Session 2007/2008

First Report

Assembly and Executive review committee

Report on the Inquiry
into the Devolution of
Policing and Justice Matters

Volume 1
Minutes of proceedings relating to the report,
Minutes of evidence, Papers from the NIO

Ordered by the Assembly and Executive Review Committee to be printed 26 February 2008
Report: 22/07/08R (Assembly and Executive Review Committee)

REPORT
EMBARGOED UNTIL

Commencement of the debate in Plenary on Tuesday, 11 March 2008

This document is available in a range of alternative formats.
For more information please contact the
Northern Ireland Assembly, Printed Paper Office,
Parliament Buildings, Stormont, Belfast, BT4 3XX
Tel: 028 9052 1078

Powers and Membership

Powers

The Assembly and Executive Review Committee is a Standing Committee established in accordance with Section 29A and 29B of the Northern Ireland Act 1998 and Standing Order 54 which provide for the Committee to:

• consider the operation of Sections 16A to 16C of the Northern Ireland Act 1998 and, in particular, whether to recommend that the Secretary of State should make an order amending that Act and any other enactment so far as may be necessary to secure that they have effect, as from the date of the election of the 2011 Assembly, as if the executive selection amendments had not been made;
• make a report to the Secretary of State, the Assembly and the Executive Committee, by no later than 1 May 2015, on the operation of Parts III and IV of the Northern Ireland Act 1998; and
• consider such other matters relating to the functioning of the Assembly or the Executive as may be referred to it by the Assembly.

Membership

The Committee has eleven members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee since its establishment in May 2007 has been as follows:

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

Contents

Volume 1

Executive Summary
Summary of Recommendations
Introduction
The Committee’s Approach
Issues, findings, recommendations and conclusions
Annex A – Summary of what will devolve and what will not devolve

Appendicies

Appendix 1 – Minutes of Proceedings relating to the report
Appendix 2 – Minutes of Evidence
Appendix 3 – Papers from the NIO
List of Witnesses

Volume 2

Appendix 4 – Written Submissions
Appendix 5 – Party Position Papers
Appendix 6 – Other Correspondence
Appendix 7 – Research Papers
Appendix 8 – Other Papers

Executive Summary

1. This report has been prepared in accordance with the terms of section 18 of the Northern Ireland (St Andrews Agreement) Act 2006 which requires the Assembly to make a report to the Secretary of State before 27 March 2008, on progress towards the devolution of policing and justice matters.

2. Making progress on the devolution of policing and justice powers has proved to be deeply emotive, and highly sensitive; it has posed a significant, and often politically difficult, challenge over a considerable period of time. Indeed, the matter was considered previously by the Committee on the Preparation for Government, prior to the Northern Ireland (St Andrews Agreement) Act 2006, and, thereafter, by the Committee on the Programme for Government in the run up to restoration of the Northern Ireland Assembly in May 2007. For various reasons the devolution of policing and justice matters has been viewed by some as representing a risk to political developments in Northern Ireland, whereas others have considered that it provides an opportunity to secure political stability.

3. This report deals with the range of policing and justice powers which would cease to be reserved matters in circumstances where there was a request by the Assembly for devolution; it addresses issues associated with the ministerial model and procedures for filling the ministerial post/s for any new Department with responsibility for policing and justice powers, as well as the timing of devolution.

4. In particular, the report makes specific recommendations on the range of policing and justice powers which would cease to be reserved matters (see Annex A, pages 28-32 for a sumary of what will devolve and what will not devolve) as well as the further preparations which need to be made to facilitate devolution.

5. The report discusses issues to do with the structure, relationships, governance and accountability of any new department which would exercise powers in relation to policing and justice matters and it acknowledges concerns related to the funding for, and timing of, devolution.

6. The report calls on the political parties to commit to further discussions to produce recommendations on a range of outstanding issues associated with the ministerial model and procedures for filling the ministerial post/s for any department, including how any such department would be accommodated in the Executive, and the timing of devolution. The report also acknowledges that, once such agreement is reached, the detail of that agreement be conveyed, immediately thereafter, to the Secretary of State for Northern Ireland.

Summary of Recommendations

Recommendation 1

The Committee recommends that the matters specified in the NIO Discussion Paper (February 2006) be regarded as the policing and justice matters which are currently reserved matters under Schedule 3 of the Northern Ireland Act 1998. (Paragraph 12)

Recommendation 2

The Committee recommends that those matters in paragraphs 9(a) & (b) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 17)

Recommendation 3

The Committee recommends that those matters in paragraph 9(c) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 18)

Recommendation 4

The Committee recommends that those matters in paragraph 9(d) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 19)

Recommendation 5

The Committee recommends that those matters in paragraph 9(e) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 20)

Recommendation 6

The Committee recommends that those matters in paragraph 9(g) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 21)

Recommendation 7

The Committee recommends that those matters in paragraph 9(h) of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 22)

Recommendation 8

The Committee recommends that those matters in paragraph 9A of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 23)

Recommendation 9

The Committee recommends that either before, or following, devolution of the range of policing and justice matters identified in this report, the Assembly should conduct a review of those matters relating to the ‘Public Processions (Northern Ireland) Act 1998’, and having regard to the outcome of the ‘Strategic Review of Parading’, should consider if, and when, they should be transferred. (Paragraph 24)

Recommendation 10

The Committee recommends that those matters in Paragraph 10 of Schedule 3 to the Northern Ireland Act 1998, other than those relating to the Public Processions (Northern Ireland) Act 1998, be transferred. (Paragraph 24)

Recommendation 11

The Committee recommends that those matters in paragraph 11 of Schedule 3 to the Northern Ireland Act 1998, other than those relating to ‘50:50 temporary recruitment provisions’, be transferred. (Paragraph 25)

Recommendation 12

The Committee recommends that either before, or following, the devolution of the range of policing and justice matters identified in this report, those matters relating to ‘50:50 temporary recruitment provisions’ should be reviewed to determine if, and when, they should be transferred. (Paragraph 25)

Recommendation 13

The Committee recommends that those matters in paragraph 12 of Schedule 3 to the Northern Ireland Act 1998, relating to health and safety aspects of explosives, and policy development, legislation and general oversight of ‘non-prohibited’ firearms be transferred. (Paragraph 26)

Recommendation 14

The Committee recommends that those matters in paragraphs 14A, 15 and 17 of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 27)

Recommendation 15

The Committee recommends that those matters in paragraph 15A of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 28)

Recommendation 16

The Committee recommends that those matters in paragraph 11A of Schedule 3 to the Northern Ireland Act 1998 be transferred. (Paragraph 29)

Recommendation 17

The Committee recommends that particular administrative arrangements relating to extradition and mutual legal assistance should be exercised by the Northern Ireland Minister/s. (Paragraph 32)

Recommendation 18

The Committee recommends that there should be a single department that will exercise powers in relation to policing and justice matters. (Paragraph 35)

Recommendation 19

The Committee recommends that the political parties commit to further discussions to produce recommendations on the ministerial model to be adopted and the method by which the Assembly would make the ministerial appointment/s and that it will be necessary for these discussions to take place before the devolution of policing and justice matters. (Paragraph 36)

Recommendation 20

The Committee recommends that the political parties commit to further discussions to produce recommendations on how any new department, which will exercise responsibility for policing and justice powers, might be accommodated in the Executive and that it will be necessary for these discussions to take place before the devolution of policing and justice matters. (Paragraph 37)

Recommendation 21

The Committee recommends that preparations for the appointment of an Attorney General for Northern Ireland should be taken forward by the First Minister and deputy First Minister before the devolution of policing and justice matters. (Paragraph 38)

Recommendation 22

The Committee recommends that the post of Attorney General should be a full time role, at least initially. (Paragraph 38)

Recommendation 23

The Committee recommends that the following organisations should transfer, as proposed, to the new Department, on a without prejudice basis. (Paragraph 40)

• Northern Ireland Prison Service (as an Agency)
• Forensic Science Northern Ireland (as an Agency)
• Youth Justice Agency (as an Agency)
• Compensation Agency (as an Agency)
• Police Service of Northern Ireland
• Northern Ireland Police Fund (as an Executive NDPB and Company Limited by Guarantee)
• RUC George Cross Foundation (as an Executive NDPB)
• Independent Assessor for PSNI Recruitment Applications (as an Advisory NDPB)
• Criminal Injuries Compensation Appeals Panel (as a Tribunal NDPB)
• Police Rehabilitation and Training Trust (as a Company limited by guarantee)
• Independent Monitoring Boards (Maghaberry, Magilligan and Hydebank Wood) (Independent Monitoring Boards)
• Prisoner Ombudsman (as an Independent Statutory Office holder)
• Life Sentence Review Commissioners (as Independent Statutory Office holders)[1]
• Commissioner for Hearings under Prison Rule 109B (Loss of Remission Commissioner)(as an Independent non-Statutory Office holder)
• The State Pathologist (employed by the Department)
• Medical Appeals Tribunal (Ad hoc Tribunal)
• Judicial Appointments Ombudsman (as an Independent Statutory Office holder)[2]

Recommendation 24

The Committee recommends that the organisations listed below should transfer as proposed, on a without prejudice basis. (Paragraph 41)

• Public Prosecution Service (as a Non-Ministerial Department)
• Northern Ireland Policing Board (as an Executive NDPB)
• Office of the Police Ombudsman (as an Executive NDPB)
• Criminal Justice Inspection Northern Ireland (as an Executive NDPB)
• Probation Board (as an Executive NDPB)
• NI Law Commission (as an Advisory NDPB)
• Northern Ireland Court Service (as an Agency)
• NI Legal Services Commission (as an Executive NDPB)
• Judicial Appointments Commission (as an Executive NDPB)

Recommendation 25

The Committee recommends the need for the Assembly to develop, and approve, in due course, a Standing Order that will require, and allow, the Attorney General to report to the Assembly. (Paragraph 44)

Recommendation 26

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. (Paragraph 46)

Recommendation 27

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. (Paragraph 47)

Recommendation 28

The Committee recommends that members of the Statutory Committee for any new department which would exercise functions relating to policing and justice matters, should not sit, simultaneously, on either the Policing Board or any District Policing Partnership. (Paragraph 49)

Recommendation 29

The Committee recommends that the matters relating to appointments to the Policing Board should be examined further after the devolution of policing and justice matters. (Paragraph 49)

Recommendation 30

The Committee recommends that the matters relating to appointments to the Office of the Police Ombudsman should be examined by the political parties, initially, before the devolution of policing and justice matters. (Paragraph 51)

Recommendation 31

The Committee recommends that the NIO should make arrangements to have draft reports of the Criminal Justice Inspection submitted to the Assembly, and that the other matters raised by Criminal Justice Inspection Northern Ireland should be examined, initially, before the devolution of policing and justice matters. (Paragraph 53)

Recommendation 32

The Committee recommends that the matters relating to the future status of the Probation Board should be examined further after the devolution of policing and justice matters. (Paragraph 54)

Recommendation 33

The Committee recommends that the matters raised by the NI Law Commission should be examined further after the devolution of policing and justice matters. (Paragraph 55)

Recommendation 34

The Committee recommends that the matters raised by the NI Legal Services Commission should be examined further after the devolution of policing and justice matters. (Paragraph 56)

Recommendation 35

The Committee recommends that matters relating to the independence, governance and accountability of the Court Service be examined further, as a matter of priority, after the devolution of policing and justice matters. (Paragraph 59)

Recommendation 36

The Committee recommends that policy advice and legislative support in relation to legal aid should be transferred from the Court Service to the new Department which will exercise responsibility for policing and justice matters. (Paragraph 59)

Recommendation 37

The Committee recommends that a protocol should be put in place between the Judicial Appointments Commission and the Office of the First Minister and deputy First Minister regarding judicial appointments. (Paragraph 60)

Recommendation 38

The Committee recommends that the NIO and OFMdFM should take forward work to ensure that current agreements should remain in place at the point of devolution and that these should be reviewed by the Department and the Statutory Committee following devolution. (Paragraph 62)

Recommendation 39

The Committee recommends the development of Memoranda of Understanding between SOCA and the Security Services respectively, with the Minister/s, the Department which would have responsibility for policing and justice matters and the Assembly, to provide for an appropriate sharing of information. (Paragraph 63)

Recommendation 40

The Committee recommends that detailed discussions should take place between the political parties, the NIO, the Court Service and the Policing Board, before devolution, in order to attempt to finalise the financial provisions for policing and justice. (Paragraph 66)

Recommendation 41

The Committee recommends that the political parties commit to further discussions to agree when a request might be made for the devolution of policing and justice matters. (Paragraph 69)

Introduction

1. Section 18 (1) of the Northern Ireland (St Andrews Agreement) Act 2006 requires the Northern Ireland Assembly to make a report, to the Secretary of State, before 27 March 2008 –

(a) as to the preparations that the Assembly has made, and intends to make, having regard to paragraph 7 of the St Andrews Agreement[3], for or in connection with policing and justice matters ceasing to be reserved matters;

(b) as to which matters are likely to be the subject of any request under Section 4(2A)[4] of the 1998 Act that policing and justice matters should cease to be reserved matters;

(c) containing an assessment of whether the Assembly is likely to make such a request before 1 May 2008.

2. Following the restoration of the Northern Ireland Assembly, and at its meeting on 22 May 2007, the Assembly and Executive Review Committee (hereinafter referred to as “the Committee”) agreed to table a motion seeking the agreement of the Assembly to the Committee undertaking the work on preparing a report on progress towards devolution of policing and justice matters.

3. On 4 June 2007 the Assembly resolved that the task of preparing a report on progress towards the devolution of policing and justice should be a matter for the Committee[5].

The Committee’s Approach

4. At its meeting on 12 June 2007, the Committee agreed to conduct a formal inquiry and to prepare a report on progress towards devolution of policing and justice matters.

5. The terms of reference for the inquiry were approved at a Committee meeting on 3 July 2007[6] at which time the Committee also agreed to public advertisements calling for the receipt of written submissions by 17 August 2007. In addition, the Committee agreed to write, directly, to a number of specific organisations to invite views.

6. On 11 September 2007, when it met to consider the written submissions which had been received, the Committee also approved a forward work programme for the conduct of the inquiry; it further agreed to re-advertise the terms of reference and to extend the deadline for the receipt of submissions to 26 September 2007.

7. The Committee met on 20 occasions between 11 September 2007 and 26 February 2008 during which time it considered written and oral evidence from a range of individuals and organisations, including the NIO, as well as submissions from two expert witnesses. The political parties also made submissions during the course of the inquiry.

8. The minutes of proceedings of the Committee can be found at Appendix 1 and the minutes of evidence are included at Appendix 2. The deliberations of the Committee were informed by the “Devolving Policing and Justice in Northern Ireland: Discussion Paper” (February 2006) and subsequent papers, correspondence and memoranda from the NIO, all of which can be found in Appendix 3. Written submissions are re-produced in Appendix 4. Submissions from the political parties are included at Appendix 5, whilst general correspondence is included at Appendix 6. Papers prepared by the Northern Ireland Assembly Research and Library Service appear in Appendix 7, and Appendix 8 includes the submissions from the expert witnesses and documentation on the judicial system in England and Wales.

When it met on 26 February 2008, the Committee ordered that its report be printed.

Issues, Findings,
Recommendations and Conclusions

Issue 1:

Identification of those policing and justice matters which are currently reserved matters

9. Under its terms of reference, the Committee was required to identify those policing and justice matters which are currently reserved matters under Schedule 3 of the Northern Ireland Act 1998 (the 1998 Act).

Findings:

10. The issue was considered when the Committee met on 9 October 2007 and when it was agreed:

‘That the matters specified in the NIO Discussion Paper (February 2006)[7] be regarded as the policing and justice matters which are currently ‘reserved’ matters’.

11. However, the Committee draws attention to the fact that, whilst Schedule 3 of the 1998 Act deals with a range of reserved matters, including, for example, matters relating to family law, the Committee’s attention throughout the inquiry has been focused on particular matters relating to policing and criminal justice.

12. It is also the case that the NIO has developed its thinking since it published the original Discussion Paper in February 2006. The NIO has drawn these developments to the attention of the Committee in correspondence, and by way of written, and oral, evidence. A working draft version of a covering commentary, which the NIO intends to publish alongside draft legislative proposals, was provided to the Committee in February 2008. These documents can be found at Appendix 3.

Recommendation 1

The Committee recommends that the matters specified in the NIO Discussion Paper (February 2006) be regarded as the policing and justice matters which are currently reserved matters under Schedule 3 of the Northern Ireland Act 1998.

Issue 2:

The matters to be transferred and the extent to which they should be devolved

13. Using Chapters 5 to 17 of the NIO Discussion Paper (February 2006) as its baseline, but also having regard to Chapter 18 of that Paper, together with the suite of documents at Appendix 3, the Committee examined the range of issues which might feature in any request for the devolution of policing and justice matters.

Findings:

14. The Committee achieved a significant degree of consensus on a range of those reserved matters which should be transferred, and the extent to which they should be devolved.

15. However, the Committee was unable to achieve consensus on a number of reserved matters which might be transferred. The table at Annex A of this report provides details of what will devolve and what will not devolve.

16. The paragraphs below reflect the extent of the consensus reached in relation to the transfer of a number of those matters which are currently reserved. The report also acknowledges that, at this stage, there will remain certain limited exceptions to the general transfer of reserved powers. It is expected that the final version of the covering commentary to the legislative proposals will include a list of those matters which remain reserved. For ease of reference, the relevant Chapter of the NIO Discussion Paper (February 2006) is cross-referenced but, for completeness, it is also necessary to consider the suite of documents at Appendix 3.[8]

17. Chapter 5 NIO Discussion Paper (February 2006)

Criminal Law and Creation of Offences and Penalties

Paragraph 9(a) & (b) of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Misuse of Drugs

Matters relating to the ‘misuse of drugs’ were raised as a result of a written submission from the Cabinet Secretary for Justice in Scotland. The NIO provided an explanation of the arrangements in relation to the ‘misuse of drugs’ in the covering commentary of draft legislation in February 2008(See Appendix 3).8

Agreed:
That the Committee noted the proposed arrangements relating to the ‘misuse of drugs’, as outlined in the commentary.

Recommendation 2

The Committee recommends that those matters in paragraphs 9(a) & (b) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

18. Chapter 6 NIO Discussion Paper (February 2006)

Prevention and Detection of Crime

Paragraph 9(c) of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Subsequently, the NIO further developed its thinking in relation to the ‘Regulation of Investigatory Powers Act 2000’ and the ‘regulation of the private security industry’ as outlined in the covering commentary of draft legislation provided by the NIO in February 2008 (See Appendix 3).9

The Committee noted the proposed arrangements relating to the ‘Regulation of Investigatory Powers Act 2000’ and the ‘regulation of the private security industry’, as outlined in the commentary.

Recommendation 3

The Committee recommends that those matters in paragraph 9(c) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

19. Chapter 7 NIO Discussion Paper (February 2006)

Prosecutions

Paragraph 9(d) of Schedule 3 to the Northern Ireland Act 1998

Agreed:

That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Recommendation 4

The Committee recommends that those matters in paragraph 9(d) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

20. Chapter 8 NIO Discussion Paper (February 2006)

Treatment of Offenders

Paragraph 9(e) of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Document (February 2006), should be transferred.

Subsequently, the NIO further developed its thinking in relation to the ‘Treatment of Offenders’ as outlined in the covering commentary of draft legislation provided by the NIO in February 2008 (See Appendix 3).10

The Committee noted the proposed arrangements relating to the ‘Treatment of Offenders’, as outlined in the commentary.

Recommendation 5

The Committee recommends that those matters in paragraph 9(e) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

21. Chapter 9 NIO Discussion Paper (February 2006)

Compensation

Paragraph 9(g) of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Recommendation 6

The Committee recommends that those matters in paragraph 9(g) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

22. Chapter 10 NIO Discussion Paper (February 2006)

Community Safety Partnerships

Paragraph 9(h) of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Recommendation 7

The Committee recommends that those matters in paragraph 9(h) of Schedule 3 to the Northern Ireland Act 1998 be transferred.

23. Chapter 11 NIO Discussion Paper (February 2006)

Chief Inspector of Criminal Justice

Paragraph 9A of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Document (February 2006), should be transferred.

Recommendation 8

The Committee recommends that those matters in paragraph 9A of Schedule 3 to the Northern Ireland Act 1998 be transferred.

24. Chapter 12 NIO Discussion Paper (February 2006)

Public Order

Paragraph 10 of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), other than those relating to the ‘Public Processions (Northern Ireland) Act 1998’, should be transferred.

The Parades Commission

The Committee noted that there is an ongoing ‘Strategic Review of Parading’ chaired by Lord Ashdown.

There were diverse opinions about the transfer of matters relating to the ‘Public Processions (Northern Ireland) Act 1998’ and there was no consensus about whether this should continue to be a reserved matter.

Agreed:
That either before, or following, devolution of a range of agreed policing and justice matters, the Assembly should conduct a review of those matters relating to the ‘Public Processions (Northern Ireland) Act 1998’, to consider if, and when, these should be transferred.

Recommendation 9

The Committee recommends that either before, or following, devolution of the range of policing and justice matters identified in this report, the Assembly should conduct a review of those matters relating to the ‘Public Processions (Northern Ireland) Act 1998’, and having regard to the outcome of the ‘Strategic Review of Parading’, should consider if, and when, they should be transferred.

Future powers of the armed forces to operate in support of the police

The NIO provided an explanation of the arrangements in relation to the ‘future powers of the armed forces to operate in support of the police’ in the covering commentary of draft legislation in February 2008 (See Appendix 3).11

The Committee noted the proposed arrangements as outlined in the commentary.

Recommendation 10

The Committee recommends that those matters in Paragraph 10 of Schedule 3 to the Northern Ireland Act 1998, other than those relating to the Public Processions (Northern Ireland) Act 1998, be transferred.

25. Chapter 13 NIO Discussion Paper (February 2006)

The Police and the Policing Accountability Framework

Paragraph 11 of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), other than those relating to‘50:50 temporary recruitment provisions’, should be transferred.

50:50 temporary recruitment provisions

There were diverse opinions about the transfer of ‘50:50 temporary recruitment provisions’ and there was no consensus about whether this should continue to be a reserved matter.

Agreed:
That either before, or following, devolution of a range of agreed policing and justice matters, the Assembly should conduct a review of matters relating to‘50:50 temporary recruitment provisions’ to consider if, and when, these should be transferred.

Recommendation 11

The Committee recommends that those matters in paragraph 11 of Schedule 3 to the Northern Ireland Act 1998, other than those relating to ‘50:50 temporary recruitment provisions’, be transferred.

Recommendation 12

The Committee recommends that either before, or following, the devolution of the range of policing and justice matters identified in this report, those matters relating to ‘50:50 temporary recruitment provisions’ should be reviewed to determine if, and when, they should be transferred.

26. Chapter 14 NIO Discussion Paper (February 2006)

Firearms and explosives

Paragraph 12 of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Document (February 2006), should be transferred.

Subsequently, the NIO further developed its thinking in relation to firearms and explosives as outlined in the covering commentary of draft legislation provided by the NIO in February 2008 (See Appendix 3).12

The Committee noted the proposed arrangements in relation to firearms and explosives as outlined in the commentary.

Recommendation 13

The Committee recommends that those matters in paragraph 12 of Schedule 3 to the Northern Ireland Act 1998, relating to health and safety aspects of explosives, and policy development, legislation and general oversight of ‘non-prohibited’ firearms be transferred.

27. Chapter 15 NIO Discussion Paper (February 2006)

The Courts

Paragraphs 14A, 15 and 17 of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Document (February 2006), should be transferred.

Recommendation 14

The Committee recommends that those matters in paragraphs 14A, 15 and 17 of Schedule 3 to the Northern Ireland Act 1998 be transferred.

28. Chapter 16 NIO Discussion Paper (February 2006)

Northern Ireland Law Commission

Paragraph 15A of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Document (February 2006), should be transferred.

Recommendation 15

The Committee recommends that those matters in paragraph 15A of Schedule 3 to the Northern Ireland Act 1998 be transferred.

29. Chapter 17 NIO Discussion Paper (February 2006)

Co-operation between the PSNI and the Garda Siochána in relation to a specific series of matters

Paragraph 11A of Schedule 3 to the Northern Ireland Act 1998

Agreed:
That these reserved matters, as described in the Northern Ireland Office Discussion Paper (February 2006), should be transferred.

Recommendation 16

The Committee recommends that those matters in paragraph 11A of Schedule 3 to the Northern Ireland Act 1998 be transferred.

Excepted Matters

30. There are a number of matters which are excepted and which would require an amendment to the Northern Ireland Act 1998 to allow for any request to be made by the Assembly for the transfer of such matters. The table at Annex A of this report provides details of the excepted matters.

31. The Committee, in the course of its deliberations, had significant discussions regarding matters that are currently excepted.

There were diverse opinions about the transfer of those matters which are excepted. Both Sinn Féin and the SDLP argued that all excepted matters should be transferred. There was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for such a request to be made by the Assembly for the transfer of these excepted matters.

32. Chapter 18 NIO Discussion Paper (February 2006)

Excepted Matters (Including National Security and Extradition)

Paragraph 3 of Schedule 2 to the Northern Ireland Act 1998

The NIO outlined the proposed arrangements in relation to ‘excepted matters’ in the covering commentary of draft legislation provided to the Committee in February 2008. Although no legislative powers will transfer, the commentary included a list of particular administrative arrangements relating to extradition and mutual legal assistance which would be exercised by the Northern Ireland Minister/s (See Appendix 3).13

Agreed:
That the matters described in the covering commentary of draft legislation provided by the NIO in February 2008 relating to particular administrative arrangements for extradition and mutual legal assistance should be exercised by the Northern Ireland Minister/s.

Recommendation 17

The Committee recommends that particular administrative arrangements relating to extradition and mutual legal assistance should be exercised by the Northern Ireland Minister/s.

Issue 3:

Ministerial Model and Procedures for Filling Ministerial Post/s

33. As well as considering what might be an appropriate ministerial model, and the procedures to be used for filling the ministerial post/s, the Committee spent a significant amount of time examining possible structures for any new policing and justice department; and how the various component parts of the policing and justice family might relate to each other, and to the Assembly, in circumstances where policing and justice matters were devolved. The Committee also took a keen interest in how matters of governance and accountability might operate after devolution.

Findings:

34. Although the Committee achieved a significant degree of consensus on a range of matters to do with structure, relationships, governance and accountability, there were occasions when it was unable to achieve consensus, particularly in relation to the ministerial model and procedures for filling the ministerial post/s.

Department

35. The Committee endorsed the earlier decision taken by the Committee on the Programme for Government that there should be a single department that will exercise powers in relation to policing and justice matters.

Recommendation 18

The Committee recommends that there should be a single department that will exercise powers in relation to policing and justice matters.

Ministerial Options

36. Although the Committee considered a range of ministerial options and possible methods of appointment as outlined below, it was unable to achieve consensus on these or any other option. The Committee noted that it would be open to the Assembly to develop other options for ministerial posts and appointment procedures which, if approved by the Assembly, would require a change in legislation.

Ministerial Options

Option 1: Single Minister

Section 21 A (3) of the Northern Ireland Act 1998 (the 1998 Act)

• Member of any party
• Consent of nominating officer required
• Joint nomination by FM/dFM
• Approved by resolution with 50/50/50 voting
• After appointment of FM/dFM and before d’Hondt
• Counts immediately for d’Hondt – schedule 4A Part 1 Para 2(2)(b)

Option 2: Two Ministers acting equally and jointly
Section 21 A (4) of the 1998 Act

• Member of any party
• Consent of nominating officer required
• Joint nomination by FM/dFM
• After appointment of FM/dFM and before d’Hondt
• Approved by resolution with 50/50/50 voting
• Counts immediately for d’Hondt – schedule 4A Part 2 Para 6(2)(b)

Option 3: One Minister and a Junior Minister in rotation (as decided by Act of the Assembly)
Section 21 A (5) of the 1998 Act

Member of any party

• Consent of nominating officer required
• Joint nomination by FM/dFM
• After appointment of FM/dFM and before d’Hondt
• Approved by resolution with 50/50/50 voting
• Counts immediately for d’Hondt – schedule 4A Part 3 Para 9(2)(b)

Option 4: One Minister and a deputy Minister
Section 21 A (5A) (a) and (b) of the 1998 Act

• Can be nominated by any member
• Must be a Member of a party of the largest or second largest designation
• Minister and deputy Minister must be from different political designations
• Consent of nominating officer required
• Elected with cross community support on a 50/50/50 basis
• After appointment of FM/dFM and before d’Hondt
• Counts in second round of d’Hondt only (where party holds two ministerial posts – schedule 4A Part 3A Part 11C (3)(A) and (3)(b)).

Recommendation 19

The Committee recommends that the political parties commit to further discussions to produce recommendations on the ministerial model to be adopted and the method by which the Assembly would make the ministerial appointment/s and that it will be necessary for these discussions to take place before the devolution of policing and justice matters.

Northern Ireland Executive Committee – Ministerial Offices

37. Although the Committee raised the matter of how any department would be accommodated in the Executive under section 17 of the Northern Ireland Act 1998, the issue was considered to be a matter for resolution in political negotiations.

Recommendation 20

The Committee recommends that the political parties commit to further discussions to produce recommendations on how any new department, which will exercise responsibility for policing and justice powers, might be accommodated in the Executive and that it will be necessary for these discussions to take place before the devolution of policing and justice matters.

Appointment of the Attorney General for Northern Ireland

38. The Committee discussed the creation of the post of Attorney General for Northern Ireland and acknowledged that the matter of the appointment of an Attorney General for Northern Ireland is for the First Minister and deputy First Minister. The Committee raised the matter with that Office and was advised that no preparatory work had been done in this regard; indeed, the Committee was told that it was a matter for political resolution. The Committee’s views on governance and accountability arrangements in relation to the Attorney General are discussed in more detail in paragraph 44 below.

Recommendation 21

The Committee recommends that preparations for the appointment of an Attorney General for Northern Ireland should be taken forward by the First Minister and deputy First Minister before the devolution of policing and justice matters.

Recommendation 22

The Committee recommends that the post of Attorney General should be a full time role, at least initially.

Structure

39. The paragraphs below reflect the extent, or otherwise, of the consensus reached on the structure of any department which would exercise powers in relation to policing and justice matters.

40. There was general agreement that the organisations listed in Annex B of the letter from the NIO dated 15 October 200714, should transfer, as proposed, to the new Department, on a without prejudice basis.

Recommendation 23

The Committee recommends that the following organisations should transfer, as proposed, to the new Department, on a without prejudice basis.

• Northern Ireland Prison Service (as an Agency)
• Forensic Science Northern Ireland (as an Agency)
• Youth Justice Agency (as an Agency)
• Compensation Agency (as an Agency)
• Police Service of Northern Ireland
• Northern Ireland Police Fund (as an Executive NDPB and Company Limited by Guarantee)
• RUC George Cross Foundation (as an Executive NDPB)
• Independent Assessor for PSNI Recruitment Applications (as an Advisory NDPB)
• Criminal Injuries Compensation Appeals Panel (as a Tribunal NDPB)
• Police Rehabilitation and Training Trust (as a Company limited by guarantee)
• Independent Monitoring Boards (Maghaberry, Magilligan and Hydebank Wood) (Independent Monitoring Boards)
• Prisoner Ombudsman (as an Independent Statutory Office holder)
• Life Sentence Review Commissioners (as Independent Statutory Office holders)15
• Commissioner for Hearings under Prison Rule 109B (Loss of Remission Commissioner)
  (as an Independent non-Statutory Office holder)
• The State Pathologist (employed by the Department)
• Medical Appeals Tribunal (Ad hoc Tribunal)
• Judicial Appointments Ombudsman (as an Independent Statutory Office holder)16

Structure

41. The Committee also agreed that the remaining organisations listed in the letter from the NIO dated 15 October 2007, and other correspondence17, should transfer as proposed. However, the Committee has made particular recommendations about these organisations in the section entitled ‘Relationships, Governance and Accountability’.

Recommendation 24

The Committee recommends that the organisations listed below should transfer as proposed, on a without prejudice basis.

• Public Prosecution Service (as a Non-Ministerial Department)
• Northern Ireland Policing Board (as an Executive NDPB)
• Office of the Police Ombudsman (as an Executive NDPB)
• Criminal Justice Inspection Northern Ireland (as an Executive NDPB)
• Probation Board (as an Executive NDPB)
• NI Law Commission (as an Advisory NDPB)
• Northern Ireland Court Service (as an Agency)
• NI Legal Services Commission (as an Executive NDPB)
• Judicial Appointments Commission (as an Executive NDPB)

Relationships, Governance and Accountability

42. The Committee considered it essential to ensure that there should be clarity of relationships within the field of policing and justice with clearly defined roles for the Minister/s, the Department and the entire range of organisations administering policing and justice, including their relationship with the Assembly and the relevant Statutory Committee.

43. The Committee agreed on the need to strike a balance between independence and accountability that would enable the organisations to administer policing and justice effectively.

The Role of the Attorney General

44. The Committee identified a number of governance issues associated with the post of Attorney General, including the extent of the role and the relationship with, and reporting arrangements to, the Assembly and highlighted the need for changes to the Assembly’s Standing Orders in this regard. The Committee welcomed the advice in the NIO letter of 14 February 2008 that the Attorney General would be answerable to the Assembly on matters of prosecution policy. The Committee also gave consideration to the role of the Attorney General in relation to prosecution policy as discussed at paragraph 45 below.

Recommendation 25

The Committee recommends the need for the Assembly to develop, and approve, in due course, a Standing Order that will require, and allow, the Attorney General to report to the Assembly.

Public Prosecution Service

45. The Committee considered the future status of the PPS and there was a collective concern about its accountability. There was a consensus around the need to increase the lines of accountability for the PPS without impacting on its operational independence. The Committee considers that this should be a matter for consideration by the Assembly before, and following, the devolution of policing and justice matters.

46. Although the Committee agreed that, for the purposes of devolution, the PPS should be attached to the Office of the First Minister and the deputy First Minister, it considers that there may be merit in it being attached to the Department which would exercise powers in relation to policing and justice matters.

Recommendation 26

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.

47. The Committee raised the matter of accountability of the Public Prosecution Service with the NIO and noted that following its deliberations, the NIO, in its letter of 14 February 2008, outlined how greater accountability could be achieved and advised that the Director of Public Prosecutions could also be answerable to the Assembly on questions of prosecution policy.

Recommendation 27

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 be considered by the Assembly.

Northern Ireland Policing Board

48. The Committee agreed the need for a Memorandum of Understanding to clarify the relationships which would exist between the PSNI, the Policing Board and any new Statutory Committee, and which would deal with potential conflicts of interest. The Committee has requested that such a Memorandum be developed and referred to the Assembly for consideration.

49. There was consensus that members of the Statutory Committee for any new department which would exercise functions relating to policing and justice matters, should not sit, simultaneously, on either the Policing Board or any District Policing Partnership.

There were diverse opinions about whether political parties should continue to appoint MLAs to the Policing Board, but it was agreed that the matter should be considered after the devolution of policing and justice matters.

Recommendation 28

The Committee recommends that members of the Statutory Committee for any new department which would exercise functions relating to policing and justice matters, should not sit, simultaneously, on either the Policing Board or any District Policing Partnership.

Recommendation 29

The Committee recommends that the matters relating to appointments to the Policing Board should be examined further after the devolution of policing and justice matters.

Office of the Police Ombudsman

50. The Committee discussed the appointment procedures in relation to the Office of the Police Ombudsman.

There were diverse opinions about whether the advisory role in relation to the appointment of the Police Ombudsman should transfer to the Northern Ireland Minister/s or to OFMdFM, and whether the Executive should have a role in consultation.

51. The Committee agreed that this matter should be considered before the devolution of policing and justice matters, possibly as part of the suggested political negotiations.

Recommendation 30

The Committee recommends that the matters relating to appointments to the Office of the Police Ombudsman should be examined by the political parties, initially, before the devolution of policing and justice matters.

Criminal Justice Inspection Northern Ireland

52. The Committee noted the recommendations raised in the written submission from Criminal Justice Inspection Northern Ireland18 and agreed that these matters should be considered further before the devolution of policing and justice matters.

53. The Committee agreed that draft reports from Criminal Justice Inspection Northern Ireland should be submitted to the Assembly and not Westminster.

Recommendation 31

The Committee recommends that the NIO should make arrangements to have draft reports from Criminal Justice Inspection Northern Ireland submitted to the Assembly, and that the other matters raised by Criminal Justice Inspection Northern Ireland should be examined, initially, before the devolution of policing and justice matters.

Probation Board

54. The Committee noted the recommendation of the Criminal Justice Review 2000 that the Probation Board become an agency of the new Department similar to the Prison Service to assist co-operation in the correctional area19.

Recommendation 32

The Committee recommends that the matters relating to the future status of the Probation Board should be examined further after the devolution of policing and justice matters.

NI Law Commission

55. The Committee noted the submission from the NI Law Commission20 and agreed that the matters raised should be considered further after the devolution of policing and justice matters.

Recommendation 33

The Committee recommends that the matters raised by the NI Law Commission should be examined further after the devolution of policing and justice matters.

NI Legal Services Commission

56. The Committee noted the submission from the NI Legal Services Commission21 and agreed that the matters raised should be considered further after the devolution of policing and justice matters.

Recommendation 34

The Committee recommends that the matters raised by the NI Legal Services Commission should be examined further after the devolution of policing and justice matters.

Northern Ireland Court Service

57. The Committee heard well argued testimonies from the Lord Chief Justice, the Director of the Court Service and the expert witnesses, the Chief Executive of the Irish Court Service and Professor Jackson from Queen’s University22. The Committee also had regard to the judicial system which operates in Scotland23 and to emerging proposals in England and Wales24.

58. The Committee spent considerable time deliberating the issue of greater independence for the Court Service and agreed that, although it would not be possible to implement change before devolution, that this should be examined further as a matter of priority following devolution.

59. There was consensus that policy advice and legislative support in relation to legal aid should be transferred from the Court Service to the new Department.

Recommendation 35

The Committee recommends that matters relating to the independence, governance and accountability of the Court Service be examined further, as a matter of priority, after the devolution of policing and justice matters.

Recommendation 36

The Committee recommends that policy advice and legislative support in relation to legal aid should be transferred from the Court Service to the new Department which will exercise responsibility for policing and justice matters.

Judicial Appointments Commission

60. The Committee noted that the Judicial Appointments Commission will be attached to the Office of the First Minister and deputy First Minister and agreed that a protocol should be put in place between the Commission and the Office of the First Minister and deputy First Minister regarding judicial appointments.

Recommendation 37

The Committee recommends that a protocol should be put in place between the Judicial Appointments Commission and the Office of the First Minister and deputy First Minister regarding judicial appointments.

North/South Agreements

61. The Committee discussed the arrangements which would be required to ensure that current agreements should remain in place at the point of devolution. The Committee agreed that the NIO, in consultation with OFMdFM, should take steps to ensure that relevant protocols are in place at the point of devolution.

62. The Committee agreed that there should be a review of policing and justice agreements to be carried out by the Department in consultation with the Statutory Committee following devolution.

Recommendation 38

The Committee recommends that the NIO and OFMdFM should take forward work to ensure that current agreements should remain in place at the point of devolution and that these should be reviewed by the Department and the Statutory Committee following devolution.

Excepted Matters

Excepted Matters

63. The Committee acknowledged that SOCA and the Security Services are involved in issues of national security - which are excepted matters. Nevertheless, the Committee considered that, especially in relation to non-terrorist related organised crime, there might be virtue in developing Memoranda of Understanding between SOCA and the Security Services respectively, with the Minister/s, the Department which would have responsibility for policing and justice matters and the Assembly, to provide for an appropriate sharing of information in relation to non-terrorist related organised crime and how SOCA and the Security Services would operate in Northern Ireland.

64. There were diverse opinions about the need for a higher degree of oversight in relation to the operation of SOCA and the Security Services in Northern Ireland.

Recommendation 39

The Committee recommends the development of Memoranda of Understanding between SOCA and the Security Services respectively, with the Minister/s, the Department which would have responsibility for policing and justice matters and the Assembly, to provide for an appropriate sharing of information.

Issue 4: Preparations

Identification of the preparations which the Northern Ireland Assembly has made, and needs to make, to facilitate the devolution of policing and justice matters

64. In the evidence provided by the NIO, the Office of the First Minister and deputy First Minister and the range of organisations involved in policing and justice matters, it was made clear to the Committee that all the necessary administrative arrangements had been made, or could be made, in time to respond to any request there might be for devolution of policing and justice matters.

65. Elsewhere in this report, notably in the sections dealing with structure, relationships, governance and accountability, the Committee has identified a range of matters on which further work needs to be done. Some of this work will be the subject of political negotiations, whilst other elements are of an administrative nature and are capable of being addressed before, or after, devolution of policing and justice matters. It is also expected that the relevant Memoranda of Understanding which are required prior to devolution, will be made available by the NIO to the Assembly in March or April 2008. Consequently, the Committee is unable, at this stage, to comment on their efficacy or adequacy.

Financial Provisions

66. The Committee discussed the issue of funding for policing and justice on various occasions. It is concerned that, following devolution of those powers, any pressure that might arise on the policing and justice budget may, ultimately, have to be borne by the NI Block. The Committee agreed that detailed discussions should take place between the political parties, the NIO, the Court Service and the Policing Board, before devolution, in order to attempt to finalise the financial provisions for policing and justice.

Recommendation 40

The Committee recommends that detailed discussions should take place between the political parties, the NIO, the Court Service and the Policing Board, before devolution, in order to attempt to finalise the financial provisions for policing and justice.

Assembly Procedures

67. Following the successful conclusion of political negotiations, it will be necessary for the First Minister and the deputy First Minister acting jointly to table a motion resolving that the range of policing and justice matters described in this Report should cease to be reserved matters; and that the resolution is passed by the Assembly with the support of a majority of the members voting on the motion, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

Issue 5:
Timing of the devolution of policing and justice matters

68. The political parties represented on the Committee had different views on the timing of devolution of policing and justice matters, and given those diverse opinions, the Committee was unable to reach consensus on this issue.

69. Since the Committee was unable to reach consensus on the timing of devolution of policing and justice matters, and this report includes recommendations about further political negotiations, the Committee was unable to reach a conclusion as to whether the Assembly will make a request for the transfer of policing and justice matters before 1 May 2008.

Recommendation 41

The Committee recommends that the political parties commit to further discussions to agree when a request might be made for the devolution of policing and justice matters.

Annex A: Summary of what will
devolve and what will not devolve

Unless otherwise specified, when the table refers to issues devolving it means both that the Assembly will take on legislative competence for that particular area and that any statutory functions or powers currently conferred on UK Ministers will transfer to NI Ministers or Departments.[25]

Schedule 3 paragraph	Reserved Matters that will devolve	Reserved Matters that will not devolve	Excepted Matters
9(a) & (b) The criminal law and the creation of offences and penalties.	The criminal law and the creation of offences and penalties generally, subject to the entry in the next column. Executive and regulatory powers under the Misuse of Drugs Act 1971.25 Advice to the Crown on the exercise of the Royal Prerogative of Mercy on non-terrorist offences.	Advice to the Crown on the exercise of the Royal Prerogative of Mercy on offences that remain in the reserved or excepted field. Classification of drugs and the overall framework of the 1971 Act (new para 9ZA of Sch. 3 to the 1998 Act)	The law governing treason or terrorist offences (paras 7 and 17 of Sch. 2 to the 1998 Act) Advice to the Crown on the exercise of the Royal Prerogative of Mercy on offences that remain in the reserved or excepted field.
9(c) The prevention and detection of crime.	The law on police powers (other than those relating to counter-terrorism and intelligence gathering). Regulation of the private security industry in the longer term by the Security Industry Authority. The work of Forensic Science Northern Ireland and the State Pathologist’s Department.	The legislation and regulatory structure governing the acquisition of intelligence information (including RIPA in sofar as it is not already excepted) (new paras 9(a) and (b) of Sch. 3) Regulation of the private security industry under the current temporary arrangements (new para 9(d) of Sch. 3)	Police powers under counter-terrorism legislation (para 7 of Sch 2) Legislation governing extradition and international mutual legal assistance (para 3 of Sch. 2) The work of HM Revenue & Customs, the Serious Organised Crime Agency and the Borders & Immigration Agency (paras 8 - 10 of Sch. 2) The Serious Organised Crime Agency exercise a UK wide remit

[26]

Schedule 3 paragraph	Reserved Matters that will devolve	Reserved Matters that will not devolve	Excepted Matters
9(d) Prosecutions	Attorney General for NI. Public Prosecution Service for Northern Ireland.		Advocate General for NI (para. 21A of Sch. 2)
9(e) Treatment of offenders	The care and supervision of offenders in custody and on licence in the community. Functions relating to mentally disordered offenders.26 The release and recall of offenders generally subject to the entry in the next column. Probation Board for NI. Youth Justice Agency. NI Prisoner Ombudsman.	Legislation on separated accommodation will require SoS consent; decisions about entry to and removal from separated accommodation will fall to SoS (new para9(c)(i) of Sch. 3) Legislation on the release of life sentence prisoners on licence, and certain functions relating to the Life Sentence Review Commissioners (new para 9(c)(ii) of Sch. 3) Legislation on the transfer of prisoners from NI to other parts of the UK (new para 9(c)(iii) of Sch. 3)	The Sentence Review Commissioners (para 17 of Sch. 2) This area will need to be revised in the light of the upcoming Criminal Justice Order
9(g) Compensation	The work of the Compensation Agency and the Criminal Injuries Compensation Appeals Panel.		The compensation scheme provided for in the Terrorism Act 2000 and its successor scheme in the Justice & Security (NI) Act 2007 (para 17 of Sch. 2)
9(h) Community safety partnerships.	Everything.	Nothing.
9A Chief Inspector of Criminal Justice for NI	Everything.	Nothing.
10 Public Order	The statutory framework governing the maintenance of public order, except as set out in the next column.	Police and army powers under ss. 21-42 of the Justice & Security (NI) Act 2007, while these are in force (new para 10A of Sch. 3) Matters dealt with under the Public Processions (Northern Ireland) Act 1998
11 Policing	The PSNI. Policing Board for NI Police Ombudsman for NI District Policing Partnerships	The Secretary of State will continue to be responsible for national security matters including protection of national security related information (new para 11(a) of Sch. 3, insofar as not excepted under para 17 of Sch. 2) Matters relating to 50:50 temporary recruitment provisions	National security matters (para 17 of Sch. 2)
11A Co-operation between the PSNI and the Garda Siochana	Everything.	Nothing.
12 Firearms & explosives	The framework for licensing ‘normal’ firearms. Fireworks regulation. Health & safety aspects of explosives regulation.	Licensing prohibited weapons and regulation of crown servants’ access to firearms (new para. 12(a) and (d) of Sch. 3) Appeals against the Chief Constable’s decision not to issue a firearms certificate – will be devolved in due course (new para 12(b) of Sch. 3) The removal, in individual cases, of a statutory prohibition on the purchase, etc. of firearms (new para 12 (c) of Sch. 3) Security aspects of explosives regulation (provision still to be drafted)
14A Rights of appeal to the Supreme Court and legal aid for such appeals. This provision is not yet commenced. The Supreme Court itself is excepted (para 11A of Sch.2 to the 1998 Act).	Conferral of a right of appeal to the Supreme Court of the United Kingdom and legal aid for such appeal once this provision is commenced.		The Supreme Court of the United Kingdom (which is to replace the appellate functions of the House of Lords) itself will remain excepted (para. 11A of Sch. 2)
15 The Courts [The functions of the Lord Chief Justice of NI, as head of the judiciary in NI, will remain unchanged following devolution.]	The NI Court Service Legal aid Judicial appointments and removals The NI Judicial Appointments Commission and Judicial Appointments Ombudsman. Payment of judicial salaries and pensions. Certain administrative functions in relation to extradition and mutual legal assistance cases.	UK-wide Lord Chancellor functions relating to the Data Protection Act 1998 (para 40 of Sch. 3).	The Prime Minister will continue to have a role in the appointment of the Lord Chief Justice and Lord Justices of Appeal. Both the Prime Minister and the Lord Chancellor will have a role in any removal of the Lord Chief Justice and a Lord Justice of Appeal (para 11 of Sch. 2) The appointment of special advocates (para 17 of Sch 2) The determination of judicial salaries, pensions and other terms & conditions (para 11 of Sch. 2) UK-wide Lord Chancellor functions relating to the judiciary (para 11 of Sch.2 or international relations (para 3 of Sch.2 ) or under the Human Rights Act 1998 ( para 3 of Sch.2 and section 7(1)(b))
15A The Northern Ireland Law Commission.	Everything now the Commission is established, although the Commission members are not all appointed.	Nothing.

Appendix 1

Minutes of Proceedings Relating to the Report

Tuesday, 22 May 2007
Room 144, Parliament Buildings

Present:
Rt Hon Mr Jeffrey Donaldson MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In attendance:
Debbie Pritchard (Principal Committee Clerk)
Stephen Graham (Assembly Clerk)
Keith McBride (Clerical Supervisor)
Lynn Gray (Clerical Officer)
Dr Peter Gilleece (Assembly Research and Library Services)

Apologies:
Ms Cáral Ní Chuilín

The meeting opened at 11.02am in Public Session

1. Apologies

Apologies are detailed above.

In the context of the work programme, members then considered the requirement on the Assembly to report to the Secretary of State on the devolution of policing and justice matters by 27 March 2008 [Section 18, Northern Ireland (St Andrews Agreement) Act 2006]

11.54am Meeting suspended due to division in the Chamber

12.11 pm Meeting re-convened with the following members present

Mr Alex Attwood, Rt Hon Mr Jeffrey Donaldson, Mrs Carmel Hanna, Mr Danny Kennedy, Mr Nelson McCausland, Mr Ian McCrea, Mr Alan McFarland, Mr John O’Dowd, Mr George Robinson.

Agreed: That the Committee should table a motion seeking the agreement of the Assembly to the Committee undertaking the work on preparing a report on the devolution of policing and justice matters.

12.14pm Raymond McCartney joined the meeting

Agreed:

“Report on progress towards devolution of policing and justice matters

That this Assembly calls on the Assembly and Executive Review Committee to report by 29 February 2008 on the work which needs to be undertaken, in accordance with section 18 of the Northern Ireland (St Andrews Agreement) Act 2006

(a) as to the preparations that the Assembly has made, and intends to make, having regard to paragraph 7 of the St Andrews Agreement, for or in connection with policing and justice matters ceasing to be reserved matters;

(b) as to which matters are likely to be the subject of any request under section 4(2A) of the 1998 Act that policing and justice matters should cease to be reserved matters;

(c) containing an assessment of whether the Assembly is likely to make such a request before 1 May 2008”.

Agreed: The Clerk to prepare a briefing paper on the potential impact of the Justice and Security Bill in relation to the devolution of Policing and Justice matters and to supply copies of the Bill to members.

12.54pm the Chairperson adjourned the meeting.

[EXTRACT]

Tuesday, 12 June 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Eleanor Murphy (Assistant Assembly Clerk)
Mr Keith McBride (Clerical Supervisor)
Mr Tom Skelton (Clerical Officer)
Dr Peter Gilleece (Assembly Research Services)

Apologies:
Mrs Carmel Hanna
Mr Ian McCrea

The meeting opened at 11:04am in public session.

1. Apologies

Apologies are detailed above.

7. Devolution of Policing and Justice

The Chairperson invited Members to declare relevant interests in relation to this item of business. The following interests were declared:

Jeffrey Donaldson:

• Member of the Northern Ireland Policing Board
• Member of Her Majesty’s Privy Council

George Robinson:

• Member of Limavady District Policing Partnership

The Chairperson reminded Members that on the 4 June, and on the basis of the Committee’s motion, the Assembly resolved that the task of preparing a report on the transfer of policing and justice should be a matter for the Committee. Following discussion, a number of actions were agreed, as follows:

Agreed: The Committee would conduct a formal inquiry into the transfer of policing and justice matters.

Agreed: That the Clerk should present, at the next meeting, draft terms of reference for the inquiry and a list of relevant witnesses and bodies whom the Committee might call on to inform its inquiry.

Agreed: That the Secretary of State, the Minister with responsibility for Security, Policing and Prisons, the Minister with responsibility for Criminal Justice and the Chief Constable be amongst those invited to provide evidence to the Committee.

Agreed: That relevant NIO officials be invited to address the next meeting of the Committee to provide an assessment of the expectations of the Secretary of State in terms of the report he wishes to receive from the Assembly and to report on the practical arrangements being made for the transfer of Policing, Security and Criminal Justice matters.

Agreed: That the Clerk would request copies of papers presented by the 4 main political parties at the recent Criminal Justice System Conference in time for consideration at the next meeting.

Agreed: That, following the presentation by NIO officials on 3 July 2007, the four main political parties, and those parties in the Assembly not represented on the Committee, would be invited to provide up to date position papers for consideration by the Committee after the summer recess. The papers should reflect current views on transferring policing and justice issues and the timeframe for the devolution of policing and justice matters.

12:39pm Danny Kennedy left the meeting.

The Chairperson adjourned the meeting at 12:45pm.

[EXTRACT]

Tuesday, 3 July 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies:
Mr Alex Attwood

The meeting opened at 11:05am in public session.

1. Apologies

Apologies are detailed above.

6. Inquiry into the Devolution of Policing and Justice

The Chairperson invited Members to declare relevant interests. The following interests were declared:

Jeffrey Donaldson:

• Member of the Northern Ireland Policing Board
• Member of Her Majesty’s Privy Council

George Robinson:

• Member of Limavady District Policing Partnership

Ian McCrea

• Member of Cookstown District Policing Partnership

(a) Briefing by Northern Ireland Office Officials

Peter May and Clare Salters, Northern Ireland Office officials, joined the meeting at 11.58 am and gave a presentation on the devolution of policing and justice matters.

After their presentation, the officials answered questions from the members and agreed to write to the Committee Clerk with further information.

The officials left the meeting at 12.32 pm.

(b) Papers presented by political parties at the Criminal Justice System Conference

Members noted the papers presented by the DUP, SDLP and UUP at the Criminal Justice System Conference held on 5 June 2007. John O’Dowd confirmed that the paper presented by Sinn Féin would be forwarded to the Clerk for distribution in due course.

(c) Analysis of the views of political parties in relation to NIO proposals

Members noted the briefing paper providing and analysis of the political parties’ views on the NIO proposals contained in the discussion paper ‘Devolving Policing and Justice in Northern Ireland’.

(d) Draft Terms of Reference

There was some discussion on the level of detail and the issues to be reflected in the Terms of Reference.

Agreed: That the draft Terms of Reference should be adopted.

(e) Inquiry Workplan

Agreed: That the proposed inquiry work plan be adopted.

(f) Written Submissions

There was some discussion on the proposed list of organisations from whom written submissions would be invited.

Agreed: That letters would be issued inviting written submissions from those on the list presented (subject to one omission) and that a further consultation list to be obtained from OFMDFM Equality Unit, would also be used.

Agreed: That a public notice would be placed in the local newspapers inviting written submissions from any interested individual or group.

Agreed: That the political parties would be furnished with the briefing paper from the NIO, the official transcript of the briefing session, the analysis of party positions and the Criminal Justice Conference papers.

The Chairperson reminded members that the deadline for receipt of written submissions was 17 August 2007.

The Chairperson adjourned the meeting at 1.03 pm.

[EXTRACT}

Tuesday 11 September 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mrs Carmal Hanna
Mr Danny Kennedy
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

In Attendance: Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies: Mr Alex Attwood
Mr Nelson McCausland

The meeting opened at 11:05am in public session.

1. Apologies

Apologies are detailed above

11:20am Carál Ní Chuilín joined the meeting

11:32am John O’Dowd left the meeting

6. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea declared the following interest:

• Member of Cookstown District Policing Partnership.

6.1 Consideration of Written Submissions

The Chairperson reminded Members that submissions to the Inquiry had been received up to (and including) Thursday 6 September and were included in their black folders.

6.2 Written submissions

The Chairperson referred to submissions received, to representations from the Bar Council and Law Society and correspondence from OFMdFM stating that they are considering the matter.

Members agreed:

• To accept and consider late submissions received after the deadline.
• To accept and consider submissions from those organisations which requested more time.
• To extend the deadline for written submissions to 26 September
• To re-advertise the terms of reference and details of the extended deadline.
• That the Chairperson should write reminder letters to the Green Party and the Independent Health Coalition
• That the Clerk should write to those organisations who had declared an intention to submit including the Bar Council, Law Society and OFMdFM and any other key contacts.
• That the Clerk should also write to University of Ulster Transitional Justice Unit to invite a written submission.

6.3 Oral Evidence Sessions

Members reviewed the written submissions received and considered those witnesses who might be called to give oral evidence.

Agreed:

• That the Committee will adhere to the original timetable with weekly witness sessions beginning on 25 September.
• Clerk to prepare a list of key issues/questions for oral witnesses based on the terms of Reference of the Inquiry.

11:45amDanny Kennedy left the meeting

• Research paper on the role of SOCA and its relationship with the NIO and PSNI to be commissioned.
• That the following witnesses will be called to give oral evidence:

Lord Chief Justice Secretary of State
Northern Ireland Court Service Policing Board
Alliance Party Progressive Unionist Party

• That the following organisations should be amongst ‘possible witnesses’ to be called to give oral evidence:

Northern Ireland Human Rights Commission Public Prosecution Service
Committee on the Administration of Justice Criminal Justice Inspection NI

• That the Committee will consider inviting the following organisations for oral evidence at a later date:

Department for Social Justice Police Service of Northern Ireland
Garda Siochana

12:20pm Carál Ní Chuilín left the meeting

6.4 Other Issues

The Committee discussed the question of ‘Confidence’.

Agreed:

• That the Clerk should obtain the forward timetable of reports by the Independent Monitoring Commission.
• That it may be necessary to invite the Chief Constable to appear before the Committee in the latter stages of the Inquiry.

1:00pm Alan McFarland left the meeting

The Chairperson adjourned the meeting at 1.02 pm.

[EXTRACT]

Tuesday, 25 September 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies:
Ms Carál Ní Chuilín
Mr Danny Kennedy

The meeting opened at 10:30am in public session.

1. Apologies

Apologies are detailed above.

4. Chairperson’s Business

4.2 Evidence session with the Lord Chief Justice

Members noted the letter received from the Lord Chief Justice stating that he wished to confine his oral evidence to matters relating to the structure of the Court Service and issues around the judiciary.

Agreed:

• That a copy of the letter from the Lord Chief Justice will be circulated to all Members.

4.3 Arrangements for publishing transcripts of evidence

Members discussed the publication of oral evidence.

Agreed: That the corrected version of the Hansard transcripts will be published following each evidence session (including the briefing session with NIO held on 3 July 2007).

4.4 Written submissions: availability of written submissions

Members discussed the matter of making written submissions available in the public gallery.

Agreed: That written submissions from witnesses appearing before the Committee will be made available to those seated in the public gallery.

Alex Attwood joined the meeting: 10:45am

5. Inquiry into the devolution of policing and justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea:

• Member, Cookstown District Policing Partnership.

Oral evidence from the Northern Ireland Court Service

Members heard oral evidence from Northern Ireland Court Service officials –

David Lavery (Director), Laurene McAlpine (Policy), Jacqui Durkin (Operations) and Siobhan Broderick (Tribunal Reform). The session was recorded by Hansard.

6. Timetable for future oral evidence sessions

Members noted the current timetable of reporting for the Independent Monitoring Commission as follows:

• Report on Normalisation published on Monday 17 September.
• Next report on Paramilitaries due mid October.
• That based on a 6 monthly reporting cycle, the next report on Paramilitaries is due in April 2008.

Agreed: That the Committee may call the Chief Constable to give evidence in the latter stages of the Inquiry.

Ian McCrea left the meeting at 12:09pm

6.1 Inquiry Timetable

Members noted the proposed timetable for future oral evidence sessions, in particular, the oral evidence session with the Progressive Unionist Party on 16 October. Members noted that the Committee is awaiting a response from the Alliance Party to give evidence on 16 October.

Members discussed the possibility of calling the Public Prosecution Service to give evidence on 16 October.

Agreed: To write to the Public Prosecution Service inviting them to give evidence on 16 October.

6.2 Views from the four main parties

Members discussed the arrangements for hearing the views of political parties.

Agreed:

• To hear oral evidence from the Progressive Unionist Party and the Alliance Party on 16 October with sessions limited to 45minutes.
• That the parties represented on the Committee will discuss each of terms of reference of the Inquiry at future Committee meetings as follows:
• 9 October: Matters to be transferred.
• 23 October: Ministerial models.
• 6 November: Timing and preparations for devolution.
• That Committee meetings on 9 and 23 October and 6 November should take place in open session in Room 144 (but that the Senate Chamber will be reserved if it proved necessary to re-locate because of demand for space in the public gallery).

Ian McCrea returned to the meeting 12:14

Alan McFarland left the meeting 12:15

6.3 Request for further information

Members reflected on the evidence given by the Northern Ireland Court Service.

Agreed: That the Clerk write to the Northern Ireland Office to request the following information:

• An outline of the existing structure for policing and justice (to include details of the governance and accountability relationships which the various policing and justice organisations have with the NIO and the Secretary of State for Northern Ireland).
• A description of the departmental model to which the NIO is currently working and which highlights how, and to what extent, this differs from the existing structure referred to above (to include details of any plans to dismantle or merge existing policing, or justice, organisations).
• An outline of the governance and accountability arrangements which might apply between any new department and the various policing and justice organisations.
• Details of each of the work-streams which the Northern Ireland Office is currently undertaking in relation to the devolution of policing and justice functions, the timeframe for the completion of each work-stream, the progress made to date, and the extent to which the work remains on target or is behind schedule.
• Details of the existing budgets for all aspects of policing and justice (to include NIO costs), an indication of the budgetary allocations proposed for any new devolved structure and the overall ‘financial architecture’ being developed by the NIO for that structure.

6.4 Models

Members discussed the need for information on the existing/proposed models for Scotland and the Republic of Ireland.

Agreed:

• That the Secretary of State’s letter of 28 December 2006 should be re-circulated to Members.
• That a research paper should be commissioned on the non-ministerial Irish Court Service model and the existing/proposed models for Scotland.
• That SOCA and the Security Services be invited to make written submissions to the Inquiry.
• That the Clerk should liaise with Mr Attwood regarding the terms of the letters to SOCA and the Security Services.

Members discussed the need for a written submission from OFMdFM.

Agreed: That the Clerk will communicate with Officials from OFMdFM to say that the Committee would find it helpful if any submission from the First Minister and deputy First Minister, on the devolution of policing and justice matters, dealt, at least, with any discussions that OFMdFM has had with the NIO, or arrangements which that Department might be making, regarding the following matters:

• Appointing the Attorney General.
• Making Judicial and Tribunal appointments.
• Sponsorship of the Judicial Appointments Commission and the Judicial Appointments Ombudsman.

7. Research Paper on Serious Organised Crime Agency

Members noted the research paper on the role of SOCA.

The Chairperson adjourned the meeting at 1.02 pm.

[EXTRACT]

Tuesday, 2 October 2007
The Senate Chamber, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Mr John Lunny (Clerical Officer)

Apologies: Mrs Carmel Hanna

The meeting opened at 10:30am in public session.

1. Apologies

Apologies are detailed above.

10.40am Ian McCrea joined the meeting

4. Chairperson’s Business

Options for departmental/ministerial model

Members noted the terms of the Secretary of State’s letter of 28 December 2006 about ‘Ministerial Models’ and the associated briefing paper which summarises the various legislative options.

Members noted that the issue of ‘Ministerial Models’ is due to be discussed at 23 October meeting.

5. Inquiry into the devolution of policing and justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea:

• Member, Cookstown District Policing Partnership.

Oral evidence from the Northern Ireland Court Service

Members heard oral evidence from the Lord Chief Justice and his officials, Alison Houston and Simon Rogers. The session was recorded by Hansard.

10.47am Alex Attwood joined the meeting

10.55am Danny Kennedy joined the meeting

11.25am Alex Attwood left the meeting

Oral evidence session with the Northern Ireland Policing Board

Members heard oral evidence from the Chairman of the Northern Ireland Policing Board Professor Desmond Rea, Vice Chairman Barry Gilligan and Chief Executive Trevor Reaney.

12:04pm Meeting suspended due to division in the Chamber

12:20 Meeting reconvened with the following Members present:

Rt Hon Jeffrey Donaldson MP, Mr Raymond McCartney, Mr Alex Attwood, Mr Danny Kennedy,
Mr Nelson McCausland, Mr Alan McFarland, Mr John O’Dowd, Mr George Robinson

12:28 Ian McCrea joined the meeting

6. Further Written submissions received

Members noted that further written submissions had been received from:

• The Minister for Justice, Equality and Law Reform (Republic of Ireland)
• The Equality Commission
• The Law Society of Northern Ireland
• Robert McCartney Justice Campaign
• The Irish Congress of Trade Unions

Members also noted that submissions were expected from the Bar Library and the Office of the Cabinet Secretary of Justice for Scotland.

Agreed:

• To accept the latest written submissions and those expected from the Bar Library and the Office of the Cabinet Secretary of Justice for Scotland.
• That a briefing paper be prepared on the existing arrangements for cross border co-operation between the authorities in the Republic of Ireland and the NIO, the impact of devolution on these arrangements and any protocols that would need to be put in place to ensure continued co-operation on policing and justice matters.
• That the questions prepared for the Secretary of State’s evidence session will be revised to incorporate the issues arising from today’s sessions with the Lord Chief Justice and the Policing Board.

The Chairperson adjourned the meeting at 1.00 pm.

[EXTRACT]

Wednesday, 3 October 2007
The Senate Chamber, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies:
Mrs Carmel Hanna
Mr John O’Dowd
Mr George Robinson

The meeting opened at 10:30am in public session.

1. Apologies

Apologies are detailed above.

2. Inquiry into devolution of policing and justice matters

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership.

Oral evidence with the Secretary of State for Northern Ireland, Mr Shaun Woodward

Members heard oral evidence from the Secretary of State and NIO officials, Clare Salters and Peter May. The session was recorded by Hansard.

Agreed: That the Clerk write to the Secretary of State to request a written response on the following:

• Matters relating to the budgetary allocations for any devolved Department of Policing and Justice.
• Issues about communication between any new Department, the Security Services, the Serious Organised Crime Agency and the NIO.
• Any outstanding questions (from the prepared list) which had not been posed during the oral evidence session.

11.30am Alex Attwood left the meeting

The Chairperson adjourned the meeting at 11.34am

[EXTRACT]

Tuesday, 9 October 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr George Robinson

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies:
Mr Nelson McCausland

The meeting opened at 11:00am in public session.

1. Apologies

Apologies are detailed above.

11:04am Carál Ní Chuilín joined the meeting

11:08am Alan McFarland joined the meeting

11:12am Carmel Hanna and Alex Attwood joined the meeting

3. Matters arising

3.3 Oral evidence with the Secretary of State

Members noted that a comprehensive letter has been sent to the Secretary of State’s office covering the matters which were not addressed at the evidence session.

Agreed: That a copy of this letter will be issued to all Members.

4. Chairperson’s Business

4.1 Northern Ireland Court Service

Members noted the letter of thanks received from the Director of the Court Service, Mr David Lavery.

Members noted that additional information on ‘departmental models’ has been received from the Court Service and the office of the Lord Chief Justice.

Agreed: This material will be summarised and issued to the Committee prior to the discussion planned for 23 October.

5. Inquiry into the devolution of policing and justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea:

• Member, Cookstown District Policing Partnership

Identification of Policing and Justice matters which are currently reserved matters

This session was recorded by Hansard.

Members discussed which Policing and Justice matters are currently reserved matters.

Agreed: That the matters specified in the Northern Ireland Office (NIO) Discussion Document (February 2006) be regarded as the Policing and Justice matters which are currently ‘reserved’ matters.

Matters to be transferred

Members proceeded to discuss the matters to be transferred according to the categories detailed in the NIO Discussion Document (February 2006).

Members noted there is currently no provision in the Northern Ireland Act 1998 under which the Assembly could request the transfer of an ‘excepted’ matter.

Members also noted that the Committee awaits a response from the NIO, SOCA and the Security Services with regard to the issue of accountability and lines of communication.

Agreed: That the matters on which consensus had been reached during the deliberations of the Committee on the Programme for Government should be transferred.

Members then proceeded to discuss, in turn, those matters on which no consensus had been reached during the deliberations of the Committee on the Programme for Government.

Criminal Law and Creation of Offences and Penalties

(Para 9(a) & (b) Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

Prevention and Detection of Crime

(Para 9(c) Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

11:48am Carál Ní Chuilín left the meeting

Treatment of Offenders

(Para 9(e) Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

Public Order

(Para 10 Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred, subject to further work on the Parades Commission and 50:50 recruitment to the PSNI.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.
• That the Clerk will prepare a briefing paper on indicative models and safeguard mechanisms in relation to handling of issues such as the Parades Commission and 50:50 recruitment to the PSNI, and that these issues would then be considered further.
• That the Clerk will clarify whether future powers of the army to support the police are part of the Public Order (Northern Ireland) Order 1987 or the Terrorism Act 2000, and whether these will be repealed as part of the normalisation process.

The Police and the Policing Accountability Framework

(Para 11 Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

Co-operation between the PSNI and the Garda Siochána in relation to a specific series of matters

(Para 11 Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That, in principle, the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred, subject to confirmation that the list of matters set out in the NIO Discussion document accords with the list of matters to be transferred in the Miscellaneous Provisions Act 2006.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.
• That information on existing and proposed arrangements for co-operation would be reviewed by the Committee at a later date.

Firearms and explosives

(Para 12 of Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document with regard to responsibility for ‘explosives’ should be transferred.
• The DUP and UUP will each clarify their position on the devolution of legislative and administrative responsibility for ‘firearms’ at the next meeting.

The Courts

(Paras 14A, 15 and 17 of Schedule 3 to the Northern Ireland Act 1998)

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

The Chairperson adjourned the meeting at 1.02 pm.

[EXTRACT]

Tuesday, 16 October 2007
The Senate Chamber, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies: Ms Carál Ní Chuilín

The meeting opened at 10:30am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

3.3 Letter to the Secretary of State’s Office

Members noted that a copy of the Clerk’s letter of 8 October to the Secretary of State regarding outstanding policing and justice matters was issued to Members in this week’s pack.

4. Inquiry into Devolution of Policing and Justice Matters

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

4.1 Oral evidence from the Progressive Unionist Party

Members heard oral evidence from the leader of the Progressive Unionist Party Mrs Dawn Purvis and party colleagues, Mr David Rose and Mr Stuart Finn. This session was recorded by Hansard.

10:51 Carmel Hanna joined the meeting

10:52 Alex Attwood joined the meeting

10:56 Danny Kennedy joined the meeting

10:58 Ian McCrea joined the meeting

11:09 Nelson McCausland joined the meeting

4.2 Oral evidence from the Alliance Party

Members heard oral evidence from the leader of the Alliance Party Mr David Ford and party colleague Dr Stephen Farry. This session was recorded by Hansard.

11:16 Alex Attwood left the meeting

11:26 Alex Attwood joined the meeting

11:28 Alex Attwood left the meeting

4.3 Oral evidence from the Public Prosecution Service

Members heard oral evidence from the Director of the Public Prosecution Service Sir Alastair Fraser and his colleagues Mr Raymond Kitson (Senior Assistant Director) and Mr Ian Hearst (Assistant Director). This session was recorded by Hansard.

Members discussed the evidence given by the Public Prosecution Service.

Agreed: That a paper be provided on the justice models in England and Wales which explains the relationship between the relevant government departments, the Court Service and the Crown Prosecution Service.

5. Matters Arising

5.1 Inquiry into the Devolution of Policing and Justice

This session was recorded by Hansard.

12:32 John O’Dowd left the meeting

Members gave further consideration to the following matters.

12:34 Danny Kennedy left the meeting

5.1.1 Public Order

(Para 10 Schedule 3 to the Northern Ireland Act 1998)

Members noted the briefing paper provided at Tab 2 of their packs regarding indicative models and safeguard mechanisms in relation to handling of issues such as the Parades Commission and 50:50 recruitment to the PSNI.

Parades Issues

Members noted that an interim report is expected on the ‘Strategic Review of Parading’ at the end of the year with final recommendations to follow in Spring 2008.

Agreed: There were diverse opinions about the transfer of ‘appointments to the Parades Commission and its operation’ and there was no consensus about whether this should continue to be a ‘reserved’ matter.

Future powers of the army to support the Police

Members noted that the Clerk has written to the NIO for clarification on this issue.

Agreed: That the Committee will consider this matter further when a response has been received from the NIO.

5.1.2 The Police and the Policing Accountability Framework

(Para 11 Schedule 3 to the Northern Ireland Act 1998)

Members discussed the transfer of powers in relation to the issue of 50:50 temporary recruitment to the PSNI.

Agreed: There were diverse opinions about the transfer of ‘50:50 temporary recruitment provisions’ and there was no consensus about whether this should continue to be a ‘reserved’ matter.

5.1.3 Co-operation between the PSNI and the Garda Siochána in relation to a specific series of matters

(Para 11 Schedule 3 to the Northern Ireland Act 1998)

Members noted the briefing paper provided at Tab 3 of their packs which confirms the list of matters to be transferred as described in the Miscellaneous Provisions Act 2006.

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

5.1.4 Firearms and explosives

(Para 12 of Schedule 3 to the Northern Ireland Act 1998)

Members discussed the issue of devolution of legislative and administrative responsibility for prohibited firearms.

Agreed:

• That responsibility for policy development, legislation and general oversight of ‘non-prohibited’ firearms should be devolved.
• There were diverse opinions about the transfer of responsibility for ‘prohibited firearms’.
• That the Clerk prepare a paper on the devolution of power in relation to ‘prohibited firearms’ in Scotland and England and Wales.
• That the Committee will consider the issue of ‘prohibited firearms’ at a later date.

The Chairperson adjourned the meeting at 12.58 pm.

[EXTRACT]

Tuesday, 23 October 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)

Apologies:
Mr Raymond McCartney (Deputy Chairperson)
Mr Danny Kennedy

The meeting opened at 11:02am in public session.

1. Apologies

Apologies are detailed above.

3. Matters Arising

3.3 Firearms

Members noted that a paper will be available for the next meeting regarding the extent to which firearms matters have been transferred to the Scottish Parliament.

4. Chairperson’s Business

4.2 Written submissions to the Inquiry

Members noted that, of those organisations who were given a further opportunity to make a written submission to the Inquiry, including OFMdFM, the Serious Organised Crime Agency (SOCA), the Scottish Cabinet Secretary for Justice, the Police Ombudsman and local academics, only SOCA and the Scottish Cabinet Secretary for Justice had replied.

Agreed: That, in the continued absence of a submission from OFMdFM, the Chairperson should write to request a response on the following issues:

• Appointment of the Attorney General
• Efficiency Review Panel - Number of Departments/Ministers
• Responsibility for the Public Prosecution Service

and that the First Minister and deputy First Minister should also agree to meet with a Committee delegation (comprising the four parties) for the purposes of updating the Committee on the proposed establishment of the Efficiency Review Panel.

5. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea:

• Member, Cookstown District Policing Partnership

5.1 Identification of a preferred ministerial model and procedures for filling the ministerial post/s for any new policing and justice department.

This session was recorded by Hansard.

5.1.1 Departmental model

Members discussed the Departmental model for any new policing and justice department.

Agreed: That a single departmental structure, on which consensus had been reached during the deliberations of the Committee on the Programme for Government, remains the position of parties represented on the Committee.

5.1.2 Ministerial Model

Members then proceeded to discuss the options for a Ministerial model.

Agreed:

• That the Clerk will prepare a paper which clarifies the legislative options for Ministerial models including the effect of the Justice and Security (Northern Ireland) Act 2007 on the Northern Ireland (Miscellaneous Provisions) Act 2006.
• That the matter of a Ministerial model should be the subject of further discussion.
• That the Clerk obtain a script of the statement from the Minister of Finance regarding the budget for Ministerial Departments.

12:21 Carál Ní Chuilín left the meeting

5.1.3 Departmental Structure

Members proceeded to discuss matters relating to structure and noted the responses from the NIO (15 October), SOCA (18 October) and the Cabinet Secretary for Justice in Scotland (22 October).

Members heard a presentation on the research paper regarding the Court Service models in Scotland and the Republic of Ireland and noted additional papers supplied by the Court Service and the Lord Chief Justice as well as the briefing paper on the Court Service in England and Wales.

12:32 Carmel Hanna left the meeting

Agreed:

• That a research paper be commissioned on the Court Service and Crown Prosecution Service model in England and Wales and how they might compare with any proposed model for Northern Ireland following devolution.
• That Members will review the responses from the NIO, SOCA and the Cabinet Secretary for Justice in Scotland to establish the extent to which they consider they have sufficient clarification of earlier queries.
• That Members will report their views on the responses, referred to above, at the next meeting.

The Chairperson adjourned the meeting at 12.44 pm.

[EXTRACT]

Tuesday, 6 November 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Ms Lynn Gray (Clerical Officer)
Mr Michael Johnston (Clerical Officer)

Apologies:
Mr Raymond McCartney (Deputy Chairperson)
Ms Carál Ní Chuilín

The meeting opened at 11:07am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

3.3 Correspondence from Committee on the Administration of Justice

Members noted an email from the CAJ expressing their disappointment at the fact that they have not been called to give evidence to the Inquiry.

Agreed:

• That the CAJ will not be invited to give oral evidence.
• That the Clerk write to the CAJ expressing the Committee’s appreciation for their contribution to the Inquiry by written submission and stating that they will not be required to provide oral evidence.

4. Matters Arising

4.2 Letter to OFMdFM

Members noted that a letter has been forwarded to OFMdFM regarding the inquiry into the devolution of policing and justice and inviting a response on the following issues:

• Appointment of the Attorney General
• Efficiency Review Panel – Number of Departments / Ministers
• Responsibility for the Public Prosecution Service; and
• That FM/dFM should also agree to meet with a Committee delegation.

11.21am Alex Attwood joined the meeting

5. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

George Robinson:

• Member, Limavady District Policing Partnership

Ian McCrea:

• Member, Cookstown District Policing Partnership

5.1 Identification of a preferred ministerial model and procedures for filling the ministerial post/s for any new policing and justice department.

This session was recorded by Hansard.

5.1.1 Ministerial model

Members discussed the options for a Ministerial model.

11.32 George Robinson left the meeting

11.37 Carmel Hanna joined the meeting

12.04 George Robinson joined the meeting

Sinn Féin favoured the model of two Ministers acting equally and jointly, whereas the SDLP stated that a single Minister is the most appropriate model. However, recognising that this may not be a realistic option, the SDLP’s second preference is for two Ministers acting equally and jointly, separate from OFMdFM.

The UUP support the model of a single Minister, but only in circumstances where there is full community confidence. This is a view shared by the DUP.

Agreed: That there was presently no consensus on the arrangements for a Ministerial model and that the matter should be re-visited later in the Inquiry.

5.1.2 Departmental structure

Members proceeded to discuss matters relating to structure and referred to documents distributed at 23 October meeting, including correspondence from the NIO (15 October), SOCA (18 October), the Cabinet Secretary for Justice in Scotland (22 October) and the recent research paper on the Court Service model.

Members heard a presentation on a research paper regarding the Court Service and Crown Prosecution Service models England and Wales and how they compare with the proposed model for Northern Ireland.

Agreed: That the four parties represented on the Committee would bring forward papers for discussion at the Committee’s meeting scheduled for 20 November 2007 addressing the issues raised in the recent research papers.

5.1.3 Governance and accountability

Members discussed the issue of governance and accountability.

Agreed:

• That the Committee may invite an expert witness to advise the Committee on the structure of the Criminal Justice system.
• That the Clerk liaise with Research and Library Services to investigate a list of possible expert witnesses and to prepare a ‘specification document’ which summarises the issues which the witness might be expected to address.

12.51 Alan McFarland left the meeting

5.2 Firearms

Members noted that a paper will be available for the next meeting regarding the extent to which firearms matters have been transferred to the Scottish Parliament.

The Chairperson adjourned the meeting at 12.58 pm.

[EXTRACT]

Tuesday, 20 November 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Mr John Lunny (Clerical Officer)

Apologies: Ms Carál Ní Chuilín

The meeting opened at 11:04am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

3.2 Format of today’s meeting

Members noted that one of the items on today’s agenda is to agree the priority list of expert witnesses, who will be invited advise the Committee on the governance and accountability arrangements for any new Department of policing and justice.

Agreed: That this part of the meeting will be conducted in closed session.

4. Matters Arising

4.2 Correspondence with OFMdFM

Members noted the continued absence of a response from OFMdFM regarding their preparations for the devolution of policing and justice.

Agreed: That, in the continued absence of a response from OFMdFM, the Chairperson should write to request at least an initial response which should include information on the progress of OFMdFM in relation to:

• Appointment of the Attorney General
• Efficiency Review Panel - Number of Departments/Ministers
• Responsibility for the Public Prosecution Service

5. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

George Robinson:

• Member, Limavady District Policing Partnership

This session was recorded by Hansard.

5.1 Independent Monitoring Commission

Members noted the latest report of the Independent Monitoring Commission on ‘Normalisation’ published on 17 September.

5.2 Chief Constable, PSNI

Members discussed the possibility of inviting the Chief Constable to provide evidence to the Committee.

11:27 Danny Kennedy left the meeting

11:28 George Robinson joined the meeting

Agreed:

• That the Chief Constable will be invited to provide evidence to the Committee on either 8 or 15 January 2008.
• That members will consider, in time for next week’s meeting, whether there are further witnesses who they wish to invite in order to inform their deliberations with regard to ‘timing’ and ‘confidence’ issues.

6. Departmental structure

6.1 Party Papers

Members discussed progress in relation to the preparation of party papers on the governance and accountability mechanisms which should exist within any new department of policing and justice.

11:32 Alex Attwood joined the meeting

11:34 Carmel Hanna joined the meeting

Agreed: That the parties will submit papers after hearing from the expert witness/witnesses regarding governance and accountability mechanisms.

The meeting moved to closed session at 11:39 am

6.2 Expert Witness

Members noted the list of potential expert witnesses and the specification document which sets out the issues which the witness/witnesses may be expected to address.

11:48 George Robinson left the meeting

Agreed:

• Members agreed the list of expert witnesses, with one addition, and ranked them in order of preference.

11:51 George Robinson joined the meeting

• That the Clerk will contact the potential expert witnesses, in order of preference, to invite up to three witnesses to provide advice to the Committee.
• That the expert witness/witnesses will be requested to make a written submission by 5 December 2007 and appear before the Committee on either 11 or 18 December.
• That witnesses may be entitled to ‘out of pocket’ expenses only.

6.3 Forward work plan

Members discussed the Inquiry timeline and the agenda for meetings up until January 2008.

Agreed:

• That Members will return to the outstanding issues in relation to the ‘matters to be transferred’ at next week’s meeting.
• That the Committee may meet on 18 December depending on the outcome of the invitations to expert witnesses to appear before the Committee.
• That there will be no Committee meeting on 4 December.

The Chairperson adjourned the meeting at 12:09 pm.

[EXTRACT]

Tuesday, 27 November 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Keith McBride (Clerical Supervisor)
Mr Michael Johnston (Clerical Officer)

Apologies: Mr John O’Dowd

The meeting opened at 11:08 am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

11.12 am Carmel Hanna joined the meeting

3.2 Expert Witnesses

Members noted that, in relation to the expert witnesses who have been invited to advise the Committee:

• Lord Woolf was unable to accept because of diary commitments.
• Justice Denham was unable to accept, but invited the Committee to Dublin to have discussions with Members of the Board of the Irish Court Service who are judges.
• Following a recommendation from Justice Denham, and in consultation with the Committee, the Chief Executive of the Irish Court Service, Mr PJ Fitzpatrick, has agreed to assist the Committee. Mr Fitzpatrick will prepare a paper and attend the 18 December Committee meeting.
• An invitation has been extended to Lord Goldsmith. A response has not yet been received.
• Professor John Jackson, Queen’s University Belfast, has agreed to assist the Committee.

Agreed:

• That, in the absence of a response from Lord Goldsmith, the Clerk will seek to engage an expert witness to provide a perspective from England and Wales.

11.15am Danny Kennedy joined the meeting

• That the Clerk will write to Justice Denham to express appreciation for the invitation to meet with members of the Irish Court Service, explaining that timing is a major problem for the Committee and that it may be appropriate to consider a meeting at a later date.

3.3 Invitation from Criminal Justice Inspectorate (CJI)

Members noted that the CJI will be holding a conference for stakeholders in the Criminal Justice System on 17 January under the theme of ‘the devolution of criminal justice in Northern Ireland’.

Members noted that the Chair has been invited to attend this meeting to “provide a perspective on the challenges that the devolution of policing and justice will pose”.

Agreed:

• That it would be inappropriate for the Chair to discuss the Committee’s position before the recommendations of the ‘Inquiry into the devolution of policing and justice’ have been considered by the Assembly.
• That the Clerk will contact CJI to clarify the nature of the contribution they are expecting from the Chair.
• Following clarification from CJI, the Committee will discuss whether it is appropriate for the Chair or other party representatives to attend this conference.

12.13 pm Carál Ní Chuilín left the meeting

5. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

George Robinson:

• Member, Limavady District Policing Partnership

This session was recorded by Hansard.

5.1 Matters to be transferred

Members noted that there are five outstanding matters to be dealt with in relation to the ‘matters to be transferred’.

Members noted that responses are awaited from the NIO regarding two of the outstanding ‘matters to be transferred’; the powers of the army to act in support of the police, and the powers in relation to the misuse of drugs.

Agreed:

• That the Committee will address the issue of ‘50:50 recruitment’ following the evidence session with the Chief Constable.
• That the Committee will await the interim report of the ‘strategic review of parading’ before dealing with the parades issue as part of the ‘matters to be transferred’.
• That the Chairperson should table a question at Westminster about the ‘Strategic Review of Parading’.

Members noted the briefing paper (tabled) setting out the options for the devolution of firearms.

Agreed:

• That responsibility for policy development, legislation and general oversight of ‘non-prohibited’ firearms should be devolved.
• There were diverse opinions about the transfer of responsibility for ‘prohibited firearms’.
• That the Clerk will develop wording for potential inclusion in the final report, which might recommend that, on matters where there were diverse opinions, the Assembly would continue to keep under review those matters which continue to be ‘reserved’.

5.2 Chief Constable, PSNI

Members noted that the Chief Constable will provide evidence to the Committee on 8 January 2008 at 11.15am in the Senate Chamber.

6. Departmental structure

6.1 Party Papers

Members noted that a preparation pack was distributed on 7 November to assist parties in preparing papers on the governance and accountability issues raised in recent research papers.

Agreed:

• That the Clerk prepare and distribute a consolidated list of questions to be considered as part of the party papers.
• That the party papers will be submitted to the Committee office by 9 January for discussion at 15 January Committee meeting.

The Chairperson adjourned the meeting at 12:31 pm.

[EXTRACT]

Tuesday, 11 December 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Michael Johnston (Clerical Officer)
Mr John Lunny (Clerical Officer)

Apologies:
Mr Raymond McCartney (Deputy Chairperson)
Mr George Robinson

The meeting opened at 11:05am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

3.1 Expert Witnesses

Members noted that Sir Ron De Witt will be unable to provide advice to the Committee due to his imminent departure from the post of Chief Executive of HM Court Service (HMCS).

Members noted that Lord Justice Thomas, a former member of the management board of HMCS, will confirm by the end of the week whether he might be able to assist the Committee.

The Clerk drew attention to the October 2007 Judiciary paper on ‘accountability’, as recommended by Lord Thomas.

Agreed:

• That a paper be prepared which summarises the Judiciary paper on ‘accountability’ in time for next week’s meeting.
• That the Clerk will source any relevant papers by Professor Bogdanor which are referenced in the Judiciary paper for inclusion in next week’s papers.

11:10 Carmel Hanna joined the meeting

4. Matters Arising

4.1 Criminal Justice Inspectorate

Members noted the letter received from the CJI providing clarification on the agenda for 17 January stakeholder conference and the contribution expected from the Committee.

Agreed:

• That the Committee considers it would not be appropriate for the Chairperson to address the conference before the recommendations of the ‘Inquiry into the devolution of policing and justice’ have been considered by the Assembly.
• That Members of the Committee would seek to avoid attending the conference, given the sensitive stage which may have been reached in the deliberations of the Committee.
• That, instead, Committee Members would encourage their respective parties to send representatives to the conference.
• That Committee Members would encourage party colleagues, who might be representatives at the conference, to refrain from speculating about the potential content of the Committee’s report.
• That the Clerk should advise Kit Chivers accordingly, in writing.

11:20 Alex Attwood Joined the meeting

11:24 Meeting suspended for equipment check

11:26 Meeting reconvened

5. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

This session was recorded by Hansard.

5.1 Matters to be transferred

Members discussed two of the outstanding matters to be dealt with in relation to the ‘matters to be transferred’.

5.1.1 Future powers of the army to operate in support of the police

Members noted the 5 December NIO letter providing clarification on the ‘future powers of the army to operate in support of the police’.

Members noted that further clarification has been sought from the NIO regarding the exact nature of the powers that will transfer to Northern Ireland following devolution.

Agreed: That the Committee will await further clarification from the NIO before seeking to establish whether there is consensus with regard to the transfer, or otherwise, of these matters.

5.1.2 Powers relating to the misuse of drugs

Members noted the 6 December letter from the NIO providing clarification on the responsibility for powers relating to the misuse of drugs.

Members noted that the majority of functions under the Misuse of Drugs Act 1971 are already exercised by the DHSSPS insofar as they relate to Northern Ireland.

Agreed: That the Committee accepts the arrangements for powers relating to the Misuse of Drugs, as described by the NIO, but without prejudice to any role or responsibility that might exist for the Department of Health, Social Services and Public Safety or the Committee for Health, Social Services and Public Safety.

6. Departmental structure

6.1 Party Papers

Members noted that a preparation pack was distributed on 7 November to assist parties in preparing papers on the governance and accountability issues raised in recent research papers.

Agreed:

• That the party papers will be submitted to the Committee office by noon on 9 January for discussion at the Committee meeting scheduled for 15 January.

7. Any Other Business

Members discussed the need for further consultation with the NIO before final deliberations with regard to devolution of policing and justice can take place.

Agreed:

• That the Clerk write to the NIO to invite relevant officials to attend the Committee meeting on 8 January.
• That the matters to be discussed with the NIO should include the progress of preparations for the devolution of policing and justice, and the status of existing concordats and memoranda of understanding including those dealing with relationships with authorities in the Republic of Ireland.
• That the Chairperson will liaise with the Clerk in deciding whether or not to table a question in the House of Commons regarding the status of the North/South Justice Agreement.

The Chairperson adjourned the meeting at 11:42.

[EXTRACT]

Tuesday, 18 December 2007
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr Michael Johnston (Clerical Officer)
Ms Annette Page (Clerical Officer)

Apologies:
Mrs Carmel Hanna
Mr Ian McCrea
Ms Carál Ní Chuilín

The meeting opened at 11:10am in public session.

1. Apologies

Apologies are detailed above.

3. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

3.1 Expert witness session with Mr PJ Fitzpatrick, Chief Executive of the Irish Court Service

Members heard from Mr PJ Fitzpatrick, Chief Executive of the Irish Court Service. The session was recorded by Hansard.

11.24 Alan McFarland joined the meeting

11.24 Danny Kennedy joined the meeting

3.2 Expert Witness session with Professor John Jackson, Queen’s University Belfast

Members heard from Professor John Jackson, Queen’s University Belfast. The session was recorded by Hansard.

12.25 Danny Kennedy left the meeting

3.3 Judicial Accountability

Members noted the paper at tab 3 of their packs by the Judiciary of England and Wales on ‘accountability’.

Agreed: That this paper will be considered at the next meeting on 8 January.

4. Chairperson’s Business

12.28 The meeting was held in private session

4.1 Inquiry into the devolution of policing and justice

Members noted the letter from OFMdFM received on 14 December.

Agreed: That officials from OFMdFM would be invited to the Committee meeting on 8 January.

1.15 Danny Kennedy joined the meeting

1.17 The meeting was held in public session

5. Matters Arising

5.2 NIO letter

Members noted the letter received from the NIO clarifying the issues raised by the Committee regarding the ‘future powers of the army to operate in support of the police’.

Agreed: That this matter will be considered at the next meeting on 8 January.

The Chairperson adjourned the meeting at 1.28pm.

[EXTRACT]

Tuesday, 8 January 2008
Senate Chamber, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Mr John Lunny (Clerical Officer)
Ms Annette Page (Clerical Officer)

Apologies: Mr John O’Dowd

The meeting opened at 11:14am in public session.

1. Apologies

Apologies are detailed above.

3. Inquiry into the Devolution of Policing and Justice

3.1 Evidence session with the Chief Constable, Sir Hugh Orde, and Deputy Chief Constable, Mr Paul Leighton

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

11:20 Nelson McCausland joined the meeting

Members heard evidence from the Chief Constable, Sir Hugh Orde, and Deputy Chief Constable, Mr Paul Leighton. The session was recorded by Hansard.

11:57 Danny Kennedy left the meeting

3.2 Invite to OFMdFM

Members noted the letter from OFMdFM received on Monday 7 January declining the Committees request to attend today’s meeting.

Agreed: That this matter be considered later in the meeting following the discussion with the NIO.

3.3 Evidence session with officials from the NIO

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

Members heard evidence from NIO officials Clare Salters and Peter May. This session was recorded by Hansard.

3.4 Letter from OFMdFM

1.02pm The meeting was held in private session

Members discussed the letter received from OFMdFM on 7 January.

1.15 George Robinson left the meeting

1.15 Nelson McCausland left the meeting

Agreed: That the Chair and deputy Chair would seek an urgent meeting with the Special Advisors to the First Minister and deputy First Minister, and report the outcome to the Committee at the meeting scheduled for 15 January.

1.47pm The meeting was held in public session

4. Chairperson’s Business

4.1 Party papers relating to the Inquiry into the transfer of policing and justice matters

Members noted the 9 January deadline for the submission of party discussion papers.

Agreed:

That next week’s agenda will include:

• Final discussions on the ‘matters to be transferred’.
• Discussion on structure and accountability based on the organisational arrangements as set out in the NIO Letter of 15 October 2007.

Agreed:

• That parties might choose to delay the submission of the discussion papers until further Committee deliberations have taken place on structure and accountability.
• That part of the discussions on the Inquiry into the transfer of policing and justice matters should be held in private session.

4.3 Committee on the Administration of Justice

Members noted the letter from the CAJ received on 20 December reaffirming their desire to give oral evidence to the Inquiry.

Agreed: That the Clerk respond to the CAJ thanking them for their interest in the Inquiry, explaining the Committee’s time constraints, and suggesting that any additional information might be provided by way of a further written submission to the Committee.

5. Matters Arising

5.1 Judiciary of England and Wales: Accountability

Members noted the paper at tab 5 of their packs by the Judiciary of England and Wales on ‘the accountability of the Judiciary’ as recommended by Lord Justice Thomas.

Members noted the transcript of a lecture by Professor V Bogdanor referred to in the Judiciary paper.

Agreed: That Members discuss these papers as part of the party discussions on governance and accountability.

5.2 Future powers of the army to operate in support of the police

Members noted the briefing paper at tab 6 of their packs and the attached NIO letter.

Agreed: That this matter will be addressed during next week’s meeting as part of the discussion on the ‘matters to be transferred’.

The Chairperson adjourned the meeting at 2.03pm.

[EXTRACT]

Tuesday, 15 January 2008
Room 144, Parliament Buildings

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

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)
Ms Annette Page (Clerical Officer)

The meeting opened at 11:04am in public session.

1. Apologies

5. Inquiry into the devolution of policing and justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

5.1 Update from Chair and Deputy Chair regarding meeting with OFMdFM Special Advisors

11.17am The meeting was held in private session

Members received an update from the Chair and Deputy Chair regarding their meeting with OFMdFM Special Advisors on 14 January.

11.26 Carmel Hanna joined the meeting

11.26 Raymond McCartney joined the meeting

Agreed: That the Clerk write to the Head of the Civil Service, Mr Nigel Hamilton, inviting him to provide a briefing to the Committee on the preparations which are being made for the devolution of policing and justice.

11.36am The meeting was held in public session

5.2 Further discussions on matters to be transferred

5.2.1 Appointments to the Parades Commission and its operation

Members noted the briefing paper at tab 4 of their packs which provided a summary of the discussions which have taken place to date in relation to the Parades Commission.

Agreed:

• There were diverse opinions about the transfer of ‘appointments to the Parades Commission and its operation’ and there was no consensus about whether this should continue to be a ‘reserved’ matter, and
• That the Clerk develop wording for inclusion in the final report, which might recommend that, on matters where there were diverse opinions, the Assembly would continue to keep under review those matters which continue to be ‘reserved’.

5.2.2 Future powers of the army to operate in support of the police

Members noted the briefing paper at tab 4 of their packs which provided a summary of the discussions which have taken place to date in relation to the future powers of the army to operate in support of the police.

Agreed:

• That the matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

5.2.3 50:50 Recruitment to the PSNI

Members noted the briefing paper at tab 4 of their packs which provided a summary of the discussions which have taken place to date in relation to 50:50 recruitment to the PSNI.

Agreed:

• There were diverse opinions about the transfer of matters relating to 50:50 recruitment to the PSNI and there was no consensus about whether this should continue to be a ‘reserved’ matter, and
• That the Clerk develop wording for inclusion in the final report, which might recommend that, on matters where there were diverse opinions, the Assembly would continue to keep under review those matters which continue to be ‘reserved’.

5.3 Discussion on structure and accountability

Members noted the briefing paper (tabled) regarding the structural and accountability issues in relation to the current policing and justice organisations.

Members discussed the issues in relation to each policing and justice organisation in turn:

5.3.1 Northern Ireland Prison Service

Agreed: That the Committee was content with the NIO proposals for devolution of the Northern Ireland Prison Service.

5.3.2 Forensic Science Northern Ireland

Agreed: That the Committee was content with the NIO proposals for devolution of Forensic Science Northern Ireland.

12.02pm John O’Dowd left the meeting

5.3.3 Youth Justice Agency

Agreed: That the Committee was content with the NIO proposals for devolution of the Youth Justice Agency.

5.3.4 Compensation Agency

Agreed: That the Committee was content with the NIO proposals for devolution of the Compensation Agency.

5.3.5 Office of the Police Ombudsman

Agreed:

• That the Clerk will inquire whether the potential role of the NI Minister or OFMdFM in appointing the Ombudsman is more than an advisory role and whether the Ombudsman is in fact appointed by the Assembly.
• That the party papers should consider whether the advisory role in appointments is to be devolved and whether it should sit with OFMdFM or any new Department of policing and justice.

5.3.6 Northern Ireland Police Fund

Agreed: That the Clerk will seek clarification from NIO on whether the funding comes from the policing budget or whether it is a separate arrangement.

5.3.7 Probation Board

12.12pm Danny Kennedy left the meeting

Agreed:

• That the Clerk will draft wording to be included in the final report which will make reference to the recommendation in the CJR 2000 that consideration should be given to the joining of the Probation Board, Prison Service and Youth Justice Agency into one system, and
• That it will be for any new Department of policing and justice to consult and decide on the future status of the PBNI.

12.16pm Ian McCrea left the meeting

5.3.8 Northern Ireland Law Commission

Agreed: That the Clerk will draft wording to be included in the final report which will recommend that lines of communication be set up between any new Department of policing and justice and the NI Law Commission as soon as possible in order for the Department to input into the work programme of the Commission.

12.17pm John O’Dowd joined the meeting

5.3.9 Criminal Injuries Compensation Appeals Panel

Agreed: That the Committee was content with the NIO proposals for devolution of the Criminal Injuries Compensation Appeals Panel.

5.3.10 Parades Commission

Agreed: That the issues in relation to the transfer of the Parades Commission will be dealt with as part of the ‘matters to be transferred’.

5.3.11 Northern Ireland Policing Board

Agreed:

12.25pm Ian McCrea joined the meeting

That the party papers should address the following issues:

• Whether MLAs should continue to sit on the Policing Board.
• If there are to be no MLAs on the Policing Board, whether the political parties should continue to appoint the 10 political members of the Board.
• Whether the conclusions of the PFG Committee, that members of the Policing Board should not be permitted to sit on any new Statutory Committee for policing and justice, should be endorsed.
• The need for a Memorandum of Understanding to clarify the relationships which exist between the PSNI, the Policing Board and any new Statutory Committee for policing and justice, and which would deal with any conflict of interest.

5.3.12 Northern Ireland Legal Services Commission

Agreed:

• That responsibility for policy development in relation to criminal legal aid should be transferred from the NI Court Service.

That the Committee should await the letter from the NI Legal Services Commission before considering

• Where responsibility for criminal legal aid policy should transfer to.
• Whether responsibility for all aspects of civil and criminal legal aid should sit with one body (either the Legal Services Commission or any new Department of policing and justice).
• Whether the NI Legal Services Commission should remain as a public body and be accountable to any new Department of policing and justice or whether it should cease to be a public body with its responsibilities being taken over by the Department.

5.3.13 Judicial Appointments Commission

Agreed: That the Clerk develop wording for inclusion in the final report to support the recommendation of the Lord Chief Justice that it would be important for there to be a protocol between the Commission and the Office of the First Minister and deputy First Minister regarding judicial appointments.

5.3.14 Judicial Appointments Ombudsman

Agreed: That the Committee was content with the NIO proposals for devolution of the Judicial Appointments Ombudsman.

5.3.15 Criminal Justice Inspection Northern Ireland

Agreed:

• That if devolution occurs in May, responsibility for appointing a new Director by August 2008 will fall to the new Department.
• That if devolution does not happen by this time, responsibility for appointing the Director will remain with the NIO.
• That the Clerk will develop wording for inclusion in the final report which will recommend that issues raised in the written submission from the Criminal Justice Inspectorate be addressed by any new Department of policing and justice post devolution.

5.3.16 Northern Ireland Court Service

Agreed:

That the party papers should address the following issues:

• The degree of independence of the Court Service
• How accountability can be ensured in a future NI Court Service model.
• The division of responsibilities between the future NI Court Service agency/ independent body and any new Department of policing and justice.
• Whether the agency should continue to deliver policy advice and legislative support, or whether these functions should transfer to the Department.
• The composition of the Board of any future independent Court Service.

5.3.17 Public Prosecution Service (PPS)

Agreed:

That the party papers should address the following issues:

• The degree of independence of the Public Prosecution Service.
• The relationship between the Public Prosecution Service and the Attorney General for NI.
• The relationship between the Public Prosecution Service and the Assembly.
• The relationship between the Public Prosecution Service and the proposed Advocate General for NI.
• Which Department should have responsibility for providing funding the Court Service and the Public Prosecution Service.

5.3.18 Other Issues

Agreed:

• That the parties may wish to address the following additional issues in their party papers.

Attorney General

Following the briefing from the Head of the Civil Service:

• Whether the post of Attorney General will be a full time or part time role.
• The costs associated with this office.

SOCA and the Security Services

• The lines of communication and accountability between SOCA and the Security Services and any new Department of policing and justice in relation to ‘excepted’ matters such as national security and organised crime.

North/South Agreements

• The status of North/South agreements post devolution in relation to devolved matters? Whether they require re-negotiation by any new Department of policing and justice.
• Whether there are any further cross border intergovernmental agreements which require consideration prior to devolution.

The Chairperson adjourned the meeting at 1.03pm.

[EXTRACT]

Tuesday, 22 January 2008
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

Apologies:
Mr Danny Kennedy
Ms Carál Ní Chuilín
Mr George Robinson

The meeting opened at 11:06am in public session.

1. Apologies

Apologies are detailed above.

3. Chairperson’s Business

3.1 Short term forward work programme

Members discussed proposals for a short term forward work programme to enable the Committee to complete its report into the devolution of policing and justice matters.

Agreed:

• That the meeting scheduled for Tuesday 29 January would be cancelled
• That the Clerk liaise with the Business Office to schedule a debate in the Assembly on the Inquiry into the devolution of policing and justice.

That meetings would be scheduled for the following dates:

• Thursday 31 January, 2pm (private session) to consider party position papers and begin party deliberations.
• Tuesday 5 February , 10.30am (public session) to consider the draft legislation proposed by the NIO and to continue party deliberations.
• Thursday 7 February, 2pm (private session) to conclude party deliberations and agree the terms of the motion to be submitted to the Business Committee.
• Tuesday 12 February, 10.30am (private session) to consider a draft of the report and discuss and agree any final amendments.
• Thursday 14 February, 2.00pm (private session) to agree the terms of the report.

3.2 Reception for Criminal Justice Week

Members noted the request from the Speaker that Members register their interest in attending a reception on Tuesday 19 February at 6.30pm in the Great Hall to mark Criminal Justice Week.

Agreed: That the Clerk respond to the Speaker’s Office to confirm that invitations to the reception for Criminal Justice Week would be welcomed.

3.3 Review of Assembly Functions

Members noted two motions submitted recently regarding the review of the structures and functions of the Assembly.

4. Inquiry into the Devolution of Policing and Justice

Members noted the letter from OFMdFM dated 21 January 2008 setting out the terms on which Sir Nigel Hamilton had agreed to brief the Committee.

4.1 Evidence session with Sir Nigel Hamilton and his officials, Neill Jackson and Geoffrey Simpson from OFMdFM and Tony Canavan from the Departmental Solicitor’s Office

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

Members heard evidence from Sir Nigel Hamilton and his officials. The session was recorded by Hansard.

11.57 John O’Dowd joined the meeting

12.04 Nelson McCausland left the meeting

4.2 Letter from NIO re number of Ministerial Departments

Members noted the letter from the NIO dated 18 January 2008 clarifying the mechanisms for creating a new Department and how this relates to the number of Ministerial offices.

12.10 Raymond McCartney left the meeting

4.3 Letter from the Legal Services Commission

Members noted the letter from the Legal Services Commission dated 18 January 2008 regarding the future status of the Legal Services Commission ‘post devolution’.

Agreed: That the issues raised in the letter from the Legal Services Commission should be included in the final report as part of the list of issues for consideration by any future Minister / Ministers of policing and justice.

4.4 Structure and Accountability

Members noted the outstanding issues to be addressed in the party position papers on structure and accountability.

Members noted that the Clerk has written to the NIO to request clarification on a number of unresolved issues raised at last week’s meeting.

Agreed:

• That the Clerk revisit the written and oral evidence from the NI Policing Board to establish whether they stated a view on the future membership the Policing Board and any scrutiny Committee on policing and justice.
• That members would submit their party position papers by close of play on Monday 28 January.

Members noted that Part 2, Section 25, of the Justice (Northern Ireland) Act 2002 allows for the Attorney General to participate in proceedings of the Assembly to the extent permitted by its standing orders.

Agreed: That the Clerk draft a letter from the Chairperson to the Chairperson of the Committee on Procedures to give notice of the need to amend the Assembly’s Standing Orders.

The Chairperson adjourned the meeting at 1.03pm.

[EXTRACT]

Tuesday, 5 February 2008
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

Apologies:
Mr Danny Kennedy
Ms Carál Ní Chuilín
Mr John O’Dowd

The meeting opened at 10:38am in public session.

1. Apologies

Apologies are detailed above.

4. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

4.1 Party Position Papers

11.17am the meeting was held in private session

The session was recorded by Hansard.

Members discussed the arrangements for submission of outstanding party position papers.

11.36am The meeting was held in public session

4.2 Role of Attorney General

Members noted the briefing paper at Tab 4 of their packs summarising the evidence provided by Sir Nigel Hamilton and his officials.

4.3 Role of Advocate General

Members noted the briefing paper at Tab 5 of their packs setting out the provisions if the Justice (Northern Ireland) Act 2002 relating to the role of the Advocate General for Northern Ireland.

4.4 Policing Board (extract from oral evidence)

Members noted the extract from the oral evidence of the Northern Ireland Policing Board at Tab 6 of their packs which sets out the views of the Policing Board in relation to membership of the Policing Board and any future statutory committee which might have responsibility for policing and justice matters, post devolution.

Agreed: That MLAs appointed to any future statutory committee with responsibility for policing and justice matters should not serve, simultaneously, as members of the Policing Board, or any District Policing Partnership in order to avoid potential conflicts of interest.

4.5 Probation Board submission

Members noted the letter from the Probation Board dated 31 January at Tab 7 of their packs referring to recent discussions of the Committee regarding the future status of the Probation Board.

Agreed: That the Clerk should respond to the Probation Board, indicating that the Committee has noted the contents of the letter.

4.6 ‘Include Youth’ submission

Members noted the letter from ‘Include Youth’ dated 25 January 2008.

Agreed: That a reply should issue to ‘Include Youth’ thanking them for their informative written submission and stating that it would not be appropriate to invite any further witnesses at this stage of the Inquiry.

4.7 Update from Clerk on arrangements for publishing the Committee’s report

Members heard an update from the Clerk on the arrangements for the publication of the Committee report.

Agreed:

• That the Committee will discuss the terms of the draft motion at the meeting on 12 February.
• That the Committee will seek to sign off on the Inquiry report by 22 February.
• That the text of the report should be placed in the Business Office by 29 February.

The Chairperson adjourned the meeting at 1.03pm.

[EXTRACT]

Thursday 7 February 2008
Room 152, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

Apologies:
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr John O’Dowd

The meeting opened at 2:09pm in public session.

1. Apologies

Apologies are detailed above.

2. Inquiry into the Devolution of Policing and Justice

2.1 NIO Correspondence 6 February

Members noted the NIO letter of 6 February at Tab 1 of their packs.

Agreed: To return to the issues addressed in this letter following presentation of the draft legislation by the NIO.

2.2 Session with the NIO

The session was recorded by Hansard.

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Members heard a summary of the draft legislation from NIO officials Clare Salters and Peter May.

Agreed: That the NIO officials would provide written clarification on a number of issues.

2.28pm Carál Ní Chuilín left the meeting

2.3 Naming of the Department

Members discussed the need to agree a title for the new Department.

Agreed: That Members would consult their respective parties and report outcomes at the meeting on Tuesday 12 February.

2.4 Outstanding ‘matters to be transferred’

2.4.1 Compensation

Members discussed the proposals relating to the transfer of responsibility for ‘Compensation’ as set out in the NIO Discussion Document (February 2006).

Agreed:

• That the reserved matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

2.4.2 Community Safety Partnerships

Members discussed the proposals relating to the transfer of responsibility for Community Safety Partnerships as set out in the NIO Discussion Document (February 2006).

Agreed:

• That the reserved matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.

2.4.3 Chief Inspector of Criminal Justice

Members discussed the proposals relating to the transfer of responsibility for the Chief Inspector of Criminal Justice as set out in the NIO Discussion Document (February 2006).

Agreed:

• That the reserved matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred.

2.4.4 Northern Ireland Law Commission

Members discussed the proposals relating to the transfer of responsibility for the Northern Ireland Law Commission as set out in the NIO Discussion Document (February 2006).

Agreed:

• That the reserved matters described in the Northern Ireland Office Discussion Document (February 2006) should be transferred

3.01pm the meeting was held in private session

The session was recorded by Hansard.

2.5 Structure and accountability

Members discussed a number of outstanding matters relating to the structure and accountability of policing and justice organisations.

2.6 Party Position Papers

Members discussed the party position papers.

Agreed: To continue discussions on the matters discussed in the party position papers in private session at the meeting on Tuesday 12 February.

Agreed: That the Deputy Chairperson would provide clarification on a number of matters at, or before, the meeting on Tuesday 12 February.

The Chairperson adjourned the meeting at 4.42pm.

[EXTRACT]

Tuesday 12 February 2008
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

The meeting opened at 10.40am in public session.

1. Apologies

No apologies received.

10.42am the meeting was held in private session

3. Inquiry into the Devolution of Policing and Justice

The session was recorded by Hansard.

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

3.1 Name of any new Department

Members discussed the options for the name of any new Department

10.51am Danny Kennedy joined the meeting

Agreed:

• That, for the purpose of the report, the name will be ‘the Department’.
• That ‘the Department’ will be defined as ‘the Department that will exercise powers in relation to policing and justice matters’.
• That the naming of the report will be included as a matter to be resolved by the Assembly prior to devolution.

3.2 Structure and accountability / Party position papers

Members discussed a number of outstanding matters relating to the structure and accountability of policing and justice organisations.

11.47am Danny Kenny left the meeting

12.12pm Ian McCrea left the meeting

12.16 Ian McCrea joined the meeting

3.3 Matters to be transferred

3.3.1 Firearms and Explosives

Members discussed the proposals relating to the transfer of responsibility for firearms and explosives as set out in the covering commentary of draft legislation provided by the NIO in February 2008.

Agreed:

• That the matters described in the covering commentary of draft legislation provided by the NIO in February 2008 should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

3.3.2 Misuse of Drugs

Members discussed the proposals relating to the transfer of responsibility for the misuse of drugs as set out in the covering commentary of draft legislation provided by the NIO in February 2008.

Agreed:

• That the reserved matters described in the covering commentary of draft legislation provided by the NIO in February 2008 should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

3.3.4 Excepted Matters (Extradition and Mutual Legal Assistance)

Members discussed the proposals relating to the responsibility for administrative arrangements relating to ‘extradition and mutual legal assistance’ in the covering commentary of draft legislation provided by the NIO in February 2008.

Agreed:

• That the matters described in the covering commentary of draft legislation provided by the NIO in February 2008 relating to some administrative arrangements for ‘extradition and mutual legal assistance’ should be exercised by the Northern Ireland Minister/s.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

3.3.5 Prevention and detection of crime

(Regulation of Private Security Industry)

(Regulation of Investigatory Powers Act)

Members discussed the proposals relating to the transfer of responsibility for matters relating to the ‘prevention and detection of crime’ in the covering commentary of draft legislation provided by the NIO in February 2008.

Agreed:

• That the matters described in the covering commentary of draft legislation provided by the NIO in February 2008 should be transferred.
• There were diverse opinions about the transfer of those matters which are ‘excepted’ and there was no consensus on seeking an amendment to the Northern Ireland Act 1998 to allow for a request to be made by the Assembly for the transfer of these ‘excepted’ matters.

3.3.6 Treatment of Offenders: Separated Accommodation

Members discussed the proposals relating to the transfer of responsibility for matters relating to the treatment of offenders and ‘separated accommodation’ in the covering commentary of draft legislation provided by the NIO in February 2008.

Agreed:

• That the matters described in the covering commentary of draft legislation provided by the NIO in February 2008 should be transferred.

3.4 Terms of motion for a debate on the Inquiry report

Members discussed the terms of the draft motion for debate on the Inquiry report.

Agreed:

• Members agreed the terms of the draft motion for debate on the report as follows:

“That the Assembly approves the report of the Assembly and Executive Review Committee relating to the devolution of policing and justice matters and agrees that, as required by section 18 of the Northern Ireland (St Andrews Agreement) Act 2006, it should be submitted to the Secretary of State for Northern Ireland, before 27 March 2008, as a report of the Northern Ireland Assembly.”

[Chairperson, Assembly and Executive Review Committee]

• That either 3 or 4 March is the preferred date for debating the motion in the Assembly.

1.12pm Alan McFarland left the meeting

The Chairperson adjourned the meeting at 1.16pm.

[EXTRACT]

Tuesday 19 February 2008
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mrs Debbie Pritchard (Principal Clerk)
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

Apologies:
Mr Raymond McCartney (Deputy Chairperson)
Ms Carál Ní Chuilín

The meeting opened at 10.40am in closed session.

1. Apologies

Apologies are detailed above.

3. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

10.44am George Robinson joined the meeting

3.1 Outstanding Matters

3.1.1 NIO Letter 14 February 2008: Prosecution Policy

Members noted the NIO letter of 14 February 2008 which provided clarification on the roles and responsibilities in relation to prosecution policy.

3.1.2 NIO Letter 14 February 2008: Issues to be addressed

Members noted the second NIO letter of 14 February which provided clarification on a number of outstanding issues raised by the Committee regarding:

10.47am Carmel Hanna joined the meeting

• Responsibility for sentencing policy
• The status and make up of the Criminal Justice Board
• Funding of the Office of Attorney General for Northern Ireland
• The role of the Advocate General in relation to oversight of ‘excepted’ matters
• Responsibility for the Criminal Injuries Compensation Appeals Panel

3.1.3 Northern Ireland Police Fund

Members noted the NIO letter of 15 October 2007 which stated that the Northern Ireland Police Fund will transfer to the Department.

Agreed: That the Northern Ireland Police Fund should transfer according to the arrangements set out in the NIO letter of 15 October 2007.

3.1.4 Judicial Appointments Ombudsman

Members noted the OFMdFM letter of 7 January 2008 which stated that the Judicial Appointments Ombudsman will transfer to the Department and not to OFMdFM as was originally proposed in the NIO Discussion Paper (February 2006).

11.00am Danny Kennedy joined the meeting

Agreed: That the Judicial Appointments Ombudsman should transfer as proposed in the OFMdFM letter of 7 January 2007.

11.03am Alex Attwood left the meeting

3.2 Draft Report on the ‘Inquiry into the Devolution of Policing and Justice’

11.06am Alex Attwood joined the meeting

3.2.1 Timing

Members discussed the current timeline for debate and publication of the draft report.

Agreed: That the Business Committee would be asked to consider scheduling the debate on the report in the week beginning 10 March.

3.2.2 The draft report

Members considered, paragraph by paragraph, the draft report on the ‘Inquiry into the Devolution of Policing and Justice Matters’.

Agreed: without prejudice to further party consultation on the draft report:

• Paragraphs 1-5, read and agreed
• Paragraph 6, read and agreed as amended
• Paragraphs 7-12, read and agreed
• Paragraph 13, read and agreed as amended
• Paragraphs 14-20, read and agreed
• Paragraph 21, read and agreed as amended
• Paragraph 22, read and agreed

11.45am Danny Kennedy left the meeting

• Paragraphs 23-30, read and agreed as amended
• Paragraph 31, Sinn Féin advised that further party consultation was required on this matter and that they would revisit this paragraph at the next meeting.
• Paragraphs 37-38, read and agreed
• Paragraphs 32-36, read and agreed as amended
• Paragraph 39, read and agreed

12.28pm Ian McCrea left the meeting

• Paragraph 40 deleted
• Paragraph 41, read and agreed as amended
• Paragraphs 42-43, read and agreed as amended

12.35pm Ian McCrea joined the meeting

• Paragraph 44, read and agreed
• Paragraphs 45-47, read and agreed as amended
• Paragraph 48, read and agreed
• Paragraphs 49-52, read and agreed as amended

The meeting was suspended at 1.30pm and recommenced at 1.45pm

1.48pm Nelson McCausland left the meeting

• Paragraphs 53-55, read and agreed
• Paragraphs 56-58, read and agreed as amended

1.55pm Nelson McCausland joined the meeting

• Paragraphs 59-60, read and agreed
• Paragraphs 61-63, read and agreed as amended
• Paragraph 64, read and agreed
• Paragraphs 65, read and agreed as amended
• Paragraph 66, agreed that the Clerk would re-draft this paragraph for consideration at the next meeting
• Paragraph 67, read and agreed

2.36pm Nelson McCausland left the meeting

• Paragraphs 68-71, read and agreed as amended

Agreed:

• That the Clerk would prepare a revised draft of the report and distribute to Members on Thursday 21 February for consideration at next week’s meeting.

The Chairperson adjourned the meeting at 2.46pm.

[EXTRACT]

Tuesday 26 February 2008
Room 144, Parliament Buildings

Present:
Rt Hon Jeffrey Donaldson, MP (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

In Attendance:
Mr Stephen Graham (Assembly Clerk)
Ms Sinead Nash (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)

Apologies: Ms Carál Ní Chuilín

The meeting opened at 10.35am in closed session.

1. Apologies

Apologies are detailed above.

3. Inquiry into the Devolution of Policing and Justice

The following interests were declared:

Jeffrey Donaldson:

• Member, Her Majesty’s Privy Council
• Member, Northern Ireland Policing Board

Ian McCrea:

• Member, Cookstown District Policing Partnership

3.1 Draft Report on the ‘Inquiry into the Devolution of Policing and Justice’

Members considered, paragraph by paragraph, the draft report on the ‘Inquiry into the Devolution of Policing and Justice Matters’.

Agreed:

• Paragraphs 1-8 ‘Introduction’, read and agreed
• Paragraphs 1-8 ‘Issues, Findings, Recommendations and Conclusions, read and agreed’
• Paragraphs 9-15, read and agreed as amended

Paragraph 16 – Committee divided

Mr O’Dowd proposed that:

‘the motion is that recommendation 10 be amended to read ‘ The Committee recommends that those matters in Paragraph 10 of Schedule 3 to the Northern Ireland Act 1998 be transferred’.

The Committee divided, Ayes 4; Noes 5.

Ayes
Alex Attwood
Carmel Hanna
John O’Dowd
Raymond McCartney

Noes
Nelson McCausland
George Robinson
Ian McCrea
Alan McFarland
Jeffrey Donaldson

The motion fell.

• Paragraph 16, read and agreed as amended
• Paragraph 17-23, read and agreed as amended

Paragraph 24 – Committee divided

Mr O’Dowd proposed that:

‘the motion is that recommendation 17 be amended to read ‘The Committee recommends that all administrative arrangements relating to extradition and mutual legal assistance should be exercised by the Northern Ireland Minister/s’.

The Committee divided, Ayes 4; Noes 5.

Ayes
Alex Attwood
Carmel Hanna
John O’Dowd
Raymond McCartney

Noes
Nelson McCausland
George Robinson
Ian McCrea
Alan McFarland
Jeffrey Donaldson

The motion fell.

• Paragraph 24, read and agreed
• Paragraphs 25-38, read and agreed

11.23am Nelson McCausland left the meeting

• Paragraph 39, read and agreed as amended

11.25am Nelson McCausland joined the meeting

11.27am Carmel Hanna left the meeting

11.31am Nelson McCausland left the meeting

• Paragraphs 40-52, read and agreed

11.36am Carmel Hanna joined the meeting

• Paragraph 53, read and agreed as amended

Paragraph 54 – Committee divided

Mr Attwood proposed that:

‘the motion is that recommendation 38 be amended to read ‘ The Committee recommends that the NIO and OFMdFM should take forward work to ensure that any agreements remain in place at the point of devolution, and that these should be reviewed by the Department and the Statutory Committee following devolution. The Committee further recommends that, before and following devolution, discussions take place to identify other areas that may become part of a future agreement’.

The Committee divided, Ayes 4; Noes 4.

Ayes
Alex Attwood
Carmel Hanna
John O’Dowd
Raymond McCartney

Noes
George Robinson
Ian McCrea
Alan McFarland
Jeffrey Donaldson

The motion fell.

• Paragraph 54, read and agreed

11.45am Ian McCrea left the meeting

Paragraph 55 – Committee divided

Mr Attwood proposed that:

‘the motion is that paragraph 55 be amended to remove the following sentence:

‘There were diverse opinions about the need for a higher degree of oversight in relation to the operation of SOCA and the Security Services in Northern Ireland’.

and to replace this sentence with:

‘The Committee considers that the arrangements in respect of oversight and accountability of the Security Services and SOCA are inadequate and calls for discussions to strengthen these arrangements’.

11.49am Ian McCrea joined the meeting

The Committee divided, Ayes 4; Noes 5

Ayes
Alex Attwood
Carmel Hanna
John O’Dowd
Raymond McCartney

Noes
George Robinson
Ian McCrea
Alan McFarland
Danny Kennedy
Jeffrey Donaldson

The motion fell.

• Paragraph 55, read and agreed as amended

11.52am Ian McCrea left the meeting

• Paragraph 56, read and agreed
• Paragraphs 57-58, read and agreed as amended

12.02pm Danny Kennedy joined the meeting

12.03pm Nelson McCausland joined the meeting

• Paragraphs 59-60, read and agreed
• Paragraph 61, read and agreed as amended

Mr Donaldson informed the Committee of his impending appointment as a Junior Minister in the Office of the First Minister and deputy First Minister, which would require him to resign as Chairperson of the Committee.

Members expressed their congratulations to the Chairperson and acknowledged his valuable contribution to the work of the Committee.

12.10pm Jeffrey Donaldson left the meeting

12.10pm The Deputy Chairperson (Mr Raymond McCartney) took the Chair

• Annex A, read and agreed as amended
• Paragraphs 1-3 ‘Executive Summary’, read and agreed
• Paragraph 4 ‘Executive Summary’, read and agreed as amended
• Paragraph 5-6 ‘Executive Summary’, read and agreed
• Summary of recommendations, read and agreed as amended

3.1.1 Appendices to the report

Members discussed the list of appendices to the report

Agreed: that the following documents be included in the appendices to the report:

• Appendix 1 – relevant extracts from the minutes of proceedings of the Committee
• Appendix 2 – the minutes of evidence (Hansard transcripts)
• Appendix 3 – a suite of papers from the NIO including the “Devolving Policing and Justice in Northern Ireland: Discussion Paper” (February 2006) and subsequent papers, correspondence and memoranda from the NIO.
• Appendix 4 – Written submissions
• Appendix 5 – Submissions from the political parties – provided at the beginning of the inquiry, submissions from the Alliance Party and the PUP - provided during the inquiry – and subsequent party position papers - submitted by parties in February 2008
• Appendix 6 – General correspondence (including correspondence with OFMdFM)
• Appendix 7 – Papers prepared by the Northern Ireland Assembly Research and Library Service
• Appendix 8 – Submissions from the expert witnesses and documentation on the judicial system in England and Wales.

3.1.2 Minutes of today’s meeting and authorising the printing of the report

Members discussed the arrangements for authorising the printing of the report.

Agreed: That the Committee authorises the Deputy Chairperson to sign the minutes of today’s meeting in order for them to be included in the report.

3.1.3 Distribution of the report

Members discussed the arrangements for distribution of the report.

Agreed: that a printed copy of the report be forwarded, under embargo, to each of the witnesses who gave oral evidence and those organisations who made written submissions, with copies likely to be released on Thursday 6 March.

3.1.4 The Debate

Members discussed the speaking arrangements and time allocation for the Assembly debate.

Agreed:

• That speaking arrangements for the debate should be discussed by the Deputy Chairperson and Chairperson once appointed.
• That the Committee will suggest that the Business Committee should allow for a three hour debate.

3.1.5 Media Strategy

Members discussed the media strategy in relation to the release of the report.

Agreed: That the Chairperson and Deputy Chairperson were authorised to do pre-recorded interviews, under embargo.

The Deputy Chairperson adjourned the meeting at 12.35pm.

[EXTRACT]

Appendix 2

Minutes of Evidence

Tuesday 3 July 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

Witnesses:

Mr Peter May Ms Clare Salters

(Northern Ireland Office)

1. The Chairperson (Mr Donaldson): I welcome Peter May and Clare Salters to this meeting of the Assembly and Executive Review Committee. I apologise for keeping you waiting, but we had some issues that we needed to discuss in detail. Before we proceed, I draw members’ attention to the paper that has been provided by the Northern Ireland Office (NIO). Members will have received copies of that paper, which were circulated yesterday.

2. I also remind members that this briefing session is being recorded by Hansard with a view to the official report of these proceedings being reproduced in any report that the Committee might ultimately publish.

3. I declare an interest as a member of the Privy Council and as a member of the Northern Ireland Policing Board. Have members any relevant interests to declare?

4. Mr O’Dowd: None.

5. Mr Attwood: None.

6. Mr G Robinson: I am a member of Limavady District Policing Partnership.

7. Mr I McCrea: I am a member of Cookstown District Policing Partnership.

8. The Chairperson: We have asked the officials from the Northern Ireland Office to provide the Committee with an assessment of the Secretary of State’s expectations regarding the report that he wishes to receive from the Assembly. Furthermore, the officials will be able to report on the practical arrangements that are being made for the transfer of policing, security and criminal justice matters.

9. Peter and Clare have already advised the Committee of their respective roles in the Northern Ireland Office, and I invite them now to address the Committee.

10. Mr Peter May (Northern Ireland Office): We will rehearse the two areas set out in the paper that the Committee received. We see this meeting as the start of a dialogue between the Committee and the NIO, and we are happy to help the Committee to meet its remit and to make its report by March 2008. If we are unable to answer any questions today, we will send the Committee a written response following today’s meeting. Clare will address the first of the two questions.

11. Ms Clare Salters (Northern Ireland Office): The first question concerned what the Secretary of State expects to be contained in the report from the Assembly at the end of March 2008. The purpose of the report is to provide information on the outstanding issues that will enable the transfer legislation to be drawn up and the practical arrangements to be made. There is nothing particularly complex or detailed in what is required, and we have set out the key elements in our paper. The report should indicate the Assembly’s views on the likelihood and timing of a request for the transfer of policing and justice functions.

12. The NIO discussion document published in February 2006 stated clearly that if policing and justice functions are to be devolved, then the critical mass of those functions will have to be transferred together or the system will not work as a coherent whole. Therefore our working assumption is that if the Assembly wishes to have responsibility for policing and justice, it will want the glut of those functions to be transferred.

13. The discussion document also flagged up a number of issues that could be transferred or could remain under the responsibility of the Northern Ireland Office, as the Assembly sees fit. It would be useful to know the Assembly’s emerging thinking on the status of those “optional extras”. I do not mean to sound as though I am trivialising them, but it would be useful to have the Assembly’s thoughts on areas that do not require to be transferred for the system to work properly.

14. For the purpose of legislative planning, we need to know the Assembly’s thoughts on departmental structures and ministerial oversight. That will enable us to ensure the proper order of provisions in the new legislation. We need to be guided by the Committee’s thinking on that.

15. The NIO will also need to know whether the Assembly is likely to request that the Secretary of State make an order to increase the number of Departments or ministerial offices from 10, which is the current restriction.

16. In conclusion, the NIO will need to be made aware of matters that will allow it to draw up the legislation and make the practical arrangements needed. As Peter said, we are more than happy to provide the Committee and the Assembly with any information that they may require to help in the decision-making process.

17. Mr May: The second half of the paper provides information about the preparations that have been made. We aim to be ready for the devolution of policing and justice powers by May 2008, while recognising that the date on which such a request will be made is a matter for the Assembly. Therefore, our efforts across the wide range of administrative and organisational changes required to give effect to devolution of policing and justice are focused on being ready for that date, to enable devolution at the point that the Assembly requests it.

18. The paper sets out in detail some of the areas that are being explored. However, we do not believe that the Committee will want to concern itself with those areas, because — for the most part — they are organisational and administrative.

19. The Chairperson: Thank you, Peter and Clare. I shall open up the meeting to members for questions or comments on the paper.

20. Clare, you referred to the question of the number of Departments. Does the NIO expect the report to include the Assembly’s view on whether the number of Departments should be reduced to accommodate a new Department of policing and justice? Am I correct in thinking that the current legislation states that the number of Departments will not be increased by the creation of a new Department of policing and justice?

21. Ms Salters: Section 17(4) of the Northern Ireland Act 1998 places a limit on the number of ministerial offices: it states that the number will not exceed 10 unless the Secretary of State provides differently by order.

22. If the Assembly wishes to increase the number of Departments, the Secretary of State must consider that request and make an order. Therefore, it would be helpful to know if that request were coming. How the Assembly wishes to structure things within the limit of 10 is its own business, but if we know how the Assembly wishes to structure the policing and justice element, it will enable us to make the practical arrangements for transfer.

23. Mr McFarland: The legislation, as I understand it, states that if the Assembly has not indicated its position by 28 March, the Secretary of State intends to nominate Ministers and to devolve responsibility for policing and justice by May 2008. Secretary of State Hain was challenged on that and said that that was not what the legislation meant and that we should all work together. Why was that in the legislation other than as a clear threat or, indeed, a promise to Sinn Féin that, regardless of what everyone else did, the Secretary of State or the NIO was determined that responsibility for policing and justice would be devolved by May next year? What is the position now?

24. Ms Salters: The position has not changed from that which is set out in section 4(2)(a) of the Northern Ireland Act 1998. The Secretary of State cannot transfer functions unless the Assembly votes to have them transferred to it. However, the Secretary of State was trying to avoid a situation in which there was stalemate over a decision about ministerial oversight or the departmental structure for policing and justice. That, in itself, should not be a barrier to the devolution of policing and justice, but should it become the only one, it gives the Secretary of State the power to impose the model, but not the Ministers, and is intended simply to provide a means of getting over that hump.

25. Mr McFarland: I thought that it was stated somewhere in the legislation that if the Assembly did not make a decision on the election of Ministers, the Secretary of State would select them.

26. The Chairperson: It is not for me to respond, but, in fairness, the Secretary of State subsequently withdrew that.

27. Mr McFarland: I am aware that he subsequently said that that was not what he meant, but my understanding is that it is in the legislation. Is that correct?

28. Ms Salters: I do not have a copy of the Act with me, but I can provide you with detailed clarification in writing.

29. The Chairperson: From my own recollection, the Secretary of State said that he would impose a model but would not appoint Ministers. That is a summary of it.

30. Ms Salters: That is my memory of the legislation.

31. Mr McFarland: In the original legislation, it stated that if the Assembly had not identified Ministers by 28 March, the Secretary of State would then decide the model and powers would be devolved. I know that eventually he went round in circles and said that that was not what he meant, but why was it included in the first place? Was it simply a threat that would be removed when we all did the deal? The fact that the Secretary of State went to the media and said that was not what he meant does not change what is in the legislation.

32. Ms Salters: We can write to the Committee with chapter and verse on the legislation, but, off the top of my head, it is an additional model that the Secretary of State has the power to impose. However, he does not have the power to impose Ministers on the Administration.

33. The Chairperson: From my recollection, that is a fair summary, but can we possibly have written confirmation of that, please?

34. Mr Attwood: I welcome what Peter May said at the start of the meeting about the NIO’s commitment to assist and report to the Committee, and I intend to rely on that. However, I have several questions on the principle of the Committee providing help, to which Clare Salters referred. Peter said that he thought that the development and agreement of protocols and memoranda is largely of an organisational and administrative nature. However, the hard detail is important. Who develops and agrees those protocols? Peter, are you saying that it is the responsibility of this Committee, working with the NIO, to develop and agree them and underpin the arrangements? I do not want you to go into any detail, but who is working on that, and are you inviting this Committee to work with you on it?

35. Mr May: In most cases, the protocols will operate between the devolved Administration’s justice Ministry — if that is the model that is chosen — and the Secretary of State. Therefore, they will not be agreed until such time as there is a justice Minister to approve them. When policy issues on protocols or memoranda arise that the Secretary of State feels that the Committee should discuss, he will inform you in writing.

36. However, most protocols relate to matters such as respect for the independence of the judiciary, giving effect to the relevant section of the Justice (Northern Ireland) Act 2002, the independence of the Public Prosecution Service for Northern Ireland, and so forth.

37. Mr Attwood: Will you give written advice to the Committee on all protocols and memoranda that are being developed? Although the political responsibility of a justice Minister may ultimately be required to approve them, I am interested in the period between now and his or her appointment. Some 99% of the memoranda and protocols may be administrative and, therefore, of little interest to the Committee, but 1% or 10% may be of great interest. I do not want the situation to arise where the Secretary of State may decide to inform the Committee of some decisions but not others. If the NIO is to continue its dialogue with this Committee and provide it with any help that it can, it must be understood that we may need to probe into certain areas.

38. Before I ask you to comment on that, there is an issue about non-devolved institutions providing sufficient and appropriate information to devolved institutions on matters that include national security. There is not much time between now and February 2008. At this stage, can you map out what you mean, because there is a credibility gap between the proposals on national security and the Serious Organised Crime Agency (SOCA) and the authority of those institutions?

39. Is it the intention that all NIO staff will transfer en masse to the new justice Ministry? For example, what is your best assessment at this stage of whether all staff in the criminal justice branch, or any part of the NIO, will transfer to the new Ministry?

40. Mr May: In answer to the first of your three questions, when we write to the Committee about the legislation, we will include details of our understanding of the protocols and memoranda. Your second question was specifically about the information that will pass between the devolved and non-devolved Administrations, particularly on national security.

41. Mr Attwood: National security was just an example.

42. Mr May: We want to devolve as many of the reserved policing and justice functions as possible, subject, obviously, to the will of the Assembly. We recognise the importance of very good, close interworking between the future justice Department and the arrangements in Whitehall, part of which will be a future Northern Ireland Office.

43. National security is an excepted matter that will not be transferred to the devolved Administration. Where the work of the devolved Administration touches on matters that are national security-related, it will be necessary to consider whether devolved Ministers require access to national security information and, if so, what level of that information they might receive, and by what means.

44. We anticipate producing a document that will explain how national security related issues will be handled and managed where they interface with responsibilities that fall within the portfolios of Ministers of the devolved Administration.

45. Mr Attwood: Is that document going to be considered by the Review Committee, or will London decree how things are to be? Will there be dialogue about it, or will it be presented as a fait accompli?

46. Mr May: I do not know the precise answer to that. I am happy to respond in writing with the details.

47. Mr Attwood: From my perspective it is critical, and I would like to convince the Committee that it is critical. The Assembly, in the future, cannot be told what to do on issues of national security, and then seriously claim to have fulfilled its duty in preparing a report for the Secretary of State.

48. Mr May: Clare has outlined the areas that we believe that report should address. National security will not be devolved, so there will be no dialogue.

49. Mr Attwood: You have said that sufficient and appropriate information should be made available.

50. Mr May: Yes, that is the objective.

51. Mr Attwood: What does that mean and how will that be done? Will the information be sufficient and appropriate? That is one conversation — among many others — that we need to have with you, and I would like to know if we are going to be allowed to have it.

52. Mr May: I acknowledge the points that you are making, and I will write to you in reply.

53. Your third point was on the transfer of staff from the Northern Ireland Office to the justice Department. In essence, the way in which transfers normally take place within the machinery of Government is that staff usually transfer with a function. The future Northern Ireland Office will deal with matters that are not transferred to the devolved Administration and will continue to have its own staff.

54. The majority of staff will transfer with the policing and justice functions that are transferred, and we will consider a range of staffing issues in that context, to ensure that individual special circumstances are taken into account, and we will try to be as responsive as possible. However, the broad principle is that people transfer with the functions being transferred.

55. Mr Attwood: If there is time later, I should like to ask some further questions. I wish to put you on notice that I am not happy. I understand the principle of transfer, but I would like to know what that actually means for the management structure, especially the senior management structure. I am not interested in who will be transferred across so much as in what posts will be transferred across. How that works out over the next eight months could reflect upon the authority of the devolved institution.

56. The Chairperson: We will invite the Secretary of State to give evidence to the Committee, and that will afford further opportunities to tease those issues out with him — if he agrees to come.

57. Do members have any other questions before we give Alex another bite of the cherry? Alex, do you wish to proceed?

58. Mr Attwood: I wish to return to Mr McFarland’s point, mindful of the fact that the previous Secretary of State attempted to backtrack on previous statements. If there is no indication of intent from the Assembly on the transfer of policing and justice powers; if we do not have a satisfactory report by February — and public statements have been made that seem consistent with that time frame — and if, six months after next May, there is still no commitment from the Assembly on the transfer of powers, what is the British Government’s intention?

59. Ms Salters: The legislation is clear.

60. Mr Attwood: Did the Secretary of State not say that there would be further legislation? Does the NIO know whether the British Government have, as we speak, any intention of passing further legislation to impose the transfer of powers six months after next May, if there is no date for the transfer by then?

61. Ms Salters: There is not, to my knowledge, any intention to amend section 4.

62. Mr Attwood: I agree with Ms Salters about the legislation, but what about the political commitment? I am sure that Sinn Féin has an interest in this matter, as I certainly have. However, in the event that, six months after next May, no date for devolution is agreed, or if the triple lock has not been released, is there, or is there not, a political commitment to table further legislation?

63. The Chairperson: In fairness, Mr Attwood, Committee members are asking questions of officials that should be answered by Ministers. I do not wish to curtail the discussion, and you are raising very serious issues — as Mr McFarland did earlier — but the purpose of today’s meeting is for officials to provide the Committee with a briefing. We are straying into issues on which it would be unfair to expect officials to give a political response — that is not the role of officials today, or at any other time, unless they have been authorised to do so.

64. I do not wish to curtail the discussion, but the issues that Mr Attwood and Mr McFarland have raised highlight the need for an early meeting with the Secretary of State to try to tease out the issues that have been identified. Those matters are important and require further exploration.

65. Mr McFarland: The Serious Organised Crime Agency (SOCA) is reorganising and expanding, and the Assets Recovery Agency (ARA) is continuing its work. Clearly, those activities are not a matter of national security, so some oversight of that will be devolved — or will it?

66. I understand that SOCA is due to open a local office, which will be commanded from London — somewhat like a British FBI. Is that, technically, a matter of national security? Matters relating to organised crime involve us in Northern Ireland. How far will linkages go in relation to the devolution of oversight of SOCA to the Policing Board or to the criminal justice Department?

67. Ms Salters: We will write to the Committee with more detail on that matter. The Serious Organised Crime Agency is a UK-wide body, and it operates under the law that is set in each jurisdiction. Therefore, whether it is the criminal law in England and Wales, Scotland or Northern Ireland, SOCA must operate within the legal frameworks that are set in those jurisdictions. The Assembly will set the framework for Northern Ireland, and SOCA will have to operate in that framework. We can provide the Committee with further details in writing.

68. Mr May: You were correct that responsibility for the Organised Crime Task Force is among the powers that we envisage being devolved with justice and policing functions. SOCA is a UK-wide body, which will have a regional office in Northern Ireland, but its accountability will continue at national level. Arrangements are already in place in Scotland for managing the different arrangements there. As Clare said, we will write to the Committee with details, but we envisage a similar arrangement in Northern Ireland.

69. The Chairperson: Mr McFarland raised a useful point, and, perhaps, the Committee will discuss it later. The Committee should examine the situation in Scotland, because there are parallels and lessons that could be learned. However, I do not know to what extent the Northern Ireland Office has examined that situation.

70. Mr Attwood: Although it is not a matter on which the Committee must decide now, I want to know how you envisage the NIO engaging in dialogue with the Committee. Will it be occasional, or will you be prepared to bore into the issues with the Committee in a very dedicated way, if that were required? I want to know the extent of your offer and whether, for the sake of argument, you would be willing to bore into that work every week.

71. With regard to the devolution of policing and justice, can you provide a briefing on current North/South co-operation on policing-and-justice matters, and confirm whether that will continue to operate in the same way after the devolution of those matters, or whether the Executive will make decisions on North/South policing-and-justice matters?

72. Mr May: On North/South co-operation, I will say briefly that co-operation on policing-and-justice matters between the two jurisdictions will continue until those matters have been devolved. After they are devolved, the accountability arrangements will change because the British-Irish Intergovernmental Conference is not responsible for devolved matters. Co-operation will then be taken forward under the auspices of the North/South Ministerial Council. The structures that were set up by the intergovernmental agreement on criminal justice co-operation could be maintained under the new accountability arrangements. However, that will be a matter for the Minister responsible for justice and the Northern Ireland Executive.

73. Mr Attwood: So, on the day that those matters are devolved, there will be no North/South criminal justice co-operation, as there would have been on the previous day when the matter was reserved by the British Government?

74. Mr May: Clearly, it falls under the auspices of the North/South Ministerial Council, not those of the British-Irish Intergovernmental Conference.

75. The NIO has already signalled a willingness to work with the Committee and to explore in more detail the issues that it has indicated, through the Secretary of State, to be those that it believes are part of the Assembly’s fundamental remit. The NIO is, therefore, happy to work with the Clerk and others to organise that work in the most appropriate way.

76. Mr McFarland: Mr Attwood and I were members of the first Northern Ireland Policing Board. An event occurred around 18 months or two years ago. Mr Attwood will recall that, out of the blue, there came a criminal justice agreement between Dublin and London, and difficulty arose over how to take cross-border co-operation forward. As I recall, the parties were not given sight of it.

77. Some legislation was put in place, which, I believe, suggested that civil servants in both jurisdictions would develop a criminal justice cross-border co-operation agenda. In the letter that you will write to Mr Attwood or to the Committee, will you identify what good work has been done in the interim by the NIO’s group of civil servants who were set up to advance that agenda?

78. Mr May: I am happy to do that.

79. The Chairperson: There are no more questions. I thank you, Mr May and Ms Salters, for being present with your team. The Committee appreciates your willingness to co-operate with it and to assist it in its work. It would be useful if you were to indicate to the Secretary of State that, in due course, the Committee hopes to hear from him as well.

25 September 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

Witnesses:

Mrs Siobhan Broderick Mrs Jacqui Durkin Mr David Lavery Mrs Laurence McAlpine Mr David Thompson

Northern Ireland Court Service

80. The Chairperson (Mr Donaldson): I welcome the representatives of the Northern Ireland Court Service. I remind Committee members that Hansard will be recording this evidence session for the purposes of publication. Members will find in their packs information on the areas that the Committee will explore with the Court Service.

81. I welcome Mr David Lavery, the director of the Northern Ireland Court Service, and his colleagues. Before the witnesses make their presentations to the Committee, I invite members to declare any relevant interests.

82. I declare an interest as a member of the Privy Council.

83. Mr I McCrea: I am a member of Cookstown District Policing Partnership.

84. Mr G Robinson: I am a member of Limavady District Policing Partnership.

85. The Chairperson: I should also declare an interest as a member of the Northern Ireland Policing Board.

86. Mr Lavery, please introduce your colleagues and proceed with an opening statement. Members will then have an opportunity to explore particular issues with you and your colleagues.

87. Mr David Lavery (Northern Ireland Court Service): Thank you, Mr Chairman.

88. My name is David Lavery, and I am the director of the Northern Ireland Court Service. On my immediate right is Mrs Laurene McAlpine, head of policy and legislation in the Northern Ireland Court Service. On my immediate left is Mrs Jacqui Durkin, who is head of court operations. With me, also, are two other members of the Court Service senior management group — Mrs Siobhan Broderick, who is head of tribunal reform, and Mr David Thompson, who is the finance director of the Northern Ireland Court Service.

89. With the Committee’s permission, I will make a short introductory statement to position our evidence. I thank the Committee for the invitation to appear here this morning. The Minister of State with responsibility for the Court Service, Mr David Hanson, asked that I convey to the Committee his willingness to assist its deliberations — if it wishes him to do so.

90. The Court Service’s written evidence is before the Committee, and I do not want to tax the Committee’s patience by repeating what we have already said in that; however, some introductory remarks would perhaps be appropriate. I am conscious that my appearance before the Committee marks the first time in 30 years that consideration has been given to where the courts — and by extension the judiciary — should fit into the justice system in Northern Ireland. In view of the wide range of issues that the Committee has to consider, we welcome that it has set aside time to look specifically at the future of the courts under devolution.

91. It is interesting that when the Court Service was established under the Judicature (Northern Ireland) Act 1978, it was given a special position in the justice system as a separate Department. Technically, the Court Service is a separate civil service; separate from the Northern Ireland Civil Service and the Northern Ireland Office. At that time, the Court Service was made accountable to the Lord Chancellor, who was both a Government Minister and head of the judiciary in Northern Ireland.

92. I mentioned the special place that the courts were given in the justice system in 1978 because I suspect that it is an issue to which the Committee will want to pay close attention. Apart from that, it ought to be relatively straightforward for the Committee to deal with the questions set out in its terms of reference for the Court Service. It is our view that all of the matters that the Court Service is currently responsible for — which are reserved or excepted matters — should be capable of being devolved.

93. As the Committee will know, the Court Service is currently responsible for four main areas of work: the running of the courts and the Enforcement of Judgments Office; the legal aid system, including the work of the Northern Ireland Legal Services Commission; the judicial appointments system, including the work of the Northern Ireland Judicial Appointments Commission; and the running of a number of tribunals. The Committee will be aware that last year the Secretary of State for Northern Ireland announced that it was intended that the Court Service would assume responsibility for running all of Northern Ireland’s tribunals. We are currently working with colleagues in the Office of the First Minister and the Deputy First Minister to take forward those reforms.

94. As I mentioned, all of our current responsibilities are capable of being devolved. As to where they should be devolved, we would suggest the following. Legislation already provides that responsibility for judicial appointments will transfer to the First Minister and the Deputy First Minister. In the case of legal aid, responsibility for the legal aid system would be best placed in any new justice Department that the Assembly is minded to establish. The remainder of our responsibilities — running the courts and tribunals — should probably remain with us under devolution to become part of a new unified courts and tribunals service.

95. If the Committee agrees with that distribution of functions, a new courts and tribunals service would be one of several justice organisations that would be linked to, and or funded by, a new justice Department. However, the exact relationship between the future Court Service and a new justice Department could take a number of forms. At its most straightforward, the Court Service could become an agency of the new justice Department, much in the same way as Her Majesty’s Courts Service in England is an agency of the Ministry of Justice.

96. In ‘Devolving Policing and Justice in Northern Ireland: a Discussion Paper’, published last year, the Government stated that they support the agency model. Under that model, a framework document would set out the rules and responsibilities of the Court Service agency, which would draw its funding from the new justice Department. The agency would be headed by a chief executive, who would report to the justice Minister and could be called to appear before any of the Assembly’s Committees. The staff of the Court Service would be members of the Northern Ireland Civil Service.

97. As the judiciary would be one of the Court Service’s key stakeholders, one or more of the senior judges might become non-executive members of its management board. That would ensure that the judiciary had a seat at the table when decisions affecting the work of the courts were being made. The Court Service’s chief executive would be expected to have a close working relationship with the head of the judiciary in Northern Ireland, the Lord Chief Justice.

98. However, the agency model is not the only option for the future of the Court Service. I have seen the written evidence given to the Committee on behalf of the Lord Chief Justice. He considers that, in the interests of judicial independence, the Court Service should sit at some distance from any future justice Department. The current arrangements for the Irish Courts Service and the recently published plans for the Scottish Court Service are two examples of that approach. As civil servants, we believe that either model could be made to work in practice.

99. I am grateful to the Committee for allowing me to make these introductory remarks, and my colleagues and I will be pleased to answer any questions from the Committee this morning.

100. The Chairperson: Thank you, Mr Lavery. I am intrigued by your suggestion of an alternative to the idea of an agency to the Court Service linked to a justice Department and that either the Irish model or the proposed Scottish model might be appropriate. I cannot recollect whether your written submission contained any detailed information on either model.

101. Mr Lavery: The submission did not go into a huge amount of detail. I think that I am right in saying that the issue was ventilated by the Lord Chief Justice in his submission. That is, perhaps, why I touched on it more fully in my opening statement. Our earlier written submission to the Committee noted that when the Court Service was established, it was given a position under the Lord Chancellor, who was both a Minister and head of the judiciary. Now that his role has been divided up, as it were, essentially the Committee has a choice to make about whether the courts should be under a Minister or under the judiciary. I think that the Lord Chief Justice will want to share his views with the Committee; At least that seems to be the case.

102. The Chairperson: Do I understand the essence of the alternative proposal to the one apparently preferred by Her Majesty’s Government to be that, rather than sit under the remit of the justice Department — albeit as an agency at some arm’s length — the Court Service would sit under the judiciary and not have a direct link to the justice Department?

103. Mr Lavery: Even the alternative model suggested by the Lord Chief Justice would require an accountability relationship. As the Court Service would, perhaps, draw its funding from the justice Department, there would have to be some accountability mechanism. Even in the South of Ireland, where that structure already exists, there are accountability mechanisms that allow the Minister for Justice, Equality and Law Reform to request reports from the Irish Courts Service.

104. It is quite common for the chief executive of the Irish Courts Service to appear before Oireachtas committees to give evidence, and so forth. Other accountability mechanisms include the more conventional ones of publishing an annual report, a strategic plan, and so forth.

105. However, I do not want to give the impression that the alternative model is completely and absolutely independent. There has to be some accountability balance. Someone described the options to me as a continuum; it is a case of deciding how close the courts should be positioned to a justice Department. Agency status brings the Court Service quite close to a justice Department. It is possible to think of a halfway house, where the agency might have judges involved in the management and oversight of the courts. The further-away model is that which the Lord Chief Justice is minded to recommend to the Committee. That is the model that the Irish Government chose to establish in 1996 with the establishment of the Irish Courts Service.

106. Although the Scottish Court Service was initially established as an agency, the Scottish Government — formerly the Scottish Executive — have published proposals for a possible repositioning of the Scottish Court Service in order to make it more like the Irish Courts Service model, under a board chaired by the equivalent of the Lord Chief Justice. Therefore, there are two comparators within these islands that can be examined. The third model is the agency model that operates in London.

107. The Chairperson: If the Scottish or Irish model were adopted, where would that leave the Court Service in relation to the Northern Ireland Civil Service? Would the Court Service continue as it does at the moment, as a semi-autonomous civil service, or would it still be integrated into the Northern Ireland Civil Service?

108. Mr Lavery: There would be many benefits for the Court Service if it were fully integrated into the Northern Ireland Civil Service. It is an historical anachronism that the Court Service was made a mini civil service. I sometimes remind Nigel Hamilton that I, too, am head of a civil service, but I do not think that he takes that very seriously. [Laughter]

109. It would be better for the staff to have career and other opportunities to move in and out of other Civil Service Departments. It does not necessarily follow that, if one were to adopt the Lord Chief Justice’s preferred model, the Court Service would have to remain separate. I feel that our staff would benefit from career development and other opportunities in joining the Northern Ireland Civil Service.

110. It will almost certainly be necessary for the Court Service to become an agency in the first instance. Primary legislation would be necessary to create the alternative model that the Lord Chief Justice prefers. Therefore, in a sense, it will be necessary for the Court Service to be docked into any future devolved justice system. If the Assembly were minded to do so, we might be repositioned once devolution of justice takes place. I suspect that such a two-stage process will be necessary.

111. The Chairperson: That is almost the way in which the Scottish model has progressed.

112. Mr Lavery: Precisely.

113. Mr McFarland: Mr Lavery, you have been engaged in talks with the Northern Ireland Office about how all that should proceed. If the Assembly agreed to it, that could all happen next May. Can you take the Committee through the discussions that you have been having and explain how things are progressing in the great plan for May? Is the system likely to be ready by then, if the Assembly gives its consent?

114. Mr Lavery: There is much work to be undertaken, and a complex series of project work streams is being led by the Northern Ireland Office. NIO officials are best placed to give further updates to the Committee, because they are controlling the process. However, the Court Service is participating in all those work streams to ensure that it is ready to plug into any new devolved structure. Those include: human resources and personnel matters, finance; IT; and all other associated work streams.

115. There is also a lot of work to do on subordinate legislation, which my colleague Mrs McAlpine is dealing with. As the Northern Ireland Court Service is not part of the Northern Ireland Office, certain special arrangements will have to be made to bring it to an end as a separate department and transfer its functions into the justice Department. We would then emerge, phoenix-like, still the Court Service, but within the devolved context. Many work streams are going ahead, and I know that the Secretary of State has a clear objective that the necessary work should be completed in time for May 2008, if that date were to prove politically opportune.

116. Mr Attwood: I have several questions for the Court Service representatives. I want to ask about money. I recently received a letter from the Minister of Finance and Personnel confirming that, at this stage, no conversations have taken place with the NIO or the Treasury about financial issues in the event of the devolution of justice, which surprised me, given that we are now nearly in October and that this inquiry may conclude its consideration of this matter in four or five months.

117. I am anxious about money. Alan McFarland and other members of the Policing Board, retired or otherwise, know that Her Majesty’s Inspectorate of Constabulary (HMIC) has proposed, under pressure from the NIO in my view, to reduce police numbers to 6,200 down from the current complement of 7,500 in or around 2010 or 2011. That has clear policing and budgetary consequences, and I cannot imagine a situation in which the NIO and the Treasury would not, in the event of the devolution of policing, try to claw substantial funds back to London.

118. Mindful that the Court Service budget for the next three years, which you kindly provided to us, is basically static and will therefore, in real terms, diminish year-on-year over that period, do you have any concerns that the Treasury and the NIO are examining the Northern Ireland Court Service in an effort to claw back funds in the event of the devolution? Do you have any concerns about funding if devolution occurs next year, given that policing and justice take up between 15% and 18% of the entire Northern Ireland budget? In the conversations at the NIO to which Alan McFarland referred, has finance featured at all, and if so, in what terms?

119. Mr Lavery: Funding is obviously a practical consideration, and I am sure that the Assembly and this Committee will want to be satisfied that sustainable funding will be available to allow it to assume responsibility for the policing and justice system. In relation to process, the Department of Finance and Personnel is represented on the programme board that oversees the work streams that I mentioned in my answer to Mr McFarland. The Northern Ireland Treasury, if you like, is at the table at the planning stage for the creation of any future Department of justice. I am sure that it will want to ensure that if justice is transferred, there is a sustainable budget for the system.

120. The Northern Ireland Court Service is just one of a number of agencies that would form part of any future devolved justice system. We know the amount of funding that we have been given until the end of this decade. Under the comprehensive spending review we have been allocated funding for the Court Service for 2008-09, 2009-10 and 2010-11. It is a very challenging settlement, as can be seen in the figures that we shared with the Committee. It is a flat settlement.

121. That means that in order to live within our budget, we will have to find efficiencies in how we do our business. We have an advantage in that we have invested a great deal in the IT systems in the courts, and that will allow us to make such efficiencies. Our integrated court operations system is probably one of the most advanced IT platforms for court administration anywhere in the world. It is now fully on stream, and it will allow us to introduce efficiencies and contain costs.

122. If I had a concern about any aspect of my budget, looking ahead to the remainder of the decade, it would be about legal aid. It is a less predictable budget because it is demand-led; it is partly a matter of how many cases there are and the fees that are charged for them. As the Committee will understand, it would take, for example, only one or two very long-running, complex criminal Crown Court trials to affect our budget significantly. However, the legal-aid budget for the remainder of the decade has been settled by the Treasury at about £65 million a year. It will be a challenge to keep within that figure. We would be keen to discuss with our colleagues in the Ministry of Justice in England, and with the Treasury, the adequacy of the funding before any transfer of the legal-aid system to the Assembly took place.

123. Mr Attwood talked about clawback. I am certainly not conscious of any effort on the part of the Treasury or the Government in London to claw back funds from us. Our primary concern is whether the funding is adequate, because I assume that, were devolution of justice powers to take place next year, the financial settlement, the budget for the Court Service and the other parts of the justice system, would be transferred into the Northern Ireland block grant. I take reassurance from the fact that the Department of Finance and Personnel, which is the Northern Ireland treasury, will be at the table during the planning for devolution, and I am sure that it will be alert to the budgetary issue.

124. Mr Attwood: I hope that that is the case.

125. My second question relates to an issue that the Chairperson probed you on. You said in your evidence that whatever model may be chosen for the future Court Service — agency or otherwise — as a civil servant, you could work with it. Interestingly, you then said that your personal opinion was that integration with the Northern Ireland Civil Service would be useful for staff development purposes. In your oral evidence to the Committee you highlighted what you understand to be the views of the Lord Chief Justice. I do not want you to get on the wrong side of Sir Brian Kerr, but if you were to make a personal call on the ideal model or structure for the future Court Service — similar to the one that you made about how your staff’s interests could be best accommodated in the future — what would that call be?

126. Mr Lavery: I note your advice not to get on the wrong side of the Lord Chief Justice — I am conscious of that on most days of the week. It is probably better that I remain slightly agnostic on the subject, because it is a continuum. I have explained the options as alternative models, and, at their simplest, that is how they might be presented. However, it is possible to arrive at an arrangement whereby the Court Service would still be part of the justice system but would have what could be called an arm’s-length relationship with the justice Department. It may be possible to design a form of agency that is sufficiently at arm’s length from the day-to-day running of the Justice Department to allay some of the Lord Chief Justice’s concerns, without moving so far along the continuum that it becomes a separate Department in its own right.

127. For example, the Public Prosecution Service is one of the criminal justice agencies that would be devolved, becoming what is known as a non-ministerial Department: it would be a Department in its own right, but it would not be under the day-to-day superintendence of a Minister. That is what I think the Chief Justice is arguing for. The Irish Court Service is technically a non-ministerial Department.

128. However, as I told the Chairman, there would be accountability linkages. If public money were given to the Court Service in the future, there would have to be accounting mechanisms for that money. The chief executive of the Court Service would become the accounting officer and would have to be accountable to the Assembly for the use of that money.

129. There would also have to be other mechanisms to ensure that the courts could not simply go off in whatever direction they chose. If there are to be benefits from the devolution of justice, one of those would be in making the justice system work in a more coherent and joined-up way, instead of having lots of different agencies working semi-autonomously. It would be unfortunate if one of the agencies were to be floated off, quite independently.

130. In the South of Ireland, and under the proposals for Scotland, it is envisaged that courts services — even if they were non-ministerial Departments — would have to have regard to policies and strategies developed by the justice Minister and the justice Department. The legislation establishing the Irish Courts Service and the proposals published by the Scottish Executive for the Scottish Court Service both speak about allowing the justice Minister to set some sort of strategic direction to which the courts services would have to have regard.

131. We could make any of those models work in practice. It would be a case of striking the right balance between appropriate recognition for the independence of the courts and the judiciary on one hand, and having appropriate accountability to the public, through the Assembly and the justice Department, on the other.

132. Mr Attwood: Mr Lavery has raised some issues that could usefully be pursued by the Assembly’s research staff as regards justice models in the South of Ireland and in Scotland. The issue is very difficult, and there is concern, when viewed from a party-perspective, that one party or another will attempt to encroach on the independence of justice and policing arrangements in the North. It is an acute issue, and I have sympathy for the Lord Chief Justice. On the other hand, am I correct in thinking, Mr Lavery, that you sit on the Criminal Justice Board in the North and that judges do not?

133. Mr Lavery: Yes, that is correct.

134. Mr Attwood: As I understand it, judges are entitled to sit on the Criminal Justice Board and should be doing so. There is a concern that the judiciary wants to keep its distance from arrangements in the North in a way that is unhealthy. It should have relationships with broader society, not just with political-accountability mechanisms. Would anyone like to comment on that issue?

135. I note that the Court Service is sitting in on all of the work streams relating to the devolution of justice actually becoming operational. Claire Salters and Peter May claim, in their useful paper, that that seems to be an extensive piece of work. Are there any issues arising from those work streams that you want to flag up to the Committee regarding rubbing points between the interests of the Court Service and the intentions of the NIO, or anything that has given you any anxiety?

136. Mr Lavery: The work on the project is proceeding in a very workmanlike fashion. There are no rubbing points that I want to highlight. There is a lot of work to get through in the time available, but I do not see a lack of agreement or coherence in the way in which the work is being approached. My only concern is the one that I mentioned in response to the earlier point about money, which is that all of the projects, or all agencies, will have a cost, and we will need to be absolutely clear that the funds transferred are sufficient to provide sustainable resources for the new justice system.

137. You mentioned judicial independence. The Committee will be aware that there is already a statutory guarantee of judicial independence in legislation. The intention is that a concordat on judicial independence will be developed when the justice system is devolved, along with a concordat on prosecutorial independence.

138. The statutory framework for devolution has a lot built in to require public authorities, Departments and Ministers to respect the independence of the judiciary and not to seek to influence the decisions of the courts in individual cases.

139. The Lord Chief Justice will speak for himself on the question of judicial attendance at, and participation in, groups such as the Criminal Justice Board. He may give some thought to the architecture of a devolved justice system and the sort of groups in which it may be appropriate for judges to participate. There are certain groups and committees that are concerned with managing the system, where the involvement of judges or heads of the prosecution service — people such as the Chief Constable and the Director of Public Prosecutions — would not be appropriate. However, there are others at a more political level at which it is arguable that their voices should be heard. We would want to work that through in a devolved context.

140. Mr McFarland: Alex Attwood has triggered a modified train of thought. How difficult will it be? Alex and I sat on the first policing board, and for long time — 30 years — politics here was a dirty business with which the Northern Ireland Office and the policing and justice systems did not trouble themselves.

141. Psychologically, how difficult will it be for the Court Service and the judiciary to readjust to politicians, for whom they did not have a high regard, being in charge of legislation? We legislate for what the judges will judge on and we provide the money. Has that sunk into the system yet? For a long time the police did not understand; they thought that they would be able to operate without politicians annoying them.

142. The policing, judiciary and prosecution services are vital — the system would collapse without them. Has the court system understood what it is moving into? The court system is operationally independent, but the law and its funding are now being administered by people whom it previously did not hold in high regard. Perhaps it is an unfair question, but how long will it take for that psychological change to sink in?

143. Mr Lavery: All those questions are unfair. [Laughter.] That goes with the territory.

144. That is an interesting and important point, because the justice system has been under Westminster; devolved, it will be positioned much closer to Ministers and politicians who are part of the community; it will be a different political environment and will occupy a different political space.

145. The classic, and therefore the safe, answer to Mr McFarland is that the Assembly will make the law and the courts and judges will apply and operate it. The rubbing points tend to be on sentencing and what happens from day to day. That is where one encounters the grey area between the independence of judges making decisions in individual cases and a form of legitimate scrutiny by the public and the Assembly on whether sentencing, for example, adequately reflects society’s concerns.

146. I am sure that that will be as much of a challenge for a devolved justice system as it is in any other part of these islands or, indeed, has been under direct rule.

147. To answer Mr McFarland’s question the easy way, the Court Service looks forward to working in a devolved environment. Like all other justice agencies, for a long time the service was behind the curtain of security. When I took up my current position in the Court Service, I was struck by the fact that its name did not appear on the list of tenants of its building — it was used to being invisible. Since then, it has consciously set out to become public facing, opening an information centre in Windsor House. As the Committee will be aware, there is a European Commission information centre on one side of the front door of Windsor House and a Court Service information centre on the other side.

148. The Court Service has developed a strapline, which is its mission statement:

“Serving the community through the administration of justice.”

149. Its staff have always done that. Staff in local courts meet the public daily and are good at public service. However, the system has had to gradually rethink its position as a public service, which, I am sure, all the justice agencies have been doing. If it is the Assembly’s will to bring the Court Service into a devolved context, we, as civil servants in the courts administration, certainly look forward to that.

150. I am conscious that I am hogging the discussion.

151. Mrs Jacqui Durkin (Northern Ireland Court Service): Like any change, this one must be managed carefully with staff. They must be informed about business continuity and about what the change will mean, particularly to them. I am focused on there being business as usual, and that, as progress is made towards a devolved environment, the courts and the services that they support will be run as they always have.

152. As David has mentioned, it is fair to say that the staff look forward to change, to local administration and to informed decisions being made on local issues. At present, we work for Westminster Ministers. The staff and I have been focused on providing high-quality customer service to whoever uses the courts: legal professionals, members of the public, families who are in dispute and, of course, the judiciary. We are focused on continuing to do that regardless of the governance and accountability arrangements.

153. The Chairperson: Mr Lavery, you touched on sentencing. Do you envisage that the new Department will be responsible for sentencing tariffs? Does the Court Service have a view on that?

154. Mr Lavery: I am not sure whether the Court Service has a view as such on it. For the assistance of the Committee, and as colleagues will be aware, the legislature sets the level of maximum sentences. The courts tend to be faced with a maximum possible sentence when they make a decision on a particular case. The Lord Chief Justice has said in some of his public statements that within the parameters that are set by the legislature, there is a technical process by which to apply the facts and circumstances of a particular case in order to establish the correct tariff. At present, the judiciary determines tariffs through mechanisms such as guideline judgements that are issued by the Court of Appeal and work that is carried out by the Judicial Studies Board, which advises those who pass sentences on the technical aspects of the task.

155. Other countries and, indeed, other parts of the United Kingdom have different mechanisms. In England, the Sentencing Guidelines Council develops guideline ranges of sentences that are to be applied by the courts. However, the facts and circumstances of individual cases must still be taken into account. Therefore, I do not envisage that the Court Service will consider itself as having any role in sentencing. However, a justice Department might decide that the Court Service should have a voice on the subject.

156. Mr I McCrea: The time is not right to devolve policing or justice powers. As justice is your area, do you have an opinion on whether those powers should be devolved or remain under the direct rule Administration?

157. Mr Lavery: They say that fools rush in, but — having worked in a devolved environment in the Office of the First Minister and the Deputy First Minister during the previous Assembly and, therefore, having been on both sides of the fence — my personal opinion is that, in principle, devolution brings public services and governance closer to the community. In principle, the devolution of policing and justice is a desirable objective. As for the timing of its achievability and its appropriateness, that is an entirely political matter on which I cannot offer a view.

158. The Chairperson: However, given the preparatory work that has been done, do you have any concerns about the practicality of meeting a deadline of May 2008?

159. Mr Lavery: No. If it must be done, it will be done. Laurene McAlpine, who manages the legislative aspect of that, might wish to add something.

160. Mrs Laurene McAlpine (Northern Ireland Court Service): A number of streams of work are being directed towards the practical and legislative steps to devolving justice powers, all of which are progressing well. The legislative steps are important, but they are on track for Orders in Council and subordinate legislation to be ready for enactment in May 2008. There are no technical obstacles.

161. Mr McCartney: I want to return to the various models for devolution, although Alex covered most aspects of that. You said that you remain agnostic about the best model. As the Committee progresses with collating evidence and forming an opinion, will you be in a better position to say whether the agency or non-ministerial model is better?

162. Mr Lavery: We will certainly follow the Committee’s deliberations closely, because it will take evidence from key players in the justice system from next week onwards. Our views will evolve over time. However, the practical point is that which I made to the Chairman: even if we were to decide that the Courts Service of Ireland or the Scottish Court Service provided the better model, we would have to take two steps. First, the Northern Ireland Court Service would have to be devolved and made into an agency. Secondly, the Assembly would have to bring forward legislation to reposition the Court Service at arms length from the justice Department. In a way, it will be necessary to do what the Scots have done, which is to reach the agency model first, and then move beyond it, if the Assembly considers that that is the right course.

163. I remain agnostic because there are infinite ways of doing it. At some point, the Court Service will cease to be an agency and will follow a different model. However, you could quite easily set up the Court Service as an agency that would have many of the mechanisms that the Courts Service of Ireland has, such as having judges and representatives of the community on the management board, so that is not run by civil servants alone.

164. Our Court Service might achieve quite a lot of what the Irish model achieves, although, technically, it would still be an agency. We will need to do a lot of technical work, and if the Committee wants further evidence on that, we will be happy to return to it, as will our Minister, David Hanson.

165. Irrespective of that, will you recommend that the staff should not be separate from the rest of the Civil Service?

166. Mr Lavery: I see no need for them to be separate from the Civil Service. We are a small department with approximately 750 staff, many of whom are women who live and work in local communities and do not want to work elsewhere. If, on promotion, they had the chance to work in, for example DHSS it would give them more opportunities. The Court Service used to be jealous of its position as a separate civil service, and that position gave us a degree of independence. However, on balance, I have told my staff that they should not be afraid of becoming part of the wider Civil Service, as opportunities, benefits and advantages for career progression would be available.

167. The Chairperson: Mr Lavery, the Committee meeting has kept you away from a conference in Scotland today, which is being addressed by the Lord Chief Justice and touches on some of the issues that the Committee is covering. We appreciate your time and attention.

168. Mr Lavery: You refer to the annual courts services conference. Four courts services are represented: one in England and Wales, one in Scotland, our Court Service and the Courts Service in the South.

169. The Chairperson: And the criminals. I hope that this session does not drive you to drink. [Laughter]

170. Mr Attwood: Mrs Justice Susan Denham’s recommendations on the Courts Service and the judiciary in the South were based on an environment in which Ministers for Justice, Equality and Law Reform in the South have, down the years, had sometimes unfettered powers. I refer to the relationship with the Garda Siochána and the Minister for Justice’s resistance to creating higher levels of accountability around the Garda. There has always been a sense in the South that Ministers for Justice, in particular, have had undue influence over the administration of justice. Court cases and tribunals have taken place about that. Therefore, we do not compare like with like. Although similar concerns might have existed under the old Stormont regime, the new culture in the North means that the opportunity for undue political influence is not comparable to the fears that might existed in the South when Mrs Justice Denham made her report.

171. Mr Lavery: The justice system was in a different place in the early 1990s, when Justice Denham chaired the Courts Services Commission, which created the Irish Courts Service. Although I have no expertise to comment, the political context was unique and it affected policing and other issues as well as the courts. However, the principal driver for the Irish Courts Services Commission, which Mrs Justice Denham chaired, was the poor state and administration of the courts system and the lack of investment in it. The Irish Courts Service has said that, as part of the Department of Justice, Equality and Law Reform, it was always the poor relation. It was the least invested in and the least improved part of the Department. The real driver, as is clear from the reports of Justice Denham’s commission, was to try to make the Courts Service in the South a modern, public service with proper investment and a proper public-service ethos. In the North, before the 1978 legislation to create the Court Service — which came into existence in 1979 — there were three courts services. The High Court was run as an imperial service from London. Under direct rule, the High Court, the County Court service and the Magistrate Court Service were brought together under what was then the Administration of Justice branch of the Northern Ireland Office.

172. However, the justice system remained a bit of a patchwork quilt. One of the main drivers behind the creation of the Northern Ireland Court Service was to bring all those services together in order to create a unified courts administration that was properly invested in and that had good public-service standards.

173. We hope to do the same with tribunals. There are 26-odd tribunals in Northern Ireland, many of which are run by individual Departments. If the Executive agree, those tribunals will be brought together to create a more unified service. Rather than have 26 tribunals being run in 26 different ways, the idea would be to standardise them.

174. Although the political context was unique in Ireland in the 1990s, it was driven to an extent by the fact that the court system was in a poor state. The Irish court system was the poor relation because of a lack of investment, but it has now been transformed, and it benefits from having a buoyant economy. There is no shortage of investment in the Irish court system, and it has produced a more modern public service.

175. The Chairperson: Will the review of public administration and the potential reconfiguration of local government have implications for the way in which the Court Service does its business?

176. Mr Lavery: We are examining the RPA closely, and we are reviewing our court estate. The court map of Northern Ireland derives from the local authority map, and the Court Service must ensure that it has the right facilities in the right places. We also want to achieve coterminous boundaries, in order to have the same administrative boundaries as are used for policing, local government, and so on. We are watching the RPA evolve before we make any further investment decisions.

177. Mrs Durkin: We are carefully considering how the council boundaries might move, because the court map is mapped to council boundaries and to police district command unit boundaries. Depending on the outcome of the RPA, we will seek to ensure that we have at least one, if not two, major court venues in each boundary area, and that those venues are capable of covering all types of court business, including criminal, civil and family business. We are looking closely at the other stakeholders to ensure that the structure of the estate and the services that we provide are cohesive with their boundaries.

178. The Chairperson: What is your view on the arrangements for judicial appointments?

179. Mr Lavery: Our current arrangements flow from the recommendations of the Review of the Criminal Justice System in Northern Ireland which was published in 2000. That review set the blueprint for the justice system for some time. It recommended that an independent Northern Ireland Judicial Appointments Commission (NIJAC) be established, and that innovation has been one of the great successes of the review.

180. Although it must appoint judges on the basis of merit — in other words, it must pick the best candidates — the NIJAC has a statutory responsibility to have a pool of candidates that reflects the community, and, ultimately, a judiciary that reflects the community. That system is innovative. In a way, other parts of these islands are catching up with Northern Ireland. England now has its Judicial Appointments Commission, and, in many senses, it followed our lead in doing so.

181. It will be interesting to observe in a few years’ time what difference our Judicial Appointments Commission has made. Will we be able to measure whether there are, for example, as a result of the NIJAC’s activities, more women on the judiciary than had been the case historically? It will be some years before patterns emerge, because we do not appoint a huge number of judges at any level in a typical year. Therefore, it will take a while for the NIJAC to have an impact.

182. The current system is more open and publicly transparent, and it is one in which people can have confidence if they aspire to a judicial career. The Court Service also appointed a judicial appointments ombudsman to whom people can bring a complaint, or concern, if they feel that their application, or candidacy, was not properly attended to, or treated fairly.

183. Although there is now a lot more openness and transparency in the system, that is not to say that it did not produce good appointments in the past. The system then was less open and less comprehensible. I am a fan, as the Committee can probably sense, of this public commission.

184. The Chairperson: Would you like to say anything about your future relationship with the Public Prosecution Service (PPS) in the context of devolution?

185. Mr Lavery: The Court Service has a close working relationship with the PPS because it is one of our main customers, and we are very conscious that all agencies have to work in a joined-up way if courts are to be sufficiently responsive. The public expect cases to be dealt with speedily, and sometimes the justice system does not achieve that. The PPS has gone through huge changes from being a small department of the Director of Public Prosecutions to being a huge department. A lot of issues emerge when an organisation is scaled-up in such a relatively short space of time. I know that Jacqui Durkin and her colleagues in court operations are in close and regular contact with us on how the PPS can help the Court Service get cases into court in a timely fashion. Perhaps Jacqui would like to say something about that.

186. Mrs Durkin: There is a lot of co-operation at local level, and at a more strategic level through the Criminal Justice Board. There is a range of court user groups at each main court venue and, like other stakeholders, the PPS plays an integral part in working together to reduce avoidable delays in the courts, making sure cases progress, are listed and are heard in a timely fashion. The Court Service wants to continue to foster that good relationship with the PPS as it is a very important part of the justice system and a key stakeholder, as David Lavery said, in that any criminal business coming to court is now coming through the PPS.

187. The Chairperson: Paragraph 10 of your written submission states that the Government will consult with the First Minister and the Deputy First Minister about how the Court Service should relate to a future justice Department and on the different models for court administration. Do you know when that consultation is likely to happen?

188. Mr Lavery: That will probably take place at the end of the process and will be informed by the deliberations of the Assembly and Executive Review Committee. What that really means is that if this Committee has a view on a particular model for the courts and the judiciary, the Court Service will try to put the flesh on the bones. Given the role that the First Minister and Deputy First Minister will play in determining issues such as the number of Departments and ministerial offices, they will be involved in those deliberations. The consultation is likely to be at the latter end of the planning phase, and the Court Service will look to this Committee to see if, for example, a consensus emerges for a preference for courts to be closer to the justice system, or conversely, at arms length. The Committee’s deliberations will help inform the planning work of the Court Service. As I said earlier, optimistically, either system could be made to work.

189. The Chairperson: Paragraph 5 of your submission refers to an agreement with the Secretary of State that tribunals will transfer to the Court Service and that that is now subject to the agreement of the Northern Ireland Executive. Are we talking about the administration of tribunals, and if so, is there a timeframe for that?

190. Mr Lavery: Yes. My colleague, Siobhan Broderick, is leading that programme. The Secretary of State announced in March 2006 that tribunals, many of which are run by individual Government Departments, should be brought together into a unified tribunal service, and that the Court Service, because it is in that type of business, would be asked to take over the running of tribunals. Paragraph 5 refers to a decision that was made under direct rule, so it would be appropriate to go the Executive to ask them to validate, or endorse, that decision.

191. We hope to persuade them that there would be benefits from a more coherent administrative system if they did that.

192. There are also concerns that the tribunals are not ECHR-compliant. If, for example, a claimant applied for a social security benefit and was turned down by a Department — the Department for Social Development in this case — he will appeal to an appeal tribunal. He will go to Cleaver House, for instance, but the tribunal will be run by the Department that made the decision. Although the tribunals operate independently, it is felt, from a legal standpoint, that they are not sufficiently independent and that they should be in a different political space. In the autumn, it is our intention to invite the Executive to agree that our objective should be to create a unified tribunal service, which would become part of the Court Service. We hope to achieve that during the next one to two years. Some tribunals are small and could be transferred quickly, but others are larger, and it will take a longer time to transfer them.

193. If justice powers are devolved, the transfers will be made quickly, because it will simply be a case of transferring functions — a machinery of Government change. For instance, a Department could simply order that the appeals tribunal be transferred to the Court Service. Without the devolution of justice, we will have to enter into agency arrangements and agree with each Department that the Court Service will manage the tribunals for them. In the meantime, it has been decided that any new tribunals will be created within the Court Service. A tribunal was established on parking adjudication, and there was to be one established on domestic rates. Any new tribunal will not be run by a Department: it will be run by the Court Service.

194. Mr McCausland: You said that under the proposed arrangements there would be greater consistency in how tribunals are run. Will there also be cost savings?

195. Mr Lavery: I am interested in looking at how it could be rationalised. However, efficiencies could be achieved if a couple of dozen of little independent organisations were brought together, and that is what I expect will happen in the longer term. As I said earlier, we have an advanced IT system in place for supporting court administration, and we would like to assess whether it could be used for tribunals. Regardless of whether the administration relates to a court case or a tribunal, it is about managing the information that comes before a judge or a chairman and managing the information that leaves the hearing, so the IT system is one area in which efficiencies could be introduced. A lot of the duplication of work can be removed, and when information is keyed in, it stays in the system, electronically. That will produce efficiencies.

196. The costs involved must be made transparent. A lot of the costs are almost disguised by the fact that the tribunals, especially the smaller ones, are embedded in Departments. It is difficult to identify their actual running costs, because they draw a lot of their support from the Department of which they form part. The Court Service will be alert to ensuring that we do not take on something for which there are not sufficient resources. However, rationalisation ought to produce efficiencies and slightly reduce costs.

197. The Chairperson: Will that include all tribunals such as the lands and water tribunals?

198. Mr Lavery: Yes. All tribunals are part of this review. I am conscious that I am hogging the limelight. Siobhan Broderick is head of tribunal reform, and she will say something about the range of tribunals that are involved.

199. Mrs Siobhan Broderick (Northern Ireland Court Service): There are about 17 Northern Ireland tribunals in a number of Departments. Among the larger tribunals are the Industrial Tribunal and the Fair Employment Tribunal. Then there is the Appeals Service, which David mentioned, with the Northern Ireland Planning Appeals Commission and the Water Appeals Commission. There are also a lot of smaller tribunals such as the Lands Tribunal, which has already been mentioned, that is made up of traditional office holders and about five or six staff. There is also a Special Educational Needs Tribunal.

200. I am sure that you are all familiar with the wide range of work covered by tribunals. Members of the public go to tribunals more often than they go to courts and, therefore, it is more important that the tribunal standards are similar; that they are more coherent in how they approach users, and that they are more customer-focused.

201. The Chairperson: What would be the resource implications if all of the tribunals were to be incorporated into the Court Service, and how would staff numbers increase?

202. Mrs Broderick: About 200 staff are involved — I can write to the Committee giving specific numbers. There are approximately 100 staff in the Appeals Service; about 60 or 70 in the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET) and a sprinkling of staff in the other tribunals.

203. Mr Lavery: We hope that the tribunal function will come to the Court Service together with the staff and the budget. We are a small department with about 750 staff, and in theory we should end up with about 1,000 staff if the tribunals join us.

204. The Chairperson: I presume that bringing the tribunals under one umbrella organisation will create efficiencies.

205. Mrs Broderick: The focus of the reform is on ensuring that tribunals are independent from sponsoring Departments. That should make them more customer-focused. Many tribunals are not, and that is due to economies of scale, which has been discussed. It would also improve the services and their efficiency, but I do not necessarily mean that efficiency is —

206. The Chairperson: No, it is not the primary driver.

207. Mrs Broderick: A better service, by its very nature, should be an efficient service. The aim is not to save jobs in the first instance.

208. The Chairperson: Is this development similar to anything that is happening in Scotland or the Republic of Ireland?

209. Mrs Broderick: England and Wales have introduced unified tribunal administration as a result of the Leggett review of tribunals in 2001. The Tribunals, Courts and Enforcement Act 2007 was introduced earlier this year in England and Wales, which provides for a unified tribunal structure as well as a unified administration. In essence, there would be one tribunal with lower and upper tiers. A claim would be submitted to the tribunal and it would identify where that claim should go.

210. Mr Lavery: The English set-up has a courts service and a tribunal service, both of which are under the Lord Chancellor. We think that, due to economies of scale, the two should be brought together into a courts and tribunals service here.

211. The Chairperson: Will the name of the service change?

212. Mr Lavery: We think that we should rebrand — to use a fashionable term — and bring everything together under the courts and tribunal service. Tribunal staff are quite positive about the change and how it would benefit them. They feel that it would be attractive to join a wider service that does the type of work in which they have expertise, instead of being a small part of a bigger department.

213. The Chairperson: Could that affect the timing of devolution?

214. Mr Lavery: No. It ought to be neutral. We can proceed with the change whether there is devolution or not. We could do it more quickly if there were devolution, as it would simply be a matter of moving all of the functions across to the Court Service. If that happens before devolution, then agency agreements would be needed, which is clumsy, but could be done. However, it ought not to have any impact on the trajectory or timetable for devolution of justice.

215. Mr McCartney: Would that include all of the tribunals, including the two that are under the NIO?

216. Mrs Broderick: Yes. Those tribunals will transfer over prior to devolution, via the machinery of government section. As they are the responsibility of the Secretary of State for Northern Ireland, and our Minister will, ultimately, be the Secretary of State for Justice, we can transfer those services more easily.

217. The Chairperson: Thank you, Siobhan. You have been very helpful.

218. Mr Attwood: As the evidence session comes to a close, I am tempted to ask what might be viewed as being more political questions. However, if you could help us it would be very useful.

219. As chief executive of a senior justice agency in the North, and mindful that you would work with any model of a devolved ministry for justice, and given the fact that there will be a devolution project, funding issues and various complexities, do you think it would be better to have a free-standing ministry for justice, or, as some people may argue, one that is taken into the Office of the First Minister and the Deputy First Minister?

220. What would be better for efficiency, effectiveness and management?

221. Mr Lavery: I do not have a view on that that would assist the Committee, other than to observe that the justice system is a big and complex machine; it is quite a task to make it work in a joined-up manner. The transfer of responsibilities from the Home Office to the new Ministry of Justice in England has created issues — that has not exactly been a tidy redesign.

222. There are benefits to having a coherent Department in charge of all aspects of the justice system. One of the benefits of devolution may be to make the justice system work in a more coherent and joined-up manner. Agencies such as the police, the prosecution or the courts tend to do their own thing. Getting them to work together with a shared set of objectives and principles is desirable.

223. As for where those responsibilities should fit politically, I do not have a view to offer. It could be a separate justice Department, or it could be positioned elsewhere; but there will be a heavy workload. If an existing Department were given that responsibility, it would certainly form the dominant part of that Department’s work.

224. Mr Attwood: Although it was sensible that the criminal justice review recommended that the Office of the First Minister and the Deputy First Minister should have the responsibility to sign off on judicial appointments — except for the Lord Chief Justice, which is still the responsibility of London — that could cause problems. A recent example is the non-appointment of a Commissioner for Victims, owing to whatever is or is not happening in the Office of the First Minister and the Deputy First Minister. The appointment of judges could certainly be deemed to be as important or as controversial. Do you have any view on what was a well-intentioned recommendation, but one that could result in all sorts of difficulties?

225. Mr Lavery: I take some reassurance from the fact that, owing to the way in which the legislation is drafted, the First Minister and the Deputy First Minister — or, at present, the Lord Chancellor — do not have a lot that they can do on recommendations for judicial appointments, other than to agree to them or send them back for reconsideration.

226. The legislation obliges the Minister or Ministers to whom the recommendations go from the Northern Ireland Judicial Appointments Commission (NIJAC) to accept the recommendation. Alternatively, the Minister or Ministers can send the recommendation back to NIJAC for further consideration if they have some concerns. If NIJAC, having reflected on the concerns, is minded to stick with the recommendation that it made, the law requires that the Minister or Ministers accept the recommendation.

227. Therefore, unlike a public appointment, there is a lot less room for manoeuvre or disagreement. The legislation has been well designed to avoid any type of obstruction, or even political interference, in decisions.

228. The Chairperson: Thank you. We have covered the issues well. Thank you, Mr Lavery and your colleagues, for attending this meeting, and giving us your time, particularly as you might have been somewhere else.

229. Mr Lavery: Thank you very much Chairman.

230. The Chairperson: We may call on you again to assist us in the research that we may wish to undertake on the Scottish and Irish justice models, which Alex mentioned. I also thank the Hansard team.

2 October 2007

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

Witnesses:

Sir Brian Kerr		Lord Chief Justice
Ms Alison Houston Mr Simon Rogers		Lord Chief Justice’s Office
Mr Barry Gilligan Sir Desmond Rea Mr Trevor Reaney		Northern Ireland Policing Board

231. The Chairperson (Mr Donaldson): You are very welcome, my Lord, and I welcome your colleagues Alison Houston and Simon Rogers. I invite members to declare any relevant interests. I declare an interest as a member of the Privy Council, and as a member of the Northern Ireland Policing Board.

232. Mr G Robinson: I am a member of Limavady District Policing Partnership.

233. Mr I McCrea: I am a member of Cookstown District Policing Partnership.

234. The Chairperson: Thank you, members.

235. On behalf of the Committee, I thank you, my Lord, for offering to give oral evidence to the Committee, in addition to the written submission that it has received from you. This is a significant occasion for the Northern Ireland Assembly and, I hope, also for you. We are aware that, previously, neither you nor any of your predecessors have appeared before locally elected representatives at Stormont.

236. I am aware that you have business to attend to this morning and that you will need to leave by 11.35 am, which is when the Committee is due to hear evidence from the Northern Ireland Policing Board.

237. I invite you to begin your presentation with a short opening statement. That will be followed by questions from members. I remind the Committee that the terms of reference for this inquiry include, in the following order: the matters to be transferred, the ministerial models, and the timing and preparations for devolution.

238. I know, my Lord, that you wish to confine your remarks to matters related to the structure of the Northern Ireland Court Service, as well as some of the changes that are already provided for in legislation concerning the judiciary — for example, those related to judicial appointments. Your written submission also touches on timing and preparations. Members may wish to elaborate a little on those comments.

239. The Lord Chief Justice (Sir Brian Kerr): Thank you, first of all, for your warm words of welcome. I am delighted to be here. I should say at the outset that I am grateful for the chance to address the Committee on the matter of the arrangements for the Court Service after the devolution of justice powers.

240. I confess that I have read, with a little bemusement, reports in the press that I am to be quizzed by the Committee or that I am to take a rare turn in the witness box. In fact, I hazard that I am probably one of the few people in this room who has actually given evidence from a witness box. However, I do not visualise my appearance before the Committee as an occasion for quizzing or confrontational cross-examination, but rather as an opportunity for a fruitful and constructive exchange, which will be not only of mutual benefit to the Committee and the judiciary, I hope, but will inform the public on a topic which is — or, at least, should be — of interest to us all.

241. When I have concluded my brief opening remarks, I shall be happy to deal with such questions as I can on the issues that I have touched on already in the letter from my office to your Committee of 30 July, and on what I have to say this morning.

242. Before I begin, may I again introduce Simon Rogers, who is my Principal Secretary, and Alison Houston from my office. They have worked with me on what I have to say this morning and on the submission that was made on 30 July.

243. It goes without saying that I am anxious to help the Committee in any way that I can. I hope that I will be able to answer most of the queries that the subject that I am about to address may prompt. If, however, there are questions that require consideration or, perhaps, a more elaborate answer than I can give extempore, I hope that you would find it helpful for me to supply supplementary material in writing.

244. I have already referred to the letter of 30 July. We also sent the Committee some material on the experience of other jurisdictions, which I hope has been of assistance in its deliberations to date. If we can help further, we would naturally be anxious to do so.

245. I hope that the Committee will forgive me if I start with a truism. I have no doubt that all of the members of the Committee accept that judicial independence is a cornerstone of democracy. The importance of that central and critical element of a fully functioning and healthy democracy cannot be overemphasised. Inasmuch, however, as the independence of the judiciary must be accorded its proper respect, so the deference due to the roles of the other two institutions of government — the legislature and the executive — must not be neglected. A proper understanding of the respective roles of each of the organs of government and an acute insight into the perimeters of their powers and functions is vital to the successful relationship that should exist among them.

246. The need to recognise and preserve the independence of the judiciary was, no doubt, the reason that that fundamental constitutional principle found statutory expression in the explicit and prominent guarantee enshrined in the Constitutional Reform Act 2005. That Act enjoins not only the First Minister, the Deputy First Minister and Northern Ireland Ministers to adhere to and uphold the principle of judicial independence; it requires them and all those:

“with responsibility for matters relating to the judiciary or otherwise to the administration of justice” —

— to refrain from seeking to influence particular judicial decisions through any special access to the judiciary.

247. Of course, while the independence of the judiciary must necessarily set the context for relationships among the various arms of government, it does not preclude interaction between them. I hope that my presence before the Committee can be taken as a clear acceptance on the part of the judiciary of the value of contact between us, provided, of course, that there is a clear understanding and acknowledgement on the part of all concerned — judges and politicians alike — of the roles that each of us play and of the areas into which we must not stray.

248. The report by the House of Lords Select Committee on the Constitution published on 26 July this year captures that point neatly. That Committee, as you will know, was examining relations between the executive, the judiciary and Parliament. Paragraph 27 of the report stated that:

“The other constitutional principle of central importance in governing the relationships between the judiciary, the executive and Parliament is that of the ‘independence of the judiciary’. This does not and should not mean that the judiciary have to be isolated from the other branches of the State. Nor does it mean that the judiciary … need to be insulated from scrutiny, general accountability for their role or properly made public criticism of conduct inside or outside the courtroom.”

249. Judges are not troubled by the need for them to be accountable. After all, because of our systems of appeals, no judge can expect that his or her decisions will be free from the most painstaking scrutiny in as public a forum as it is possible to imagine.

250. However, accountability must take place in its proper context and should not imperil the essential concept of judicial independence.

251. It is important that it should be recognised that the need to preserve that concept is not as a defence for judges or as a means for them to forestall or deflect scrutiny. It is, as I said, a cornerstone of our democracy and it is as important for every citizen of our society as it is for members of the judiciary. That notion was well expressed by Sir Igor Judge, the senior president of the Queen’s Bench Division in England and Wales, in his evidence to the House of Lords Select Committee on the Constitution:

“The independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral — not on one side or the other — coldly applying the law that applies to your case. So although people sometimes think that when we defend judicial independence we are simply defending our own corner … that is not the case … The issues which arise here are of great importance to every member of the public.”

252. I hope, therefore, that members of the Committee will accept that when I place particular emphasis on this point, it is not for the purpose of shielding judges from unwanted scrutiny or criticism. Rather, it is because the entire basis for such exchanges as may legitimately take place between the judiciary and the other arms of government must be clearly understood from the beginning, so that a productive and suitable relationship between us can develop. It is important that members should understand that we, as judges, recognise that there are matters that fall uniquely within your province and on which it would be entirely inappropriate that we should comment. Thus, for instance, the Committee will not receive observations from me on whether there should be two ministries or one, or whether there should be two Ministers or one. That, it seems to me, is a matter of policy on which a political decision must be taken. It is not something that I, as a judge, should comment on.

253. However, it is right that I should comment on the arrangements for the establishment of the Court Service, as that will impact directly on the judiciary and on how we do our work. Therefore, the most substantive part of the submission made on my behalf in the letter of 30 July, and my remarks today, concentrate on the structural arrangements for the Court Service on devolution.

254. I hope that the Committee will not be surprised to learn that I have given a good deal of thought to that question, and I have discussed it with colleagues in other jurisdictions, particularly England and Wales, Scotland, and the Republic of Ireland. It is also a topic that I raised and considered with colleagues during a meeting of Chief Justices at the recent Commonwealth law conference in Kenya. Indeed, as members will know, I was invited to meet the Committee last week on a day when I was in Scotland discussing proposals with colleagues there.

255. Professor Robert Hazell, director of the constitution unit at University College London, was questioned by the House of Lords Select Committee on the Constitution on the issue of an autonomous court administration. He said that:

“there is a recent trend throughout Northern Europe to introduce greater separation of powers between the executive and the judiciary, and as part of that to give the judges greater responsibility and control for managing the court service”.

256. That experience was echoed frequently at the recent Commonwealth law conference. I heard accounts from the Chief Justices of the various countries represented of the arrangements in their individual jurisdictions.

257. As a result of my various discussions and my reading about the issue, I have reached the view that the most appropriate arrangement for the Court Service would be a body at arm’s length from the Government under a board chaired by the Lord Chief Justice — in other words, a non-ministerial Department. Now, I do not suggest that there are not other possible models. The Committee will have seen from the papers that I submitted that different approaches have been taken in some jurisdictions, but I have concluded that the non-ministerial Department is the best option, for reasons that I hope to explain shortly. As I have said, that model has been adopted in many other jurisdictions in the Commonwealth, it is planned for Scotland, and it has been in place for some years in the Republic of Ireland. A 2006 report by the Canadian Judicial Council recommended precisely the type of model that I propose to the Committee.

258. I believe that that model provides the maximum safeguard for judicial independence, and it will also provide administrative efficiency. I recognise that if there were to be such a non-ministerial Department, legislation would be required. I appreciate that it may not be feasible to introduce such legislation before devolution, and that makes the deliberations of the Committee all the more important. I hope that the legislation to provide what I firmly believe is the optimal arrangement will not be long delayed, following devolution.

259. That legislation should enshrine the independence of the board, but it should also be recognised — in statute, if necessary — that the board will not deal with policy, which, as I have said, would be a matter for Government. I also understand that there must be accountability to the executive for the money provided by the legislature to the Court Service. I freely accept, for instance, that it should be incumbent on the board to produce a strategic plan with key objectives, outputs and strategies, including the use of resources.

260. I further accept that that strategic plan should be submitted to the Minister for approval. I anticipate that it would be a requirement that the board report to the Minister annually, and would provide information on performance of functions and such other information as the Minister may reasonably request. One would also expect that staff numbers and grading would be a matter for the board to agree with the Minister, as well, of course, as the budget. Finally, one would also anticipate that the Ministry of justice would be represented on the board.

261. I shall summarise the advantages of the model that I have proposed.

262. First, it reflects the appropriate constitutional position by preserving the independence of the judiciary.

263. Secondly, it will provide a more efficient service. The judges and others on the board, including representatives of the Department, the profession, and suitably qualified independent members, would set the strategy for the service. They would — I respectfully suggest — be best equipped to know what the service requires.

264. Thirdly, staff working for the service would know clearly where their lines of accountability lay, and they would identify the board as giving direction to that role.

265. Fourthly, since the judiciary control the actual business of the courts in case listing and case throughput, and since its members have experience of the difficulties that those challenges raise, they are best placed to devise and enforce realistic targets and goals.

266. Finally — and I accept that this is crucially important — the structure that will be put in place will have built-in accountability arrangements so that the executive can discharge their duty to ensure that proper standards are set for the service that is provided.

267. Thank you. I am happy to take questions.

268. The Chairperson: Thank you, my Lord. We appreciate the detail that you have provided on the preferred model, with regard to the positioning of the Court Service. You may be aware that, when we heard evidence from the Court Service last week, its representatives made similar points, referring to the proposed Scottish model and the positioning of the Courts Service in the Republic of Ireland, to which you referred.

269. Would the structure that you recommend, in your opinion, have any implications for the matters to be transferred under devolution, particularly on the justice side?

270. Sir Brian Kerr: I think not. As I hope that I have made clear, the individual matters that should be devolved are not something on which I feel either qualified or competent to express an opinion. That is a matter for Government and for policy, and I firmly eschew any comment on policy.

271. However, provided what I might describe as justice services are devolved — and anything that I have read about the proposed devolution involves that, as a basic minimum — it seems to me that the model that I advocate would be appropriate.

272. Ms Ní Chuilín: Could the Chief Justice outline what the nature of the relationship would be between the board of the Court Service and the Government? You mentioned strategic plans and submissions on resources, but could you expand on that?

273. Sir Brian Kerr: Let me just recapitulate on that issue and talk about it in practical terms. First, it seems highly likely that the ministry of justice will have a representative on that board, and that representative will, obviously, report to the Minister on a day-to-day basis.

274. Secondly, as I have said already, I fully apprehend that a strategic plan will have to be devised by the board and submitted to the Ministry for consultation. I expect that there will be a requirement that there be an annual report by the board to the Minister. I fully expect that the chief executive will be an accounting officer, in respect of justifying the budget that the board will hope to secure on an annual basis. I do not know whether that deals with all the issues that you raised. Clearly, there will be some considerable outworking of that relationship.

275. No doubt, one will wish to draw on the experience of similar models in other jurisdictions to ensure that accountability arrangements — which I accept are necessary and, indeed, fundamental to this model — are adequate, so that the legislature, which, after all, is the provider of funds for the service, can be satisfied that those funds are being deployed in a proper fashion.

276. Mr McFarland: I thank the Lord Chief Justice for his submission.

277. For the last 30 years, we have had a turbulent society in Northern Ireland. I shall draw from our experience of the setting up of the Policing Board and the interaction of the police with politicians. The justice system would have been in a similar situation to policing, in respect of its attitude towards politics and politicians, and that relationship tended to be at arm’s length, for obvious reasons.

278. No one will challenge the judicial independence that you have already mentioned, but I am trying to tease out a few issues. After the establishment of the Policing Board, there was an adjustment period for the police to get used to the fact that politicians — for whom they may not previously have had enormous regard — began to interfere with what was a separate and easily understood society. The Policing Board included politicians who were messing about and asking questions, and it took some time for the new arrangements to settle down.

279. In your opinion, is there likely to be a period of psychological adjustment for the Court Service and the judiciary? We, as politicians, have a duty to scrutinise those areas for which we have responsibility, and to hold people to account. Clearly, politicians legislate and will provide the Court Service with the money to operate. I notice that you kept referring to the Minister, but there will also be a Committee at Stormont, which will take a lot of interest in what the justice service does. The situation with policing is slightly different because there is a Policing Board, and I think that the policing and justice Committee will end up once removed from the Policing Board, because our politicians sit on that board.

280. The Chairperson: Alan, could you come to a question?

281. Mr McFarland: I am just trying to set a scene. There is not likely to be a justice board that is similar to the Policing Board, so the policing and justice Committee may well have a more hands-on role in examining what the justice system does. Do you think that representatives from the judiciary and the justice system — perhaps yourself — are ready to appear regularly in a forum such at this to answer questions? Those questions may not necessarily be on judgements, but on issues that pertain to the running of the Court Service or the judiciary.

282. Will a psychological adjustment be required, and how long do you think that it might take for people to get used to interference by politicians?

283. Sir Brian Kerr: I have already laid the claim that judges are ready to embark upon a relationship with the other arms of Government, and I do not mind repeating that and declaiming it. As I said in my opening remarks, it is vital that we, as judges, and you, as representatives of the executive and legislative arms of Government, have a clear view about what I described as the perimeters of our functions. Subject to that, and provided there is a clear understanding on all sides of the areas into which we must not stray, I foresee that a useful and constructive relationship can develop.

284. Although I am the Lord Chief Justice, and head of the judiciary in Northern Ireland, that does not mean that I have not had contact with politicians in the past. I have had regular meetings with the Lord Chancellor, who, until 2005, was the head of the judiciary but was also a politician. I also have regular exchanges with the Northern Ireland Office (NIO) on proposed legislation.

285. However, I can best exemplify what I said about the need to recognise the perimeters by saying that when I, as the head of the judiciary, and other judges comment upon proposed legislation, we do not comment on policy. We can be consulted, and stand ready to be consulted, about difficulties that might be anticipated in the implementation of particular items of legislation. However, we will not — and we make this absolutely clear — comment on policy. Likewise, when we are consulted by Government departments and politicians, we expect that they will not wish to make comment upon the discharge of our judicial function. That, it seems to me, is central to the notion of the separation of powers.

286. Therefore, there is no reason why a healthy and constructive relationship should not develop, provided that we all understand where we stand and where we are coming from.

287. Mr McCartney: Thank you for your presentation. From your opening remarks, I find we have something in common — I too had to give evidence from a witness box in the past. I will not say how many times, that is for another day maybe.

288. Sir Brian Kerr: You and I should probably refrain from going into that.

289. Mr McCartney: You have stated your preference for the non-Ministerial model, and the Chairperson has already said that we had evidence last week from David Lavery and we talked about the Irish model. One reason why the Irish model was introduced was due to public perception, or perhaps the reality, that there was undue Ministerial or political influence or interference with the judiciary. Is that one reason why you would prefer to see that model implemented here? Furthermore, should we be more rigorous in ensuring that there is no political interference in the future?

290. Sir Brian Kerr: I have no reason to apprehend that there will be undue political influence on the administration of justice or on the discharge of the judicial function. I have absolutely no reason to believe that that is likely to occur. If that were attempted, I, as the head of the judiciary, would conceive it as my duty to resist it firmly.

291. I am not in a position to say whether the choice of the model for the Republic of Ireland was influenced to any particular extent by the public perception about political interference. However, I have had a number of exchanges with the Chief Justice of Ireland and some of the judges, in particular Mrs Justice Denham, who prepared the report that led to the establishment of that model. They have said that it has led to a very successful relationship between the Department of Justice and the judiciary.

292. The chief executive is the accounting officer to the Department of Justice, Equality and Law Reform. He is answerable to the Dáil if issues arise, which has happened very infrequently. There is a symbolic dimension to the model that I propose, in that the public can feel confident that it recognises the vital principle of the separation of powers.

293. However, I am more concerned about practical effects. The judges who will comprise the board, along with other members, will bring unrivalled experience of the difficulties in the administration of justice in our community. Therefore, they, in an administrative rather than a judicial capacity, can bring a vital ingredient to the successful administration of justice. There are two elements: symbolic and practical, and I emphasise the latter.

294. The Chairperson: My Lord, on that point, assuming that this Committee and the Assembly accept your proposed model, as you said, the current legislation does not make provision for it, and, if devolution of the relevant powers were to come before the required legislation, transitional arrangements would be necessary. Do you have a view on what those transitional arrangements should be, bearing in mind the model that the Northern Ireland Office has proposed?

295. Sir Brian Kerr: You are right to remind the Committee that legislation would be required. Transitional arrangements are difficult to devise in a vacuum. I anticipate that the Northern Ireland Court Service’s current arrangements would endure until legislation was possible.

296. Let me be clear that, although I am proposing a model that will mean an alteration in the current arrangements, I am not saying that the current arrangements do not work — they do work, and I anticipate that they would continue to do so. However, I expect that, if we go down the road that I recommend to the Committee, those arrangements will work better.

297. Mr Attwood: You are very welcome, Lord Chief Justice. I have two or three questions. In evidence to the Committee last week, the director of the Northern Ireland Court Service said:

“It is possible to think of a halfway house, where the proposed agency might have judges involved in the management and oversight of the courts.”

He added:

“It may be possible to design a form of agency that is sufficiently at arm’s length from the day-to-day running of the justice Department to allay some of the Lord Chief Justice’s concerns, without moving so far along the continuum that it becomes a separate Department in its own right.”

298. Are there not three options on the table? There is the option that you prefer, the option that the British Government recommend, and the halfway house that Mr Lavery outlined to the Committee. That should be considered, because, when we collapse all the issues down, there is a concern that, as a consequence of adhering to the proper requirement to keep the judiciary and the Court Service at arm’s length, there will be no proper accountability, proper oversight or proper probing. My first question is — and I would like to ask a supplementary question, Chairperson — what is your view on the halfway house model?

299. Sir Brian Kerr: The direct answer is that there are, of course, at least three options, and probably a great many more than those that you have adumbrated. I do not wish to suggest to the Committee that it can choose only the existing arrangements or the model that I propose.

300. However, underlying your question appears to be a concern about the efficacy of the accountability arrangements. I pose the following question to you: is there any guarantee that what you describe as the halfway house will produce more effective and efficient accountability arrangements?

301. As I said in my opening remarks, the arrangements for the accountability of the board will have to be worked out. However, such arrangements have proved successful in many other jurisdictions. The Scottish Parliament clearly contemplates — if the current proposals are accepted there — that sufficient accountability will be built into the arrangements. In the Republic of Ireland, as I have said, for several years the broad model that I propose has operated without any express dissatisfaction with its accountability.

302. Mr Attwood: I have some sympathy with the model that you propose, although I am concerned that efforts would be made to have higher levels of political interference than would otherwise be the case. However, David Lavery outlined why the halfway house could work better than any other model. For example, he outlined that Court Service staff could be part of the wider Northern Ireland Civil Service and would therefore have career and development opportunities that would not otherwise be open to them. There may be added value in the halfway house model, without compromising the accountability associated with any one particular model.

303. Sir Brian Kerr: I cannot speak with authority about the career path for Court Service staff if the model that I propose is adopted. However, it is surely not beyond the wit of man to come up with arrangements that would facilitate movement between the Court Service and the mainstream Civil Service. In the Republic of Ireland, there is such movement from the Courts Service to the mainstream Civil Service. If any perceived disadvantages in joining a dedicated Court Service are anticipated, those could surely be overcome.

304. Mr Attwood: Could you allay some of the concerns, real or imaginary, about the model that you propose, Lord Chief Justice? In your submission, you rightly outlined that there would be a need for effective working relationships, which would be supported by periodic meetings with the new Minister or Ministers. Do you have a view about the need for effective working relationships with a broader range of society, whereby the judiciary would not just engage on the political side with the Minister or, as Alan McFarland said, the Committee?

305. Do you have a view about whether, as the issue of accountability becomes more central to people’s thinking, the judiciary should have periodic meetings with a broader range of society in order to, in an appropriate way, inform how the judiciary conducts its affairs?

306. Sir Brian Kerr: Let me preface my answer by re-emphasising the need to distinguish between the various functions that we are discussing. Judges that would be members of the Court Service would not be performing a judicial function; they would be performing an administrative function. It is right that they, in common with the other members of the committee, should be accountable to the other arms of government for the discharge of those functions. However, one must not confuse that role with the adjudicative role — the purely judicial function — that judges perform in reaching decisions on cases.

307. Allusion has been made to the fact that today is the first time that the Lord Chief Justice has appeared before a Committee. As it happens, I appeared before the House of Lords Select Committee on the Constitution.

308. It is generally recognised that I have a higher profile than my predecessors, although not all commentators — particularly radio commentators — might necessarily agree. I am anxious that, where appropriate, judges should engage in, if not public debate, then at least an explanation of the role that they perform. I have encouraged colleagues to participate in conferences. I regularly participate in such events — for instance, I made a few remarks at the recent launch of the victims and witnesses strategy, the new five-year strategy. I have also appeared before various boards, and some members of the Committee will remember that I addressed members of the Policing Board. However, one must be extremely careful that that is done in a proper way so that the concept of judicial independence is not imperilled.

309. If I were a defendant in a criminal case, if I were a claimant seeking compensation, I would take it severely amiss if the judge dealing with my case appeared in public and was subjected to questions about the discharge of his judicial function in relation to my case. Even though I am anxious to ensure that judges do all that they can to maintain confidence in the administration of justice, I am equally anxious that nothing is done that would corrode that confidence by a perception that judges are answerable to a wider audience or authority than the discharge of their judicial functions.

310. The Chairperson: I will follow through on Alex Attwood’s comments about the separation of the Court Service from the Northern Ireland Civil Service. In his evidence last week, Mr Lavery said that he saw no need to be separate from the Civil Service. He envisaged that even in the event of your preferred model being adopted, there would still be a linkage between the Court Service and the Civil Service — and that, undoubtedly, was his preferred outcome.

311. My Lord, is it a question of the timing of devolution of policing and justice — whenever that may be — being an appropriate, perhaps, convenient time to introduce the model that you have suggested? Will devolution provide a vehicle to achieve that? Would you still be pressing for this kind of model if the Assembly did not exist and we were under direct rule? Does it make a difference that you are dealing with a Department of justice that, in the future, may be run by local politicians who live in the community and who are connected to and with people who may at some time appear before the courts? Perhaps that problem is not as great when our Ministers are not from the community. Is that part of the motivation behind this move?

312. Sir Brian Kerr: It is not. I am grateful and relieved to hear that Mr Lavery did not consider that there would be any disadvantage in being employed as a civil servant for the Court Service. No, is my firm answer to your second point. I would advocate this model if direct rule continued. The catalyst for the reform is the change in the constitutional order that arose from the Constitutional Reform Act 2005. As I said before, until April 2005 the Lord Chancellor was not only a senior member of the Cabinet but the head of the judiciary, but that has changed. In England and Wales, the Lord Chief Justice of England and Wales has become the head of the judiciary, and in Northern Ireland I have become the head of the judiciary. It is due to that change in the constitutional order that I have, after some considerable deliberation, concluded that this is the preferred model.

313. Mr Attwood: I must ask to be excused, because I have responsibilities in the House.

314. Mr G Robinson: Can an imposed date for the devolution of policing and justice be considered seriously when numerous Members of the Assembly are opposed to the idea until all political parties and the general public deem the timing confidence appropriate?

315. Sir Brian Kerr: My comment on that matter is not to pass any comment. The timing of the devolution of policing and justice is a uniquely political consideration. It is not for me to enter into the debate. I understand the concerns and, in common with any other citizen in Northern Ireland, I try to keep abreast of the debate. However, my role is not to engage in discussion about whether, when or in what form devolution should take place. My role is to ensure, as best as I can, that the most effective administration of justice and justice services are delivered. That is my exclusive concern.

316. Mr Kennedy: I welcome the Lord Chief Justice and his delegation. You said that you have had ongoing contact with the Northern Ireland Office on many issues, including proposed legislation. What level of contact have you had concerning the changes, and has it been at ministerial level?

317. In addition, what type of relationship do you envisage with the First Minister and the Deputy First Minister should policing and justice be devolved?

318. Sir Brian Kerr: I have had limited contact with the Lord Chancellor, Mr Straw, who is the Minister responsible for justice, on the topic under consideration this morning. Before Lord Falconer left the office of Lord Chancellor, I had preliminary discussions with him. I have also briefly — and I emphasise briefly — discussed the matter with the Secretary of State, Mr Woodward. I had no discussion on this topic with his predecessor.

319. The level of contact will depend on the model that is chosen. As I have said, one would expect that the board would include a representative from the ministry of justice, who would report to the Minister on its day-to-day activities. One would also expect that there would be a strategic plan and an annual report that would be presented to the Minister for his consideration. When one gets to the stage of working out the detail of the arrangements, there would have to be discussion as to whether the Minister could ask the board to give an account of its functions more frequently. Those matters depend on which model is chosen.

320. Mr O’Dowd: Welcome, Chief Justice. This morning’s discussions on the relationship between the judiciary and legislators have been interesting. Unfortunately, time is restricted.

321. Many of the points that I wished to raise have been covered. As a lay person, my understanding is that although the legislature introduces laws, it is the judiciary that sets the sentencing tariffs. Is that achieved through a system that connects us with what happens in England, Wales and Scotland or does it happen locally? If there is a connection, will the concerns and views of the wider community be taken into account in such a system under devolution?

322. Also, what are your views on the present representative nature of the judiciary — particularly concerning women?

323. Sir Brian Kerr: Those are two topics that could occupy quite a bit of time. Although they are not immediately germane to the issues in hand, they are pertinent topics and I am happy to respond briefly to them.

324. First, Northern Ireland’s judiciary is not connected to England and Wales with regard to sentencing. We do take into account decisions made in those jurisdictions and recommendations made by the Sentencing Guidelines Council. However, on occasion, we have explicitly refused to follow either decisions made in England and Wales or recommendations made by the council. Recently, when we have delivered judgements on a number of cases in the Northern Ireland Court of Appeal and where we have refused to take those matters into account, the sentences imposed by our Court of Appeal have been greater than those imposed in England and Wales.

325. Sentencing is an extremely difficult exercise. It occurred to me to have another look at the number of legislative provisions that a judge imposing a sentence might have to consult before finally fixing on his decision. On occasions, it can be as many as 20. Therefore, it is a difficult exercise. The judge who must perform that task, which is one of the most challenging and troubling jobs that judges do, will frequently seek guidance and assistance from whatever source he or she can. Judges, therefore, take into account, but are not bound by, decisions that are made in England and Wales.

326. The second question relates to a broad and important topic. The Northern Ireland Judicial Appointments Commission, of which I am chairman, has recognised that there is an imbalance in certain tiers of the judiciary. However, it has not been given a statutory remit to appoint judges who are representative of the community; our statutory enjoinder, which is a clear injunction, is that we must make recommendations for judicial appointment that are based exclusively on merit.

327. However, we also have a statutory obligation to embark on a programme of action that will ensure, insofar as is reasonably practicable, that the judiciary is reflective of the community — as opposed to being representative of it — in Northern Ireland. The commission has, therefore, begun to investigate what might be the disincentives — what some people call the “chill factors” — that deter people, particularly women, from making applications for judicial appointment. I am happy to say that since I became the Lord Chief Justice, there has been a significant increase in the appointment of women to the bench. We could take a great deal of time to discuss and explore the reasons why more women have not come forward for judicial appointment. I am convinced that that will change. There are extremely able young women at the bar and in the solicitors’ profession who, I hope and am confident, will apply for judicial appointment in the future.

328. The Committee can take it from me, as chairman of the Judicial Appointments Commission, that one of my abiding concerns is to ensure that, in keeping faith with the overarching principle that all appointments to judicial office must be based on merit, the “chill factors” and disincentives that may discourage women from applying for judicial office will be identified and removed.

329. The Chairperson: Have you had any contact with the Office of the First Minster and the Deputy First Minister (OFMDFM) with regard to future relationships that concern the Judicial Appointments Commission and the Judicial Appointments Ombudsman?

330. Sir Brian Kerr: No, I have not. However, I anticipate that that will take place in due course.

331. Mr McCausland: Lord Chief Justice, you have said that all parties involved would welcome reasonable notice to enable changes to be made as smoothly and as efficiently as possible. What would constitute reasonable notice?

332. Sir Brian Kerr: To be honest, that is something that I have not thought about. That will depend, I suppose, on the nature of the arrangements. We judges cannot be adamantine on that; we cannot impose our will. We simply recognise that there will be logistical adjustments to be made and — in common with every other body that has to make adjustments — we would welcome as much notice as you feel able to give us. I am sorry; that is a pretty imprecise reply, but I am afraid that I cannot come up with a better one.

333. The Chairperson: Lord Chief Justice, our time has elapsed. We appreciate that you, and your colleagues Ms Houston and Mr Rogers, have found time for us in your busy schedule. I hope that you will not mind our seeking any other points of clarification in due course, if required. Your evidence has been very valuable to the Committee, and we appreciate it very much.

334. Sir Brian Kerr: Thank you very much indeed. I am very grateful for the courtesy with which I have been received. I hope that this has been a fruitful, constructive and productive exchange.

335. The Chairperson: Good morning, Sir Desmond. I welcome you and your colleagues Mr Gilligan and Mr Reaney, vice-chairman and chief executive, respectively, of the Northern Ireland Policing Board. Before proceeding, I again advise members to declare any relevant interest. I declare an interest as a member of the Privy Council, and as a member of the Northern Ireland Policing Board.

336. Mr G Robinson: I am a member of Limavady District Policing Partnership.

337. Mr I McCrea: I am a member of Cookstown District Policing Partnership.

338. The Chairperson: Sir Desmond, you will be aware of the inquiry that we are conducting into the devolution of policing and justice powers to the Assembly, and the relevant preparations for that. You have very kindly provided us with a written submission. I invite you to begin with a short opening statement, after which members will explore particular issues with you by way of questions.

339. Sir Desmond Rea (Northern Ireland Policing Board): Thank you, Chairman. As you said, I am representing the Policing Board, and I am joined by Barry Gilligan, the vice-chairman of the board, and Trevor Reaney, the board’s chief executive. We have provided each member of the Committee with a document, which perhaps could go into the record, if possible. My opening statement is a summary of that document.

340. I thank the Committee for its invitation to attend this morning’s session. I am sure that members will appreciate that I am the chairman of a corporate body comprising diverse political and community views on many issues including the devolution of policing and justice. I will do my best to reflect the mind of the board, but I may have to reflect a personal view on some issues that members may raise, or I may come back to the Committee in writing on specific matters.

341. I am conscious that there are current and former members of the Policing Board on the Committee; they will have an insight into the workings of the board. Members will have received a copy of the board’s written submission. That submission was considered and agreed by the board’s corporate policy planning and performance committee at its meeting on 19 July.

342. The board welcomes the opportunity to attend today’s oral evidence session. First, we will give the Committee an overview of the work of the Policing Board, and that may be through a question and answer session. Secondly, we will amplify the board’s written submission. Thirdly, we will brief the Committee on the board’s experience of the current tripartite arrangements, including the relationship between the board, the Chief Constable and the relevant Minister and Department, namely the NIO.

343. Finally, we will address issues relating to the operation of the tripartite arrangements under devolution, insofar as it is possible to envisage those. Following my opening remarks, we will be happy to attempt to answer questions and to provide any information that will assist members.

344. The Policing Board has a unique accountability and governance role with strong powers devolved under the relevant legislation. It is the board’s role to secure an effective, efficient and impartial Police Service and to hold the Chief Constable to account for the exercise of his functions and those of the Police Service in an open and transparent way. The board does that through monthly meetings that take place in public and private session. I can explain later what determines whether a session is public or private. The board is broadly representative of the whole community, and its political members and independent members bring a valuable perspective to debate and decision-making. Members may wish to question us on what the independents bring to the deliberations of the board.

345. We have entered a new and welcome phase in the history of policing in Northern Ireland, and full political support for policing is now secured. That completes the jigsaw in respect of policing. All that remains now is for dissidents to diminish their activity and for those on the loyalist side to go away. The Policing Board is now fully representative of the whole community, and district policing partnerships, fully representative of the whole community, will soon follow, because a number of those are being reconstituted.

346. Since its establishment in 2001, the Policing Board has made solid progress in establishing and developing its role. Its achievements in establishing a framework of accountability for policing in Northern Ireland have been significant, and they are a matter of public record. I will leave copies of ‘The Life and Times of the First Northern Ireland Policing Board’, which gives a flavour of the work that has been done — successfully, I believe — by the board since its inception. I could list a number of things that the corporate body has done since its inception, but they are in the paper that members have in front of them, and I will not waste any time going through them again.

347. The Policing Board has driven forward a programme of policing change unprecedented in the history of policing in these islands. Tribute must be paid to the Chief Constable, Sir Hugh Orde, and his senior officer team for driving its implementation, and also to the previous Chief Constable Sir Ronnie Flanagan for initially embracing the programme of change, which was designed to secure the support and confidence of the whole community.

348. Policing is an essential public service, and local people and communities must have confidence that the police service is representative of, and responsive to, the needs of all sections of what is an increasingly diverse society. The board has an important responsibility to ensure the delivery of that service at strategic and local levels.

349. Similarly, the DPPs marked a new milestone in injecting community involvement into policing through council and local independent memberships. DPPs have delivered a level of community involvement, openness and transparency to policing that was new to these islands. Recently, a senior police officer in England took me aside and told me that forces were in the midst of a review; he said that he realised how much progress had been made and how far policing in Northern Ireland had moved on in that respect, and he expressed a wish to come to see the DPPs in action.

350. In exercising its governance role, the board has put in place accountability mechanisms to monitor and assess the performance of the Chief Constable and all aspects of the PSNI’s work. The board does that, primarily, by working to the policing plan. Later this month, the board will meet a senior PSNI team to put together the next stage of the ploicing plan, against which the Chief Constable and the PSNI will be held to account. He is performance-appraised on his own work — the board initiated that process with the Chief Constable and with his full co-operation, and, to my knowledge, he was the first Chief Constable in these islands who was prepared to embark on that process.

351. The healthy tension between the board and the Chief Constable ensures that there is an appropriate balance between supporting the PSNI — for example, in negotiating the annual budget with Government — and scrutiny, challenge and accountability. Through its work, the board has made difficult decisions and has done so successfully in a complex political environment. The board has intervened, when necessary, in critical incidents and in issues that have impacted on the effectiveness of policing or public confidence — the tragic Omagh bombing atrocity, to name but one.

352. The board has established important working relationships with a wide range of stakeholders and interested parties in the wider criminal justice sector and in the community. I will not name them, but they are a matter of public record and are listed in the statement that has been given to members. The board has recently established reference groups to engage with various parts of the wider community, including minority ethnic communities, the lesbian, gay, bisexual and transgender (LGBT) community, older persons and women’s organisations.

353. As a public body, the board must also be subject to scrutiny on how it conducts its own business. In recent years, such scrutiny has included reports from the Office of the Oversight Commissioner, a Northern Ireland Affairs Committee report in 2005 and best-value reports. The board also commissioned an independent assessment report by a team representing in part, policing across the water and in part, human rights in the Republic of Ireland; the team was commissioned to examine the board and its work and to provide feedback in order that we could learn how better to go about our business.

354. Such scrutiny is important to assist the board in improving the discharge of its functions. As members know, the term of the Oversight Commissioner for Northern Ireland ended in May 2007. The board has been given responsibility for the oversight of the implementation of the remaining recommendations. Of the 170 recommendations, about 40 are at various stages of completion, and the board has the responsibility to ensure that those are completed.

355. As stated in the board’s written submission, it supports the concept of devolution of policing as set out in recommendation 20 of the Pattern Report, which states that:

“Responsibility for policing should be devolved to the Northern Ireland Executive as soon as possible, except for matters of national security.”

356. In that context, the board recognises that the major decisions about the devolution of policing and justice matters, as set out in the terms of reference of the Committee’s inquiry, are primarily matters for the political parties to consider.

357. However, the board wishes to present two points of principle. That was in our initial letter of reply, and I simply summarise.

358. The first is that the role and powers of the board should not be diminished under the devolution of policing and justice, including that the Chief Constable should remain accountable solely to the board for the delivery of the policing service in Northern Ireland. That principle is consistent with recommendation 21 of the Patten Report, and is stated in the document that you have in front of you. It is also consistent with paragraph 13.7 of the Government’s discussion paper on devolving policing and justice in Northern Ireland, and again that is stated in your paper. Moreover, that was also the unanimously agreed conclusion of the Assembly’s Committee on the Preparation for Government when it reported on law and order issues in September 2006.

359. Secondly, the Chief Constable’s operational responsibility should not be undermined when policing and justice powers are devolved. That principle is consistent with recommendation 24 of the Patten Report, and again that is summarised. It is also consistent with paragraph 13.13 of the Government’s discussion paper on devolving powers, policing and justice in Northern Ireland, and, once again, that is stated in the paper before you.

360. Those principles represent the unanimous view of the Policing Board, and it is essential that those fundamental principles are embedded in future devolution arrangements, with appropriate arrangements and protocols put in place to ensure that they are given full effect.

361. The tripartite structure in Northern Ireland policing terms refers to the working relationship between the Policing Board, the Chief Constable, the Government of the day through the Secretary of State and the Northern Ireland Office (NIO). Each has a direct interest and role in respect of policing in Northern Ireland. Although that tripartite relationship resembles the arrangements for policing, police services and police authorities in England, Wales and Scotland, in Northern Ireland the tripartite model of policing involves a one-to-one relationship: one police service; one policing board; one Government department; and one Secretary of State. It should be noted that Northern Ireland has set the standards in best practice in police accountability. For example, the Policing Board’s role in monitoring human rights compliance has now been included in the legislative role of police authorities in England and Wales.

362. The NIO exists to support the Secretary of State in taking forward Government policy in Northern Ireland, and the Chief Constable is operationally responsible for the overall management of the PSNI and delivery of the policing service. The board’s primary role is to secure an effective, efficient and impartial police service and to hold the Chief Constable to account. On most policing issues there will be a role, responsibility or interest for each of the organisations in the tripartite structure. The exact scope and limitations of those interests is not precisely defined, and, at times, there is a degree of tension between the three, with the Chief Constable seeking to maintain his operational responsibility, the Policing Board striving to achieve, in a transparent way, effective accountability for operational decisions that the Chief Constable has made, and the Government defining the overall policy, legislative and funding framework for policing.

363. The Policing Board has a constructive working relationship with Ministers and officials in the Northern Ireland Office, which is, at times, challenging and robust. The board wishes to see that kind of relationship continue under devolution. The board has sometimes been successful in persuading Ministers of its position, for example, in the area of restorative justice; what has evolved in respect of restorative justice is substantially what the board argued for, and, when it could not make progress, it sought clarification on issues. There are areas where the board did not succeed, and one of those is resolving the overlapping role of DPPs and community safety partnerships.

364. The future of policing reform in Northern Ireland, post-Good Friday Agreement and post- Patten Report, is one, I believe, of success. In terms of the future tripartite arrangements, the current tripartite approach to governance and delivery of policing services is well tried and tested, and over six years has proven to be effective. Under devolution the new tripartite arrangements will have the potential to become more complex and crowded, with the potential for duplication in approach, unnecessary additional bureaucracy and potential mission creep. Two of the three legs of the tripartite stool will remain unchanged if the above principles are maintained, and they are the board and the Chief Constable. It is in the third leg that the change will take place, and it is our mutual responsibility to ensure that arrangements and protocols are put in place for operation under devolution and that the reality of devolution, as envisaged in the Patten Report, is delivered, while enshrining the principles outlined earlier.

365. The role of Assembly Committees is distinct from that of the Policing Board, and their respective roles are set out unambiguously in statute. In the current tripartite structure, the board ensures the delivery of an effective, efficient and impartial police service and holds the Chief Constable to account, while the Northern Ireland Affairs Committee scrutinises the work of the Secretary of State and the Department. The new Assembly Committee would fulfil its scrutiny and policy development roles, assuming responsibility for that function from the Northern Ireland Affairs Committee. It would have a wide brief across the whole criminal justice system in Northern Ireland.

366. It should be noted that the board will need to have a continuing relationship with the Secretary of State in respect of non-devolved matters and national issues in which it will have an interest; for example, oversight of the PSNI’s role in national security matters.

367. The board has not considered the detail of powers that should be devolved across the criminal justice system, but I reiterate the board’s unanimous position in support of the recommendations made by the Independent Commission on Policing — the Patten Report — which stated:

“Responsibility for policing should be devolved to the Northern Ireland Executive as soon as possible, except for matters of national security.”

368. The board values the productive working relationships that it has developed with a range of national policing institutions. Those are listed for the Committee in my submission.

369. Six years into the delivery of the 10-year reform programme many challenges remain for policing — challenges that the board is alive to and is committed to dealing with. In the years ahead, perhaps public confidence, public expectations, quality of service delivery, and the availability of resources will feature most highly. As witnessed in recent weeks, the community wants and needs a policing service that is responsive to, and meets, community needs. In our important respective roles prior to and following devolution, we must continue to make progress on the issue of policing. That will be the real test of delivery. We must continue to move forward on policing — building community confidence as we go — to ensure the delivery of an effective, efficient, accountable and impartial policing for the whole community. Those are the issues that feature regularly in the board’s engagement with the Chief Constable and the PSNI.

370. In a devolved arena, policing will be competing with other essential public-sector services for funding. More will be required from less — the anticipated comprehensive spending review (CSR) 2007 figures, which I am told are likely to come out this month, indicate that. The board will continue its work in ensuring that the Chief Constable makes the best use of scarce resources for the delivery of effective and efficient policing.

371. In conclusion, Chairman, as we continue to consider the implications of the new devolved arrangements and plan for the establishment of effective and efficient working relationships under devolution, we will be pleased to further assist the Committee in any way that we can.

372. I am sorry if I have gone a little over time, but this is a comprehensive area.

373. The Chairperson: Thank you very much, Sir Desmond. You said that “more will be required from less”, referring to the implications of the CSR and the resources that are available to policing. Does the board have a view as to whether there will be adequate funding for policing when devolution occurs?

374. Sir Desmond Rea: The board does not have a view on the matter; it has not debated it yet. The PSNI recently made a decision in respect of the full-time Reserve, as you are aware. In the course of considering that decision, we were aware of other contributory factors that affect policing and how it is carried out. I have already referred to the continuing threat from dissidents and activity on the loyalist side and to the fact that they go must away. That affects budgets, policing on the ground, and how we go about policing, for example, by patrolling. Therefore, we have touched only indirectly on that subject. However, I suspect that when we see the CSR, we will look at it in some depth. The matter also raises the question about the number of police that we have, as you know.

375. Mr Gilligan: The Committee is well aware of the reasons that we have more officers for each person than what we describe as most similar forces.

376. I have no doubt that, despite vast improvements over the past six years, some work remains to be done. For example, in Strathclyde — which is a larger area and has a larger population than Northern Ireland — the budget that is available to the Chief Constable is considerably less. Another area for improvement is single-officer patrolling — which the Chairperson mentioned — and getting more officers to the coalface. That would make better use of officers who are currently doing civilian-type jobs. Therefore, there are a host of areas that I consider as work in progress.

377. Mr McCartney: Thank you for your presentation, the first part of which does not come within the Committee’s remit, so I will not ask questions on that.

378. Is the Policing Board ready to begin work if the powers for policing and justice were devolved to the North in May 2008?

379. Sir Desmond Rea: As I said, that is a question for the politicians. When politicians make the decision on the devolution of those powers, the Policing Board will work with the Assembly to move forward.

380. Mr McCartney: There is nothing in the Policing Board’s field of work that would prevent that from happening?

381. Sir Desmond Rea: Nothing whatsoever.

382. Mr McCartney: Have you had any communication with the NIO about its progress in working with other agencies on how the devolution process can be advanced?

383. Mr Reaney: At an official level, there is a stakeholder group that consists of representatives from the various agencies that will be affected, across the criminal justice system. I represent the Policing Board on that group, and the Deputy Chief Constable represents the PSNI. That group is meeting and work is ongoing. I am sure that the Committee has heard about that from NIO officials.

384. Mr McCartney: Can you give the Committee a progress report on the work of that group?

385. Mr Reaney: At present, it is very difficult for me to give an overall assessment. All I can say is that — because the accountability arrangements for policing have been in place for a considerable time — the degree of change in policing is less than what would be expected in the rest of the criminal justice system, where more preparatory work will be required.

386. Sir Desmond Rea: I was reflecting over the weekend about the relationships among Ministers, and between civil servants and the Policing Board. The three of us agree that those relationships have been characterised by a remarkably light touch over the past six years. The Policing Board will simply move across to the new Department that will be established when policing and justice powers are devolved.

387. Mr McCartney: You are ready to move?

388. Sir Desmond Rea: Yes.

389. Mr Kennedy: I welcome the Policing Board delegation. The halfback line of Rea, Reaney and Gilligan is very impressive. Thank you for your presentation.

390. I wish to ask about the future tripartite arrangements —

Committee suspended for a Division in the House.

On resuming —

391. The Chairperson: We shall now resume proceedings. For the benefit of Hansard, I ask Danny — with the Division bell ringing in our ears — to give us an abridged version of his excellent and well-honed question.

392. Mr Kennedy: You are only saying that because it is true, Chairman.

393. What relationship does Sir Desmond envisage between any policing and justice Statutory Committee and the Policing Board?

394. You will recall that the Policing Board has 10 political members, each of whom is an MLA. Any Statutory Committee would comprise 11 elected representatives. You have suggested that the Committee should undertake the role that the House of Commons Northern Ireland Affairs Committee plays. Is that a practical suggestion?

395. Sir Desmond Rea: In a sense, that is the existing arrangement. I would expect the Statutory Committee to hold the Minister to account on policy and administration. I would expect it to meet the Policing Board at least once a year — perhaps twice a year. Meetings between the Policing Board and the House of Commons Northern Ireland Affairs Committee are much less frequent than that. That is one way forward.

396. As I said earlier, the tripartite relationship among the Policing Board, the Minister and the NIO has, in my experience, been remarkably light. I would have thought that the Committee —

397. Mr Kennedy: Pardon me, Sir Desmond. At present, the Northern Ireland Affairs Committee fulfils an important role. However, it is made up of MPs, not all of whom are based in Northern Ireland. The situation with the Policing Board and any Statutory Committee would be different. The Policing Board has a political membership, and all 10 of its political members sit in the Assembly. To refer the work of the Northern Ireland Affairs Committee to locally elected representatives in that Assembly might create a build-up of tension.

398. Sir Desmond Rea: That is correct, and I spelt that out in my opening remarks. For reasons of good governance, it would make sense for MLAs who sit on the Policing Board not to sit on the Statutory Committee. Nevertheless, the Committee would play an important role in scrutinising the work of the Policing Board and how it goes about its activities.

399. I thought that you were going to say that the Northern Ireland Affairs Committee deals with a wide range of matters, of which policing is but one finite part. Policing and justice, when devolved, will be of much greater importance to the Assembly. It is important that, as the matter progresses, memoranda of understanding between the different parties be established, and that we learn from experience and adjust accordingly.

400. The Chairperson: I just want to probe that issue a bit further. Danny was diplomatic in his choice of terms — he talked about a potential tension. Is there a potential conflict of interest, given that Assembly Members sit on the Policing Board and the Assembly will also have to scrutinise that board? Has the board given much thought to that?

401. Sir Desmond Rea: Although the board has given no great thought to it in any depth, that question is easily answered. You are quite right, there is a possibility of tension arising, but the best way to proceed would be by drawing up a memorandum of understanding that is reviewed regularly and by working to try to achieve the most positive relationships.

402. It is important that there is no political interference in the operational responsibility of the Chief Constable and how he goes about his work. That principle must be adhered to, and the board gives that degree of protection because independent members work alongside the board members. In the past, the independents have been quite prepared to flex their muscles as they deemed appropriate. Previous boards have been quite prepared to require political members to back off on something, get together, consider the matter, see if they can do a deal on it and then come back to the board to discuss that deal. That approach has been important in resolving certain matters about which there has been tension. For those of us who believe in devolution and want it to work, it is necessary to start off with goodwill and seek to build on it.

403. Mr Gilligan: Desmond mentioned a key issue; to avoid any potential conflict of interest, an MLA should not serve on both the board and any future Committee on policing and justice.

404. The Chairperson: That would avoid a personal conflict of interest, but I was thinking more of a conflict of interest arising at a corporate level, in that an Assembly that legislates on, and allocates resources to, policing would, at the same time, have a role on the board. Sir Desmond has made it clear that that could be covered — at least initially — by a memorandum of understanding. I believe that implicit in his remarks is the belief that if problems develop, the issue would have to be considered again.

405. Sir Desmond Rea: That is correct.

406. Mr G Robinson: Sir Desmond, what do you make of the Chief Constable’s remarks at the weekend about who might lead a devolved Department of policing and justice and about autumn 2008 being a more likely date for the transfer of policing and justice powers? Do you personally think that he should have made those comments, and what are your views on them?

407. Sir Desmond Rea: First of all, this Chief Constable is remarkably open. He takes the issues and responds to them as he deems appropriate. I made it clear in my response to a previous question that this board wants to see devolution of policing and justice powers. We are ready to move into that mode tomorrow, as and when you decide — and it is for you to decide; I am not about to put odds on as to when you are likely to do so, simply because I do not know. However, we are ready and we will want to see it work.

408. Mr Gilligan: I also draw the Committee’s attention to the fact that the Chief Constable made it very clear in that interview that he has answered to the Policing Board, and will continue to do so, in respect of his operational function.

409. Mr McCausland: Sir Desmond, is there sufficient community confidence to allow the devolution of policing and justice powers to occur in the near future? How would you assess community confidence?

410. Sir Desmond Rea: To answer the second part of the question first, various surveys have been carried out. The Northern Ireland Omnibus Survey is useful. Although it is a sample survey, it is a reputable source for ascertaining the community’s views on policing.

411. Policing is being accepted increasingly across the community. The wider community has seen a PSNI that has moved forward and embarked on a programme of change. The majority of the recommendations are about what is good in policing, not simply in these islands, but across the world. Those points have been embraced, and we have made progress with them. There now exists a remarkable degree of accountability in the areas for which we are responsible.

412. The surveys tell us that there is increasing confidence across the community. For example, if my memory serves me right, one of the statistics from the previous survey — which was ignored by a lot of people and which gives a good feel for public confidence — was that 66% of people were happy with the feedback that they got from the police. That figure has increased significantly, and the respondents to that were people against whom crimes had been perpetrated. Therefore, there is increasing confidence in policing in the community.

413. Republican areas, of course, present the biggest challenge. In the past, the PSNI has not been supported in those areas. The challenge is for policing to be evident on the ground and to gain the confidence of that community. I think that that will happen. With the exception of the dissident element of that community, the fact that the jigsaw on support for the police is now complete is a demonstration of that greater confidence.

414. Mr McCausland: Does the survey not assess community confidence in policing as it is administered now? It is not actually assessing community confidence as to whether policing and justice powers should be devolved. I could have confidence in policing as it is administered now, but I might not have confidence in society being ready for the devolution of policing and justice powers. How can that confidence be assessed?

415. Sir Desmond Rea: That question must be asked, and a means of asking it must be found. As devolution progresses, gains confidence, and demonstrates its capability to deal with issues, my gut feeling is that, overall, that confidence will grow.

416. Your first question takes me into a more political area. However, I have made it clear to the Committee that the Policing Board and the police service have the confidence to move forward with the devolution of policing and justice powers as and when the Committee deems it appropriate to do so.

417. Mr Gilligan: One useful indicator is the reconstituted DPPs: how representative they will be of the entire community and how they truly engage with the police in fulfilling their role. I recognise that that will take time.

418. Mr McCausland: It will take a lifetime, perhaps.

419. Mr McFarland: The whole issue of finance and money will be tight. However, we are embarking on a number of enquiries. The Historical Enquiries Team is active. There will probably be a strategy for dealing with the past. Does it concern you and what are your views on whether the budget for all of that should be retained centrally in London, or with a justice Ministry here and the Policing Board? Potentially, that is a massive budget, particularly if there are claims of post-traumatic stress or claims against the Chief Constable. That could be a major nightmare with regard to budgeting. Can I have your thoughts on that?

420. We have been exploring the area of serious and organised crime, which is being kept away from policing in that a multi-agency approach is being taken, in particular through the links between the Serious Organised Crime Agency and the Assets Recovery Agency. Can you give your view on how that might be relevant to the future planning of policing and justice?

421. Sir Desmond Rea: My gut feeling is that the money question will become a pressing issue in the next number of months, following the comprehensive spending review, which I believe will be announced some time this month, depending on when the election is. You are quite right that certain matters will be retained by London. There may be matters that are devolved but do not have a definitive budget attached to them. The costs of those could escalate. It is for the Assembly to negotiate with the NIO and the Treasury to ensure that those issues are covered. However, you are right to point out that the money required could escalate for a number of those areas.

422. You are quite right that certain national bodies are involved in tackling serious and organised crime here. Mr McFarland knows the background to the area of organised crime as well as I do, but for the benefit of other members, agencies as well as the police are involved. The Policing Board has found that difficult and would have liked to have extended its influence and remit on accountability in that area. However, because of the other parallel agencies, that has been difficult. The board has argued its case and its representatives have been given seats on a second tier of that body. Serious and organised crime is an important area and, if the Assembly decides to have a Committee that relates to policing, the Policing Board would be interested in liaising with that Committee. You are right that serious and organised crime is an area of tension.

423. Mr Gilligan: Mr McFarland raised the question of the impact on resources that a strategy for the past would have. I share the view that the Chief Constable expressed in the interview that was referred to earlier: this is a matter that must be grasped by this body. I do not believe that you can divorce the two. That issue and all its ramifications, including the financial ones, must be addressed by the Assembly.

424. Mr Attwood: It would help the Committee if you could, based upon the board’s experience of the extent and nature of policing, indicate whether you think that a future justice Department would be most effective and efficient as a free-standing body, or integrated into a current Department such as OFMDFM.

425. It may be helpful to state that the head of the Northern Ireland Court Service told this Committee last week that he could work with whatever model is chosen. However, he said that there would be benefits to having one coherent Department in charge of all aspects of the justice system. He added:

“If an existing Department were given that responsibility, it would certainly form the dominant part of that Department’s work.”

426. Bearing in mind the work of the Policing Board and other institutions in moving policing so far forward in such a short time, do you believe that a free-standing justice Department would best serve the future of policing?

427. Sir Desmond Rea: Speaking as a citizen, not as Chairman of the Policing Board, I start from the premise that there are far too many Departments. That is a personal view.

428. There is some sense, particularly in the initial period after devolution, in having a free-standing Department, because there are several complementary functions and matters that relate to, and with, each other. That contradicts the point that I made a moment ago; however, there is some justification for a free-standing Department for a period of time. I am thinking of how the Probation Board and the Prison Service relate to policing. As and when the police college is built, it will also have a relationship with the Prison Service, as members know. I could mount an argument for a free-standing Department, but I have not reflected much on that.

429. Mr Attwood: Thank you Professor Rea — that was useful. I wonder whether you will be as helpful in respect of my next question. In your letter to the Committee, you state that the role and power of the Policing Board should not be diminished by the devolution of policing and justice. After all the good work of the board and other policing institutions during the past four or five years, and after the transfer of responsibility for national security to MI5, are you concerned that the board will cease to have a role in an area in which it used to have an interest?

430. I will give two examples. First, are you concerned that agents, or covert human intelligence sources, who are currently the responsibility of the PSNI, and of strategic influence in the North, will be transferred to MI5 and may not operate under the same strict criteria that the Chief Constable, the Policing Board and others have so carefully worked out in the past number of years in order to develop confidence in an area that was contentious for so long?

431. Secondly, in the future, the important work of human rights advisers to the Policing Board, who conduct real-time assessments of operations and intelligence, including that of MI5, will cease. Where will the Policing Board stand if, in the future, MI5 direct the police to do something in the North that leads to a critical incident or someone’s death? How will the board reassure the public in the North that the police can be held to account?

432. Sir Desmond Rea: You do not change, Mr Attwood. [Laughter.] Excuse me, while I give some background information to members of the Committee who do not have your insight.

433. Until now, “primacy” in respect of national security has rested with the PSNI. In their wisdom, the British Government decided to alter that situation, and it will soon change to the model that exists in the rest of the United Kingdom. That means that there are questions to be asked about accountability, as Mr Attwood said. Members who require some background on this issue should read annex E of the St Andrews Agreement, which is open about the issues and how they are to be tackled.

434. Since the Policing Board was formed six years ago, it has gradually extended accountability on intelligence in three formats. The chairman and the vice-chairman relate to the relevant assistant chief constable on the area of intelligence — particularly with regard to the recommendations on intelligence that flowed from the report on the police handling of the Omagh bomb inquiry and the inquiries that were mounted on the back of that report. We have done that consistently. In the course of that, the suggestion was made through the assistant chief constable to the Chief Constable that the board could be briefed on about 70% of the knowledge on intelligence — that is a notional figure. Those briefings have taken, and do take place. That is a good example of the openness of the Chief Constable, because he said that that would be possible. Mr Attwood and Mr McFarland will recall that in the course of one of those briefings — which took place in a public session, because the board encouraged the Chief Constable to conduct sessions in public where possible — the then assistant chief constable for crime operations briefed the board on the management of covert human intelligence sources (CHIS). It was interesting, because the journalists did not know what was happening, but a significant amount of information on the management of CHIS was put into the public sphere.

435. The board has also met — infrequently but consistently — the assistant chief constable for crime operations and the local head of the intelligence service. At a board meeting two or three weeks ago, at which progress reports were made on the memorandum of understanding, protocols and the board’s human rights advisers — as referred to in annex E of the St Andrews Agreement — it was asked whether there were any parallels in the rest of the United Kingdom to the degree of accountability that is being exercised here. The answer was an unequivocal no. There is, therefore, a degree of accountability in this area, and that should give comfort to not only Mr Attwood but to the wider community about how the board has gone about its functions on accountability and the Chief Constable’s openness in that regard.

436. We have been given information on the possible number of CHISs, but I will not go into that: you can talk about it afterwards.

437. Therefore, in answer to your concerns, I believe that we are well ahead of the game. Northern Ireland is an example of good practice throughout these islands on that issue — and some of the Committee members’ colleagues can confirm that. I apologise for the long reply, but the subject required it.

438. The Chairperson: Thank you and your colleagues, Sir Desmond, for coming before the Committee this morning to give evidence. I am sorry for the interruption of the Division, but the Committee appreciates your candour, the weight of your information, and the written submission that you provided. If there are any points on which we need to probe further, we may be in touch in writing.

3 October 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín

Witnesses:

Mr Shaun Woodward		The Secretary of State for Northern Ireland
Mr Peter May Ms Clare Salters		NIO

439. The Chairperson (Mr Donaldson): Secretary of State, you are very welcome to the Assembly and Executive Review Committee. As you know, one of the Committee’s tasks under legislation is to prepare a report for the Assembly on the preparations for, and timing of, the devolution of policing and justice matters.

440. I welcome also Ms Clare Salters and Mr Peter May, who have previously spoken to the Committee. We have received from the Northern Ireland Office a discussion paper on devolving policing and justice, which has given members a good insight into the preparatory work that the Department is undertaking towards the devolution of policing and justice matters.

441. This is the first time that you have appeared before an Assembly Committee, Secretary of State, so, again, you are very welcome. Yesterday, the Lord Chief Justice spoke to the Committee for the first time, and, to date, we have heard evidence from the chairman and chief executive of the Policing Board and from the director of the Northern Ireland Court Service.

442. I am aware that you have business elsewhere this morning and that you are anxious to leave at about 11.30. The Committee will endeavour to accommodate you. The Committee invites you to make a short opening statement, and, thereafter, members will be invited to ask questions on matters that may arise from your evidence.

443. The Committee has concentrated the matters to be transferred in the event of devolution, the ministerial models, and the timing and preparations for devolution. We are aware that a report must be presented to the Assembly by the end of February 2008, which might allow the Assembly to report to you by March 2008. Before proceeding, I invite members to declare any relevant interests. I declare an interest as a member of the Privy Council and of the Northern Ireland Policing Board.

444. Mr I McCrea: I am a member of Cookstown District Policing Partnership.

445. The Secretary of State for Northern Ireland (Mr Shaun Woodward): Thank you, Chairman, it is a great pleasure for me to be here this morning, and I hope to be able to assist the Committee with its work, which the Government regard as extremely important. The Committee has taken evidence from several others, and, as a preface to everything that is said this morning, I stand ready, now and in subsequent weeks and months, to assist the Committee, in person or in writing, with any of its work on the preparation for further devolution. It is an extremely important part of the St Andrews Agreement.

446. As I have made clear elsewhere, I see this very much as the vital second stage, just as the first stage was absolutely vital; they are an integrated whole.

447. I know that there have been discussions on the timetable for devolution of powers. That is obviously relevant, but, at the end of the day, what matters is that we have successful devolution of policing and criminal justice in Northern Ireland — the end is that successful devolution, not the timetable. There has been endless speculation in the press about the timetable, and I, like members of this Committee, have inevitably been asked about it. I have always responded by using a form of words that have said that there is a timetable in the St Andrews Agreement, and I can see no reason why we should not be able to work to that timetable.

448. Equally, it stands that if there are reasons why a different version of that timetable needs to be, and can be, agreed between the parties, that seems to me to be entirely acceptable. However, the concentration on the timetable seems to have been somewhat unhelpful at times. What matters is that there is recognition of the value and purpose of devolution of policing and criminal justice, not only as an end in itself, but as part of the whole integrated package of successful devolution in Northern Ireland.

449. There are huge benefits to taking forward this package as a whole. At the moment, the Committee will be aware of the work that is being carried out by my deputy, Paul Goggins, with individual Ministers in the Administration here. Even though we have not devolved policing and criminal justice, there are, inevitably, huge areas of overlap that need to be worked on together — for example, tackling healthcare in prisons or football hooliganism. Those issues cannot be tackled discretely; they cross over. Those issues would be best handled by politicians who have been elected in Northern Ireland, and not by me as Secretary of State or Paul Goggins as a Minister of State, however able we may or may not be. It just seems better that those sorts of decisions are made by Ministers here.

450. The critical part is to recognise that what is really at stake is not the issue of when or who, but rather what exactly will transfer. The February 2006 discussion paper sets out some of the issues to be resolved. It would clearly be helpful to me to hear a little more from the Committee about what powers it wants to be transferred. Equally true is that we need to be advised by the Committee on how it envisages these matters working, which will, sooner or later, include the model that it wants.

451. Other issues will be the number of justice Ministers, the way that the Department will function, the responsibilities being devolved, and whether we move on to powers in other areas that the Committee may or may not want to have transferred — for example, the issues of parades and 50:50 recruitment to the police. Those matters must be considered, and we can easily work them out well between ourselves. It is important to get them right. It is also important that we consider with the Committee all the ramifications of the transfer of powers and that we have clarity on those issues. I see that very much as a work programme that must be undertaken by the Committee and ourselves, just as a work stream is currently under way in the Northern Ireland Office in making preparations for the transfer of those functions.

452. The Committee will be aware of the substantial body of work being carried out by the Northern Ireland Office, and Peter May and Claire Salters from that office are here with me this morning. As I said, we stand ready to answer the Committee’s questions. If there are questions that I cannot answer today, I am happy to respond to the Committee in writing, and any questions that cannot be answered in writing today or tomorrow, I will endeavour to respond to as quickly as possible.

453. The Chairperson: Secretary of State, thank you very much. Do either Ms Salters or Mr May have anything to add?

454. Yesterday, the Lord Chief Justice gave the Committee a very interesting insight into his views, particularly on the modalities for devolution. He expressed a preference for a non-ministerial Department for the management of the Court Service, at arms length from the Department of Justice and chaired by the Lord Chief Justice himself. Has the Northern Ireland Office considered that proposed model, which he compares to the one that is evolving in Scotland and to the one that is used in the Irish Courts Service?

455. Mr Woodward: The Lord Chief Justice has made those representations to the NIO, and made his views extremely clear. However, although mindful that there should be some form of timetable, I do not want to be restricted to talking about May 2008. Whether it is May, or slightly later next year, it is still a relatively short period of time. It would not be appropriate to entertain such a proposal at this stage.

456. However, when the functions are transferred, there would be no problem if the Executive and Assembly were to decide that the Lord Chief Justice’s model was better for the judicial system in Northern Ireland. That would be a matter for the Assembly and the Executive. I will not declare a view on this — as it is not something on which the NIO should have an opinion — other than that we have no problem with the model, but it is not appropriate to entertain it while we prepare for further devolution.

457. The Chairperson: It is therefore your intention to proceed with the models outlined in the discussion paper.

458. Suppose that the Committee, and subsequently the Assembly in their report to you, agreed that the Lord Chief Justice’s model was the preferred option, but that a further delay in devolution was necessary. In that eventuality, would you still refuse to legislate for the preferred model and instead await devolution to leave the Assembly to legislate?

459. Mr Woodward: It is possible to entertain a number of hypothetical situations and, depending on a putative timetable, be speculative on a broad range of issues. The NIO does not see a problem with the model proposed by the Lord Chief Justice, but it is not appropriate for us — having committed ourselves to preparing for devolution when the Assembly asks for it — to carry it through now. That will require major legislation. The NIO does not see any problem with the model being adopted, but does not believe that it should be implemented during preparation.

460. The Chairperson: Even if the Assembly states that the Lord Chief Justice’s model is the preferred option, but that it wants a further delay in devolution?

461. Mr Woodward: To be helpful, I want to say that if the Assembly were to make such a decision — however disappointing that would be — that would mean the delay would be for more than a few months. The NIO would have to work through that with the Executive and the Assembly. However, I have seen no evidence — not withstanding the understandable concerns that people have regarding confidence-building measures — that the balance of public opinion, or of individual Members, favours a lengthy delay in the second stage of devolution.

462. I know that some have concerns that May 2008 may be slightly too soon — and too far away for others — but evidence suggests that public confidence would be considerably undermined if there was a suggestion that I was entertaining the idea of a lengthy delay in the second stage of devolution.

463. Ms Ní Chuilín: Fáilte rómhaibh uilig go dtí an Coiste. You are all very welcome.

464. Do you see any administrative obstacles to the transfer of powers? At what stage is the planning for those agencies that will be transferred?

465. Mr Woodward: Across the board, and including policing?

466. Ms Ní Chuilín: Yes.

467. Mr Woodward: Let me reiterate: I believe that the timetable that is laid out can be achieved. There is no question that it is ambitious and will require a huge amount of work, but if there are reasons to delay we need to examine those reasons together. So far I have heard opinions about why delay might be a good idea, or a bad idea, but I have not seen any reasons. In the extraordinary spirit in which this Assembly and Executive are managing to function, and the way that the public in Northern Ireland completely support that, it would be helpful if people who have reasons for a different timetable should lay those out.

468. On the matter of how we in the Northern Ireland Office are preparing, we aim to ensure that the work streams set up by my colleagues Peter May and Clare Salters and others should put in place the certainty that if the Assembly indicates in the spring of next year that it wants functions transferred, the NIO will be ready to do it. That means that the various bodies, agencies, protocols and memorandums of understanding are all being dealt with. The structures are under way that will deal with, for example, the transfer of personnel, terms and conditions, consultation with trade unions, all of which are extremely important on a personal level to the individuals involved in the transfer.

469. Of course, there is the wider issue of resources for the bodies that have to be transferred, but what matters to us is that we receive a clear indication of the actual functions that will be transferred as soon as it is possible for the Committee to do so, not that I can anticipate that that would be a reason for delay. Will those include parades or 50:50 recruitment to the police, for example? Those are the issues that this Committee and others must deliberate on and advise us on. We stand ready to make available the transfer of those functions, and I am making sure that that will be done within the St Andrews timetable. However, ultimately it will be for this Committee, the Assembly, and the First Minister and the Deputy First Minister to put forward in a motion the request to us that that be done. My intention is to make sure that the bodies and functions are in a fit condition, so that we will be able to meet that timetable if it is requested.

470. Mr I MCCrea: The DUP does not believe that May 2008 is an achievable deadline. There is still a considerable amount of work to be done before the unionist community is happy that republicans, and others, are fully committed to policing and justice. There must be confidence in the community, and whether that can be achieved by May is too close to call.

471. There have been suggestions in the past that the Secretary of State could impose policing and justice on the Assembly if it were the will of the Assembly not to commit to May. Can the Secretary of State confirm that that is the case? What are his intentions if the Assembly decides not to accept the devolution of those powers?

472. Secondly, what is his view on the number of Departments and Ministers needed for policing and justice?

473. Mr Woodward: I understand the view about the timetable expressed by you and some members of your party, but I put alongside that the considerable enthusiasm among the public for completing devolution. You will be more than well aware that the poll figure for people who do not want the devolution of policing and criminal justice is around 14% or 15%.

474. In other words, 85% of the public want it.

475. There has been a shifting tide of public opinion. The Assembly and Executive have commanding support from the vast majority of the public. A few years ago, if people had been asked whether they thought that devolution could happen, and whether they would support it, nothing like those levels of support would have been achieved. The public have responded to the leadership that you, your colleagues, the Assembly and the Executive have shown. The public like devolution, they want it, and they want the momentum to continue.

476. We are not putting any kind of pressure on this Committee, the Executive or the Assembly. I am keen to maintain momentum, unless, as I say, there are reasons why we need to slow down the pace. I am not trying to rush the devolution of policing and criminal justice powers; I am simply trying to ensure that there is momentum. Policing and justice powers could be devolved in May 2008. However, there may be reasons why it is necessary for devolution of those powers — if it can be agreed among the parties — to be delayed.

477. Looking back on discussions that have taken place on the devolution of those powers, I believe that a degree of clarity, for want of a better phrase, has been lacking over the idea of what I may or may not impose. It is important to be clear that the devolution of policing and criminal justice powers will work only if it is embraced and wanted by the public, the Assembly, the Executive and the First and Deputy First Ministers. Therefore, like everything else that the Assembly and Executive have done, that can only be achieved by consensus.

478. There was a suggestion at one stage, before the legislation was put in place, that the Secretary of State might impose a Minister to take control of policing and criminal justice. That was never included in the legislation. Alan has fought nobly on and discussed that issue a number of times, and I understand why. However, I think that there has been a misunderstanding, because there is nothing in the legislation that gives me the power — even if I was daft enough to want to — to impose a Minister. I reassure the Committee that nothing in the legislation enables me to do that. Even if there was, I would not want to do it anyway.

479. The legislation does include capacity for the Secretary of State, in a certain set of conditions, to impose the departmental structure that is contained in the legislation. I do not see that situation arising, because I believe that the Assembly wants the devolution of policing and criminal justice powers.

480. That part of the legislation, as I understand it, was included in case the Assembly wanted the devolution of policing and criminal justice powers, but parties could not agree among themselves on the specific form that it should take. In that scenario, that part the legislation could be applied. Having seen the Executive, the Assembly and this Committee at work, it is unimaginable that such a power would have to be used. Once again, to be absolutely clear, no power exists in the legislation to impose a Minister.

481. Mr I McCrea: Do you have a view on the number of Departments that the Assembly should have once policing and justice powers are devolved?

482. Mr Woodward: To be frank about it, the form that it should take is for this Committee, the Assembly and the Executive to decide. It is not for me, as Secretary of State, to have a view about how many Departments should or should not be involved. The legislation sets out a certain number of Departments and Ministers. Obviously, it is up to the Assembly and the Executive to decide how those portfolios should be put together. We stand ready to offer support for those decisions, but, again, I return to a firm belief in the power of devolution.

483. When the Assembly is ready, we want the functions transferred so that the Assembly can take full control of policing and criminal justice. To make that transfer easier, we would appreciate it if you told us as soon as you decide how the powers are to be administered and what the model will be.

484. Mr McFarland: Thank you. I wish to tease out a bit more about the plan B scenario.

485. All that we have on paper is a document from the then Secretary of State, Peter Hain. It is the only detailed document that gives us an insight into the NIO’s thinking on the issue in December 2006. I appreciate that the Secretary of State said afterwards, and Mr Woodward says now, that some circumstances have changed.

486. We have the St Andrews Agreement, which was supposed to be an agreement, but which, one would hear from the parties, was not an agreement. The DUP is adamant that it did not agree to the timetable for the devolution of policing and justice set out therein. Sinn Féin held its Ard-Fheis and sold it policing on the grounds that the plan in the St Andrews Agreement was inviolable. It had been promised, by the then Secretary of State and the Prime Minister, that policing and justice powers would be devolved by May 2007. There would appear to be a blockage: the two major parties that can deliver devolution of those powers have fundamentally different views on the timetable.

487. Mr Woodward said, early on, that agreement among the parties was necessary in order for the powers to be devolved. We will hit the first buffer on 27 March 2008, by which date the Ministers must be nominated. Mr Woodward has heard that, within that timescale, there will not be agreement, so how does he see that situation evolving? For how long can he, as Secretary of State, simply sit on the issue? The DUP may continue to believe that, right up until the end of this Assembly’s mandate in 2011, unionist confidence is not there. I am simply trying to gain some insight. We had a clear insight into how the then Secretary of State thought that the process for achieving devolution of policing and justice powers would work post-St Andrews. How does Mr Woodward see himself fulfilling his promises to Sinn Féin within the timescale, if the DUP does not agree to it?

488. Mr Woodward: Thank your for the question, Alan, but let me state a matter of fact. You referred to Peter Hain’s letter, which was written before the legislation was drafted. The proposal in that letter set out an option that was being considered at that time. However, that option was not pursued. You say that all that we have is Peter Hain’s letter; but we now also have the legislation. That legislation sets out what I can and cannot do, and it makes it perfectly clear that I cannot impose a Minister.

489. Mr McFarland: I understand that.

490. Mr Woodward: I want to put that on the record. Your rigorous pursuit of that issue before the legislation was made was absolutely right, because it allowed us to have clarity.

491. I cannot determine when one Northern Ireland political party or another will decide that it has witnessed enough confidence-building measures to manage its followers to the position at which they can accept devolution of those powers.

492. However, all the political parties fought an Assembly election on the basis of full devolution. There is an understanding. All my dealings, whether with MLAs or with the Executive, do not lead me to conclude that politicians are deliberately looking for an indefinite delay. The conversations that I have had with everyone in the Executive, and with a number of Assembly Members, lead me to believe that there is a recognition that we should move to the second stage of devolution and that we should not delay indefinitely, even within the lifetime of this Assembly. I see no reason why that cannot be done within the timetable. However, I am perfectly prepared to accept that reasons could arise, which could be agreed among the parties and would justify the extension of the proposed timetable.

493. We have not yet reached that position. I could speculate with you today, next week, and so on, on a number of scenarios. It is more useful, however, for me, as Secretary of State, to say that we will complete our side of the work within that time frame. This Committee, the Assembly and the Executive must do a great deal of work to decide on the model that should be adopted and on the specific functions that should be transferred and those that should not.

494. When that is done, and when people feel that there are enough confidence measures, it will be time to move forward and complete devolution. I hope that that will happen in and around the timetable set out at St Andrews. Of course, individuals, and even political parties, may choose to debate specific details, but there is overall consensus. There is certainly huge enthusiasm among the public for devolution to be completed. I stand ready to play my part in that.

495. Mr McFarland: Do you have a view on the Chief Constable’s opinion, expressed at the weekend, that autumn is the time for policing and justice to be devolved?

496. Mr Woodward: As the chairman of the Policing Board said to the Committee yesterday, Sir Hugh Orde has frank opinions and is often ready to share them with people who will listen to him. Northern Ireland is lucky to have the finest and best Chief Constable of a police service anywhere in the world. His frankness and forthrightness have been part of his success, and the fact that the PSNI is regarded around the world as one of the finest — if the not the finest — police services in the world owes no small debt to him. He has been a great leader, and with that leadership comes forthright views. At the weekend, he shared his views with the press. He is entitled to his view; it is a view that I listen to and certainly respect.

497. Mr McCausland: The exercise to determine what form the devolution of policing and justice might take is ongoing. However, the unionist community feels that it is premature, and there is strong opposition to any transfer of powers in the near future. Earlier, you spoke about the transfer taking place next May, or slightly later, but the general view, as I assess it in my constituency of North Belfast, is that devolution of powers by next spring or autumn is premature.

498. You also said that if there were a delay, it would be necessary to set out the reasons. From talking to people in my constituency, I believe that there are three reasons why they want to see a delay taking place, and would like you to comment on those reasons. First, policing has gone through a period of great transition. The Assembly has also had a period of significant change: Sinn Féin is now the largest nationalist party. The view is that, in those circumstances, the devolution of policing and justice powers would place an intolerable strain on the Assembly.

499. Secondly, although people may accept the current political situation, the view is that it is unpalatable and has been foisted on people. That view is taken because the Executive have a junior Minister who has been convicted of serious and atrocious terrorist crimes. People find it intolerable that such a person might have a role in the administration of policing and justice.

500. Thirdly, there are crimes that remain unsolved, for which no one has been convicted. Those crimes are still being investigated. Regardless of what assurances might be given, most people would have no confidence in a process in which a person who may have been implicated in those crimes was in charge of policing and justice.

501. Those are the three issues that are in people’s minds, and they will take a lot of reassuring before those issues can be resolved. That is why there is such overwhelming opposition within unionism to the devolution of justice and policing. The concept of transferring powers, in the abstract, is not the issue; it is the practicalities of doing so in the Northern Ireland situation, where the largest nationalist party has been associated with the IRA and its campaign over many years.

502. Mr Woodward: I understand where that bundle of questions is coming from, and they rightly articulate a point of view that I have heard argued elsewhere, although not always as strongly as that, and not always with those conclusions. I shall try to deal with those questions in reverse order.

503. I made some remarks about the Chief Constable’s forthrightness, and some of the reasons why the PSNI commands so much confidence around the world are its transparency, openness and accountability, and the fact that it has operational independence. It would be unfortunate if we were to suggest, in any way, the idea that police investigations should somehow be linked to transferring responsibilities for policing and criminal justice.

504. It is absolutely essential that the police’s independence continues. I see no reason why that would not continue; it is absolutely enshrined in everything that we are doing. Therefore, I would trust entirely any investigation about any individual, or any matter, to remain a matter for the Chief Constable and the police. The Chief Constable has demonstrated time and again that no one is above the law. Therefore, I have no concern about the third point that Mr McCausland made, although I understand why he made it.

505. Without intending to sound at all dismissive, I put my trust in the PSNI and the Chief Constable to ensure that there is operational independence. The structures that have been put in place, such as the Policing Board, or any of the other structures that currently support policing in Northern Ireland, should give everybody that confidence. We all have a duty to tell people why they should have confidence in the Police Service. I do not see operational independence being compromised in any shape or form, whether responsibility for policing lies with me or with the Assembly and the Executive.

506. As for the second point about devolution being foisted on people, devolution will only happen if it has cross-community support. That cross-community support seems to be already clearly vocalised by the public. In one poll after another, people show confidence, not only in the Assembly and the Executive, but in the leadership of the First Minister and the Deputy First Minister. There is remarkable support among the public, which, dare I say, absolutely includes the unionist community.

507. Poll after poll of ordinary members of the public shows that they like what they see: they like the fact that leadership is being given by the leaders of Northern Ireland’s parties. They do not think that leadership is compromised because it is offered by leaders from two very different traditions; they warmly embrace it. That has been followed through, for example, in the opinion polls that were commissioned between March and August of this year, which show the public’s confidence about the Assembly’s assuming responsibility for policing and criminal justice.

508. Having said that, I do not underestimate for a moment that we are asking people to move on — what has been for some — an article of faith. I know what a big demand that is for many people. It is a demand that is made from both sides of the community. Equally, everything that we have seen so far supports the fact that the progress that has been made is absolutely justified. It would be a shame if impediments to further progress were based on fear, because the evidence so far has not supported those who articulated such fears. However, that is not to say that we should not continue with confidence-building measures.

509. In response to Nelson McCausland’s first point, devolution of policing and justice will not place an intolerable burden on the Assembly, although I understand why some may have that fear. My view is that it will be the making of the Assembly and the Executive. When politicians who are elected in Northern Ireland have the confidence to take that next step, the public will feel that something extremely important has happened, which will mean that the entire peace process and the security and prosperity of Northern Ireland is embedded and enshrined.

510. I understand why some people are cautious about taking that step, but I do not see that the assumption of such a step is also a reason to assume that this will be an intolerable burden. I think that it will be the making of the Assembly and the Executive.

511. Mr McCausland: My third point — and the first to which you responded — related to the confidence and integrity of the process, and there are two aspects to that. You addressed one aspect, although I remain unconvinced about your answer. However, the other aspect relates to the situation in which the person with responsibility for policing and justice is the same person who, the police may say, is guilty of a particular crime. That would discredit policing and justice in Northern Ireland.

512. Mr Woodward: That is a hypothetical situation.

513. Mr McCausland: It is perhaps not quite so hypothetical.

514. Mr Woodward: I will venture that it is entirely hypothetical. First, it is a matter for the politicians elected in Northern Ireland to decide who the justice Minister should be. Secondly, I reaffirm what I said earlier: one reason why there is public confidence in the PSNI is because Sir Hugh Orde, the Police Service, the Policing Board, the Ombudsman and all the institutions that stand together to make today’s policing service in Northern Ireland, are clear about one thing: nobody is above the law. The operational independence and integrity of the PSNI is the hallmark of the policing service, and that will not be compromised by transferring policing and criminal justice to the Assembly.

515. Mr Attwood: You are welcome, Secretary of State. I have two questions and two supplementary questions. The Lord Chief Justice has made crystal clear his views on how the relationship between the Minister of justice, the judiciary and the Court Service should be structured. However, the British Government are recommending that there should be an agency relationship between those bodies. Given that the Lord Chief Justice outlined the case for his preferred option quite firmly — as you said — will you explain why the agency model should be implemented?

516. Are you concerned that in creating and agreeing an arm’s-length relationship between the justice ministry and the Court Service, there is a risk that the judiciary will also have an arm’s-length relationship with the rest of the community in the North — not the political community — who have views on the administration of justice and who would like their relationship with the judiciary to be such that they can convey those views? Why is the Government’s model the right model given that this is such a big call for the Committee and the Assembly?

517. Mr Woodward: I am not reacting to the pressure of time; I am being realistic about the timescale in which we would like to continue the process of devolution. There have been many strong and convincing arguments about future structures, but there is no reason for a radical departure from existing structures as we prepare for devolution.

518. As the Committee knows, the agency model has been implemented in the Courts Service in England and Wales, and there has been no suggestion of interference with the independence of the judiciary there. Therefore, the Government believe that the agency model works. If policing and justice powers are devolved, it will be a matter for the Executive and the Assembly to address subsequent issues as they arise. I have every reason to believe that the model we are using guarantees independence, and I know that that is something that the Lord Chief Justice is concerned about maintaining in any future model for the transfer of responsibilities. The agency model will best achieve that.

519. However, once devolution takes place, the decision will be for the Assembly and the Executive to deliberate. As we prepare for that, whatever the timescale may be, it would not be prudent to embark on a fundamental change at this juncture.

520. Mr Attwood: Is there a danger that the arm’s-length relationship, which is appropriate between the judiciary and a Minister for justice, may become an arm’s-length relationship that is inappropriate for the wider community? Should there not be further engagement between the judiciary and the wider community? For example, is it not the case that although the judiciary is entitled to membership of the NIO’s criminal justice board, it does not have such membership?

521. Mr Woodward: We are still considering the detail of that. Let me try and reassure members on some core points. We see independence as central. That is why, first of all, the Justice (Northern Ireland) Act 2002 and the Constitutional Reform Act 2005 put a statutory obligation on Ministers and administrators to uphold that independence. Secondly, the 2002 Act set up a Judicial Appointments Commission to take independent decisions on appointments. Yesterday, the issue was raised of representation of the community in relation to those appointments. The Lord Chief Justice was keen to demonstrate to the Committee the importance of both recognising the observation and, equally, underlining the importance of appointments’ being made on merit. There is an important balance to be struck. It is testimony to the outstanding qualities of the Lord Chief Justice and the strength of the independence of the system that we are able to have that kind of dialogue, and that you are able to make the points that you make — and we may find ways to improve it.

522. I believe that the safeguards are there, and that the signing of the concordat before the transfer takes place will be one of the things that will be as important to the judicial system as it should be to everyone in Northern Ireland.

523. Mr Attwood: I agree with much of that. The Committee must get reassurance from you today about the future budgetary arrangements in the event of the devolution of justice and policing. We know about the proposals to cut back police numbers by 2010-11. Given the size of the police budget, which is 10% of the overall Budget, there is some concern that there will be clawback by the Treasury either in the event of devolution of justice and policing, or after three years of transitional arrangements. Can you reassure the Committee as best you can, bearing in mind that none of us can anticipate the future financial frameworks, that our budget lines are secure for the next three years and to the best possible extent thereafter?

524. A court case is under way in London to investigate the lethal shooting of Jean Charles de Menezes. What happens if there is a similar incident in Northern Ireland where MI5 directs police to carry out an operation, resulting in the death of a man? In those circumstances, how will the Assembly and the justice Minister be sighted on the outcome of a critical incident where there may be enormous public concern about what MI5 have or have not done? How will the Assembly, and in particular a justice Minister, be given a standing so that they can explain incidents to the community in the North in order to moderate public concerns?

525. The Chairperson: We are running out of time, and I want to bring in Raymond McCartney. A written response on the financial matters would be helpful, and you could confine your remarks to the second point that Alex raised, please.

526. Mr Woodward: I will, but with one qualification: I am working hard to secure a good financial settlement. We take policing very seriously, and as long as I have responsibility for that, I will fight for the best budget that I can possibly obtain.

527. Nonetheless, it is important to recognise that the policing budget that we have here is a good budget. I do not anticipate any cuts to the baseline, and I say that because it is terribly important that the press and everybody else hear that. There has been speculation that there might be such a cut, but that is not on the cards.

528. Equally, we are in a normalising situation, and it must be recognised that we have, in comparison with the rest of the United Kingdom, a police service with very large numbers of officers and resources. There is a very strong case for them being here, and I am not taking away from that case for one second. However, no one should doubt the fact that the policing budget in Northern Ireland is a good budget. There is one police officer in Northern Ireland for every 227 people, while in England and Wales, there is, on average, one officer for every 375 people. Everyone here must recognise that continuing to fund that level of policing — which we are going to do — is a generous settlement. It is unfortunate, sometimes, that one reads that it is not described as a generous settlement.

529. The Chairperson: Secretary of State, I am sorry to interrupt, but I am conscious of time.

530. We have written to Simon Marsh on a number of points, and it would be good to receive a written response to the second point that Alex Attwood raised, because it is quite important. It would be better to get a response in writing, in any event.

531. Mr McCartney: If the Committee and the Assembly agree on the powers to be transferred and, in time, agree on a suitable model, when will you be ready to declare to the public that everything is in place? In a sense, that would add to public confidence that everything is done and dusted. We would not want the reverse to happen, where we would say that we are ready for the transfer of powers and where you would tell us that you are not ready because the necessary structures have not been put in place.

532. Mr Woodward: I will ensure that if the Committee indicates to me on 27 March that it is going to recommend to the First Minister and the Deputy First Minister and the Executive that devolution of powers should take place in May, there will be no reason from within the Northern Ireland Office why that timetable cannot be met. We will be ready to complete devolution on 1 May.

533. The Chairperson: Secretary of State, as regards the point that Alex raised, we will send you a copy of the relevant extract from the Hansard report of the meeting so that you are clear about the issue under discussion.

534. Mr Woodward: If members have other questions that they would have like to have answered, again, I stand ready to answer them, either in writing or the next time the Committee asks me to appear before it. I am willing to help at any time.

535. The Chairperson: I will give you an idea of our forward timetable. We will continue our deliberations over the next few weeks, in particular, between the four main parties represented on the Committee. We will also receive evidence on Tuesday week from the PUP and the Alliance Party, and from the Director of Public Prosecutions. We welcome any additional information that you can provide to the Committee in written form.

536. Thank you and your colleagues for joining us this morning. We appreciate the candour with which you have addressed the Committee, and we hope that we, and the Assembly, will be in a position to report to you in due course.

537. Mr Woodward: Thank you.

9 October 2007

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

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

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

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

541. Are members content to proceed on that basis?

Members indicated assent.

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

543. The same rules apply to Standing Committees. Paragraph 4.16 of the Committee Staff Guide states:

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

544. The current quorum for this Committee is five members.

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

Members indicated assent.

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

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

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

Members indicated assent.

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

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

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

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

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

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

555. The Chairperson: Thank you. Your points are noted.

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

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

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

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

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

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

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

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

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

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

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

567. Alan, you wished to make a comment.

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

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

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

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

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

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

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

Members indicated assent.

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

576. The Chairperson: Thanks, Carál.

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

578. Mr G Robinson: Agreed.

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

580. Mr Attwood: What date is on that letter?

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

582. The next item for discussion is the treatment of offenders. The briefing paper of 28 June stated that:

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

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

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

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

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

587. The Chairperson: Yes, for scheduled offences.

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

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

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

Members indicated assent.

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

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

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

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

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

595. Mr Attwood: There are probably several broader issues. First, just for the record, I do not accept the contention in the paper that: “Responsibility for determining which weapons may be used by the police in public order situations will remain an operational decision for the Chief Constable”.

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

597. I did not notice it before, but the document also says that:

“Future powers to enable the army to operate in support of the police are under development since it is unlikely that these would be devolved.”

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

599. My third point is substantive. The document states that:

“appointments to the Parades Commission and its operation could be kept reserved, if that was the wish of the Assembly.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Members indicated assent.

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

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

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

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

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

And that is a quotation. [Laughter.]

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

619. Interesting — perhaps they can cover the South.

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

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

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

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

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

Members indicated assent.

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

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

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

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

626. The DUP and the UUP were content that:

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

627. That means that those matters are non-transferable.

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

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

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

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

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

629. That includes the excepted matters covered by the international agreement.

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

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

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

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

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

634. Mr McCartney: Yes.

635. Mr Attwood: Yes.

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

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

Members indicated assent.

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

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

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

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

641. We will, therefore, return to that issue.

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

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

644. Mr Attwood: And new agreements?

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

646. Mr Attwood: Will this appear in Hansard?

647. The Chairperson: It will, yes.

648. Mr Attwood: I particularly welcome that comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

Members indicated assent.

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

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

663. The Principal Clerk: Yes. International relations are excepted.

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

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

Members indicated assent.

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

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

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

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

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

16 October 2007

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

Witnesses:

Ms Dawn Purvis		Leader of the Progressive Unionist Party
Stewart Finn David Rose		Progressive Unionist Party
David Ford		Leader of the Allliance Party
Dr Stephen Farry		Alliance Party
Sir Alastair Fraser Ian Hearst Raymond Kitson		Public Prosecution Service

671. The Chairperson (Mr Donaldson): Good morning. I welcome Dawn Purvis, leader, and executive members David Rose and Stewart Finn, of the Progressive Unionist Party. You are very welcome to this Committee meeting. As you will be aware, the Committee is conducting an inquiry into the devolution of policing and justice matters. You have kindly provided the Committee with a written submission, and we look forward to hearing more from you this morning.

672. I now invite Members to declare any relevant interests before we proceed with the oral evidence session. I declare an interest as a member of the Privy Council and a member of the Northern Ireland Policing Board.

673. Mr G Robinson: I am a member of the Limavady District Policing Partnership.

674. The Chairperson: Given that no further interests have been declared, I shall proceed.

675. Dawn, we would like you to make a short opening statement, if you wish to do so, after which members will have the opportunity to ask questions. I should explain that previous witnesses who have appeared before the Committee as part of this inquiry have explored three particular components of the Committee’s terms of reference. The first is the matters to be transferred, and we welcome any views that you may have on the policing and justice matters that you believe should be transferred. The second component is ministerial models. Do you have any views on proposed models? In other words, do you think that there should be one or two Ministers or one or two Departments? The third component is the timing and preparations for devolution. Do you have a view on the timetable set out by the Government in the St Andrews Agreement? Do you have any views on the preparations that need to be made for the devolution of policing and justice powers?

676. Ms Purvis, I invite you to make your opening statement.

677. Ms Purvis (Leader of the Progressive Unionist Party): Thank you. I thank the Committee for inviting us to give evidence today. We hope that the work of the Committee will inform the public of the machinations involved in the devolution of policing and justice powers. I do not intend to make a long-winded statement as I hope that more details can be drawn out in the question-and-answer session.

678. Further to our submission to the Committee, it is the Progressive Unionist Party’s belief that all policing and justice matters should be devolved fully to the Northern Ireland Assembly, with the exception of those matters concerning national security and some of the more contentious issues. Although we would like devolution to occur as smoothly and as quickly as possible, we believe that sufficient confidence must be built within the community before that can happen. We therefore believe that the conditions for devolution are more important than the date for devolution. However, I must add that I believe that where there is a will, there is a way. If sufficient consensus can be reached — not only among the parties, but among the public — we believe that that devolution can happen sooner rather than later.

679. We were not overly struck by any of the departmental models that the NIO proposed in its consultation paper. We believe that, in the longer term, there should be a single Department with a single Minister. However, given the lack of public confidence at the moment, and in order to increase cross-community confidence and accountability in the Department, we believe that, at this point, there should be a single Department headed by two Ministers, one nationalist and one unionist. The posts should be allocated under the d’Hondt system, with ministerial positions being deemed filled once Ministers have been selected by both unionists and nationalists. I hope that that clarifies my party’s position on the matter, and I hope that we can explore some of the issues in greater detail during the question-and-answer session.

680. The Chairperson: Thank you very much, Dawn.

681. You said that your party’s preference was for the devolution of most policing and justice matters, and you mentioned contentious issues and national security. The national security issue is obviously very clear.

682. Do you have examples of what you think may be contentious issues, or have you done any work on identifying what contentious issues that you feel should not be transferred?

683. Ms Purvis: Although the PUP would like to see 50:50 recruitment to the PSNI coming to an end in 2010-11, as Patten envisaged in his report, given the lack of consensus amongst the parties over that issue, we believe that it would probably be better for that to remain a reserved matter.

684. We know that the parades review body is considering the whole issue of parading, and the need for a Parades Commission. We are of the firm belief that the Parades Commission should be scrapped. However, again, given that there is little consensus amongst the parties as to whether the Parades Commission should continue to exist, it is probably better that that also remains a reserved matter until such times as the parades review body publish their report and make recommendations that people can buy in to.

685. The Chairperson: You also touched on the departmental model and your preference in the long term for a single Department and Minister to oversee policing and justice matters, but that initially there should be a single Department with two Ministers who would be appointed by the D’Hondt system. Is it your view that those two Ministers would be co-equals, or that there should be a Minister and a junior Minister? Do you have any preference for the initial departmental/ministerial model?

686. Ms Purvis: Yes, we believe that they should be co-equals, and should share responsibility for the Department and make joint decisions.

687. The Chairperson: In the longer term, if there is to be a single Department with a single Minister, do you think that that Minister should continue to be appointed by the D’Hondt system, or by another method?

688. Ms Purvis: Yes, we believe that a Minister should be appointed by the D’Hondt system, in keeping with the normal pick of Departments when that method is used.

689. Mr O’Dowd: Thank you for your presentation and written submission, Dawn. An area of interest to me — and it is an area that we, as republicans, have to examine — is the remarks made or the stance taken by some unionist politicians that there needs to be sufficient confidence in the unionist community before policing and justice matters can be devolved. At times, some unionist politicians do their community a great disservice because they almost portray them as having no vision or confidence in their own position. I am not being patronising when I say that; that is not the image or the view that I have of unionism, certainly when their history and their present position is considered.

690. What is your view of the position that has been taken by some unionist politicians? I know that you have said that where there is a will, there is a way.

691. That is an interesting comment. As a grassroots based politician, and a grassroots based political party, what do you believe the mood to be in the unionist community? Furthermore, what measures can we, as republicans, and the wider political base, take to ensure that confidence in the unionist community and the wider community in general is enhanced?

692. Ms Purvis: As I said, where there is a will, there is a way. You probably do not get to hear the comments that I get to hear from the loyalist working-class community or the wider unionist community. The epitome of the comments that I hear is that Sinn Féin are fifth-columnists who want to destroy the Ministry, policing, and the criminal justice system.

693. We have all heard the comments about Gerry Kelly becoming the Minister for policing —quite frankly, that frightens people. There are lots of measures that can be taken to try to alleviate those fears. The work of this Committee is one way to do that because people do not understand how policing functions in Northern Ireland, and they do not understand how the criminal justice system functions in Northern Ireland.

694. For example, a Minister with responsibility policing will be purely in charge of the budget; the Chief Constable will continue to have operational independence and to be in charge of what happens daily with the PSNI. Not a lot of people in the public understand how policing actually works, how a Minister would function regarding policing, or how a Minister would function regarding the criminal justice system.

695. There must be more clarity, and more information must be put into in the public domain to reassure people about how the system operates. As I mentioned at my party conference on Saturday, people must have confidence in the structures of state and the Assembly.

696. Although the media portray corporate agreement in the Executive at almost every turn, the public must see parties falling out, making up and moving on. People need to see a sign of maturity, because although there may be disagreements about ministerial decisions, that is the cut and thrust of politics. As parties agree to move on, that will be a sign of Northern Ireland moving on to a more peaceful and stable future.

697. Mr O’Dowd: There may, in fact, be a disagreement in the Chamber now about a ministerial statement.

698. I agree with that interesting point that parties should be able to fall out, apportion blame and move on in a mature way. To summarise, parties must start to consider what policing means to our local communities and what the devolution of policing and justice will mean for us. Is the unionist community, or society in general, having that debate?

699. Ms Purvis: No, but the debate must happen.

700. Mr G Robinson: You indicated in your submission that the conditions for the devolution of policing and justice are more important than the date. Should powers be devolved by the May deadline? Is there sufficient community confidence for that to happen?

701. Ms Purvis: If there is the will and sufficient confidence, it can happen by 8 May 2008. It remains to be seen whether there is the political will to ensure that it does. The work of this Committee, more public information, and a demonstration of maturity by the Executive can all help to create the conditions whereby there is sufficient confidence.

702. There will never be total confidence in the devolution of policing and justice, but we must go some way to allaying the fears of the community to ensure that it happens.

703. Mr McFarland: You mentioned the operational independence of the Chief Constable. Traditionally, the Northern Ireland Court Service has been at arm’s length and the prison service has operated as an agency. I do not know whether you read the transcript but when the Lord Chief Justice appeared before this Committee, he advocated a model that had no connection with the Minister. Therefore, the Court Service would not merely be at arm’s length, but completely separate. Should it be that far distanced from ministerial control or should it stay roughly where it is now?

704. Ms Purvis: To be honest, I have not examined how the Scottish or Irish models work, with their court services being the control of the Lord Chief Justice. However, I have some initial concerns about how the victims of, and witnesses to, crime are treated by the judiciary and the Northern Ireland Court Service.

705. Recently, a 5-year strategy was published, which is designed to give the victims and witnesses a greater voice in the Court Service. However, the traditional view is that judges are aloof and separated from reality. To remove the Court Service even further away from the functions of society and political influence causes me some concern. The Lord Chief Justice has made great strides during his term in office in an attempt to reach out and relate more with what happens in society. Although I have concerns, the model that he suggests should be examined in more detail.

706. Mr Attwood: I want to develop Alan’s point. Objectively, you are right that the judiciary has been too removed from the rest of society and that there must be a much more appropriate relationship.

707. If that is what you are indicating, I would certainly concur with that in objective terms. However, I have a concern — and maybe it goes back to some of the comments you made to John O’Dowd — that there will be a tendency among one or two parties to try to interfere a bit too much with the proper administration of policing and justice, and that they will try to interfere inappropriately.

708. Are you concerned that there might be one or two parties that might assume too much power and authority if they were to assume a justice ministry? Given that you were a member of the Policing Board until recently, would you be concerned that in those circumstances the independence of the Policing Board, the policing institutions, etc, could be compromised in a way that would undermine the confidence that has been developed over the past five or six years, which includes PUP membership on the Policing Board.

709. Ms Purvis: Are you referring to Ministers influencing politically the Courts Service or the Probation Board?

710. Mr Attwood: Or Police Service.

711. Ms Purvis: Or the Police Service? It remains to be seen how they could have any influence. Taking policing and justice as one side of the issue, there is the Chief Constable, who has operational independence and there is the Policing Board, which has oversight and accountability of the Chief Constable and his top team. What is a Minister’s role in policing? Is it purely to fulfil the role that the NIO and the Secretary of State currently have? If that is the case, it would be legislative and it would look after the financial budget.

712. However, I think that the Policing Board must remain in place as the organisation with ultimate oversight of the PSNI. The Policing Board could then inform the work of the Minister — as a tool of the Department, if you like — and, therefore, the PSNI would remain operationally independent from the Department. Similarly, the agencies that function within the criminal justice system, as they do now — and I know that Alan said that they function at arm’s length —would come in again within a Department. Ultimately, the Department has responsibility for those agencies, the budgets of those agencies and how they function, but there is a certain degree of independence within those agencies and how they run, and that should be protected.

713. Mr Attwood: I agree, and I think that they should be protected. However, I do not think that the Policing Board should be a tool of the Minister or Ministers — whoever they might be.

714. You say that you support the principle of a shared ministry. What model of shared ministry would the PUP support? Should there be two equal Ministers with equal authority, or should there be a senior Minister and a junior Minister — as proposed by the British Government? What model, or variation of those models, would the PUP be minded to support?

715. Ms Purvis: I have already answered that question. The PUP would support two Ministers of equal stature.

716. Mr Attwood: I am sorry; my mind must have been elsewhere. I apologise.

717. The Chairperson: Dawn, I want to return again to the contentious issues we referred to earlier. The Committee is looking at whether there could be sufficient safeguards built into the system — be it in the Department, the Assembly or