Official Report (Hansard)

Session: 2008/2009

Date: Tuesday, 27 January 2009

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 Alex Maskey
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr

Witnesses:
Mr Victor Hewitt ) Economic Research Institute of Northern Ireland

The Chairperson (Mr Spratt):

As is customary, I invite members to declare any interests. I declare that I am a member of the Northern Ireland Policing Board.

Mr McCausland:

I am a member of the Belfast District Policing Partnership.

Mr Paisley Jnr:

I am a member of the Policing Board.

Mr A Maskey:

I am a member of the Policing Board.

The Chairperson:

There are no members from any other parties present. I invite Victor Hewitt to join us. You are very welcome, and we are very glad to have you on board.

There is no doubt that a lot of people on the Committee are worried about various budgetary shortfalls. Some of that has been in the public domain. The Committee has agreed that it will visit some of those areas, because we have to be satisfied that we have the full picture before us. We have also indicated that we will continue with the complementary process, despite what the Northern Ireland Office (NIO) has said. As we get information back, we intend to pursue that path as a Committee. We also intend to call some of the organisations at various points as we get that information.

I know that Mr Hewitt has already been briefed and will bring the Committee up to speed on where we are, and take some questions after that.

Mr Victor Hewitt (Economic Research Institute of Northern Ireland):

Thank you, Chairman. My task is to assist the Committee as much as possible, in order to help you to understand what financial position you are liable to inherit when these matters are brought into the Northern Ireland public expenditure block. In the past, some elements of the policing and justice system have been within that block, but the proposals at the moment are to include further elements, such as the Court Service, which was never part of it before. In some respects, you are entering unchartered territory in doing that.

My experience of this, going back to the 1990s, is that matters such as security and law and order have a way of working themselves up the priority list once they are in place. Since the block is fixed overall, you will find that those matters tend to squeeze out other things.

I have been looking at the overall figure work for the NIO. Typically, the overall budget had been rising until the last spending review. The future projections from that are on a downward track. At the time of the negotiations a year or so ago, I mentioned to the parties that they must not forget about the comprehensive spending review out-turn for the NIO, because that was something that would be coming down the track. The temptation in the Treasury is always to put pressure on.

A range of issues has been identified. For example, the NIO faces a 5% efficiency cut, as opposed to the 3% efficiency cut in the Northern Ireland Civil Service. That will impact on us in two ways. First, it will mean a general reduction in the baseline of the block as a whole. Secondly, you will find that there will be less money in the organisations when they are taken over than there appears to be at the moment. Land sales have more or less dried up, so the financing of the capital programmes is under some pressure. If these bodies are brought in, they will be made part of the overall civil service reform programme. I can see no provision within any of the NIO bodies for incorporation into the reform programme. There are issues such as Account NI and so on.

There is a growing bill for legal claims on the police side. We have seen some quantification of that in the last few days. It may have been somewhat exaggerated, but it is a very substantial amount of money. The legal-aid budget itself is under considerable pressure. There is no provision for additional payouts for victims at the moment. Prison costs here are running well ahead of the equivalent in GB. Those are just some of the issues which will bring their own pressures with them.

Our task at the moment is to go through such figure work as we have available. The various bodies have been written to requesting further information. When we get that, we will trawl through it to see how it stacks up. I have had some difficulty in reconciling the figures that we already have. There seem to be some substantial changes between the figures that we were given by the Secretary of State some months ago and the updated figures. There are quite large changes in the underlying budgets. None of them seem to fit against the departmental reports either. That may be simply the result of internal monitoring exercises, moving money around, but we need to get to the bottom of that.

The other point that you will need to bear in mind is how you are going to fund policing and justice in the future. The Northern Ireland block is effectively tied to expenditure in England through the Barnett formula. Therefore, when a spending review takes place, the standard formula is that we get a share of comparable spending in the rest of the UK. If, for example, health spending rises, we get a share of that extra spending.

Comparability is usually around 100% — most of the things done in the UK are also done here. The proportion, based on population share, is about 3%. Law and order expenditure will be no different. There will be law and order elements in the spend in England, of which Northern Ireland will get a share. However, any extraordinary elements in our block that do not have counterparts in the rest of the UK will create a pressure on the block as a whole. A classic example of that is the water service; there is no comparable spend in England.

Those are some of the preliminary issues that the institute has identified. We are going through the figures and have, on occasion, been less than happy with the arithmetic that has emerged. I saw a freedom of information request submitted to the PSNI about overtime. The cost was broken down into civilian and police overtime as percentages of the total bill, and the total had been calculated by adding the two percentages together. That is only correct if the same overall total is being used. Therefore, an answer of 16% was given, when the true answer was 10%. Little things like that worry me.

Mr Paisley Jnr:

Is that called cooking the books?

Mr Hewitt:

In fact, that is shooting oneself in the foot, by stating that more than the actual amount of overtime is being worked.

The Chairperson:

Thank you. I know that it is early days and that there is a lot of work ahead of the Committee. Members have already identified many of the issues that you have raised.

Mr Paisley Jnr:

You posed the question of future funding, which is a matter that will exercise the Committee. Have you identified any models or frameworks for funding, or is it simply a Barnett exercise?

Mr Hewitt:

It is very much the latter. The Treasury is very much wedded to the Barnett formula — although it may become unwedded, given the present financial crisis. The standard procedure is that once a baseline is established, it is adjusted through the various components of the Barnett formula. There are actually a large number of subprogrammes that aggregate up into the overall departmental allocation. If that is to be the case, it is important that the baseline starts from the right position. If you start with a deficit you will continue to have a deficit.

Mr Paisley Jnr:

You have obviously started work on identifying that baseline, but, if the figures that you have at the moment do not add up, is it possible to get even a ballpark figure of where the baseline is?

Mr Hewitt:

The figures add up in that they provide totals, but reconciling those totals to other published information is not particularly easy at present. As I said, we are at only the beginning of a process that will be studied in considerably greater detail. I have not found much information about some of the gaps that have been mentioned, and the computation of that is quite important.

Mr Paisley Jnr:

I imagine that finding projections for expenditure by the Police Service is slightly easier because of the voluminous publications on policing compared with other Departments. Have you delved into that yet?

Mr Hewitt:

Yes, we have been collecting the annual reports of the relevant bodies in order to get a handle on their spending. However, the general principle that applies in these matters is that about 80% of the actual spend is generated by around 20% of the bodies. In other words, there are large spending bodies that must be looked at, and smaller ones that, given the time and resources, can be looked at. As far as the finances are concerned, the budget is driven by the really big bodies such as the PSNI and the Prison Service.

Mr Paisley Jnr:

Have you started to consider legal aid? I think that that is where the big black hole will be.

Mr Hewitt:

I have seen some very large figures that I have been unable to verify. It is well known that the UK system of legal aid is generous, and Northern Ireland tends to be top of that list. At the moment, I feel that the legal aid budget is in substantial deficit.

Mr A Maskey:

I want to caution myself — and, at some point, the Committee — as we progress through this exercise. I am conscious that we do not want to end up with a series of reports and figures and budget projections from various agencies that are trying to put themselves in a negotiation position. We must determine the real need. If the Committee is to play a significant role in the process during the time ahead, we need to know what is really needed rather than what might be worthwhile or a good idea [Inaudible due to technical difficulties.]. How can we ensure that we do not end up as someone else’s advocate by default?

Mr Hewitt:

You are really talking about what are technically called needs assessment exercises, which are difficult to do. The basic idea is to take some benchmark — usually expenditure in England — and look at the objective factors that drive that expenditure, such as population figures, the distribution of the population among various age groups, and other factors that are not easily changed by human intervention. Then you look at Northern Ireland’s objective factors relative to those in England to determine how far away from that benchmark we are. That will take you a certain distance, but there will always be special factors. Given Northern Ireland’s historical background, the special law-and-order factors will be substantial. It is doable, but it is not an exact science — I wish it was.

Mr McFarland:

Along with others here, I was a member of the Policing Board for its first five years, and I sat on the finance committee. It is clear to everyone that there are a lot of legal bills, claims bills and legal aid. An enormous chunk of money goes towards various legal expenses, on which it is sometimes difficult to get a handle. I suspect that, although we can address broad-brush issues, we need to go into the figures to work out whether we can remove any of the impediments to good use of finance.

Some impediments may not be moveable. For example, during my time on the Policing Board, a constable took the police to court about overtime allowances. The judge ruled that, because the constable had received £9,000 a year in overtime in previous years, he was entitled to expect £9,000 a year as part of the settlement. These weird, esoteric things happen, and, therefore, we need to mine into that area in due course.

The Chairperson:

That was a comment rather than a question.

Mr Hewitt, you will, undoubtedly, examine the papers. We have a letter from David Lavery of the Court Service, in which he indicates that he is happy to reply on behalf of four other agencies: the Criminal Injuries Compensation Appeal Panel for Northern Ireland; the Northern Ireland Legal Services Commission; the Northern Ireland Judicial Appointments Commission; and the Northern Ireland Judicial Appointments Ombudsman. We have already indicated that we are happy enough that he replies, but we made it very clear that we may also seek information from the other individual organisations.

Mr Paisley Jnr:

Does he bid for those organisations in the comprehensive spending review?

The Chairperson:

I assume that he does.

The Committee Clerk:

I do not honestly know. The letter only arrived yesterday. I tried to reach him to have a discussion, but was unable to. If it will be helpful, I can take that issue up and establish what the arrangements are.

The Chairperson:

We want to be clear that we are running a complementary process. The letters that come in should be copied to Mr Hewitt. Do members agree?

Members indicated assent.

The Chairperson:

Does the Committee note the letter from the Court Service?

Members indicated assent.

The Chairperson:

The Clerk will speak to Mr Lavery about the issues that were raised. Thank you very much, Mr Hewitt. It has been short today. I think that we will be seeing each other on a fairly regular basis. You are very welcome to stay on or to escape.

We now move to the category-two list of issues.

Mrs Hanna:

I apologise for being late. I presume that you received Mr Attwood’s apologies. I think that he is in the Chamber, which is where I am also supposed to be.

The Chairperson:

I think that Simon Hamilton has probably escaped as well. I understand that today is particularly busy. I will note the apology from Mr Attwood.

I remind members that these proceedings are being recorded by Hansard. I intend to go through the category-two list of issues in the same way that we did previously — by going round the different parties. Obviously, we are not going to hear from the SDLP. We will deal with the issues in the order that they appear; I will read them and then ask the parties to make their initial comments. Issue A is whether there is a need to endorse recommendation 22 of the Committee’s original report — that the post of Attorney General should be a full-time role, at least initially.

Mr Paisley Jnr:

I am content with that proposal. I think that the role of the Attorney General should be full time for the initial period and the set-up arrangements.

Mr A Maskey:

I endorse that position.

Mr McFarland:

I am also happy with that proposal.

The Chairperson:

I think that there is consensus on that proposal. The Committee is content that the post of Attorney General be a full-time role, at least in the initial period. We move to issue B, which concerns who will be responsible for appointments to the judiciary.

Mr Paisley Jnr:

Edward Gorringe — I think that he is the chief executive of the Judicial Appointments Commission (NIJAC). I think that NIJAC should be responsible, and I also think that some of the appointments are the responsibility of the Prime Minister. I cannot envisage when those arrangements would change.

Mr A Maskey:

The matter was addressed in the letter from the Office of the First Minister and deputy First Minister (OFMDFM) on 18 November 2008. I am happy with the way that the matter was addressed.

The Chairperson:

We will refresh our memories on that.

Mr Paisley Jnr:

I am not proposing anything different. There is no political role as such, so NIJAC is the obvious body to undertake the role.

Mr McFarland:

I would like clarification. I understand the letter dated 18 November to say that, although the proposal was that OFMDFM would appoint the judges, it was always going to be NIJAC that selected them; OFMDFM would merely make the official appointment. OFMDFM then said that it would take no further role and allow NIJAC to appoint the judges. What is the legal position on that?

Traditionally, NIJAC has done all the sifting, assessing whether people are adequately qualified and so on. It was then the Prime Minister, the Secretary of State or whoever who made the official appointment. Presumably, that is why the role of making the official appointment was to be transferred to OFMDFM. What are the legal implications of a sudden change being made to the effect that the body that undertakes the selection procedure also makes the appointment? That would be a different system from elsewhere in the UK. Also, who appoints members of NIJAC?

Mr Paisley Jnr:

NIJAC is already appointed.

Mr McFarland:

There is concern about judges being appointed by OFMDFM, but my understanding is that the people who sit on NIJAC are appointed by OFMDFM.

Mr McCartney:

Only five of its members are political appointments.

Mr Paisley Jnr:

I think that there are 12 altogether.

Mr McCartney:

Yes; but only five are political appointments.

Mr McFarland:

I would like that to be examined further.

The Chairperson:

A briefing paper will be drawn up to deal with the points that you have raised. I think that it is around five.

Mr Paisley Jnr:

NIJAC is a balanced commission; it has five political appointments in addition to professional commissioners. The commission could be in place for a considerable period of time, with people needing to be replaced as they die or retire. It is not a case of block appointments being made every so often.

Mr McFarland:

I would still appreciate clarification on the matter.

The Chairperson:

In relation to the point that Mr Maskey raised, the letter states:

“In order to ensure the independence of the Judiciary responsibilities … the appointment and removal of judicial office holders would rest with the Judicial Appointments Commission.”

Does that provide clarification?

Mr A Maskey:

Yes.

The Chairperson:

Do members agree that we should park that subject until we have a look at the research paper?

Members indicated assent.

The Chairperson:

The next item is the relationship between the Serious Organised Crime Agency (SOCA) and the security services, the Minister, the Department and the Assembly.

Mr Paisley Jnr:

The security services should be available to give regular briefings to the future Minister and Committee, if necessary. The Policing Board receives regular briefings from SOCA and the security services. That should be the be-all and end-all of the relationship; as a devolved administration, we should have only a briefing relationship. National security is national security, and the administration and direction of national security starts and stops with the Prime Minister.

Mr A Maskey:

We do not currently have any control or authority over the relationship. Therefore, it will probably rest, as Ian Jnr said, with a briefing role, and we will probably have to develop that. Is this really a category-three issue? In a sense, our party is easy, because I suspect that there is not going to be a change in the relationship between now and the transfer of power. Rather than return to this question next week or the week after, I suggest that it might really be a category-three issue, although I am not moving that formally this morning.

The Chairperson:

Are you putting that formally?

Mr A Maskey:

I am trying to look at the realpolitik of it. We will not change the current relationships as they are set out, and Ian Jnr is also making that point. Therefore, at least at this point, we would probably defer it because we are not going to change it. However, it will be on the basis that there will need to be some understanding.

Mr McFarland:

It is most unfortunate that Alex is not here as this is his favourite topic above all else.

Mr Paisley Jnr:

I am delighted that he is not here. Let us get it sorted.

Mr McFarland:

As Ian said, these are national security issues. However, I believe that there is an issue – and it is the same issue that we had on the Policing Board when it was transferring this stuff from Special Branch to the security service, which is that there needed to be in place protocols and memoranda of understanding on people’s rights with regard to the access of information. One could argue that although national security is a case of just national security, other issues will arise through SOCA, whereby organised crime issues that are quite within the remit of our Police Service and Courts Service here — although handled by SOCA — are not national security issues per se. It would probably be quite useful if we had a clear idea of what those issues were before they were transferred here, and how information will be handled by our Minister and our Department and, therefore, our Police Service.

I understand that some of the issues regarding the Police Service are already in place — they were put in place at the time of the transfer. However, it would be useful for us to satisfy ourselves that we are not missing a trick as regards having the matter tied up before it comes across, because it may not be possible to tie it up afterwards. Therefore, it would be useful to get some idea, perhaps from the Policing Board or the Chief Constable, and perhaps even the Courts Service, as to what sort of things might need to be tied up before we transfer. Issues are involved that are outside national security, but which are handled by those organisations and will impinge on our system here after devolution.

The Chairperson:

With regard to the memoranda, perhaps that is a point that the Committee might also like to take up with the NIO when it appears before the Committee, which we want to do reasonably quickly.

Mr McFarland:

We have asked for those already.

Mr A Maskey:

That is obviously the way to go in the short to medium term. However, our view in the longer term would be that some of the data-related matters perhaps need to be dealt with by being transferred into the Police Service. That is another discussion for another time. Sinn Féin’s view on that will not change tomorrow, or this side of the transfer of powers. We may never change it. Therefore, further consideration will be given to those matters. That is why I am suggesting that memoranda may be the best that we will get in the short term, and we have already started that in train with the NIO. Given that we are taking the matter forward on that basis so far at least, I am not so sure that we will get much more out of having more discussions on that every week. Therefore, I am suggesting that it might be a category three matter.

Mr Paisley Jnr:

I take the point, and we should caution against constantly going to an issue that has already been at an operational level. I will not use the word “satisfaction”, but there has been satisfactory progress and there is now a settled relationship between the Policing Board and how it interacts with SOCA and the security services. Some of us are satisfied with that and others might want to change it. However, the fact is that there is a settled relationship, and that is an operational issue. Why would we want to bring those operational matters, over which we would have no jurisdiction anyway, into week in, week out discussions in this forum? I do not think that that is necessary.

That is why I believe that if we can we settle on the view that if a regular briefing is established between the Minister and the Department and the security services and SOCA, that regular briefing satisfies on a knowledge basis. However, as regards a policy and operational basis, operations would rest with the police, and policy and operational direction of the security service would rest with the Prime Minister. That is the way that it should be.

Mr McFarland:

I agree with that, but that is not what I am talking about. I understand that the NIO has agreed memorandum protocols as to how those organisations will link in with any new Department, and that has been part of the ongoing discussion. For some time, the Committee has asked for sight of those in order to understand how that relationship is to work. I am not proposing that we discuss this every week, and certainly not the operational side of things. However, I am keen to see that for which Alex keeps agitating: for the NIO to come to the Committee and update us on the position and explain how that relationship will work after devolution. It would be useful to get that issue clear in our minds before policing and justice matters are devolved. Clearly, there will be further discussion afterwards.

The Chairperson:

In that case, the Committee agrees that it will take that issue up with the NIO, and defer it in the meantime. It is not for discussion on a weekly basis, but we will raise some of those points with the NIO.

Mr McFarland:

Excellent.

The Chairperson:

We now move to issue D:

“What needs to be done to ensure the maintenance of existing North/South policing and justice agreements?”

Mr Paisley Jnr:

My party is very supportive of appropriate co-operation between this jurisdiction and any other jurisdiction with which we have to have a good security relationship with regard to sharing of information about, for example, sex offenders, drug dealing, serious crime and people trafficking. There needs to be good, genuine co-operation in place.

Further to the previous question, protocols are established. Let us see what they are. If we are satisfied with them, so be it. If we think that more work needs to be done, then let us develop that debate after we have explored the protocols. However, we do not think that simply establishing another formal tier in the North/South Ministerial Council will address that; it will merely amount to creating another tier. It should be dealt with appropriately by examining the protocols that exist and see whether there is work to be done. If there is work to be done, we are prepared to do it. If there is no work to be done, which I doubt, then so be it.

The Chairperson:

We have joined together issues D and E, because they are related. What do members think?

Mr Hamilton:

That would be sensible.

The Chairperson:

Do members agree that issues D and E fall into each other? Issue E asks:

“Is there a requirement for a Justice Sector of the North/South Ministerial Council?”

That has been addressed by Ian. Are members happy to join those two issues? It seems to me to make sense.

Mr Hamilton:

We could say that we cut down on our issues by one.

Mr A Maskey:

From Sinn Féin’s point of view, we would certainly want to maintain and continue with the agreements that already exist. We believe that it is necessary to have a justice sector in the North/South Ministerial Council. [Inaudible due to technical difficulties.]

The Chairperson:

I do not think that any of us are 100% clear on what the agreements are in relation to some of the issues.

Mr Paisley Jnr:

We know that they do not cover parking fines.

The Chairperson:

We will not go into that.

Mr Hamilton:

Ian is an expert on them.

The Chairperson:

That will obviously come up in the protocols about which we will be talking to the NIO. Members may want to ask the Chief Constable when he next appears before the Committee what arrangements exist. Some members know some of the arrangements and co-operation that exist. I believe that those are matters that the Committee needs to tease out.

Mr McFarland:

I agree with you. The operation of it is fairly good, but, as I recall from previous discussions on these issues, a number of legal systems will collapse on the devolution of policing and justice matters. I believe that the Committee already decided that we should replicate those systems, because they were important. Perhaps we can refresh ourselves, today or in due course, on what those systems are and what the Assembly needs to do in order to re-establish them. It would be useful, too, to get another briefing on the North/South justice sector with regard to what exists and what we need to do in order to maintain that.

I believe that the Committee also talked about what other developments had occurred. As you will recall, the two Governments set up a group, which was made up of civil servants, to take forward discussion on areas of mutual interest. The last time that we met with NIO officials, I think that they ducked the issue, or their answer was not quite clear. Therefore, the next time that NIO officials appear before the Committee, perhaps we could re-examine whether there are any other areas that are at present unseen — that were, so to speak, cleared away before devolution, but that may, in fact, impact on us afterwards.

The Committee Clerk:

The issue was raised during deliberations on the category one list of issues, and it was suggested that, when the Committee became involved in category two list of issues, it would be useful to have an early session with the NIO on the whole range of memoranda of understanding protocols.

It is also worth pointing out that, in reflecting that issue in correspondence with the Secretary of State, he suggested that such information could be shared only after it had been provided to the two Administrations. That assertion by the Secretary of State was challenged in the most recent letter from the Chairperson of the Committee, and we have not received a reply to that. That is the up-to-date position.

The Chairperson:

Given that the Committee is calling in the NIO, and given the wider context surrounding the financial issues, I presume that we would want to keep them two separate issues, as opposed to everything being combined into one briefing.

Mr McFarland:

For the record, the Ulster Unionist Party does not see any need for a North/South Ministerial Council meeting on policing.

Mr Attwood:

I apologise for arriving late, but I had to speak in the Chamber.

The arrangement in respect of North/South policing is between the PSNI and the gardaí. Therefore, that does not fall, in part or in full, with the devolution of justice and policing. We can certainly have a meeting with the police to discuss what that means and what more could be done, but it will fall outwith the responsibility of the Assembly.

The second issue is that there are elements of the justice agreement between the British Government and the Irish Government that will fall at the point of devolution, and there are elements that will continue, because they fall within the responsibility of the British and Irish Governments. However, the area that is not within their sovereign responsibility, and which is a North/South element, will fall. That is the end of it, unless some arrangement is put in place for it to continue. Given that most of this is important but politically neutral, if I may put it that way, it seems to me that the Committee should, at least, be saying that those are the elements that will fall, and will it cause us any difficulty to renew them in order that there is not a gap in, for example, protections on a North/South basis, which might otherwise happen. If that part of the justice agreement falls, the Committee should, as a minimum, be trying to get to the point whereby we can sign off on an arrangement entered into at the point of devolution between the Dublin Administration and the North Administration.

It would be worthwhile asking not just what the agreement says, but what is the programme of work that is being taken forward at an official level between the respective justice Ministers, so that we can get a sense of all the work that they do, and a sense that it is not a threatening mandate, but rather it is commonsense work that is necessary for the welfare of the citizens North and South.

There are proposals to extend that justice agreement and to have a justice sector of the North/South Ministerial Council. All of that can be outlined during the course of our conversations. For now, however, we must get our heads around whether we can agree to continue those elements that will fall on the day of devolution, and then take forward from that the other elements on which we might potentially agree.

Mr A Maskey:

To return to Alan’s point: relevant, ongoing structures already exist, and I suppose that it would be possible to work around them. With regard to issue E, we believe that a justice sector of the North/South Ministerial Council is needed. It would probably be helpful to identify what currently exists within those structures. I suppose, therefore, that the specific question is what needs to be done. Do we need legislation? Do we need to ask for legislation? We need to work out exactly what currently exists. Let us answer that question, because it may well be answered very simply. [Inaudible due to technical difficulties.]

The Chairperson:

I sense that the Committee needs to have further discussion on that matter. We are pretty much agreed that we want to speak to the NIO about protocols, and so forth. I ask you formally whether we agree that D and E are joined as one issue.

Mr Hamilton:

Agreed.

The Chairperson:

Perhaps around the middle of February, given our work programme, we can schedule an early meeting with the NIO on the specific issue that we just discussed, and take it from there. Therefore, we will park the issue in the meantime until those arrangements are made. The Committee Clerk’s office will go ahead and make those arrangements for a convenient time in the not-too-distant future.

Mr Attwood:

I propose that if this is a North/South justice arrangement, it seems to me that we should invite officials from the Department of Justice, Equality and Law Reform, because it is not a one-sided issue. They might have a view about what should or should not happen on the far side of devolution. It seems to me that in order to complete the circle, we should invite the other partners in the current arrangements without prejudice to whatever future arrangement we might propose.

Mr Paisley Jnr:

I have no objection to that in principle, as long as it carried out separately. I hope that they do come. They did not come the last time the Policing Board invited them. It would be interesting to see if they could come.

The Chairperson:

But that would be separately?

Mr Paisley Jnr:

Absolutely.

Mr Attwood:

Separately on the same day, or around the same time anyway?

The Chairperson:

We will see what arrangements can be made. I am not going to be tied down. I want to give the Committee staff some flexibility to arrange an appointment, and I will not tie them down to dates.

Mr A Maskey:

Can we ask the NIO to provide us with some of that information in writing before its officials appear before the Committee? I believe that the Committee would find that useful.

Mr Hamilton:

It would be useful in every case for witnesses to provide a written briefing.

The Chairperson:

OK. We will arrange for the Committee office to start to deal with that matter.

We shall now proceed to issue F:

“What is the extent of the financial provisions for a department which would exercise the range of policing and justice functions?”

Mr Hamilton:

Think of a number and multiply it by 100.

Mr McFarland:

That is Victor Hewitt’s area, is it not? We discussed that already.

The Chairperson:

Yes, the Committee discussed that at an earlier stage and decided that we would deal with it as a separate issue. Letters were sent out after the briefing that we received from our specialist adviser. I do not see any real value in a round-table discussion on the matter now. We are waiting on advice and on letters to come back.

Mr Paisley Jnr:

Issue I in the category one list, to which a reference is appended to issue F, asks:

“How, and when, should the financial negotiations with the NIO be conducted, and by whom?”

I think that members need to cast their minds with regard to how that would function. Would that involve, for example, the justice Minister working up his bid, taking it to the Minister of Finance and Personnel, and the Minister of Finance and Personnel then making a proposal? That is how other Departments operate. Is it the same sort of arrangement that we envisage, because we may have a different arrangement for justice money? It might be funny money. How do we conduct those negotiations — [Inaudible due to technical difficulties.]

The Chairperson:

That might be an issue that the Committee might want to take up with the First Minister and deputy First Minister, too.

Mr McFarland:

OFMDFM told us in its letter that it and the Finance Minister will be negotiating with the NIO and the Treasury for that first tranche. Thereafter, presumably it becomes a normal function of government. Money will come in accordance with the Barnett formula and, presumably, the Finance Minister, in discussion with the Minister for justice, will then talk to OFMDFM and, once it is in place, it will become a part of the normal budgetary process. I understood, however, that OFMDFM and the Finance Minister will negotiate for the initial tranche.

The Chairperson:

Can we then defer issue F and come back to it?

Mr Attwood:

I would like to comment on the point that Ian made — which, if I understand him correctly, is a valid point. Whatever negotiations are going on between OFMDFM and the NIO, there may be some point in the Committee thinking through some of the overarching issues. Therefore, the question posed, for example, by issue J in the category one list of issues — “Should any budget be ‘ring-fenced’?” — is something that the Committee might want to consider in its deliberations. I suspect that the London Exchequer will try to bend OFMDFM to accept that, in order to get some financial guarantees up front, OFMDFM might begin to send out signals as to, for example, what the total size of the Police Service might be in due course. I can envisage the Committee — not, perhaps, now but in four or five weeks’ time — wanting to converse generally about overarching issues such as that and ring-fencing budgets, along the lines that Ian outlined.

The Chairperson:

Can we park that in the meantime? The finance issue is, obviously a big one and one to which the Committee will return, and I imagine that we will return to issue F frequently.

Let us now turn to issue G:

“What, if any, consideration should there be of the Ashdown Report on Parading?”

Mr A Maskey:

On a minor procedural matter: could issue G not just as easily be included in issue L?

The Chairperson:

Does the Committee agree to reallocate issue L to issue G? Issue L now reads:

“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 Paisley Jnr:

I believe that we are slightly ahead of ourselves on issue G and that we really need to await the publication of the Ashdown report and see if there are any significant changes to what we assumed would be in it. Therefore, I think it may be premature to discuss that item.

Mr McFarland:

Have we a timescale for the publication date?

Mr Paisley Jnr:

I have no idea. It might be worthwhile the Committee Clerk trying to find out how long is a piece of string.

The Chairperson:

We can do that.

Mr Paisley Jnr:

Simon Hamilton is interested in issue L.

Mr Hamilton:

I know that there has been controversy about some aspects of issue L, and we have discussed whether we should be even delving in to them. As with some of the Committee’s other discussions, it will, perhaps, take time to reach a definitive position on that. The point was made previously that the subject of flags, for example, is difficult enough without lumbering it with additional problems. Having received a hospital pass to talk about issue L, I would like more time to reflect on that.

Mr A Maskey:

The point has already been made that we cannot deal with the Ashdown report on parading until it is published. The other two things that Sinn Féin is content to include are — [inaudible due to technical difficulties.]

The Chairperson:

I am not sure that Simon did not indicate that he had a query on the category three list of issues. He said that we needed to see the Ashdown report first in order to see what emerges from that.

Mr McFarland:

The parading issue needs to be sorted before devolution. Uncertainty cannot remain around the issue of parades because, if disagreements were to take place on it every year, it is the one issue that would put the policing and justice budget into orbit. The issue needs to be sorted for good. Given that, among other considerations, it is not clear whether Ashdown will recommend that the remit of the Parades Commission be extended, we should park the issue.

The matter of flags and symbols, which is set out in issue L, was dealt with some time ago. It is covered by legislation, and it was part of the original agreement; and system of recruitment to the PSNI is sorted out in 2010 when the current system will return to normal. Therefore, those are, in a way, non-issues, and I am not sure who raised them in the first place because that are not directly related to our considerations.

The Chairperson:

I believe that they came out of one of the party leader’s letters and party submissions. Most of the issues that were raised came out of party submissions.

Mr Attwood:

Given that the Committee has reached this stage of its discussions, the NIO and the Ashdown report team owe it to us to provide some certainty about their progress on the issue of parading, which, to some degree, is hanging over the debate. Ian — cryptically — talked about where the Ashdown team might be in respect of its proposals, and I suspect that it will dilute its proposals as time goes on.

In the run-up to devolution, one of the first questions that people will be asked, after questions on finance, is how parades will be managed if there is a bad season. That is part and parcel of the financial discussions that might take place, so the Committee should ask the NIO when it expects that Lord Ashdown will publish his report. As I understand it, the membership of the Parades Commission is due to be advertised this year as its term has concluded.

Mr McCausland:

It has been extended for a year.

Mr Attwood:

When was that announced?

Mr McCausland:

It was announced very quietly. Towards the end of 2008, the current term was extended for a year.

Mr Attwood:

Has it been extended until May 2010?

Mr McCausland:

I think that it was due to run out in December 2008, and it has now been extended until December 2009.

Mr Attwood:

Even at that, if new legislation were to result from Ashdown’s report — and I hope that there is not much — December 2009 might yet be the time at which justice is devolved or not. There needs to be some certainty about where they are, when they will be published and what the Government might do. I suspect that those questions will be met with a very loud silence; however, I think that we must find out where things are.

The Chairperson:

Would it be more appropriate for me to write to Lord Ashdown and ask him exactly what the position is at the moment? Is the Committee in favour of that?

Members indicated assent.

Mr McCausland:

We talked earlier about finance, and now we are talking about parades. Every year, the cost of policing protests is astronomical. It would be helpful if the PSNI could give us a sense of the cost of its policing operations. There is clearly a connection between the financial issue — which is considerable — and reaching a proper resolution on parades and protests.

The Chairperson:

The police have a breakdown of costs.

Mr McCausland:

It would be useful to have that.

The Chairperson:

Those questions can be asked; the figures can be made available.

Mr McCausland:

It is worth getting a global figure.

The Chairperson:

We move to issue H:

“In the context of Recommendation 26 of the Committee’s original report, to which Department should the Public Prosecution Service be attached?”

Mr Paisley Jnr:

In order to keep the strapline of the Public Prosecution Service — to provide an effective prosecution service — it should be attached to the Department of Finance and Personnel (DFP). Essentially, the relationship will be about ensuring that the Public Prosecution Service (PPS) is properly financed and resourced, but ultimately independent of the Government.

The Chairperson:

This came from category one.

Mr Paisley Jnr:

The rationale is that there is a financial relationship with that agency. [Inaudible due to technical difficulties.] There is no ministerial role.

Mr A Maskey:

We think that it should be linked to OFMDFM. [Inaudible due to technical difficulties.]

Mr McFarland:

I am curious as to how this is handled in Scotland, which is the closest mirror of our system. At a previous meeting, the Republic of Ireland’s Court Service and the Scottish Court Service briefed us; however, I cannot quite remember how they handled this matter. They had changed their systems to try to protect the agency and to ensure that there was no question of any perception of political interference or budgetary constraints on the PPS. Can we park this until we find out how it is handled in Scotland?

The Chairperson:

We can return to it next week.

The Committee Clerk:

Would it help if — [Inaudible due to technical difficulties.]

Mr McFarland:

Yes; it is worth reminding ourselves what they said. The head of the Public Prosecution Service has a view on this; perhaps the Attorney General-designate has a view. This issue has been neuralgic for some time now, and it is worth getting more advice from those involved in order to get it right.

Mr Attwood:

Ian’s comments confirm one of the issues around that, namely that the height of accountability for the PPS will be around administration and finance. Although that is significant in itself, I do not think that it is the range of accountability that it should. That is why one of the post-devolution issues will be how we can get a better accountability culture around the PPS without interfering with its independence. I think that that can be done, and I think it essential that it is done.

I may have misunderstood Ian, but the Minister and the Committee will have a very particular role around the administration and budget of the PPS. It is not that that independence will mean that you cannot touch the agency; it is that the agency will have to account for how it spends and administers the money. I do not think that DFP is the right place for that; the justice Department would be a much more appropriate home. The nature of the business that that Department will be carrying out will mean that it will have a much better knowledge of how the justice pound is being spent. If it has responsibility for all of the justice agencies, then it will bring to the accountability function an insight borne of the fact that it lives in that world. In my view, it would be very useful to ensure that one of the biggest budgets in the justice system — that of the PPS — is spent and administered appropriately. I do not think that it would compromise its independence by being placed there.

The Probation Board is an independent body, as is the justice agency; a whole range of organisations are independent bodies, but will be part of the justice family and the justice Ministry. The PSNI will be so more than any other body. Whatever its level of accountability to the Assembly, subject to the role of the Policing Board and the district policing partnerships, it will be in the justice family. No one is saying that, because it will be in the justice family and there will be a justice Minister and a justice Committee, it will be any less independent. In parallel, I think it is self-evident that the PPS should go into the justice Ministry arrangements.

I do not understand why, given all of the evidence, the PPS should be any different. Why should the PPS be taken out of all of that and given to DFP? It is the first time that I have heard that suggestion, but I understood that there was to be a conversation between Sinn Féin and the DUP around the function staying with OFMDFM. It is the first time that I have heard that DFP is going to be the preferred home, as the DUP sees it, for the future of the PPS.

The Chairperson:

I think that that issue has been looked at a previous meeting on the category-one list. That is my recollection.

Mr McFarland:

Was the original NIO recommendation that it went to OFMDFM?

The Chairperson:

Maybe we can come back to that in the additional information. We are not going to resolve this today because there are three different views on where it should be, and at least one party has asked for more information. There is more information coming back. Is the Committee agreed that we park this issue for the moment?

Members indicated assent.

The Chairperson:

We move then to issue I:

“In the context of recommendation 27 of the Committee’s original report, about examining the independence and of accountability of the Public Prosecution Service, before, and following devolution, what consideration should be given to this matter, pre-devolution?”

Mr I Paisley Jnr:

Can you read recommendation 27 to the Committee?

The Chairperson:

Recommendation 27 states that:

“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.”

Mr Paisley Jnr:

What do you think that means?

The Chairperson:

I thought that you were going to tell us.

Mr Paisley Jnr:

It is a recommendation of our Committee, but it is open to interpretation. It is a reporting function, but it not as though it is just an annual report. It is more than that. I would like to park the issue.

Mr A Maskey:

We are happy enough to come back to this. However, we think that it sits more readily with OFMDFM.

Mr McFarland:

This is the issue that Alex has just raised, as to how these organisations should be accountable to us. There are two aspects. One is the provision of administration and finance for these organisations; we are paying their bills. The Assembly should be interested in how they spend their money and should have the ability to question whether they are doing it wisely. There is the administration side — are they working well? We look at everything else through the Departments.

That is one aspect; the other is more difficult. As you know, we were warned off this issue by a number of senior legal figures — I leave it at that — who did not want politicians anywhere near any of this. However, if the public is paying the bills, and our constituents complain about how badly things are working, the Assembly will want to have the ability, not to question the judgement of judges, or the PPS on its decisions as to whether to prosecute, to hear the evidence. There is an issue of broad policy which will interest the Assembly and its Committees.

The question is how we do that. The original proposal was that the Attorney General would turn up every so often in the middle of the Assembly, sitting on a little dais, and be open to questions. The issue is whether the Committee can speak to the Lord Chief Justice or the chief executive of the Court Service, and how all that is to work. This question is related to that. One can argue that that will go live on devolution. Post-devolution, we may want to have these people talking to the Committee and Assembly and so on. These issues have to be discussed. They are extensive and, politically, potentially fraught. Perhaps we should park them and refresh our memories as to what the various organisations said to us, using our original report, which contains a lot of evidence from senior legal figures about this. We can discuss it in due course, but not today.

Mr Attwood:

When the original recommendation was proposed, the word “before” was not included. I proposed that that should be incorporated, and I had reasons for doing so.

I will characterise what I have been looking at. Over and above the fact that there is going to be some relationship to a Northern Ireland Department, there remain issues about how the PPS conducts its own internal affairs. A management board should be created to manage the internal affairs of the PPS because of the extent of Assembly and ministerial responsibility for its finance and administration. However, that is different from hands-on management responsibility. A management board should be created, and it should be structured out of the current management of PPS. I do not say that I recommend that model but, one way or another, we have got to a point where responsibility for managing the police without compromising its operational independence comes through a Policing Board made up of politicians and community representatives. There is a need for a management board, composed of appropriate people — I do not prejudge who they should be — to be responsible for managing the Public Prosecution Service. I anticipate that such a management board would reflect a range of interests and inputs on how the PPS can best be managed.

We should begin to probe into some policy areas at this stage, because they are very important. For example, during discussion on either the Preparation for Government Committee or the Programme for Government Committee — I cannot remember which one — there was a unanimous agreement that we were unhappy with the current PPS policy in relation to giving reasons for cases collapsing or prosecutions not being pursued. That arose from a particular, prominent case in which prosecutions were withdrawn that were very relevant to this Building and to neighbouring buildings. At that stage, the Committee unanimously agreed that we should look at the policy for instances when cases collapse or are not pursued and that, within reason, more should be done by the PPS in respect of that. That is a critical policy issue.

In our negotiations with the British Government at Hillsborough, when the British Prime Minister agreed to a range of SDLP proposals, the one that he, Jonathan Powell and the then Lord Chancellor resisted was to do with the giving of reasons. That was the one issue that provoked most resistance and opposition from the British systems, both legal and political. There is a reason for that. We agreed unanimously, and we should look at the issue of giving reasons in order to determine whether we can develop that policy further, because it is very restrictive at the moment. It would be useful to look at that as a representative issue.

I am looking at the structural matters to do with the PPS and relevant policy areas around the PPS. Given that we have a number of months before policing and justice powers are devolved, we should probe into those areas now. It might be useful if parties were to prepare very short papers on the matter. The SDLP is certainly prepared to produce a paper, in indicative terms, on what some of the issues might be in relation to that.

Mr Paisley Jnr:

Alex has opened up a real can of worms. Creating a board or quango to look at the Public Prosecution Service, which is a non-departmental organisation would be, to put it in the kindest terms, overkill. It is fraught with so many dangers. The strapline for the Public Prosecution Service must be that it is independent; it is very difficult to understand how a board could be created that would not, in some way, upset that independence. That is especially true if that board were to examine issues, as the Policing Board does.

If there was a disagreement at a board meeting about what cases are and are not pursued, it is easy to imagine the disarray that would result within the Public Prosecution Service. How about a discussion about sentencing arrangements for some particular person? Take any recent case that has not been prosecuted — for example, the case against Nuala O’Loan for breaching section 63(3) of the Police ( Northern Ireland) Act 1998. The Public Prosecution Service said that the evidential test for prosecution had been met but that it was not in the public interest to prosecute her. Imagine what a political football that would be at a meeting of the PPS board.

The issues that that proposal would open up are incredible. Alex has put some ideas on the table, and we all need to go away and reflect on the implications of those but, for the record, I believe that a board such as that proposed by Alex would be fraught with real danger.

I am not opposed to getting explanations as to why a prosecution is, or is not, being pursued. Indeed, that happens with victim conferencing. When the victims are brought in, they usually meet the senior prosecutor. They can see, and have read to them, the senior counsel’s decision as to why a case has not gone to prosecution. I have seen that happen. There is an explanation role, and it does tend to work. However, there is the odd case where it does not work, and those cases usually become problematic. By and large, however, it does work. We must be very careful about entering into a situation where we start — [Inaudible due to technical difficulties.]

The Chairperson:

My sense is that parties may be given more time to discuss the issue, and we will come back to it. Parties need to go off and reflect on what has been said this morning and come back on this very serious issue. Are members agreed?

Members indicated assent.

Mr Attwood:

I will prepare a paper anyway.

The Chairperson:

A thesis?

Mr Attwood:

Just a paper.

The Chairperson:

I thought that someone referred to a thesis.

Lunch is available outside the door. We still have two or three issues to deal with.

Mr Paisley Jnr:

I propose that we come back to those issues next week. There is a debate in the Chamber, which is due to last for three hours, and I am going to be called into the Chamber.

Mr A Maskey:

[Inaudible due to technical difficulties.]

The Chairperson:

Are members happy to adjourn the meeting and call it quits? Lunch is available to members outside the door. I hope that it has not got a parking ticket.

We are stopping at item I. That leaves items J, K and M to deal with. I suggest that when we start with those issues next time. Are Members agreed?

Members indicated assent.

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