Official Report (Hansard)

Session: 2008/2009

Date: Tuesday, 02 December 2008

Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Alex Maskey
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr

The Chairperson (Mr Spratt):
We move now to the devolution of policing and justice. As is normal practice, I invite members to declare any interests. I declare an interest as a member of the Northern Ireland Policing Board.

Mr A Maskey:
I declare an interest as a member of the Northern Ireland Policing Board.

Mr Paisley Jnr:
I declare an interest as a member of the Northern Ireland Policing Board.

Mr McCausland:
I declare an interest as a member of Belfast District Policing Partnership.

The Chairperson:
We will move to the issues contained in members’ packs. Are members content for the Committee to go through these as we have done in the past? We will go through each issue: I will read them into the record, and we will then hear from each of the parties. Do members agree?

Members indicated assent.

The Chairperson:
We need to make decisions on the remaining unresolved issues, either by vote or by consensus. We need to be in a position where we can allow the outlining of the first draft of the report for the next meeting. With member’s agreement, we will consider the category one list of issues. Category one issues A and B have been agreed. We move to issue C:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee?”

I will take the views of the parties on that.

Mr Hamilton:
The issue is in two parts; the Minister’s “position in” and the “relationship with” the Executive Committee. I do not think that there is any particular issue about the “position in”. The “relationship with” is something that we have no fixed position on at the minute. We think that additional work is required on that. If there was a discussion on it, we would be happy to give some input to that discussion, but it is one issue that may take a bit of wider thought and agreement, perhaps at a later date.

Mr A Maskey:
We are also happy to give that a little bit of extra thought. Obviously, we are dealing with exceptional and interim arrangements, so more discussion needs to be held on that. I thought that that was going to be part of a more composite discussion as well, but we are happy enough to come back to this particular item again.

Mr Attwood:
The SDLP’s view is the same as that of last week. The justice Minister should be a full Minister, with a status equal to all other Ministers and he or she should have full Executive entitlement.

Mr Paisley Jnr:
I want to probe that matter. Do you support that concept regardless of the Minister’s identity, party, designation and the balance that his or her appointment brings to the Executive? Do you think that we need to consider when the Minister assumes that Executive role?

Mr Attwood:
In our view, the Minister should be elected — as is the case for all other Ministers — in accordance with the Good Friday Agreement and d’Hondt. The legal authority of that appointment will ensure that the Minister is equal to other Ministers and has full authority to carry out ministerial functions and Executive responsibilities.

Mr McFarland:
The Ulster Unionist Party takes a similar view. As other parties have said, policing and justice cannot be devolved unless there is confidence. The Minister should be elected under normal d’Hondt procedures and should have full ministerial responsibilities and Executive involvement.

The Chairperson:
There does not appear to be consensus; will we park that matter for further discussion at a later stage?

Members indicated assent.

The Chairperson:
We will move on to issue D:

“would the appointment of a Minister be an interim arrangement until the next Assembly election?”

Mr Hamilton:
As I said last week, the DUP agrees with the suggestion in the First Minister and deputy First Minister’s letter that there should be an interim arrangement until May 2012. We believe that the First Minister and the deputy First Minister need to have further discussions with party leaders to identify a potential candidate for justice Minister and to decide how to advance the nomination process.

Mr Attwood:
May I ask a question?

The Chairperson:
I allowed Mr Paisley Jnr to ask you a question. Therefore, I do not see why not.

Mr Attwood:
Is Simon Hamilton saying that the height of the process suggested by Peter Robinson and Martin McGuinness is identifying a candidate through conversations with party leaders? If so, when will those conversations commence? Furthermore, when will those conversations conclude? When will the Office of the First Minister and deputy First Minister name that potential candidate?

Mr Hamilton:
I cannot answer those questions. The process paper — with which we are content — includes the identification of a potential candidate for the post. I cannot comment on how and when those discussions will occur or who will be involved. Furthermore, the Committee should not take a view on those matters.

The Chairperson:
I call Alex Maskey.

Mr Attwood:
I want to comment —

The Chairperson:
I want to avoid a debate on that matter.

Mr Attwood:
I did not introduce the concept of further discussions; Peter Robinson and Martin McGuinness introduced it. Moreover, the DUP — not me — put it on the table this morning. If that party tells the Committee that further discussions with party leaders must take place, it is fair and reasonable to give members a sense of what those discussions might entail, how long they might take and what the outcome might be. The DUP can say that the issue is beyond its pay grade, and the issue may be beyond our pay grade, too. However, it is fair and reasonable to ask, two weeks after the devolution of policing and justice was announced, whether there is certainty about that process.

Mr Paisley Jnr:
I do not want to embarrass the member, but he should know about what is going on in his party, and between the leader of my party and the leader of his. That is all that I will say.

The Chairperson:
We will not get into any party discussions.

Mr A Maskey:
My party is happy that the First Minister and the deputy First Minister are talking to other parties — and not just party leaders; there are other interested parties in the Assembly. We are happy to take it forward on that basis.

Mr Attwood:
Our view is that there should not be any interim arrangements until the next Assembly election, and that the arrangement should be the appointment of a Minister through d’Hondt, nominated by the nominating officer of the party, to serve until the nominating officer withdraws that nomination. That should be the arrangement until 2011, and after 2011.

Mr McFarland:
We are getting into a slightly schizophrenic world, which we warned about some time ago. It is not at all clear what the First Minister and the deputy First Minister are asking us to do. We have been asked to do things, but they have not been specific about what those things are, and we are in a twilight world — it is not clear whether it is the Committee’s problem or the problem of the First Minister and the deputy First Minister. The issue is how all this can be done. It seems that there will be a Minister who will be in office up to, and presumably through, an election. What happens if the Minister is not re-elected? Normally everything stops for an election, and there is a new team for following the election, yet it seems that this Ministry will run through an election. It is all very strange.

My party’s view is the same as that expressed by Alex Attwood; the Minister should be appointed under the proper d’Hondt procedure for electing Ministers. The Ministry should be in operation until an election, at which point we are all re-elected and we have a new mandate, and then the d’Hondt procedure should be carried out again. The idea that there can be a Minister who remains in office through an election is very confusing, and it is not at all clear how that might happen if in fact the Minister does not get re-elected.

Mr Hamilton:
I do not think that that has ever been said. It is perfectly clear what will happen.

Mr A Maskey:
The question is whether the appointment of a Minister would be an interim arrangement until the next Assembly election. My party supports the position of the Office of the First Minister and deputy First Minister (OFMDFM), that that would run until 2012. Obviously an Assembly election will intervene in the middle of that and will take its course, and the appointment would presumably be remade on the same basis. We are happy enough to agree today that we accept the proposal from OFMDFM that the arrangement will run until 2012.

The Chairperson:
To answer Alan’s earlier point, the Committee can make a decision today.

Mr Hamilton:
I agree with the last comment.

Mr Attwood:
I would like some clarification of what Alex Maskey has said. Is the First Minister and deputy First Minister’s proposal that when there is an Assembly election in 2011, the process of identifying a candidate, consulting with the party organisations, the stakeholders and the public — which is outlined in their paper — should arise in respect of the person identified as the justice Minister at that time?

Mr Maskey:
The best response that I can give is that if the appointment was made through d’Hondt, the re-appointment would be made through d’Hondt in 2011. The process will follow. If we agree a mechanism for the appointment of a Minister, that mechanism will follow through. What we are agreeing is that that would be applicable until 2012.

Mr Attwood:
I understand that, but the question is whether the position, as Alex understands it, is that after that election, the candidate for the justice Ministry will be identified. Will there be any consultation with stakeholders, the public, or with party organisations in respect of that candidate, or not?

That is the process that is outlined in respect of the identification of a candidate and the issue of the devolution of justice. Does that same process arise in 2011?

Mrs Hanna:
Is it just for one year or until 2012? It is not very clear.

Mr A Maskey:
The proposition from the First Minister and deputy First Minister, which we are supporting today, clarifies that that arrangement will run until 2012. An Assembly election will obviously intervene during that period, but it will intervene on the basis of the d’Hondt method. If we agree a mechanism for the appointment of a justice Minister, which will obviously include the removal of a justice Minister or whatever else, that mechanism will apply in 2011 or 2012.

We support the First Minister and deputy First Minister’s proposition that that arrangement will run to 2012. Whatever happens after 2012 is another day’s discussion, but, up until then, that is what we are agreeing to. We support that decision.

The Chairperson:
There is a split consensus on this issue. There seems to be some agreement that the appointment be made until 2012, as was suggested by the First Minister and deputy First Minister.

Mr McFarland:
Are we happy that the two largest parties have definitely thought this right through before they vote on it? It is tied in with a number of other issues —

Mr A Maskey:
Suck it and see.

Mr McFarland:
It is all very well winging it, but it is quite —

The Chairperson:
You are suggesting the winging; I am not winging anything.

Mr McFarland:
I am talking about the First Minister and the deputy First Minister winging it, like it will be alright on the night. I am slightly worried, because this is a serious business. It is tied in with a number of other matters, such as how they are elected, whether we will abuse the process that we have set after agreements —

The Chairperson:
That is coming next. Perhaps it would have been better to address that issue first, but I have to take them in the order that they come. Perhaps issue E should have been sorted out first. I am quite happy to deal with that and then move to a vote, unless there is a consensus. I am quite happy to agree and put it to the Committee that the appointment would be an interim arrangement until the next Assembly election and beyond until 2012. Is that the consensus?

Some members:
No.

The Chairperson:
We have to agree whether the justice Minister is appointed until 2012. That is the issue.

Mr McFarland:
Is the Assembly legally allowed to bind how the next Assembly does its business? My understanding is that one Assembly cannot bind the following Assembly, which is what we are trying to do.

Mr Paisley Jnr:
No, we are not. An election would obviously be a determining factor. If a person is returned, the obvious assumption is that that person will resume office. The power is in the hands of the Assembly. If the First Minister is returned with a similar size of party share, the assumption is that he will remain as First Minister after the election. We are simply marking the card.

The Chairperson:
The proposal is about an interim arrangement; not about the person who will be appointed.

Mr McFarland:
I agree with what Ian said. Whatever mix of parties is returned after an election in 2011, it will be up to those parties to reinstate the system. If Sinn Féin and the DUP are still the lead parties, presumably they will reinstate that system and run it again.

The point that I am making is that the binding to 2012 is not binding after 2011 because there will be a new Assembly at that stage. If the DUP and Sinn Féin are the lead parties again, it is absolutely in order for them to continue with that system. If it turned out that the SDLP and the Ulster Unionists were the lead parties, they cannot be bound by the system because it will be up to the new Assembly to decide how it will deal with the issue after 2011.

If the same two parties are the lead parties after an election, that is fine and they can go on with their deal. However, the vote today — if a vote is taken — cannot bind the new Assembly after 2011.

Mr McCartney:
The First Minister said that at the meeting.

Mr McFarland:
It is important that we all understand that that will not be binding after 2011, although we may now say that you intend —

Mr Paisley Jnr:
There is no proposition on the table to bind any Assembly, so let us not have an unnecessary vote.

Mr Hamilton:
This Committee cannot bind anything anyway.

Mr McFarland:
Absolutely, but the vote is —

The Chairperson:
The meeting is becoming a bit of a free-for-all; we need to restore some order.

Mr A Maskey:
I missed that discussion, but having spoken to colleagues and read the Hansard report, Peter Robinson acknowledged that the current mandate of the Assembly cannot bind the next. If a different configuration of parties is returned in 2011, it will take whatever decision it deems fit at the time, but that cannot be predicted. OFMDFM has agreed to consider an interim arrangement to 2012, and has put that to the Committee in writing. After that, there may be a different arrangement, but that is a discussion for another day. Today, the aim is for the Committee to agree and endorse the position of OFMDFM to seek a temporary arrangement to run until 2012, and the appointment will be made through the agreed mechanism.

It is a serious business, as members know, and it took some time to arrive at this point. In responding to Alan, I want to ensure that all parties treat the issue seriously.

Mrs Hanna:
Over and above the fact that the SDLP does not agree with the arrangement, how can the DUP and Sinn Féin decide that it will run until 2012? I cannot understand that because it is beyond the date of the next election?

Mr McFarland:
The agreement has a caveat, as it depends on the DUP and Sinn Féin remaining as the lead parties. My point is that they can only bind the arrangement until the election in 2011. If they are still the main parties after the election, they can continue with it. However, the question is whether they can technically bind the new Assembly into adopting the system. That is what Mr Maskey is saying by stating that the arrangement will continue until 2012. My point is that the arrangement will continue until the election in 2011 and if the DUP and Sinn Féin remain the two lead parties after the election, they intend to extend it to 2012.

Mr A Maskey:
Some members here are members of councils, some of which agree 10-year corporate strategies. All councillors know that they cannot bind the next council to anything. Nevertheless, councillors try to set out their goals. Sinn Féin and the DUP are putting to the Committee a proposition, which is that we hope and expect the arrangement to run until 2012. If a different configuration of parties is returned, it will do what it wants.

Mr McFarland:
That is OK, as long as we understand the background.

Mr Attwood:
I want to pick up on something that Ian said, and he may be taking a common-sense position. He said that the assumption is that after the election in 2011, the existing justice Minister will return to that office. I want confirmation that that is OFMDFM’s assumption, as Ian understands it.

Mr Paisley Jnr:
My assumption is that in 2011, if, after an Assembly election, Peter Robinson is returned as the leader of the largest party, he can assume that he will be First Minister. I assume that most Ministers will make the same assumption unless they are told that they are part of a reshuffle, as will apply to the Ministers in your party. That is a fair rule of thumb to use.

Mr McFarland:
Yes, but they may become Ministers of different Departments because d’Hondt will be run for every Ministry other than policing. Alex is right, and he asked a good question: if, for example, Sinn Féin and the DUP agree that Alex Attwood be the Minister between now and 2011, and the deal is that he runs until 2012, will Alex Attwood be back again as policing Minister, appointed by those two parties, between the election in 2011 and the close of this arrangement in 2012? In other words, will it be the same person, will there be a new negotiation to appoint a different Member of the SDLP, or will there be a rerun so that the DUP and Sinn Féin may choose a Member from another party?

Mr A Maskey:
You missed a stage there, because people have to get elected first.

Mr McFarland:
I am assuming that they will.

The Chairperson:
There is much hypothetical discussion, and I will ask the Committee Clerk to contribute.

Mr Attwood:
I was speaking and other members spoke across me. I am not being obscure, but there seems to be an assumption that the people who are in Government in May 2011 will still be in Government in June 2011. That is often not how parliamentary democracies, Governments or parties work. The DUP and Sinn Féin are saying that there will be an interim arrangement until 2012 that is separate from the election of any Minister. Indeed, there has been much toing and froing on that matter for many months.

Is it the working assumption of the DUP and Sinn Féin that the person nominated to hold the Ministry until 2011 will hold the Ministry until 2012 at least? That seems to be the case, because if a justice Minister is in position as soon as possible after an Assembly election, it is not likely that there will be another cumbersome consultation with the public, the parties and the stakeholders. I would like clarification on whether that is the working assumption.

If legislation issues — for both Westminster and here — arise from the Committee’s report, it would be damn right for the parliamentary draftsman to want to know what the interim arrangement means. If the Committee tells the parliamentary draftsman that our assumption is that something will happen in 2011, he will come back and tell us that he cannot draft legislation based on an assumption that is not a certainty.

Mr Paisley Jnr:
I will clarify that matter. The d’Hondt system will be run when the Assembly returns after an election. When the Assembly votes on that package — after the election — it will also vote on the justice Ministry. That is what will happen, so the legislation will not be based on an assumption. The only assumption is whether the same person will be the justice Minister.

Mr Attwood:
I am not being difficult. The DUP and Sinn Féin intention is natural, but it needs to be defined. Otherwise, it will not be possible to draft legislation that reflects that decision.

Mr McCausland:
As Ian mentioned, the possible or probable outcome of the process has nothing to do with the legislation. There is clearly an understanding in OFMDFM about the process that should be used to produce a justice Minister.

Mr A Maskey:
We are not making any assumptions or judgements, and we cannot predict the outcome of the next election. We want to endorse the OFMDFM proposition that the interim arrangement should continue until 2012, and we put that to the Committee.

The Committee Clerk:
A distinction is being made between the process and the individual who might be elected or appointed as a consequence of that process. It may help the Committee to consider the matter in sequence. The Committee could make a recommendation based on the question of whether there should be an interim arrangement until 2012, and that recommendation would be included the Committee’s report.

It has not been specifically stated, but the Committee expects the report to be debated in a plenary sitting. The Assembly would endorse that report and its recommendations. There would then be a question of whether there needed to be legislation for any of the report’s recommendations. There would then be a question as to whether the Assembly would need to legislate for any of the recommendations in the report or whether it would need to amend Standing Orders or introduce new Standing Orders to give effect to the recommendations that it had endorsed.

After the whole process has been followed, the Committee would return to its consideration of issue C, which is the method for removing and replacing that Minister, once appointed. I hope that that helps members’ understanding of the sequence of events.

Mr McFarland:
Have you taken any legal advice on that, or is it ultra vires for the Committee to suggest and recommend that there should be legislation that takes us through an Assembly election? Is it worth getting such advice before we commit to the proposal?

The Committee Clerk:
I have not sought any legal advice on the question. That would be a matter for the Committee, if it felt that such advice would be useful.

Mr Hamilton:
The Assembly agreed a 10-year investment strategy. You will find that that covers at least three Assemblies.

The Chairperson:
The question is whether the appointment of a Minister would be an interim arrangement until the next Assembly election.

Mr McFarland:
You mean until 2012.

Mr Hamilton:
It is May 2012.

Mr McCartney:
As outlined in the letter?

The Chairperson:
Yes. That has been the general thrust of the conversation.

Question put, That item D be included in the report; that is —

That the process for appointing a justice Minister as an interim arrangement, until 2012, as outlined in the letter of 18 November 2008 from the First Minister and the deputy First Minister.

The Committee divided : Ayes 7; Noes 3.

AYES

Mr Hamilton, Mr McCartney, Mr McCausland, Mr A Maskey, Mr O'Dowd, Mr Paisley Jnr, Mr Spratt.

NOES

Mr Attwood, Mrs Hanna, Mr McFarland.

Question accordingly agreed to.

The Chairperson:
We will move on to item E:

“What would be the arrangements for removing and/or replacing a Minister once appointed; should the triple lock within the Executive apply to decisions of the justice Minister?”

Mr Hamilton:
As in the First Minister and deputy First Minister’s letter, we agree that the appointment should be made by cross-community vote. Likewise, replacing an individual in that position in the interim period should be done by the same method. Removal, as I stated last week, should be done, I imagine, by cross-community vote as well.

Last week, issue E was a sort of dumping ground in which we stuck everything that we did not like the look of. The question from the semicolon onward says:

“should the triple lock within the Executive apply to decisions of the justice Minister?”

I do not e ven like the phraseology of “triple lock”, because it could be confused with something else. Should that, or could that, be moved back to issue C? I think that it sits more neatly with:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee?”

It elaborates on the relationship.

The Chairperson:
We moved some items last week, and revisited others. I imagine that, if there is agreement, it can be done. It is part of the discussion. We will hear everybody’s views, including your suggestion.

Mr A Maskey:
I agree with Simon’s point about the triple lock. It is a discussion for another day. It is a misnomer in this context. I am happy to move that “triple lock” bit to another section.

We support the cross-community vote for the appointment of the Minister. Logically, that follows through to the retirement, replacement or removal of the Minister. However, my party would prefer to take that forward through further discussion with the First Minister and deputy First Minister and the other parties. It should be teased out a little bit more, but there is nothing major.

Mr Attwood:
I agree that the triple lock issue should go into item C. Therefore, P will also go into item C.

The Chairperson:
Sorry?

Mr Attwood:
Item P will go into item C as well. It is the same issue.

The Chairperson:
Let us stick to item E in the meantime.

Mr Attwood:
D’Hondt arrangements should be used for the appointment of a Minister. Therefore, it would fall to the nominating officer of the party to remove or replace a Minister who is nominated under that process.

Mr McFarland:
My party is happy that it goes to item C and is, logically, part of the normal Executive process. Like the SDLP, my party has a major issue with the business of a cross-community vote. The current system is simple and works for all other ministerial appointments. Again, if confidence exists for the matter to be devolved, the Assembly should be confident enough to use the normal system.

It is particularly strange that the DUP and Sinn Féin did away with cross-community support for election to the two key posts, those of the First Minister and the deputy First Minister. A weird situation exists, therefore, in the most important posts in the country, that of First Minister and deputy First Minister, are no longer required to be elected by cross-community vote. Those parties are now trying to do the same with the post of justice Minister. It is most peculiar that that is more neuralgic to the DUP and Sinn Féin than the election of the First Minister and deputy First Minister by cross-community support, when they are the top two posts in the country.

My party believes that the matter should be dealt with normally under d’Hondt and that a Minister should be replaced by the party’s nominating officer, who has that entitlement.

The Chairperson:
We have agreement, therefore, that the second component is moved to item C. As regards the matter of appointing or removing a Minister, there is, obviously, a split of opinion as regards the 50:50:50 method. More work needs to be done on that issue.

Mr A Maskey:
We are happy with the method of appointment. As regards removal and replacement, however, there are a couple of wee issues about which we have doubts. However, they are not major or significant. I want a little bit more time to discuss them with my party colleagues. Certainly, we are more than happy to proceed with appointment on the basis of cross-community support, as per the letter and commitments from OFMDFM.

Mr Hamilton:
My party is also happy with appointment by cross-community vote and the 50:50:50 method. Perhaps, we can leave the issue of removal and replacement for another day.

Mr Attwood:
My party wants cross-community support to be used —

The Chairperson:
There is no point in continuing discussion on the matter. We shall, therefore, vote on whether the Minister will be appointed by cross-community vote.

Question put, That the Minister will be appointed by cross-community vote.

The Committee divided: Ayes 7; Noes 3.

AYES

Mr Hamilton, Mr McCartney, Mr McCausland, Mr A Maskey, Mr O'Dowd, Mr Paisley Jnr, Mr Spratt.

NOES

Mr Attwood, Mrs Hanna, Mr McFarland.

Question accordingly agreed to.

The Chairperson:
More work needs to be done on the terminology that will be used in the report on removal or replacement of a Minister. Are we agreed?

Members indicated assent.

Mr Attwood:
Can we agree that other parties will discuss the matter further? Under the cross-community vote proposal, who do the DUP and Sinn Féin propose will nominate a Minister?

Mr Paisley Jnr:
The party’s nominating officer.

Mr Attwood:
Is that also Sinn Fein’s position?

Mr Paisley Jnr:
It is like ‘University Challenge’.

Mr A Maskey:
We are happy to support the concept that the First Minister and deputy First Minister will advance the matter with other parties.

Mr Hamilton:
I agree that the matter is one for the First Minister and deputy First Minister to advance. Their role is to identify a candidate.

The Chairperson:
Therefore, you are saying that the First Minister and deputy First Minister should nominate a Minister after discussion with other parties?

Mr A Maskey:
They will advance that discussion with other parties. I consider that to be part of the process.

Mr Hamilton:
We agree.

The Chairperson:
Issue F has been agreed previously. Issue G is:

“What would be the structure of the Policing and Justice Department and what functions should be placed there and/or OFMDFM?”

Mr Hamilton:
We were asked to go away and reflect upon that question. We have done so. Recommendation 23 of the original report contained a list of bodies, which, we believe, should go to a new justice Department. We are happy to agree with that. Responsibility for the bodies and agencies listed in recommendation 23 should lie with the new justice Department.

Mr A Maskey:
We are happy with recommendation 23.

Mr Attwood:
We are satisfied that those functions should be placed within OFMDFM, subject to our view that there should be broader functions as well that have not been identified in —

The Chairperson:
Did you say OFMDFM?

Mr Attwood:
I am sorry: I meant the policing and justice Department. They should be placed within that Department, subject to our view on excepted matters.

Mr McFarland:
We are in broad agreement with the report as made earlier in the year. My only question is about the sponsorship of a number of organisations, and where their funding and responsibility would lie. We talked about the Public Prosecution Service (PPS) and a number of others.

The Chairperson:
That is recommendation 24.

Mr McFarland:
Are there any others out of the list, or is it just that?

The Chairperson:
Recommendation 23 has been agreed upon; or are you saying the policing and justice Department?

Mr McFarland:
We are on issue G, are we not?

The Chairperson:
Yes.

Mr McFarland:
We then look to the organisational chart, which the Committee Clerk provided. Most of those were in our report from earlier on in the year, and my party supports those. There were some outstanding areas. Perhaps the Committee Clerk would remind us as to what those were.

The Committee Clerk:
They are contained in recommendation 24, with one exception: the Judicial Appointments Ombudsman, which featured in recommendation 23.

In my assessment, there is not absolute clarity on the location of the Public Prosecution Service, which is mentioned in recommendation 24. There is also an issue with recommendation 30, which relates to the Office of the Police Ombudsman and who should be responsible for making appointments to the Police Ombudsman’s Office. A question mark hangs over the location of the Parades Commission. That is probably impossible to resolve now, because it relates to item M, which the Committee has not yet addressed. However, that would only be an issue if there was a decision to seek to have the matters under the Public Prosecutions Act 1994 transferred, and that was not requested by the Committee last time around. The other two are the Judicial Appointments Commission (JAC) and the Judicial Appointments Ombudsman: the difficulties there were really about funding streams for attachment purposes.

Mr McFarland:
On those last items, a point was made by OFMDFM when its representatives attended that, although the Judicial Appointments Commission recommends the judges, OFMDFM was to announce or designate them officially. OFMDFM has now backed off that, and left it to the Judicial Appointments Commission to make the appointment. The question is whether, given the sensitivity over OFMDFM doing that, we are all happy that the Judicial Appointments Commission remains funded by OFMDFM, or should it not be funded by the justice Department? Is OFMDFM fully happy with that situation, and are we happy with it?

Mr Hamilton:
I do not think that that was the point. As seems to be customary today, Alan is moving on to other issues that are not necessarily the ones that are meant to be under discussion. Just to clarify, at last week’s discussion on JAC, we made the point that the appointment of judges would probably require legislation.

The Chairperson:
Are there any other issues?

Mr Attwood:
Prompted by what the Committee Clerk said, I feel that we have to make a decision about where funding responsibility for the PPS will be located. As I understand it, at the moment, the proposal is that the funding for the PPS will come from OFMDFM. Maybe we have not defined that matter, but there was certainly a discussion about whether responsibility would lie with OFMDFM or the Department of justice. I could never quite work out why it was suggested that OFMDFM be the funding body. Unlike some of the other stuff that we have discussed, this matter is not highly controversial. However, we have to make a judgement call on which Department should have that responsibility, because accountability will follow on from responsibility for funding. If the funding comes from OFMDFM, accountability for funding will lie with that Department’s Ministers and Committee. Similarly, if the justice Department is given funding responsibility, that is where accountability will reside. We must decide on that matter.

The Chairperson:
We can highlight that issue in the report, given that most of the finance matters will be dealt with in category two, anyway. Would that be a way around the problem? Could we highlight the issues in the report?

Mr Attwood:
We are being asked what the structure and functions are and whether they should lie with the Department of justice or OFMDFM, so we must make a decision about that particular function and where it resides.

Mr Hamilton:
As you say, Chairperson, at this stage, the list of functions is not exhaustive. Other functions could be added to the list.

Mr A Maskey:
We have already agreed that that matter is a category two issue.

Mr Attwood:
No, it is not, Alex. Finance is a category two issue. The issue under discussion is one of function, namely the function of who gives the PPS its money. It is not about the amount of money, it is a matter of who gives it to the PPS — is it OFMDFM or the Department of justice?

Mr Hamilton:
Chairperson, I know that you do not like members to jump backwards and forwards on issues, but issue M asks whether there is a need for further clarity of the powers to be devolved, and, if so, should they include matters relating to the Public — sorry, I misread that. Scrap everything that I just said. It is a salutary lesson in why members should not jump ahead.

The Chairperson:
We shall wind the tape back. I will ask the Committee Clerk to provide some clarity on the matter.

The Committee Clerk:
Members will find two pages in their briefing papers: a chart from the Northern Ireland Office and taken from the Secretary of State’s letter of 15 October 2007. The letter indicates that the future sponsor of the Public Prosecution Service would have a consultative relationship with the Attorney General for Northern Ireland, and the PPS would be resourced by a Northern Ireland Department. Thus, the letter does not specify whether the service would be resourced by OFMDFM or the Department of justice. It is a matter for the Committee to consider, given that it is deciding on the location of the other organisations that form the policing and justice family.

Recommendation 26 of the original report says:

“The Committee recommends that the Assembly should review whether there is merit in the Public Prosecution Service being attached to the Department with responsibility for policing and justice matters, and should consider what the implications would be for the structure of the Public Prosecution Service.”

It was in the mind of the Committee the last time round to try to reach some decision as to the location of the PPS, and it seemed to be veering towards the Department of justice. If there is more work to be done on that matter, it can be revisited.

Mr McFarland:
Do we need more advice? Do we need to remind ourselves of the evidence that we received on the issue in the lead-up to the report? There were differing views on the ability to influence the decisions of the PPS and the ability to call it to account on its operation, but, obviously, not on any decisions that it makes on prosecutions. The Committee had concerns about those issues. Do we need to revisit the evidence that we received from the Court Service and the judiciary previously?

The Committee Clerk:
Your comments are relevant to recommendation 27 of the Committee’s original report, which states:

“The Committee recommends that the independence of the PPS and its accountability to the Assembly should be examined before, and following, the devolution of policing and justice matters to produce recommendations which would, in turn, be considered by the Assembly.”

There was some scope to look at it previously, but I think that there was a presumption that it was a matter for a Minister and the statutory Committee. It was suggested that they could tease out the nature of the relationship and the extent of the independence.

Mr McFarland:
I agree with the accountability aspect; that is right. However, we will require more guidance as we decide whether the PPS will be answerable to OFMDFM or the Department of justice.

The Chairperson:
Are members content with the list contained in recommendation 23?

Members indicated assent.

The Chairperson:
Are members content that the Judicial Appointments Ombudsman is transferred to the Department of justice?

Members indicated assent.

The Chairperson:
There needs to be more discussion around some of the issues.

Mr McFarland:
It had been decided that the Judicial Appointments Ombudsman and the Judicial Appointments Commission would be the responsibility of OFMDFM — not the Department of justice. Has that changed?

The Chairperson:
The JAC is going to — [Interruption.]

Mr McFarland:
The chart states that it is transferring to OFMDFM, as is the ombudsman.

Mr Hamilton:
Mr McFarland, you are working off another report. We are looking at recommendation 23. There are other bodies, which are not in recommendation 23.

The Chairperson:
We are looking at recommendation 23, which is in members’ papers.

Mr McFarland:
That was related to devolving. The area to which it will devolve is in the chart.

Mr Hamilton:
That is an NIO recommendation.

The Chairperson:
It had been recommended originally that the future sponsor of the Judicial Appointments Commission and the Judicial Appointments Ombudsman would be OFMDFM. However, we are saying now that the Judicial Appointments Ombudsman will go to the Department of justice. Is that correct?

Mr Hamilton:
As per the Committee’s original report recommendation.

Mr McFarland:
It said that those organisations would be devolved, but it did not say to where. The chart displays where they will be transferred to.

Mr Hamilton:
Recommendation 23 states:

“The Committee recommends that the following organisations should transfer, as proposed, to the new Department,”

I presume that that does not mean that they will be transferred to a new housing Department, for instance. We are talking about a new justice Department. The Judicial Appointments Ombudsman is on the list in recommendation 23, but the Judicial Appointments Commission is not.

The Committee Clerk:
The Committee agreed, originally, that all those should go to the Department of justice. However, the NIO proposed that the Judicial Appointments Commission and the Judicial Appointments Ombudsman would go to OFMDFM. The Committee is reaffirming the original recommendation. Are we clear on the fact that the JAC and the JAC Ombudsman would go to the Department of justice?

Mr Hamilton:
Yes. Sod the NIO.

The Chairperson;
Are we clear on that?

Members indicated assent

The Chairperson:
On recommendation 24, will our report say that further work is needed on the issue of the Public Prosecution Service?

Members indicated assent.

Mr Attwood:
I said that work also needs to be done on the JAC.

The Chairperson:
Would that work be done by the justice Department?

Mr Hamilton:
We will come back to discuss all the bodies that are listed in recommendation 24.

The Chairperson:
We will return to discuss recommendation 24 of the Committee’s first report into policing and justice.

We move on to point H:

“What arrangements need to be in place to ensure that members of the Statutory Committee for any new Department should not sit, simultaneously, on the Policing Board or any district policing partnership at the point of devolution?”

At last weeks’s meeting, there was general agreement that members of the new Committee would not also sit on the Policing Board or the district policing partnerships. The issue was whether procedures to cover that would need legislation or whether that could be done through Standing Orders. Some additional work needs to be done on that issue. The Committee Clerk will provide some advice on that. Are members agreed that there was general consensus on the matter at last week’s meeting?

Members indicated assent.

The Committee Clerk:
Under matters arising, I mentioned that I have formally requested legal advice to establish whether such a measure could be achieved by Standing Orders or whether some other mechanism, such as legislation, may prove to be more appropriate. I expect to have that advice for the Committee by next week’s meeting.

The Chairperson:
Are members content with that?

Members indicated assent.

The Chairperson:
Issue I and issue J have been moved to category 2. Issue K and issue L are agreed.

Mr Attwood:
I wish to ask a question related to issue L to which I can anticipate the response. Curiously, in the House of Commons last week, Peter Hain asked the Secretary of State, Shaun Woodward, whether there was any intention to introduce the phased devolution of justice powers. The Committee has already agreed that there should be no shadow Ministry and no shadow Department. Is any consideration being given to the phased devolution of justice powers so that they are not all devolved at once but in parcels?

The Chairperson:
We have already agreed on issue L for the report.

Mr Attwood:
I know that, but I am referring to a different matter.

The Chairperson:
So you are simply raising a question.

Mr Hamilton:
The DUP’s position is as it was.

The Chairperson:
None of us can speak for the Secretary of State.

Mr Hamilton:
I try not to speak for him.

The Chairperson:
I am loath to get into a discussion on that. We have already made a decision on that issue, and I pointed that out for the purposes of the record.

We move to issue M:

“Is there a need for further clarity of the powers to be devolved, and, if so, should they include matters relating to the Public Processions (Northern Ireland) Act 1989, flags and symbols and recruitment to the PSNI?”

Mr Hamilton:
As we stated last week, the DUP’s position is that we should walk before we can run. It is desirable to consider some of those matters. We are happy to consider the legislation on public processions, but we await the outcome of the Ashdown review. If that review is due to report at the time of our consideration of the issues in category 2, there may an opportunity to invite Lord Ashdown to have a conversation about that issue.

Mr A Maskey:
Fundamentally, we all want all powers to be transferred, but Sinn Féin does not make any specific proposals. I agree with some of Simon’s comments; we are content that no further action needs to be taken.

Mr Attwood:
We also believe that all those matters should be devolved, and that we could spend some time on the difficult work of identifying whether there are any mechanisms that could be in place, whereby issues such as appeals against the decisions of the Parades Commission could be devolved in a way that would earn public confidence and cross-community support. We believe that they should be devolved, but that they should be devolved with protections. Not today but some other time, the Committee could look at what those protections might be.

I am prepared to look at Mr Hamilton’s suggestion that Lord Ashdown might come before the Committee. However, that may depend on the Committee’s time frame, which could be considerable. There may be other people who we could usefully consult with, and the Committee could come back to that also.

Mr McFarland:
The process of 50-50 recruitment to the PSNI is due to be phased out in 2010 when the Patten proposals finish. The issue of flags and symbols was dealt with after 1998 and some of that is a national issue anyway. As regards public processions, we need to wait and discuss further the whole Ashdown procedures and where parading goes.

The Chairperson:
I think that there is general consensus. There is a risk of pre-empting the Ashdown report. Can the Committee revisit that issue? Everybody is in consensus that we may need to revisit that issue, and that would be beyond our first-stage report.

Mr Attwood:
I can understand why you made that comment. However, I do not think that it is complete. Whether Ashdown reports in January or whenever, it is highly unlikely that there will be any legislation to give effect to any of the report’s proposals within a year or two. Therefore, if we assume that we will have devolution of justice within a year or two, it will come in advance of any legislation that the Ashdown report may recommend — if at all. We need to put a marker down about the powers that the Secretary of State currently has to hear an appeal from the Chief Constable in respect of a Parades Commission determination. That is not a devolved matter, and it has been hinted by the NIO that it should not be devolved — even with devolution.

We have to separate Ashdown, and what he does or does not recommend, from, and in the event of, devolution. We have to separate Ashdown, and what he does or does not recommend, and how long it might take before it becomes law, with the fact that we hope that we will have devolution of justice before that might arise.

The Chairperson:
Is there general consensus that we are basically parking this issue in the meantime, taking into consideration Alex Attwood’s points, and that there needs to be further discussion on category 2 issues? Are members agreed?

Mr Hamilton:
I think that there is general agreement on the stuff that is going to happen.

The Chairperson:
Are we agreed?

Members indicated assent.

The Chairperson:
Issue N has been agreed already. Issue O relates to category 2. Issue P:

“Should the “triple lock” within the Executive apply to the decisions of a Policing and Justice Minister?”

has been moved to issue E. Is that correct?

Mr McCartney:
It is part of issue C.

Mr Hamilton:
Issue C via issue E.

The Chairperson:
So, issue P is moved to issue C for further discussion? Are members agreed?

Members indicated assent.

The Chairperson:
Finally, issue Q:

“Is there any requirement to seek to have any ‘excepted matters’ devolved?”

Mr Hamilton:
No.

Mr A Maskey:
Again, we would prefer that all those matters were devolved. However, at this time, we are not making any specific proposals.

Mr Attwood:
All excepted matters should be devolved.

Mr McFarland:
They are national issues, and they were left there specifically because they are national issues.

The Chairperson:
So, there is general consensus that there is no requirement. Is that agreed?

Mr Attwood:
No.

The Chairperson:
It seems that there is general consensus around the table, with the exception of Mr Attwood’s comments. Is that agreed? There are no proposals for any further —

Mr Attwood:
I propose that we consider excepted matters in order to determine what further matters could be devolved.

The Chairperson:
I did not catch your proposal, will you repeat it?

Mr Attwood:
I propose that we consider further the excepted matters category in order to determine what matters might be devolved.

The Chairperson:
Mr Attwood proposes that we further consider excepted matters in order to determine what further matters might be devolved.

Question put, That the Committee further considers excepted matters in order to determine what further matters might be devolved.

The Committee divided: Ayes 5, Noes 6

Ayes

Mr Attwood, Mrs Hanna, Mr A Maskey, Mr McCartney, Mr O’Dowd.

Noes

Mr Hamilton, Mr Kennedy, Mr McCausland, Mr McFarland, Mr Paisley Jnr, Mr Spratt.

Mr Attwood:
Sorry Chairperson, but you raced through the matter of what protocols and procedures will be required between the Minister, an Assembly Committee and any newly established Department and its associated agencies.

The Chairperson:
That is a category 2 matter.

Mr Attwood:
Further to our letter, has there been any contact from the NIO with regard to the protocols and memoranda?

The Committee Clerk:
Not since our letter was sent.

Mr Attwood:
Has there not even been private contact to indicate that we would receive a response soon?

The Chairperson:
We have agreed to write again to remind the NIO to expedite its reply.

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