assembly that it must examine the issue.

Mr McCartney:

I need clarification on one point. We have already heard that when powers have been devolved, the NIO will no longer be the custodian of the agency, which can then be turned into what has been called the Irish/Scottish model. When the current arrangements for the PPS have been devolved, will the Assembly have the power to overturn that?

The Chairperson:

Yes, it will.

Mr McCartney:

All members have made the same points as Alan this morning. I do not want to be controversial, but that highlights the need for the transfer to take place as soon as possible because, without transfer, the current situation, to which you referred as a disaster, will continue.

The Chairperson:

I take your point, Raymond. However, in theory at least, should devolution be delayed, the Assembly could still carry forward the work that the Committee has started.

Mr McCartney:

Absolutely; I was simply saying that there are questions about public confidence, and so forth.

The Chairperson:

The Committee can deal with the issue in different ways. The Assembly has decisions to make, and, at a higher political level than this Committee, decisions will have to be taken on timing. Those decisions will influence how the Assembly decides to move forward.

The Committee has generated enough heat around the table — and I mean that in a positive and constructive sense — to justify flagging up the issue as a priority in its report. It must be considered in the context of devolution, and, whether pre-devolution or post-devolution, it is a matter for the Assembly, not the Committee.

Are members content to let it rest there? The Committee Clerk will try to get his head round members’ positions when he drafts the report.

Members indicated assent.

The Chairperson:

To clarify, members, there is consensus that the post of Attorney General should be full time. For the time being, are members content that the costs associated with that office be dealt with according to the current arrangements? Should changes be required in the future, that will be a matter for the Department and the scrutiny Committee, and so forth. Is the Committee Clerk happy with that?

The Committee Clerk:

Yes.

The Chairperson:

We move on to the lines of communication and accountability of the Serious and Organised Crime Agency (SOCA) and the security services to the Department on excepted matters, such as national security and organised crime.

The DUP’s position, as reflected in its paper, is that it does not propose any additional mechanisms be conferred on the Assembly for those matters.

Alan, the UUP’s position is that there should be further examination of whether additional memoranda of understanding should be developed to allow the Policing Board and the Assembly a degree of oversight in the involvement of SOCA in Northern Ireland.

Mr McFarland:

SOCA covers two types of organised crime: terrorist-related organised crime and ordinary decent crime (ODC), as it has been described. The Policing Board and the Assembly are not allowed to interfere in terrorist-related crime. However, if SOCA targets an organised criminal gang, the issue is whether the Policing Board, and, one could argue, the justice Minister and the Committee, may have an interest in whether that investigation is being properly and rigorously conducted. How can we ensure that we, and they, are kept informed about such investigations?

The Chairperson:

You raise an interesting point. That issue arose at the Policing Board meeting last Thursday. The Chief Constable has said, on the public record, that there will come a point when our so-called paramilitary organisations will no longer be regarded in that sense and will be treated as criminal gangs. In response to a question that I asked, the Chief Constable said that, in his opinion, we have already reached that point, and the PSNI are approaching the issue from the perspective of dealing with organised crime.

That raises a question as to whether the UVF or the provisional IRA, for the sake of argument, are being treated as organised gangs if they are continuing to operate organised crime — I am not suggesting that they do or do not, unless the Chief Constable clarifies the position on that. Assuming that those organisations were engaged in organised crime, would that be a terrorist-related matter of national security, which would, therefore, fall under the protocols that exist between the Policing Board, the security services and SOCA, or would it fall under the other category that Alan identified? The latter category may need to be dealt with as a separate category, with separate memoranda of understanding, so that there would be some degree of further accountability between SOCA and the Policing Board and the Department.

Mr McFarland:

Let us suppose that there is an organised gang — there are a number of them around — which is not related to a paramilitary group, but which has teamed up with an organised gang in Romania to import drugs. That gang is clearly not terrorist-related. SOCA will look at that organisation and its international links. That is what SOCA is for; it is the equivalent of the FBI in looking at crimes that cross international borders. How are we to ensure that the Assembly and the Policing Board will be kept up to date on the investigation into that gang, which is based in Glengormley? We would be unable to scrutinise an investigation that falls under the remit of SOCA, because SOCA is an excepted matter. Perhaps we need additional memoranda.

As I understand it, the memoranda that are in place between MI5, the police and SOCA are concerned with anti-terrorist measures. Do they also cover, or do we need additional memoranda to cover, the Policing Board and the Assembly being made aware of what SOCA is doing with the organised gang in Glengormley that has teamed up with the Romanians?

The Chairperson:

Yes. I take your point. Alex, you might want to come in, because your paper covered that issue.

Mr Attwood:

There are many dimensions to that issue. Last week, NIO officials told the Committee that the memoranda will not be available, perhaps, until April. I was surprised at that. We have a very large piece of draft legislation, in confidence, and we do not have even draft memoranda that govern all the channels of communication between the various agencies and the Minister, etc. I do no want to draw any conclusions about that, but I am keen to see what those memoranda will say. I suspect that they will be extremely restrictive.

The Chairperson:

Can we ask the Committee Clerk to communicate with the NIO? Unfortunately, it was made clear to us last week that we will not see those memoranda before we publish our report. At this stage, the best thing that we can do is ask the Committee Clerk to write a letter, on behalf of the Committee, to the Northern Ireland Office in the context of the preparation of those memoranda of understanding, saying that there is a distinction between organised crime that is linked to terrorism or paramilitary groups and that which is linked to what we might call ordinary criminal gangs.

Mr McFarland:

We might call it ordinary decent crime.

The Chairperson:

Therefore, it is the view of the Committee that there ought to be a distinction drawn between the two, and we would want to see that reflected in the memoranda in respect of the level at which the Policing Board and the Assembly can interface with SOCA on that matter. Alan, does that reflect your views?

Mr McFarland:

Yes.

Mr Attwood:

I am concerned about the content of all the memoranda.

I think that we should try to get some consensus on my second point. One of the real risks is that when the Assets Recovery Agency (ARA) in the North disappears into SOCA on 1 April, and given that SOCA, at senior management level, is heavily influenced and occupied by ex-security service people — which is the case not just at leadership level but at senior management level where there are ex-MI5 operatives — inevitably their tendency will be to go after international terror and international money. The level of organised crime in the North, which is significant in domestic terms, will not register alongside the international terror or financial threat. There is a real problem that, over time, if not quickly, there will be a drift of resources and strategy away from the North by SOCA, leaving the issue of organised crime in the North not properly addressed.

The Chairperson:

Indeed. Alan McQuillan has highlighted that same concern. It is important to make it clear to the NIO when drafting the memoranda that we want to see a higher level of engagement between SOCA, the Policing Board and the Assembly or Department in relation to that aspect of organised crime.

Mr Attwood:

That is absolutely right.

The third issue is that we have spent a lot of time this morning talking about making the PPS accountable, yet there is a huge area of the PPS’s work where we have no interest, such as the Advocate General’s office’s responsibility on the excepted side, which involves the hard and serious terror side, among other areas. We will have virtually no standing, because we do not have any right to be involved in that and, no doubt, the information shared by the Assembly or the Minister will be very limited, and it will be even more acute when it comes to the security services.

In its paper, the SDLP spent a long time arguing that if we are really to be involved in accountability in the North, then whether it relates to SOCA, MI5 or the role of the Attorney General, we need to firm up matters as far as possible. People may think that this is some sort of witch-hunt or hobby horse or whatever —

Mr McFarland:

Surely not.

Mr Attwood:

— or whatever way you want to put it, but we will be limited, and maybe end up with no role, on critical issues of policy in the PPS around excepted matters and the policy and activities of MI5 in the North.

I am not making a political point, but last Friday afternoon, we saw MI5’s role in the North, when it was revealed that an agent was about to be exposed. We see how that can impact. Let us fast forward six months to when MI5 is recruiting in the North, someone is about to be exposed in the North, or some activity of MI5 raises public concern in the North. We will have little standing or authority on those issues. That is why we say that we will not get that issue over the line in the next two weeks. However, along with the PPS issue, the Committee needs to highlight issues around SOCA and its future practice, MI5 activates in the future, and issues concerning the Advocate General.

I am sorry to give the Committee Clerk a bit more work, but I have a straightforward question. In future, will the Advocate General for Northern Ireland have a superintendent’s role over the PPS on excepted matters? I suspect that he will. Therefore, the powers regarding excepted matters that will be taken away — for good reasons — from the Attorney General might be given to the Advocate General. That is because the British Government will want to be able to direct the PPS — on grounds of public interest or national security — not to pursue certain matters, to collapse certain cases and not to prosecute certain people. I might be corrected on this, but I suspect that that little piece of evidence will highlight a significant policy reason.

Again, in one way, we are not going to be able to progress this issue. The SDLP and the Ulster Unionist Party raised the issues of SOCA and accountability. However, Sinn Féin’s paper did not. If Alan is saying, on behalf of the Ulster Unionist Party, that there are issues that may need to be considered generically, I think that the Committee should at least name those issues, even if we cannot agree on how to progress them.

Mr McCausland:

I have a question about SOCA and the letter that the Committee is sending. From what I gathered, the Chief Constable was saying that paramilitary crime was now regarded as ordinary crime. Why then, in our letter, are we drawing a distinction between serious crime and paramilitary crime?

The Chairperson:

That is because there are still organisations in Northern Ireland that are engaged in terrorist activity.

Mr McCausland:

To which organisations was he referring?

The Chairperson:

The organisations that he no longer regards as being engaged in terrorism.

Mr McCausland:

Which organisations are those?

Mr McFarland:

He was basically saying that loyalist terrorist organisations are now just criminal gangs.

Mr McCausland:

What about republican organisations?

The Chairperson:

He is continuing to treat them as terrorist organisations for the purposes of dealing with the law and the special powers that he has.

I drew attention to that issue. It is a big and ambiguous area. If certain organisations are being deemed as ordinary criminal gangs, why, then, are prisoners in Maghaberry Prison who are affiliated to those groups still being separated and granted special status? Such questions need to be pursued with the Chief Constable.

Mr McCausland:

That is fine.

The Chairperson:

The Committee does not want to get involved in the paramilitary issue. As a Committee, we are asking why there cannot be greater engagement between the Policing Board, SOCA and the new Department and Assembly regarding organised crime that is non-paramilitary related. That is what Alex was flagging up. In fairness, Alan McQuillan also flagged that up. We will leave the issue of what is or is not a paramilitary organisation for other people and another day.

Mr Attwood:

I agree. I am happy for the letter to be sent. One other issue is that the security services want to treat republican organisations, but not loyalist organisations, as a national security threat. Considering what the Chief Constable said last week — I was not aware that he said this — and as Alan said, he is trying to differentiate between loyalists and republicans because MI5 want to pass the issue of loyalist organisations over to the police, but do not want to do the same with republican organisations.

Mr McCartney:

Sinn Féin’s position regarding SOCA has not changed since the meetings of the Committee on the Preparation for Government. Therefore, that is why that issue was not mentioned in our paper. Our position is well known.

The Chairperson:

I understand that. Is the Committee Clerk content with the Committee’s position regarding excepted matters?

The Committee Clerk:

Some more than others.

The Chairperson:

There is an issue as to whether North/South agreements will require renegotiation by the new Department after policing and justice powers are devolved. There is also an issue as to whether there are any other cross-border or intergovernmental agreements that require consideration prior to those powers being devolved.

The Committee Clerk:

Those questions were put to the NIO on behalf of the Committee following previous discussions. North/South agreements will have to be renegotiated. Unfortunately, the NIO did not answer the question about whether there were further agreements that require consideration.

The Chairperson:

At the Committee meeting of 7 February 2008, the representatives from the NIO were clear that there is an agreement that falls on devolution, but that another aspect continues post-devolution.

Mr Attwood:

That is the policing aspect.

The Chairperson:

Yes, and they were clear that, statutorily, nothing is required to be renegotiated beyond the current agreements. However, that is a matter for Ministers.

Mr McFarland:

In their preamble at last week’s meeting, the representatives from the NIO talked about ongoing work between civil servants on cross-border justice issues. I asked whether we could have a list of that programme, but I cannot remember whether they agreed to supply that.

The Chairperson:

I cannot remember either. Perhaps their response glossed over that question.

Mr McFarland:

They said that work was ongoing. Logically, we must be made aware of what that work is.

The Chairperson:

Do you want a letter to be sent on behalf of the Committee to follow up on your question, and to ask for clarity on the issues that continue to be the subject of discussion?

Mr McFarland:

As I have not seen the Hansard report, I do not know what exactly was said. I think that I asked the representatives from the NIO what ongoing work between civil servants was taking place.

The Chairperson:

I do not think that we got an answer.

Mr Attwood:

There is an extensive work programme, but it is non-threatening.

Mr McFarland:

Nonetheless, it would be good for the Committee to know what it contains.

Mr Attwood:

There would be a real problem if the justice agreement were to fall. The politics of the justice agreement are pretty neutral, but its impact on the wealth of the citizens on the island is important. Therefore, it would be useful to put a justice agreement mark II in place, at least in the areas that have been governed by the justice agreement mark I. The justice agreement should be taken forward in many different ways, and we can have that conversation. The old agreement should, at least, be renewed under devolution because it is a matter of protecting people, North and South.

Mr G Robinson:

That is also the DUP’s line on that.

The Chairperson:

The DUP’s position is that the Department would need to agree new arrangements to replace the existing North/South agreements on relevant policing and justice matters.

Mr I McCrea:

Alex is saying that an agreement must be put in place on devolution, when the current agreement falls. Such an agreement would be an interim one to allow the new Minister, or Ministers, to get their act together to put a new agreement in place. Is that your suggestion?

Mr Attwood:

Yes, if the Assembly could agree that it would like to see the measures that are in the current agreement in place at the point of devolution.

The Chairperson:

That question was asked, Alex. The difficulty is that, legally, that must be agreed at ministerial level.

Mr Attwood:

On day one of devolution —

The Chairperson:

A ministerial meeting or a North/South Ministerial Council meeting could take place.

Mr McFarland:

The Assembly has to put the legislation through.

Mr Attwood:

It is not legislation.

The Chairperson:

No, it is not legislation.

Mr Attwood:

It is an agreement between Governments.

The Chairperson:

It is an agreement between Governments at ministerial level.

Mr McCausland:

What areas are covered by the agreement?

Mr Attwood:

Children’s issues and sex offenders are covered by it.

The Chairperson:

The sharing of information on paedophiles is covered.

Mr McFarland:

Multi-Agency Sex Offender Risk Assessment and Management (MASRAM) is included; it is all fairly logical stuff.

Mr Attwood:

All the policing and security aspects of the agreement will continue anyway.

The Chairperson:

People will ask what the agreement is about, so it is important to have that information.

Mr McFarland:

It is about, for instance, sending the Fire Brigade to Lifford if there were a fire there.

The Chairperson:

We need a copy of the agreement from the NIO, or a list of the issues that are covered by the agreement. We need to incorporate that in our report, and we need to tell the Assembly that there is an existing agreement, which will fall on devolution. We need to tell the Assembly which issues are covered by the agreement, and that new arrangements will need to be put in place.

Mr McCausland:

This is about the exchange of information between Northern Ireland and the Republic on issues such as paedophiles and sex offenders. What is the position on the exchange of information between Northern Ireland and England, Scotland and Wales? Why should there be an arrangement between Northern Ireland and the Republic of Ireland when there is an equal need for relationships and exchanges of information between the Republic of Ireland and Wales or Scotland? Paedophiles can get on the boat at Dun Laoghaire and go to Holyhead or wherever. What is needed is a British Isles exchange of information rather than a North/South arrangement.

The Chairperson:

The current arrangement is a North/South agreement. If that is to be replaced by a new British-Irish agreement —

Mr McCausland:

That would be in keeping with the whole thrust of the Belfast Agreement, because it will be an east-west relationship.

The Chairperson:

I assume that that would have to be done under the aegis of the British-Irish Council. It would mean pulling together the justice Ministers —

Mr McCausland:

Information on such serious matters should be taken out of politics.

The Chairperson:

I assume that some sort of arrangement already exists.

Mr McCausland:

Rather than creating a North/South mechanism, a comprehensive arrangement would cover all the relationships.

The Chairperson:

You are probably right, Nelson. I rather suspect that there are aspects of the North/South agreement that are territorial in nature. In order to have an informed conversation on this issue, we must obtain a list of the areas that are covered by the North/South agreement so that we can identify those issues that require immediate attention at North/South Ministerial Council level, and those that might fall to the British-Irish Council.

Mr McFarland:

We have that in one of our papers from the NIO.

The Chairperson:

I have it somewhere. Perhaps the Committee staff could circulate that list to members by email so that they can give it further consideration. In the first instance, Alex, we will have to consider the form of words to be used in the report to flag the issue up to the Assembly. We will then have to determine whether there is a specific recommendation.

Can we park that in the meantime, members? We need to establish the substance of this next matter.

We put a question to the NIO in relation to the Northern Ireland Police Fund. It is funded out of the Northern Ireland block grant. One assumes, therefore, that it would fall to the Department to deal with that matter. Someone asked me whether responsibility for the Police Fund should rest with the Department, with the victims’ commissioners designate — or with OFMDFM, because it liaises with the victims’ commissioners designate. I do not know the answer, and, at the moment, there is no home for the Police Fund. Is that correct? I am not sure whether it is funded out of the block grant. The NIO may have clarified exactly who takes on responsibility for it.

The Committee Clerk:

To be honest, I do not have the letter of 15 October 2007 with me.

The Chairperson:

Was that circulated in a recent folder?

Mr McFarland:

It is the first letter in our black folders.

The Committee Clerk:

No. It is at annex B of the letter of 15 October 2007.

The Chairperson:

In its letter of 6 February 2008, the NIO say:

"The Northern Ireland Police Fund’s budget forms part of the general Policing and Security allocation which in turn is part of the overall NIO grant. There is no separate arrangement."

That does not tell us where it is going.

Mr McFarland:

We had a chart detailing all the agencies that would transfer across.

The Committee Clerk:

It is at annex B of the letter of 15 October 2007, which I do not have to hand. When I send the other document out, I can tell the Committee where it is proposed that the Police Fund will sit. My recollection is that it is a body that will fall under the remit of the proposed new Department of justice.

The Chairperson:

Clerk, you think that the Police Fund comes under the remit of the Department of justice?

The Committee Clerk:

Yes.

The Chairperson:

If that is the case, does the Committee think that the Police Fund should remain in the Department, or should we leave the matter for further deliberation after the devolution of policing and justice?

Mr Attwood:

It should remain there; there will be new legislation on the Police Fund between now and the autumn, so there will be a legislative opportunity to look at moving it from the Department of justice.

The Chairperson:

Are members content that this matter transfers as proposed by the NIO?

Members indicated assent.

The Chairperson:

Clerk, a line should be put inserted in the report stating that the Assembly may wish to consider further whether the funding of the Police Fund is a matter for the Department of justice or the Victims’ Commission and OFMDFM. Are members content with that?

Members indicated assent.

The Committee Clerk:

The original discussion paper in 2006 stated that:

"funding and oversight of Police Fund would be a matter for the Northern Ireland Executive."

That was non specific, but my recollection is that there is reference to the Police Fund falling under the responsibility of the Department for justice in annex B of the letter.

The Chairperson:

That completes what the Committee has to deal with in regard to structures.

The Committee Clerk:

In relation to the point on position papers.

The Chairperson:

We move onto the issue of Life Sentence Review Commissioners. Clerk, as there was a query on this issue at last Thursday’s meeting, will you talk us through where we have got to?

The Committee Clerk:

Yes; the draft Criminal Justice (Northern Ireland) Order 2007, which was also discussed last Thursday, will introduce a new system of parole commissioners who will overtake the current Life Sentence Review Commissioners. The NIO says that the new parole commissioners would be subject to the same arrangements as the Life Sentence Review Commissioners. The new law will largely replicate the existing law.

Mr McCartney:

I assume that there will be one rather than two separate entities.

The Committee Clerk:

That is right.

The Chairperson:

Do we need to do anything about that?

The Committee Clerk:

Nothing, other than simply noting the answer.

The Chairperson:

Would it be necessary to mention it in our report?

The Committee Clerk:

Not specifically. That matter will be addressed along with a raft of other issues in the report. However, there is no requirement for the Committee to make a specific recommendation.

The Chairperson:

Is there anything that you want to flag up concerning the Commissioner for Hearings under Prison Rule 109B or Loss of Remission Commissioner?

The Committee Clerk:

The future sponsor will be the Department for policing and justice. The Committee asked for clarification about whether the Department or the Prison Service would sponsor that position.

The Chairperson:

That raises a question about the position of the Prisoner Ombudsman, which has attracted a degree of publicity in recent weeks. The Prisoner Ombudsman has tendered his resignation because, under the legislation proposed by the Northern Ireland Office, his office would come under the Prison Service’s jurisdiction, and he has said that, given that he would be required to investigate prisoner’s complaints against staff and that his office would be funded by the Prison Service, there is a potential conflict of interest. He felt that the Prisoner Ombudsman should be appointed in the same way as the Police Ombudsman, namely that it should be a Crown appointment and not under the auspices of the Department.

The Committee Clerk:

That is also my recollection, although, I understand that some of the more controversial provisions in that legislation have since been withdrawn. However, I need to check on that.

The Chairperson:

For the benefit of Alex, who has returned, we need do nothing concerning the Life Sentence Review Commissioners, and we have had clarification that, in time, they will become the parole commission. Secondly, the Commissioner responsible for hearings under prison rule 109B will be sponsored by the Department for policing and justice.

I have raised the issue of the Prisoner Ombudsman’s intent to resign because he is concerned that the NIO’s proposed legislation would entail future appointments to his position being made by the Department — which will be responsible for the Prison Service — and will potentially result in a conflict of interest because the Ombudsman must consider prisoner’s complaints about Prison Service staff. In the future, the Ombudsman feels that his post should be a Crown appointment — similar to that of the Police Ombudsman — and outside the Department’s remit. I asked whether the Committee should take a view or express an opinion on that issue, albeit that it would require legislative changes. Such a matter would be another of those flag-up issues to which the Assembly might wish to return. Do you wish to be involved in the discussion?

Mr McFarland:

It would be useful if that position retained some form of independence. At the time, the decision to make the position of Police Ombudsman a Crown appointment — with its own Department, hundreds of detectives and all sorts of other things — was a major issue. The appointment of the Prisoner Ombudsman does not appear to require the same level of activity. Clearly, there must be independence and it makes sense to remove the responsibility for that position from the Prison Service, but I am not sure that it is necessary to make it a Crown appointment and give it its own Department with endless numbers of prison investigators and so on. It is not the same.

The Chairperson:

Do we wish to mention that matter in passing and flag it up for the Department and Committee to consider in the future? Are members content to deal with the matter in that way? At this stage, we need not become exercised about it, and there are issues that we should consider in more detail.

It is not really part of the preparatory work for devolution, but the Department and the Committee might want to look at it afterwards. A line or two in the report could reflect that concern has been publicly expressed about that issue and that the Department and the Committee might want to examine it after devolution.

Members indicated assent.

The Committee Clerk:

There was another matter under the broad heading of the Commissioner For Hearings. There is a similar issue in relation to the medical appeals tribunal. Those tribunals will all be gathered together in the courts and tribunals service, to which the director of the Northern Ireland Court Service referred. That offers some clarification. That service would be an agency of the Department, so lines of accountability would exist there.

The Chairperson:

OK. We will move on to the Criminal Injuries Compensation Appeals Panel. In a letter of 15 October, the NIO stated that the Criminal Injuries Compensation Appeals Panel is a non-departmental public body funded by the NIO with members appointed by the Secretary of State. After devolution, the panel was to be funded by the Department with the new Minister or Ministers responsible for appointments to the panel.

I understand that the panel transferred from the NIO to the Northern Ireland Court Service on 1 December 2007. The transfer was delivered by a machinery of Government letter, which transferred to the Secretary of State for Justice certain functions which were previously the responsibility of the Secretary of State for Northern Ireland. That allowed the Northern Ireland Court Service to assume administrative responsibility for the tribunal. We are awaiting confirmation from the NIO that that transfer has taken place, and we have asked for clarification on whether the new Minister will still be responsible for appointments to the panel.

The Committee Clerk:

Yes. It is not a controversial issue, but the updated version of the discussion document is silent about that panel. I simply pointed out that it was an issue that had previously exercised the minds of the Committee. We will wait for confirmation from the NIO.

The Chairperson:

OK. Are members content with that?

Members indicated assent.

The Chairperson:

Moving on to matters to be transferred, several matters to be transferred have been further developed in the most recent summary of draft legislation that has been provided by the NIO. It will be necessary to agree the status of those matters, as outlined in the latest documentation.

With regard to firearms and explosives, the summary of the draft legislation by the NIO provides further clarification of the proposals set out in the initial NIO discussion document of February 2006. That document suggested that there were several ways in which firearms matters could transfer. The summary of draft legislation from the NIO confirms which firearms responsibilities will be devolved. All aspects of firearms responsibility should devolve apart from three. First, the matter of firearms appeals and the applications for the removal of statutory prohibition on holding firearms relates to appeals against the Chief Constable’s decisions, and applications for the removal of a prohibition. The Assembly’s capacity to legislate will be subject to approval from the Secretary of State. Therefore, the Assembly may legislate on that area, but will require the approval of the Secretary of State to do so.

Secondly, the issue of prohibited weapons relates to arrangements for authorising the possession, purchase, acquisition, manufacture, sale or transfer of prohibited weapons. The Assembly’s capacity to legislate will be subject to approval by the Secretary of State. That matter has moved on from being an entirely reserved or excepted matter to one on which the Assembly may legislate with the approval of the Secretary of State.

Thirdly, the matter of Crown Servants relates to the authorisation in writing of a person without a firearms certificate who is a Crown Servant to purchase or acquire firearms for the public service. One assumes that that applies to the police, for example. That responsibility will not devolve to the Assembly.

With regard to explosives, the initial NIO discussion document of February 2006 suggested that the new Department would have full responsibility for matters relating to explosives. However, the more recent summary of the draft legislation states that that view has been revised and that responsibility for explosives regulation relating to health and safety and fireworks control should be devolved, but that security-related explosives matters should remain reserved.

Mr McFarland:

To clarify the point on health-and-safety issues linked to explosives, if explosives are being used in a quarry, that is normally a health and safety matter. Is that a security-related matter, because it involves the use of explosives?

If a quarry owner got hold of gelignite, plastic explosive, or whatever they use nowadays, to bring rocks down in his quarry — is that a security matter or a health and safety matter?

The Chairperson:

It strikes me that that is health and safety.

Mr McCausland:

So the regulations for quarry use are our responsibility. What is left then? What does security cover?

The Chairperson:

I would imagine control of explosive devices, which in a security context might mean searching for explosives, detonators, etc. Obviously we do not have the military power, so that would not devolve to us. Security would also relate to powers in the Terrorism Act, for example, and explosive devices, which would remain as matters to be dealt with on a UK-wide basis, rather than by us.

Mr McCausland:

Presumably that also means licensing of manufacturing companies.

The Chairperson:

That would be security vetting and so on.

Members, are you content that we do not raise an issue about the transfer of non-security explosive matters to the Assembly, because that is a new power. Are we happy for that to take place? The previous view was that it should take place and be reserved, but the NIO are proposing to devolve it. The Committee was always concerned about the security rather than the commercial issues. Are we content to proceed on that basis?

Members indicated assent.

The Chairperson:

Let us now turn to the misuse of drugs. The NIO did not raise the matter of powers relating to the misuse of drugs in the February 2006 discussion document. However, this matter was discussed by members as a result of the submission from the Scottish Minister for Justice.

The NIO have explained how this matter will transfer in their summary of the recent draft legislation as follows:

"The Government believes that there is considerable merit in retaining a common framework within which controlled drugs are dealt with and classified across the UK. The effect of this would be that the Assembly would continue to require the consent of the Secretary of State to amend the primary legislation".

However, the vast majority of the functions that are provided for in the Act — which the Secretary of State (in practice the Home Secretary) exercises in relation to Great Britain — are already devolved in Northern Ireland. They are conferred upon the Department for Health, Social Services and Public Safety, including the function of regulating the lawful use of controlled drugs in Northern Ireland by subordinate legislation. There are also already consultative roles for the Northern Ireland Ministers for health and for education outlined in the Act. By convention, there would be a need for a Legislative Consent Motion in the Assembly if the Government were to introduce legislation at Westminster that would alter the functions of DHSSPS or any of the Northern Ireland Ministers in this regard.

So it is a two-way process. If we want to legislate we need the consent of the Secretary of State, and if they want to legislate in a way that impacts upon the transferred powers then they need the consent of the Assembly.

Are members content with that?

Members indicated assent.

The Chairperson:

I am now turning to excepted matters in relation to Extradition and Mutual Legal Assistance.

Two of the matters discussed at Chapter 18 of the NIO Discussion Document (February 2006) are Extradition and Mutual Legal Assistance — "(MLA)".

They will probably want to know who gets the money for that now.[Laughter.]

As detailed by the February discussion document, there is a single legislative framework in existence for extradition arrangements throughout the UK (as a result of the introduction of a European arrest warrant). Therefore, the Government did not propose to devolve legislative competence in this area to the Assembly.

However, the NIO stated that there are some administrative functions relating to extradition which could be exercised by Northern Ireland Ministers.

The recent NIO summary of draft legislation confirms those matters relating to extradition which will transfer on devolution.

The first of those matters is the inclusion of the Lord Chancellor’s functions on the designation of an appropriate judge in both category 1 (EU) and category 2 (non-EU) cases, provided for in sections 67(1)(c) and 139 (1)(c) of the Extradition Act 2003 respectively. Those will transfer to the Department of justice under article 3(2)(a) and (b).

Secondly, the Lord Chancellor’s functions with regard to paying for legal aid before the House of Lords and designating judges to grant legal aid under sections 185(4) and (6) of the Extradition Act 2003 will transfer to the Department of justice under article 3(2)(c) and (d).

Thirdly, the Lord Chancellor’s regulation-making powers on costs for category 1 and category 2 cases provided for under section 61(8)(b) and 134(8)(b) will transfer to the Department of justice under the devolution arrangements.

Those are the Lord Chancellor’s regulation-making powers on costs for category 1 and category 2 extradition cases. I am sure that that all means something. However, the bottom line for the Committee is that those limited powers will transfer on devolution to the Department. Will anyone be raising any major objections to that, he said moving on swiftly?

I will move on to the subjects of the prevention and detection of crime and the regulation of the private security industry. The Private Security Act, as amended by the Justice and Security (Northern Ireland) Act 2007, enables the regulation of the private security industry in Northern Ireland by the Security Industry Authority. The distinction between the long-term arrangements for regulating the public security industry and the interim arrangements under the 2007 Act is new. The latter was not in place at the time of the initial NIO discussion document. I am simply flagging up that matter up to Committee members.

The NIO previously said that some reserved aspects of the Regulation of Investigatory Powers Act 2000 (RIPA) would need to remain as a reserved matter. That is the case, and there are also some related intelligence-gathering issues that need to be reserved in parallel. That is not a new issue; it is simply a clarification of the position that we had previously flagged up as requiring a resolution.

The February 2006 discussion paper highlighted the interface between national security and serious crime and indicated that, for that reason, some aspects of RIPA — that are currently reserved — might need to remain so. After consideration the Government has concluded that the techniques and methodologies concerned are of importance to the protection of national security. Therefore those arrangements should remain a reserved matter. Members that is not a new position. It is simply the NIO clarifying that which we asked them to clarify.

After a report published in September 2003, the Government introduced arrangements for the separation of paramilitary prisoners in the interest in safety. The wings of two houses in Magheraberry Prison have been designated as separated accommodation. Criteria have been published that prisoners must meet to gain entry. They include membership of, or support for, a proscribed organisation and that their admission would not be likely to prejudice their safety or that of others. The separated accommodation scheme is administrative in nature, although it is included in the prison rules. Matters that officials and Ministers take into account in deciding whether or not to admit prisoners to, or remove them from, separated accommodation can include detailed and sensitive national security information.

"The NIO are proposing, therefore, that legislative competence in relation to accommodation in separated accommodation should remain reserved and that the Secretary of State would remain responsible for decisions on whether an individual should be admitted to, or removed from, separated accommodation."

That is provided for in the draft legislation that will deal with the transfer of powers to the Assembly and Executive.

Therefore, the NIO is saying that decisions on paramilitary prisoners, who apply for admission to the separated accommodation at Maghaberry Prison, or who may need to be removed from that accommodation, involve matters that are sensitive as regards national security. Therefore, the legislative competence and the decisions on who should be admitted to, or removed from, that accommodation will remain with the Secretary of State and not transfer to the Assembly when powers are devolved.

That completes the consideration of the matters to be devolved. The Committee Clerk’s brief included the clarification that we sought from the NIO in the light of the emerging legislative documents that we received last week.

We move on to the terms of a motion for debate on the report. A draft was circulated yesterday, and there should be copies for everyone.

Mr McCartney:

Will the Committee be receiving copies of that brief?

The Committee Clerk:

I can provide members with copies.

The Chairperson:

I have also read it into the record as well, Raymond, and it will appear in Hansard.

Mr McCartney:

The Committee is meeting in private session today, and it is the first time that I have heard of the criteria for the separation of accommodation being linked to British national security.

The Chairperson:

Will the Committee Clerk please circulate my explanations on all those issues to each member? The explanations will be included in Hansard. However, I may have skipped a word or two, so it is better that everyone receives a copy.

Members, you have a copy of the draft motion that will be tabled to the Business Committee. My understanding is that must be tabled by a certain date.

The Committee Clerk:

Should the Committee express a preference for the debate to take place on either the 3 March 2008 or 4 March 2008, the Business Committee would have to consider the motion when it meets next Tuesday, because business is scheduled two weeks in advance. After indicating what may be debated two weeks in advance, the Business Committee approves the Order Paper for the first of those two weeks.

The draft motion, as it appears in the briefing document is as follows:

"That the Assembly approves the report of the Assembly and Executive Review Committee relating to the devolution of policing and justice matters and agrees that, as required by section 18 of the Northern Ireland (St Andrews Agreement) Act 2006, it should be submitted to the Secretary of State for Northern Ireland, before 27 March 2008, as a report of the Northern Ireland Assembly."

Any party can amend the motion, and the Committee’s report will reflect the need for further consensus before a report is sent to the Secretary of State. Therefore, when the Committee asks the Assembly to approve its report, which is the basis of the report that the Assembly will send to the Secretary of State, several outstanding issues will need to be resolved. What does that mean for the Committee? Will the Committee be saying to the Assembly that its report reflects a current view and that should the Assembly make no changes, it will have to send that report to the Secretary of State? That will reflect that the Assembly is not yet ready for devolution, because certain matters must be agreed before devolution can take place.

Mr McFarland:

Surely it must be done that way, because the Assembly told the Committee to discuss the issues and report back on its position, which is what it will be doing. There is no other mechanism, unless the Assembly tells us to continue our discussions.

The Chairperson:

I have only one question, on which I will seek clarification. If the Committee states that its report should be submitted to the Secretary of State as a report of the Northern Ireland Assembly, is that in line with the motion that gave the Committee its remit? Perhaps the Committee Clerk will remind us of the terms of that motion that referred the matter to the Committee in the first instance.

The Committee Clerk:

The terms of the motion were based on the Northern Ireland (St Andrews Agreement) Act 2006.

The first obligation that is placed on the Assembly in the Northern Ireland (St Andrews Agreement) Act 2006 is that

"(1) The Northern Ireland Assembly must make a report to the Secretary of State before 27 March 2008 —

  1. as to the preparations that the Assembly has made, and intends to make, having regard to paragraph 7 of the St Andrews Agreement, for or in connection with policing and justice matters ceasing to be reserved matters;
  2. as to which matters are likely to be the subject of any request under section 4(2A) of the 1998 Act that policing and justice matters should cease to be reserved matters;
  3. containing an assessment of whether the Assembly is likely to make such a request before 1 May 2008.

The Chairperson:

We have dealt with the first two issues, but we have not reached consensus on them. The third issue is an assessment of whether the Assembly is likely to make a request for the devolution of policing and justice matters before 1 May 2008. Is that in our remit?

The Committee Clerk:

It is in your remit, and you can express a view that the Committee did not reach consensus on some issues.

The Chairperson:

That question can be answered in two ways. First, the Committee can report that there is no consensus on whether the Assembly is likely to make such a request — in other words, we do not know, which is the truth. There is no consensus out there to devolve policing and justice matters. The Assembly has not reached a definitive decision on the matter yet. Perhaps we should simply report that it is the Committee’s understanding that no view has yet been formed on whether to request devolution of policing and justice matters. That will be the basis of the report, because the Assembly may then have to come to a view — even if it is that we are not ready for devolution before 1 May 2008. We are being asked to assess whether the Assembly is ready to make that decision, or has made that decision. Clearly, neither applies.

Mr McCausland:

Is the question not that we should assess whether the Assembly is likely to request devolution? What was the wording again?

The Chairperson:

Under the terms of reference, and within the legal requirement, section 18 of the Northern Ireland (St Andrews Agreement) Act 2006 is entitled "Report on progress towards devolution of policing and justice matters". It goes on to mention the arrangements that the Assembly has made and intends to make, so it is not suggesting that there must be a definitive answer. We could say in our report that it is a requirement on the part of the Assembly to report to the Secretary of State on whether the Assembly is likely to make such a request for the devolution of policing and justice matters before 1 May 2008. That is the requirement under the legislation.

Mr McFarland:

We could say that it is a requirement on the Assembly, not the Committee.

The Chairperson:

We could go on to say that, from evidence that the Committee has received, we do not believe that there is consensus, or we could say that the Committee has not taken a view on the matter but urges the Assembly to come to a view so that a report can be made to the Secretary of State by 27 March 2008. There are a number of ways in which the Committee can deal with the issue.

Mr McFarland:

Our view is that there is no consensus. That helps the Assembly.

The Chairperson:

Do the four parties around the table want me, as the Chairman, to ask the formal question: is your party ready to support a request from the Secretary of State for the devolution of policing and justice powers before 1 May 2008? We could include the outcome of that in the report, which would say that the Committee reported that Sinn Féin and the SDLP’s view was x, and that the DUP and UUP’s view was y, z or any variation in between. The report would draw those views to the attention of the Assembly.

The Committee Clerk:

The Committee has agreed, in certain circumstances, that the resolution of some of the issues, such as the ministerial model or the method for appointment, is a matter for higher political consideration. Therefore, the recommendation could also refer the issue of whether the Assembly is likely to make a request to that higher political forum. That could be an alternative.

Mr McFarland:

Technically, if the parties meet and agree on those issues, the report might be able to make recommendations to the Secretary of State.

The Chairperson:

Our report would say that, given that a number of significant issues remain to be resolved, the Committee has formed the view that the Assembly is not yet in a position to request the devolution of those powers. That would be a factual statement; it would not ask any party to take the view that it is against devolution in May 2008, regardless of what else is agreed. The parties in the Assembly would be left to take that question forward.

Do members want to reflect on that in advance of tomorrow’s meeting? Do you want the Committee to put the question formally to the four parties that are represented here — without prejudice to the outstanding issues that are to be resolved, do you wish to have the devolution of policing and justice powers before 1 May 2008?

The second option is that the Committee’s report would reflect the fact that there was not yet a sufficient level of agreement to enable the request for the devolution of policing and justice powers to be made.

Does the Committee want the question to be put formally, or should the report reflect that it is evident from the inquiry that the Committee was not yet in a position to request the devolution of policing and justice powers, leaving it for the Assembly to resolve the outstanding issues in whatever way it sees fit.

Mr McFarland:

The best option is to make a factual statement that, because the outstanding issues are not resolved, the Committee is not able to take the decision.

The Chairperson:

It would then be left to the political parties to express their views in the debate. The Committee would say that we recognise that work remains to be done, but we would say that we are, or are not, in favour of devolution by 1 May 2008.

Mr McFarland:

Potentially, the leaders of the parties can get together and come to another decision.

Mr McCausland:

What will be forwarded to the Secretary of State? Is it the content of our report, or is it the content of our report and the debate?

The Chairperson:

The report and the debate will be forwarded, along with any further political decisions that may be taken in the meantime.

The Committee Clerk:

It is conceivable that, after the debate, whether that is to be on 3 March or 4 March, or on 10 March or 11 March, the Assembly will have a further debate before May that might address the issue more sharply.

The Chairperson:

My view is that the best that we can do is to report the factual position. The alternative is to go back to your parties and ask them to make a political decision before they have seen the report. I am thinking about what the best way of handling that is, under the protocol and convention of the situation.

Mr McFarland:

The Secretary of State has met with most party leaders and has put a fair amount of pressure on them to take a decision. My guess is that there will be more such meetings to try to progress the issue after the debate in the Assembly.

The Chairperson:

It is important to be clear that, as it currently stands, there is not going to be devolution of policing and justice powers.

Mr McFarland:

The point that I am making is that there could be. If the Secretary of State calls all-party talks between 17 March and 28 March, with a view to producing a decision, technically, the party leaders could produce a —

The Chairperson:

I appreciate that, but that is way beyond —

Mr McFarland:

Yes, but the final decision will be taken by the party leaders. The Committee’s report will have to state that some issues are undecided, and it will be up to the parties to take those decisions.

The Chairperson:

To get back to the terms of the motion, are members content with the current terms of the motion?

Mr McCartney:

Will the report state that certain issues remain undecided?

The Chairperson:

Absolutely.

The Committee Clerk:

The Committee is simply being asked to approve the content of the report.

The Chairperson:

That is correct. In effect, there is a three-week period between the debate on the Committee’s report and it being referred to the Secretary of State. Therefore, parties can address any issues during that time. In theory, it is possible for agreements to be reached on some of the outstanding issues, but that may not happen.

Mr McFarland:

Is the Committee in a position to recommend that our report should be forwarded as a report of the Assembly, or is that the Assembly’s decision?

The Chairperson:

It is the Assembly’s decision.

The Committee Clerk:

The Committee has to recommend the report to the Assembly.

The Chairperson:

The Committee will propose that our report should be submitted to the Secretary of State for Northern Ireland before 27 March 2008 as a report of the Northern Ireland Assembly. It is up to the Assembly as to whether it agrees to that. Basically, the same system is used as when any other Committee produces a report — it can then become a report of the Northern Ireland Assembly. However, the Committee’s report is not necessarily the final and definitive view. Under its legal obligations, the Assembly may refer our report, plus other matters, to the Secretary of State.

Are members content with the terms of the motion?

Mr Attwood:

This is probably like dancing on the head of a pin, and events will probably have moved on after 3 March or 4 March. However, I am concerned about the terms of the motion. The motion states that the Assembly approves the report. Someone may argue that the use of the word "approves" means that the Assembly is approving the fact that policing and justice powers will not be devolved by May 2008, rather than simply approving the report.

The Chairperson:

Assembly Members are free to propose an amendment to reflect that if they so wish.

The Committee Clerk:

Essentially, the wording is the same as was used when the Ad Hoc Committee reports were referred to the Secretary of State. Therefore, the wording has been drafted in the same way as if it were an Ad Hoc Committee report. Basically, the motion is stating that the Assembly endorses the report and refers it to the Secretary of State.

The Chairperson:

Are members content with the terms of the motion?

Members indicated assent

The Committee Clerk:

Is there a preference for a date for the debate? Although the Committee cannot necessarily influence the Business Committee, it is able to request that the debate should take place on one of the four days that I have identified. Those four days have been identified because the Assembly will be in recess from 15 March and does not reconvene until after the deadline for the submission of the report.

The Chairperson:

An early debate will give Members more time to consider matters before the report goes to the Secretary of State.

The Committee Clerk:

Are either 3 or 4 March suitable?

The Chairperson:

Those dates would be our first preference. Our second preference would be 10 or 11 March. Bearing in mind our present position, are you happy that we can deliver the report for either 3 or 4 March?

The Committee Clerk:

Yes. Chairperson, you had also mentioned the prospect of a meeting tomorrow. In light of the way things have gone today, I am not in a position to give you anything substantive for discussion tomorrow. We may obtain new material, but I wonder whether there is any virtue in having a Committee meeting tomorrow. It might be better to pick up the pieces at next Tuesday’s meeting and take a first read through the draft report then, with a view to ordering that it be printed when you have had a second read over it in two weeks’ time.

Mr McCausland:

I propose that we meet again next Tuesday.

The Chairperson:

We have had a full discussion today. Over the past two or three days, we have ranged over the issues. The longer that we discuss them, the more we will uncover things that might have to be included.

Alex, we have covered all the ground in discussions. There is not much point in having a meeting tomorrow because there is not enough material available to justify bringing people together. We feel that we should allow the Committee Clerk the time that he needs to draw up the first draft of the report for initial consideration next Tuesday. There will be much to discuss when we examine the draft report. It will give the Committee Clerk time to get it finalised. There are no issues that have to be rolled into tomorrow. We have covered the ground that we needed to cover today. We are of the view that we set tomorrow aside while the Committee Clerk concentrates on furnishing us with a draft report as quickly as possible in advance of next Tuesday. We will then have a further deliberative session on the draft report. The final session to sign off the report for publication will take place the following Tuesday.

Mr Attwood:

The staff will need as much time as possible, because it is not an easy piece of work. I am not necessarily arguing for a meeting tomorrow, but having moved the discussion about the PPS down the track, we could move the discussions about SOCA, the security service and the North/South agreements down the track as well. If we are not going to meet tomorrow, we must make time to have those discussions.

The Committee Clerk:

I intend to make requests today for the various pieces of information that the Committee wishes to see, and to ensure that they are issued as promptly as possible to members in advance of the publication of the draft report, and so that they can consider that information immediately before the first reading of the report next Tuesday. In the meantime, I will try to produce a form of words in the draft report that might reflect the outcome of the queries that have been submitted from various places, and might anticipate the Committee’s position on those issues.

The Chairperson:

Are members content?

Members indicated assent.

The Chairperson:

We will not have a meeting tomorrow. That will give the Committee staff time to work on the draft report, which will be circulated to members as soon as possible, and before the meeting next Tuesday. We will ask members to treat the draft report as confidential. We do not want it to enter the public domain until members have had a chance to discuss it in more detail.

Were there any other matters on which we asked the parties to go back and reflect? At this stage, there is no consensus on the name of the new Department. Members have heard the options, and if there are any further views, we can revisit that issue in the context of our deliberations on the draft report.

Last Thursday, we asked Raymond McCartney to consider an issue and come back to us on it.

The Committee Clerk:

He has clarified his position on a couple of points.

The Chairperson:

That is fine.

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