Official Report (Hansard)

Session: 2008/2009

Date: 10 March 2009

Members present for all or part of the proceedings:

Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Alan McFarland


Sir Alasdair Fraser )
Mr Ian Hearst ) Public Prosecution Service for Northern Ireland
Mr Jimmy Scholes )

Also in attendance:

Mr Victor Hewitt ) Specialist adviser

The Deputy Chairperson (Mr McCartney):

Before I welcome the witnesses to today’s proceedings, I apologise on behalf of the Committee for the delay. I am sure that everyone can appreciate that the events of Saturday night and last night have disrupted business. A number of members of this Committee, including the Chairperson, have had to attend an emergency meeting of the Policing Board.

I welcome Sir Alasdair Fraser, Mr Ian Hearst and Mr Jimmy Scholes from the Public Prosecution Service to today’s proceedings. You will be aware from previous evidence sessions that we expect you to make a short presentation, at the end of which I will invite members to ask questions.

Sir Alasdair Fraser (Public Prosecution Service for Northern Ireland):

Thank you very much, Chairperson. We fully understand the exceptional circumstances that have sadly arisen. I welcome the opportunity to speak today on the work undertaken to address the financial implications of devolving policing and justice powers. With me today are Jimmy Scholes, the acting deputy director of the Public Prosecution Service, and Ian Hearst, an assistant director, who has responsibility for finance.

My service made a submission to the Committee in response to the specific issues raised about the finance that is available to the Public Prosecution Service. I hope that you will find it helpful if I explain a little of the background to the Public Prosecution Service. The service was established in June 2005 by the Justice ( Northern Ireland) Act 2002, which defined the statutory duties and commitments and the legislative framework within which it must provide its services. It is the principal prosecuting authority in Northern Ireland and is responsible for all criminal cases that the Department of the Director of Public Prosecutions for Northern Ireland and the Police Service of Northern Ireland prosecuted previously. At present, our total caseload is just under 56,000 cases.

Since 2005, we have been building a regional service. We have established a headquarters in Belfast and regional offices in Lisburn, Ballymena and Omagh. Yesterday, we received a new office in Londonderry, and I am very happy that, after a number of years, we are able to return to Derry. I am anxious to secure premises in Newry. Funds have already been committed to achieving that, and I contend that those funds should remain available so that, if premises become available, we can fulfill our desire to open premises in that city. Along with the development of the estate, and in line with the roll-out of the service, we have carried out a recruitment exercise, which has resulted in an increase in our staffing levels from 170 to 570 — our full complement will be in and around 610 persons.

I hope that the background that I have provided goes some way to explaining the year-on-year increase in expenditure, including revenue and capital, as set out in the table at section (D) of our submission. Now that we have reached what might be described as an almost steady state concerning accommodation and staffing, the service can accurately predict and control 75% of its costs. The remaining 25% of costs relate to expenditure on counsel fees.

I understand that, last week, the Committee heard evidence from the Court Service and from the Legal Services Commission on the pressures that they face owing to mounting legal costs and the unpredictability of those costs. My service is not immune from those pressures either. We have sought to address the issue of counsel fees in the context of a challenging 2007 comprehensive spending review (CSR). That review introduced a number of measures, including restricting the use of senior counsel to a limited number of cases; using our own staff in the Magistrate’s Court and, increasingly, in the County Court; and the careful management of counsel fees paid, particularly in high-cost cases.

We have had to meet a number of other pressures, and, in order to do so, we have had to freeze vacancies among administrative grades. By not recruiting 40 staff when vacancies arose, it was possible for the service to meet a pressure from counsel fees of £1·15 million. That pressure will continue during the current CSR period. In our submission, we have identified other pressures, including costs that may be awarded against the prosecution, and costs associated with preparing the service for its status as a non-ministerial department. We have included a bid of £150,000 to assist with the resource implications of the latter. That money would cover the anticipated costs arising from our having such status and would go towards, for example, establishing a private office, reinforcing our finance team and securing internal audit services to support the Public Prosecution Service as it faces the increased scrutiny that will arise on devolution.

The submission also provides details of further pressures anticipated to arise in future but for which a bid at this time has not been made; namely, the service’s response to the Saville Inquiry, the findings of which are now due to be published in 2009, and new work that will arise from the Serious Crime Act 2007.

In conclusion, I seek to assure the Committee that, although the Public Prosecution Service is a relatively young organisation approaching a steady state, the underlying costs and pressures that contribute to its funding requirements are now better understood and quantified.

In giving evidence, I am fully aware of the financial constraints that apply and that lie ahead. I have sought to identify the significant issues that we will face, and to disclose fully to the Committee any concerns that I hold. I am grateful for the opportunity to speak to the Committee.

The Deputy Chairperson:

Thank you. I note that no Committee members in attendance at present have any interests to declare.

In your submission, you mention measures to limit senior counsel in certain cases. Can you give me some impression of what that will cost to achieve, and what will be the quality of justice be as a result?

Sir Alasdair Fraser:

At the beginning of the financial year — looking at what I described as the challenging budget that we face — our management committee decided that it was important that the Public Prosecution Service took immediate steps to ensure that it could live within budget. One of those factors was a decision to restrict and limit the use of senior counsel. It was the experience here over many years that senior counsel was engaged, both by the prosecution and the defence, in cases in which they would not be instructed in England. I suspect that that practice grew by reason of magistrates being willing to issue a certificate for two counsels to defendants, and the prosecution’s wishing to present itself as treating the case in an equal way in instructing senior counsel.

I consider that no longer to be appropriate. I have sought to limit the instruction of senior counsel to various categories of case, which include murder, manslaughter, serious sexual offences such as rape, and serious motoring offences such as causing death by dangerous driving. I have chosen those cases because, principally, they encapsulate the more serious cases that proceed to trial, and they also, in my experience, are cases that cause considerable concern across the community.

I am not in a position to give the Committee a precise figure on savings. However, I am certain, by reason of fact, that the Public Prosecution Service can live within budget, having not filled a number of vacancies, as a result of which we have made significant savings. I can provide the Committee with a figure at the end of the financial year.

The Deputy Chairperson:

You have talked about your budget’s unpredictability. Do you feel that there will be an increase in the very-high-cost criminal cases, and what pressure would that put on your budget?

Sir Alasdair Fraser:

The fundamental problem is that my service is demand-driven. It does not have the facility to use the normal budgetary techniques of prioritising or cutting down work. That option is not available to us. I suspect that the Public Prosecution Service is rather like the Fire and Rescue Service — if there is a fire, we attend it. It is difficult to predict in a year’s time what the number of high-cost cases will be.

As matters stand, and as the sad events that have occurred in the course of the past few days demonstrate, it would be reasonable to assume that the present level of high-cost cases will continue. Our problem is in providing accurate accruals in order to provide reasonable costings to the Treasury or, on devolution, to the Department of Finance and Personnel.

A number of variables may or may not arise in each case. For example, an expected plea may become a contest, and an expected contest may become a plea. There may be unanticipated difficulties in cases, or an extraordinary event may cause slippage. Recently, for example, the profession was concerned about the level of remuneration that was being paid, and a number of serious cases that perhaps should have been tried this year were moved into next year.

All those factors may influence costs, and they are not included in the 75% of costs that we can master. Those other costs are much more fluid.

The Deputy Chairperson:

What impact has the Criminal Justice Order 2008 had on your workload, and how do you envisage it will affect the Public Prosecution Service?

Sir Alasdair Fraser:

If you have the Serious Crime Act 2007 in mind, two matters arise from that piece of legislation, the more serious of which for us is that Parliament has given us a statutory responsibility for civil recovery. When deciding whether to prosecute, the prosecutor may conclude that the evidence is insufficient to support a prosecution but sufficient to support a civil action against the putative defendant. In those circumstances, we must acquire the skills of a civil practitioner in order to pursue that action through the High Court.

The possibility of such an arrangement is an unusual development, and only two agencies are empowered to act in such a manner: the Serious Organised Crime Agency (SOCA); and the Public Prosecution Service. At present, SOCA pursues civil recovery. However, within a limited period — we have not been informed of its duration — responsibility for what, in effect, the Assets Recovery Agency was doing will pass to the Public Prosecution Service.

Serious crime prevention orders is another aspect of the 2007 Act. It is now open for the prosecution to apply for such an order in the High Court as a civil matter, or, on conviction, in the Crown Court. The orders, which cover a range of conduct, are a significant development. We recently applied for, and obtained, the first such order in the United Kingdom. We obtained a second order relating to persons involved in the smuggling of fuel, and the court ordered that that person, or persons, could not become involved in the purchase, sale, possession or transmission of fuel for a period of five years. That is a new area of work that will develop over two or three years.

The Deputy Chairperson:

We may return to that subject at the end.

Mrs Hanna:

Good morning and welcome. What reform is necessary to control counsel fees? For instance, is there a cap on fees? Will you explain the charging scale for counsel?

Sir Alasdair Fraser:

I have been director for 20 years, and there has never been a year in which there was not a difficulty in settling fees with the Bar. My service has acted quite properly, and it settles fees largely on a case-by-case basis. Scales of fees are applied to about 15% of cases, and there is a read-down from that scale. However, the remaining 85% of cases are examined individually by a senior member of the department, who may be in discussion with counsel.

It is a distinguishing feature here that counsel negotiates directly on its fees, whereas in England the clerk to chambers carries out those negotiations. Owing to the fact that counsel negotiates directly here, I have always required those negotiations to be conducted by a senior member of staff on my behalf, in order to ensure equality of arms and that my staff are not overborne in their responsibility to protect the public purse.

We consider that we pay fees that are affordable, fair and reasonable for work done, and it is on that basis that we approach the formulation of a fee in each case. Extraneous factors may influence that decision; for example, 2005 statutory rules for legal aid set out fees in the form of an order. Obviously, we are now aware what the defence pays, and I accept that that may have had an inflationary effect on prosecution fees. The Bar would contend that the position has always been that the prosecution, historically and currently, pays less than the defence is paid out of the legal-aid fund, despite the fact that public moneys are furnished through both organisations.

This legislature may wish to consider whether the current arrangements are desirable or whether an opportunity exists for a more radical approach to be taken, perhaps with a central authority’s taking responsibility for fees. However, in this rather lengthy answer, I am seeking to explain how we assess individual fees at senior level and take decisions, and to outline the difficulties that we face. We have in hand a working party — of which the Court Service is an observer — to prepare a graduated scale of fees, if that is the system that we wish to adopt.

We are looking closely at the Crown Prosecution Service in England to ascertain whether we consider its arrangements to be effective and affordable. If we adopt its arrangements, that will bring a new transparency to the basis on which fees are calculated and paid. Of my own volition and without being asked, I have decided to publish annually the earnings of counsel whom I instruct. The public should be able to reassure itself that there is openness and accountability, and that what is being done is not being done behind closed doors.

Mrs Hanna:

Thank you very much. I was going to ask you whether you planned to take a different approach, but you have answered that question to some extent. However, I am still unsure whether you feel that adopting England’s arrangements would be more financially efficient.

Would you ever consider capping fees?

Sir Alasdair Fraser:

The idea of capping fees is not something that one can rule out. However, as a prosecutor, I would say to the Minister responsible that that action would be more appropriately taken by a Minister.

The figures that the Committee received last week on the average cost of the defence that is funded by legal aid are of some interest. I understand that you have received evidence that the average cost is £13,887 per case in Northern Ireland and £6,300 per case in England and Wales. I must be cautious in what I now say, because I am not certain that the factors that I have weighed, in calculating that equation, are exactly the same as those that the Legal Services Commission used in making its calculation. Equally, I must recognise that, in a case in which I am paying counsel to prosecute, I should not pay, for example, for five separate sets of counsel and five separate sets of solicitors to defend. Therefore, it may be that I am not comparing like with like. However, the average cost that we have calculated for criminal court cases for this financial year, 2008-09, is £5,800. The financial year is not yet over, however, so that remains a provisional figure.

Whether or not the calculations are comparable, there is clear blue water between what we appear to be paying and what legal aid appears to pay. There is a complicating factor, however. It is a Government precept that there should be equal or like pay for equal or like work. There may be an argument that, if the figures are comparable, too great a gap exists.

Mr Attwood:

I have two or three questions. Mr Scholes may be able to help me with the first one. From the useful paper that you gave the Committee, I am unable to work out your ideal top-line requirement in the years 2009-2010 and 2010-11. You have given us figures for the devolution-funding bid and for total anticipated pressures, but then there is a separate figure given for a shortfall in counsel fees for this year, and so on.

This is an evidence session to determine the funding that is required for the devolution of justice powers. Let us assume that those powers are to be devolved on 1 April 2009 — the start of the financial year. What have you identified as your top-line pressure over the next two years, and what will your top-line pressure be if you are to fill the 40 vacancies on which there is, at present, a moratorium?

Sir Alasdair Fraser:

I understand the question. We have sought to present our response in answer to the particularity of the questions raised. However, to rise a little above that, the CSR 2007 was challenging, particularly so on counsel fees. Our bid was not accepted, and we received a reduced bid of around £6∙8 million, which we knew immediately was not enough. Therefore, we initiated a moratorium on the filling of vacancies. Those vacancies arose in a rather haphazard fashion and could not be predicted, nor could the range of skills that we lost be predicted. The moratorium was a rough but necessary means of ensuring that we could pay our bills at the end of the year.

Our spending in this financial year has demonstrated that, with additional funding of around £1·15 million for counsel fees, we will be able to live within budget. We have identified the resource implications of the devolution of justice powers. The financial side will have to be beefed up somewhat, and a private office will have to be provided and a more focused internal audit conducted.

Taking into account the additional bids to cover counsel fees, costs awarded and the resource implications of having non-ministerial department status, the total devolution funding bid for 2009-2010 is £1·6 million. That figure rises by a small amount for the third year of the CSR period. Those figures are founded on a rigorous approach, as a result of our experience this year. If we were to be allocated funding for those additional bids over the next two years, we could end the moratorium on filling vacancies.

My approach is to be as forthright as I possibly can be. I understand that if policing and justice powers are devolved, there is little purpose in my telling the Committee in 12 months’ time that I cannot remain within budget.

In our submission, I also included the civil-recovery issue, which we are not yet ready to bid for, because the specific responsibilities for that have yet to be determined. The Attorney General has not yet issued advice as to who should do what and when, and SOCA has not yet indicated its intentions. Therefore, we have not dealt with that issue yet. However, I put that down in good faith as a marker.

I also put down as a marker the issue of the Bloody Sunday Inquiry report. In previous years, we have tried to work within our resources, but we are now stretched financially. In the scheme of things, the amount of money that is involved is not huge; however, it is a significant amount of the taxpayer’s money. I thought it wise to inform the Committee of the actions taking place in respect of that. The Committee should also be made aware of other matters, such as the Historical Enquiries Team and incentivisation. There arestreams of funding that assist that.

Mr Attwood:

Your explanation is much appreciated, because, in previous evidence sessions, some of the witnesses from other organisations were a bit polite in setting out their true budgetary position for the next couple of years. You have not been impolite, but you have been explicit. However, what is the bottom line? You spoke about a bottom line of £4·5 million, before the costs of filling the 40 vacant posts are included. Assuming that there is no further issue around counsel fees, is that figure accurate?

Sir Alasdair Fraser:

Yes. If I were to enter into a process of negotiation, I would advance what the bottom line was from the start. However, I am not in that position.

Mr Attwood:

For the purposes of the Committee’s report, the bottom line for the next two years of the current CSR period, over and above your current budget and excluding staff costs for filling 40 posts, is £4·5 million. On the issue of the moratorium on filling staff vacancies, in your submission, you state that a shortfall of 40 posts represents a 10% reduction in the overall staff complement. Therefore, does that reduction not — these are my words — have a disproportionate impact on your efficiency and effectiveness? That suggests to me that you must be getting close to that stage.

Sir Alasdair Fraser:

Through hard work and good will my colleagues have carried an extra burden. It is my judgement that that is a short-term commitment, not one on which I can rely in the long term. We did it because we had to do it. I would like, at the beginning of the next financial year, to begin to fill those vacancies. The moratorium has had an adverse effect. For example, we have been the subject of criticism from Criminal Justice Inspection about the work of notifying witnesses and victims of their requirement to go to court and the assistance that we as prosecutors should give them. The cuts have exacerbated the problems in an area in which we were found to be not perfect.

Mr Attwood:

I have a lot of sympathy with your view on that. I do not think it is sustainable to continue the moratorium on the hiring of staff for, for example, the next two financial years. You and I, and your colleagues, have had enough conversations about how the Public Prosecution Service (PPS) might be. We have to face up to the issue of the 40 unfilled posts.

I think that the Committee heard last week that the amounts spent on defence fees — £14,000 here and £6,000 in Britain — were for high-value cases, not for the general run of cases. Are you saying that the PPS’s payments to counsel amount to less than £6,000 for high-value cases, or are you saying that the payments to counsel in the general run of cases amount to less then £6,000?

Sir Alasdair Fraser:

I am saying the latter. That underlines the caution with which I introduced the subject.

Mr Attwood:

I appreciate that. What do you think is the average payment to prosecuting counsel in high-value cases?

Sir Alasdair Fraser:

I am not certain whether an average in that sense is useful.

Mr Attwood:

Comparing the figures —

Sir Alasdair Fraser:

I would be hypothesising, which I do not wish to do.

Mr Attwood:

If you can give the figures in respect of the general run of cases, why can you not give some indicative figure in respect of high-value cases?

Sir Alasdair Fraser:

There is, on the defence side, a clear definition of what a high-cost case is. I think — and my colleagues will correct me if I am wrong — that every case that exceeds 25 days falls into that category. The PPS has a system of scale fees and special fees. Special fees make up 85% of our business and are the subject of individual negotiation. I could certainly prepare a costing that related only to special fees, taking out the 15% — that would cover all of the work of the Magistrate’s Court, but as we are mainly doing it, there would not be much there. It would also include the less serious indictable cases. We can do that, and if it will be of value I will write to the Committee with that information.

Mr Attwood:

It would be interesting to compare and contrast, subject to the general warning about figures and statistics.

When will the High Court advocate system be in place? The Court Service said last week that its proposals in respect of reducing costs in very-high-value cases might take a number of years to take effect. Is the advocate system a short-term proposal, or will it be three or four years before it is in place?

Sir Alasdair Fraser:

Once we have completed our costing and we know what we are biting off, as it were, I intend to move during the course of 2009-2010. I anticipate that we will start slowly in each of the four regions and that we will increasingly use the senior public prosecutors once they have completed their training. The experience in England and Wales is informative; by using in-house lawyers in the Crown Court, they have reduced their reliance on counsel by 11%.

It is important that there be a strong, healthy, vigorous Bar. It is equally important that, where we have rights of audience in the Crown Court, we use them to take advantage of the experience that senior public prosecutors will achieve, create career opportunities for them and raise the significance of the job of public prosecutor in the public estimation. That is something to which I am wedded, but I want to move carefully.

Mr Attwood:

The financial impact of that in year one might be a 1% reduction in expenditure on counsel’s fees.

Sir Alasdair Fraser:

I do not want to use the word seedcorn, but I will. I do not want to find that by designating a small number of experienced lawyers I am losing timeliness. In an ideal world, I would like to replace the senior public prosecutors with other lawyers to carry out their casework, train the senior public prosecutors and get them into court. When they are in court, there should be savings in counsel fees.

Mr McFarland:

The Court Service told us that the time between the end of a case and the bill filtering through the system could be up to two or three years. Does that also affect your budgeting? It makes things difficult if you have to wait two years to know what money is coming down the line.

Sir Alasdair Fraser:

It does, and that has been an issue. Counsel have differed in the speed with which they have provided my service with the necessary information for an assessment of what fees should be paid and an audit trail. My regional prosecutors, who have a delegated notional budget for counsel’s fees, know exactly what accruals are in existence each month, and they are under pressure to take steps to ensure that the bills are paid at the earliest possible time and that the accruals do not distort our budget.

You are absolutely right that there is an issue. However, as long as we are calculating fees in the manner that I described, and until we move to a more arithmetic or mechanical method, that problem will remain.

Mr McFarland:

There is a function by which you can recover 22·5% of assets in criminal cases. Is that negotiable with HM Treasury? If you were stuck, could you increase that to 40%? How will that affect things when you take on the civil cases? Presumably, a similar system will exist. Is the percentage in civil cases likely to be 22·5% as well, or are we likely to see a different system?

Sir Alasdair Fraser:

The incentivisation money has a tendency to be notionally allocated to every purpose. If we raise an issue of funding, we will likely be told to use that money. As a matter of fact, there are limitations on what we can do with the money. The immediate cut is 50% to HM Treasury. Of the remainder, 45% goes to my service — which, as you rightly said, is 22·5% of the total. Another 45% goes to the investigating body, and the other 10% to the Court Service.

As you will see in our submission, we have around £1·1 million of incentivisation money in 2008-09. The Home Office has rules to guide the use of that money; it must be used at least in part to promote and secure further confiscation proceeds. Therefore, I will willingly allocate part of that money for that purpose. I will increase by one, perhaps, the numbers of staff available to do the work. However, that will not deal with everything. The money is ring-fenced for three years; I have to use it during that period.

On the downside, although Treasury or other Government Departments might suggest that we can fund any particular problem from that money, it is an unreliable source of funding because it depends entirely on whether a confiscation order is made at the end of criminal proceedings. At present, there are not, as I understand it, arrangements in place for civil recovery. Applying the logic of the scheme, it would seem desirable that the same sort of arrangement might be made. However, there might not, perhaps, be such a significant part paid to the investigator, because with civil actions we would be taking it forward.

Mr McFarland:

The Assets Recovery Agency — now part of SOCA — deals with civil cases. If no criminal case is pending, and none is likely to be, it pursues the assets of organised crime and criminals. Presumably, its investigators produce a case, which you then prosecute.

Are you saying that that entire investigation side will become more like it is in the United States, in that the PPS will have detectives with surveillance assets to find the evidence and drum up the case that you will prosecute, or will SOCA continue to do that bit, with you just conducting the prosecution? I am not sure what is going to happen in civil cases.

Sir Alasdair Fraser:

You have raised a difficult issue. There is a serious crime task force, which seeks to co-ordinate strategy in the investigation of the sort of offences that you have in mind. Nonetheless, there remains a clear distinction between the investigator and the prosecutor. We have followed the approach that was set out by the Royal Commission on Criminal Procedure, which is to maintain a difference between prosecution and investigation. Others favour what you have described; a much closer working relationship between investigator and prosecutor.

Under current arrangements, we are required by the Justice ( Northern Ireland) Act 2002 to give prosecutorial advice to the investigator. I am happy that investigators are increasingly taking advantage of that. We provide advice, perhaps, even before someone has been arrested, as long as that falls within the remit of prosecutorial advice.

Perhaps it is a judgement for other people to call. My view is that, as matters stand in the society that we serve, it is better to have a clear line of distinction between the investigator and the prosecutor. There is always a risk that, if those roles are melded together, the prosecutor begins to lose objectivity in the pursuit of the chase.

Mr McFarland:

Under the current proposals, you will come across as a non-ministerial Department. Traditionally, it is vital that the Public Prosecution Service be independent and be seen to be beyond influence. Is there scope for more co-ordination between the broader Court Service and your administration, which would save money without impinging on the service’s prosecutorial impartiality?

Another question that we have been asking for some time is where the Public Prosecution Service should be based. Does it need a home? Logically, the service would be attached to a Department, and the Committee has discussed whether that should be the Office of the First Minister and deputy First Minister or the Department of Finance and Personnel (DFP). Have you any thoughts as to where your home might be?

The Deputy Chairperson:

That is getting away from the subject of finance.

Mr McFarland:

Yes, but when the Committee discussed the advantage of having the Public Prosecution Service in front of us, that was the only outstanding question from phase 1 of the policing and justice discussion. I thought that the Committee might take advantage of Sir Alasdair being here in order to ask it, rather than bring him back in another three or four weeks’ time. Since he is here to discuss the effective and efficient co-ordination of administration, it is fitting to raise the question of where the Public Prosecution Service should be based.

The Deputy Chairperson:

If the question is one of efficiency, the Committee can proceed.

Sir Alasdair Fraser:

At an early point, and to underline the independence of the service, we considered that the best location would be in the Office of the First Minister and deputy First Minister. I recognise that this is a decision that will be taken by others — I can offer only my own views.

In a financial context, it is important that the Public Prosecution Service should not depend on a sponsor Department for its finances; rather, it should be placed in the position that it negotiates a settlement with DFP, perhaps with the support of a Minister. Someone will certainly have to look after the interests of the Public Prosecution Service at meetings of the Executive which discuss finances and the like — and, perhaps, in the Assembly.

There are so many issues there that are not issues for me as director of the Public Prosecution Service. They are clearly political and procedural matters that it will be for the Assembly to determine. For my part, I would be content to be in the Office of the First Minister and deputy First Minister. Without wishing to appear unduly negative, I am not particularly attracted to the justice Department, which I think will essentially be an operational Department that will not truly meet my needs in taking quasi-judicial decisions independently and dispassionately.

On the matter of administrative costs, Mr McFarland’s suggestion is good. If there are services that can be purchased in a common way, it makes sense to do that. To an extent, we are already in that position, because a number of Departments and agencies avail themselves of a range of services from HR Connect, for example. Therefore, that suggestion is very much in the service’s mind.

There is also the common pursuit of the Causeway project, which will link the various agencies in a very close and direct way in sharing information. That sort of approach is the future. Resources will not increase; we must make the most of what we have and have the confidence to work more closely and effectively while maintaining our respective independence.

Mr Hamilton:

The matter has been well aired, but I want to go back briefly to the issue of counsel’s fees and the deficit of £1·1 million over the next two years, which Alex and other members were talking about. That problem is not going away any time soon. Over the CSR period, there is a gap, but that gap is likely to continue. The PPS faces a perennial problem. Is it a fair assessment to say that, without the swift and successful enacting of some of the measures that you talked about, the problem will be with us for the foreseeable future?

Sir Alasdair Fraser:

The instruction and briefing of independent counsel will always be akin to a marketplace. There will always be some debate and discussion as to what the market rate should be. For my part, the future lies in settling a scheme that is open, transparent, accountable and applicable to cases, and that brings a greater certainty to the settling of them. If we can achieve that, then the rubbing points — which do exist — will be reduced. I do not want to place the Bar in a position that it would view as wrong. It is vital for our society that there be a strong, vigorous and independent Bar, and that public funds be available for the Bar to provide services; to prosecute and defend. I do not think that any of us here would contend otherwise. However, within that context, I will be working to ensure that there is a reduction in the rubbing points.

The Deputy Chairperson:

Does your agency pay value added tax (VAT), and what will the application of that be at the point of transfer?

Sir Alasdair Fraser:

Under the Finance Act 2008 we pay VAT to counsel, but that VAT is recouped and has no effect on my budget. It is money that we pay, and it is money that is brought back. It is governed by the 2008 Act. The VAT returns are managed by the financial services division of the NIO; presumably, on devolution, that will transfer to DFP. There are arrangements in place to address that.

The Deputy Chairperson:

Do financial considerations enter into the decision on whether to proceed with a prosecution?

Sir Alasdair Fraser:

That is a very difficult question. It is not something that I have experienced, and I cannot recall a single case where that was a factor. However, if the witnesses were 10,000 miles away, and if the case was very minor and, perhaps, of a technical nature, the prosecutor would have to consider whether the public interest required that expenditure to meet that prosecution. In any event, alternatives to prosecution might be available. To answer your question, it could be a public interest factor that would be relevant, but it has not happened.

The Deputy Chairperson:

Finally, are there any issues that you have not touched on that may confront you in the future, and which might have some impact or pressure on your budget? I have asked the same question of all witnesses.

Sir Alasdair Fraser:

This is a hostage to fortune. I have sought to be as forthright as I possibly can. None of us has the ability to predict events that have not occurred.

The Deputy Chairperson:

The Committee may have some additional questions, but it will put them in writing and seek responses. Thank you.

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