Official Report (Hansard)

Session: 2007/2008

Date: Thursday, 07 February 2008

Members present for all or part of the proceedings:

Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

The Chairperson:

The Committee has received papers from the DUP, UUP, SDLP and Sinn Féin. Most members would have received them yesterday afternoon or this morning. I apologise that it took so long to get them to you, but, as soon as the Committee office received all four papers, it released them to members. I hope that members have had time to have an initial look at them.

Mr G Robinson:

I got my papers only at 2.00 pm today, so I have not had much time to look at them.

The Chairperson:

I ask the Committee to agree that any recommendations that it might make about future restructuring, relationships, governance and accountability will be by way of matters to be considered by the Minister, or Ministers, and the relevant scrutiny Committee, following the devolution of policing and justice matters.

Let me explain, Members. Given the remaining timescale in which we must report to the Assembly, inevitably, there will be some matters — considering the party position papers — and some proposals that will alter what the Northern Ireland Office proposed hitherto in relation to the initial devolution. The Committee must decide — because it will inform and, perhaps, influence our discussion — whether the matters that we agree should change, should be changed before devolution, or whether we recommend to the Assembly that they ought to be considered, post-devolution, by the Minister and the relevant scrutiny Committee. For example, if the Committee was to say that the Public Prosecution Service should fall within the remit of the Department for policing and justice rather than OFMDFM, would we require that change to be made pre- or post-devolution? It will be useful for the Committee to take a view on that, because it will inform and influence our discussion and, perhaps, the members’ capacities to reach consensus on the issues.

In addition, for the purposes of concluding the discussion on the future status of the various policing and justice organisations, I ask the Committee to consider whether it can agree with the working assumptions that are contained in annex B of the letter from the Northern Ireland Office of 15 October 2007 on the future status of those organisations if policing and justice matters were to be transferred. I am referring, for example, to the PPS falling under the responsibility of OFMDFM.

It is a question of how we reflect that in our report and whether we are content to go with the NIO model initially as the basis for devolution, or to make recommendations that would be considered by a new Minister or Ministers and a Scrutiny Committee, or whether we want to get into the business of making recommendations to the Assembly that should be legislated for and changed before devolution. Obviously, that will make a difference to the manner in which we report to the Assembly.

Mr Attwood:

You are right to ask the question. To some degree, we are stuck between a rock and a hard place, because the Criminal Justice Review did not produce the outcomes that we would have liked. Therefore, the justice legislation does not give effect to what is necessary, and primary legislation is required to amend that. If we are working to the time frame of May 2008 for the devolution of policing and justice, there are some things that we will simply not get primary legislation for, even if everyone agreed to it.

The Chairperson:

That is a fair point, because according to the parliamentary timetable, there are three working weeks between the Assembly issuing its report on 27 March and 1 May. If we were to report to the Assembly that structural changes should be made, and the Assembly failed to reach consensus on the May date, it would be open to the Assembly to say that it wants a Committee to do further work on the matter, with a view to recommending legislative changes before devolution. As Mr Attwood rightly said, we are working on an assumption that we must complete the report and report to the Assembly within a certain time frame. In that context, we need to decide to what extent we can reasonably ask for legislative changes, without further direction from the Assembly.

Mr McFarland:

We were getting on really well. The Committee Clerk produced a list of questions and we were moving through them. We were sent off to comment on four or five areas, with a view to reaching agreement and moving on. However, the SDLP has 10 pages of unrelated issues. I thought that we had got on really well at identifying the issues that we need to make decisions on. It may not be perfect, and we wish to change many things afterwards. However, there are three or four major political issues to be discussed, and they will determine the timescale. By and large, the rest of the issues relate to whether we could live with the proposals to produce a package in the required timescale. We do not know whether that will work, and we may have to come back to it.

The other issue relates to whether it is the perfect model, but that would require a further six months of discussion. I thought that we were answering the questions with a view to reaching agreement on them, leaving the big three or four issues that are essentially for political discussion between the DUP and Sinn Féin. However, it would be useful if the rest of us could be involved in that discussion. We now seem to be reopening a discussion on whether we reform the entire legislation and open it up.

The Chairperson:

That is not my desire, but before we embark on a detailed consideration of the respective party positions, I want to be clear that there is an understanding that will inform and influence that discussion. Although we may reach consensus on the relocation of the Public Prosecution Service from the Office of the First Minister and deputy First Minister to the new Department, we would not expect that to be legislated for before devolution.

If that is not the case, I am simply saying that that has consequences for the report that we will write, and for how we take it forward thereafter.

Mr McFarland:

It has been suggested that that the justice Department is not a healthy place for an independent organisation and, in order to make it independent, it was recommended that the PPS become part of OFMDFM so that it is away from the justice system.

The Chairperson:

That is correct.

Mr McFarland:

If we want to leave it where it is, the PPS will become part of the justice Department. If we think that the PPS needs to be more independent —

The Chairperson:

Under the current NIO proposal, the PPS will move to OFMDFM. That is the default position on devolution. There may be a consensus among the Committee to dissent from that and find a balance between independence and accountability. We may decide that the NIO’s proposal is wrong and that, for the purposes of accountability, the PPS should be moved to the justice Department. Such a position would be contrary to what the NIO is recommending on devolution. The question would be whether we wanted that change to take place pre-devolution — in other words, we would not accept the devolution of the powers of the PPS until that the proposal were changed to move the PPS to the new Department. Or we would accept the NIO’s proposal that the PPS rests with OFMDFM, but that the new Minister, the new scrutiny Committee and the Committee for the First and deputy First Minister would consider the issue.

Mr McFarland:

My understanding is that OFMDFM has to agree and organise a place for the PPS, otherwise there is no way that it will go anywhere. We asked OFMDFM was what its plans were to receive the PPS. We can recommend that the PPS goes to OFMDFM, but unless that Department creates a space for it, the PPS cannot go there. We will have to change the legislation to allow it to be part of the justice Department, unless OFMDFM agrees a space for it.

The Chairperson:

When Raymond McCartney and I spoke to OFMDFM, we were told that the Committee can take a view on the matter and decide whether to accept the proposal at political level. Assuming that the Committee reached a consensus that the PPS should not be in OFMDFM, but in the Department of policing justice, should our report recommend that that should occur before devolution takes place? That is a matter for political discussion, and the Assembly will consider our report in that context.

Mr McFarland:

The Ulster Unionist Party has supported the PPS going to OFMDFM; have any parties said that it should not?

The Chairperson:

Yes, the SDLP has taken that view.

Mr Attwood:

The SDLP agrees with the Criminal Justice Inspectorate (CJI).

Mr McFarland:

How then, would you make the PPS independent? It has to be accountable, and it still can be from OFMDFM. If it were part of the new justice Department, how would you ensure that the PPS was not susceptible to financial squeezing from a justice Minister?

Mr Attwood:

Equally, the PPS might face financial squeezing from OFMDFM, when it wanted to exercise some muscle.

Mr McFarland:

OFMDFM would have no vested interest in doing that.

Mr Attwood:

Either OFMDFM or the Department of justice might have a vested interest. Without going into the merits of the argument, the issue of whether there might be some interference with the independence of the PPS, depending on where the finance is located, is as valid to OFMDFM as it is to the Ministry of justice. It may be more acute in the Ministry of justice but, as the CJI said, that is a more sensible place to ensure a higher level of accountability.

Mr McFarland:

Three parties are voting for the PPS to be part of OFMDFM, and one against, so we will not reach agreement on that.

The Chairperson:

The DUP and UUP say that funding should come from OFMDFM.

The SDLP says that funding should be transferred to the new Department. Sinn Féin has not given its view on the matter, yet.

Mr Attwood:

Let us rewind. We have worked on the basis that we have between now and the end of March to deal with the matter. Therefore — in the real legislative world — even if we all agreed to certain outcomes, we may not be able to require that of the British Government prior to devolution, if devolution was in May. We work in those time frames. Even if we wish to see something by consensus, we could only say it; we could not actually guarantee it. Nevertheless, if we can say it, we should do so. In that way, if justice is not devolved in May, it may happen between May and a later date.

The Chairperson:

That is a fair summary of where we are.

Mr Attwood:

There are other issues where we may or may not get agreement, but it would only be by way of recommendation to a future scrutiny Committee, assembly and justice Minister, to say that we had consensus about doing more work around the PPS. That is the one area where we think that there is the least accountability, in real terms. The SDLP flagged that matter up. However, when I flagged it up in the paper, I said that it should be something that we should look at in the future. In the short term it is a big discussion, and we are not going to get that discussion beyond a certain line. I think that, in the report, we should flag it up as part of a future work programme.

Mr McFarland:

We were sent off with four quite specific questions to answer. Had I understood that we were into a full discussion on all the ins and outs of each of those, we could have written a 20-page paper on it. My understanding was that those were issues on which we were trying to take a decision — one way or the other — or not, as the case may be. I am worried that we are getting into a whole discussion where all of those issues are being left open. If that is the case, I would need to go return to the beginning and put markers down as to how it should all go — or how it might go over the next six months, nine months or a year — until someone makes a decision and there is a bit of legislation.

We are getting confused now. Our mission, as I understood it, was to produce a report on what could and what could not be agreed for reporting to the Assembly. On the political questions, we were down to four relatively simple questions as to whether in the timescales, we could do this, that or the other thing. If we are into a whole discussion on the matter, with a view to the fact that it will not go forward in May, we would need to put markers down for the following six months worth of discussions. In that case, my paper would no longer be valid.

The Chairperson:

With respect, Alan, I do not think that that is the case. It is a matter for each party to determine the content of its own paper. The SDLP is perfectly entitled, if it so wishes, to produce a book on the subject. It is a matter for each to determine how it will approach the issue. I can still determine the SDLP’s position on each of the four matters that you have mentioned. Therefore, it is still there. That party has commented on other matters that the Committee has to consider in the context of its report, which is fair.

We are saying that, given the timescale that is remaining to us and where there is a consensus, there should be changes to the structures that are proposed by the Northern Ireland Office. That will apply to a number of issues that Mr Attwood has flagged up in his paper and, perhaps, in other papers. Some of those issues are already provided for in current legislation. The question is whether, in the timescale that is available to us, we tell the Assembly that we cannot proceed with devolution until those matters are dealt with, or that we believe that there is scope for structural change. Do we say that we believe that it would be in the interests of the criminal justice system, for example, for the PPS not to be positioned in the ambit of OFMDFM but, perhaps, under the Department of policing and justice, as the SDLP has proposed? We feel that that is a matter that ought to be examined by the Minister, or Ministers, and the relevant scrutiny Committee.

In other words, we are doing precisely what you are saying: we are trying to produce a report and get an agreement on it, but recognizing that there may be structural changes. Bearing in mind the oral and written evidence that we have received, we feel that the matter might be better dealt with in a different way from that proposed by the NIO, and in the current timescale we will be unable to deliver that change.

That is without prejudice to the Assembly deciding that there is no pressure because they will not agree to the May deadline. They may agree another date or decide to keep their options open; in which case, Alan, you could revisit the issue. The Assembly might say to the Committee that that gives us more time, that they appreciate what we have done, and that rather than kick the issue into the long grass, let us use the time that is now available to examine it in more detail and produce another report at an agreed date. That may happen in theory; it may not happen in practice. I want to be clear, Alan; we are going to get into a debate and a negotiation around this table on some of these issues because there are variations in each of the four papers on different aspects.

Before we begin that negotiation, I want to get an agreement that whatever consensus we reach, that we take either of the following courses of action. We may agree that if the consensus is for structural change, we cannot deliver that in the timescale envisaged at the moment, and that our recommendation to the Assembly would reflect that. We would say that we believe that changes must be made and that a scrutiny Committee may want to discuss that. On the other hand, the Committee may decide not to go along with that, and say that if we agree to change, it has to be legislated and enacted prior to devolution. That would have to be reflected in the report, and it would influence the discussion that takes place around this table.

Mr Attwood:

I hope that that uncertainty will lift as we work through the particular issues, Alan.

The Chairperson:

At least we are recognising the realities of where we are. We may have to revisit how we handle them as we go along. Nothing is hard and fast, but I thought it would be useful for members to have some understanding of how we would take things forward beyond the report, and it might influence the approach that members take to particular matters.

For the purposes of the report, and to assist the Committee Clerk in his preparation of the draft report for the Committee, I will run through the details of a letter sent to the Committee by the NIO dated 15 October 2007. In annex B of the letter, the NIO listed a number of criminal justice and policing organisations and their status and location within the overall structure of the criminal justice system. The list included the PSNI, which is currently sponsored by the policing and security directorate of the Northern Ireland Office. On devolution, under the current proposals, it will transfer to the new Department for policing and justice.

Are members content that that is where we see the PSNI fitting into the overall structure of things? That the Policing Board will continue to exist, but policy for the PSNI will transfer, and that those matters that currently are dealt with by the policing and security directorate of the NIO will transfer to the new Department?

Members indicated assent.

The Chairperson:

The RUC George Cross Foundation is currently an executive departmental public body, which is sponsored by the policing and security directorate. On devolution, it will transfer to the new Department. The primary role of the Foundation is the disbursement of funds and funding of projects commensurate with the aim of marking the sacrifices and honouring the achievements of the RUC.

Are members content that the Foundation transfers to the new Department?

Members indicated assent.

The Chairperson:

The independent assessor for PSNI recruitment applications is an advisory departmental public body sponsored by the policing and security directorate. On devolution, it will transfer to the new Department. Is the Committee content for that to happen?

Members indicated assent.

The Chairperson:

The Police Rehabilitation Training Trust is a company limited by guarantee and sponsored by the policing and security directorate. On devolution, it will transfer to the new Department. Is the Committee content with that?

Mr McCartney:

Is that something that the new Victims’ Commissioners might seek to bring under their remit?

Mr McFarland:

The trust was set up to look after officers who had been injured and to retrain officers leaving after the Patten Report, which meant it had a major remit. After 2010, the number will be relatively small. Although the trust does a useful job, the scale of work that the trust does may drop due to people leaving the Police Service. However, because a legacy of the past 30 years is a group of damaged people, the workload may rise because those people will become more affected by what they have gone through as they get older. Therefore, the decrease in workload for the trust because of people leaving the Police Service may be compensated by people who deteriorate with time and require rehabilitation. It is maybe worth just leaving it.

The Chairperson:

That is a good question Raymond. The difficulty is that legislation is required to form the new commission so we are in unknown territory. Therefore, as that is beyond our remit, we are safe to simply accept that the trust transfers to the new Department without prejudice to the new Department, the Commission or OFMDFM determining otherwise in the future.

Members indicated assent.

The Chairperson:

The independent monitoring boards have independent board status and will transfer to the new Department on devolution. Is the Committee content with that?

Members indicated assent.

The Chairperson:

The Life Sentence Review Commissioners are an independent statutory body, whose powers will transfer to the Department on devolution. They are appointed by the Secretary of State in accordance with article 3(1) of the Life Sentences (Northern Ireland) Order 2001. Clerk, will the Department appoint commissioners under devolution?

The Clerk:

No; they will not.

Mr Attwood:

I read that the Government is retaining that power.

Mr McCartney:

That is going to change.

Mr Attwood:

The Government said that they were keeping that power.

Mr McFarland:

That is strange.

Mr McCartney:

From the Ad Hoc Committee on the draft Criminal Justice (Northern Ireland) Order 2007, I understand that the parole commissioners will take over the work of the Life Sentence Review Commissioners.

Mr McFarland:

The Life Sentence Review Commissioners are different from the parole commissioners and specifically deal with terrorist offences. As everyone has — in theory — been released, the Life Sentence Review Commissioners might not have much work.

The Chairperson:

The Life Sentence Review Commissioners are different; Alan, you are talking about the special provision that was made for the early release of prisoners under the Belfast Agreement.

Mr McFarland:

That is what the Life Sentence Review Commissioners deal with.

Mr McCartney:

The Life Sentence Review Commissioners are separate from the Sentence Review Commissioners.

The Chairperson:

That is correct.

Mr McFarland:

So what do the Life Sentence Review Commissioners deal with?

They deal with all life sentences.

Mr McFarland:

In that case it will become the parole commission, as was discussed in the Ad Hoc Committee.

The Chairperson:

The Life Sentence Review Commission was established under the Life Sentences (Northern Ireland) Order 2001, which is after the Sentence Review Commission was set up in 1998.

Mr Attwood:

Are the Sentence Review Commission’s powers going to be transferred?

Mr McFarland:

No; that body will stay as an anti-terrorist measure under the banner of national security. I do not know how relevant it is — does it deal with Real IRA prisoners?

The Chairperson:

It is still there. A number of prisoners have been returned on breach of licence, and they can still make applications for early release.

The Committee Clerk:

The discussion document does not specifically say who makes the appointments, but we can check who does.

The Chairperson:

What does it say about the Life Sentence Review Commissioners?

Mr Attwood:

That power does not come across to the Assembly. Page 13 of the NIO briefing paper says that the work of the Life Sentence Review Commissioners and the Secretary of State’s powers in connection with terrorism, which is an excepted matter, will not be devolved. Thus, the work of the Life Sentence Review Commissioners does not come across to here.

The Chairperson:

Yes, they are the ones who are connected with the brief.

Mr McFarland:

They are the ones who are connected with terrorism. What about the parole commissioners?

The Committee Clerk:

I will check who appoints them and let the Committee know on Tuesday.

Mr McFarland:

But that power will not be devolved.

The Chairperson:

Yes, but there are two commissions.

Mr McFarland:

The Life Sentence Review Commissioners deal with terrorist matters and will become the parole commissioners — that is a devolved matter that will come across as part of the normal system. Is that not right?

Mr Attwood:

The Secretary of State will appoint.

Mr McFarland:

Appoint who, though?

Mr Attwood:

The Sentence Review Commissioners.

Mr McFarland:

But it is the Life Sentence Review Commissioners who are mentioned in the document.

The Chairperson:

Yes, the situation has changed now. In the 2006 discussion document, the functions were to be devolved. Under the draft legislation that is now before us, they will remain a reserved matter. Paragraph 6.6 on page 13 of the NIO briefing paper states:

"New paragraph 9(c)(ii), inserted by Article 3(1) of the draft section 4 Order at Annex B provides that legislation covering the release, on licence, of offenders serving life sentences (including matters relating to the Life Sentence Review Commissioners) will remain a reserved matter. The effect of this is that any future Assembly legislation dealing with the release, on licence, of offenders serving life sentences would require the consent of the Secretary of State. The reason for this is to ensure that any legislation would not cut across the process of securing the Commissioners’ continued access to national security information."

Paragraph 6.7 states:

"However, many of the functions of the Secretary of State under the Life Sentences (NI) Order 2001 will transfer to the" new policing and justice Department.

"The necessary amendments to that Order are provided for in paragraph 4 of Schedule 2 and paragraphs 67 to 69 of Schedule 3 to the draft section 86 Order at Annex C."

Paragraph 6.8 states that:

"The draft Criminal Justice Order published on 8 November 2007 will introduce a new framework of public protection sentences, as well as permitting the establishment of Parole Commissioners. These new arrangements will in due course overtake the current system of Life Sentence Review Commissioners. At this stage, as that legislation is only in draft, it would not be right to include specific provision in the draft Order included with this document. However it is likely that certain aspects of the work of the Parole Commissioners would be dealt with on the same basis as the arrangements for the Life Sentence Review Commissioners discussed above."

Mr McFarland:

So presumably the Secretary of State will hold that power.

The Chairperson:

Yes, it looks like it. While the Assembly would have some legislative function, we can only legislate on those aspects that impact on arrangements for the Life Sentence Review Commissioners with the consent of the Secretary of State. It seems that the functions of the Life Sentence Review Commissioners will remain a reserved matter. Members, it would be worth getting clarification from the Northern Ireland Office on that issue, just to check whether any preparatory work needs to be reflected in our report.

Mr McFarland:

It sounds as though the Life Sentence Review Commissioners will morph into the parole commissioners.

The Chairperson:

In due course.

The Committee Clerk:

Annex F of the legislation gives a summary of what will be devolved and what will not be devolved.

The Chairperson:

In the main document, that came under prosecutions, but that does not appear in the summary.

The Committee Clerk:

It is under proposed article 9(e), and it describes what powers will and will not be devolved.

Mr McFarland:

The documentation says that the issue of the Life Sentence Review Commissioners will be revised when the draft Criminal Justice (Northern Ireland) Order 2007 becomes law.

The Chairperson:

I think that we need to get that issue clarified.

Mr McCartney:

Paragraph 6.6 of the indicative legislative proposals refers to future Assembly legislation — regarding the release of offenders serving life sentences — having to be referred to the Secretary of State. I think that that is subject to change. I recall Tom Haire giving evidence to the Ad Hoc Committee on the draft Criminal Justice (Northern Ireland) Order 2007, and he said that the Secretary of State’s consent would no longer be required. It used to be that the Secretary of State could refuse to release a life sentence prisoner, but my recollection is that under the new system he cannot.

The Chairperson:

The Life Sentence Review Commissioners are currently an independent statutory body. For the purposes of our report, we need to establish whether it will remain under the remit of the Northern Ireland Office pending any legislative changes.

Mr McFarland:

It is worth making a note of that. My understanding is that the draft Criminal Justice (Northern Ireland) Order 2007 will go through next week, which will be prior to our report being published. Therefore, it is worth having a look at the Hansard transcripts from that Ad Hoc Committee, because there were evidence sessions on that issue. That will also give us some clarification. For people’s guidance, it is worth making a note in our report that this is likely to change, and to outline roughly what that change will entail.

The Chairperson:

We will park that issue for now and seek clarity from the Northern Ireland Office as to whether we need to include in our report a reference regarding the transfer to the new Department of the Life Sentence Review Commissioners, or the transfer of some of their functions.

Mr McCartney:

Paragraph 6.8 of the indicative legislative proposals provides some extra information, but it is obvious that they are also uncertain.

The Chairperson:

If the NIO says that responsibility for Life Sentence Review Commissioners will be transferred to the new Department, are we agreed in principle to that? The NIO may say that it will remain a reserved matter pending the creation of the new parole commissioners, but that certain functions will transfer to the new Department. If that is the case, are we agreed that those functions should be the responsibility of the new Department, as opposed to OFMDFM or somewhere else?

Members indicated assent.

The Commissioner for Hearings under Prison Rule 109B (Loss of Remission Commissioner) deals with the loss of remission. That is currently an independent statutory body that will become an independent non-statutory office holder with responsibility transferring to the new Department or to the Prison Service.

The Committee Clerk:

That is what it said in the NIO’s letter of 15 October 2007. However, it seems that the NIO is not quite clear at this stage as to what it might want to do.

The Chairperson:

We are dealing with the issue of loss of remission. There is a commissioner — the more I look at these things, the more commissioners I discover in our system — who deals with the loss of remission. Under the proposals from the Northern Ireland Office, the Loss of Remission Commissioner or Commissioner for Hearings under Prison Rule 109B will become an independent non-statutory office holder. The question is whether responsibility for that commissioner will transfer to the new Department or to the Prison Service.

Mr Attwood:

I think that the Department would have an arm’s-length —

Mr McFarland:

It is an appeals mechanism.

The Chairperson:

The Prisoner Ombudsman recently resigned on this principle. I have a lot of sympathy for the position that he took.

Is there consensus that our report should reflect a desire that that function should transfer to the new Department rather than the Prison Service? Might we also write to the Northern Ireland Office to that effect as it might assist them in their drafting?

Alan, are you content with that? It relates to the principle of avoiding conflict of interest and ensuring genuine independence.

Mr McFarland:

There must be an independent appeal mechanism. At the moment, it is not.

The Chairperson:

Exactly, the word "independent" must mean precisely that.

Members indicated assent.

The Chairperson:

The State Pathologist is currently employed by the Northern Ireland Office. Under devolution the State Pathologist will transfer to the new Department, operating at arm’s length from the Department, but accountable to the new Minister or Ministers. Are we content that that should be the case? That may set something of a precedent for other things in the future.

The medical appeals tribunal is currently an ad hoc tribunal, which will transfer to the new Department or to the new courts and tribunals service. Again, it is a question of whether it should transfer to the new Department or the new courts and tribunals service. When will the new service be established? Is it likely to be in place before devolution?

The Committee Clerk:

There is nothing to suggest any movement on that, but, as I said, we are quoting from the NIO’s letter of October 2007.

Mr McFarland:

Is that part of the reorganisation that is required before powers are devolved?

The Chairperson:

The reorganisation is ongoing and not directly linked to the timing of devolution.

Mr McFarland:

Given that there is an obvious link between the two, it seems reasonable to transfer the medical appeals tribunal to the new courts and tribunals service, because they will have similar requirements for staff, and so forth.

The Chairperson:

I take it that the medical appeals tribunal hears general cases from throughout the Health Service, rather than specific medical appeals, such as those relating to policing or prisoners.

The Committee Clerk:

I imagine so, but I will check.

Mr McFarland:

It is a legal tribunal that allows people who feel aggrieved to appeal. Therefore, it is a good idea to transfer it to the new courts and tribunals service.

The Chairperson:

Do any other Members have strong views?

Mr Attwood:

I agree with Alan.

The Chairperson:

It would be curious to establish a new courts and tribunals service but stick that one tribunal into the Department. I ask the Committee Clerk to reflect in his note to the Northern Ireland Office that the Committee reached consensus that the medical appeals tribunal should transfer to the courts and tribunals service, rather than to the Department.

I wanted to clear up those matters as part of the tidying-up process. They do not relate to the party position papers that follow.

Mr McFarland:

It is worth checking, not now but in due course, that nothing in David Lavery’s evidence would militate against that decision.

The Committee Clerk:

If you do not want me to check it now, I will report back on Tuesday.

Mr McFarland:

I just want to be sure that we have not missed a trick.

The Chairperson:

Yes, the fact that it is flagged up separately raised a question in my mind too.

Members, parties have dealt with the issues in different orders, and that is not a problem. If you are agreed, we will deal with the issues in the order that they appear in the briefing papers: the Police Ombudsman; the Northern Ireland Policing Board; the Northern Ireland Court Service; the Public Prosecution Service; the Attorney General; excepted matters including the Serious Organised Crime Agency and the security services; and North/South agreements.

The first question for the Committee is whether the advisory role on the appointment of the Police Ombudsman should be devolved to the Northern Ireland Minister or to the Office of the First Minister and deputy First Minister.

By way of a summary, the UUP believes that the advisory role should be devolved to OFMDFM, whereas the SDLP believes that the Executive may be involved to advise or approve the defined profile of public appointments when there may be heightened public interest. I take it Alex that the SDLP accepts in principle that the advisory role should be devolved to OFMDFM, but subject to either consultation or approval with and by the Executive?

Mr Attwood:

Yes. That is why I asked Clare Salters whether the Executive would have an advisory role in Crown appointments. There is an argument for Executive involvement as opposed to merely that of OFMDFM.

The Chairperson:

The DUP said that the role should be devolved to the Department of justice. Sinn Féin has not given its view.

Mr Attwood:

There is a lot of consensus on that issue then. [Laughter.] It is one of the easier matters.

The Chairperson:

I do not think that the matter is one of those on which anybody will have to go to the wall.

Mr McFarland:

Do we take it that OFMDFM does not want it then? [Laughter.]

Mr McCartney:

Sinn Féin’s view on the model is that the Ministry’s roles and responsibilities will help.

The Chairperson:

Sinn Féin says that it will reserve its decision on the matter until issues around the new model for the Department are resolved.

Putting on my party-political hat, rather than that of the Committee Chairperson, I will say that the DUP’s view is simply that the Department will have a more hands-on involvement in day-to-day policing matters and might, therefore, be in a better position to have an informed view on the appointment of the Police Ombudsman. Furthermore, if it is decided that OFMDFM will be responsible for the appointments of senior judiciary, the Attorney General and the PPS, it will essentially be responsible for appointments to the senior judiciary.

The Committee Clerk:

It will be; through the Judicial Appointments Commission.

The Chairperson:

Of course. However, it will be involved in the process. There might be value in separating policing from judicial matters; therefore, rather than all matters being OFMDFM’s responsibility, policing matters will remain with the Department. I believe that that is the rationale — to consider a more even division of responsibility. It is not a major issue.

Mr McFarland:

If we were further down the road, I would not have a problem with that. The difficulty is, as you are more than aware, Chairman, the controversy that surrounds the office of Police Ombudsman. In time, that may well decrease. However, I sense that there is still quite a lot of angst out there.

In order to ensure that there is protection against, for example, dodgy advice being given, perhaps the advisory role should be devolved to OFMDFM initially. Certainly, when the Police Ombudsman has become a less neuralgic issue, that role can slip into the Department easily. However, at present, stuff is being dealt with which will, on the face of all of this, be upfront and included in the mix of whether the role should or should not be devolved, et cetera. The fewer matters that can be made controversial, the better. Advice on all of those other key and potentially controversial matters, such as the appointment of Lord Chief Justice, comes from OFMDFM. The Police Ombudsman’s post is the one on which people might get fraught. However, if it is dealt with initially by OFMDFM, there will be less of a problem with its roll-out with regard to whether it is correct to have those who might be justice Ministers advising on the matter.

The Chairperson:

I envisage the Committee’s press release’s being rewritten: "UUP representative says ‘First and deputy First Ministers less dodgy than other Ministers!’" [Laughter.] I take your point, Alan. Because OFMDFM is involved, it strikes me as one of those issues that we will simply have to kick into the political mix and on which discussion will ensue. Other issues will also form part of that package. Therefore, I do not believe that it is a matter on which the Committee needs to get terribly exercised unless it has consensus. However, at the moment, I do not sense that there is a consensus.

The Committee Clerk:

That is an example — similar to others on the list — of a situation in which there is currently a diversity of opinion, which may change further down the track, and that is why scope was built in for the scrutiny Committee to review Ministers’ work areas and encourage them to re-examine such issues. In the meantime, in order that policing and justice matters might be devolved, members recognise that that must be located somewhere.

The Chairperson:

Members, would it be fair to say that if we were to ask the Committee Clerk to draw up something about that issue for our draft report? To summarise, it should be along the following lines: the Committee considered whether the advisory role concerning the appointment of the Police Ombudsman should be devolved to the Office of the First Minister and deputy First Minister or to the new Department —

Mr Attwood:

— Or to the Executive.

The Chairperson:

— or to the Executive collectively, and that no consensus was reached on that matter and the Assembly must give it further consideration.

If such a formula can be developed for matters on which we do not reach a consensus, it will be up to the Assembly to decide whether to kick the matter back to the Committee if there is a delay in devolving policing and justice, kick it to OFMDFM, or accept the NIO proposal that it goes to OFMDFM but indicate that the matter should be revisited by the Minister and the scrutiny Committee. Are members happy with such a formula?

Members indicated assent.

The Chairperson:

Moving on to matters concerning the Policing Board, the questions are: whether MLAs should continue to sit on the Policing Board, and, if not, should the political parties continue to appoint 10 political members to the Board; whether members agree with the conclusions of the Committee for the Programme for Government that members of the Policing Board should not be permitted to sit on the new scrutiny Committee; and whether there is a need for a memorandum of understanding in order to clarify relationships that exist between the PSNI, the Policing Board and the Assembly Committee and to deal with any conflicts of interest.

Concerning the latter question, NIO are working on a protocol to deal with that matter, therefore, until that is completed, it is not an issue with which we must become embroiled. Although Alex Attwood covered that matter in his paper and issues that we must consider may arise from the draft protocol, are members content to temporarily park that matter until we see what NIO comes up with?

The Committee Clerk:

Given the time frame mentioned by NIO, the Committee is obliged to report before it will have a chance to consider the draft protocols.

The Chairperson:

We should therefore say that we believe a protocol to deal with any conflict of interest must be drawn up and agreed by the PSNI, the Policing Board and the Assembly Committee. Are members content to flag that matter up in that manner? I believe that there is consensus on the necessity for a protocol and that a recommendation for such a protocol should be included in the report. Is that agreed?

Members indicated assent.

The Chairperson:

Turning to other issues — I am working backwards in order to achieve consensus before reaching the contentious issues — the four parties agreed that the Programme for Government’s conclusion that if a person is a member of the Policing Board, that person should not sit on the scrutiny Committee, should stand. I would like that provision extended to include the stipulation that a member of a district policing partnership should not sit on the scrutiny Committee. In such circumstances, there would clearly be a conflict of interest.

The next point is whether an MLA should sit on the Policing Board or be a member of a district policing partnership. However, I think that we agree in principle that a member of the scrutiny Committee should not be a member of either the Policing Board or a district policing partnership. Are members content with that?

Members indicated consent.

The Chairperson:

We must now consider whether any of the 10 political representatives on the Policing Board should continue to be MLAs appointed by the Assembly parties, or whether they should be political appointees from the four parties, which would be entitled to appoint MLAs but would choose to appoint non-MLAs who, presumably, hold senior positions in their respective parties.

On that question, three of the four parties were of the view that MLAs should continue to sit on the Policing Board. Alan, because of the points that you have made in the past about the conflict of time, and so on, the UUP was of the view that, on devolution, the MLA representatives should be replaced immediately on devolution by political appointees and that no MLA should sit on the Policing Board. Is that assessment correct?

Mr McFarland:

Yes. If there are two Ministers, 23 MLAs will be involved directly with policing and justice. Sammy Wilson proposed dropping the total number of MLAs to 73. All four parties talked about that way back, and said that, eventually, it would be sensible to reduce the number of MLAs to a more practical level.

Last week, we discussed the number of MLAs on a Committee. The DUP is different, because it has 36 MLAs, and it must find jobs for people. The smaller parties have difficulty in trying to ensure that people are not overstretched and that they can attend to Committees. The UUP has two MLAs on the Policing Board, and they are pushed for time. For example, Leslie Cree, who is our spokesman on the Committee for Enterprise, Trade and Investment, was sitting in that Committee this morning when he should have been at a Policing Board meeting, especially as today was a big day for the Policing Board. He had to make a major choice between joining in on a major issue for the Policing Board — and I believe that that meeting was likely to be quite fraught — and the Committee for Enterprise, Trade and Investment, which was also important.

The number of ad hoc Committees will increase as more legislation comes forward, and, if we reduce the number of MLAs, although we can cope at the moment, there will come a time when MLAs will be unable to properly serve on their Committees. Although we might get away with it until next April, it was thought, way back, by the Policing Board and the Committee on the Preparation for Government, that it was quite important to have political representation on the board. The one great success of the Policing Board was that it had politicians of some sort on it, so that the major political parties could go away and discuss problems and produce solutions. Therefore, political input is vital. However, the issue is how to retain that political involvement without crucifying the MLAs who are busy trying to do other things.

One option was to use the d’Hondt system and the political representation of the parties here, to elect political appointees to the board rather than MLAs. It was an attempt to find a practical solution in which the board would retain political input and the Assembly Members, now and in the future, would not be overstretched.

The Chairperson:

I misrepresented the Sinn Féin position; it has not taken a specific view on that issue, but it has said that the matter requires further investigation, perhaps through a future, separate report from the Committee. That implies maintaining the status quo for the time being but, in the context of the work of this Committee in reviewing the structures of the Assembly, the number of MLAs, etc, it would become a matter for further consideration. Raymond, feel free to correct me if I am wrong.

Mr McCartney:

Sinn Féin felt that it was not an issue for the Committee in relation to formulating this report. We did not rule it out by saying that we disagree. People held differing views. However, we felt that the Committee should finish this report, and that if the party felt that it should revisit the subject, it should do so later, rather than take a position now. There were obvious questions, such as how political appointees would be remunerated.

Mr McFarland:

For an initial period after devolution, we could live with having the MLAs banned. I was trying to be helpful.

The Chairperson:

I was coming to that, Alan.

I suggest that, for the purposes of our report, that we state that, for the time being, an initial period, we continue with the current arrangements, but that that be subject to review by this Committee, in the context of our ongoing work of reviewing the number of MLAs, the structure of how the Assembly operates and so on. That is without prejudice to the view of the SDLP and the DUP that they should continue to be there and without prejudice to your view, and, potentially a Sinn Féin view, that, over time, that should change. That is a sensible way of approaching it.

There is still bedding-in to be completed. The Policing Board is well-established, but there is an argument that runs: it will take time, even for the board, to adjust to the new post-devolution arrangements. There is benefit in having the continuity, even though you are right, Alan, it creates the conflict of time situation. There is still a benefit in having that overlap during the initial period post-devolution. We can then revisit it under our remit as the Assembly and Executive Review Committee.

Alex, how do you feel about that?

Mr Attwood:

As long as it is without prejudice, that is fine.

The Chairperson:

That should be reflected in the draft report: the status quo should continue for the time being, but will be subject to further review by —

Mr Attwood:

The phrase "for the time being" creates a condition around it. I would rather that was not used. I prefer

"… shall continue, but it shall be subject, without prejudice, to review."

The Chairperson:

That is fine. There are timescales for our work in any case and there will be a timescale for looking at this. We are not kicking the issue into the long grass.

That covers the issues relating to the Policing Board.

As to the Northern Ireland Court Service, we have agreed that, in principle, the Committee will support the need for a memorandum of understanding to clarify the relationships between the PSNI, the board, and the Assembly Committee. We will await the draft protocol or memorandum of understanding from the NIO. That will probably come after we have reported: that is why we will state that there needs to be a memorandum of understanding.

Members indicated assent.

The Chairperson:

We turn to the Northern Ireland Court Service. The issues are: the degree of independence of the Court Service; how accountability can be ensured in a future Northern Ireland Court Service model; the division of responsibilities between the future Northern Ireland Court Service agency or independent body and the new Department; whether the agency should continue to deliver policy advice and legislative support or whether these functions should transfer to the Department; and how the board of any independent Court Service should be composed.

We had a variety of views on those issues. Some parties dealt with all the issues; some with only selected ones. All four parties are agreed that we should protect the independence of the Court Service. That statement is worth making in the report, without prejudice to the model individual parties pursue: we are agreed on that principle. Are members content that the report should contain a statement to that effect?

Mr McFarland:

The Court Service should be free in that it is independent of political interference. There is an issue over accountability; the service needs to be independent in its operations. However, if you mean by independent that it should have nothing to do with the Department at all —

The Chairperson:

We are talking about judicial interference. Therefore, you are right, Alan. The Committee Clerk could draft a form of words that would clearly express the principle of independence as we understand it, but would establish the need for accountability mechanisms. That statement would reflect the evidence that we have received and the consensus of opinion around the table — that we respect the independence of the criminal justice system, but we want to ensure that there is adequate accountability. We have waited all these years, so we do not want to have to tell the public that we cannot hold anyone to account. There is a consensus that there must be a degree of accountability, and that we must find a balance between the structures that we subsequently create. It would be a general statement of principle on the part of the Committee.

We will now move on to how that independence and accountability is reflected in the model for the Court Service. Three options have been presented to us in evidence. The first is the status quo, which is represented by the proposal by the Northern Ireland Office. At the moment, the Court Service is the responsibility of the Ministry of Justice in London. The NIO proposal is that the Court Service becomes an agency of the new Department.

The second option is the proposal by the Lord Chief Justice for an independent Court Service with its own board. Accountability will be provided for by having some departmental representation on the board of the Court Service.

The third option is a hybrid, which David Lavery, the chief executive of the Court Service, mentioned in his evidence to the Committee. He did not suggest it as necessarily an end product, but perhaps as an interim or transitional arrangement, in which an agency might be at greater arm’s length than that proposed by the NIO.

Those are the three options that we have to consider. The DUP and Sinn Féin are silent on the issue and are saying that it is a matter for further negotiation. The UUP have a similar position.

Mr McFarland:

Our position is that is should transfer as a new model, and then we would want to have a discussion about whether the Lord Chief Justice’s model should be adopted.

The Chairperson:

Similarly, the SDLP are saying that the options have considerable merit, but that it is not a matter to be determined pre-devolution. There is likely to be a consensus around that. Given the practicalities of all of this, we would be saying that in the absence of a consensus that supports an alternative model, devolution should take place initially on the basis of the model proposed by the Northern Ireland Office, namely, that a Court Service agency be created under the wing of the new Department. I do not know, Raymond, whether you can take that option back to colleagues and commend it to them, or whether you feel that it might be a matter for discussion at a higher political level.

We were told that we could make suggestions or recommendations in our report. However, that does not prejudice any negotiations that might take place in parallel to what we are doing. It is a question of whether we as a Committee, at this stage, can reach a consensus in our report, that in the first instance, devolution of the Court Service arrangements should take place on the basis of the model contained in the relevant legislation. We believe that there is considerable merit in the alternative models that have been suggested, and we recognise that it is important that the independence of the Court Service is embodied in the models and the institutional arrangements. However, it is equally important that there is proper accountability, and that further work must be carried out. There must be further consultation, and the new Minister or Ministers and the scrutiny Committee could usefully take that work forward.

Mr McFarland:

Are we recommending that that discussion takes place after the devolution of policing and justice? If devolution of policing and justice is delayed and we do not meet the May deadline, I am unsure whether we can recommend the Lord Chief Justice’s model in the intervening period. If devolution were delayed until November, it would give the Committee time to re-examine the Public Prosecution Service in more detail. The question is whether we want to get into a discussion on the Lord Chief Justice’s model, because it is a major step change in terms of accountability. Do we wish to get involved in that, even though it would cause a delay, or should we recommend that it is examined by the Minister post-devolution?

The Chairperson:

We could recommend that the Lord Chief Justice’s model be examined by the Minister post-devolution. It is entirely a matter for the Assembly to decide otherwise.

Mr McFarland:

Absolutely — I am merely saying that we could make a general recommendation.

The Chairperson:

We should not presume to take on that responsibility, because it is beyond our remit.

Mr McFarland:

It is complicated.

The Chairperson:

Yes it is complicated. We should not presume to take on that responsibility. If we were minded to make a recommendation, it would simply be that the Assembly may wish to consider whether the work may be taken forward by the Minister and the scrutiny Committee post-devolution.

Mr Attwood:

It would be fair to report that there was good evidence for every option. Therefore, it is a difficult matter to conclude. We need to acknowledge what was said by the Lord Chief Justice, the chief executive of the Court Service and the NIO. We need to flag that up. Since those discussions, an arm’s length model has been set up in the South, an agency model has been set up here, and there is agreement between various agencies in England and Wales.

Mr Attwood:

This is a hybrid model. Even as we are talking now, the whole thing is going in different directions.

The Chairperson:

Things are evolving in Scotland too.

Mr Attwood:

We have audiences for this report.

The Chairperson:

Do you have any view, without prejudice, on how the Committee should handle the matter?

Mr McCartney:

Sinn Féin’s note says that policing and justice powers could proceed with the agency post outlined by the NIO, and then there should be further discussion.

Mr McFarland:

We are all agreed then.

The Chairperson:

Given our timescale, are members content that we have reached consensus? The DUP mentioned considerable merit. We welcome the contributions made by the Lord Chief Justice and the Court Service. There is merit in their proposals, but a great deal of work must be done, and a lot of consultation will need to take place. We recommend that the Assembly considers how that consultation might best be taken forward, in the context of devolution and the Minister and the scrutiny Committee. Clerk, can you work on a plan for that?

The Committee Clerk:

I can certainly look at it. There may be another angle to look at it from as well, and that is if the Committee’s report indicates that there are some matters for higher political negotiation. It is conceivable that such issues may be referred back, not necessarily by the Assembly, but by a different route through the parties for more work to be done.

The Chairperson:

Do you wish to reflect that in the draft report?

The Committee Clerk:

I am simply saying the draft wording might reflect that it could be discussed in various forums.

The Chairperson:

We could find a general phrase for "the Assembly will wish to consider how best to take this matter forward".

Mr McFarland:

The Lord Chief Justice was adamant that he wanted to have no politicians anywhere near this issue. He was clear about that. That is a difficulty for us as politicians, because we are responsible for all of this, and the idea that politicians should get offside and not annoy the Court Service will not be acceptable to the Assembly.

If this is delayed, we can send it back to another Committee. The difficulty is —

The Chairperson:

The Assembly could set up an ad hoc Committee to deal with it.

Mr McFarland:

Yes. The difficulty is whether we need to go toe-to-toe with the Lord Chief Justice in the lead in to the devolution of policing and justice, which is my sense of what would happen. Does the Assembly really need a public spat — which it probably would be — about whether the Court Service, and all, would be accountable to the Assembly or not? Should we get the matter devolved and let the Minister and the Lord Chief Justice lock themselves away somewhere for a fortnight to work out how it all links together?

The Chairperson:

The Lord Chief Justice recognises the timescales and the legislative realities of the process. It is not for me to speak for the Lord Chief Justice, for the record, but I do not believe that we will go toe-to-toe on that within the timescales that are envisaged. We can only work to the time frame that the Assembly has set for us. I agree with Alan. In reality, we may have more time after March in which to examine those issues. However, we cannot have regard to that at this stage.

Mr McFarland:

We do not want to say anything that looks as though we are recommending that, if time becomes available, a Committee will be able to take a definite view on that matter. We do not want to take a definite view on that matter before devolution, because, in order to do that, we would have to call the Lord Chief Justice again, and I guess that we would have a major row about whether the Assembly and politicians should be interfering and asking questions. My guess is that we may not want to do that before devolution. Let us get the powers devolved, and then worry about fighting with the Lord Chief Justice.

If we have an option of saying that, if it is delayed, some Committee should examine that issue with the prospect of arriving at a solution, we do not want to go there at all.

The Chairperson:

I take your point. The report must show warmth to what the Lord Chief Justice and David Lavery have said. We can find warm words to reflect the fact that the Committee has a lot of sympathy with their positions, yet the realities are —

Mr Attwood:

We have sympathy with the agency model as well. The Lord Chief Justice may not want to live in an ivory tower.

The Chairperson:

We will try to reflect that, Alan. It is not for the Committee to recommend anything to the Assembly beyond saying that those matters require further consideration. The Assembly will decide on the timing of devolution of policing and justice. If it says that the time is not right, it may wish to say that it wants to park all the issues or revisit A, B or C. The Committee should not try to influence that, but it should work strictly within its remit, which is to report on the current preparations. Are members happy that that is how we will deal with the question of independence, accountability and changing the proposed model from that of an agency to something else?

There is also the question of division of responsibilities between the Court Service — whether it is an agency or an independent body — and the new Department. That relates particularly to policy and legislative support. According to the views have been given on that, the DUP said that policy and legislative support should transfer to the Department, but the UUP did not commit to anything, did they, Alan?

Mr McFarland:

I thought that we had decided already that policy would go to the Department and that operation would stay with several different organisations.

The Chairperson:

That was the case with legal aid.

Mr McFarland:

The same logic applies. That is what the Department does.

The Chairperson:

Hold on. We are in danger of having a very anaemic Department, with all of the various at-arms-length powers. That is not a criticism, but one would have thought that policy and legislative support would have found a natural home in the Department.

Alan, you have given the view of the UUP, and Alex —

Mr Attwood:

Our position is the same.

The Chairperson:

Raymond, what is the position? Sinn Féin’s view is that whether the agency should continue to deliver policy advice and legislative support will be determined by an agreed model.

If the model, for the purposes of our report, is the agency model — for that is where we are at the moment — the question for Sinn Féin is whether policy advice and legislative support be with the Department.

Mr McCartney:

I will get back to you on that one.

The Chairperson:

We have, then, agreement among three of the parties, and we ask Sinn Féin to confirm whether they would be happy, in principle, for policy advice and legislative support to rest with the Department, rather than with the Court Service.

With respect to the Court Service, we were asked: if there is an independent Court Service, how should the board be composed? I do not think we need to discuss that in our report because we are beyond that now. Are members content with that?

Members indicated assent.

The Chairperson:

We are almost there on the Court Service: we just need clarification from Sinn Féin as to whether it is content, in principle, for policy advice and legislative support to rest with the Department. The Assembly, or political negotiations outside this Committee, might change that. We do not ask that the answer be set in tablets of stone; however, it would be useful if there were consensus to that.

Mr McCartney:

I will get the answer to that and submit it to the Committee Clerk, independent of the Committee.

The Chairperson:

Are members content with that?

Members indicated assent.

The Chairperson:

The time is now between 4.20 pm and 4.25 pm. Alex, you have to leave —

Mr Attwood:

If I left at 4.40 pm, that would be all right.

The Chairperson:

Then we will crack on with the Public Prosecution Service (PPS).

The issues here are: the degree of independence of the PPS; the relationship of the PPS to the Attorney General for Northern Ireland; the relationship of the PPS to the Assembly; the relationship of the PPS to the proposed Advocate General for Northern Ireland; and which Department should have responsibility for providing funding for Court Service and the PPSNI.

With respect to the degree of independence, are members content to use the same form of as that which we used with respect to the Court Service — to the effect that we are agreed on independence, but it should be balanced with accountability? If members are not content later, we can revise the words when we look at the draft report. Are members happy for the Committee Clerk to use the same formula for both?

Members indicated assent.

The Chairperson:

We now turn to the relationship of the PPS to the Attorney General, to the Assembly and to the Advocate General.

The UUP’s position was that the PPS should be administered by OFMDFM; and that the Attorney General should answer to the Assembly for the effective administration of the PPS.

The SDLP responded that: as consistent with the current legal framework, there should be a maximalist approach to the oversight of the PPS. It is insufficient for the PPS to be answerable only for finance and administration. The PPS should be funded by the Department.

The DUP position was that: the PPS should continue as a non-ministerial Department with a significant degree of independence from the Department. Funding should sit with OFMDFM. In addition to the Attorney General, the director of the PPS should be answerable on financial and administrative matters.

Sinn Féin’s position was that it believed in the independence of the PPS and appropriate mechanisms to ensure public accountability would like to explore further the relationship of the PPS to the Attorney General and in particular to look at the relationship of the Lord Advocate of Scotland and the Scottish Parliament, which are equivalent to the PPS and the justice Minister.

Drawing all that together with the relationship of the PPS to the Attorney General for Northern Ireland and to the Assembly, The DUP and UUP seem to be saying that there should be a strong relationship and the Attorney General should answer for the PPS in the Assembly. In other words, if the Attorney General is answering questions, he should be capable of answering questions about the PPS. Alan, is that a fair reflection?

Mr McFarland:

Yes, the logic is that the PPS is independent operationally, and the same argument applies to the Court Service. However, the PPS gets money and has effective inefficiency issues, so someone needs to answer for those, and the logic is that whereas before the Attorney General was responsible both operationally and administratively, he should now be responsible administratively for the PPS, and answer questions in the Assembly on its effect and efficiency on the financial side. That creates accountability for the area that you are allowed to do.

The Chairperson:

Yes, and the DUP’s position was similar. Alan, what was the UUP’s position on funding for the PPS: was it that it should come from OFMDFM?

Mr McFarland:

Yes, our position was that OFMDFM should be responsible for funding.

The Chairperson:

The UUP and DUP have fairly similar positions. Alex, the SDLP was saying that funding should be made by the Department rather than by OFMDFM. The SDLP said that it was insufficient for the PPS only to be answerable for finance and administration. Do I take that to mean that the director of the PPS should be more answerable to the Assembly on a wider range of matters, or do you see merit in the position of the UUP and DUP, whereby the Attorney General has that answerability?

Mr Attwood:

The SDLP considers that the PPS will be, arguably, the institution with least accountability in the North; the party is concerned about that. Therefore, we believe that there must be a hard conversation about new levels of oversight on what the PPS does, either à la Policing Board model or giving the Committee more significant power than simply over-administration: looking at policy, patterns, practice and so forth. As a minimum, the SDLP wants the Committee to say that this matter must be probed further, because it is not being sufficiently addressed. Arising from that, it is difficult to divorce the issues of the PPS from the roles of the Attorney General and the Advocate General. We will not be masters of our own house: there will be a huge range of functions over which we will have neither authority nor standing, because they are excepted matters. We must acknowledge that but close down the potential difference and conflict. That is why in our paper the SDLP talks about the relationships between the Attorney General and the Advocate General on one hand and the Attorney General and the PPS on the other. This needs to be worked out fully so that we do not end up with a situation were we are not seen to be "at the races", for want of a better term, when significant matters arise around the PPS.

To summarise, the SDLP wants to have a more fundamental debate about this. We are not going to get it done in the short-term; it will need new legislation. Nonetheless, in the short-term we need to work through the relationships between the Advocate General and the PPS and the Advocate General and Attorney General very quickly and thoroughly. In the meantime, if the Attorney General is going to come to the floor of the Assembly to answer questions, then let us make sure that he is responsible for addressing the fullest range of issues, consistent with the statutory authority that currently exists. If we really push him to the max of his position we will get as much back from the PPS as we possibly can in terms of accountability. Currently we see huge gaps in terms of oversight in respect of that office.

The Chairperson:

Therefore, to close the gap, Alex, you suggest that either the scrutiny Committee has a greater role in holding the PPS and the Director of Public Prosecutions to account on policy issues, etc, in addition to —

Mr Attwood:

It would require new law.

The Chairperson:

Yes — or that you go for a Policing Board-type model to hold the PPS to account. You also seem to be saying that where the Attorney General and the PPS have a connection, the Attorney General should be answerable to the Assembly to the fullest extent possible for those aspects.

Mr Attwood:

Yes, under the current legislation. There is also the issue of how we get sight of what the Advocate General is saying to the PPS.

The Chairperson:

We have accepted that.

Mr Attwood:

The Assembly will require a level of information. There cannot just be a big black hole with regard to that body’s authority.

The Chairperson:

Did you say that legislation is required if the scrutiny Committee has a greater role?

Mr Attwood:

The law is contained in the two Justice (Northern Ireland) Acts of 2002 and 2004.

The Chairperson:

Do you advocate the enactment of legislation pre-devolution?

Mr Attwood:

We need to win the political argument on whether that is the direction in which to go. I doubt that we will win it between now and 29 March. However, I want to win it some time thereafter.

The Chairperson:

The Committee and the Department may examine that.

Mr Attwood:

Even if there were an acknowledgement from the Committee that that matter should be examined, the battle at the criminal justice review was essentially lost.

Mr McCartney:

Sinn Féin broadly agrees with Mr Attwood’s earlier comments. Issues with regard to accountability and superintendence must be dealt with. The Lord Advocate of Scotland talked about her role during her presentation to a conference in the Stormont Hotel. She mentioned situations in which she is answerable to the Scottish Parliament.

The Chairperson:

Alex, the DUP’s paper talks about the present position pre-devolution — the Attorney General at present has a superintendence role over the PPS. Under the NIO proposal that falls, and the DUP is saying that should be reinstated. Why do you feel that the superintendence should be with the Committee or an independent board rather than as it is at present with the Attorney General? Where do you see the deficiencies in that?

Mr Attwood:

Historically, policing and the administration of justice have been a matter of dispute. Therefore, to build up confidence in policing we established the policing structures with a heavy ownership for the political parties; similarly, in respect of justice, we need to give significant ownership to the political parties because that is a mechanism to build up confidence. At the moment, apart from finance and administration, we are not going to have that input. Therefore, in principle, a model of having political oversight with shared responsibility by the political parties is better than having individual oversight from an Attorney General in the context of the North.

The Chairperson:

Even when the Attorney General is answerable to the Assembly?

Mr Attwood:

Given the historical dispute over the administration of justice, it is a model that has merits in terms of actual buy-in from the political parties. That does not preclude the need for the Attorney General. Obviously the Committee could not have oversight of individual cases — an Attorney General might have some responsibility to explain the situation in respect of individual cases. For example, the Attorney General currently accounts to the Westminster Parliament in respect of decisions he makes on individual cases; he may say very little about them because of national interests, but nonetheless he feels obliged to make a statement, for example stating that he has decided to drop a prosecution on the basis of national security. So the Attorney General may have a continued political role vis à vis the PPS. However, in terms of broad policy, practice and other functions of oversight, the SDLP’s view is that an Assembly scrutiny Committee, or a Policing Board-type model, offers a better way forward.

Mr McFarland:

Operationally, the Chief Constable does his own thing and, after that, the Policing Board is able to ask him why he did it; but you are not allowed to do that with a judge. One cannot haul in a judge to ask him to explain a decision. In fact, that is the one area in which that is completely verboten. I understand that one cannot haul in the DPP to ask him why he decided to prosecute one case and not another, because that is his operational role. Alex is saying that we should be able to ask a judge to explain his decision and to ask a prosecutor why he did not prosecute. I like that idea, because if the public were to hold Jeffrey Donaldson, for instance, accountable as the justice Minister, they would want him to explain why person A was not prosecuted.

How do you square operational independence with people having a legitimate interest in why something did or did not happen? We have struggled with that question, and we have erred on the side of saying that we must hope that the Lord Chief Justice and the judges are able to keep some control over the Court Service and the judiciary. Similarly, it is vital that the person appointed as DPP has operational control over their organisation. Operationally, what other interference can be introduced to both of those organisations? I am all for full accountability and hauling in the Court Service to find out whether it is working properly and whether it is spending its money wisely, but I struggle with working out how to interfere with the operational side.

Mr Attwood:

You are not. Putting aside decisions on individual cases, what is wrong with a scrutiny Committee, or another structure, carrying out some of the work that the Policing Board does on policing? What is wrong with a scrutiny Committee, or some other accountability structure, working with the PPS to develop a code of ethics for prosecutors, on the treatment of victims or any other policy or practice that might be dealt with by the PPS? Why could we not ask the PPS: what is your victims’ liaison strategy?

Mr McFarland:

That would be a matter for the Department and the Minister. The scrutiny Committee would call the Minister in to ask what the Department was doing about those matters. That is unlike the Policing Board, which has an operational duty to run policing. We do not have that structure.

Mr Attwood:

My argument is that whatever a justice Minister might do and whatever the normal scrutiny Committee might do, the legislation restricts that role to finance and administration. There is range of other interests where we should be seeking an oversight and accountability function for this Assembly or some other mechanism.

Mr McFarland:

I thought that the Lord Chief Justice had all these people — I am not as familiar as you on these matters — and a whole organisation that develops policy for courts and stuff.

The Chairperson:

Yes, and we are recommending, subject to agreement with Sinn Féin, that that transfers to the Department.

Mr McFarland:

So surely the proper working, changes of policy, code of ethics etc is developed by the Department alongside those various organisations on which we currently spend a fortune?

The Chairperson:

Except that, under the current proposals, the PPS does not come under the Department — it comes under OFMDFM.

Mr McFarland:

Yes, but that is only for administration. Is it not the case that the development of prosecution policy for the PPS is done centrally by an organisation in London?

The Chairperson:

It would be the Attorney General, and he or she will be appointed by OFMDFM.

Mr McFarland:

Is there not a board of some description that advises on all of this stuff? I understood that there were organisations already in existence that advise the Court Service as to how it should be operating with regard to sentencing, policy, etc, and that judges have a group that advises them on decisions of courts and what they should be doing. I understood that there was a similar system for prosecutions.

The Chairperson:

We are at our limit here. Perhaps we could ask the Committee Clerk would to take up the point that Alan has raised.

Mr McFarland:

It is just to clarify who decides on policies, because I think that there are a number of organisations in existence.

The Chairperson:

We were given a paper on the Attorney General after Sir Nigel Hamilton gave his evidence. It might be worth having another look at that, Alan, to examine the role of the Attorney General. Perhaps we could ask the Committee Clerk to have a look at the issue.

We will return to this point at our meeting on Tuesday. What we need to look at is whether the director of the PPS is accountable to the Assembly for more than just finance and administration. Should he also be accountable on policy and practice?

Secondly, what is the role of the Attorney General in all of that and the Attorney General’s answerability to the Assembly, and how can that be utilised to ensure that the PPS is more accountable?

Thirdly, we need to work out where the Department fits in to all of this in relation to the question of funding, which at the moment would transfer to OFMDFM — indeed should it transfer to the Department — and what is the role of the Department in relation to the PPS on any of these matters.

If we could look at those issues when we come back on Tuesday we could maybe then take things forward.

Mr McFarland:

If we are raising those questions about the PPS, surely those same questions arise about oversight of policy and practice in relation to the Court Service?

The Chairperson:

The Court Service is a bit easier to understand because the agency model gives —

Mr McFarland:

Policy and practice in relation to the Court Service transfers to the Department?

The Chairperson:

It does, yes, as with any agency or non-departmental public body. However, the PPS is not an agency but rather an independent body so, so the situation is different.

Mr McFarland:

If you go to the Lord Chief Justice’s model then the issue about policy and practice arises again.

The Chairperson:

Members, could I also remind you about giving some thought to the name of the Department ahead of next Tuesday’s meeting? Also, perhaps Raymond could come back to us on the issue of the issue of policy and advice in relation to the Court Service.

Mr McFarland:

What is the status of our papers and that of the Hansard report?

The Chairperson:

They are confidential at the moment. The papers are confidential to the Committee, and I ask that members please respect that. Secondly, the Hansard report will come to members for correction.

Mr McFarland:

And will they be published eventually?

The Chairperson:

They will as part of our report. The transcript of today’s private session will not be published until our report is published.

The Committee Clerk:

In relation to the party position papers, it is a matter of judgement for the Committee to decide whether it wishes to include any or all of those papers in the report, as is the case with other documents that you have seen. That is part of the process of agreeing what will be in the final report.

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