Official Report (Hansard)

Session: 2007/2008

Date: Tuesday, 08 January 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
Ms Carál Ní Chuilín
Mr George Robinson

Witnesses:

Sir Hugh Orde ) The Chief Constable
Mr Paul Leighton ) The Deputy Chief Constable

The Chairperson (Mr Donaldson):

Members, it is now 11.15 am so we are ready to proceed with the oral evidence session with the Chief Constable, Sir Hugh Orde. I thank the Chief Constable and Mr Leighton for joining us; we very much appreciate your time. I refer members to their meeting’s folder, in particular the written submission that was made by the PSNI at the beginning of the inquiry. We may wish to explore some issues from that with the Chief Constable.

Chief Constable, I believe that this is a significant occasion, which might be regarded in the same light as the appearance of the Lord Chief Justice at an earlier oral evidence session. I am not aware that you as Chief Constable, or any of your immediate predecessors, have appeared before locally elected representatives at Stormont in this type of format. You are very welcome, and the Committee is glad to establish another precedent.

The normal format for the meeting is to invite you to make a short opening statement, which will be followed by questions from members. The Committee will normally proceed with questions in accordance with the terms of reference from the inquiry, which you have been provided with. Those questions are on the matters to be transferred under devolution, the ministerial models and the timing and preparation for devolution. We will try to take them in that order. The Committee is especially keen, Chief Constable, to hear of your assessment of the level of public confidence that exists in policing at present and how that might relate to the transfer of policing and justice matters from Westminster.

Before we proceed, I ask members to please declare relevant interests. I declare an interest as a member of the Northern Ireland Policing Board and of the Privy Council.

Mr I McCrea:

I am a member of the Cookstown District Policing Partnership.

Mr G Robinson:

I am no longer a member of the District Policing Partnership.

Mr Kennedy:

I am no longer a member of the Policing Board.

Sir Hugh Orde (The Chief Constable):

Thank you for the opportunity to meet the Committee today and to answer questions, which will hopefully assist you in preparing your report to the Secretary of State by March 2008. Some of the issues that you may wish to discuss are around timing and confidence for the devolution of policing and justice, and I am happy to give some views on those subjects in a brief opening statement.

Before that, I have some general comments and observations to make on policing. First, huge strides have been made in the past number of years in moving policing in Northern Ireland forward. The current structures in Northern Ireland are held in the highest regard internationally. The PSNI is, without doubt, one of the most accountable police services in the world, and that is a good thing. An independent ombudsman carries out investigations into complaints, and the Policing Board — with which I meet at least on a monthly basis to discuss performance and other issues — holds me to account. As the Committee has already taken evidence from that body, I will not go into detail about its role. I know that some members of the Committee have direct experience of the Policing Board.

Equally importantly, District Policing Partnerships (DPPs) achieve local accountability. They work at a local level with police to determine policing priorities and agree annual plans. A large number of other bodies hold the police to account and scrutinise our work, including the surveillance commissioner, the criminal justice inspectorate, Her Majesty's Inspectorate of Constabulary, human rights advisers to the board, NGOs, international visitors and independent reports such as the Blakey Report, the Stevens Report and the Crompton Report, which were commissioned by the board.

At some stage, greater confidence in policing will lead to a society in which continual reference to others for reassurance becomes less common. I hope that any move towards devolution of policing can be achieved with a minimum of additional bureaucracy. Currently, there is no doubt that such accountability is a positive thing. It increases confidence in policing, which this Committee is interested in, and is good for the police and the wider community.

The accountability structures that are in place, together with the determined and committed efforts of my officers and staff as well as members of the community, has resulted in the reduction in crime that we have today. Currently, crime is down by 14% on the year to date; it is at a five-year low. In November 2007 we recorded 8,500 offences; in November 2002 we recorded 13,500 offences. We are delivering on crime reduction, which feeds naturally into confidence in policing.

Clearance rates are beginning to improve, but there is much more work to do in that regard. It is important to note that we work closely with other forces to ensure the service benefits of shared knowledge with colleagues in other forces. Such contacts are important now and will be ever more important as we consider the current international terrorist threat as well as ordinary organised — and disorganised — crime. I do not want our service to be isolated from any other force in England, Scotland or Wales in any way, shape or form.

Recent reports on people’s confidence in policing show that our competence in carrying out our work continues to grow. An Ipsos MORI poll commissioned by the Policing Board in May 2007 — not by the Police Service — showed that 84% of the public have confidence in our ability to deliver an ordinary day-to-day service for all the people of Northern Ireland. That figure exceeds the target set by the Policing Board in the latest policing plan. That is not to say that there will not be difficult days that impact negatively on the extremely challenging territory that we are charged with policing. This year is going to be a very difficult and challenging year for policing for all sorts of reasons. However, I believe that we will be judged on what we do on a daily basis in working with communities to serve all the people of Northern Ireland. We will be judged on how we deliver policing now — that is the feedback that I continually get from the people that we serve.

When the Committee wrote to me about the devolution of policing, it referred to issues of timing and confidence. I will touch on a couple of those issues. From our point of view, I have said consistently that there is no reason why devolution of policing and justice should not happen. We will work with whatever decision the Assembly reaches over the structure of a justice Department and the timing of devolution of policing and justice. My officers are serving the community today and will do so tomorrow, next month and next year, no matter what decisions are made about the devolution of policing.

The structures of a policing and justice Department are a matter for this Committee, but I ask members to consider the following matters. When devolution of policing and justice occurs, it should not impact on my operational responsibility as the Chief Constable. That is a critical factor and a unique feature of policing in the United Kingdom. On a day-to-day basis, I am accountable to the Policing Board, which is also very important. As I mentioned earlier, the accountability structure is a key factor in building community confidence. For that reason it is vital that when devolution occurs, the relationship between the Policing Board and the devolved structures is clearly defined and understood. There is a continuing need for a good level of interaction with broader United Kingdom policing, which includes the two-way transfer of officers between services. That is also very important; as I said earlier, I do not want our service to be isolated. In addition, it is essential that there is clarity between the PSNI, the Policing Board and the Assembly on the question of finance.

Given the events that have taken place at Stormont since May 2007, it is clear that Northern Ireland is taking control of its future. However, there is a question over whether it needs to take control of its past. The past is a critical issue for policing and confidence in current policing, not just for us, but for Northern Ireland society as a whole.

In conclusion, Chairperson, I say to you and the members of the Committee that people in Northern Ireland want policing to move forward. Many people want to see local politicians take responsibility for policing. Whatever decision is reached by the Assembly on the structure of a justice Department and the timing of devolution, my senior team and I are more than ready to work with the politicians in any way that is helpful.

Whether we like it or not, policing has been in the eye of political developments in Northern Ireland. It has been the critical issue. I put on record my thanks to all members of my service who have delivered a huge change programme over the past five years, have reduced crime, and have increased confidence in the service. Their commitment has contributed substantially to the reasons why today’s debate at the Assembly and Executive Review Committee is taking place. I am happy to assist the Committee in any way that I can.

The Chairperson:

Thank you Chief Constable. The Committee appreciates your opening comments and the attention that you have paid, in particular, to some of the issues that concern the Committee, not least of which are the issues of timing and confidence. Two Committee members have to leave before the end of the meeting. I will take their questions first.

Mr Kennedy:

I welcome the Chief Constable and Deputy Chief Constable to the meeting and thank them for attending. It is on public record that the Chief Constable said, last year, that he thought that the devolution of policing and justice powers would be more possible in autumn 2008 rather than by the Government’s deadline of May 2008. What insight on the matter led him to reach that conclusion?

The PSNI has already moved to change and redefine divisional policing boundaries. In any new situation in which policing is devolved, would the Chief Constable envisage changes to those boundaries and would he be open to those changes, even under the RPA?

As regards to operational responsibilities — which the Chief Constable has, rightly, sought to protect — would he prefer to be accountable to the Northern Ireland Policing Board rather than the Assembly’s policing and justice Committee?

Would the Chief Constable like to share any views that he may have on the Consultative Group on the Past, which deals with the past and the suggestion of amnesties, and so forth?

Sir Hugh Orde:

In answer to Mr Kennedy’s first question on the timing of the devolution of policing and justice powers, it was a wide ranging interview. I was asked for a general observation. The answer that I gave was what I had heard from all sorts of people. Some people were keen on the devolution of policing and justice powers while others were more reticent, and I reflected on that. It seemed to me that the devolution of those powers was more likely to occur in October. I had no particular insight on the matter. It was a general discussion on how I saw the matter and what I had heard about it, on the ground. I am happy for the Committee to have a transcript of the exact words that I used so that there is absolute clarity on what I said. I said that from a police perspective, I had no difficulty whatsoever with the devolution of policing and justice powers. That seemed to be the will of Parliament. Those recommendations were made some time ago and they make sense.

Deputy Chief Constable Paul Leighton (Police Service of Northern Ireland):
The short answer to the question as to whether the PSNI is open to further changes is ‘yes’. The important thing to note is that we moved because we felt we could create a more manageable and better structured organisation that would be more efficient in the delivery of policing across Northern Ireland. It would bring us into line with many other police services that have divisional command units (DCUs) or basic command units (BCUs) of approximately 600 officers. Therefore, it brought us into a structure that fits well with our comparator forces. With regard to the future, coterminosity is an important concept. I am a great fan of it. I worked in a police service that had coterminosity and I see it as a huge benefit. Therefore, we would work towards a situation of coterminosity. However, we would have to work within the budget that we had and, of course, scale brings certain savings for us. We hope that we will achieve some savings, in the interim, with our current structure.

The Chairperson:

I refer to the question that Mr Kennedy asked about the Consultative Group on the Past. The Chief Constable and Deputy Chief Constable will be aware of some controversy that arose out of last night’s public meeting and the suggestion that the term “war” be used to describe the events of the past 35 years as a means of offering people the opportunity to come forward to tell the truth about what happened. Presumably that would include perpetrators from both sides of the paramilitary divide. In return for doing so, they would be offered an amnesty for their crimes.

Does the PSNI have any view on that kind of proposal at this stage?

Sir Hugh Orde:

I have given evidence to the Eames/Bradley commission and I have been asked back. PSNI views on dealing with the past are well known. I do not want to express a specific view on whether it was a war, or whether an amnesty would help. That is the key role of the Eames/Bradley commission. That is the only consensus on these matters that allows us to move forward. I listened to the news before seven o’clock and I suspect that, otherwise, there is no consensus: there is a huge diversion of views. The PSNI is in the middle of that.

I know what is not working. I do not think that the piecemeal approach to the past will deliver sufficient closure to allow Northern Ireland to move on. I am frequently on record as expressing concerns about the draining of resources away from my establishment towards the servicing of inquiries. The latest ruling from Strasbourg about coroners’ inquests suggests that we will have from 44 to 46 additional inquests. That is relevant to the Committee because it takes more and more people away from dealing with day-to-day problems to service public inquiries and coroners’ inquests. I have a fixed establishment of 7,500 people, so my experts in criminal investigations and intelligence now spend 99% of their time servicing inquiries into matters that went back five, 10, 15 or 20 years. I make that point because it impacts on confidence in policing. At some stage, we will reach a tipping point, where I have to make a hard decision about how much more I can put into looking backwards. I am also on record as saying that I will service these public inquiries as best and as efficiently as I can. I am obliged to do so under the Enquiries Act 2005, and it is the right thing to do. However, the police are being torn in two ways.

The best way of dealing with the past is through a spectrum of opportunities that ranges from the PSNI Historical Enquiries Team (HET), which is important and makes a difference, right through to that difficult debate which includes amnesty, statutes of limitation and pardons.

Mr Kennedy:

There is also the question of accountability. Who does Sir Hugh most prefer to be accountable to?

Sir Hugh Orde:

The law on that is clear. At present, I answer to the Northern Ireland Policing Board. That is why we are where we are. I spoke with Paul earlier, before we arrived, and we discussed other models. Where we differ from Great Britain is that the PSNI is a single police service. In Scotland, there are eight police forces, and I understand the need for an additional committee structure there. In Wales, there are four police forces. In Northern Ireland, there is only my police force. In my opening comments, I pleaded for clarity so that we do not have to duplicate effort. The board is an understandable structure that has stood the test of time. That is who I answer to. There is a debate to be had about changes.

The Deputy Chief Constable:

It is different. We discussed it earlier. Look at the Home Office: there are 42 police forces in England and Wales and police authorities there act almost as interim structures. In Scotland, there are eight police boards — I am not sure what they are called in Scotland — and there is also a plurality of forces in Wales. The difference here is that there is only one police service. Whatever happens may end up with a process that duplicates effort. That is something we want to avoid.

Ms Ní Chuilín:

My question is about the Ipsos MORI poll commissioned by the Policing Board. Some 83% of those polled said that they were confident in the PSNI’s ability to provide an ordinary, day-to-day policing service for all the people of Northern Ireland. Do both witnesses agree that, in order to maintain a high level of public confidence, it is imperative that devolution of policing and justice happens sooner rather than later? Equally, the transcript, which the Committee had sight of, seemed to say that in the opinion of the witnesses, October was the most practical time for that to take effect.

Sir Hugh Orde:

I have no difficulty at all with devolution of policing and justice. The member asks whether it will improve confidence in policing and justice: I think reaction will be mixed. Any feedback that I received on that matter, I gave in my interview to Wendy Austin. Some people say that they are happy with the situation as it is, and that they want the police to remain answerable to Parliament. Others say that devolution should take place today.

I can deal with both options. The devolution of policing and justice makes sense. The models in Scotland and Wales have worked quite well, with the only slight caveat being the recent decision by the Scottish Parliament to award a pay increase to the police that is above that of its counterparts in England, Wales and Northern Ireland. That creates a problem with moving police officers from one area to another. It is critical to develop policing in such a way that the interaction between forces means that we can export and import talent. The difference in salary makes that difficult because there are implications for pensions and other related complexities.

I have no difficulty with the devolution of policing and justice, and my reading of the general view on that is that it is simply a question of timing, rather than of whether it should happen.

The Deputy Chief Constable:

Your first point that devolution must proceed in order to maintain confidence is valid, because it will show that Northern Ireland is confident enough to manage its own affairs. We will be ready for that by May 2008, but timing is not an issue for the Police Service. It is not our decision, and few in the Police Service have a view on it.

The Chairperson:

I want to follow up on Danny Kennedy’s point about accountability. If you continue to be accountable to the Policing Board, should the Policing Board in turn be accountable through the Minister or Ministers to the Assembly? I understand that the Policing Board has a relationship with the Ministers in the Northern Ireland Office. Should that continue to be the case through Ministers in the Assembly?

Sir Hugh Orde:

The main strength of the Policing Board is its independence. As was the case following recent events, the board can require me to attend. However, it has never had to require me to do so because that would be awful. I always attend because the board asks me to do so. I can have robust debates with the Policing Board on all sorts of subjects at short notice and to varying degrees of effectiveness, depending on people’s personal views. The board is a powerful structure.

My relationship with the Minister is more at arm’s length. The Minister’s relationship with the Policing Board is also more at arm’s length than direct, except when it comes to money, because the income stream comes from central Government. I have no problem with either model, but there must be clarity.

We cannot have a situation in which I answer to the Policing Board, which then reports to the Committee while, at the same time, the Committee bypasses the board by summonsing me to attend its meeting here. Of course, I would turn up, as I do to meetings of the Northern Ireland Affairs Select Committee when asked.

I would turn up at the Public Accounts Committee if I was asked, although that it not optional and I would have to attend. The two can work in parallel, but there must be clarity. It is a matter to be decided by the Policing Board and the Committee, rather than me, and I will work with whatever model is selected.

Mr I McCrea:

I thank the Chief Constable and the Deputy Chief Constable for coming today. Many people are concerned about when — or even if — policing should be devolved. We have touched on the timing but from some people’s perspective the question is whether it should be devolved at all.

I disagree with Paul Leighton’s point that policing and justice must be devolved to maintain confidence. Many issues, such as terrorism, must be addressed before that can happen. Confidence is based on whether the police are doing a good job. However, the terrorist attacks on police officers over the past few months do not inspire confidence in the community that I represent. Simply to devolve policing and justice will not address the problem of confidence. Many other issues, such as the IRA army council, must be addressed before the devolution of policing and justice can even be considered. I suppose that those were comments rather than questions.

The RPA also raises issues. As someone who sits on Cookstown District Policing Partnership, I believe that, in that largely rural area I represent, confidence in policing has been lost.

For example, Cookstown’s senior officer is based in Enniskillen, which has very few links with Cookstown. I am aware that that is a stopgap until Omagh is sorted, but a lot of problems exist.

I believe that the police jumped first. Whether that was because of a belief that there were going to be seven councils is another argument. It is a wrong move and the changes that have been made in the local areas of having an inspector as the chief officer — I am not saying that he cannot do the job — sends the wrong message. Places such as Cookstown and Magherafelt previously had superintendents. However, the duty officers at weekends are now based in Dungannon and do not have any base in Cookstown. Issues such as that cause problems with confidence for the local communities.

The Chief Constable mentioned the “arm’s-length” element. When giving evidence to this Committee, the Lord Chief Justice talked about being at arm’s length from the Ministers. It is interesting to note that that is similar to what you have said.

Sir Hugh Orde:

Although I was not present, I think that the Lord Chief Justice’s point was slightly different. He talked about judicial independence and he felt that something chaired by him regarding appointments was more appropriate. That is not the case with policing; we can be far closer in that sense. We do not have the legislation that enshrines our independence in the same way as the judiciary do. We are different in that respect, and I am happy with that relationship. What I am saying is that we need clarity regarding what that relationship is. Frankly, it would be a little tiresome if I had to go to the Policing Board and then had to repeat the same experience here. That would be confusing to people outside; they want clarity.

Regarding the reform that Paul touched on, five years ago when I came in from a different service — as Paul did — I was staggered by the level of senior officers that I had in this police service. That was a transitional stage, and I think that Patten saw 29 districts as a transitional stage. I know that people have different perceptions and that some feel that we now have fewer officers, which we do — at the height of the Troubles there were 13,500 and there are now 7,500. That is all that we can afford. Coming from where I do, I recognise that there are far more officers here than elsewhere. The trick was to make sure we maximised their effectiveness and their commitment to the front end of policing.

Frankly, I would far rather have an extra mobile patrol than a superintendent in a place that its size cannot justify. I have absolute confidence in the people who are now looking after what were the 29 districts. They have access to senior management whenever they need it. I have visited many of them and they will continue to do a good job.

The critical relationship is between the DPPs and individual officers. That a DPP is liaising with a chief inspector rather than a chief superintendent does not mean that it will get a different service. In fact it will get a more personalised service, because that relationship would be the sole responsibility of that officer. I understand the concerns. Maybe Paul would like to touch on this issue.

The Deputy Chief Constable:

What I said was that the ultimate test of confidence will be that devolution of policing powers has to take place. I went on to say that the timing is not our concern. That is a matter for this Committee and other politicians. Eventually, what will be a sign of true public confidence will be the devolution of policing. As I have said, the timing is not an issue for us; that is the Committee’s concern.

Mr McFarland:

I thank the Chief Constable and the Deputy Chief Constable for attending today. There is clearly a debate to be had about the relationship between the Policing Board and any Committee that is set up. We will have a Committee consisting of 11 MLAs because that is how we operate. There are 10 MLAs on the Policing Board, and there is an issue over whether this organisation can afford 21 MLAs dealing with policing and justice. There is reluctance because one of the successes of the Policing Board is that its members have had direct political input. There is an issue, purely in our own timing, as to whether we can afford to keep them there.

We still need a political influence on the Policing Board, because it relates directly to the Assembly. Whether we can have political appointees, rather than elected representatives, is another debate. However, it is a key debate as to how the devolution of policing functions, and we must have it. No doubt Sir Hugh Orde and the Policing Board will have views on that.

If I may move on, money is probably the biggest issue. As you know, I spent four years on the Policing Board when the police were getting £720 million — I understand that that amount has gone up. That is an enormous sum for such a small place. There are plans to cut the police budget back. If there is devolution of policing and justice, there will be enormous pressure on the Administration to put money into health and other services rather than policing. Have you had discussions with the NIO to properly assess that you will get the full package that you are entitled to after the transfer of powers? Have you established that the NIO and the Government in London will not try to short-change the PSNI and the board on the allocation of new funding that will come into our block grant when the transfer occurs? What discussions have you had to try to ensure that you will not be short-changed amid smoke and mirrors during the changeover?

Sir Hugh Orde:

I have not had any specific discussions, because that is a matter for the politicians and for debate between the Minister of Finance and Personnel and the Executive. I assume that the Assembly would be reluctant to take responsibility for policing if it felt that it was not getting adequate money to deliver the service. We will deliver the service with whatever moneys we get. The question will be how effective we can be.

Over the last five years, we have delivered substantial evidence that we can deliver value for money. We have delivered on efficiency savings, the Gershon savings and additional savings. We have reduced costs substantially through reducing the number of our colleagues in the full-time reserve force, which will eventually be reduced to zero. We can prove that we can deliver an ever more effective service with fewer resources. However, there will be a bottom line where something has to give, and that will mean losing people, because so much of our budget goes towards paying people.

In reality, up until 2011, no one will want to move away from having 7,500 police officers. That is too important for too many reasons. However, after 2011 there will be debate about the numbers of police officers, because, as Mr McFarland rightly said, we have far more officers than there would be in a normal policing environment. The important point is that we have not achieved a normal environment yet.

As the Committee will know, we submit our annual request for money through the Policing Board, where it is subject to rigorous debate, and the Government make their decision. We have just received that decision, and we must cut our cloth to deliver the service within the allocation. I imagine that the process would be no different if the money was held here. We would make the same approach, and the Assembly would decide what it would give us to deliver an effective police service.

The Deputy Chief Constable:

The only future discussion on finance that has been supported in any way, as the Chief Constable has said, is the comprehensive spending review (CSR) settlement, which takes us to the end of the financial year 2010-11. We have just received a financial settlement from Treasury for those three years. Mr McFarland was correct; there is a considerable reduction in the amount available, and we will have to make substantial savings over the three-year period.

However, that is as far as discussion has gone about whether health, education or other Northern Ireland matters would have a call on money that has to date been going to PSNI. The Government will only ever commit to a three-year discussion on finance. As the Chief Constable said, it is likely that we will not have an establishment figure after 2011. At present, we have an establishment figure of 7,500, but that will be history after March 2011. We will have a budget, within which we will have to work, and that will affect the number of police officers.

Mr McFarland:

Is there any recognition that, although the PSNI was initially asked to deal with the past through its current budget and to see how that went, it is now clear that the Police Ombudsman’s office is starting to look at about 67 cases, and large inquiries, such as the Corry Inquiry, will be coming through?

With so many people off, do you expect to be given additional funds to employ others in order to alleviate the present policing drama?

Sir Hugh Orde:

We will reach a point where the situation becomes critical.

The Historical Enquiries Team is separately funded, and after a long and challenging debate that has been clarified. I am confident that it can carry on its business, which is important, because it is actually delivering outcomes to families. I read the latest report last weekend, and the process is coming through with some people getting some form of comfort and satisfaction from the discussions that they have had with members of that team.

The public inquiries are funded from current expenditure, which also pays for police officers. In essence that is an opportunity cost where officers are moved from operational, investigative work and some of the more complicated intelligence work into dealing with public inquiries, but there is a substantial increase, for example, in costs and legal fees — paying for counsel’s advice, additional lawyers and, indeed, appointing an additional Assistant Chief Constable, who does nothing but deal with issues that arise from the past. If Government appoints public inquiries it is absolutely right that institutions, such as the police, service those inquiries. However, the cost impacts on the here and now, which is why it is important that Stormont consider that as a whole, because it will be a very real issue in the future as inquiries are not cheap.

The Chairperson:

You said that in 2010-11 you will be moving from an establishment-based budget to a budget that determines what the establishment might be, rather than the other way around. Who will make that decision? Is it already made, or are we working on an assumption? Where does that originate from?

The Deputy Chief Constable:

That is my assumption, and I am basing it on the fact that a Treasury-commissioned review of our numbers, the value for money report, reported to the Northern Ireland Policing Board some time back and recommended a number much below 7,500.

However, I am also basing it on general practice in policing within the UK where there is a budget and not an establishment. Northern Ireland is probably one of the last, if not the last, organisation that has an establishment. Policing used to be run by having an establishment, and then achieving the budget to match it and pay wages, etc. In England and Wales that is gone. They receive a budget and then it is up to them whether they can supplement that budget in some way and employ more police officers, and that is why pre-setting has become very important in finance. That does not exist in Northern Ireland at the moment, but whatever financial arrangements exist after 2010-11, they will probably be budget based — although that is purely my reading of the situation.

Sir Hugh Orde:

I believe Paul is right. While the figure of 7,500 came from the Patten Report and is not enshrined in legislation, everyone quite rightly stuck to that principle, and it has played a critical part in getting us to where we are. Flexibility in these issues is quite difficult. Efficiencies around civilianisation are very difficult when you have to maintain 7,500 people, because you cannot replace police officers with support staff in order to save money to deliver a more effective service. Paul is right — that is probably where it will go.

Mr McCausland:

You mentioned earlier that your comments regarding the month of October for devolution of policing and justice were based on conversations with a wide range of people. What reasons did they give for October being a better time than the spring?

Sir Hugh Orde:

I did not say October was the best time, I just did not think that devolution was achievable in May. Some people said, and I do not know if they were being amusing or not, that they thought that any date set by the British Government was not going to happen as a matter of principle, and others thought that by the time this had worked through and people had more confidence it would be later than May. It was as simple as that.

In fact what I did say was:
“Do I see it in my personal judgement? I am not sure I see it in May, but I think people will start asking questions if it hasn’t happened by autumn.”
That was based on feedback from people reflecting what Paul said. People see devolution as the next important step in Stormont taking control of its own destiny. Equally, I fully understand the point that was made by Ian and others that some people would be quite happy for the status quo to remain.

Mr McCausland:

What would happen in five or six months that would make a difference?

Sir Hugh Orde:

I have no idea. I think that there is something to be said about building confidence. If one considers policing trends, as I said in my opening statement, November had the lowest crime figures for the past five years, and December is looking good. Indeed, yesterday, Paul Leighton and I were considering crime trends with our district commanders, and the efforts of our officers to deliver an increasingly effective service is impacting across the peace out there. I understand the concerns in some rural and built-up areas, but, generally, people are judging us on what we are delivering now, and, over the past five years, although it has been a rocky ride on some occasions, we have consistently seen a positive trend. The longer that that trend continues, the more likely it is that there will be support for devolution.

Mr McCausland:

Finally, the continued existence of the IRA army council was mentioned earlier; there is clear guidance that there was republican involvement in the murder of Paul Quinn; in the Markets area, there was a situation in which a senior republican was involved in an incident which also involved one of Robert McCartney’s sisters, and no information about that was forthcoming from republican circles; and, in the west of the Province, several Sinn Féin councillors were unwilling to sit on district policing partnerships. Does that emerging pattern — and I do not wish to prolong matters with other examples that come to mind — not militate against the acceptance of any devolution of policing and justice by the people in Northern Ireland? Do you agree with that?

Sir Hugh Orde:

Anything that makes Northern Ireland look different makes the devolution of policing and justice more difficult. Having said that — and you did not refer to the fact that dissident republicans are determined to attack and shoot my officers when they are off duty, which is a major issue for policing — should any of that stop the devolution of powers? I do not think that it should.

In a way, the aim of the dissident-republican threat is to prevent things happening that the overwhelming majority of normal, ordinary people in Northern Ireland want. My commitment is to stop those criminal lunatics before they actually succeed in killing someone, and that is what we are determined to do with the assistance of our colleagues in MI5.

Other individual cases make the devolution of policing and justice more difficult because people will be worried. In attempting to give reassurances, it is hard to talk about individual cases; however, we are awaiting prosecutions in some, and in the Quinn murder, to which you referred and which, of course, falls under another jurisdiction, there has been substantial co-operation between us and An Garda Síochána. Can we deal with that? Yes we can, but, you are right, it makes it more challenging.

Mr McCausland:

The reason that I did not mention the despicable attacks on the police officers was because the people who carried them out do not have any political representation in the Assembly, whereas others —

Sir Hugh Orde:

I do not believe that they have the support of anyone in Northern Ireland, and I do not think that they should be allowed to prevent things happening in Northern Ireland that people want to happen.

Mr Attwood:

I have three questions that relate to what the Chairperson and Alan McFarland were saying. The HMIC Report, ‘20:20 Vision – A Value for Money Establishment Review of the Police Service of Northern Ireland Post 2010/11’, said that, after 2010-11, there might be fewer than 6,200 police officers. In the more normal situation — as the police see it — and given the budgetary issues that have been highlighted today, is it the PSNI’s view that 6,200 full-time police officers is the number that the communities in the North can expect to see in the second decade of the twenty-first century?

Sir Hugh Orde:

I am not keen to speculate on the situation in Northern Ireland in 2010-11. If this were an entirely normal society with no residual effects from the so-called troubles, one could deliver an effective policing service with that number of police officers. For example, that is more than Northumbria currently has, and our geography is substantially larger. That figure is potentially there or thereabouts. Having said that, I do not wish to second-guess the situation, and it would be a high-risk strategy to move too quickly. We have got to where we have got to because we have managed to deliver an evermore effective service against the backdrop of a challenging budget and challenging demands for more efficiency, less waste and more dynamic ways to do things. However, we have managed to deliver that in spite of the dissident republican threat, the terrorist threat and all the other things that, sadly, do not make us entirely normal yet.

I am very worried about a sudden cut in numbers. There is also the issue of the logistics involved in physically reducing personnel from 7,500 to 6,200, with no sign of a Patten severance package — for want of a better description — which is not realistic and would take a huge amount of time. I do not want to alarm people by stating suddenly that I think that that is where police numbers are going. If we had an utterly normal society, with no residual concerns, which includes dealing with the past, a reasonably effective service could probably be delivered with 6,200 officers.

Mr Attwood:

That is a forthcoming statement because the police have not said that before. The figure of 6,200 was based on flawed evidence and the real figure is higher than that.

If people are prepared to accept and share policing responsibility on the Policing Board, they are capable of sharing legislative responsibility in this Building on policing and justice matters. Therefore, policing and justice should be devolved as quickly as possible. The real question is one of how people live up to their policing and justice responsibilities. Just as some cases can define the worst of the past, they can define the best of the present.

On 4 October 2007 at a Policing Board meeting, Assistant Chief Constable Sheridan, in relation to the murder of Robert McCartney, said:
“I can confirm that the Senior Investigating Officer did have a number of working meetings with representatives of Sinn Fein at their request. At the last meeting, Sinn Fein members agreed to look at encouraging members of their party and witnesses to come forward. I can say that as of this date, no new witnesses have come forward.”
Without prejudicing the ongoing investigation and prosecutions, is it still the case that in January 2008, no new witnesses have come forward?

Sir Hugh Orde:

Yes; to the best of my knowledge. However, I caveat that answer by saying that I have not been updated and need to check with Assistant Chief Constable Sheridan.

Regarding the figure of 6,200, I will deliver policing with whatever resources I am given. If I am to have 6,200 officers, I was making the point that I can deliver a service with that number of people. A normal society means having full community support. That is how it works; it is not police policing communities, but rather police and communities working together to reduce crime. The caveat is that total support and a normal society mean that engagement takes place across the community. That is important.

Mr Attwood:

I agree, and there is growing evidence of people across communities co-operating more with the police. However, there is also evidence of grave matters from the past that still exist, an example of which is the Chief Constable’s confirmation — to the best of his knowledge — that no new witnesses have come forward in the McCartney case.

The police and the Policing Board have done some good work on national security and the creation of a structure around that to ensure that the worst excesses of the security services do not visit the North. Although the large majority of agents are retained by the PSNI, a small minority are retained by the security services. Therefore, in our new political era, the national security agency MI5 continues to retain a small minority of agents. Why? How many are there? What is their influence within organisations in the North? Regardless of their number, can the Chief Constable explain why MI5 is running agents in the North? Given the concerns across communities over who ran agents, how many there were and what they did over the past 35 years, why does an agency, with no accountability in the North, continue to run agents here?

Sir Hugh Orde:

Regarding accountability for national security, although I can answer questions from the Policing Board on the operational impact of any activity, provided that it does not compromise national security, I suspect that Mr Attwood knows that I cannot answer on behalf of MI5.

It was right to transfer responsibility for national security from the office of Chief Constable to MI5. That was an essential development because it allowed this debate to take place and it addresses international terrorism — Northern Ireland is not immune to the new world. The way to deal with international terrorism, as it was to deal with threats to national security here, whether we like it or not, is through using informants. That is the only way to interdict and prevent the worst atrocities and excesses of those lunatic groups, be they international or domestic.

I cannot answer the question about numbers, as Mr Attwood will be aware — not that I know how many MI5 informants exist. That is a matter for MI5. Mr Attwood is right: I can confirm that the vast majority of informants remain solely my responsibility and are subject to substantial supervision and review and full compliance with the Regulation of Investigatory Powers Act 2000. That is something that we have taken extremely seriously over the past five years, and which led directly from the Stevens investigations and recommendations with which I was directly involved before I took over here. The surveillance commissioner is more than satisfied with the way in which we handle informants.

Mr McCartney:

I have a number of questions about the Committee’s terms of reference. There is a tendency among members to stray into areas that are not within the Committee’s remit. I am not going to do that but I may do so on another day. If I have picked up the Chief Constable correctly, am I right to think that the PSNI has absolutely no concerns about meeting the May deadline, as proposed at St Andrews, for the transfer of powers?

Sir Hugh Orde:

As I said in my introductory remarks, that is a matter for others. I hope that those remarks gave members some comfort. I will deliver a police service regardless of when policing is devolved. We have delivered for five years and will continue to do so. If power is devolved in May, June, July or August, we will work with whatever decision is made because we adhere to democratic principles.

Mr McCartney:

Is the PSNI organisationally ready?

Sir Hugh Orde:

I have no difficulty with that.

Mr McCartney:

The Assistant Chief Constable said that devolution would enhance public confidence in policing structures.

Sir Hugh Orde:

Mr McCartney has just demoted my deputy, but I think that that is what Deputy Chief Constable Leighton said.

The Deputy Chief Constable:

I said that it was an example of how public confidence could be demonstrated.

Mr McCartney:

That is fine. The letter that the PSNI sent to the Committee asked for an additional term of reference and mentioned defining roles and responsibilities.

The Deputy Chief Constable:

Clarity is important to us. The Chief Constable has said that we do not want something that duplicates or increases bureaucracy in policing. We are the most overseen police service that I know of, and it takes time and effort to service all the oversight. The design of policing structures is not a matter for the PSNI. However, when designing those structures, the Committee must bear in mind that it should not create a lack of clarity as to whom we are responsible, to whom we report or from where the bureaucracy comes. An increase in bureaucracy takes more resources away from service provision. We want to have as many people as possible spending time and effort on providing a frontline service to the people of Northern Ireland to ensure that they get the policing that they deserve.

Mr G Robinson:

I want to follow up on some points that were made by Mr McCausland. From a unionist perspective, the one matter that stands out in the devolution of policing and justice is the attacks on Orange Halls. From a public confidence point of view, very few arrests have been made. When will that be put right? There have been many attacks in the past few months, but few people have been apprehended. In that situation, and given that the structure of the IRA army council remains intact, how can unionists have confidence? That situation does not help us to take a decision on the devolution of policing and justice.

Sir Hugh Orde:

I understand that, and I take the attacks on Orange Halls very seriously. I have met Orange Order representatives on a number of occasions, as have Deputy Chief Constable Leighton and my regional Assistant Chief Constables. I hope that we can provide some reassurance in that we have put substantial resources — as best we can — into dealing with what is insidious and horrible behaviour by people who are intent on destabilising the situation. We understand that, and that is why we take the matter so seriously. I share Mr Robinson’s concern that we have not been successful in bringing people to justice. To some extent, that is a result of the sporadic nature of those offences. I do not want members to think that the PSNI does not take the attacks seriously; we are considering ways to deal with them.

Issues such as the attacks on Orange Halls and the IRA army council will be part of the mix around confidence in the current situation and the timing of the devolution of policing and justice, which is a matter for the Assembly and not for me. The timing of devolution must also be balanced against some of the comments that I made in my opening statement about the view — although it is mixed in different areas — that policing is delivering and people are confident that we can deliver an effective police service. It is a balance.

Alex Attwood and other members mentioned the threat of dissident republicans: we can deal with that regardless of whether policing and justice are devolved. It will not make a huge difference to how we go about our business of reducing crime.

The Chairperson:

Do you want to mention any confidence-related matters that we have not touched on this morning?

Sir Hugh Orde:

No. I hope that we have given a broad overview of how we see the situation. To get a view of what people are thinking, one has to rely, to some extent, on measures such as surveys. My senior team and I speak to many people, and the consensus is that devolution of policing and justice needs to happen, but the timing is a matter for others. The PSNI — a legitimate constituency — does not have any difficulty with the devolution of policing and justice. We continually underestimate the incredible flexibility of our officers and what they have been asked to accept in the past six years as policing has moved on and huge changes have taken place. I have nothing to add.

The Chairperson:

In preparing for the devolution of policing and justice, is there anything with regard to the working relationship with the gardaí that the Committee should consider. Will there be any changes in how the forces co-operate and work together?

Sir Hugh Orde:

I do not think that devolution would cause any change in the process. I will see the Commissioner at the end of this week. We meet regularly, and that is mirrored in the organisation at different levels where officers discuss anything from border relationships to daily business.

The Deputy Chief Constable:

We do an incredible amount of work with the gardaí. The last meeting about the Quinn murder was on 28 December. There are ongoing meetings about various cases and, more generally, about training, drugs, road traffic accidents and day-to-day policing. There is also a secondment arrangement between the two organisations; some PSNI officers are starting secondments with the gardaí this week. There are also exchanges between our colleges. I do not think that any of that will change; it is on a police-to-police basis. There are several joint conferences every year, and the continuance of those might be considered if the devolution of policing and justice proceeds because they involve the South’s Department of Justice, Equality and Law. That is the only possible change that I can think of; the day-to-day relationship is extremely good.

The Chairperson:

I thank you for your time this morning and for the open and full replies that you have provided to the Committee. We might return to you with issues that arise in the Committee’s proceedings. I ask you to convey to all your officers our best wishes for the coming year.

We were due at this stage to have a session with officials from the Office of the First Minister and deputy First Minister (OFMDFM). A letter arrived yesterday, and that has been circulated to members by email and, this morning, in hard copy. At this stage, I do not propose to have a discussion on what we do next in relation to OFMDFM. The NIO officials are waiting outside, so I would prefer to proceed with that evidence session and follow that with a discussion on the next steps with OFMDFM.

I welcome Peter May and Clare Salters to the meeting. The Committee appreciates the time that they have taken to attend. Before we proceed, I ask members to declare any relevant interests that they might have. I declare an interest as a member of the Northern Ireland Policing Board and the Privy Council.

Mr I McCrea:

I declare an interest as a member of Cookstown District Policing Partnership.

The Chairperson:

There are no further interests to be declared. The Committee thanks the NIO for the responses that it received recently from Simon Marsh on several issues that it had raised. I am sure that those responses will prove helpful in the final stages of the Committee’s inquiry into the devolution of policing and justice powers.

Do you want to make any opening comments? Are you happy for the meeting to proceed with Committee members raising their issues of concern and points on which they seek further clarification?

Mr Peter May (Northern Ireland Office):
The NIO understands that one of the key areas that the Committee wants to explore is how the NIO is proceeding with the programme. It might be helpful if we were to make some introductory remarks about that progress.

The Chairperson:

Yes, thank you.

Mr May:

It might be useful to highlight the nature of machinery of Government changes in order to inform the discussion and to highlight the key areas as the NIO sees them.

The number of required actions to make machinery of Government changes work is quite small. Consequently, in Whitehall or elsewhere, machinery of Government changes can typically take place at short notice and with limited prior planning. One example of that is the decision to transfer responsibility for prisons and probation in the UK Government from the Home Office to the Ministry of Justice in 2007. That decision was announced six weeks prior to its taking effect. It is notable because the change was far more significant with regard to the staffing numbers and budgets that were affected than the devolution of policing and justice would be. Although, clearly, there were not the same political issues associated with it.

It is, however, a feature of all machinery of Government changes that certain organisational aspects are dealt with after the changes have taken effect. Therefore, although more of those changes must be included in the programme, because it involves a transfer of powers from the UK Government to a devolved Administration, it is not the case that every matter must be resolved in advance of devolution.

Therefore, with regard to what is essential for the delivery of devolution — what is on the critical path — the key requirement is political agreement in the three areas that the Committee addresses in its work: which powers are devolved to which Department, within what timescale, and with what ministerial responsibility. Flowing from that are three aspects of the programme that the NIO is running that are critical to delivery. It may be useful to discuss each of those in more detail. In summary, they are the legislative, administrative and organisational steps that are necessary for devolution. It is clear that devolution cannot happen if the legislation that transfers the functions and creates the new justice Department is not in place. After my remarks, Ms Salters will say a little more about where the NIO is on legislation.

The second area relates to administrative arrangements. They are the necessary underpinning of the legislative changes, which will be made — if they have not been made already. They cover such matters as governance arrangements and protocols. For example, the creation of the Courts Service as a Next Steps agency, which is one of NIO’s working assumptions, means that it would be proper and appropriate to implement a framework document that sets out how that would work from the point of devolution onwards. A draft of that framework is in preparation. There is a standard template for such things. Similarly, the working assumption is that the Public Prosecution Service will become a non-ministerial Department. A framework document would be the appropriate governance mechanism to put in place there.

We are considering developing protocols in four main areas: judicial independence; prosecutorial independence; policing arrangements; and national security arrangements. In each case, the protocols will build upon the agreed principles and legal framework that is already in place. They will be public documents that will set out how things will work in practice. We plan to share the drafts initially with the officials in the Office of the First Minister and deputy First Minister with whom we are working. It is important that those protocols are in place from day one.

Finally, there are the organisational aspects to the change. They need to be fully functioning organisations capable of delivering the functions allocated to them and of responding to ministerial priorities from day one. Those organisations must be staffed and funded to an appropriate level, and work is ongoing to deliver that.

Before Christmas, the Secretary of State announced the comprehensive spending review settlement for the Northern Ireland Office. He said that it is a good settlement that provides a sound basis upon which to enable the devolution of justice and policing.

The next step is to separate that budget between the proposed Department of justice and the NIO. We will take that process forward in the coming months. The Department of Finance and Personnel in Northern Ireland and the Ministry of Justice in Whitehall will be involved to ensure that it is done in a way that is understood and accepted.

The Secretary of State is committed to the Northern Ireland Office’s being ready to meet the target of enabling the devolution of justice and policing by May 2008. Against each of the three critical path areas that I have outlined, we are on target. In addition, we are making good progress in a range of other areas where change is necessary. In short, the programme is on course to deliver by May if necessary, based on a series of working assumptions. Those assumptions must be reviewed when political agreement has been achieved. The target of May 2008 takes account of the end-March Assembly report. It will also provide time for any adjustments to be made if an agreement is reached in that time frame.

There is a range of other useful, important activities for preparing the ground for devolution and for ensuring that there is a clear strategy for how those aspects that do not need to be resolved from day one will be resolved thereafter. Those include a range of personnel, IT and other matters. We can address those issues during questions if the Committee wishes. Clare will say a little more about the legislation, which is one of the critical aspects.

Ms Clare Salters (NIO):

The Secretary of State has explained in writing to the Committee that it is our intention to share an indicative draft of the two main pieces of legislation with members at the beginning of February. It will not be possible to have the legislation in final form at that stage, not least because we cannot finalise the legislation until the Assembly has decided on the matters that it wants to have devolved to it. However, we are working on the assumption that powers will transfer broadly along the lines set out in the February 2006 discussion document. We thought that it would be helpful to the Committee in finalising its deliberations to see an illustration of what the legislation would look like.

The two main planks of the legislation are an Order under section 4 of the Northern Ireland Act 1998, which would amend the list of reserved items in schedule 3 to the Act. When something ceases to be reserved, it becomes devolved. That will set out the main transfer of matters from the reserved to the transferred category.

The second and larger — but significantly less exciting — piece of legislation is an Order under section 86 of the Northern Ireland Act 1998. It goes through all the functions currently exercised by the Secretary of State or other UK authorities where their devolving transfers them to the appropriate Northern Ireland authority. It will be a long and exceptionally boring document that will go through every piece of statute highlighting the need to delete references to the Secretary of State and to insert “Department of Justice” or equivalent. We cannot finalise the text of that until we find out the correct title of the Department that the Assembly chooses to create. However, for the sake of having something to draft, we have used “[Department of Justice]” as an illustration.

The legislation is particularly dry even by legislative standards; therefore, we intend to publish with it a commentary to help people who have an interest in the legislation, particularly outside the Committee, to understand what it means and what it delivers. Our aim is to get that commentary to the Committee early in February.

The Chairperson:

Thank you both for that. When that document passes over to the Committee and the Assembly, will there be a formal consultation process, or is it simply a demonstration of the work that is being done in preparation for devolution? Does the NIO plan to have a formal consultation process with political parties that would include the usual procedures at Westminster?

Ms Salters:

There will not be a formal consultation process; the product would not, at that stage, have been proofed by parliamentary counsel or the Office of the Legislative Counsel in Northern Ireland. It will simply be an illustration of what the legislation is likely to look like. Given that the legislation is simply to give effect to the resolution that the Assembly may pass in due course, the NIO does not plan any further consultation than that. The legislation will be adapted in the light of what the Assembly resolves. It is different from other legislation that goes through and does not come on the foot of an Assembly resolution that makes specific requests.

The Chairperson:

The NIO has requested that the Committee report to the Assembly by 29 February 2008; and the Assembly is scheduled to report to the Secretary of State before the end of March. In the light of those timescales, will the NIO be able, realistically, to complete the legislative process in time to allow for the devolution of policing and justice by May 2008?

Ms Salters:

We are confident that we can deliver legislation in May if that is what the Assembly requests. Aside from the timing, it will help to have clarity on the substance of what the Assembly is likely to want transferred and the structure and the name of the Department. Last year, a memorandum from the NIO to the Committee said that our working assumption is that all the new powers will transfer to the proposed Department of justice unless legislation has already provided for powers to transfer to, for example, the Office of the First and deputy First Minister in the case of judicial appointments. If the Assembly takes a different view about where it wants powers to be transferred, it would be helpful for the NIO to know about that so that we can adjust the legislation accordingly. The sooner that we have a steer from the Committee on the likely direction of it and the Assembly’s thinking, the less midnight oil will need to be burned to achieve the May deadline.

The Chairperson:

The Committee has been liaising with the Office of the First Minister and deputy First Minister about the arrangements and preparations for devolution, in particular the role that the First Minister and deputy First Minister will have in the appointment of the Attorney General. The paper that has been provided to the Committee is largely silent on where the Public Prosecution Service (PPS) might be located. The paper does not address the critical issue of how a Minister or Ministers for policing and justice might be accommodated in the Executive. Can you confirm that the Secretary of State expects those matters to be addressed by the Assembly in its report to him, rather than the NIO introducing proposals?

Ms Salters:

Yes, I can confirm that.

Mr May:

That is true. We have put a suggestion to the Office of the First Minister and deputy First Minister that the resourcing of the PPS, as a non-ministerial Department, might be best be done through OFMDFM, rather than by a Department of justice. The Committee has already taken evidence from Sir Alasdair Fraser, Director of the Public Prosecution Service, who has set out in some detail the reasons that underpin that. The NIO has had no indication from the First Minister and deputy First Minister about their views on that, but we have put that proposal to them. It is within the Committee’s remit to bring forward thoughts and proposals.

The Chairperson:

Equally, you also expect the question of the departmental model and how the Minister or Ministers will be appointed to come from the Committee.

Mr Attwood:

I have a number of questions, which should not delay you too long. The purpose of my first question is simply to clarify a point in my own mind. I understood that the North/South justice agreement would fall with devolution and that a new agreement would have to be put in place. However, evidence was given to the Committee in a briefing paper that that is not the case. It seems that at the point of devolution, some parts of the North/South justice agreement would continue to be in operation. Which is correct?

Mr May:

The legal advice that we have received is that formally the agreement does fall. The agreement is between the Minister of the British Government with responsibility for criminal justice matters in Northern Ireland and the relevant Minister in the Republic. As there would not be a Minister for the British Government responsible for criminal justice in Northern Ireland, the agreement would formally fall. However, there would be nothing to prevent all the areas under the current intergovernmental agreement being pursued on a North/South basis thereafter. We have set out for the Committee the work that is being done on a North/South basis under that agreement.

Mr Attwood:

Thank you for that clarification, because there was a bit of a muddle about that issue. So, if there is devolution on 1 May, can the Assembly, if it so chooses, have in place a new justice agreement that is modelled on the old or an advance on the old?

Mr May:

I do not see why not, but that may well be a matter that the Minister of justice — or whatever the title of the new Minister will be — would need to take the lead on. It would be an agreement between two Ministers, rather than an agreement between the Assembly and the Minister in the South. That was my understanding of the situation.

Mr Attwood:

We can work on that in the Committee.

My second question is about finance. I note that a conversation is currently ongoing between the NIO and those involved in justice issues as to how the budget might be split following the CSR. That would be very interesting. Will the Department of justice’s budget — whatever number of millions that may be — be transferred in the Exchequer block grant to the Northern Ireland Assembly? Could the Assembly then rework the justice element of that budget in the CSR in a way of its choosing? For example, if it decided that it wanted to subvent £5 million to health, it could do that, could it not?

Mr May:

Yes, the budget for justice will be added to the Northern Ireland block grant, and it will be for the Executive and the Assembly to decide how best to spend that money.

Mr Attwood:

The third question goes back to the Chairperson’s question about where funding for the Public Prosecution Service will be sourced. In written evidence to the Committee, the chief inspector of the Criminal Justice Inspection said that he felt that the budget should fall within the remit of the Ministry of justice, not within OFMDFM’s remit. I was unable to attend the Committee meeting at which Sir Alasdair Fraser gave evidence, but I vaguely recall that he said that the budget should fall within the remit of OFMDFM. Why should it be within OFMDFM rather than within the justice Ministry itself, as the CJI recommends?

Mr May:

There are two basic reasons why we think that it would make sense for responsibility for the budget to lie with OFMDFM. The first is that while the relationship between the Public Prosecution Service and the Attorney General will change at the point of appointment of a local attorney general for Northern Ireland under the terms of the Justice (Northern Ireland) Act 2002, the attorney general will still appoint the director and the deputy director of the Public Prosecution Service and will have various responsibilities or consultative roles with respect to the Public Prosecution Service as it moves forward. The attorney general will be appointed by the First Minister and Deputy First Minister jointly, and our working assumption is that the post will be funded through OFMDFM. Therefore, there seems to be a certain logic to the financing — which is only the resourcing that we are talking about here — sitting in the same place.

The second reason is to ensure that, as in other jurisdictions, there is a separation of powers and, therefore, no perception that the ability to fund the Public Prosecution Service and the Court Service from the same ministerial authority could be used in any way to influence the independence of those functions. Due to the arm’s-length relationship that the Public Prosecution Service will have with the Minister, it is primarily an issue of perception, but it is still relevant.

Mr Attwood:

Is that the practice in England?

Mr May:

In England, the Crown Prosecution Service is superintended by the Attorney General and the funding flows through that route, whereas the Ministry of Justice funds the courts.

Mr Attwood:

You said that the sooner the Assembly makes some decisions on structure, the better it will be for the NIO’s drafting purposes. As we prepare for the devolution of policing and justice and move towards making our final report, are we missing anything? Based on your review of the evidence sessions, do you need to hear from the Committee on anything else? Alternatively, is there anything that you consider that we would be best advised to examine?

Mr May:

I have not carried out a complete review. If you wish us to assist the Committee Clerk, we are happy to work with him. You have heard evidence from a wide range of individuals who represent all the main elements of the policing and criminal justice field, and a large number of the relevant issues have been raised. As I have not carried out a review to assess whether all the issues have been covered, I will not commit on that.

Ms Salters:

I agree, and, if it will help, I am also happy to work with the Committee Clerk on a wider analysis. Perhaps when you see the draft legislation based on our working assumptions, the number of square brackets will trigger further thought.

Mr McFarland:

There seem to be three alternatives as to how we find a home for the transfer of policing and justice: it becomes part of OFMDFM; there is an internal review of the Departments by OFMDFM, or Westminster creates, presumably by an Order in Council, an extra Department.

It was suggested that the final option would be difficult because of how long it would take to process. Should the Assembly decide that it wants an additional Department, thereby increasing the number of Departments to 11 rather than the current 10, how easy would it be for Westminster to implement that? I understand that it must be done through Westminster in advance of the devolution of policing and justice.

Ms Salters:

Westminster does not create the Department: the Secretary of State would increase the number of Departments. At present, the statute creates a bar on the Assembly creating more than 10 Departments in addition to OFMDFM. The Secretary of State, by Order, could increase that limit should the Assembly request it, although he would need to consider the wisdom of doing so. If that is the Assembly’s wish, it could be done fairly quickly and easily.

Mr May:

The creation of the justice Department would be a matter for the Assembly.

Ms Salters:

That is correct. It would be created by an Act of the Assembly.

Mr McFarland:

The authority to create an additional Department comes from the Secretary of State.

Ms Salters:

The authority to create an additional ministerial office must come from Westminster.

Mr McFarland:

You have a scheme whereby the Court Service would become an agency before the transfer, and would move across as a new system. As you know, the Committee heard from the Lord Chief Justice, who reckoned that we should set up something in advance of that. He suggested that the Lord Chief Justice should chair a board of a completely hands-off organisation in which no politician should be involved.

At that time, it was my understanding that that would require legislation. Once devolution of policing and justice matters had taken place, and if the Assembly wished to create a completely arms-length body, it could do so afterwards. However, if the Assembly wished to put that body in place beforehand, legislation from the UK Parliament at Westminster would be required. Again, there was a suggestion that that would take some time as a timeslot in the UK Parliament’s calendar must be found before createng that body in advance of devolution of policing and justice matters. Can Mr May provide the Committee with an update on that matter?

Mr May:

It would require primary legislation to make that change to create, what is essentially, a non-ministerial Department, for what is now the Court Service. The Secretary of State has taken the view that it would not be appropriate for him to legislate on those matters in the teeth of devolution, and that it would be more appropriate for the Assembly — if there was a wish to move down that path — to take that step after devolution.

Mr McFarland:

That is quite useful.

Mr May:

In creating an agency, that is without prejudice to the longer-term position of the Court Service.

Mr McFarland:

Mr May will know that there were enormous political rows, two or three years ago — in the Policing Board and elsewhere — when it was discovered that there was a suggestion, with regard to criminal justice, that the UK’s and RoI’s civil servants should continue working-up cross-border criminal justice issues. At that time, there was a concern that it was a plot to harmonise North/South legislation, and so forth. Mr May must remember that matter because I remember that he, or Ms Salters, appeared before the Policing Board at that time, on that matter. What is the current position as regards to civil servants working up that cunning plan for North/South bodies in advance of criminal justice matters being devolved to Northern Ireland?

Mr May:

I am not sure. I was not in the Northern Ireland Office at the time to which Mr McFarland refers. There is currently an intergovernmental agreement on policing that makes arrangements for the two police services to co-operate and to create protocols with regard to a range of issues — mainly personnel issues to do with secondment, lateral entry and a range of other issues. The proposal is that that agreement will remain between the two Governments. However, the actions that will be taken under that agreement will be devolved to a Minister of justice, or whatever that post might be called. Similarly, on the criminal justice side, we have talked about the intergovernmental agreement on criminal justice. There are, to my knowledge, no other North/South aspects that are being worked up by anyone at the moment.

Mr McFarland:

Does Mr May not remember the row? We had a major row about the matter. Mr Attwood will confirm that because the Policing Board wailed and gnashed its teeth over it for a long time. In 2003 or 2004 there was an agreement between the British and Irish Governments. At the bottom of the agreement document, in very small print —

Mr Attwood:

The agreement was made at Hillsborough.

Mr McFarland:

Hillsborough. It was stated, at the bottom of the agreement document — in very small print — that civil servants in both jurisdictions would work together to carry forward the development of criminal justice co-operation between the two states. It caused a row at the time because it looked as if it was a cross-border body in the making and that an attempt was being made by the Governments to fire up a load of bits and pieces in advance of Northern Ireland’s politicians getting anywhere near criminal justice. We would then have — when taking over responsibility for criminal justice matters — a whole raft of initiatives and agreements in place in which we, as politicians, had no say.

It caused a row at that time and it was supposedly put on hold. Then, we discovered that it was ongoing. However, when the board reported on it a year later we discovered that nothing significant had come out of it. My question is where have we got to now with regard to the significance of the material that is coming out of the two jurisdictions’ Civil Service working group in taking forward criminal justice co-operation?

Mr May:

There is an intergovernmental agreement on co-operation on criminal justice matters. That was signed by the Northern Ireland Justice Minister, David Hanson, and his counterpart in the Republic of Ireland, Michael McDowell on 26 July 2005. It sets out that there will be regular meetings of Ministers and of officials under the auspices of the British-Irish Intergovernmental Conference. That work has been ongoing since that time, examples of which include probation arrangements whereby prisoners are released in one jurisdiction but reside in another, and the development of notification systems should registered sex offenders move from one jurisdiction to the other. In response to an earlier question I want to make it clear that the intergovernmental agreement falls at the point of devolution of policing and justice powers to the Assembly.

It is then a matter for any incoming Minister with responsibility for policing and justice to take decisions about how best to proceed with criminal justice co-operation in the future.

Mr McFarland:

We are aware of what has been made public; those issues that you have just mentioned have all been made public and no one has a problem with that sort of co-operation. Therefore, is it correct to say that there is nothing else and no other discussions or cunning plans that we are unaware of that have been agreed privately by the two jurisdictions and that have taken place under the auspices of this co-operation between the civil servants?

Mr May:

Not to our knowledge.

Mr McFarland:

That is fine. I simply wanted assurances. I want it on the record of Hansard that we are not expecting any surprises.

The Chairperson:

There is no “Baldrick” option in the NIO.

Mr McCartney:

It is so cunning that no one knows about it.

Mr May:

There will be no surprises.

The Chairperson:

We have covered most of the areas this morning that we were keen to raise with you. Just returning to the North/South issues for a moment, I am clear about what happens with the agreement on criminal-justice matters. However, you did say in response to a question that policing co-operation would continue under the existing intergovernmental arrangements. Therefore, that will continue but the responsibility for its implementation falls to the potential new Minister and the potential new Department.

I want to be clear, if policing and justice powers are devolved to the Assembly, and yet the intergovernmental arrangement continues between the British Government and the Irish Government, if any new Minister and his counterpart in the Republic wanted to amend that agreement, where does the responsibility lie for changing the agreement in the future?

Mr May:

Any amendment would be the responsibility of the British and Irish Governments because it is they who made the intergovernmental agreement. Therefore, there would need to be a liaison between the devolved Administration and the British Government regarding any changes that the devolved Minister wished to implement.

The Chairperson:

Therefore, in essence, the international agreement remains; for shorthand, it remains a strand-three matter to be dealt with at a British-Irish level. I am sure that there are parts of the agreement that relate to national issues such as passports, immigration issues and so on.

Mr May:

I do not believe that immigration is a part of the agreement. From memory, the agreement deals with secondment, lateral entry, disaster planning and joint investigatory teams. Regarding that agreement, powers for elements that are within the sphere of the devolved Administration will be devolved.

The Chairperson:

Why are the Government making a distinction between an agreement on criminal-justice matters and an agreement on policing matters? Why is one an intergovernmental issue that can be changed only by the two Governments, and the other a matter to be dealt with by any new Minister here with a new agreement being required?

Mr May:

The two agreements were set up at different times for different purposes. The agreement on policing was a narrowly drawn agreement — in pursuance to a number of the Patten recommendations, although that is from memory — that set out the arrangements for protocols to be established between the PSNI and the Garda Síochána regarding the areas that I have talked about, largely in the personnel field. It was a limited agreement and was set out on that basis.

On the other hand, the criminal-justice agreement merely identified some broad areas in which co-operation could proceed on an intergovernmental basis. I have already explained the reasons why it falls and so on. They are simply different sorts of agreements.

The Chairperson:

I understand that. However, if any new Administration here wanted to enter into a new agreement on policing matters with its counterparts in the Republic, is there anything to stop that Administration, the potential new Department or the Executive entering into a new agreement?

Mr May:

I do not think that there is anything to stop an agreement being entered into on a North/South basis, but, clearly, if the intergovernmental agreement remains in place, that cannot be amended unless the British Government takes action.

The Chairperson:

I understand that. I thank you both for coming along this morning. No doubt we will be in touch with you about the consultation on the document that you are working on. The sooner the Committee can see that, the better.

I have said that the Committee would return to the issue of the First Minister and the deputy First Minister. This morning we expected to have officials from OFMDFM to engage with us. That was not possible. A letter has been circulated to members, dated 7 January, which explains why it was not possible to arrange that for today. It states:

“The Ministers remain of the view that this is a matter for party political engagement and agreement and, as you know, they consider it would be appropriate for them as holders of ministerial office, to offer views to the inquiry at this stage. On this basis, the Ministers are agreed that it would also be inappropriate for officials to attend the Committee to discuss what are undetermined policy matters. Therefore we must decline the invitation to appear at this time.”

At the last meeting, the Committee explored the options for how we can conclude our report without those key elements being available. What preparatory work has been done on the role that the First Minister and deputy First Minister will have in respect of: the appointment of the Attorney General, or on the issue of the public prosecution service being funded by the Department? Issues relating to the appointment of senior judges also fall to OFMDFM. Then there is the issue of the Ministers themselves: will there be one Minister or two? How will they be appointed? Can they be accommodated within the Executive? Will they be a part of it? Will the Department have to be replaced, or do we need to approach the Northern Ireland Office for approval for an additional Department to be created? Those are major issues for the Committee.

As things stand, OFMDFM says that those are political matters, not departmental issues and they must be decided between the political parties. Until there is agreement between the parties on those issues, OFMDFM will not engage further with the Committee on them.

That is my summary of the position: that is where we stand at the moment as I understand it. In the light of that, the Committee must decide how to proceed. We must prepare a report fairly soon. We are due to report to the Assembly by 29 February. We have six or seven weeks to look at those issues. The question is: do we revert to the political parties and ask them to engage on those issues and let us have the outcome in due course, or are there alternative options?

Mr McFarland:

Committees should not start into internal politics. Have you and the deputy Chairperson —

The Chairperson:

Alan, before you proceed, there is an issue that I want to clear with the Committee. We are still in public session and therefore we are still on the Hansard record. Does the Committee want to continue this discussion in public, or does it want to go into private session to deal with this?

Mr McFarland:

We should go into private session. There are issues of Committee integrity and how the Committee should operate to be settled. We should have a serious discussion in private without having to worry about the public record.

The Chairperson:

Is the consensus that the Committee proceeds in private session?

Members indicated assent.

The Chairperson:

I thank Hansard for its assistance in recording the proceedings.

Committee resumed in public session.

The Chairperson:

The Committee is in public session again. Thank you, members. There are some further items of business. Members will recall that the party papers that we were working on, following the submissions from Professor Jackson and Mr P J Fitzpatrick, are expected to be with the Committee staff by noon tomorrow. I do not know how the parties are doing. I must confess that the DUP is struggling, because contacting people during Christmas has proved to be difficult. I am not sure that the DUP’s paper will be ready for the deadline, but we will do our best. Alan, what is the situation for the UUP?

Mr McFarland:

The work is progressing, but we have had to clear lines in London and all over the place. Some people are whizzes at that sort of work, but trying to get hold of them is difficult.

The Chairperson:

Alex, I know that you had done some work and met the previous deadline.

Mr Attwood:

The paper needs some adjustment to take account of evidence that has been gathered since then. It will not be ready for tomorrow, because one of my staff is absent. It will be ready on Thursday.

Mr McCartney:

We had a meeting yesterday, and I hope that Sinn Féin’s paper will be ready for tomorrow’s deadline, but I am not sure.

The Chairperson:

According to the timetable, next week, the Committee is scheduled to discuss structures and to reflect on advice from the expert witnesses. On 22 January, we will have party deliberations. At present, only discussion has been scheduled for those two days. Is that correct?

The Committee Clerk:

That is right. There are several other matters that the Committee will need to attend to, such as correspondence. For the next couple of weeks at least, the meetings will be for party deliberations. However, when that timetable was drawn up, I had no idea when the Budget debate would occur. The Budget may be debated the week after next, which might affect the Committee meeting, because it is scheduled for when the Assembly is sitting. The Committee must examine when it meets and whether it needs to meet more regularly in order to thrash out all the issues, particularly if more information comes from discussions with special advisers. The point was made during the private session that we are getting very close to the deadline for drafting a report and for the Committee to discuss and revise that draft before the final version is published and the report is scheduled for debate before 29 February. Although the scheduled dates are available, other pressures may impact upon them, and the Committee may need to consider again how regularly it meets.

Mr McFarland:

Will the Budget debate be held in early February?

The Committee Clerk:

I sense that it might happen sooner.

Mr McFarland:

The Executive will not meet to discuss the Budget until 18 January. Is that right?

The Committee Clerk:

I do not know, because I am unfamiliar with all of the Statutory Committees’ work. As I understand it, the Committee for Finance and Personnel embraced the contributions from all the Statutory Committees, with a view to feeding them into the Budget process. I do not know the precise timescales. However, given that the Committee normally meets while there is a plenary sitting, a debate about the Budget — whether it occurs in two or three weeks’ time — could affect the Committee’s planned timetable for extensive discussions.

The Chairperson:

As I understand it, the Business Committee is meeting now, so we should know the date soon, Alan.

Mr McFarland:

There was talk that the Assembly and the Speaker might favour extending the deadline for the debate to 3 February. However, the Business Committee will decide that today.

The Chairperson:

You had envisaged the papers being circulated for next week and a discussion taking place. Would that discussion be specifically on the papers or on more general issues?

The Committee Clerk:

The discussion would be on the papers, because, by and large, the Committee has a position on virtually all the matters to be transferred, which comprise the first of the three components of the terms of reference. The Committee wanted to park its decision on a couple of matters, but we might come to those now and, perhaps, move them on. The Committee can then set that component aside, and it will be gathered up when members review the draft report.

Therefore, the Committee must be concerned with structures and timing. Structures seem quite complicated, whereas timing is more to do with the outcome of party political considerations and whether there is consensus in the Committee about a particular date. There is a complexity around the structures and the Government’s accountability, which the Committee has focused on in all the oral evidence sessions. Members face that hurdle now and must resolve how the structures will look. That might lead to the discussion of issues such as where the Public Prosecution Service might be, whether there will be an arms-length court service, and the number of Ministers that there will be.

The Chairperson:

Over the past couple of weeks, I have been involved in discussions on these issues. The difficulty that I have with submitting a party position paper now is that there might be subsequent negotiations on issues that we had not anticipated and further engagement after we have met with our advisers. Therefore, what is the point of stating our position if the nature of the engagement could change? That problem has been exercising me for the past 24 hours — if we put down a position on paper but, find that the changed position of OFMDFM means a different form of political engagement, I am not sure whether that engagement will take place across the Committee table or elsewhere. If it happens elsewhere, in what structure will it take place?

I am reluctant to have the type of discussion that we envisage having next week without clarity about the direction that we need. Clerk, subject to the agreement of members, we need a wee bit more time to be absolutely clear about our position on the new correspondence from OFMDFM. I want the Committee to deal with, and try to sign off on, matters to be transferred so that that business is finished because the discussion over structures will be more complex than was initially thought — I fear that the implications of the new correspondence from OFMDFM have created an added difficulty for us.

Mr McFarland:

From our experience of the past 10 years, I am not an advocate of position papers because the moment that they are produced, they have to be defended. Listening to an argument and modifying one’s position is the essence of all negotiation and agreement, but position papers make it difficult to do that. For example, Raymond might make a very good point, of which I had not thought. However, that point might contradict what my party has put down in its position paper. Consequently, I would have to ask my party colleagues, who will growl when they hear that it is a point put forward by Sinn Féin, whether they want to change the party position,. We must provide clarity for the team because they cannot write the report without it. However, the four key parties are represented on the Committee, which provides an opportunity for us to discuss where we stand. My guess is that a lot of this is quite simple because we heard that the Secretary of State is going to leave the business of creating the model for the Lord Chief Justice’s office to us. Therefore, the confusion over whether we need to recommend that Westminster puts through primary legislation is not a factor anymore.

The situation that we have is devolving powers according to David Lavery’s amended model, which does not seem like a contentious issue. There is an issue of accountability of that organisation and who runs it, which needs major discussion, particularly if we recommend moving to the Lord Chief Justice’s model. There must be a serious discussion on accountability. The structures, the number of Ministers and how to create a Department will have to be parked.

That will be a political discussion somewhere down the line, when everyone is comfortable. The options are limited, but, at that stage, it will be a negotiation. Other matters must be tweaked, and let us tweak what we can tweak. In this Committee, we should lay to rest the bits and pieces that are relatively easy and deal with what we can. We can work out the political stuff as best as we can towards the end.

The Chairperson:

Members should be clear about what I am saying. If there is to be political engagement and agreement on a range of issues, we must know whether this Committee is expected to engage in that process, or will that happen elsewhere. If it does happen elsewhere, we are entitled to ask about how that will happen and who will take such discussions forward. It is clear to me that thrashing out decisions about the timing of the devolution of policing and justice will come down to the two main parties.

The other issues must be matters for the four parties because, in theory, the Minister, or Ministers, responsible for policing and justice will be drawn from any of those parties, which will have ongoing scrutinising roles. Therefore, the four-party structure of this Committee should be reflected in the negotiations about future structures — but how will that happen? In the first instance, as your Chairperson and Deputy Chairperson, Raymond McCartney and I must seek clarity from OFMDFM because many of the structural issues relate to it. We will report back to the Committee next week when we will be in a better position to take a view on how, at a practical level, we might take our discussions forward, what our role will be in those discussions, and what role, if any, will be played by others.

In addition, if this Committee is to negotiate on some of the structural issues, it would be useful if Alan McFarland and Alex Attwood consulted their colleagues to ascertain whether they have a mandate to do so because, obviously, such discussions would also have party implications.

Raymond and I must explore the matter further and see where we get to. I appreciate that that will create a difficulty for the Committee Clerk; however, we have identified a major difficulty today, and I would be happier to go forward having clarified the situation rather than spending another couple of weeks in discussions only to discover that we should not have been undertaking those discussions or that other discussions are underway elsewhere.

I want the Committee’s role in this matter to be clarified in order that we can move forward and do what is expected of us in the knowledge that either discussions on other aspects of our work or discussions that might impact on our work are taking place elsewhere and will be fed back to us in due course, or that we are expected to undertake that work. That is not clear from the information that we have.

I am reluctant to submit a paper that commits my party to positions that may be the subject of political negotiation — either inside or outside this Committee. Committee members could discover that having had discussions in the Committee, it is necessary for them to go away, consult, get agreement and come back. Given simple practicalities, we do not have the time to do that. This is not a negotiating process in which all parties are in a room or a building and are able to go in and out in order to consult. This could be a protracted situation, which changes the nature of the Committee’s discussions, and we must have clarity.

Mr Attwood:

I have three or four points to make. We must have political and operational clarity. That is why, aside from anything else, I would like to have the head of the Civil Service present. He will be responsible for operational matters in the same way that Clare Salters and Peter May are responsible for the NIO’s operational matters, and I would like to know what they have been doing in relation to those operational matters. Is it mutual to what the NIO has been doing? What are the realistic time frames in which it is working?

The Committee has great political ambitions. However, they will come to naught if they cannot be delivered operationally by the Civil Service. Independent of anything else, I want operational clarity from the head of the Civil Service on where its work programme is and about the consequences of that on many levels, including timing. I agree with the Chairperson that he and the Deputy Chairperson should seek political clarity. The Committee could end up being somewhat embarrassed if it were to go down a certain road only to be told by people who are higher up the pay scale that it should not have gone there in the first instance. We must accept that political clarity is needed.

I suspect that some matters will be reserved to political leadership and others reserved to Committee leadership, if you like. However, if it is in order, Chairperson, I still intend to submit a paper. It may not cover all the issues, given that one may not want to show all of one’s hand. Nonetheless, it is my intention to submit a paper on a range of matters on which the Committee has been asked to report. I admit that I may hold back on some matters because I may not have the political authority that I thought that I had; the game is going to move elsewhere, or whatever. However, there are certain matters about which I want to submit a document from the SDLP’s perspective, so that if it can, at least, create certainty, it will do so.

The Chairperson:

Do any other members wish to comment? At present, in respect of the papers, I ask members simply to consult their colleagues on those matters. We will just have to see where we get to with regard to who will bring forward particular matters next week. Let me be clear that it is without prejudice. The Committee’s appreciates, Alex, that if you bring matters forward and show your hand on certain issues, that will be treated with the respect that it ought to be accorded.

Mr McFarland:

We will take full advantage.

The Chairperson:

I remind members that the Committee will have lunch with the Northern Ireland Affairs Committee in the Commonwealth Room at Westminster on Thursday 17 January 2008 between 1.00 pm and 2.00 pm. I would appreciate it if any member who is available attends that meeting.

Mr McFarland:

Recently, my party office received a letter that asked political parties to have lunch with the Northern Ireland Affairs Committee on Wednesday 16 January 2008 in order to discuss the devolution of policing and justice. Have other parties received that letter?

Mr Attwood:

What is it?

Mr McFarland:

The Committee is due to have lunch with the Select Committee next Thursday. However, parties have also received a request for members to have lunch with the Select Committee next Wednesday in order to discuss the devolution of policing and justice. Of course, normally, the same people from the Committee would represent their parties at such a meeting. Are members aware of that invitation? Has there been confusion?

The Chairperson:

I am not aware of that. However, it may well be the case, Alan. I certainly have not been advised that my party has received such a request.

Mr McFarland:

I thought that it was a bit strange because the meetings are due to be held on consecutive days, on the same topic, and, normally, the parties would put forward the same members to discuss that topic. To have two meetings, therefore, seems a bit pointless.

The Chairperson:

Indeed. Anyway, I would appreciate it if those members who are available to attend next Thursday’s lunch would indicate accordingly.

The Committee Clerk:

I, too, would like some clarity on what I must do, particularly with regard to next week’s agenda. Matters to be transferred can be included on next week’s agenda. On reflection, I believe that those issues can be resolved quickly. There are only a couple to be dealt with. The parties will take their positions, whatever those might be.

With regard to structure, the NIO letter dated 15 October 2007 included, in Annex B, the working assumption of what the structure would be like. It states that the Public Prosecution Service would be funded through OFMDFM. There is an opportunity for discussion on that.

In so far as clarity about political considerations is concerned, I understand why the Committee has reached that particular conclusion. The Assembly placed an obligation on the Committee to prepare a report on the terms of reference that were originally developed by the Assembly and Executive Review Committee. The Committee volunteered to undertake that piece of work when it recognised that it must be done.

It seems to me that, in those terms of reference, it was the Committee’s responsibility to decide what matters should be transferred, the departmental structure into which they should be transferred, and the ministerial arrangement that would head that structure. It was also the Committee’s responsibility to make a recommendation, if it could, on timing. Therefore, it seems that the Assembly has determined that that is what the Committee should be doing. I understand that what Committee members are saying is that they may wish to ask their political parties for direction on their positions in relation to those matters. I am certain that it is the responsibility of the Committee to prepare a report for debate in a plenary session about all those issues.

The Chairperson:

Absolutely, there is no doubt about that. We will see which papers come in from the parties by next week. Assuming that we move quickly through the outstanding issues on the matters to be transferred — and then park those — we can set one third of the Committee’s remit to one side. It is good to put that work behind us so that we know that, at least — from the point of view of morale — we have hit that milestone.

We could then have a useful without prejudice discussion about the structures. Our previous discussions, for example, on the matters to be transferred were useful and brought us to the point whereby we had a broad consensus. It would be useful to have, next week, a without prejudice discussion on the structures. I hope that Mr McCartney and I can then report back on where we have got to on the political side of things. We can follow that with a without prejudice discussion on the structures. That may help to inform our thinking on the development of our party-political positions. By then, I hope that we will understand the context in which that discussion is taking place and where the political engagement/discussion is going over the next few weeks.

I now refer to the NIO response, dated 15 October 2007, to the Committee’s letters. Annex B — Chart of the Organisations in the Criminal Justice and Policing Fields — outlines the kind of structures that are envisaged by the NIO. I do not know whether it is possible to form an agenda, using that chart, which the Committee might work through and might, at least, allow a broad discussion on each of those areas. We may be able to establish quickly that there is a consensus on a number of those areas, which would allow us to focus on those areas in which we do not have a consensus. That would then be the subject of further political discussion, whether in Committee or otherwise.

Are members content that we proceed on that basis next week and that we ask the Committee Clerk to draw up an agenda based on, first of all, resolving the outstanding issues on matters to be transferred and, secondly — after Mr McCartney and I have reported to the Committee on the political developments — that we have a discussion on an agenda that is based on the NIO’s chart. We will proceed on that basis at next week’s meeting of the Committee. I will leave it to the parties to decide what they want to do with their papers. Mt Attwood has indicated what he is likely to do.

Mr Attwood:

If I leave the room now, will the Committee be inquorate?

The Chairperson:

Yes, the Committee would be inquorate. However, we have almost finished the meeting.

Mr McFarland:

Would next week’s meeting of the Assembly and Executive Review Committee be held in public, as has been the convention until now, particularly with regard to discussions on matters to be transferred? I need an answer to that question, for logistical reasons.

The Chairperson:

Yes. Would members prefer to go into private session when we are dealing with the structures and the report back on the political side, after we have dealt with the matters to be transferred?

Mr McFarland:

I am an advocate of open discussion — especially for non-contentious issues. However, it is easier to speak freely on contentious issues if one is not worried about one’s remarks being reported in the press. Committee evidence sessions can be made public at some stage, but it is important that contentious issues are discussed and decided in private.

The Committee Clerk:

Can I clarify whether the Committee wants the private session to be reported by Hansard, because it might form part of the Committee’s report that is due before the Assembly by 29 February. Although parts of the sessions will be private, I will have to arrange for Hansard to be present to cover those discussions. The reports on the sessions will not be broadcast or available to the media, but members will eventually have a transcript that will be published.

The Chairperson:

Are members content with that?

Members indicated assent.

The Chairperson:

A letter was circulated to you from the Committee on the Administration of Justice (CAJ) requesting an opportunity to give oral evidence to the Committee on issues relating to the devolution of policing and justice. Following the request, the Committee refused and, subsequently, it was parked. We are getting close to the point when we must decide whether the visit happens.

Mr Attwood:

We can go round the houses on this, and we have done in the past. However, one group has consistently said that it has something to say. Some members have concerns about CAJ, but it has consistently said that it has some depth of knowledge. It has conducted an 18-month research project on the issue, and it might be useful to hear from CAJ. I am not saying that others cannot be invited, but CAJ has pressed the Committee and seems to have some level of authority on the subject. Furthermore, it has differentiated itself from every other organisation by saying that it wants to speak to us, so I think that we should allow CAJ 45 minutes to do so.

Mr I McCrea:

I disagree with Mr Attwood. Every organisation that wants to come before us will provide a good reason why they think they should be allowed to do so. I do not have an axe to grind with CAJ on this occasion, but we are too far down the road to suddenly allow another organisation to come before us, only to say no when another organisation requests a meeting.

Mr McFarland:

Have we received a written submission from CAJ?

The Chairperson:

Yes. Do you feel that that is adequate, Mr McFarland?

Mr McFarland:

We are running out of time, so a written submission is adequate.

Mr McCartney:

I agree with Alex; CAJ should be called.

The Chairperson:

The Committee is divided on how to take this forward: two parties said yes, and two parties said no.

Mr Attwood:

Chairperson, what is your view?

The Chairperson:

We have received a written submission from CAJ. I have no axe to grind with that group. I have differences with CAJ on a range of issues — as I have with other people. However, that does not mean that I do not want to hear what they have to say. I accept that CAJ has a contribution to make, but one must ask whether it is necessary to have an oral evidence session to fulfil that contribution, or whether its written evidence is sufficient. What can CAJ add to the Committee’s deliberations at this stage that will make a difference? That is why I am not convinced that it needs to attend, Alex. You say that CAJ is the only organisation to say that it has something to say, but what could it have to say that is so significant and relevant that we should set aside part of a meeting to hear its contribution?

Mr Attwood:

I have a lot of arguments to make, but every comment from Peter May or P J Fitzpatrick from the Courts Service of Ireland, or David Lavery offers a new dimension that requires me to revisit our submission paper. There is always another element or nuance. The benefit of the evidence sessions is that one gets a different perspective to change one’s judgement. In a way, it is a disservice to the wider community that the Committee has not taken evidence from the wider community sector.

The Chairperson:

I understand that, Alex, but there is nothing to stop you from meeting CAJ, going through the issues and feeding them back to the Committee if you think that there are views to be added to our evidence. My concern is that if CAJ were singled out from the wider community, a number of other organisations could also be included. At this stage, we do not have the time, and other issues must be resolved. It is open for any member to consult with CAJ if they feel that that organisation can make a valuable input on certain issues. I am willing to meet members who have points to raise, suggestions to make or who have anything that they want to incorporate in party papers. That is a matter for those members. To single out CAJ would run the risk of others asking why they were not asked to supply evidence. If the Committee is divided on that matter, I use my position as Chairperson to advise the Committee against calling CAJ for an oral evidence session. Do members want to put that to a vote?

Mr Attwood:

No, it is clear that a majority is not in favour of calling CAJ for an oral evidence session.

The Chairperson:

We shall leave it at that. I shall ask the Committee Clerk, in response to CAJ, to say that, in the light of further evidence, the Committee is happy to receive additional points in written form. I stress that it is open to any Committee member to meet CAJ if they feel that there are matters to be discussed.

Members, it is now 2.00 pm and time is marching on. Are members happy to push the debate on the paper on the judiciary of England and Wales and accountability into next week’s meeting?

Mr McFarland:

Those are both useful papers, particularly the one to do with how the administration of the Lord Chief Justice and his responsibilities work.

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