Official Report (Hansard)

Session: 2008/2009

Date: 28 April 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr

The Chairperson (Mr Spratt):

We will now discuss the devolution of policing and justice. I declare that I am a member of the Northern Ireland Policing Board.

Mr McCausland:

I am a member of the Belfast District Policing Partnership.

The Chairperson

Ian Paisley Jnr has left the room.

We will now discuss the category 2 list of issues. The original issue C relates to the Serious Organised Crime Agency (SOCA) and the security services. I remind members that a letter was sent to the Secretary of State on that issue, and we are awaiting his response. Are members happy to park that issue?

Members indicated assent.

The Chairperson:

The position is similar with regard to new issue D, which deals with the North/South policing and justice agreements, and the question of a justice sector of the North/South Ministerial Council. A letter was sent to the Secretary of State in relation to that on 22 April, as was the letter in relation to the previous matter. Are members content to park that issue?

Members indicated assent.

The Chairperson:

New issue E questions the extent of financial provisions for a Department that would exercise the range of policing and justice functions, how, when and by whom the financial negotiations with the NIO should be conducted, and whether a budget should be ring-fenced. A number of those issues are currently being dealt with.

Bearing in mind the discussion that we had during the closed session of the meeting, the specialist adviser will carry out some additional work on a lot of those issues. It may be putting party representatives on the spot to ask for views now, given that we are awaiting some answers on those matters. Are members content to park that issue?

Members indicated assent.

The Chairperson:

New issue F asks what, if any, consideration there should be of the Ashdown report on parading, whether there is a need for further clarity on the powers to be devolved, and, if so, whether they should include matters relating to the Public Processions (Northern Ireland) Act 1989, flags and symbols, or recruitment to the PSNI. Again, that issue has been raised with the Secretary of State in the letter of 22 April, and we await a reply on that. Are members agreed to park that issue?

Members indicated assent.

The Chairperson:

We will move on to discuss new issue G. In the context of recommendation 26 of the Committee’s original report, to which Department should the Public Prosecution Service (PPS) be attached?

Mr Hamilton:

My party’s position on that issue has not changed from that stated last week. It is a non-ministerial body, so the only issues are budgetary ones. I reiterate our suggestion that the PPS should be attached to the Department of Finance and Personnel (DFP).

Mr McCartney:

Our position remains that it should be attached to the Office of the First Minister and deputy First Minister (OFMDFM).

Mr McFarland:

Our party’s position is that it should be attached to DFP. However, we were hoping to receive some further guidance from the Republic of Ireland and Scotland after visits to ascertain how it was done there. Subject to any dramatic changes, our position remains the same.

Mr Attwood:

I would like to ask Simon Hamilton why the PPS should be attached to DFP. Why is the PPS such a different creature from all the other justice agencies that will be the responsibility of the justice Department? Why is the prosecution service unique, and why must it be attached to DFP as opposed to another Department, such as the justice Department? The Probation Board, the Policing Board, nor the PSNI have raised any problems with being attached to the justice Department. Given the range of responsibilities, and the sensitivities around those issues, why must the PPS be attached to DFP, whereas the police and the Policing Board need not be?

Mr Hamilton:

I understand the points raised that Alex raised, and I am happy to further explore those issues.

I recall from some of the evidence, and some of the suggestions in the PPS submissions, that concern has been expressed in the past about potential conflicts of interest. Our argument for the PPS being in DFP is that if, in the future, it is a non-ministerial body, and there is an argument over budgetary matters, the persuasion of its own parent Department, for want of a better phrase, would be easier than taking the more convoluted route of going through another Department or office.

We are happy to seek the experience of others on how that has worked in practice, as Alan mentioned, but we are not hung up on how it is done. Placing the PPS in DFP is a neutral suggestion. That would solidify the aspect of its being non-ministerial, and get away from any confusion that there might be over any conflict of interest.

The persuasion of its own parent Department on budgetary matters may be more straightforward than might otherwise be the case. I am happy to examine and explore the idea further, and look at it in the context of experiences elsewhere.

Mr Attwood:

It might be useful to spend 10 or 15 minutes doing that some time, because the Chief Constable has not made any point of that nature in respect of his responsibilities — for instance, that the funding Department of the PPS being the justice Department represents a conflict of interest, interferes with his responsibilities or compromises him in some way. The Chief Constable does not make that point at all; it does not even register on his radar.

No one has raised any issue so far about where policing should be placed in terms of its funding authority. I find it unusual that the PPS should be treated differently and separately. I understand that there may be some issues among one or two parties that the PPS funding authority would be OFMDFM.

We had that problem before when one party raised an issue about the appointment of judges, and a residual power that fell to OFMDFM. I could understand if that was the point that was being made, but that point has not been made. That is why I am even more curious why the PPS, of all bodies, should go to DFP. There is no precedent for that. There is no compelling organisational or management argument for it. It seems to me that if we explore that matter a bit more, we could possibly convince people that if there are objections in respect of the PPS going to OFMDFM, it should go to the justice Department.

Mr Hamilton:

We are happy to discuss that at a later point if some issues are clarified. I certainly would not close my ears to that discussion.

The Chairperson:

Are we happy, then, to have that discussion at a later stage?

Mr McFarland:

Part of the reason that this issue has arisen is that there is sensitivity over it. As I recall, Alex has been very sensitive in the past about whether people were being prosecuted, and whether there was interference and public statements being issued. The Director of Public Prosecutions (DPP) expressed fairly strong reservations when he appeared before the Committee — not the last time, but on the previous occasion — about the need for the absolute independence of that body; to have a home where there was no chance of anyone interfering with its budget or influencing matters by cutting back on its administrative support. That was one of the points that were made, and I am sure that that is included in the report of the meeting.

Given that sensitivity, there is an issue about whether it might be possible to influence where the PPS is placed. We think that it should initially be put somewhere where no one would have a reason to interfere with it, which they would not if it were an administrative area within DFP. It is possible that our visit to Scotland and Dublin may show us a better place to put it. Possibly, with a bit of experience, it might go somewhere else. To ensure its independence, as the DPP himself initially said, it seems sensible to put it in DFP to remove all accusations of influence or interference with it.

Mr Attwood:

But the DPP is in a minority of one. None of the other heads of justice agencies in the North raised any issues about their responsibilities or about the funding responsibilities falling to the Department of justice. The Director of Public Prosecutions seemed to make the point that he was unique among the chief executives of the justice agencies in the North. Therefore, I would draw conclusions about what everyone else seems to be content with rather than what the Director of Public Prosecutions is content with.

In any case, going to DFP does not solve the problem. Why, if there was going to be an attempt to interfere with the PPS, would it be more or less likely to come from DFP than from the justice Minister? The point that was made in respect of concerns about interference in the prosecution of cases is a fair one, except, obviously, that responsibility for those cases of concern is not going to be devolved to a Northern Ireland justice Minister or the Executive anyway. Responsibility for all the terror cases is going to be retained by London. The PPS responsibility for such cases will be to London through the Advocate General, not to us through the Attorney General.

The Chairperson:

OK. Perhaps parties can hold some discussions and come back to explore the issue further. Are members content with that?

Members indicated assent.

The Chairperson:

We will now move to issue I: in relation to recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?

Mr Hamilton:

I restate the DUP position as outlined last week, which is that there is a need for sensitivity and independence, and that the role should be retained by the Northern Ireland Office and the Secretary of State.

Mr McCartney:

My party’s position is the same as it was last time — that the responsibility should lie with the Office of the First Minister and deputy First Minister.

Mr McFarland:

It depends on where the Eames/Bradley process ends up. If the role of rooting around in the past is removed from the Police Ombudsman, it can sit with OFMDFM. If that role is retained — the idea of a one-sided truth commission — the responsibility to decide who should give advice and who should get it must lie with the Secretary of State.

Mr Attwood:

That function should not be retained by the NIO. It should fall to the devolved institutions in the form of OFMDFM. However, we are prepared to be convinced as to whether it should pass to the Department of justice or not.

The Chairperson:

According to my adding up, there is no consensus. Are members agreed that there is no consensus and that we should return to that issue?

Members indicated assent.

The Chairperson:

We will now move to issue J: what procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?

This was an additional question, which was introduced to the category 2 list following a decision on 25 November 2008 to relocate it from the category 1 list as issue O.

Mr Hamilton:

We provisionally agreed a position on that matter, did we not? This is issue J, which concerns Committee relationships. I believe that we agreed that the relationships would be of the regular order.

Mr McCartney:

That is agreed.

Mr Attwood:

It is provisionally agreed.

Mr Attwood:

May I ask Mr Hamilton another question? Why does the DUP believe that the Minister should have exactly the same relationship with the Assembly and the Committee as every other Minister, when it has been arguing that the Minister would not be a fully-fledged Minister on a par with every other Minister at the Executive table? To treat a Minister in the same way as other Ministers for one purpose, but treat him or her differently for another purpose, would create a lot of tension.

Mr Hamilton:

I am not sure that Alex’s characterisation of my party’s position is accurate. I do not see any reason why a justice Minister’s relationship with a Committee would be any different in an operational sense from that of any other Minister. His comments about the Executive are not an entirely accurate reflection of the position that my party has put forward on that matter.

The Chairperson:

That issue has largely been sorted, but there has not been a final stamp of approval.

Mr McFarland:

Presumably, the reason that there has not been a final stamp of approval is that, as Alex has said, it depends on the outcome of issue K. It could be argued that how the Minister will operate within the Executive has a direct relationship with how the Minister will operate with the Assembly and other agencies. I presume that the issue has been provisionally parked due to the fact that it is logical to deal with it and issue K together. That can happen when we receive clarity on parties’ position on issue K.

The Chairperson:

Could we return to and agree that issue after our visits to the various legislatures?

Members indicated assent.

The Chairperson:

We now move to issue K: what would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?

Mr Hamilton:

If the Committee agrees, I am happy to take more time to resolve issue K.

Mr McCartney:

The Minister’s position in, and relationship with, the Executive should be the same as those of all other Ministers. However, we are willing to return to this matter.

Mr McFarland:

Our party’s view is that the Minister should operate in the same way as every other Minister.

Mr Attwood:

I refer to the position that our party has outlined previously, which is that the Minister should be a fully fledged Minister with all the entitlements that that brings. I wish to ask Simon another question: why have we not —

The Chairperson:

This session is not a cross-examination. Each party should state its position on each issue. I am not going to allow any more such questions. I ask you to state your party’s position on issue K.

Mr Attwood:

The Committee will run out of credibility if, week after week, we rehearse exactly the same positions on exactly the same issues. We get no further insight from the main parties, the DUP and Sinn Féin, on the outstanding matters of the deal on the devolution of policing and justice. Frankly, it is no longer good enough that we spend week after week rehearsing well-worn positions without being given any clarity from other parties on when those matters may be resolved.

It is disrespectful to the authority of an Assembly Committee that, week after week, we have to listen to people saying that they wish to revisit certain issues. That is not a credible position for us to be in six months after the DUP and Sinn Féin worked out a deal on the devolution of policing and justice. That may well be the position that the DUP and Sinn Féin want to be in, and those parties will have to answer for that. However, I do not see why other Committee members should have to sit here, waiting until the cows come home, because no cow ever comes home.

With all due respect to you, Chairman, it is absolutely right that I, on behalf of the SDLP and the people that we democratically represent, ask other parties questions to which we have not yet received any answers. Equally, it is your duty as the Chairperson to bring that to the attention of other parties. It is not good enough that, after six months, we are revisiting the same issues without having been given any clarity or answers. It is not a proper way for business to be conducted.

Mr Hamilton:

I am happy —

The Chairperson:

Let me answer first, Simon; I am happy to let you in after that.

A great amount of progress has been made, and it is wrong for Mr Attwood to sit there and portray that that is not the case. There was a fair degree of movement even in the financial discussions that we had in closed session today. Some of the issues now hinge on replies that we are waiting to receive. We have sent the relevant letters, and it may be easier to resolve some of the issues when the replies to those letters arrive. I do not accept that there has been no progress. There has always been a process by which each party is invited to state its position on each issue until those are cleared from the agenda. I have done that systematically. It is also my job to keep issues on the agenda that need to be kept on the agenda, and it is for parties to indicate their positions, and they have done so.

Mr Hamilton:

I agree that progress has been made. That is a well-recognised aspect of our discussions on the devolution of policing and justice. There are inherent difficulties, but progress has been made. The issue may not be progressing at a pace that everybody likes, but many of the gaps have been bridged, and a lot of progress has been made on areas where many “wise folk” might have thought that it would have been impossible.

Alex may not agree with that analysis, but my party shares the view that there are great sensitivities around many of these issues, including this particular point. He may not agree with that, but that is the position that we take, and it is the position to which we hold, and, if it takes some time to resolve those issues to our satisfaction, we will take that time. That may not be to Alex’s satisfaction, and it may not happen at the pace that he wants it to, but it is much better for the Assembly that the issues are resolved to our satisfaction, rather than rushing them and getting them wrong. That is our party’s position. Work is ongoing, and, as I said at the start, there are issues of great difficulty inherent in the whole exercise. That is why some issues will take longer to resolve than others. We will take that time, and we will get it right, rather than rushing it and getting it wrong.

Mr McFarland:

Progress has been made, albeit slow, so I sympathise with Alex. However, there is an issue around how fast the issue can progress. It is slightly confusing, but it is clear that there is negotiation going on outside the Committee involving Sinn Féin, which wants a non-DUP Minister — it does not want a “half Minister” under control — and “Lord Ford” and the Alliance Party over whether it will take the post and how it is all going to work. The Committee is not part of that, and, presumably, we are obliged to wait until those discussions have taken place and the white smoke appears.

The Chairperson:

Nelson McFarland — sorry; Nelson McCausland.

Mr McCausland:

Can I sue you for that? [Laughter.] I am also interested in the fact that Mr Ford has now been elevated.

The Chairperson:

I saw white smoke outside and was wondering whether that announcement has been made. [Laughter.]

Mr McCausland:

I am interested in the fact that Alan McFarland has elevated Mr Ford and given him a peerage. He rejected David Trimble’s peerage, but nevertheless. The point was well made that there is huge sensitivity around the issue, and nobody is more aware of it, or should be more aware of it, than Alex Attwood. The issues are also complex. We received a financial statement and other information this morning, and it is clear that the scope and scale of the problems that we face are only too apparent. Therefore, I take the view that we are making progress, albeit slow, but we should just keep at it, rather than getting irritable about these things.

Mr McCartney:

Every week, we come to the Committee and put our position on the table, and we will continue to do so.

Mr Attwood:

There are six or seven issues under the category 2 list of issues in appendix 1 on which, for more than four months, we have made no progress at all.

The Chairperson:

I do not accept that. Progress has been made, because the relevant letters have been sent, and we have agreed to examine the financial issues and other matters. I have already clarified that. I hear what you are saying, and I have heard you saying it before.

Mr Attwood:

I will conclude my point, so that you can fully understand what I am saying. There are six or seven issues in the category two list of issues in appendix 1. Since 27 January, we have not got to the green-ink-handwriting point of resolving those issues. One of those matters touches on the financial issues. We have a lot more information, which Nelson referred to, and it will be very interesting how that information now gets handled.

However, five or six other non-financial issues — involving decisions about where authority resides, the Minister’s powers, relationships with the Committee, and so on — have not been resolved in the past four months. I do not believe that they will be resolved in the next four weeks. Given the current financial figures and wider economic environment, it would not surprise me if that becomes an even bigger hurdle to the devolution of justice and policing.

Why can there not be some clarity and closure on even one or two of those five or six matters? What is the big impediment? Why is that so difficult? The Committee knows that it is a sensitive area. For 153 days, the Government was suspended because of that sensitivity, and other issues. Why are we now, almost 153 days later, apparently no nearer closure on those matters? That is not credible.

The Chairperson:

It has already been stated, with the support of members of the Committee, that matters have moved forward, and continue to do so. Mr Attwood says that he keeps hearing the same things, but I keep hearing the same thing from his end of the table.

There is certainly no consensus on the matter of issue K. Therefore, does the Committee agree to park issue K and return to it later?

Members indicated assent.

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