Official Report (Hansard)

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

The Chairperson (Mr Donaldson):
Members, as you will recall, we had agreed that the four parties represented on the Committee would discuss various elements of the terms of reference for the inquiry. Members may wish to refer to their meeting pack, which contains a briefing note and table — the briefing paper of 28 June — summarising the extent to which there was a consensus among the parties during the deliberations on the Programme for Government. That is important, because there is no point in going over the old ground. We have a consensus on a range of issues, which was arrived at through the Programme for Government Committee subgroup on policing and justice matters. That information is in the meeting pack to refresh our memories.

As I said earlier, the purpose of today’s discussion is to identify those policing and justice powers that are currently reserved matters under schedule 3 to the Northern Ireland Act 1998. Again, I remind members that we broadly accepted the NIO document ‘Devolution of Policing and Justice in Northern Ireland: a Discussion Paper’, which details the items to be devolved. There is a fairly broad consensus on that already, but we may want to touch on that again. The second element of this part of the terms of reference is to consider which of those matters should be devolved and to what extent they should be devolved.

The Committee on the Programme for Government deliberations reached a consensus, which represents a baseline position for this Committee. Therefore, our business today is to allow the parties to express views only on those issues on which there was no consensus. Unless members have a desire to unpick what we have already previously agreed as parties in the Committee on the Programme for Government, our time is better spent, as we have a great deal to cover, concentrating on those issues on which consensus was not reached at the time, and to see whether there is a basis for consensus.

Are members content to proceed on that basis?

Members indicated assent.

The Chairperson:
During its deliberations on policing and justice matters, the Committee on the Programme for Government sought to achieve consensus among the parties present on each of the outstanding issues. I intend to allow a reasonable amount of time for discussion on each issue, before we make an assessment of the prospect of achieving consensus. If, however, after a reasonable amount of discussion there is no prospect of consensus, we might agree to revisit particular items later on in the Committee’s inquiry. Members are free to make a formal proposal for a vote to be taken on any issue. Standing Order 47(9) states that:

“All questions at a Statutory Committee shall be decided by a simple majority. Voting shall be by show of hands unless otherwise requested by a Member of the Committee.”

The same rules apply to Standing Committees. Paragraph 4.16 of the Committee Staff Guide states:
“Members are not obliged to vote. The Chairperson is entitled to vote but does not have a casting vote. In the event of any division being called in a committee, the details, including the question proposed, the name of the proposer and the respective votes of each member present including abstentions, shall be recorded by the committee clerk in the minutes of the proceedings. If the votes are equal, the motion falls. A vote may not be taken on any matter unless a quorum is present.”

The current quorum for this Committee is five members.

Those are the procedures to be followed if members feel that the Committee must divide on an issue. Are Members content that we proceed on that basis?

Members indicated assent.

Page three of the briefing paper of 28 June sets out the matters to be considered for devolution. It was agreed by consensus at the PFG Committee that, in principle, criminal law and the creation of offences and penalties should be devolved. At that time, the DUP and UUP were content with the extent of devolution, however the SDLP and Sinn Féin wanted all powers devolved. That was the position at the time of the PFG Committee meetings. The briefing paper also sets out an overview of what policing and justice matters will be devolved, and that was based on the information contained in a letter from the Northern Ireland Office on 15 August 2006. The final column on page three summarises party consensus: there was agreement in principle, but consensus was not reached on the extent of the matters to be devolved under the heading of criminal law and the creation of offences and penalties.

Mr McFarland:
The PFG Committee reached agreement on the criminal activities to be devolved, but treason and terrorist offences were sticking points — the SDLP and Sinn Féin wanted those areas to be devolved. Treason is a national issue: I know that the SDLP and Sinn Féin do not agree that we should be in the national position that we are in, but that is the position until we vote differently here. Devolving the policing of terrorism offences to the Assembly — certainly at this juncture — seems an ambitious project. It is sensible to leave them parked at Westminster. We have enough to worry about with the policing of such offences as attacks on the elderly and knife crime — if they are ever devolved — without having to have serious panics and constant votes about whether terrorist issues should be brought into the legal framework.

The Chairperson:
There is an additional complication in that there is no provision in the Northern Ireland Act 1998 for excepted matters to be devolved to the Assembly, and treason and terrorist offences are excepted matters, not reserved matters. Consequently there is no provision to devolve an excepted matter to the Assembly at any time unless Northern Ireland becomes independent or separate from the rest of the United Kingdom. There is a difficulty, because the Northern Ireland Act 1998, which established the Northern Ireland Assembly, does not contain any provision for those matters to be devolved. Is there still consensus that all other matters pertaining to the criminal law and creation of offences and penalties ought to be devolved, save for the two excepted matters? Are members still content with those arrangements?

Members indicated assent.

The Chairperson:
The only issue, therefore, is the excepted matters — treason and terrorist-related offences. We could ask for them to be devolved, but we will be refused, because there is no provision under the current law for them to be devolved. The Assembly, as constituted under the Northern Ireland Act 1998, cannot receive those matters, even if we were to ask for them. However, members may have a different view.

Mr Attwood:
My remarks are purely for the record, because I know that my view will not prevail. Why should some, if not all, of those matters not be transferred? First, getting primary legislation is not beyond the wit of the Westminster Parliament: it may be beyond their intentions, but it is not beyond their abilities.

Secondly, in reply to a question about national security, which goes back to the issue of terrorist offences, the chairman of the Policing Board said last week that he would reassure people that the handling of these matters in the North is more advanced than it is in Britain. He might even have said that the North was leading the way. I do not agree with his analysis, but he said that there were mechanisms and processes in place that gave a domestic jurisdiction some entry to issues of national security or terrorism. In doing that he confirmed a point of principle: the North — as the chairman of the policing board sees matters — would have more standing on those matters than either the Scottish Parliament or the Welsh Assembly and, arguably, the Parliament at Westminster.

Therefore, taking that to the next stage, or its natural conclusion, if there are special mechanisms in place here for having more standing for people here in respect of those matters, then, given the importance and sensitivity of those matters, it should be extended to the point where those matters are devolved. The circumstances in the North and the historical situation are such that there is a need for particular mechanisms put in place around issues of national security and terrorism.

The best mechanism would be to have responsibility for those issues ourselves. I know that I am not going to win that argument, but that is at the core of the argument. Unless we build in mechanisms of oversight and accountability around issues of terrorism and national security — even if they are excepted matters and are held by Westminster — we would be creating a potentially unstable future. Even if I cannot win the argument that those matters should be devolved, there should at least be an argument that, in our context, there should be additional oversight for terrorism and national security.

Why do I make those points? In a High Court case in London over the past three weeks, Cherie Blair made the argument that the security services had to get their head around the need for accountability because that was the way things were going — although she did not use those exact words. That case related to the activities of a British agent operating in Russia during the Second World War 50 years ago. Mrs Blair was arguing that MI5 must realise that those matters cannot be handled in the way they were handled in the past, where what might be the truth was suppressed — even 50 years later. That is the right argument, and particularly the right argument for the situation in the North. That is why I would still argue for transferring our responsibility for terrorist offences: we would be transferring responsibility for national security, and national security has a lot of potential to destabilise — in the worst circumstances — the future.

The Chairperson:
Thank you. Your points are noted.

Mr I McCrea:
Taking on board what Mr Attwood said, the very reasons he cites for transferring functions are those against our having any element of powers devolved in relation to terrorism and national security. I am not saying that everything that was done in respect to national security in the past was done right, but it would be wrong for us to bring elements of national security and terrorism and have them devolved to the Assembly, given that there are — I am not sure what to call them — former, or to some extent, terrorists who could have control, or some part to play, in the functions of that system. I could not agree to that. My party has made that clear and will remain strong on that position.

The Chairperson:
I return to Alex’s point. In the context of this inquiry, we are pursuing with the security services issues involving oversight and accountability mechanisms. Let me be clear that we have not lost sight of that, but I appreciate that there is a distinction between the transfer of powers and the question of a devolved Department having some form of accountability and oversight mechanism. I do not think that we are ruling that out in this discussion today.

Members, how do you wish to proceed? Do we want to go beyond the consensus that was agreed at the Programme for Government Committee? We could perhaps agree that, in principle, we accept the devolution of all powers over criminal law and creations of offences and penalties that the NIO had proposed would be devolved, but note that treason and terrorist offences are excepted matters, and that there remain diverse opinions within the Committee on the devolution of those powers. The difficulty is that we simply do not have the authority to do anything about it.

Mr McCartney:
As long as it is clear that no consensus was reached, that is fine. You are right on the first point: we can all agree that we are in the same position as we were at the Programme for Government Committee meetings, but there is no consensus on the latter matter.

The Chairperson:
We would simply reflect the fact that there is a diversity of opinion on whether or not we should seek the devolution of the two additional powers either now or in the future. However, we clearly do not want that to hold back the devolution of the other powers.

Mr McFarland:
I want to probe that matter slightly further. If there is no consensus on an issue, technically, it continues to be parked until consensus is reached. However, a difficulty arises in this scenario. If this was a case of the Committee discussing what should or should not be done about a transferable matter, I would agree that we would have to keep parking the issue until consensus could be reached. However, surely the Committee must recognise that, whatever the individual views of its members, those powers are not on offer to us as transferable powers. Surely the Committee must accept that the legal position at the moment is that the Government have clearly no intention of transferring those powers to us, and that the Committee, whatever the view of its members, has no option but to accept that. There are other powers that can be transferred, but which some of us may not want to see transferred — in that case, the lack of consensus can be recorded and the matter can be parked. However, it strikes me that what we are discussing is not an option for the Committee, in any case.

The Chairperson:
I take your point. It is not for me to speak for Sinn Féin or the SDLP, but I think that their members would say that they do not accept that we should not ask for those powers — in other words, they do not accept the view that we should not ask to have those powers simply because they are not currently on offer. I believe that we can find a form of words that reflect the legal reality of the situation, which Alan mentioned.

Mr McFarland:
The law states that those powers are not on offer.

The Chairperson:
Yes, and primary legislation would be required to change the situation. I believe that this side of the Committee would want it reflected that the question is whether we ask the Government to legislate for the transfer of those powers. Clearly there is no consensus on that within the Committee at the moment. We can reflect that, eventually, in our report, provided that there are no further developments between now and then. We will also come back to Alex’s point about oversight and accountability. Are members happy to proceed on that basis? We will eventually agree on a form of words to include in the Committee report that members can be happy with.

The question is that of the prevention and detection of crime. This is the statutory framework within which the police and other law-enforcement agencies operate in Northern Ireland. It does not cover counter-terrorism, immigration or revenue and customs, which are excepted matters: in that sense, the situation is the same as the situation that we have just discussed. Following devolution it is envisaged that the Assets Recovery Agency(ASA), the Serious Organised Crime Agency (SOCA) and the UK Immigration Service will consult Northern Ireland Ministers, where appropriate. Again, we may want to explore what is meant by consultation, what are the implications of any monitoring role, and so on.

In the Programme for Government Committee, it was agreed by consensus that, in principle, the prevention and detection of crime should be a devolved matter. However, again, the SDLP and Sinn Féín wanted all powers to be devolved. Members, are we content to deal with this issue in the same way as we dealt with the previous issue?

Alan, you wished to make a comment.

Mr McFarland:
The issue of SOCA was raised at the previous Committee meeting. Since that meeting, the Committee sent a letter to the Northern Ireland Office requesting further information. Surely we cannot address the issue until we receive the information that was requested in the letter.

At last week’s Committee meeting, we discussed accountability issues that would arise when PSNI officers chased after organised criminal gangs. In that scenario, cross-cutting issues might arise. There is little clarity about where the line is drawn between the PSNI and the other agencies. Responsibility for SOCA and the Assets Recovery Agency will not be devolved. Perhaps, before a final decision is made, there should be some clarity about how the interface between the PSNI and — in particular — SOCA will take place. I agree with you —

The Chairperson:
I see where you are coming from on that. However, today’s discussion is on the narrow ground of whether the power should be devolved or not. The issues around accountability, scrutiny, etc will be covered in the Committee’s report. It is a slightly different issue, related though it is. The principle is that if one has a devolved power, then one will have one’s own mechanisms for oversight and scrutiny. However, if the power is not devolved, then we need to explore the extent to which the Department of Justice, in Northern Ireland, will have a role — or be able to create a role — that enables some degree of scrutiny, accountability and oversight.

You are correct when you say that we are still waiting on a response from the Security Services, from SOCA and others, on those issues. However, I do not think that that cuts across the principle of whether or not the power should be devolved. We do not have a consensus on that, at present. Sinn Féin and the SDLP take the view that all power should be devolved, including the work of the Assets Recovery Agency, SOCA and the UK Immigration Service, which are excepted matters. Therefore, we are in the same situation again. Legally, we do not have that authority to deal with scrutiny and accountability issues. That is why I suggest that we proceed on the basis that we are agreed in principle that the powers on offer should be devolved and that there is a diversity of opinion as to whether or not we should ask for legislation to be introduced to devolve those powers which are excepted, or to enable them, potentially, to be devolved in the future.

Mr McFarland:
Does the latter part block the former, or are they parallel issues? If there is no agreement on all of it, will Sinn Féin and the SDLP not agree on any of it?

The Chairperson:
My understanding is that there is a consensus that the powers on offer at present should be devolved. However, if for example at the end of the process Alex said that he was not happy with the oversight mechanisms for the non-devolved matters and therefore his party was not going to endorse the overall report, that would be an issue that we would have to deal with at that time.

As I understand it, neither the SDLP nor Sinn Féin are saying that they will veto the devolution of the powers that are on offer, and that if they cannot have the whole package, they will have none at all. Rather, they are saying that they agree that the powers on offer should be devolved but that they would also like to have additional powers. They are not saying that we cannot have them all. If that is the wrong interpretation I stand to be corrected.

Members indicated assent.

Ms Ní Chuilín:
I apologise for having to leave the meeting. I have to attend another meeting.

The Chairperson:
Thanks, Carál.

Are we content on that issue, that we proceed on the same basis on which we have done before, notwithstanding that we need to return to the oversight and accountability issues?

Mr G Robinson:
Agreed.

The Chairperson:
The letter that we have sent to the Northern Ireland Office — in addition to what we have done with SOCA and the Security Services — also highlights the point that we are asking it to deal with the working relationships and lines of communication that might exist between the NIO, any new Department of policing and justice, and a national organisation such as SOCA, the Security Service etc, as regards excepted matters. Therefore, we are also asking the NIO to address that issue in the context of —

Mr Attwood:
What date is on that letter?

The Chairperson:
That is the one that went out yesterday.

The next item for discussion is the treatment of offenders. The briefing paper of 28 June stated that:
“All matters related to prisons, youth justice, probation and certain functions to do with mentally disordered offenders (including the majority of these functions, including severe hospital facilities) are already transferred … The Committee on the Programme for Government agreed by consensus that in principle the Treatment of offenders should be devolved.”

There was a difference of opinion on whether additional powers should be reserved or excepted.

Sorry, we are considering issues that are not transferable at this stage. The Northern Ireland (Sentences) Act 1998 provides for sentence review commissioners, who deal with applications for early release. Currently, that is not a devolved matter. Sinn Féin and the SDLP took the view that it should be devolved; however, the DUP and UUP were content that it should remain a reserved matter.

Do members wish to express an opinion, or will we treat it in the same way that we have dealt with previous issues?

Mr McFarland:
Is that item related only to terrorist prisoners?

The Chairperson:
Yes, for scheduled offences.

Mr Kennedy:
There is consensus about agreeing to no consensus.

The Chairperson:
For the record and to clarify, the work of the sentence review commissioners is wholly concerned with the treatment of those people who have been convicted of offences connected with terrorism, and it is an excepted matter under paragraph 17 of schedule 2 of the Northern Ireland Act 1998.

Do we proceed on the basis that there is consensus that those powers on offer should be devolved, but, that there is a diversity of opinion as to whether we should seek the devolution of excepted matters?

Members indicated assent.

The Chairperson:
On the matter of public order, the briefing paper of 28 June stated that:

“The statutory framework governing the maintenance of public order, including responsibility for parades legislation in NI. Future powers to enable the army to operate in support of the police are under development since it is unlikely that these would be devolved. Responsibility for determining which weapons may be used by the police in public order situations will remain an operational decision for the Chief Constable. Appointments to the Parades Commission and its operation could be reserved, if that was the wish of the Assembly … The Committee on the Programme for Government agreed by consensus that in principle public order should be devolved. The DUP and UUP were content that responsibility for the Army should remain as an excepted matter. They concluded that the Parades Commission should be abolished, but if it was to continue, responsibility for appointments should remain as a reserved matter for the time being. Sinn Féin and the SDLP wished to see all powers in this matter devolved with safeguards on appointments where appropriate.”

That was the view taken at that time. In other words, we have consensus that the transferable powers relating to public order should be transferred to a justice department; however, there was not agreement on transferring powers relating to the army working in support of the police or on appointments to the Parades Commission.

There may be changes to the Parades Commission issue, following the outcome of the current review. To a certain extent, it is an unknown quantity.

Do any members wish to express a view on any of those issues, or does the Committee wish to proceed on the same basis as before? Are members content?

Mr Attwood:
There are probably several broader issues. First, just for the record, I do not accept the contention in the paper that:

“Responsibility for determining which weapons may be used by the police in public order situations will remain an operational decision for the Chief Constable”.

Although that is the case during an operation, legally, the responsibility for deciding which weaponry is available to the police falls to the Policing Board. The purchase of novel and contentious weaponry falls to the Policing Board under the law, under the Patton Report and under Treasury guidelines. Therefore, if the assertion is that the Chief Constable can decide what weaponry he wants to buy, I do not accept it. I have argued that throughout, and I want it on the record.

I did not notice it before, but the document also says that:
“Future powers to enable the army to operate in support of the police are under development since it is unlikely that these would be devolved.”

Did the NIO argue that such powers might be devolved? They should be a devolved matter. Nonetheless, is there anything in the NIO documentation or correspondence to suggest that they might be devolved?

My third point is substantive. The document states that:
“appointments to the Parades Commission and its operation could be kept reserved, if that was the wish of the Assembly.”

It is a sensitive power, and maybe the Assembly does not want it. Some would argue that that should also be the case for the renewal of the 50:50 recruitment policy and for appeals by the Chief Constable against decisions of the Parades Commission. Those are sensitive matters, and we must decide whether they should be devolved.

I have a list of hard questions, Clerk, so please forgive me. Would it be possible for Research Services to work through the various models? Sinn Féin and the SDLP feel that such matters could be devolved where safeguards exist. By that we mean cross-community safeguards, so that OFMDFM or any Minister would not have unilateral power to make decisions in respect of matters, such as 50:50 recruitment. Can Research Services compile the various models whereby such matters could be determined on a cross-community basis?

There are a lot of models. Perhaps such matters would have to be decided by an Executive subcommittee or another part of the institution. Could Research Services brief the Committee on what models might build in cross-community safeguards in the event of those sensitive powers being transferred?

The Chairperson:
Would that include appointments to the Parades Commission?

Mr Attwood:
Yes. It would include the renewal of 50:50 recruitment, appointments to the Parades Commission and appeals by the Chief Constable against the Parades Commission’s determinations.

There may be other powers. I felt that Shaun Woodward hinted last week that the Assembly would not really want such powers and that the NIO would keep them for the moment. I do not have the transcript yet, but he said something that suggested to me that he was hinting at that.

Mr McFarland:
The reason that the Committee for the Preparation for Government spent all last summer and autumn parking such decisions was that, if sensitive powers were to be devolved, there would be no agreement on anything — there would be gridlock.

If the SDLP wants an extension of the 50:50 recruitment policy, which is due to end in 2010, it will never get it. The SDLP might persuade the Government to make separate legislation. It strikes me that bringing all those matters here — where there will be no form of consensus on them, because they are contentious — seems slightly daft.

Regarding Alex’s point, the issues of weaponry and what the Chief Constable can and cannot do have been devolved to the Policing Board. Some Members of the Assembly are on the Policing Board, and that it where responsibility for those issues lies.

The Policing Board have had a row just this week over the use of tasers, and the Chief Constable is adamant that the operational acquisition of weapons — that could be used to protect his officers — is in his bailiwick.

There were other occasions, as Alex knows from the first Assembly, when the police approached the Policing Board and asked them to back particular weapons. However, that issue is not the responsibility of the Assembly; it is up to our colleagues on the Policing Board. We should not get too excited about those issues — there are certainly issues that need to be investigated, but they are matters for the Policing Board.

The Chairperson:
The point is, Alan, that if Alex’s assertion is that the responsibility is already with the Policing Board, it is not an issue for this Committee. One cannot devolve something that is already devolved.

Alex made a point regarding future powers enabling the Army to operate in support of the police, and whether there was a question that that issue may have been considered for devolution by the Northern Ireland Office. Paragraph 12.3 of the NIO’s discussion paper ‘Devolving Policing and Justice in Northern Ireland’ states:

“As well as drawing on general constabulary powers, the police rely on the Public Order ( Northern Ireland) Order 1987 to deal with serious public disorder. They also currently use the Terrorism Act 2000, in particular part Vll powers in respect of requisitioning and road closures, although the provisions are intended to be repealed as part of the current normalisation process, so are unlikely to be in use by the time public order is devolved.”

Alex, it may be in the context of the normalisation process that there was an issue over whether the power to enable the Army to operate in support of the police should be devolved. My understanding is that that falls under the Terrorism Act 2000, rather than the Public Order ( Northern Ireland) Order 1987. We may need some clarification on that issue, so I will ask for that so that we can nail that issue down for you.

Mr McFarland:
It is worth recalling again that we have now moved away from terrorism and everything else. Therefore, the limited number of troops that are in Northern Ireland, would not normally be here — they would be in Iraq or Afghanistan. Their families are here; we have moved to garrison status now. Therefore, the days when the troops are able to be called out to deal with a bit of bother have gone.

There is a system throughout the United Kingdom for calling for assistance from the Army if it is required. For example, a unit that was training in Northern Ireland could be called out in a really bad situation. That is an established system; it is called Military Aid to the Civil Power (MACP), and is already in statute at Westminster. What happens is that the police apply to the Minister for Defence to have backup for those troops that might be already in this country facing a doomsday-type situation.

My sense is that the Ministry of Defence will not wish to devolve those powers to the Northern Ireland Assembly because they are not devolved in Scotland, Wales or elsewhere.

The Chairperson:
Are we agreed that we proceed on the basis that the powers on offer to us on public order should be accepted, and that there remain diverse views on the other powers, including that which Alan has just mentioned? In other words, we are not holding back devolution of those powers that have the potential to be devolved, but there is not a consensus on what else should be requested for devolution regarding the public order issues. The secretariat will produce a paper on Alex’s suggestions regarding the options for the Assembly in dealing with issues such as the Parades Commission and 50:50, etc. Are members content to proceed on that basis?

Members indicated assent.

The next item is the Police and the Policing Accountability Framework. This is the statutory framework, which provides for the existence, governance and oversight of the PSNI. It also covers funding and corporate governance of a range of statutory bodies within the wider policing field. National security would remain an excepted matter with the Secretary of State responsible for sharing information with the Policing Board. The Policing Board now have an established protocol with the Secretary of State on that issue. The 50:50 temporary recruitment provisions are also excepted unless the Assembly specifically requests that those be devolved. We have asked for a paper from the secretariat on the kind of models that might be introduced if some of those matters were to be devolved.

“responsibility for seeking a derogation from the EC Directive on Equality would remain an excepted matter even if responsibility for 50:50 were devolved.

The Committee on the Programme for Government agreed by consensus that in principle the police, and the policing accountability framework, should be devolved.

The DUP and UUP were content that the responsibility for national security information and for the derogation from the EC Directive on Equality should remain as excepted matters. The DUP and the UUP opposed the 50:50 recruitment arrangements to the PSNI but were content that responsibility for them should remain as a reserved matter.

Sinn Féin wanted an end to MI5 in Ireland. MI5 could have no role in civic policing in the north.”

And that is a quotation. [Laughter.]

“The SDLP were of the view that there should be no role for MI5 in Northern Ireland.

Interesting — perhaps they can cover the South.

“SDLP and Sinn Féin wish to see all powers in that matter devolved.”

The SDLP and Sinn Féin believe that there should be robust accountability mechanisms for the appropriate bodies and office holders in the devolved administration for all national security operations in Northern Ireland.

“Sinn Féin and the SDLP wished to see decisions on 50:50 recruitment taken in the Assembly subject, where appropriate, to cross-community safeguards.”

That is a summary of how far we got in the PFG. Again, there is a similar situation where we have agreement in principle that the powers on offer, as transferred powers, be devolved to a future policing and justice department. We do not have a consensus on the other powers, including the EEC directive on equality, the 50:50 recruitment arrangements, the security services or anything else that was covered by that matter, and is an excepted power.

Does anyone wish to comment on those issues? Most of them have been covered in earlier discussions. Members, are you content to proceed on the basis that there is a consensus that those powers that are potentially transferable should be devolved to a devolved department? Secondly, are you content that we are awaiting a paper from the secretariat on some of those issues, such as 50:50 recruitment, containing models that the Assembly may adopt if the powers were to be devolved? Thirdly, are you content that in the meantime the Committee notes that there are diverse views on whether or not the powers that are excepted or reserved should be transferred to the Assembly? Are you content to proceed on that basis?

Members indicated assent.

The Chairperson:
We move to the issue of co-operation between the PSNI and the Garda Síochána in relation to a specific series of matters that are covered on page 13 of tab 2 of the Member’s pack. Those matters are governed by the Intergovernmental Agreement on Policing Co-operation, which is an international treaty, and therefore would have to be an excepted matter. However, the Northern Ireland (Miscellaneous Provisions) Act 2006 transfers certain aspects into the reserved field. Therefore, some of the matters in question are excepted matters and some of them have subsequently become reserved matters.

The arrangements for co-operation between the PSNI and the Garda Síochána cover: lateral entry; secondments, exchanges or training of officers; communications, including liaison and information technology; joint investigations; and disaster planning. Those are the matters that would devolve to the Assembly. The remaining aspects of the Intergovernmental Agreement on Policing Co-operation, and the agreement itself, which would not devolve, have been covered in terms of their being mainly excepted matters, with some having become reserved matters as a result of the Northern Ireland (Miscellaneous Provisions) Act 2006.

The Programme for Government Committee’s ‘Report on the Devolution of Policing and Justice’ records that there was a consensus, in principle, that:

“co-operation between the PSNI and the Garda Síochána in relation to a specific series of matters should be devolved.”

The DUP and the UUP were content that:
“matters relating to aspects of the Inter-Governmental Agreement on Policing not transferred into the reserve field by the Northern Ireland (Misc. Provisions) Act 2006 and the Inter-Governmental agreement itself, remain excepted and will not be devolved.”

That means that those matters are non-transferable.

“The DUP and UUP were further content that the reserved matters”

• those covered by the Northern Ireland (Miscellaneous Provisions) Act 2006 —

“ relating to specified aspects of international co-operation should be devolved.”

So the UUP and DUP were agreed that those reserved matters should be devolved.

“Sinn Féin and the SDLP wished to see all powers in this matter devolved.”

That includes the excepted matters covered by the international agreement.

“Sinn Féin’s position was that the existing Inter-Governmental Agreement should be only a foundation for increasing integration and harmonisation of policing and justice on an all-Ireland basis. The SDLP proposed that those matters outlined in the various Agreements should be transferred, continue to operate and be enlarged across a range of areas.”

That is the current situation. There is a consensus that the matters specified as transferable should be transferred to the Assembly. I have a further question for the SDLP and Sinn Féin: the DUP and the UUP were content that matters relating to aspects of the intergovernmental agreement on policing that have become reserved matters under the Northern Ireland (Miscellaneous Provisions) Act 2006 should be devolved —

Mr McFarland:
Are the matters listed here the same as those that appear in the Northern Ireland (Miscellaneous Provisions) Act 2006, or are there further matters?

The Chairperson:
I need to clarify that for you, Alan. As I understand it, the matters that are listed in the members’ pack are transferable. I do not have a list of the reserved matters that were identified in the Northern Ireland (Miscellaneous Provisions) Act 2006, but I can get that for you.

I will go back to my question for the SDLP and Sinn Féin. In principle, and, notwithstanding your views on excepted matters, is there a consensus that the reserved matters — subject to their clarification — identified in the Northern Ireland (Miscellaneous Provisions) Act 2006 should be transferred?

Mr McCartney:
Yes.

Mr Attwood:
Yes.

The Chairperson:
Members, it is advisable that we know what the reserved matters are before drawing a line under the consensus. However, I wanted to establish that, subject to the Committee having sight of the reserved matters identified in the Northern Ireland (Miscellaneous Provisions) Act 2006, there would appear to be a consensus that those matters should be transferred. I will park that on the side of the road until further clarity allows us to move forward. Clerk, perhaps we could tag that on to the next meeting at which we can establish if there is consensus.

I do not think that the Committee will reach agreement on the excepted matters today. Are Members content to proceed on the basis that there is a diversity of view within the Committee on excepted matters?

Members indicated assent.

Mr Attwood:
There is a real and practical issue to be considered. I know that the Committee awaits a briefing document on the North/South justice agreement, which is a sister to the policing agreement. I am not sure about the policing agreement, but I assume that, because it is a British/Irish agreement, it and the justice agreement, both fall with devolution.

Therefore, the practical issue is: what will the Committee recommend to be in place on day 1? To give an example, there is a motion on the Floor of the Assembly this afternoon. The motion, and the two amendments proposed, all agree that there is a need for some joined-up work in respect of registration of sex offenders and associated matters. Everyone is agreed that something must be done on an all-Ireland and British-Irish basis. Under devolution, all those matters fall. As a Committee, we have to decide how, between now and the date of devolution, whenever that may be, that which is desirable against any objective standard — and that is not to politicise the issue — should be in place on day 1.

The Chairperson:
In the Committee’s letter to the Northern Ireland Office, we have included the following:

“Furthermore, the Committee is interested to know what discussions there have been with the Irish Government, if any, in relation to the impact on any, or all, existing agreements and arrangements in circumstances where policing and justice matters were to be transferred, including the actions which would be required to amend or repeal existing agreements and the need to develop new protocols.”

We will, therefore, return to that issue.

Mr Attwood:
Ultimately, the Committee must decide what it wants to be in place on day 1.

The Chairperson:
That is correct. We are required to report on all the matters of preparation for devolution, and that would have to include what the Assembly must do to cover those issues. On the issue of sex offenders, for example, we would not want to be in a position where we had devolution but someone could escape through a loophole because we did not have a protocol in place. It is prudent that we look at that and consider to what extent we should recommend that new protocols and new agreements should be put in place.

Mr Attwood:
And new agreements?

The Chairperson:
I am all for new agreements, Alex. [Laughter.]

Mr Attwood:
Will this appear in Hansard?

The Chairperson:
It will, yes.

Mr Attwood:
I particularly welcome that comment.

The Chairperson:
It depends on the content of the agreement.

Mr G Robinson:
So long as the old agreements are got rid of.

The Chairperson:
We move on to the item dealing with firearms and explosives. That is on page 14. This is the licensing framework for firearms and explosives. Here, everything will devolve; everything referred to here is transferable.

“The Subgroup agreed by consensus to accept the conclusion of the Preparation for Government Committee that the NIO proposal for devolving responsibility for explosives to the appropriate Northern Ireland Minister was agreed.”

So there is consensus on that. There is also agreement by consensus that, in principle, responsibility for firearms should be devolved. The DUP proposed devolution that excluded legislative responsibility for prohibited firearms. In other words, the DUP’s view was that the power to legislate for prohibited firearms should not be a devolved matter. Sinn Féin and the SDLP proposed full devolution of all responsibility; and the UUP proposed devolution that excluded legislative responsibility for all firearms and administrative responsibility for prohibited firearms.

There was a consensus on the principle of devolving powers. However, on the specific issue of the legislative power, Sinn Féin and the SDLP take the view that all legislative power should be devolved; the DUP took the view that there should be an exclusion of legislation that deals with prohibited firearms; and the UUP took the view that legislative responsibility for all firearms issues, including the administrative arrangements for prohibited firearms, should be excluded — I am sure there are good reasons for that, but I have not read the transcripts.

Mr McFarland:
Danny and I are trying to figure out what the good reasons were.

The Chairperson:
I noticed the puzzlement on your face. It is obscure.

Mr McFarland:
Can we park that until we get clarity?

Mr Kennedy:
We will check that and return to it.

Mr McFarland:
It seems a bit strange. There must have been a reason for it at the time.

The Chairperson:
I am not sure whether it is related to terrorism. It may be. There could be some issue here. We need to check.

Setting aside the issue of legislating on firearms, are members content that there is a consensus that responsibility for explosives and firearms should be devolved to the Assembly? The DUP and the UUP will be asked to check their respective positions again, so that we can revisit the question of whether there is a consensus on devolution of all powers. Are members content to proceed on that basis?

Members indicated assent.

I assume that Sinn Féin and the SDLP remain of the view that all power should be devolved, and I ask the UUP and the DUP to clarify their view on the legislative provision for firearms and prohibited forearms. We will tack that on to the next meeting, if the two parties can report back then, to see if we can get a consensus.

I move on to the courts and to the administration and oversight of the Court Service in Northern Ireland, including the UK-wide functions for the Lord Chancellor relating to the judiciary and international relations, which will not devolve. I assume they are excepted matters.

The Principal Clerk:
Yes. International relations are excepted.

The Chairperson:
The Lord Chancellor’s functions under the Human Rights Act 1998 or the Data Protection Act 1998 will not devolve. The Programme for Government Committee agreed by consensus that in principle the courts should be devolved, and the DUP and UUP were content with the level of devolution proposed in the NIO letter of 15 August 2006. However, Sinn Féin and the SDLP wish to see all powers in this matter devolved including the Lord Chancellor functions relating to the judiciary, international relations, the Human Rights Act and the Data Protection Act.

Is there any change in the respective positions of the parties? Are members content to proceed on the same basis as before that there is a consensus that those matters that are transferable should be devolved through the Assembly, and that there is a diversity of view on those matters that are currently excepted, and there is therefore no consensus on requesting their devolution?

Members indicated assent.

The Chairperson:
That completes the deliberations, but do members want to make any general points on the Inquiry into Devolution of Policing and Justice Matters before we move on to other business?

Mr I McCrea:
In what sort of timescale does the Committee expect to make decisions on those matters? They certainly are contentious, for want of a better word, and at some stage they will be put to a vote.

The Chairperson:
The party deliberations will be completed early in November, and the Committee will then have to identify where there is agreement and where there is not. Detailed consideration of the contentious matters to see if a consensus can be arrived at will be in November, or early December, and in January the Committee begins the completion of its preparation of the report, so decisions will probably be in December.

Members must be clear that it is not the intention of the Committee to revisit those areas where a consensus is reached, either as a result of the discussions today, or in the future. In the latter stages of deliberation the Committee will only revisit issues where consensus was not reached to see how they will be dealt with, and how they will be reported to the Assembly

The purpose of today’s discussion is to ensure that there is a continued consensus on the matters that the Programme for Government Committee reached a consensus on, and to see how the other issues can be advanced. The Committee has usefully agreed to bring forward some further research on some of those issues, which will hopefully inform the Committee’s discussion and help it to find a resolution.