Session 2008/2009

First Report

Assembly and Executive Review Committee

FIRST REPORT ON THE
ARRANGEMENTS FOR THE DEVOLUTION OF POLICING AND JUSTICE MATTERS

TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT, THE MINUTES OF EVIDENCE AND OTHER RELEVANT DOCUMENTS

REPORT EMBARGOED
UNTIL COMMENCEMENT OF DEBATE IN PLENARY

Ordered by Assembly and Executive Review Committee to be printed 6 January 2009

Report: 22/08/09R (Assembly and Executive Review Committee)

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 59 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 is as follows:

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

* Mr Jeffrey Donaldson resigned from the Committee with effect from Tuesday, 26 February 2008 and was replaced by Mr Jimmy Spratt on 4 March 2008.
** With effect from 20 May 2008, Mr Alex Maskey replaced Ms Caral Ni Chuilin.
*** With effect from 15 September 2008, Mr Simon Hamilton replaced Mr Ian McCrea and Mr Ian Paisley Jnr. replaced Mr George Robinson.

At a meeting on 14 October 2008, the Committee agreed to extend ‘observer status’ to those parties represented in the Assembly but not, at that time, represented on the Committee, when the Committee was considering the devolution of policing and justice matters.

Report

Executive Summary

Summary of Recommendations

Introduction

A Fresh Mandate

The Committee’s Approach

The Category One List of Issues and the associated recommendations

The Category Two List of Issues

The Category Three List of Issues

Appendicies

Executive Summary

1. This first report on the arrangements for the devolution of policing and justice matters deals with some, but not all, of the issues which need to be addressed before there would be a request to have a range of policing and justice matters transferred. The report contains 15 recommendations which deal with the departmental structure; the powers to be transferred, and the timing thereof; and the appointment of a Minister. The report also contains a further list of issues which still require detailed consideration, in 2009, and which will form the basis of the Committee’s second report.

2. In its deliberations, the Committee has paid particular regard to letters from the First Minister and deputy First Minister, dated 28 July, 18 November and 12 December 2008. The process document which accompanied the letter dated 18 November 2008 contained some 37 actions, not all of which are especially relevant to the Committee. Nonetheless, they provide part of the context in which the Committee has sought to fulfil the mandate given to it by the Northern Ireland Assembly on 23 September 2008.

3. It should be noted that, in their letter of 12 December 2008, the First Minister and the deputy First Minister acknowledge the fact that the views of the Committee, expressed in its two planned reports, will have a significant influence throughout the process of devolving policing and justice powers.

4. Although it was unable to reach agreement, by consensus, in relation to some of its recommendations, the Committee hopes that this report will contribute, positively, towards the successful devolution of a range of policing and justice powers.

5. Furthermore, the Committee remains determined to continue to protect the interests of the Assembly, and the citizens of Northern Ireland, as it embarks on its detailed consideration of the issues which remain to be addressed. Significantly, the financial implications of devolving policing and justice are amongst the issues which the Committee will turn its attention to in January 2009; the issue of securing an adequate budget for the department which will provide the range of policing and justice services is a matter of grave concern to the Committee.

Summary of Recommendations

Recommendation 1

The Committee recommends that the department which will exercise powers in relation to policing and justice matters should be created as an additional department to the existing eleven departments which go to make up the Northern Ireland Executive. (Paragraph 21)

Recommendation 2

The Committee recommends that the department which will exercise powers in relation to policing and justice matters should be known as the Department of Justice. (Paragraph 22)

Recommendation 3

The Committee recommends that the following organisations should be the responsibility of, and be attached and accountable to, the Department of Justice:-

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)

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) (Paragraph 24)

Recommendation 4

The Committee further recommends that the following organisations should be the responsibility of, and be attached and accountable to, the Department of Justice:-

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) (Paragraph 25)

Recommendation 5

The Committee recommends that the Judicial Appointments Commission (as an Executive NDPB) should be the responsibility of, and be attached and accountable to, the Office of the First Minister and the deputy First Minister. (Paragraph 26)

Recommendation 6

The Committee recommends that the Public Prosecution Service should be a Non-Ministerial Department. (Paragraph 27)

Recommendation 7

The Committee recommends that, for the purposes of this report, only those reserved matters identified in Recommendations 2 – 17 of its original Report into the Devolution of Policing and Justice Matters should cease to be reserved matters. (Paragraph 30)

Recommendation 8

The Committee recommends that the matters mentioned in Recommendations 2 – 17 of its original Report into the Devolution of Policing and Justice Matters should cease to be reserved matters, at the point of devolution. (Paragraph 34)

Recommendation 9

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of a Minister of Justice:-

Any Member elected as the Minister of Justice, up until May 2012, would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists
These arrangements would be subject to a sunset clause which would bring them to an end not later than May 2012
Following a period of operation, and prior to May 2012, the arrangements would be reviewed
Permanent arrangements would be put in place by May 2012, and there would be no fall back arrangements. This will require the political parties to agree a way forward, by this time
For the duration of the interim arrangements, i.e. up until May 2012, the DUP and Sinn Féin will not nominate any Member, from their respective parties, as the Minister of Justice. (Paragraph 36)

Recommendation 10

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of the Minister of Justice, up until May 2012:-

The appointment of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. (Paragraph 38)

Recommendation 11

The Committee recommends that the following, interim, arrangements should apply in relation to the removal of the Minister of Justice, up until May 2012:-

The removal of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. (Paragraph 39)

Recommendation 12

The Committee recommends that the following, interim, arrangements should apply in relation to the replacement of a Minister for Justice, up until May 2012:-

The replacement of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. (Paragraph 40)

Recommendation 13

The Committee recommends that there is no requirement to have a ‘shadow Minister’, a ‘shadow department’ and a ‘shadow Statutory Committee’. (Paragraph 43)

Recommendation 14

The Committee recommends that there should be a convention, which would be respected by the political parties, and which would ensure that, at the point of devolution, and beyond, Members of the Northern Ireland Policing Board, or any District Policing Partnership could not sit, simultaneously, on the Statutory Committee of Justice. (Paragraph 44)

Recommendation 15

The Committee recommends that, in order to bring certainty to the convention outlined in Recommendation 14, the Committee on Procedures should consider introducing a Standing Order to that effect. (Paragraph 45)

Introduction

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

as to the preparations that the Assembly has made, and intends to make, having regard to paragraph 7 of the St Andrews Agreement[1], for or in connection with policing and justice matters ceasing to be reserved matters;

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

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.[3]

4. The Committee conducted an Inquiry during the period between September 2007 and February 2008. The Report on that Inquiry into the Devolution of Policing and Justice Matters (22/07/08R) was the subject of a debate in a plenary session of the Assembly on Tuesday 11 March 2008, when it was resolved

“That this 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.”

5. The report was duly submitted to the Secretary of State for Northern Ireland.

A Fresh Mandate

6. On 13 May 2008, the Committee wrote to the Speaker of the Assembly to suggest that it would monitor progress on the implementation of twenty-eight of the forty-one recommendations contained in the Committee’s original report.

7. On 28 July 2008, the First Minister, and the deputy First Minister, wrote to the Chairperson of the Committee to ask if the Committee could undertake further work in relation to the devolution of policing and justice matters.

8. When the Committee met on 9 September 2008, immediately following the Summer Recess, it considered a reply from the Speaker, dated 8 September 2008, and the letter from the First Minister and the deputy First Minister. At that meeting, the Committee agreed to seek a fresh mandate from the Assembly to involve itself, further, in matters relating to the devolution of policing and justice and to invite the First Minister and the deputy First Minister to appear before the Committee on 16 September 2008 so that the terms of their letter of 28 July 2008 could be explored in more detail.

9. Due to prior commitments, the First Minister and the deputy First Minister were unable to attend the Committee meeting on 16 September 2008. Instead, they offered to meet the Chairperson and Deputy Chairperson on 15 September 2008, and that offer was accepted. A full report of that meeting was provided to the Committee when it met on 16 September 2008.

10. On 23 September 2008, the Assembly resolved

“That, in accordance with Standing Order 59(4)(b), this Assembly refers the following matters to the Assembly and Executive Review Committee:

a review of progress on the implementation of the recommendations of, and the resolution of outstanding issues identified in, the Report on the Inquiry into the Devolution of Policing and Justice Matters (22/07/08R); and

consideration of any other matter relating to the devolution of policing and justice matters.”

The Committee’s Approach

11. With a fresh mandate from the Assembly, the Committee decided to invite the leaders of all the political parties represented in the Assembly to submit their views on the matters they considered that the Committee should be examining; these views are included elsewhere in this report. The Committee extended a similar invitation to the First Minister and the deputy First Minister.

12. When the Committee next met, on 7 October 2008, responses from seven of the leaders of the political parties represented in the Assembly were considered by the Committee as part of its wider consideration of a composite list of issues.

13. At the meeting on 7 October 2008, the Committee agreed that a standing invitation should be extended to the First Minister and the deputy First Minister to present papers on the devolution of policing and justice matters, and to appear before the Committee from time to time.

14. On 14 October 2008, the Committee agreed to extend observer status to those parties represented in the Assembly, but not represented on the Committee[4]. At that same meeting, the Committee decided to consider, in detail, a list of twenty six issues, which it subsequently allocated to one of three categories as follows:-

Category One – Issues to be resolved, within the Committee, pre-devolution
Category Two – Issues to be resolved by the Committee, pre-devolution, but which might require wider consultation and consideration
Category Three – Issues to be resolved, post-devolution

15. During the meeting on 14 October 2008, Members also confirmed that they had authority to represent the views of their respective parties and resolved to seek to prepare a report, by mid-November 2008, on those issues in the Category One List.

16. At the meeting on 21 October 2008, the Committee agreed the handling arrangements for considering the Category One List of Issues, and commenced the detailed consideration of some of those issues. Amongst the issues discussed was a proposal contained in the second paragraph of the letter of 28 July 2008, from the First Minister and the deputy First Minister, in which they stated that the Committee’s consideration:

“should be based on a single department in which policing and justice powers would reside with a single Minister elected at all times from the Assembly in a way which would ensure cross-community support.”

17. The discussions which followed revealed that there were differing interpretations of what the proposal actually meant, and the Committee decided to adjourn proceedings and resume its discussion on matters relating to the devolution of policing and justice on 4 November 2008, provided that, by then, the DUP and Sinn Féin had clarified, to the Committee, what the correct interpretation of the first sentence of the second paragraph of the letter of 28 July 2008 from the First Minister and deputy First Minister should be.

18. Following the meeting on 21 October 2008, the Committee met on a further 9 occasions up to, and including, 6 January 2009, to give detailed consideration to the Category One List of Issues. In the course of these deliberations, the Committee had available to it further letters from the First Minister and the deputy First Minister and correspondence from the Secretary of State for Northern Ireland; and a number of briefing papers provided by the Assembly’s Research and Library Services. A series of Briefing Papers, prepared by the Committee Clerk, were used as the basis for refining some of the wording of the Issues in the Category One List and which led to the Committee agreeing to re-locate some of those Issues into the Category Two List of Issues.

19. When it met on 6 January 2009, the Committee ordered that its report be printed. At that same meeting, the Committee also agreed, following a vote, the terms of a Motion to allow for a debate in the Assembly on its report and it also agreed to seek to have that debate on 20 January 2009.

The Category One List of Issues and the associated recommendations

The department and the departmental structure

20. In its further examination of matters relating to a department with responsibility for policing and justice, the Committee had regard to its original Report into the Devolution of Policing and Justice Matters, particularly Recommendation 18, as follows:

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

21. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 1

22. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 2

The Committee recommends that the department which will exercise powers in relation to policing and justice matters should be known as the Department of Justice.

23. In its further consideration of the structure of the department, the Committee re-examined Recommendations 23 and 24 of its original Report into the Devolution of Policing and Justice Matters, which dealt with the issue of which department the various organisations, presently delivering the range of policing and justice services, would be attached to. The Committee re-affirmed Recommendation 23 of its original report but, when it came to consider Recommendation 24 of its original report, it decided to make a number of modifications in relation to the Public Prosecution Service and the Judicial Appointments Commission. In relation to the funding, accountability and administrative aspects of the Public Prosecution Service, the Committee decided that it wished to have more time to consider which Department of the Northern Ireland Executive should act as the ‘sponsor department’ for the Public Prosecution Service. The Committee intends to return to this issue when it undertakes detailed consideration of the Category Two List of Issues.

24. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 3

The Committee recommends that the following organisations should be the responsibility of, and be attached and accountable to, the Department of Justice:-

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)

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)

25. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 4

The Committee further recommends that the following organisations should be the responsibility of, and be attached and accountable to, the Department of Justice:-

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)

26. The Committee discussed, and agreed, by a majority, the following recommendation:

Recommendation 5

27. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 6

The Committee recommends that the Public Prosecution Service should be a Non-Ministerial Department.

The powers to be transferred, and the timing thereof

Reserved matters to be transferred

28. The Committee affirmed that, in terms of this report, it did not wish to seek the transfer of powers other than those identified in Recommendations 2 – 17 of its original Report into the Devolution of Policing and Justice Matters.

29. However, the Committee agreed to further examine, as part of its detailed consideration of the Category Two List of Issues, whether it might wish to make recommendations, in a subsequent report, on the transfer of powers relating to the Public Processions (Northern Ireland) Act 1989, matters to do with ‘flags and symbols’ and matters to do with recruitment to the PSNI.

30. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 7

Excepted matters

31. The Committee discussed, and agreed, by a majority vote, that, at this stage, there would be no further discussion on the transfer of any excepted matters.

Timing of the devolution of policing and justice matters

32. The Committee considered the question of the timing of devolution and had particular regard to the letter from the First Minister and deputy First Minister, dated 18 November 2008, and the associated attachment to it, both of which can be found elsewhere in this report. The process outlined in these papers is, by common consent, a mixture of concurrent and sequential actions, not all of which involve the Committee. Indeed, Group 5 has four components, as follows

Commence process of building confidence to achieve cross community buy-in
Consult party organisations and external stakeholders
Public consultation
Secure necessary community confidence for the transfer of policing and justice powers

33. The Committee noted comments made by the First Minister and deputy First Minister, during the meeting on 18 November 2008, and in subsequent statements, that, in relation to the devolution of policing and justices matters, they wished to proceed without undue delay.

34. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 8

The appointment of a Minister

35. The Committee considered the arrangements for appointing a Minister, having particular regard to proposed interim arrangements from the First Minister and deputy First Minister, and which are contained in letters dated 28 July and 18 November 2008, respectively, and which can be summarised as follows

Any Member elected as the Minister of Justice, up until May 2012, would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. In circumstances where a vacancy was to occur, during this period, the vacancy would be filled in the same way
These arrangements would be subject to a sunset clause which would bring them to an end not later than May 2012
Following a period of operation, the arrangements would be reviewed
Permanent arrangements would be put in place by May 2012, and there would be no fall back arrangements. This will require the political parties to agree a way forward, by this time
For the duration of the interim arrangements, the DUP and Sinn Féin will not nominate any Member from their respective parties as the Minister of Justice

36. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 9

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of a Minister of Justice:-

Any Member elected as the Minister of Justice, up until May 2012, would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists
These arrangements would be subject to a sunset clause which would bring them to an end not later than May 2012
Following a period of operation, and prior to May 2012, the arrangements would be reviewed
Permanent arrangements would be put in place by May 2012, and there would be no fall back arrangements. This will require the political parties to agree a way forward, by this time
For the duration of the interim arrangements, i.e. up until May 2012, the DUP and Sinn Féin will not nominate any Member, from their respective parties, as the Minister of Justice

37. The Committee also considered the arrangements for appointing, removing and/or replacing the Minister of Justice, including circumstances which might arise and the incumbent did not stand, or failed to be re-elected, in any Assembly election up until May 2012.

38. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 10

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of the Minister of Justice, up until May 2012:-

The appointment of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

39. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 11

The Committee recommends that the following, interim, arrangements should apply in relation to the removal of the Minister of Justice, up until May 2012:-

The removal of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

40. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 12

The Committee recommends that the following, interim, arrangements should apply in relation to the replacement of a Minister of Justice, up until May 2012:-

The replacement of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

The Minister’s role in, and relationship with, the Northern Ireland Executive

41. The Committee decided that it wished to have more time to consider what role the Minister of Justice would have in, and what relationship the Minister of Justice would have with, the Northern Ireland Executive. The Committee intends to return to, and resolve, this issue when it undertakes detailed consideration of the Category Two List of Issues.

Assembly procedures

42. The Committee considered potential changes to the procedures of the Assembly which might be necessary to accommodate any request there might be for the transfer of a range of policing and justice powers. In particular, the Committee considered

the requirement to have a ‘shadow Minister’, a ‘shadow department’ and a ‘shadow Statutory Committee’; and
the arrangements which need to be in place, at the point of devolution, and beyond, to ensure that Members of the Northern Ireland Policing Board, or any District Policing Partnership could not sit, simultaneously, on the Statutory Committee of Justice.

43. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 13

The Committee recommends that there is no requirement to have a ‘shadow Minister’, a ‘shadow department’ and a ‘shadow Statutory Committee’.

44. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 14

45. The Committee discussed, and agreed, by consensus, the following recommendation:

Recommendation 15

The Committee recommends that, in order to bring certainty to the convention outlined in Recommendation 14, the Committee on Procedures should consider introducing a Standing Order to that effect.

Financial provisions

46. The Committee considers that it will be vitally important to ensure that there is an adequate budget for the department which will become responsible for the range of policing and justice functions. In this regard, it intends to co-operate with the First Minister and deputy First Minister, and the Minister for Finance and Personnel, as necessary, as part of a complementary process, to examine the financial implications of devolving policing and justice. For that reason, the Committee sought clarification from the First Minister and deputy First Minister, on the respective roles of the First Minister and deputy First Minister, the Minister for Finance and Personnel and the Assembly and Executive Review Committee in terms of work required on finance matters. The Committee will return to this issue in January 2009 as part of its detailed consideration of the Category Two List of Issues, more about which can be found elsewhere in this report.

Memoranda of Understanding and Protocols

47. The Committee recalled from its original Report into the Devolution of Policing and Justice Matters, particularly Recommendation 39, that it had identified a need for the development of various Memoranda of Understanding and Protocols. The Committee has called on the Secretary of State for Northern Ireland to provide it with all available drafts, at the same time as these are supplied to the First Minister and deputy First Minister, so that these can be examined, by the Committee, in the course of its detailed consideration of the Category Two List of Issues.

The Category Two List of Issues

48. As has been explained elsewhere in this report, the Committee intends to turn its attention to a further range of issues to be resolved by the Committee, pre-devolution, but which may require wider consultation and consideration. These are known as the Category Two List of Issues. The Committee intends to commence its detailed consideration of these issues in January 2009, at which time it will also address residual issues, from its first report, relating to the Public Prosecution Service and the role, and relationship, which the Minister of Justice would have with the Northern Ireland Executive. It is possible, by then, that, in order to take account of developments, the Committee will wish to refine these issues, as it did during its detailed consideration of the Category One List of Issues. There are, presently, twelve such issues on the list, below, including two new issues, but, for example, it may not be necessary to consider further, five of these issues, namely A, B, H, I and J.

A

Is there a need to endorse Recommendation 22 of the Committee’s original report - that the post of Attorney General should be a full time role, at least initially?

B

Who might be responsible for appointments to the judiciary?

C

What should be the relationship between SOCA and the Security Services and the Minister/ Department/Assembly, and what needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as the role of the security services?

D

What needs to be done to ensure the maintenance of existing North/South policing and justice agreements and what needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as all-Ireland policing arrangements?

E

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

F

What is the extent of the financial provisions for a department which would exercise the range of policing and justice functions, and how, and when, should the financial negotiations with the NIO be conducted, and by whom, and should any budget be ‘ring-fenced’?

G

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

H

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

I

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

J

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?

K

What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?

L

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

49. The Committee proposes to make a second report on the arrangements for the devolution of policing and justice matters to the Assembly in 2009; that report will address residual issues from the Category One List, as well as those issues on the Category Two List.

The Category Three List of Issues

50. The Committee has also identified a number of issues which the Statutory Committee of Justice might wish to examine, once it is established. These are issues which the Assembly and Executive Review Committee considered to be for resolution, post-devolution.

A

In relation to Recommendation 29 of the Committee’s original report, should political parties continue to appoint Members of the Legislative Assembly to the Policing Board?

B

In relation to Recommendation 32 of the Committee’s original report, what should be the future status of the Probation Board?

C

In relation to Recommendation 33 of the Committee’s original report, about matters raised by the NI Law Commission, should these matters be addressed by a future Statutory Committee of the Assembly?

D

In relation to Recommendation 34 of the Committee’s original report, about matters raised by the NI Legal Services Commission, should these matters be addressed by a future Statutory Committee of the Assembly?

E

In relation to Recommendation 35 of the Committee’s original report, should the Northern Ireland Court Service be more independent, and what should be its governance and accountability arrangements?

[1] “Discussions on the devolution of policing and justice have progressed well in the Preparation for Government Committee. The Governments have requested the parties to continue these discussions so as to agree the necessary administrative arrangements to create a new policing and justice department. It is our view that implementation of the agreement published today should be sufficient to build the community confidence necessary for the Assembly to request devolution of criminal justice and policing from the British Government by May 2008”.

[2] Section 4 (2) of the Northern Ireland Act 1998. Transferred, excepted and reserved matters. [(2A) The Secretary of State shall not lay before Parliament under subsection 2 the draft of an order amending Schedule 3 so that a devolved policing and justice matter ceases to be a reserved matter unless –

(a) a motion for the resolution praying that the matter should cease to be a reserved matter is tabled by the First Minister and the deputy First Minister acting jointly; and

(b) 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.]

[3] 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 Northern Ireland Act 1998 that policing and justice matters should cease to be reserved matters; and

[4] The Alliance Party; The Green Party; The Independent Health Coalition; The Progressive Unionist Party.

Appendix 1

Minutes of Proceedings
Relating to the Report

Tuesday, 9 September 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood Mrs Carmel Hanna
Mr Nelson McCausland Mr Ian McCrea
Mr Alan McFarland
Mr Alex Maskey
Mr George Robinson

In Attendance: Mrs Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Carla Campbell (Clerical Supervisor)

Apologies: Mr Danny Kennedy
Mr John O’Dowd

The meeting opened at 11.04am in private session.

1. Apologies

Apologies are detailed above.

The meeting opened at 11.10 in public session.

Mrs Carmel Hanna joined the meeting at 11.13am

2. Correspondence

Members considered correspondence from the First Minister and deputy First Minister, and from the Speaker, both of which related to the devolution of policing and justice matters. There was a general discussion and some Members expressed views on the proposals contained in the letter from the First Minister and deputy First Minister.

Agreed: Members agreed that the Committee should seek a fresh mandate from the Assembly to further involve itself in matters relating to the devolution of policing and justice.

Agreed: Members also agreed that the First Minister and Deputy First Minister should be invited to appear before the Committee on 16 September 2008.

Agreed: Members agreed that the Clerk should prepare a draft motion for consideration at the meeting on 16 September.

Mr McCartney and Mr McCausland left the meeting at 11.46am.

The Chairperson adjourned the meeting at 12.13pm.

[EXTRACT]

Tuesday, 16 September 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Danny Kennedy
Mr Nelson McCausland
Mr Alan McFarland
Mr Alex Maskey
Mr John O’Dowd
Mr Ian Paisley Jnr

In Attendance: Mrs Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Pauline Devlin (Clerical Supervisor)

Apologies: None

The meeting opened at 11.04am in public session.

1. Apologies

Apologies are detailed above.

2. Matters arising

Mr Ian Paisley Jnr joined the meeting at 11.07am

3. Devolution of Policing and Justice Matters

In relation to the matter of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Alex Maskey

Member of the Policing Board

Ian Paisley Jnr

Member of the Policing Board

4.1 Invitation for First Minister and deputy First Minister to appear before the Committee

The Chairperson advised Members that he had received a response from OFMdFM in relation to the invitation to the First Minister and deputy First Minister to appear before the Committee on 16th September 2008 to discuss matters relating to the devolution of policing and justice. The Chairperson explained that the letter indicated that, due to diary commitments, the First Minister and deputy First Minister would be unable to appear before the Committee but that they had extended an offer to meet with the Chair and Deputy Chair of the Committee on Monday 15th September 2008.

The Chairperson briefed the Committee in detail on the discussions, and a comprehensive briefing note was also provided to Members.

Following extensive discussions, the Committee decided on a number of actions:

Agreed: The Committee agreed that the Chairperson should write to OFMdFM seeking

a detailed list of issues which the First Minister and deputy First Minister agree that the Committee might usefully consider
a further list of issues which the First Minister and deputy First Minister had not yet reached agreement on but which might be considered by the Committee; and
an assessment of the timing of any potential devolution of policing and justice matters.

Agreed: Members agreed that the Chairperson should write to the leaders of all the political parties represented in the Assembly, seeking their views on those issues the Committee should consider in its work on the devolution of policing and justice matters.

Agreed: Members agreed to consider responses from the First Minister and deputy First Minister and the leaders of the Political Parties at the next meeting of the Committee.

Mr McCartney joined the meeting at 11.42am.

Agreed: That the Committee might wish to re-visit the recommendations contained in its Report on the Inquiry into the Devolution of Policing and Justice Matters.

Agreed: That the Clerk should seek to develop a composite list of all the issues identified by the First Minister and deputy First Minister and the leaders of all the Political Parties and which would incorporate Committee Briefing Paper 03/08/09.

4.2 Draft Motion

Members noted a draft motion at Tab 2 of their packs, aimed at securing a fresh mandate from the Assembly which would allow the Committee to consider the devolution of policing and justice matters.

On a proposal from Mr Kennedy, that the tabling of a motion be deferred until further clarity was received from the First Minister and deputy First Minister:

Question put: That the Committee supports the proposal to defer the tabling of a Motion.

The Committee divided. Ayes 2; Noes 7.

AYES

Mr Kennedy, Mr McFarland

NOES

Mr Spratt, Mr McCartney, Mr Hamilton, Mr McCausland, Mr Maskey, Mr O’Dowd, Mr Paisley Jnr

The proposal accordingly fell.

Mr Paisley Jnr proposed that the following motion be tabled for consideration by the Business Committee.

Motion: That, in accordance with standing order 59(4)(b), this Assembly refers the following matters to the Assembly and Executive Review Committee:

(a) a review of progress on the implementation of the recommendations of, and the resolution of outstanding issues identified in, the Report on the Inquiry into the Devolution of Policing and Justice Matters (22/07/08R); and

(b) consideration of any other matter relating to the devolution of policing and justice matters.

Question put: That the Committee supports the proposal to table the motion.

The Committee divided. Ayes 8; Noes 2.

AYES

Mr Spratt, Mr McCartney, Mr Attwood, Mr Hamilton, Mr McCausland, Mr Maskey, Mr O’Dowd, Mr Paisley Jnr

NOES

Mr Kennedy, Mr McFarland.

The proposal was accordingly agreed.

Mr Paisley left the meeting at 12.18pm.

Mr Hamilton left the meeting at 12.24pm.

Mr O’Dowd left the meeting at 12.26pm.

The Chairperson adjourned the meeting at 12.31pm.

[EXTRACT]

Tuesday, 7 October 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Simon Hamilton
Mr Danny Kennedy
Mr Nelson McCausland
Mr Alex Maskey
Mr John O’Dowd

In Attendance: Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Carla Campbell (Clerical Supervisor)
Mrs Fiona O’Connell (Researcher)

Apologies: Mr Alex Attwood
Mr Raymond McCartney
Mr Alan McFarland
Mr Ian Paisley Jnr

The meeting opened at 11.10am in closed session.

The Chairperson indicated that there had been a formal request from the media to film part of the Committee’s proceedings.

Agreed: Members agreed to the request for a limited period.

The meeting opened at 11.11am in public session.

1. Apologies

Apologies are detailed above.

The Chairperson welcomed Mr Trevor Reaney, Clerk/Director General, to the meeting.

2. Devolution of Policing and Justice Matters

In relation to the matter of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Alex Maskey

Member of the Policing Board

Nelson McCausland

Member of Belfast District Policing Board

4.2 Responses from Political Parties

Members noted responses from the leaders of seven of the political parties represented in the Assembly. The Committee also noted correspondence from Mr James H Allister QC MEP, in relation to the devolution of policing and justice matters.

4.3 Response from the First Minister and deputy First Minister

Members noted that no response had been received from the First Minister and deputy First Minister.

4.4 Composite list of Issues

Members considered a briefing paper by the Committee Clerk which consisted of a matrix of responses from Party Leaders and issues outstanding from a previous committee briefing paper.

Agreed: Members agreed to extend a standing invitation to the First Minister and deputy First Minister to present papers on the devolution of policing and justice matters, and to appear before the Committee from time to time.

Agreed: That the Clerk should re-examine the Composite List of Issues and remove those items on which the Committee had reached consensus in its original report on the Inquiry into the Devolution of Policing and Justice Matters.

4.6 The Way Forward

Members considered and discussed a committee briefing paper which offered the basis for the Committee to discuss how it might proceed with its further consideration of the devolution of policing and justice matters. During discussions it was suggested that the Alliance Party might usefully be represented on the Committee.

Agreed: That the Committee should be provided with procedural advice on how Membership of the Committee might be increased from 11 Members to 12 Members.

Agreed: That Members would give further consideration to the Committee Briefing Paper on the Composite List of Issues and The Way Forward, and report back to the Committee at the next meeting.

The Chairperson adjourned the meeting at 12.35pm.

[EXTRACT]

Tuesday, 14 October 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Danny Kennedy
Mr Raymond McCartney
Mr Alex Maskey
Mr John O’Dowd

In Attendance: Ms Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Carla Campbell (Clerical Supervisor)
Mrs Fiona O’Connell (Researcher)

Apologies: Mr Nelson McCausland
Mr Alan McFarland
Mr Ian Paisley Jnr

The meeting opened at 11.07am in public session.

1. Apologies

Apologies are detailed above.

2. Devolution of Policing and Justice Matters

In relation to the matter of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Alex Maskey

Member of the Policing Board

4.2 Committee Membership

Members noted a Committee Briefing Paper and there was a general discussion about Committee Membership.

Agreed: The Committee agreed to extend ‘observer status’ to those parties represented in the Assembly but not, presently, represented on the Committee.

Agreed: The Committee agreed that Party Whips should be encouraged to hold discussions on representation on Standing Committees generally.

11.40 am Mr Danny Kennedy joined the meeting

4.4 Committee Briefing Paper on Key Justice Issues

Members noted a briefing paper by the Committee Clerk, tabled.

Agreed: Members agreed that the issues contained in the paper were matters, largely, for consideration, post-devolution.

4.5 Committee Briefing Paper on Further Consideration of Policing and Justice Issues

Members considered a briefing paper by the Committee Clerk, which included a Composite List of Issues which might be examined by the Committee.

Agreed: Members confirmed they had the authority to represent the views of their respective parties on matters relating to the devolution of policing and justice.

The Committee then proceeded to discuss each of the items on the Composite List of Issues and agreed they should be broadly defined in three categories

Agreed:

Ministerial Model with a single Department with a Single Minister - Category 1
Will the Policing and Justice Department be additional to the existing 11 Departments? – Category 1
What would be the status of the Minister’s position in, and relationship with, the Executive Committee? – Category 1
Would the appointment of a Minister be an interim arrangement until the next Assembly election? – Category 1
What would be the arrangements for removing and/or replacing a Minister once appointed? – Category 1
The name of the department – Category 1
Whether, or not, there would be a ‘shadow department’ and a ‘shadow Statutory Committee’ – Category 1
The appointment of an Attorney General. Should it be a full time role? – Category 2
Who might be responsible for appointments to the judiciary? – Category 2
Structure of the Policing and Justice Department – Category 1
The maintenance of existing North/South policing and justice agreements – Category 2
The relationship between SOCA and the Security Services and the Minister/ Department/Assembly – Category 2
A more ‘independent’ Court Service – Category 3
The future status of the Probation Board – Category 3
The question of serving MLAs being members of the Policing Board – Category 1
Financial Provisions; A budget for a new department – Category 2
How, and when, should the financial negotiations with the NIO be conducted, and by whom? – Category 1
Should any budge be ‘ring-fenced’ – Category 1
The Timing of Devolution - Category 1
Clarity of matters to be devolved, including, parading, flags and symbols, recruitment to the PSNI and excepted matters – Category 1
Whether the ‘triple lock’ in the Executive should apply to decisions taken by the Policing and Justice Minister – Category 1
Location of Powers – Category 1
What measures need to be put in place to ensure there are appropriate policing arrangements at the point of devolution? – Category 1
Requirements for a Justice Sector of the North South Ministerial Council – Category 2
Procedures and protocols between the Minister, the Assembly, the Statutory Committee, the Department and its agencies – Category 1
Further examination of issues arising from the eventual recommendations of the Ashdown Report on Parading – Category 2

KEY

Category 1 – Issues to be resolved, within the Committee, pre-devolution

Category 2 - Issues to be resolved by the Committee, pre-devolution, but which also require wider consultation

Category 3 – Issues to be resolved, post-devolution

4.6 Timeframe

Members were invited to declare their views on the timeframe for completing the work and there was some discussion.

Mr. Maskey proposed

That the Committee should seek to prepare a report, by mid-November 2008, on a range of issues, classified as Category One Issues, which need to be resolved, within the Committee, pre-devolution.

The Committee divided, Ayes 4; Noes 3.

AYES

Alex Attwood, Alex Maskey, John O’Dowd, Raymond McCartney

NOES

Simon Hamilton, Danny Kennedy, Jimmy Spratt

The motion passed.

4.7 Meeting arrangements

Members discussed the arrangements for future meetings.

Agreed: The Committee agreed to meet twice weekly in public session, and to hold longer meetings, until mid-November 2008.

Agreed: The Committee agreed that transcripts of these meetings should be prepared for future publication.

Agreed: The Clerk should develop a Short Term Forward Work Plan to be presented at the next meeting of the Committee.

Agreed: Members agreed to re extend the standing invitation to the First Minister and the deputy First Minister to appear before the Committee.

Agreed: Members agreed that the Clerk should reply to Mr. Allister, QC MEP and that no response was necessary in relation to the letter from Mr McGuinness.

1.16 pm Mr Alex Attwood left the meeting

The Chairperson adjourned the meeting at 1.19pm.

[EXTRACT]

Tuesday, 21 October 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Danny Kennedy
Mr Ian Paisley Jnr
Mr Nelson McCausland
Mr Alan McFarland
Mr Alex Maskey
Mr John O’Dowd
Mrs Dawn Purvis – at the invitation of the Committee.

In Attendance: Mr Stephen Graham (Assembly Clerk) Miss Aoibhinn Treanor (Assembly Clerk) Mr Oliver Bellew (Assistant Assembly Clerk)
Miss Carla Campbell (Clerical Supervisor) Ms Lynn Gray (Clerical Supervisor) Mrs Fiona O’Connell (Researcher)

Apologies: Mrs Carmel Hanna

The meeting opened at 11.07am in public session.

1. Apologies

Apologies are detailed above.

2. Matters arising

3.4 Invitation to the First Minister and deputy First Minister

Members noted further correspondence from the Chairperson to the First Minister and deputy First Minister, inviting them to appear before the Committee to provide clarity on matters relating to the devolution of policing and justice and there was some discussion.

Mr. Attwood proposed

That, under the terms of Standing Order 59 (2)(a), the Committee considers exercising its formal powers under Section 44 of the Northern Ireland Act 1998.

The Committee divided, Ayes 3; Noes 7.

AYES

Alex Attwood, Danny Kennedy, Alan McFarland

NOES

Jimmy Spratt, Raymond, McCartney, Simon Hamilton, Ian Paisley Jnr, Nelson McCausland, Alex Maskey, John O’Dowd

The motion fell.

11.24am Mr Attwood left the meeting.

3. Devolution of Policing and Justice Matters

11.45 am Mrs Purvis joined the meeting.

The Chairperson welcomed Dawn Purvis to the meeting.

In relation to the matter of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Alex Maskey

Member of the Policing Board

Ian Paisley Jnr

Member of the Policing Board

Nelson McCausland

Member of Belfast District Policing Partnership

4.1 Forward Work Programme

Members considered, but were unable to agree, a draft forward work programme.

Agreed: Members requested the Clerk draft an alternative work programme for consideration, to include proposals for meetings of the Committee on Mondays and Tuesdays.

Members agreed to a request to have television coverage of ongoing business in the Chamber broadcast during the Committee meeting.

11.52am Mr Hamilton and Mr Kennedy left the meeting.

4.2 Research Paper

Members noted a supplementary briefing paper from Research Services on the recommendations of Criminal Justice Inspection Northern Ireland.

11.54 am Mr Attwood rejoined the meeting.

4.3 Issues to be resolved within the Committee, pre-devolution

Members noted a list of issues to be resolved within the Committee, pre-devolution, as represented in Committee Briefing Paper 11/08/09.

Agreed: Members agreed, generally, to allow up to twenty minutes discussion time, initially, on each issue on the Category 1 List.

Members then turned their attention to, and considered, the following issues on the Category 1 List.

4.3.A On the basis that there should be a single Department with a single Minister, what would be the method for election/appointment of the Minister?

Agreed: There was some discussion and Members agreed to return to the issue at a future meeting.

Agreed: The Committee agreed to provide Mrs Purvis and representatives of all the political parties in the Assembly, but not represented on the Committee, with a copy of the letter of the 28th July 2008 from the First Minister and deputy First Minister.

12.31pm Mrs Purvis left the meeting.

12.32pm Mr Hamilton rejoined the meeting.

12.33pm Mr McCausland and Mr Paisley Jnr left the meeting.

4.3.B Will the Policing and Justice Department be additional to the existing eleven Departments?

Agreed: There was some discussion and Members agreed that the Policing and Justice Department should be additional to the existing eleven Departments.

12.37pm Mr McCausland rejoined the meeting.

4.3.C What would be the status of the Minister’s position in, and relationship with, the Executive Committee?

Agreed: There was some discussion and Members agreed to return to the issue at a future meeting.

4.3.D Would the appointment of a Minister be an interim arrangement until the next Assembly election?

Agreed: There was some discussion and Members agreed to return to the issue at a future meeting.

4.3.E What would be the arrangements for removing, and/or replacing, a Minister once appointed?

Agreed: There was some discussion and Members agreed to return to the issue at a future meeting.

12.49pm Mr Hamilton left the meeting.

4.3.F What would be the name of the Department?

Agreed: There was some discussion and Members agreed to return to the issue at a future meeting.

4.3.G What would be the Structure of the Policing and Justice Department, and what functions would be placed there, and/or OFMdFM?

Agreed: Members agreed to defer discussions on this issue until after lunch.

The Chairperson adjourned the meeting at 12.52pm.

The Chairperson resumed the meeting at 1.43pm with the following Members present:

Mr Raymond McCartney (Deputy Chairperson) Mr Alex Attwood Mr Simon Hamilton Mr Danny Kennedy Mr Nelson McCausland Mr Alan McFarland Mr John O’Dowd Mr Ian Paisley Jnr

4.4 Resumption of discussions on the Devolution of Policing and Justice Matters

On resumption there was a general discussion on the differing interpretations of the second paragraph of the letter of 28 July 2008 from the First Minister and deputy First Minister and which had been the subject of discussion at 4.3.A, above.

Mr. McCausland proposed

That the Committee should now adjourn and resume consideration of matters relating to the devolution of policing and justice on 4 November 2008, provided that, by then, the DUP and Sinn Féin had clarified, to the Committee, what the correct interpretation of the first sentence of the second paragraph of the letter of 28 July 2008 from the First Minister and deputy First Minister should be.

The Committee divided, Ayes 6; Noes 3.

Ayes

Jimmy Spratt, Simon Hamilton, Danny Kennedy, Nelson McCausland, Alan McFarland, Ian Paisley Jnr

Noes

Raymond McCartney, Alex Attwood, John O’Dowd

The motion passed.

The Chairperson adjourned the meeting at 1.59pm.

[EXTRACT]

Tuesday, 11 November 2008
Room 21, Parliament Buildings

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

In Attendance: Mrs Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Annette Page (Clerical Officer)

The meeting opened at 11.19am in public session.

1. Apologies

There were no apologies.

11.34am Ian Paisley Jnr left the meeting

5. Devolution of Policing and Justice Matters

The Chairperson noted an apology from Dawn Purvis, PUP.

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Alex Maskey

Member of the Policing Board

Nelson McCausland

Member of Belfast District Policing Partnership

5.1 Research Papers

Members noted two research papers prepared by Assembly Research and Library Services and which related to:

Independence and Accountability of the Public Prosecution Service Northern Ireland
Policing Governance Structure

The Chairperson requested that Members should advise the Clerk of any questions they may have in relation to the two research papers.

5.2 Correspondence from OFMDFM

There was some discussion about the letter from the First Minister and deputy First Minister, dated 10 November 2008, which had been tabled for the attention of Members.

Agreed: Members agreed that the First Minister and deputy First Minister should attend the Committee meeting scheduled for the 18 November 2008, accompanied as necessary by their respective ‘special advisers’.

Agreed: Members agreed that a Member from each of those parties represented in the Assembly, but not represented on the Committee, were welcome to be present during the session with the First Minister and deputy First Minister.

On a proposal from Mr Attwood, that the meeting with the First Minister and deputy First Minister should take place in public session:

Question put: That the attendance of the First Minister and deputy First Minister at the meeting of the 18th November, should take place in public session.

The Committee divided. Ayes 2; Noes 8.

Ayes

Mr Attwood, Mrs Hanna

NOES

Mr Spratt, Mr McCartney, Mr Hamilton, Mr Kennedy, Mr McCausland, Mr McFarland, Mr Maskey,
Mr O’Dowd

The proposal accordingly fell.

11.49a.m Ian Paisley Jnr rejoined the meeting

Agreed: Members agreed that the meeting with the First Minister and the deputy First Minister should be conducted in closed session and they gave an undertaking to treat those discussions in strict confidence.

Agreed: Members agreed that the Chairperson should write to the First Minister and deputy First Minister about the arrangements for their attendance at the meeting on 18 November.

5.3 Forward Work Plan

Agreed: Members agreed that the Clerk should draft a forward work programme for consideration by the Committee on 18 November 2008 to include references to:

the session with the First Minister and deputy First Minister on 18 November 2008
the resumption and conclusion of the detailed discussions on the Category One List of Issues
Proposed arrangements for the handling of, and discussions on, the Category Two List of Issues.

Members discussed the need for particular information and advice on the financial requirements for any future department which would have the responsibility for policing and justice.

Agreed: Members agreed that the Clerk should prepare an initial Briefing Paper on the proposed arrangements for the Committee’s consideration of the Category Two List of Issues, and which would address how the Committee might make an assessment of what budget might be required, if a range of policing and justice matters were to be devolved.

12.14 pm Mr Paisley Jnr left the meeting

The Chairperson adjourned the meeting at 12.19pm.

[EXTRACT]

Tuesday, 18 November 2008
Room 21, Parliament Buildings

In Attendance: Mrs Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Miss Carla Campbell (Clerical Supervisor)
Ms Lynn Gray (Clerical Supervisor)
Miss Paula McManus (Clerical Officer)
Miss Annette Page (Clerical Officer)

Apologies: Mr Alex Maskey

The meeting opened at 11.02am in public session.

The Chairman indicated that there had been a formal request from the media to film at least part of the Committee’s proceedings.

Agreed: Members agreed to the request for a limited period.

1. Apologies

Apologies are detailed above.

5. Devolution of Policing and Justice Matters

11.08 am Mr Wilson joined the meeting.

The Chairperson welcomed Brian Wilson to the meeting.

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

The Chairperson briefed the Committee on the arrangements for the discussions with the First Minister and the deputy First Minister, and reminded them that the discussions would take place in ‘strict confidence’.

11.11 am The meeting was held in private session.

11.13 am The First Minister and deputy First Minister joined the meeting.

The Chairperson welcomed the First Minister and deputy First Minister and they made a brief opening statement on matters relating to the devolution of policing and justice. This was followed by a question and answer session. At the end of the discussions a letter, and a supplementary document, from the First Minister and deputy First Minister were circulated to Members.

11.56am The First Minister and deputy First Minister left the meeting.

11.56 am Mr Wilson left the meeting.

There was some further discussion in closed session.

Agreed: Members agreed that the Chairperson should write to the First Minister and the deputy First Minister to seek clarification on a number of issues.

12.05 pm Mr Kennedy left the meeting.

12.06 pm The meeting was held in public session.

12.18 pm Mr McFarland and Mr McCausland left the meeting.

12.20 pm Mr McFarland left the meeting.

5.1 Committee Briefing Paper on Short Term Forward Work Programme

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

Members considered a Committee Briefing Paper containing proposals for a Forward Work Programme.

Agreed: Members agreed the proposed Forward Work Programme.

Agreed: Members agreed that the Committee should publish two reports, the first of which would deal with its consideration of the Category One List of Issues, with a view to seeking a debate on that report, in plenary, in mid January 2009.

12.26 pm Mr Attwood left the meeting.

12.28 pm Mr McCausland rejoined the meeting.

5.2 Resumption of discussions on the Devolution of Policing and Justice Matters

Agreed: The Committee agreed to resume detailed consideration of the Category One List of Issues as represented in Committee Briefing Paper 11/08/09, and beginning at Issue G.

5.2. G What should be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?

12.32 pm Mr Attwood rejoined the meeting

12.34 pm Mr Kennedy rejoined the meeting

There was some discussion on Issue G.

Agreed: Members agreed to seek clarification from the First Minister and deputy First Minister in relation to the Northern Ireland Judicial Appointments Commission.

Agreed: Members agreed to return to Issue G at a future meeting.

5.2. H What arrangements need to be in place to ensure that effect is given to Recommendation 28 of the Committee’s original report that Members of the Northern Ireland Assembly should cease to be members of the Policing Board or any District Policing Partnership, at the point of devolution?

There was some discussion on Issue H.

Agreed: Members agreed to re-word Issue H to read:

What arrangements need to be in place to ensure 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 at the point of devolution?

Agreed: Members agreed to return to Issue H at a future meeting.

The Chairperson suspended the meeting at 12.54pm.

The Chairperson resumed the meeting at 1.36pm with the following Members also present:

Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood Mrs Carmel Hanna
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd

5.2. I How, and when, should the financial negotiations with the NIO be conducted, and by whom?

There was some discussion on Issue I.

Agreed: Members agreed that it would be useful to have the financial information, supplied by the NIO during the original Inquiry into the devolution of policing and justice matters refreshed.

Agreed: Members agreed to return to Issue I at a future meeting.

5.2. J Should any budget be ‘ring-fenced’?

There was some discussion on Issue J.

Agreed: Members agreed that Issue J and Issue I were inter-related and that the Committee’s consideration of both issues should be addressed further when it came to consider the Category Two List of Issues.

5.2. K When should the previously agreed range of policing and justice matters, identified at Recommendations 2 – 17 of the Committee’s original report cease to be ‘reserved matters’?

There was some discussion on Issue K.

Agreed: Members agreed that the range of policing and justice matters, identified at Recommendations 2 – 17 of the Committee’s original Report would cease to be ‘reserved matters’, at the point of devolution.

1.47 pm Mr Paisley Jnr rejoined the meeting.

5.2. L Is there any requirement for a ‘shadow Minister, a ‘shadow department’ and a ‘shadow Statutory Committee’?

There was some discussion on Issue L.

Agreed: Members agreed that there was no requirement for a ‘shadow Minister, a ‘shadow department’ or a ‘shadow Statutory Committee’.

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

There was some discussion on Issue M.

Agreed: Members agreed to return to the issue at a future meeting.

1.57 pm Mr McCausland left the meeting

5.2. N What needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as community safety; attacks on the elderly and other vulnerable groups; anti-social behaviour generally; sentencing policy within the judicial system; community confidence in policing; the role of the security services; and all-Ireland policing arrangements?

There was some discussion on Issue N.

Agreed: Members agreed that it would be proper for any new department to have policies in place to deal with these issues, other than those relating to ‘security services’ and ‘all-Ireland policing arrangements’, which are due to be considered as part of the Category Two List of Issues.

Agreed: Members agreed that, for the purposes of its report, it may be appropriate to disregard the former element of Issue N and to deal with the latter element of Issue N as part of its consideration of the Category Two List of Issues.

5.2. O What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?

There was some discussion on Issue O.

Agreed: Members agreed that it would be helpful to have sight of protocols and memoranda which deal with the sharing of security service intelligence, a matter which had been raised in the Committee’s original Inquiry.

Agreed: Members agreed to re-visit the issue again at a future meeting, possibly in the context of the Category Two List of Issues.

2.07 pm Mr Attwood and Mrs Hanna left the meeting.

2.08 pm Mr Kennedy rejoined the meeting.

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

There was some discussion on Issue P.

Agreed: Members agreed to return to the issue at a future meeting.

5.2. Q Is there any requirement to seek to have any ‘excepted matters’ devolved?

There was some discussion on Issue Q.

Agreed: Members agreed to return to the issue at a future meeting.

5.3 The Clerk informed the Committee that, in re-presenting the Composite List of Issues in three categories, he had omitted to include some matters outstanding from the Committee’s original report.

Agreed: Members agreed that the Clerk should re-work the Committee Briefing Paper to include:

the status, and independence, of the Public Prosecution Service;
the arrangements for appointments to the Policing Board;
the arrangements for appointments to the Police Ombudsman’ Office;
matters raised by the NI Law Commission; and
matters raised by the NI Legal Services Commission.

2.16 pm Mr Attwood and Mrs Hanna returned.

6. Category Two List of Issues

6.1 Committee Briefing Paper on the proposed handling arrangements for the consideration of the Category Two List of Issues

Members discussed the Committee Briefing Paper in some detail.

2.21 pm Mr Kennedy left the meeting.

2.23 pm Mr Hamilton rejoined the meeting.

Agreed: Members agreed that it would be useful to clarify the respective roles of the First Minister and deputy First Minister, the Minister for Finance and Personnel and the Assembly and Executive Review Committee in terms of work required on finance matters.

Agreed: The Committee agreed that it should involve itself in gathering financial information from the twenty eight organisations presently providing the range of policing and justice services in Northern Ireland.

Agreed: Members agreed that, before gathering that financial information, the questions suggested in the Committee Briefing Paper, should be ‘quality assured’.

Agreed: Members agreed that once that ‘quality assurance’ was secured, the Chairperson and Deputy Chairperson had authority to agree the terms of the letter which would commission the information.

Agreed: Members agreed that it was not necessary to invite views from the twenty eight organisations presently providing the range of policing and justice services in Northern Ireland on matters relating to the appointment of the Attorney General, and judicial appointments, or on North/South and East/West relationships.

2.28 pm Mr McCausland left the meeting.

2.29 pm Mr Paisley Jnr left the meeting.

The Chairperson adjourned the meeting at 2.33pm.

[EXTRACT]

Tuesday, 25 November 2008
Room 144, Parliament Buildings

Present: Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Nelson McCausland
Mr Alan McFarland
Mr Alex Maskey
Mr John O’Dowd

In Attendance: Mrs Nuala Dunwoody (Clerk Assistant)
Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Paula McManus (Clerical Officer)

Apologies: Mrs Carmel Hanna Mr Danny Kennedy Mr Ian Paisley Jnr

The meeting opened at 11.05am in public session.

1. Apologies

Apologies are detailed above.

4. Correspondence

4.1 Members noted correspondence from the First Minister and deputy First Minister, which had been circulated to the Committee at the meeting of 18 November.

Agreed: Members agreed that, because of the existence of the letter, and its supplementary attachment, there would be no need to keep any other detailed records of discussions held in the private session and that any such records should be destroyed.

4.2 Members noted a letter from the Chairperson to the First Minister and deputy First Minister, thanking them for their attendance at the Committee meeting and seeking clarification on a number of issues raised by Members in closed session.

4.3 Members noted a letter from the Chairperson to the Secretary of State regarding financial issues relating to the devolution of policing and justice.

11.28 am Mr O’Dowd left the meeting.

4.4 Members noted a letter from the Committee Clerk to the NIO which addressed matters regarding protocols and memoranda, and work-streams, which were raised by Members during the meeting on 18 November.

4.5 A further letter from the Chairperson to the First Minister and deputy First Minister was tabled and Members noted the correspondence which addressed issues relating to appointments to the judiciary.

5. Devolution of Policing and Justice Matters

The Chairperson noted an apology from Dawn Purvis, PUP.

The Committee Clerk gave a brief overview of the reconstruction of the original Committee Briefing Paper, 11/08/09 – Category One List of Issues.

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Alex Maskey

Member of the Northern Ireland Policing Board

5.1 Committee Briefing Paper 11/08/09 – Category One List of Issues (First Revision)

Members noted a first revision of the Committee Briefing Paper 11/08/09

Agreed: The Committee agreed to take the views of each party, in turn, on the unresolved issues in the Category One List of Issues, as represented in the Briefing Paper.

Members then turned their attention to, and considered, the following issues on the Category 1 List.

5.1.A On the basis that there should be a single Department with a Single Minister, what would be the method for election/appointment of that Minister?

There was some discussion on Issue A.

Agreed: Members agreed that there would be a single Department with a single Minister. Agreed: Members agreed to relocate ‘the method for election and appointment of that Minister’, to Issue E.

5.1.C What would be the status of the Minister’s position in, and relationship with, the Executive Committee?

There was some discussion on Issue C.

Agreed: Members agreed to return to the issue on 2 December 2008, with a view to having a definitive position on the matter.

5.1.D Would the appointment of a Minister be an interim arrangement until the next Assembly election?

There was some discussion on Issue D.

Agreed: Members agreed to return to the issue on 2 December 2008, with a view to having a definitive position on the matter.

5.1.E What would be the arrangements for removing and/or replacing a Minister once appointed?

There was some discussion on Issue E.

Agreed: Members agreed that Issue E would be re-structured and that Issue E would be re-visited on 2 December 2008, with a view to having a definitive position on the matter.

5.1.F What would be the name of the department?

There was some discussion on Issue F.

Agreed: Members agreed that the name of the department would be ‘The Department of Justice’.

5.1.G What would be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?

There was some discussion on Issue G.

Agreed: Members agreed to return to the issue on 2 December 2008, with a view to having a definitive position on the matter.

5.1.H What arrangements need to be in place to ensure that Members of the Statutory Committee for any new department should not sit on the Northern Ireland Policing Board or any District Policing Partnership, at the point of devolution?

There was some discussion on Issue H.

Agreed: Members agreed that the Committee would seek advice on the issue of amending Assembly Standing Orders before deciding on how best to resolve Issue H. Members agreed to return to the issue once that advice had been obtained.

5.1.I How, and when, should the financial negotiations with the NIO be conducted, and by whom?

There was some discussion on Issue I.

Agreed: The Committee agreed that the financial negotiations with the NIO should be conducted by the political parties.

Agreed: Members also agreed that the Issue should be re-located to the Category Two List.

5.1.J Should any budget be ‘ring-fenced’?

There was some discussion on Issue J.

Agreed: Members agreed that Issue J should be relocated to the Category Two List of Issues.

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

There was some discussion on Issue M.

Agreed: Members agreed to return to the issue on 2 December 2008, with a view to having a definitive position on the matter.

5.1.N What needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as community safety; attacks on the elderly and other vulnerable groups; anti-social behaviour generally; sentencing policy within the judicial system; community confidence in policing; the role of the security services; and all-Ireland policing arrangements?

There was some discussion on Issue N.

Agreed: Members agreed that many of the aspects in Issue N were policy matters which a future department would deal with and that should be reflected in the Committee’s Report. Agreed: The role of the security services and all-Ireland policing arrangements should be relocated to the Category Two List of Issues.

5.1.O What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?

There was some discussion on Issue O.

Agreed: Members agreed that Issue O should be relocated to the Category Two List of Issues.

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

There was some discussion on Issue P.

Agreed: Members agreed to relocate Issue P to Issue E.

5.1.Q Is there any requirement to seek to have any ‘excepted matters’ devolved?

There was some discussion on Issue Q.

Agreed: Members agreed to return to the issue on 2 December 2008, with a view to having a definitive position on the matter.

The Chairperson adjourned the meeting at 12.29pm.

[EXTRACT]

Tuesday, 2 December 2008
Room 21, Parliament Buildings

Apologies: None

The meeting opened at 11.05am in public session.

1. Apologies

There were no apologies.

2. Matters arising

3.1 The Committee Clerk updated Members on his ongoing discussions with Assembly Research and Library Services regarding advisory and support services on financial matters.

Agreed: Members agreed to consider a briefing paper at the next meeting.

Agreed: Members agreed that the Committee Clerk should prepare a Terms of Reference for appointing a Specialist Adviser to assist the Committee with its consideration of the financial elements of the Category Two List of Issues; and that these Terms of Reference should be considered by the Committee at its meeting on 9 December 2008.

6. Legal advice relating to Recommendation 28 of the Committee’s original report

Members noted that the Clerk had requested legal advice on the best way of giving effect to Recommendation 28 of the Committee’s original report.

Agreed: Members agreed to consider the legal advice at the next meeting.

7. Devolution of Policing and Justice Matters

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Alex Maskey

Member of the Northern Ireland Policing Board

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

Agreed: The Committee agreed to take the views of each party, in turn, on the unresolved issues in the Category One List of Issues, as represented in the Committee Briefing Paper - 11/08/09 (Second Revision).

Members then turned their attention to, and considered, the following issues on the Category 1 List.

7.1.C What would be the status of the Minister’s position in, and relationship with, the Executive Committee?

There was some discussion on Issue C.

Agreed: Members agreed to re-visit the issue at a future meeting.

7.1.D Would the appointment of a Minister be an interim arrangement until the next Assembly election?

There was some discussion on Issue D.

Agreed: Members agreed to re-word Issue D to read:

Would the process for the appointment of a Minister be an interim arrangement until 2012, as outlined in the letter of 18 November 2008 from the First Minister and deputy First Minister?

The Chairperson put the question:

Would the process for the appointment of a Minister be an interim arrangement until 2012, as outlined in the letter of 18 November 2008 from the First Minister and deputy First Minister?

The Committee divided, Ayes 7; Noes 3.

Ayes

Jimmy Spratt, Raymond McCartney, Simon Hamilton, Nelson McCausland, Alex Maskey, John O’Dowd, Ian Paisley Jnr

Noes

Alex Attwood, Carmel Hanna, Alan McFarland

Agreed: Members agreed that the process for the appointment of a Minister would be an interim arrangement until 2012, as outlined in the letter of 18 November 2008 from the First Minister and deputy First Minister.

7.1.E What would be the arrangements for appointing, removing and/or replacing a Minister, and should the ‘triple lock’ within the Executive apply to decisions of the Justice Minister?

There was some discussion on Issue E.

Agreed: Members agreed to re-visit the removal and replacement aspects of Issue E at a future meeting.

The Chairperson put the question that:

The appointment of a Justice Minister should be by cross community vote?

The Committee divided, Ayes 7; Noes 3.

Ayes

Jimmy Spratt, Raymond McCartney, Simon Hamilton, Nelson McCausland, Alex Maskey, John O’Dowd, Ian Paisley Jnr

Noes

Alex Attwood, Carmel Hanna, Alan McFarland

Agreed: That the appointment of a Justice Minister would be by cross community vote.

Agreed: Members requested that the Committee Clerk develop new wording for the ‘triple lock’ component of Issue E and that it then be re-located to Issue C.

7.1.G What would be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?

There was some discussion on Issue G.

Agreed: The Committee agreed that all of the organisations listed in Recommendation 23 of the Committee’s original report, should be located in the Department of Justice.

12.10pm Mr Kennedy joined the meeting.

Agreed: Members agreed to re-visit, at a future meeting, the question of where those organisations, listed in Recommendation 24 of the Committee’s Report, should be located.

7.1.H What arrangements need to be in place to ensure that effect is given to Recommendation 28 of the Committee’s original report that Members of the Northern Ireland Assembly should cease to be members of the Policing Board or any District Policing Partnership, at the point of devolution?

Members noted the request for legal advice on this issue.

Agreed: Members agreed to re-visit Issue H on 9 December 2008.

12.12pm Mrs Hanna left the meeting.

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

There was some discussion on Issue M.

12.17pm Mrs Hanna rejoined the meeting

Agreed: Members agreed to re-visit Issue M during its consideration of the Category Two List of Issues.

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

Members noted that Issue P, having been relocated to Issue E, had subsequently been relocated to Issue C.

7.1.Q Is there any requirement to seek to have any ‘excepted matters’ devolved?

There was some discussion on Issue Q.

On a proposal from Mr Attwood, that the Committee should further consider excepted matters in order to determine what further matters might be devolved:

Question put: That the Committee should further consider excepted matters in order to determine what further matters might be devolved.

The Committee divided, Ayes 5; Noes 6.

Ayes

Raymond McCartney, Alex Attwood, Carmel Hanna, Alex Maskey, John O’Dowd

Noes

Jimmy Spratt, Simon Hamilton, Danny Kennedy, Nelson McCausland, Alan McFarland, Ian Paisley Jnr

The proposal accordingly fell.

The Chairperson adjourned the meeting at 12.22pm.

[EXTRACT]

Tuesday, 9 December 2008
Room 21, Parliament Buildings

In Attendance: Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Paula McManus (Clerical Officer)

Apologies: None

The meeting opened at 11.05am in public session.

1. Apologies

There were no apologies.

3.3 Members also noted that the Chairperson had written, again, to request a reply from the Secretary of State on the issues raised in previous correspondence on 20 November and 3 December, 2008 respectively.

5. Devolution of Policing and Justice Matters

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Alex Maskey

Member of the Northern Ireland Policing Board

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

5.1 Members considered the response from the Secretary of State and there was some discussion.

Agreed: Members agreed that the Chairperson should write to the Secretary of State to:

indicate that the Committee did not wish to create a parallel process on finance, but that it intended to involve itself in the detailed consideration of adequate funding for policing and justice;
request that all drafts on memoranda of understanding and protocols, which were to be provided to the First Minister and deputy First Minister, should be shared, simultaneously, to the Committee;
advise of the possibility of the Committee calling NIO officials to give oral evidence before the Committee.

Agreed: Members agreed that the Clerk refer the question of a possible role for the Committee for Finance and Personnel to that Committee.

Agreed: Members agreed to hold an additional meeting on 15 December 2008 at 10.00am.

5.2 Committee Briefing Paper 11/08/09 – Third Revision

Members then turned their attention to, and considered, the following issues on the Category 1 List.

5.2.C 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?

Agreed: Members agreed the revised wording of Issue C.

There was some discussion on Issue C.

Agreed: Members agreed to re-visit Issue C at a Committee meeting at 10am on Monday 15 December 2008.

5.2.E What would be the arrangements for appointing, removing and/or replacing a Minister?

Question put: That the arrangements for removing and/or replacing a Minister would be by cross community vote?

The Committee divided, Ayes 6; Noes 4.

Ayes

Jimmy Spratt, Raymond McCartney, Simon Hamilton, Nelson McCausland, Alex Maskey, John O’Dowd

Noes

Alex Attwood, Carmel Hanna, Danny Kennedy, Alan McFarland

Agreed: The Committee agreed that the arrangements for removing a Minister would be by cross community vote.

Agreed: The Committee agreed that the arrangements for replacing a Minister would be by cross community vote.

The Committee acknowledged that there were other circumstances by which a vacancy might arise including, for example, if the Minister were to resign or (in relation to Issue D) the Minister did not stand, or failed to be elected, in the Assembly elections scheduled for 2011.

5.2.G What would be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?

There was some discussion on Issue G and recommendation 24 of the Committee’s original report.

Agreed: Members agreed that relevant submissions and oral evidence, from the original report, and relating to the Public Prosecution Service should be provided to Members.

Agreed: Members agreed to re-visit Issue G at a Committee meeting at 10am on Monday 15 December 2008.

5.2.H What arrangements need to be in place to ensure that Members of the Statutory Committee for any new department should not sit, simultaneously, on the Policing Board or any District Policing Partnership, at the point of devolution?

Members noted the terms of a Committee Briefing Paper which contained legal advice on the options for giving effect to recommendation 28 of the Committee’s original report and there was some discussion on Issue H.

Agreed: Members agreed that, in the meantime, there should be a convention which would be respected by the political parties, and the matter should be referred, formally, to the Committee on Procedures for the purposes of providing ‘certainty’ through Standing Orders.

Agreed: Members agreed that the Clerk should write to the Clerk of the Committee on Procedures, to give an indication of this Committee’s intentions.

Agreed: Members agreed to re-visit Issue H at a Committee meeting at 10am on Monday 15 December 2008.

Agreed: Members agreed to consider an initial draft report, in closed session, at 2.00pm on Monday 15 December, 2008.

5.3 Committee Briefing Paper 14/08/09 (Revised)

Committee Briefing Paper 14/08/09 (Revised), on the appointment of a Specialist Adviser, was tabled for the attention of Members.

Agreed: Members agreed the Terms of Reference for the appointment of a Specialist Adviser.

Agreed: Members agreed to form a Sub-Committee to handle the processes relating to the appointment of a Specialist Adviser.

Agreed: Members agreed that the Sub-Committee would consist of Mr Spratt; Mr McCartney; Mr Attwood; and Mr McFarland.

Agreed: Members agreed that the Sub-Committee would analyse any applications received, and bring a recommendation to the Committee in due course.

The Chairperson adjourned the meeting at 12.37pm.

[EXTRACT]

Monday, 15 December 2008
Room 21, Parliament Buildings

In Attendance: Mr Stephen Graham (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Ms Lynn Gray (Clerical Supervisor)
Miss Paula McManus (Clerical Officer)

Apologies: None

The meeting opened at 10.09am in public session.

1. Apologies

There were no apologies.

2. Chairperson’s Business

2.1 The Chairperson advised Members that the newly formed Sub-Committee for the appointment of a Specialist Adviser, met on Wednesday 10 December and agreed the evaluation criteria, weightings and scoring framework for the selection process, and that the deadline for the submission of bids was noon on 31 December 2008.

Agreed: Members agreed that the next meeting of the Sub-Committee would take place at noon on 5 January 2009, at which time there would be an evaluation of the bids received.

3. Minutes of Proceedings of meeting held on 9 December 2008

Agreed: The Committee agreed the minutes of the meeting held on 9 December 2008, as amended.

4. Matters arising

4.1 Members noted the terms of the letter from the Chairperson to the Secretary of State, dated 10 December 2008, in response to the issues raised in the Secretary of State’s letter of 3 December 2008.

4.2 Members noted the terms of the memo from the Committee Clerk to the Clerk of the Committee for Finance and Personnel, about financial matters relating to the devolution of policing and justice.

4.3 Members also noted correspondence from the Committee Clerk to the Clerk of the Committee on Procedures, about the need for a Standing Order, in due course, that would preclude members of the Policing Board or any District Policing Partnership from serving, simultaneously, as members of the Justice Committee, once established.

5. Correspondence

The Chairperson advised Members that a response had been received from the First Minister and deputy First Minister, to the Committee’s letters of 19 and 24 November, and the subsequent reminder of 3 December 2008.

Agreed: Members agreed to deal with the response during the substantive discussions and consideration of matters relating to the devolution of policing and justice, and which would be recorded by Hansard.

6. Devolution of Policing and Justice Matters

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Alex Maskey

Member of the Northern Ireland Policing Board

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

6.1 Committee Briefing Paper 11/08/09 – Fourth Revision

Members then turned their attention to, and considered, the following issues on the Category 1 List.

6.2.C 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?

There was some discussion on Issue C.

Agreed: Members agreed to return to Issue C at a future meeting.

6.2.G What would be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?

There was some discussion on Issue G.

10.21am Mr Attwood joined the meeting.

Agreed: Members agreed that the Judicial Appointments Commission should be the responsibility of, and be attached and accountable to, the Office of the First Minister and deputy First Minister.

Agreed: Members agreed that the Public Prosecution Service should be a non-Ministerial Department.

Agreed: Members agreed to return to the issue of whether the Public Prosecution Service should be associated with the Department of Justice or the Office of the First Minister and deputy First Minister.

Agreed: Members agreed that the Northern Ireland Policing Board, the Office of the Police Ombudsman, Criminal Justice Inspection Northern Ireland, Probation Board, Northern Ireland Law Commission, Northern Ireland Court Service and the Northern Ireland Legal Services Commission should be the responsibility of, and be attached and accountable to, the Department of Justice.

6.2.H What arrangements need to be in place at the point of devolution, and beyond, to ensure that Members of the Statutory Committee for any new department should not sit, simultaneously, on the Policing Board or any District Policing Partnership?

Agreed: Members agreed the revised wording of Issue H.

The Chairperson reminded Members that the Committee had previously agreed that, in the meantime, there should be a convention which would be respected by the political parties, and which would give effect to the sentiments of Recommendation 28 of the Committee’s original report, and that the matter had been referred, formally, to the Committee on Procedures for the purposes of providing ‘certainty’ through Standing Orders.

6.3 A response from the First Minister and deputy First Minister to the Committee’s letters of 19 and 24 November, and the subsequent reminder of 3 December 2008, was tabled.

Members welcomed the letter and there was some discussion on its content.

10.27am Mr Danny Kennedy left the meeting.

On a proposal from Mr Attwood that the Committee should further respond to the First Minister and deputy First Minister with the following three questions:

Is the public consultation consistent with section 75 of the Northern Ireland Act, and will it involve the normal 12-week period for consultation?
What actions contained in the process paper are sequential, and which are concurrent?
Is there any process for the identification of a candidate for Minister of Justice, beyond nominations from Members of the Assembly?

Question put: That this Committee writes to the First Minister and deputy First Minister with the following three questions:

Is the public consultation consistent with section 75 of the Northern Ireland Act, and will it involve the normal 12-week period for consultation?
What actions contained in the process paper are sequential, and which are concurrent?
Is there any process for the identification of a candidate for Minister of Justice, beyond nominations from Members of the Assembly?

The Committee divided, Ayes 3; Noes 7.

Ayes Noes

Alex Attwood Jimmy Spratt
Carmel Hanna RaymondMcCartney
Alan McFarland Simon Hamilton
Nelson McCausland
Alex Maskey
John O’Dowd
Ian Paisley Jnr

The proposal accordingly fell.

The Chairperson suspended the meeting at 10.43am.

The Chairperson resumed the meeting, in closed session, at 2.07pm with the following Members also present:

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

7. Draft Report

Members considered an initial draft of its first report on the arrangements for the devolution of policing and justice matters.

Agreed:

- Pages 6 and 7, read and agreed.

- Page 8 ‘A Fresh Mandate’ read and agreed, subject to the inclusion of the date of the letter from the Speaker.

- Pages 9-13 ‘The Committee’s Approach’, content to be reduced.

- Pages 14-17 ‘The Category One List of Issues and the associated recommendations’, to be re-drafted and to include details of the type of decision taken by the Committee on each of the recommendations.

- Pages 18-19 ‘The powers to be transferred, and the timing thereof’, to be re-drafted and to include details of the type of decision taken by the Committee on each of the recommendations.

- Pages 20-21 ‘The appointment of a Minister’, to be re-drafted, and to include details of the type of decision taken by the Committee on each of the recommendations.

- Pages 22-23 ‘The Minister’s role in, and relationship with, the Northern Ireland Executive’, to be considered further on 6 January 2009.

- Pages 24-25 ‘The Category Two List of Issues’, read and agreed.

- Page 26 ‘The Category Three List of Issues’, read and agreed.

- Pages 2-3, Executive Summary, to be re-drafted.

- Pages 4-5, Summary of Recommendations, details to be inserted.

8. Date, time and place of next meeting

The next meeting will be held on Tuesday, 6th January 2009 at 11.00am in Room 21, Parliament Buildings.

The Chairperson adjourned the meeting at 3.54pm.

Mr Jimmy Spratt
Chairperson, Assembly and Executive Review Committee
6th January 2009.

Tuesday, 6 January 2009
Room 21, Parliament Buildings

Apologies: Mrs Carmel Hanna

The meeting opened at 11.05am in public session.

1. Apologies

Apologies are detailed above.

2. Minutes of Proceedings of meeting held on 15 December 2008

Agreed: The Committee agreed the minutes of the meeting held on 15 December 2008.

3. Matters arising

There were no matters arising.

11.09am Mr Attwood joined the meeting.

4. Devolution of Policing and Justice Matters

In relation to the issue of the devolution of policing and justice matters, the Chairperson declared the following interests:

Member of the Northern Ireland Policing Board

The Chairperson invited Members to declare their relevant interests.

Members declared the following interests:

Nelson McCausland

Member of Belfast District Policing Partnership

Alex Maskey

Member of the Northern Ireland Policing Board

Ian Paisley Jnr

Member of the Northern Ireland Policing Board

Members then turned their attention to, and considered, the following issues on the Category 1 List.

5.1.C 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?

There was some discussion on Issue C.

Agreed: Members agreed to return to Issue C during its consideration of the Category Two List of Issues.

5.1.G To which Department should the Public Prosecution Service be attached, and associated with?

There was some discussion on Issue G.

Agreed: Members agreed to return to Issue C during its consideration of the Category Two List of Issues.

6. Committee Briefing Paper 21/08/09 – Terms of the Draft Motion

Members considered a Committee Briefing Paper containing suggested wording for a motion to have the Committee’s report debated in plenary on 20 January 2009.

On a proposal from Mr Attwood that the draft motion be re-worded:

“That this Assembly, recognising the differences of views amongst the political parties, notes the First Report of the Assembly and Executive Review Committee on the arrangements for the devolution of policing and justice matters.”

Question put: That the draft motion be amended to read “That this Assembly, recognising the differences of views amongst the political parties, notes the First Report of the Assembly and Executive Review Committee on the arrangements for the devolution of policing and justice matters.”

The Committee divided, Ayes 3; Noes 7.

Ayes Noes

Alex Attwood Jimmy Spratt
Danny Kennedy RaymondMcCartney
Alan McFarland Simon Hamilton
Nelson McCausland
Alex Maskey
John O’Dowd
Ian Paisley Jnr

The proposal accordingly fell.

Mr Hamilton proposed that the following motion be tabled for consideration by the Business Committee.

“That this Assembly approves the First Report of the Assembly and Executive Review Committee on the arrangements for the devolution of policing and justice matters.”

The Committee divided, Ayes 7; Noes 1; Abstentions 2.

Ayes Noes

Jimmy Spratt Alex Attwood
RaymondMcCartney
Simon Hamilton
Nelson McCausland
Alex Maskey
John O’Dowd
Ian Paisley Jnr

Abstentions

Danny Kennedy Alan McFarland

Agreed: The Committee agreed to request that the debate be scheduled for 20 January 2009.

Agreed: Members agreed to suspend the meeting to allow the Clerk to re-draft the report and to re-convene to consider a fourth, and final, version of the report at 1.00pm.

The Chairperson suspended the meeting at 11.27am.

The Chairperson resumed the meeting, in closed session, at 1.03pm with the following Members also present:

Mr Raymond McCartney (Deputy Chairperson) Mr Simon Hamilton Mr Danny Kennedy Mr Alex Maskey Mr Nelson McCausland Mr Alan McFarland Mr John O’Dowd

7. Consideration of the draft report

Members considered a final draft of its first report on the arrangements for the devolution of policing and justice matters.

Agreed: Pages 8 – 28.

- Paragraphs 1 to 13, read and agreed.

- Paragraph 14, read and agreed, as amended.

- Paragraph 15, read and agreed.

- Paragraph 16, read and agreed, as amended.

- Paragraph 17, read and agreed, as amended.

- Paragraphs 18 and 19, read and agreed, as amended.

- Paragraph 20, read and agreed.

- Paragraph 21 and 22, read and agreed, as amended.

- Paragraph 23, read and agreed.

- Paragraphs 24 to 27, read and agreed, as amended.

- Paragraph 28 and 29, read and agreed.

- Paragraph 30 read and agreed, as amended.

- Paragraph 31, read and agreed, as amended.

- Paragraphs 32 and 33, read and agreed.

- Paragraph 34, read and agreed, as amended.

- Paragraph 35, read and agreed.

- Paragraph 36, read and agreed, as amended.

- Paragraph 37, read and agreed.

- Paragraph 38 to 40, read and agreed, as amended.

- Paragraph 41, read and agreed, as amended.

- Paragraph 42, read and agreed.

- Paragraph 43 to 45, read and agreed, as amended.

- Paragraph 46, read and agreed, as amended.

- Paragraph 47, read and agreed, as amended.

- Paragraphs 48 to 50, read and agreed.

Agreed: Summary of Recommendations – Pages 3 – 7, read and agreed subject to a proposal from Mr Hamilton that the final three sentences on Page 7 be deleted:

The Committee divided, Ayes 5; Noes 3.

Ayes Noes

Jimmy Spratt Alex Attwood
Raymond McCartney Danny Kennedy
Simon Hamilton Alan McFarland
Nelson McCausland
John O’Dowd

Agreed: The Committee agreed to delete the final three sentences on Page 7.

Agreed: Executive Summary – Page 2, read and agreed.

Agreed: The inclusion of Appendices 1 to 8 was agreed.

2.10pm Mr Maskey joined the meeting.

2.10pm Mr McCausland left the meeting.

Agreed: The Committee agreed to authorise the Chairperson to sign the minutes of today’s meeting in order for them to be included in the report.

A transcript of the minutes of evidence from the morning session of the Committee’s meeting was tabled for the attention of Members.

Agreed: Members agreed to provide any suggested changes to the transcript by midday on Wednesday 7 January in order to allow for it to be included in the report.

Agreed: Members agreed that two copies of the Committee’s report would be placed in the Business Office by the ‘close of play’ on 6 January 2009.

The Chairperson reminded Members that the debate was planned for 20 January 2009, and encouraged all Members to attend.

Agreed: Members agreed that copies of the report should be sent to a range of organisations on Monday 19 January 2009, under strict embargo, until the commencement of the debate in plenary on 20 January 2009.

Agreed: Members agreed that the report would be released to Members of the Stormont Correspondents Association on Monday 19 January 2009, under strict embargo, until the commencement of the debate, in plenary, on 20 January 2009.

Agreed: The Committee agreed that the Chairperson and Deputy Chairperson could do pre-recorded interviews with the media, on the understanding that the media respect the embargo on the report.

2.21 Mr Kennedy left the meeting.

8. Correspondence

8.1 Letter from the Secretary of State for Northern Ireland.

Members noted a response from the Secretary of State, dated 14 December 2008, to the Committee’s letter of 10 December.

Agreed: The Committee agreed to respond to the letter from the Secretary of State.

8.2 Letter to the Northern Ireland Office and other policing and justice organisations.

Members noted draft letters to the Northern Ireland Office and other policing and justice organisations about the provision of financial information.

Agreed: The Committee suggested some amendments and requested that the revised drafts be circulated, and that Members would respond with any further changes.

Agreed: Members agreed the list of organisations to which the letters should be sent.

2.31pm Mr Attwood left the meeting.

9. Appointment of a Specialist Adviser

The Chairperson reported that the Sub-Committee had given initial consideration to two bids which had been received, and that the Sub-Committee had decided to seek clarification on some aspects of those bids.

10. Date, time and place of next meeting

The next meeting will be held on Tuesday, 13 January 2009 at 11.00am in Room 21, Parliament Buildings.

The Chairperson adjourned the meeting at 2.32pm.

Mr Jimmy Spratt
Chairperson, Assembly and Executive Review Committee
7th January 2009.

Appendix 2

Minutes of Evidence

21 October 2008

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

Members with observer status present for all or part of the proceedings:
Ms Dawn Purvis

1. The Chairperson (Mr Spratt): We shall now discuss matters relating to the devolution of policing and justice. We are joined by Dawn Purvis from the Progressive Unionist Party. Welcome, Dawn. You are here at the invitation of the Committee. The presence of non-nominated members — otherwise known as observers — is taken to mean that Members of the Assembly, including Ministers, who are not members of the Committee, may, at the invitation of the Committee, take part in its deliberations, including during closed sessions. However, such observers may not vote, propose motions or amendments or be counted in any quorum. Furthermore, observers may not ask questions of witnesses that the Committee has called. However, that will not apply today, because we will be conducting a general discussion and will not be taking evidence from witnesses.

2. I invite members to declare any relevant interests. I declare that I am a member of the Northern Ireland Policing Board.

3. Mr A Maskey: I declare that I am a member of the Policing Board.

4. Mr Paisley Jnr: I am a member of the Northern Ireland Policing Board.

5. Mr McCausland: I am a member of the Belfast District Policing Partnership.

6. The Chairperson: Those interests have been noted. I am interested to hear members’ comments on the Committee briefing paper 10/08/09, which includes a suggested short-term forward work plan.

7. Mr Kennedy: The schedule indicates meetings taking place on Fridays. I object seriously to that because Friday is accepted as, and considered to be, Members’ constituency day, and their Friday appointments are block-booked for constituency work. Members are in this Building at least four days a week, and, in practice, it will not be possible to attend meetings here on Fridays. I do not rule out meeting on plenary or other work days, but I seriously object to meeting on Fridays, and I ask that that matter be reconsidered.

8. Mr Paisley Jnr: I agree. We should have sufficient time to squeeze in extra Committee sessions on Monday, Wednesday or Thursday. In addition, if we intend to take evidence, we could double up those sessions. It is a matter of squeezing meetings into the schedule. Members of the Policing Board, such as the Chairperson and I, are usually ruled out of Committee meetings on Thursdays. Surely, we could find time to meet on Mondays, Tuesdays or Wednesdays. Like Danny Kennedy, I believe that constituents should come first and that Fridays are therefore sacrosanct.

9. Mr Hamilton: I may sound like a stuck record on that matter, but I agree entirely with the previous comments. I appreciate that there may be practical difficulties regarding the support level, and so on in doing things differently and that some attempt has already been made to accommodate those arrangements; however, Fridays should be kept sacrosanct. It already seems as though we are here permanently. We are unable to meet our constituents, who are not necessarily concerned about the details of the matters that we will be discussing in this Committee. They are concerned about issues that affect their daily lives. Nevertheless, there is no reason why the Committee could not work for longer in each session. As Ian said, if we have to take evidence from witnesses, there is no need to simply hear from one group at a time; two or three groups could be accommodated in each session. The Committee must be able to conduct its business expeditiously, but without impinging on members’ need to conduct constituency business.

10. Mr McCausland: I agree that Fridays should be kept free for constituency work and other matters. It should be possible to add a little extra time to meetings. Our meetings are scheduled to start at 11.00 am, but there is no reason why they could not start at 10.30 am. There are ways to get round the difficulty.

11. Mr A Maskey: Sinn Féin members are happy to attend on Fridays, but if it helps, there are several hours on Mondays, as well as Tuesdays, when it might be possible to meet.

12. The Chairperson: I shall ask the Committee Clerk to investigate that matter.

13. At the start of the meeting, I should have declared — as I did at last week’s meeting — that I will be unavailable this Friday due to a long-standing engagement on Thursday morning. That arrangement has not changed — and will not be changing.

14. Mr Paisley Jnr: Your wife has had a word, has she?

15. The Chairperson: It is funny that you should mention that. [Laughter.]

16. Mr Hamilton: Perhaps we could start the Tuesday meetings earlier and work later. If we did that, there might not be any need to sit on another day.

17. The Chairperson: Members’ comments have been noted. We will proceed to the substantive items on the agenda, and we will see how far we get with the business today.

18. Mr A Maskey: We will have to come back to that issue.

19. The Chairperson: Yes, that is what I meant.

20. Mr Kennedy: It is important that the Committee is able to keep tabs on the plenary business. We can do that by having the television switched on, but in silent mode. That would give members the chance to see whether they are required to attend plenary business. I ask that that facilitation be granted.

21. The Chairperson: So long as the Committee agrees, that is not a problem. It has happened in other Committees that I have attended. There is no reason why that cannot happen on plenary days. Perhaps the Committee staff will keep an eye on proceedings in the Chamber and let us know when members are required. I do not want to fight with the noise of the television. I think that Simon Hamilton has already been called out, because matters have moved forward. I am aware of the need for members to know what is going on in the Chamber, and I will do all in my power to facilitate that.

22. I refer members to their briefing papers. There is no presentation today, but a number of research papers were sought from Research Services. The research paper at tab 3B provides information on the recommendations of the Criminal Justice Inspection Northern Ireland (CJINI), and it represents the third of the four papers that were proposed by Research Services, and which were outlined at the meeting on 7 October 2008.

23. Work continues on the completion of the fourth paper, which will deal with the independence and accountability of the Public Prosecution Service (PPS). Members should note those papers, and if there are any questions, our researcher will be happy to provide clarification.

24. I remind members about the short-term forward work plan referred to earlier. There are a number of ways in which we could approach this work, and I have given the matter some thought. I intend to start with issue A on the category-one list and proceed through the various issues. Previously, the Committee set a time limit of about 20 minutes for each item, but I am not keen on setting a prescriptive time limit. I do not want to have to stop discussions, but if it seems that we are not going to reach consensus, we will park the item and decide to return to it or let the Committee deal with it in whatever way it decides.

25. I am happy to take that approach, and I hope that members are content that I do so. I want to be fair to all members around the table and to give them a fair opportunity on each of the issues.

26. Mr McFarland: When we were preparing the initial report, the Committee adopted a conciliatory approach; the parties tried to find consensus on issues, and we managed mostly to avoid taking votes. How do you intend to approach this, because there are some issues with which different parties will have difficulties? It would be more sensible to try to find a consensus on issues, rather than —

27. The Chairperson: That is what I have already said: we will try to arrive at a consensus. If we cannot do that, we will park the issue and return to it for further discussion. Those issues will require further discussion, and I am happy to do that. I hope that members are happy to take that approach.

28. Mr McFarland: I wish to seek some clarity. Mention was made of parties having plenipotentiary powers to take decisions. Where did we get to on that matter last week? I saw something in the newspapers that suggested that parties were expected to authorise their delegations to make decisions on the spot. My party colleagues and I have not had the chance to discuss that issue with our leadership yet.

29. The Chairperson: That matter was agreed to at a previous meeting, which I believe you attended, Mr McFarland. Going through the list, it was agreed last week that members had the authority to speak on behalf of their groupings. Every member, including Mr Kennedy, was happy with that approach last week.

30. Mr McFarland: Where was that recorded?

31. Mr A Maskey: Danny came out of the closet last week and recognised that he was a party politician who represented the Ulster Unionist Party.

32. Mr McFarland: Our group had some discussion about this issue this morning, and we may need to revisit it.

33. The Chairperson: I assume that you will write to the Committee.

34. Mr McFarland: Sorry?

35. The Chairperson: Will you raise the issue at some point?

36. Mr McFarland: Yes.

37. Mr Paisley Jnr: For the record, Mr Chairman, we should be mindful of the motto, “Decide in haste, live in regret.” There is absolutely no doubt that certain issues will have to be taken back. We may be able to give an indication of where we are on some of those matters, but ultimately, they will be taken up at party-political level, and there are certain processes that my party will have to go through.

38. The Chairperson: I think that most people recognise that.

39. We will now move on to the category-one list, and the issues that are to be resolved by the Committee pre-devolution. The first issue is the method for the election or appointment of a Minister, on the basis that there should be a single Minister and a single Department.

40. Mr Paisley Jnr: Could I break that into two issues? It is clear from the Committee’s first report that there was some agreement that there should be a single Department and a single Minister, full stop. If we recognise that that is a position in its own right — whether or not we need to agree it again — we can then consider the method of election or appointment of a Minister.

41. The Chairperson: Do members have any other comments on that point?

42. Mr McFarland: It is fair to say that it was agreed in the Committee’s first report that there should be a single Department. This side of the table agrees that there should be a single Minister on the grounds that if we are ready to devolve powers, a single Minister could handle that. Sinn Féin and the SDLP said that there should be two Ministers, one from each community. Subsequently, the First Minister and deputy First Minister indicated that they were happy with one Minister, which was a change of position on Sinn Féin’s part. Can I have a refresher as to where everyone is on that issue?

43. Mr A Maskey: The letter from Peter Robinson and Martin McGuinness on 20 July 2008 indicates that both those party representatives wish us to consider the matter in the light of their very clear indication that there should be a single Ministry, and that a Minister would be elected by cross-community support on that occasion in the Assembly.

44. Mr Attwood: We have agreed that there should be a single Department and a single Minister. Some residual doubt arose from the Committee’s first report. That was in relation to Sinn Féin’s position, but in the light of Mr Adams’s paper and the letter from the First Minister and deputy First Minister, that doubt has been removed. As far as I am aware, everyone has agreed on a single Department and a single Minister. Ian is right; the issue is the election/appointment of that Minister.

45. The Chairperson: Do you wish to make any comments, Ms Purvis?

46. Ms Purvis: No.

47. The Chairperson: Everyone agrees that there should be a single Department and a single Minister. The other half of that issue is the method of election or appointment of the Minister.

48. The best way in which to proceed may be to go around the table in the same order as we did last week. We will take views from a party perspective and deal with the method of election or appointment in that manner. That will facilitate both Hansard and the Committee Clerks. If Committee members wish to interject after that, I will not stand in anybody’s way. We will start with Ian Paisley Jnr.

49. Mr Paisley Jnr: Thank you. The Chairperson obviously likes me.

50. Picking up from what has been said privately and in the press, I understand that there are a range of views on which method should be used to select the new policing and justice Minister. Some parties favour the d’Hondt method of appointment, whereas others favour a cross-community vote in the Assembly. The DUP obviously favours the latter method. An interesting discussion would be what form such a vote would take. For example, should any vote be weighted, should it be decided on the basis of 50:50 cross-community support or should a heavier weighting be applied? I am happy to discuss that aspect, because the DUP believes that that is one of the ways in which confidence in the role, and in the Minister, can be generated. One of our responsibilities is to ensure that the Assembly and the Executive have that confidence, and also that the public have that confidence. The DUP feel that the best way in which to generate and grow such confidence is by having strong cross-community support for the Minister.

51. Mr A Maskey: Sinn Féin’s inclination is to pursue the route that is outlined in the letter of 28 July 2008. We can return to the issue more definitively, but Sinn Fein is seeking a political accommodation. The letter indicated that that would happen, and Sinn Féin’s inclination is to support the concept of electing the Minister on a cross-community basis in the Assembly.

52. Mr Attwood: D’Hondt was hard fought for and hard won —

53. Mr Paisley Jnr: And easily lost.

54. Mr Attwood: I would not choose those words, although they are close to what I was going to say. The letter of 28 July discards the principle of d’Hondt as the means to select the new policing and justice Minister. However, the SDLP hopes that that can be changed in Committee. Given the fact that Sinn Féin has said that its “inclination” is towards the model outlined in the letter of 28 July, and the fact that Alex Maskey has indicated that his party may be more definitive, I am slightly more hopeful of achieving that. His comments suggest that there could be some residual doubt surrounding the letter of 28 July. I hope that that doubt does exist, because the SDLP hopes to convince people to return to what was hard won and should not be easily conceded; namely, that the principle of d’Hondt govern ministerial entitlement.

55. In order to agree the method of election or appointment of the Minister, we must probe what the line in the letter of 28 July that there should be a cross-community vote “at all times”. What does that mean, and what are the consequences of that wording for the remainder of the lifetime of this Assembly and for any future Assembly? That phrase suggests that, in this and future Assemblies, a veto power will be granted to a party if a vote takes place in the Assembly on who can be the justice Minister, or on who can stay on as the justice Minister. The preferred principle of the SDLP is the d’Hondt mechanism. We hope to convince people to return to that principle.

56. Mr Paisley Jnr: May I ask the member a question?

57. The Chairperson: Yes.

58. Mr Paisley Jnr: I recognise that the SDLP has a principled position on d’Hondt, and that they are entitled to hold that. However, does the SDLP recognise that, in order to achieve consensus, build confidence — both on the unionist side and across the unionist community — and move matters forward, that principle is worth setting to one side, thus allowing the entire Assembly to have its say. Does Alex see any merit in that?

59. Mr Attwood: The SDLP has always recognised the need for there to be confidence. The fact that confidence has been generated is as a result of our using d’Hondt. That mechanism builds confidence in the parties and the community, because no one party has an unfair advantage or unfair representation, and all who are entitled to a share of ministerial power, to Committee representation, to places on district policing partnerships (DPPs) and the Policing Board, or to roles in other areas of public life have an equal basis and equal entitlements in the North where the d’Hondt formula is applied.

60. To answer Ian’s question, the proof of that is that d’Hondt currently informs party appointments to DPPs and the Policing Board, where adequate levels of confidence exist for parties, including Sinn Féin and the DUP, to share responsibility for policing. If d’Hondt is a good enough principle to help create the circumstances in which there is shared responsibility for the difficult issue of policing, both locally and regionally, and the world has not caved in, the Policing Board has not collapsed and the DPPs continue to function, it is certainly good enough to be used for the difficult issue of justice. For those reasons, I ask whether Ian accepts that, given that it has been essential in building confidence in political institutions and policing arrangements, there is no reason to cease to use d’Hondt. If the d’Hondt mechanism has been good enough to inform the sharing of responsibility for the difficult issue of policing — nobody has walked off the Policing Board, nor has anyone cried foul or thrown a tantrum — why is it not good enough to be used for the difficult issue of justice? If it is not good enough to be used for the difficult issue of justice, does not that suggest that politics rather than principles are at work?

61. Mr Paisley Jnr: Politics surround many aspects of the devolution of justice powers, but two main points arise. First, I recognise that it is a favoured principle of the SDLP that a mathematical mechanism be used to share out offices. I accept that party’s reasons for favouring the use of d’Hondt. However, although I recognise that principle, there is an onus on the SDLP to recognise that when we, as representatives of the unionist community, say that confidence needs to be built due to the highly controversial nature of the matter, the method used to select the Minister must be enhanced in such a way that our community feels confident enough to move forward.

62. No one on the Committee needs a history lecture, but our first Parliament collapsed because of the loss of security powers. The Government here ceased to exist in a recognisable form for almost 30 years over the removal of security powers. In order to build confidence, one must recognise that unionists need something more than merely the normal method used to select a Minister. That is why we want to involve the entire Assembly in making that selection and in endorsing it.

63. Issues around the administration of policing and justice will arise all over the Province, and those issues will include people’s views on sentencing, abortion, policing, and how parades are handled and policed — all of which are incredibly controversial. It will be perplexing for the Minister — of whatever hue — to take a position on those issues. On that basis, the Minister will need to have the support and the endorsement of a strong majority in the Assembly, and one that cuts both ways.

64. One means of building and enhancing confidence is for the Minister to be selected by a cross-community vote in the House. Some recognition should be given to what we are trying to build into the process. I am not trying to diminish the SDLP’s attachment to, and principled support for, the d’Hondt process, but it must be recognised that unionists have never been enchanted by, fully supportive of, or cheerleaders for d’Hondt. To be fair, I think that the SDLP does recognise that fact, but it should state it on record.

65. Mr McFarland: Is Ian saying that, were the Minister selected by way of a cross-community vote, enough confidence would exist for policing and justice powers to be devolved?

66. Mr Paisley Jnr: That alone would not be sufficient to address all the issues around unionist confidence. However, on the question of the method of election, by the time that we get all the way through the process, we should have more answers. That is part and parcel of a confidence-building process that requires a building-block approach: no single block achieves it, but some critical blocks must be put in place. The selection and appointment of a Minister who can generate confidence in the unionist community, from which Mr McFarland comes, will be critical to instilling that confidence.

67. Mr McFarland: On the method of election, policing and justice powers will be delivered only when there is confidence that they can be devolved. That, presumably, will occur when the situation is normal and people do not feel threatened. Should that situation come about, it will facilitate, as Alex Attwood said, a hard-won system that enables each party to take its pick of the portfolios that it considers important.

68. Therefore, logic dictates that, in a situation in which there is enough confidence to devolve policing and justice powers, the process would be started again; it may be that the DUP would want the justice Ministry ahead of the finance and personnel portfolio, or that the SDLP would consider policing and justice to be the most important Ministry. The logical thing to do then would be to start the process in the same way as at the start of an Assembly’s mandate — provided that we are at a stage at which there is normality and confidence, and where policing and justice is regarded as just another Ministry.

69. If that level of normality and confidence is not present, how is it possible to devolve policing and justice powers? However, should that confidence exist, the logical approach to take is to restart the process, share out the Departments again and allow parties to take their pick based on their priorities.

70. Mr McCausland: The devolution of policing and justice is a difficult and sensitive issue, which is why we are spending so much time and expending so much energy discussing it, and why so many papers have been written about it. That is obvious and indisputable.

71. The uniqueness of the post means that it requires particularly careful handling — not just because of the policing dimension but, as Ian highlighted, because the role has a wider remit that impinges on other areas of legislation. It is no help to get hung up on the d’Hondt method as some sort of divine revelation that was brought down from Mount Sinai and that, therefore, bears a divine imprimatur as being the only way in which to proceed.

72. It is better to recognise that difficulties exist and that it may be easier and more helpful to allocate the Ministry on the basis of a cross-community vote. That would send a signal that whoever takes responsibility for policing and justice has the support of all sides in the Chamber, because all Members will have had a say in that decision, and that is helpful and good.

73. On Alan’s point, no single act will create community confidence and acceptance. That will come about as a result of working on various things. If how the Ministry is allocated helps, so be it. The cross-community-vote method is best.

74. Mr A Maskey: I want to avoid starting every discussion with a political preface; otherwise, the Committee will be meeting until next year. It has been said that d’Hondt is sacrosanct — of course it is. Many people fought very hard for that type of proportionality to be built into the institutions. I am mindful that not everyone — including the SDLP — has always practised the principles for which they argued. Let us call a spade a spade and lay some wee demons to rest. Alex Attwood’s party, most notably in Belfast but also in other councils, has shafted mine. The SDLP did not care about d’Hondt, proportionality or local interests.

75. That is fair enough; that is in the past — for the most part. We are now talking about reaching a political accommodation, and my party is now doing its level best to reach an accommodation with other parties. I do not accept for one minute that not enough confidence exists in the unionist community in order for policing and justice powers to be devolved. However, I am working on the basis that we are trying to reach an accommodation with other parties, so whether I agree with Ian’s position is neither here nor there.

76. Mr Paisley Jnr: Mr Maskey says that he does not accept that there is a lack of confidence in the unionist community. However, if we are to reach an agreement, he should accept that if we, as representatives of the unionist community, say that lack of confidence is an issue, it is an issue. There should be a recognition that that is the actual position, and not one that has been made up for the optics or for the fun of it — it is a principled position. If we are to lead our community on the matter, we must build its confidence. I must accept it when the Mr Maskey says that the republican community is eager and hungry for the devolution of policing and justice powers. I assume that he speaks for the republican community, so he should assume that we speak for the unionist community.

77. Mr A Maskey: Ian has made a case, and that is fair enough. I am simply saying that, based on my practical experience, I do not accept that there is a lack of confidence. However, whether I accept that fact is neither here nor there — it is academic. Sinn Féin is working to reach a political accommodation with Ian’s party and other parties. Ian is saying what he is saying, and my party is trying to work with his party to resolve the matter on that basis. That is crucial; that is what moving forward is about.

78. In a way, Alan McFarland is right about the need to run d’Hondt. No one has any direct entitlement to a post. For example, if an additional Department is created, who says that any one party should automatically be given the right to run it? I work on the basis that all parties are quite capable of running a Ministry of justice, if they put the right person in post. Moreover, as with all the other Departments, sufficient checks and balances would be in place to ensure that all citizens were protected from abuse from any party or Minister. I am working on the basis that we are operating within a framework into which checks and balances will be built, and into which more can be built if we think that they are necessary. That approach would allow work to go ahead, and it would allow people to feel comfortable and safe about any progress made, particularly given that we are dealing with such a touchy issue.

79. Alan is right, but d’Hondt should be run from the start. Who knows who will take what Department? I want to put to bed the argument that one person or party is somehow more protective of, or wedded to, the principle of d’Hondt. Sinn Féin is protective of that principle, too, but, by the same token, my party is trying to reach a political accommodation and is, therefore, prepared to consider a whole range of measures in order to achieve that end. I want to make that point now so that I do not have to repeat my political preface every time the Committee tackles an issue.

80. Many of the issues are linked. I want a Minister for justice to be appointed as soon as possible. At this stage of the game, it is probably best to do that on the basis of cross-community support, which is provided for in the Good Friday Agreement, never mind the St Andrews Agreement or anything else. It is included as a requirement in the Good Friday Agreement. From Sinn Féin’s perspective, any agreement that is reached will be an interim agreement, because the matter cannot be determined “for all times”. Again, I do not want to have to rehearse the politics, and I hope that other Committee members will not feel the need to do so either.

81. Ms Purvis: I must first make my apologies, because, unfortunately, I will have to leave this meeting to attend another meeting. It would have been useful to have had sight of the letter of 28 July, because some Committee members have referred to it, and I am not sure to what exactly they are referring.

82. I understand what Alex Attwood said about the principle of d’Hondt, given that I participated in the discussions on the matter. I know that the battle for d’Hondt was hard fought for and hard won. However, nobody will die in a ditch over that principle. If we can find a mechanism that helps us to achieve the devolution of policing and justice powers and elect a Minister by cross-community support for the lifetime of this Assembly, the principle of d’Hondt can be returned to later.

83. If we are serious about the devolution of policing and justice powers, we must find a mechanism to facilitate that. If the stumbling block is whether the Minister is elected using the d’Hondt system or one that requires cross-community support, the d’Hondt system can be set aside. Nobody will die in a ditch over that, and there will not be a public outcry.

84. I agree with Alan McFarland that, if we are determined to stick by the principle of the d’Hondt system, the whole process will have to be run again, for which nobody is in the mood. Whether electing a Minister by way of a cross-community vote will give confidence to the unionist community remains to be seen, but it will help us to get over the hurdle of electing a Minister.

85. The Chairperson: Do Committee members agree that we forward the letter of 28 July to Dawn Purvis and the other three parties with observer status?

Members indicated assent.

86. Mr Attwood: Dawn Purvis said that the letter of 28 July provides a model for the lifetime of this Assembly. Is that what the letter is proposing?

87. Ms Purvis: I did not say that — I have never seen that letter. I said that other Committee members have referred to the letter, and it would be useful for me to see it. I also said that if we find a mechanism to get us over the hurdle of selecting the Minister, it could be a model for the lifetime of this Assembly.

88. Mr Attwood: I thank Dawn for that. However, the model that the First Minister and the deputy First Minister proposed in the letter of 28 July is based on a cross-community vote. Is that proposed model for the lifetime of this Assembly?

89. Mr Paisley Jnr: It is for all time. The letter states “at all times”.

90. Mr Attwood: Is that Sinn Féin’s understanding of the phrase?

91. Mr A Maskey: No, and with all due respect to Ian, that is not the DUP’s understanding of the phrase either.

92. Mr Attwood: That is why I was so anxious for the First Minister and the deputy First Minister to appear before the Committee. I have repeatedly asked for a definition of “at all times”. The DUP is saying now, and saying explicitly, that “at all times” means now and in future, and Sinn Féin is saying that that is not its understanding of the phrase. In the absence of the First Minister and the deputy First Minister, I will draw my conclusions from Ian Paisley Jnr’s remarks rather than Alex Maskey’s.

93. Mr A Maskey: Why is that?

94. Mr Attwood: Ian Paisley Jnr has the authority to speak on behalf of his party in Committee.

95. Mr A Maskey: I also have that authority.

96. Mr Attwood: I know that.

97. Mr A Maskey: You are choosing the judgement of one person over that of another. Therefore, you are saying that one of us is a liar or one of us is —

98. The Chairperson: Committee members must make their comments through the Chair.

99. Mr Attwood: I am not questioning anyone’s good faith.

100. Mr A Maskey: Yes, you are.

101. Mr Attwood: I am not. I am saying that there is tension between Ian Paisley Jnr’s saying that he understands “at all times” to mean now and in future, and your saying that that is not your understanding of the phrase. Ian speaks on behalf of the DUP in this Committee.

102. I want a clear understanding of that phrase, which is why I have repeatedly asked for an explanation of it, and why I asked the First Minister and the deputy First Minister to appear before the Committee. I suspect that they have not come before the Committee because, although they both signed the letter of 28 July, they may not agree on what “at all times” means. They may or may not have the same interpretation of that phrase, but I want to know either way. That is why my asking whether “at all times” means the lifetime of this Assembly is so interesting, Dawn. As you have heard, there may be some tension between the two parties that signed off on the letter of 28 July, and they may be contradicting each other.

103. We must explode some of the myths that surround the devolution of policing and justice powers. I say to Ian that I do not deny that it is an important, sensitive and controversial issue. However, over the past six or seven years, Ian and Alan have spent a great deal of time on the Policing Board.

104. Never will there be more controversial or sensitive issues than those that came before the Policing Board over the past six or seven years. We have dealt with Special Branch; the Police Ombudsman’s Omagh inquiry; the appointment of senior officers; and so forth. Therefore, the political parties’ mettle has been tested, and their ability to share responsibility on the most difficult, controversial and sensitive issues is proven. The parties came through those tests, and they did so in the absence of working political institutions. One might assume that those tests would have made it more difficult, yet the parties measured up to the task and got over the line. It was not easy, and there was much controversy. However, the parties brought the community with them, and reassurance can be drawn from that. The parties, including the one that has been sitting on the Policing Board for only the past year and a bit, measured up to their responsibility. That is a good precedent to inform how the Assembly should deal with the devolution of justice powers and how the appointment to the Ministry should be handled.

105. Alex Maskey is wrong to say that the Good Friday Agreement and Northern Ireland Act 1998 contain cross-community provisions on the appointment of Ministers — they do not. Cross-community provisions exist on Assembly decisions. I acknowledge that, at St Andrews, the DUP negotiated other checks and balances on Executive decisions. However, the Good Friday Agreement contains no provisions for cross-community voting on the appointment of any Minister. Alex may want to check that, and perhaps the Committee Clerk could provide a briefing paper on the matter. Yes, the DUP subsequently negotiated several further concessions, but cross-community provisions on the appointment of Ministers were not included in the Good Friday Agreement.

106. Mr A Maskey: I do not want to go off at a tangent, but I understand the Good Friday Agreement, because I was there when it was negotiated. At times, some parties like to think that no one else was there other than them, but quite a number of others attended, too.

107. Mr Paisley Jnr: Too many people were there.

108. Mr A Maskey: Exactly, but it was good that they all attended, and it would have been nice had certain other people been there, too.

109. The Good Friday Agreement contains many provisions, and people must read all of it rather than simply the bits that they like. I resent Alex Attwood’s earlier statement. Two Committee members made comments — namely, Mr Paisley Jnr and I — and Alex clearly stated that he believed one member but not the other. I resent the implication. Alex Attwood talks about trying to get on with members, so he should, at least, try to gain their respect, and he will not do so by taking that attitude. I am satisfied that the matter will be clarified and resolved, and that it is a matter for the Assembly.

110. Mr Paisley Jnr: It is important that we work through the issue. I agree that there is no need to get hugely distracted. Although Alex Maskey may think that Alex Attwood is my friend, there is a great deal of history between us, so that is not necessarily the case.

111. Mr Attwood: Alex Maskey is your friend, Ian.

112. Mr Paisley Jnr: It cuts both ways. It is an interesting debate, and I do not want to interfere in a family dispute across the table. The second paragraph of the letter of 28 July 2008 contains six separate points of agreement, the first of which is:

“We believe that your consideration should be based on a single Department”.

113. The second one is:

“in which policing and justice powers would reside with a single Minister”.

114. The third is that the Minister should be “elected”.

115. The fourth is that the Minister be elected:

“at all times from the Assembly”.

116. The fifth is that the Minister be elected:

“in a way which would ensure cross-community support.”

117. The final one is:

“We have agreed that initially neither of our parties will nominate one of our members for the post of Justice Minister.”

118. If the First Minister and deputy First Minister were here, they would confirm that that is the position that they took on those six issues.

119. Mr McCausland: The point has been quite clearly made that the letter specifically states that the Minister should be:

“elected at all times from the Assembly”.

120. There are no qualifications of what that means; it does not even say “from this Assembly”, which could be interpreted in several ways. The letter quite clearly states that the position of the First Minister and deputy First Minister is that the Minister should be elected at all times from the Assembly:

“in a way which would ensure cross-community support.”

121. How a cross-community vote will be taken is another matter, but that seems very clear.

122. The other point that I will make is a general response to both nationalist parties. They should accept our word that there is sensitivity about this issue. That is not a fabrication that people dream up — that is the reality that I hear from people who come into my constituency office and from people whom I meet on the streets. I can only speak for my own constituency, but there is sensitivity about the issue, and that is why we need to handle it very carefully.

123. Mr McFarland: It is worth reminding ourselves of the context. There is sensitivity concerning this issue, partially because people do not fully understand the situation. The Chief Constable is in charge of operational policing, and neither the Policing Board nor the justice Minister will be able to interfere with that. Operational policing is the Chief Constable’s call.

124. The Policing Board is responsible for personnel, buildings and so on, which we are not allowed to interfere with. The Court Service and the justice system are operated by the Lord Chief Justice. The Court Service is an agency, which we cannot interfere with, and the Prison Service and the Probation Board for Northern Ireland are both operated as agencies. One could argue that the Minister’s powers will be limited to budgeting — and that is an issue across the Floor of the House — and introducing new laws, which would be subject to a cross-community vote in the House.

125. Those matters are ring-fenced in a way that should allay fears. There is an issue about who is in charge, and that has been addressed by the two largest parties agreeing not to take the position — at least initially. We need to put a context to all of that. If we then have confidence, which is the only situation in which the powers can be devolved, I cannot understand why there is paranoia about having to have numerous cross-community votes in perpetuity.

126. The Chairperson: We have had a fair discussion about those matters. It seems that there is a consensus around the table on the issue of a single Department and a single Minister. Parties have indicated that further discussions are needed about the cross-community vote and how the appointment or election of the Minister would be achieved in the Assembly. During the debate, two or three members indicated that they need to discuss that elsewhere. I propose that the Committee parks that issue at this point and comes back to the second element at a future stage. Are members content?

Members indicated assent.

127. The Chairperson: We now move on to the issue of whether the policing and justice Department will be additional to the existing 11 Departments. I know that Simon Hamilton was absent for some of the discussion as he was taking part in a debate in the Chamber. We used a similar format to last time — we went around the parties in order and then had a general discussion after that.

128. Mr Hamilton: I apologise for being away for so long. The debate in here was probably more entertaining than the debate in the Chamber.

129. Our position is that a policing and justice Department should be additional to the existing 11 Departments. The number of Departments would, therefore, increase to 12. However, it is also our party’s position that there should be fewer Departments. That reduction cannot be realised at this stage, but it is worth mentioning as part of the Committee’s longer-term work programme. For a country the size of Northern Ireland to have 12 Government Departments would lack credibility in the long term.

130. Mr A Maskey: The discussions indicate that policing and justice is likely to be an additional Department, and our party has no problem with that in principle.

131. Mr Attwood: I welcome the fact that Sinn Féin and the DUP both feel that policing and justice should be an additional Department; that is the right decision.

132. Mr McFarland: The only way that a policing and justice Department can be created in the short term is by an Order in Council through Westminster. However, that will not be sustainable in the long run or even beyond the next Assembly election. An examination of other Departments may have taken place by that time. Therefore, policing and justice must be an additional Department in the short term.

133. The Chairperson: There appears to be consensus among the Committee that a policing and justice Department should be additional to the existing 11 Departments. Members have already made up the extra time that was used to discuss issue A.

134. We move to issue C: what would be the status of the Minister’s position in, and relationship with, the Executive Committee?

135. Mr Hamilton: We understand the Assembly’s current set-up and procedures and the relationship between Ministers and the Executive Committee. We are keen that there should be a different relationship. I am aware that that is being discussed, and we would like to return to the matter at a later stage.

136. Mr A Maskey: We are happy to leave the matter for now and return to it at a later point.

137. Mr Attwood: It is our party’s view that a justice Minister would be the Minister of a twelfth Department, and, therefore, should have the same status and authority as any other Minister and enjoy equality around the Executive Table with the other Ministers.

138. Mr McFarland: Irrespective of the short-term arrangements, until the next election, policing and justice must be a full Ministry position and run under the d’Hondt system. One Minister must not be hobbled somehow. If we reach the stage of full confidence in the devolution of policing and justice, its Minister must be equal to other Ministers.

139. The Chairperson: Is it the Committee’s position that we should park issue C and return to it at a later date before we finalise our report?

Members indicated assent.

140. The Chairperson: We move to issue D: would the appointment of a Minister be an interim arrangement until the next Assembly election?

141. Mr Hamilton: Are we going to rerun the debate that I missed earlier? I would like to have a go at that one. Where has this question come from?

142. The Chairperson: I need to consult the list.

143. The Committee Clerk: My recollection is that one of the parties raised that issue.

144. The Chairperson: It was, perhaps, a party question that was included on last week’s list.

145. Mr Hamilton: I want to be certain before we address that point.

146. The Committee Clerk: The Alliance Party’s written submission raised the issue of the time period that the justice Minister would serve.

147. Mr McFarland: It is, in effect, the same as the second part of issue`A. The question is whether the arrangement is for the duration of the first Assembly or is a permanent measure that continues indefinitely.

148. The Chairperson: The Alliance Party raised the issue during the initial discussions. Therefore, if members require clarification, it is important to do so at the start.

149. Mr Hamilton: We assumed that that was the question. The point Alan makes is, generally, right. The DUP believes that the issue is not the term of a Minister, rather the arrangements for appointing that person. Our position, outlined in our answers to the second part of the first question, would follow through into that.

150. The Chairperson: So we would come back to that?

151. Mr Hamilton: Well, if we have parked the other one, that would be the case.

152. The Chairperson: Before we get into a general discussion, I will ask each party for its view.

153. Mr A Maskey: Some members of the Committee do not appear to know what their party agreed to, but that will become clear later. I do not want to enlighten people and spoil their afternoon. As far as Sinn Féin is concerned, those would be interim arrangements.

154. Mr Attwood: The SDLP believes that the appointment of any Minister should last until the next Assembly election, subject to the call of the party’s nominating officer. Under our model, the appointment of a justice Minister will last until the nominating officer decides that that person should no longer be a Minister. We do not buy into any interim arrangement as outlined in the letter from OFMDFM, and we do not buy into any arrangement that continues into future assemblies as is outlined under one interpretation of the OFMDFM letter.

155. Mr McFarland: The argument is the same as previously, when Ian Paisley Jnr said that it was a permanent system and Alex Maskey said it was a temporary system for the duration of the first Assembly. We need clarification on what was agreed by the First Minister and deputy First Minister. That will, presumably, shed light on the matter.

156. The Chairperson: Let us not get into the previous debate again. There seems to be some confusion on that matter, and, therefore, we should park it. Is the Committee agreed?

Members indicated assent.

157. The Chairperson: Issue E concerns the arrangements for removing and/or replacing a Minister once appointed. That issue was raised by the Alliance Party.

158. Mr Hamilton: There may be a need to come back to this issue, but, on the face of it, it is a revisiting of the arrangements that were previously agreed — if a Minister is removed, for whatever reason, he or she will have to be replaced.

159. Mr Attwood: I will ask a question that may or may not narrow the apparent difference around the table. The letter of 28 July refers, according to Sinn Féin, to the lifetime of this Assembly, and, according to the DUP, to the life of any Assembly. Let us put that aside for the moment. In the lifetime of this Assembly, will the justice Minister, under your joint proposal, be subject to a cross-community vote once he or she has been elected? In other words, does “at all times” mean that in the lifetime of this Assembly the Minister is subject to a cross-community vote with regard to his or her continuing in office?

160. Mr Hamilton: If we are talking about the lifetime of this Assembly only for the purposes of this discussion, then that is correct.

161. Mr A Maskey: We can discuss the current arrangement, but it may not be applicable because we have not actually finally agreed how we might elect any Minister. That will have to be defined before we can discuss how the Minister might be removed.

162. Mr Attwood: Can I ask —

163. The Chairperson: I am not happy with you asking question after question. I gave you some latitude a short time ago, but perhaps you can answer the question that other parties have asked.

164. Mr Attwood: I will answer the question from my party’s point of view. The responsibility for nominating and removing a Minister lies with the nominating officer of a political party. That is the current model in place in the Assembly, and that is the model that should apply to a justice Minister in the lifetime of this Assembly, and at all times, until and unless all the parties agree to an alternative mechanism. The power resides with the nominating officer to appoint and to remove, and that is not subject to the call of any other party or to any vote of the Assembly.

165. Mr McFarland: It depends what you are talking about. If in fact the new Ministry is subject to the d’Hondt procedure, then it is the decision of the party to remove or replace the Minister. If it is subject to some other system of cross-community voting, then a new system, with another cross-community vote to remove the Minister, will have to be devised. It depends entirely on the answer to the previous questions, which we cannot answer because it is not yet clear where that discussion is going.

166. The Chairperson: A number of members have made that point. The other issues such as the election, or appointment, of the Minister need to be clarified first. Do members agree to park that issue and come back to it at a later time?

Members indicated assent.

167. The Chairperson: We move now to issue F, which deals with the name of the Department. We will make that the last one before we break for lunch, as we have moved forward reasonably well.

168. Mr McCausland: The last time we discussed that, the view of the DUP was that it should be the Ministry of home affairs.

169. Mr Attwood: I think that that is the Ulster Unionist proposal.

170. Mr McCausland: Harmony may have broken out between the parties. Peace, love and harmony prevailed.

171. The Chairperson: That is a simple answer — home affairs. That is a start.

172. Mr A Maskey: I thought they decided on policing and justice, or perhaps justice and policing. I do not think that it is something that we need to spend 20 minutes on.

173. The Chairperson: We will perhaps deal with another issue, if we get a quick answer to this one. It is important for the purposes of the legislation, so we do need to have some serious discussion about it.

174. Mr A Maskey: Can we have a working title of the justice Department, just for now?

175. The Chairperson: Ok; the suggestions are the home affairs Department and the justice Department.

176. Mr Attwood: I refer to my reply the last time this issue was discussed. There will be no consensus about any proposal for a Minister of home affairs, and a variation of the Ministry of justice and policing, or policing and justice, seems to be the most representative title.

177. Mr McFarland: Chairman, I need to consult further on that. We had an endless discussion about this the last time, and I need to check where we eventually got to.

178. Mr McCausland: According to Alex, if two parties on one side of the room agree on it, that makes it representative.

179. The Chairperson: There certainly does not appear to be consensus on that particular issue at the minute. The vibe that I am getting from members is that further discussion is necessary within their own groupings. We will come back to that at a future meeting. Are members agreed?

Members indicated assent.

180. The Chairperson: We got through that much more quickly than I thought we would, so we will take the next issue, G: what would be the structure of the policing and justice Department, and what functions should be placed there and/or with OFMDFM? That is a fairly loaded question and will take some time.

181. Mr McFarland: That is a major issue.

182. The Chairperson: I like to give people a reasonable break; it is unfair not to do so. Therefore I will go back to my original decision and suspend the meeting at this point. I ask members to be back at 1.30 pm.

Committee suspended for lunch.

On resuming —

183. The Chairperson (Mr Spratt): Before lunch, we had left off at —

184. Mr McCausland: Chairman, I am concerned that we will move into other areas of discussion before outstanding issues have been resolved. The fact is that it was clear before lunchtime that there is misunderstanding, misapprehension and confusion about the first item on the category-one list, issue A. I refer Committee members back to the letter of 28 July. The letter has two signatories: the First Minister, Peter Robinson, and the deputy First Minister, Martin McGuinness. Both signatures are on the letter, and the letter is genuine. Both Ministers have signed up to the same model.

185. The second paragraph of the letter indicates that the model that should be considered is for a single Department. There is no dispute about that, nor is there dispute about a single Minister. Argument arose about the part of the letter that states that that single Minister would be:

“elected at all times from the Assembly in a way which would ensure cross-community support.”

186. The phrase “at all times” could never, by any stretch of the imagination, mean anything other than “at all times”. It does not mean “for a short time”, nor “in the interim”. It means “at all times”, because that is what it says. That is to what Peter Robinson and Martin McGuinness have put their signatures. Therefore, in that letter, Martin McGuinness has stated that a single Minister will be:

“elected at all times from the Assembly”.

187. As I pointed out before lunch, had it said “from this Assembly”, one could, if one were to be a bit disingenuous, have argued that it meant “for the term of this Assembly”. However, it says “from the Assembly”. That is confirmed by the final sentence of the paragraph, which begins “We have agreed that initially”. Therefore, in the course of this Assembly, if there were to be devolution of policing and justice powers, neither of our parties would nominate to the post of justice Minister, or if powers were devolved subsequent to this Assembly, the first nomination, neither of our parties would nominate a Minister to the policing and justice portfolio on their first pick.

188. The key phrase is “at all times”. That is such a fundamental point that all our subsequent discussions today are meaningless and irrelevant until we get that phrase clarified. Martin McGuinness tells us one thing in his letter, yet Alex Maskey tells us something different. Therefore, I propose that we end that confusion by adjourning the meeting to allow time for reflection and clarification, and in order to see which of the two voices, Martin McGuinness or Alex Maskey, speaks for Sinn Féin. We should also seek legal advice as to what is meant by the term “at all times”.

189. Mr Hamilton: I second that proposal, Chairman.

190. The Chairperson: Do any members have any other comments to make on that?

191. Mr Attwood: I am opposed to the meeting being adjourned. This is the first real go that we have had at the category-one issues, and we should not be derailed from continuing. For weeks, we have given the opportunity to the First Minister and the deputy First Minister to come and explain to us what the letter means. They have not taken that opportunity, yet we are now asking that one or both go off and work out what the letter means. That is not a sensible way in which to proceed. We agreed a schedule, and we should stick to that schedule by working through the issues this afternoon. If the letter is open to various interpretations, let those who are in dispute go off and work out what it means, if they can. Nelson outlines one interpretation of the letter, and his is the more obvious interpretation.

192. Mr McCausland: Thank you.

193. Mr Attwood: However, it may not be the two relevant Ministers’ understanding of it. I am open to persuasion that Alex Maskey’s interpretation is accurate. We should not seek legal advice on a letter in the hands of other people. That should not fall to us at this stage. Perhaps it should never fall to us, but, in any case, it is premature. I oppose our seeking legal advice to arbitrate on a dispute between the First Minister, Peter Robinson, and the deputy First Minister, Martin McGuinness. That is not what we should do.

194. The phrase “at all times” carries huge weight. However, the letter also defeats d’Hondt. Not only does it, arguably, mean a cross-community vote in perpetuity to elect whomever the justice Minister may be — we know how certain parties may use that in future — it defeats d’Hondt.

195. Mr McCausland: Hear, hear.

196. Mr Attwood: There may be a “Hear, hear” from the DUP, but we should not forget that, over and above the interpretation of “at all times”, the letter contains issues that are much more fundamental.

197. Mr McCausland: I must respond to Alex Attwood’s point. He agreed that it was the “most obvious interpretation”.

198. Mr Attwood: I said, “more obvious”.

199. Mr McCausland: The “more obvious interpretation”. In fact, it is so obvious that it is the only interpretation; there can be no other.

200. Mr McCartney: Alex Maskey outlined our position this morning, and Sinn Féin stands by it. The Committee has no need to take legal advice. The phrase

“at all times from the Assembly”

201. could mean, and does mean, that only someone from the Assembly can be elected to the office.

202. Mr Paisley Jnr: That interpretation would require a comma, would it not?

203. Mr McFarland: We started off with the letter’s being the basis on which we were to look at all the outstanding issues, and we have run into a difficulty as to whether the phrase should be interpreted in one way or another. We need clarification, and, in order to get that, we really need the First Minister and the deputy First Minister to identify what it is that they are asking the Committee to do. We also need them to clarify the meaning of their letter. I support an adjournment until we get that clarity.

204. Mr Hamilton: I also support there being an adjournment. We have before us a letter that forms the basis of an agreement between the First Minister and the deputy First Minister on issue A. No reasonable, rational person could read that letter and come to any other conclusion than the phrase “at all times” means not only means for the lifetime of this Assembly but in perpetuity.

205. That, for my colleagues and me, is one of the fundamental building blocks for progress to be made — it is central to our achieving agreement — so, even if we sat here all afternoon or, indeed, for days to try to iron out our differences by discussing the other category-one issues, there is little point in our doing so until some people also agree that our interpretation of the phrase is the more obvious interpretation.

206. Mr McCausland: It is the natural interpretation.

207. Mr Hamilton: Yes. There is precious little point in going into any further detail on the remaining issues, because issue A is the building block — if agreement is not reached on that issue, we are not going anywhere.

208. The Chairperson: Can we clarify the DUP proposal? I am not 100% sure of what you are proposing, and I think that the Committee Clerk is not 100% sure. Is the proposal that we adjourn until we get the First Minister and the deputy First Minister to appear before the Committee?

209. Mr McCausland: No. We want to adjourn the meeting, because parties need to go away and hold some internal discussions. We also need to receive some technical advice on the meaning of the phrase “at all times”. I am sure that Alex Attwood would have every confidence in his legal colleagues coming up with a natural and obvious interpretation of the phrase.

210. Mr Attwood: One pays for the advice that one gets.

211. Mr McCartney: Ten lawyers will disagree with the DUP’s interpretation.

212. Mr Attwood: One pays for the advice that one wants.

213. Mr McCausland: The First Minister and the deputy First Minister signed a letter. It means what it says, and it says what it means — or it should.

214. Mr McCartney: Members may have their own interpretation of the wording, but that does not move us any further forward. We can proceed with our discussions on the other issues, with a caveat attached to issue A.

215. During this morning’s discussions, we said that we could not discuss an issue, or that we could return to it because we had to decide on something else beforehand. If a proposal is put on the table, I also want the Committee to discuss the indicative time frame for our concluding our report. We must firm up the days on which the Committee is to meet.

216. The Chairperson: Nelson has reiterated his proposal. What needs to be done now?

217. The Committee Clerk: I do not know what comes after “until”, because wording in the proposal changed from “legal advice” to “technical advice”. My assessment —

218. Mr Paisley Jnr: Why not modify the proposal to state that we adjourn, seek advice and meet again as soon as possible?

219. The Committee Clerk: Who is to secure the advice?

220. Mr Paisley Jnr: The parties. It appears pretty obvious that the parties need to go away and obtain clarification.

221. Mr Attwood: I wish to make a counter-proposal that we conclude our business today, after we have gone through the other category-one issues, and that we meet —

222. Is the next Committee meeting scheduled for Thursday or Friday?

223. The Committee Clerk: Friday.

224. The Chairperson: However, there was a discussion earlier about whether we should meet this Friday.

225. Mr Attwood: I propose that we reconvene on Friday, having concluded our business today.

226. Mr McFarland: I thought that we had decided that we would not meet on Fridays.

227. Mr McCausland: The understanding was, Chairperson, that we would not be meeting this Friday but would, if necessary, extend the time allocated to future Committee meetings. The Assembly is in recess next week, so you are saying that our next meeting will be today fortnight.

228. Mr O’Dowd: If we are seeking clarity, a one-hour suspension will allow both of the parties that have a view on the issue to go away and speak to their parties. We can then return.

229. Mr McFarland: Chairman, it is not simply a case of the DUP and Sinn Féin Committee members speaking to their respective parties. The problem is that there is fundamental disagreement between the two parties that signed the letter of 28 July as to what it means. That letter is the basis on which we are meeting, because the First Minister and deputy First Minister asked us to meet to discuss all the outstanding issues. It is absolutely daft that, at the first hurdle, there is fundamental disagreement about what the letter, to which both parties are signatories, means.

230. I suggest that we get clarification, either through the parties holding internal discussions or through their talking to each other. Alternatively, we get the First Minister and the deputy First Minister to clarify what the phrase “at all times” means, and then we can start again.

231. The Chairperson: There is a proposal on the table, which has been seconded, that we come back after the recess, having had the wording clarified and having got whatever advice is necessary. That is one proposal. Alex Attwood then made a counter-proposal —

232. Mr Attwood: It was an amendment to the original proposal. I said that we should continue our business today and reconvene on Friday.

233. Mr O’Dowd: The Division bell is ringing, Chairman. Are we being called for a vote?

234. Mr Kennedy: No, the plenary sitting is starting again in three minutes, and I am the first Member down to speak.

235. The Chairperson: What is your proposal, Mr Attwood?

236. Mr Attwood: I propose that we conclude our business today, having gone through the agenda, and we reconvene on Friday.

237. Mr O’Dowd: I propose that we suspend business for one hour to allow the parties to return with clarification.

238. The Chairperson: Is there a seconder for Alex’s proposal?

239. The Committee Clerk: It does not need a seconder, Chairman. Three proposals are on the table.

240. The Chairperson: In which order do we vote on the proposals?

241. Mr Kennedy: There are three separate proposals.

242. Mr McCausland: They are not amendments.

243. Mr Kennedy: We should vote on them in the order in which they were proposed. If the first proposal secures a majority of Committee members’ votes, the other two fall.

244. The Chairperson: OK. Nelson McCausland’s proposal is that we return after the recess, having had matters clarified. Do you have the wording of the proposal?

245. The Committee Clerk: To be frank, I am still not sure as to who is securing the clarity. Who will —

246. Mr McFarland: The two parties that signed the letter.

247. Mr McCartney: It is up to members from the two parties involved to go back to their respective parties and work on that —

248. The Chairperson: And return after the recess? Is that correct? On Tuesday 4 November?

249. Mr McCartney: Can that be amended to Monday 3 November?

250. The Chairperson: The wording that I have before me states that we reconvene on Tuesday 4 November.

251. Mr McCartney: We have already had a proposal, which the Committee voted in favour of last week, that we have to conclude our report by a certain time.

252. Mr McFarland: “Seek” to conclude.

253. Mr McCartney: OK; whatever.

254. Mr McFarland: “Seek” to. It is a very important word is “seek”.

255. Mr McCartney: OK — “seek to”. However, the Committee Clerk outlined a timetable this morning, which included meeting on Friday —

256. The Chairperson: We could continue to argue for ever. I am going to put the first proposal to a vote. There has been enough discussion.

Question put, that proposal No 1 be made.

The Committee divided: Ayes 6; Noes 3.

AYES

The Chairperson (Mr Spratt), Mr Hamilton, Mr Kennedy, Mr McCausland, Mr McFarland, Mr Paisley Jnr.

NOES

Mr Attwood, Mr McCartney, Mr O’Dowd.

Question accordingly agreed to.

257. The Chairperson: We shall now adjourn and meet again on 4 November.

11 November 2008

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

258. The Chairperson (Mr Spratt): I have received an apology from Dawn Purvis who cannot attend today’s meeting. She attended the previous meeting.

259. I invite members to declare any interests. I will begin by declaring an interest as a member of the Northern Ireland Policing Board.

260. Mr McCausland: I am a member of Belfast District Policing Partnership.

261. Mr A Maskey: I am a member of the Policing Board.

262. The Chairperson: Raymond, do you have anything to declare.

263. Mr McCartney: No.

264. The Chairperson: I ask Members to speak up a little as the meeting is being recorded. I ask members and visitors in the Public Gallery to check that their mobile phones are fully turned off, as they interfere with the recording equipment. I thank everyone for their co-operation.

265. I turn now to the Committee briefing paper, which has been slightly revised following discussions on the letter of 28 July 2008 from the First Minister and deputy First Minister. We will deal with that paper alongside that letter, as indicated earlier.

266. I also invite members to note a briefing paper from Research Services. There will not be a presentation on the briefing paper, which is about the independence and accountability of the Public Prosecution Service for Northern Ireland. That represents the last of the four papers proposed by Research Services, which were outlined at the meeting on 7 October 2008.

267. A supplementary research paper has also been included in the members’ pack. Again, there will be no presentation on that paper. I invite members to note the paper, which has been prepared by Research Services and is on the policing governance structures in other jurisdictions. If necessary, Research Services will attend a future meeting to answer questions that members might have on either paper. At the end of the meeting, it would be helpful if members would advise the Committee Clerk of the details of any questions that they wish to put to the researchers about the papers.

268. I refer members to the letter from the First Minister and the deputy First Minister dated 28 July 2008, and I also refer members to a letter from the First Minister and deputy First Minister, which was received yesterday evening and is being circulated now. The letter is brief and will not take long to read. In light of this letter, the Committee needs to consider whether it wishes to accept the offer to meet the First Minister and deputy First Minister in a private session. If members agree to that, they will then have to decide who should be invited to attend the meeting. For example, should members of the Alliance Party, the Green Party, the Independent Health Coalition and the PUP be invited to attend in observer status, as was the case before? Furthermore, the Ministers will be accompanied by special advisers, who will, obviously, also attend the meeting.

269. As we have done in the past, I will take the views of the parties on the letter from the First Minister and deputy First Minister.

270. Mr McCausland: Our position has been that we wanted them to come along. It is good that we have received the letter. My party has no difficulty with the attendance of political parties that are not represented on the Committee or with the presence of the ministers’ special advisers.

271. Mr A Maskey: My party is more than happy to accept the offer in the letter and agree to a meeting next week. We are happy for the other parties to attend, if they so wish.

272. Mr McFarland: Yes. It has taken a year, but it will be good to have the Ministers in front of us.

273. Mr Attwood: My party has other concerns arising from the letter. May I deal with those now?

274. The Chairperson: Let us deal with the invitation first, and the issues that I have mentioned, after which, I will be happy to deal with any other issues that you wish to raise.

275. Mr Attwood: My party feels that the observers should be invited to attend the meeting.

276. I propose that the meeting be held in public; the reasons for which are self-evident. It is now the best part of two months since we invited the First Minister and the deputy First Minister to appear before the Committee. For several reasons, government has been held up and put into abeyance during that time. One reason for that has been the devolution of policing and justice powers. Given the high political profile of the issue, and the heightened public awareness of the impasse, the proposed meeting will do little to ease political tensions and public anxiety surrounding the matter if we decide to meet in private. There are compelling grounds of public interest and political necessity for deciding that the meeting should be held in public.

277. If the First Minister and the deputy First Minister are big enough and bold enough to write to us, and to put their letter of 28 July 2008 in the public domain, they should be big enough and bold enough to explain, in public, what that letter means and any other matters arising from it.

278. It shows disrespect to the Committee and to the public to declare that one thing was agreed on 28 July 2008 but that the next meaningful thing from the First Minister and deputy First Minister will be heard in private. If the First Minister and deputy First Minister are prepared to put the letter of 28 July 2008 in the public domain, in the first instance, then people have a right and an expectation to hear everything.

279. The profile of the issue, heightened public awareness, the compelling public interest and because the First Minister and deputy First Minister decided to make public the 28 July 2008 letter makes clear to me that they must be prepared to tell the public their current beliefs, and I so propose.

280. Mr A Maskey: The most compelling public interest for the Committee is that it gets on with its job. The First Minister and deputy First Minister have acceded to the Committee’s request; and we have agreed, I believe, that they will be here next week. I am happy to hold that section of the Committee meeting in private. There are important issues to be dealt with, and I think that it is wholly appropriate that we deal with them next week in private.

281. Mr McFarland: In general, I support Mr Attwood’s view. However, the reality is that the Committee needs to have a detailed discussion with the First Minister and the deputy First Minister, which is probably best held in private initially because we are likely to get more out of them in those circumstances. I believe that a meeting with them in public session should take place as soon as possible afterwards, rather than at the end of the process. There is an issue about seeing them explain developments on policing and justice in public.

282. The Chairperson: That is an issue that can be raised with the Ministers through questions next week.

283. Mr Hamilton: I have nothing in particular to add, other than to endorse the comments of the previous two members. Mr Attwood runs the risk of almost sounding begrudging — after having desired a meeting for umpteen weeks, when he gets it, he picks fault with it. However, as Mr McFarland said, serious matters must be discussed, and a more open and frank discussion is likely to be had in a private session. I believe that that is the best way forward.

284. Question put, That the attendance of the First Minister and deputy First Minister at the Committee’s meeting on 18 November 2008 should take place in public session.

285. The Committee divided: Ayes 2; Noes 8

AYES

Mr Attwood, Mrs Hanna.

NOES

The Chairperson (Mr Spratt), Mr A Maskey, Mr Hamilton, Mr Kennedy, Mr McCartney, Mr McCausland, Mr McFarland, Mr O’Dowd.

Question accordingly negatived.

286. The Chairperson: The Committee has therefore agreed to meet the Ministers in private session.

287. As regards that private session, the Committee must agree whether the discussions will be kept confidential; for example, by applying the Chatham House rules. If that is agreed, I ask parties to abide by the decision to keep the discussions confidential. Is the Committee happy to keep those discussions confidential?

288. Mr Kennedy: I always have a slight concern about the difference between the phrases “Chatham House rules” and “in strict confidence”. Chatham House rules allow information to be attributed without identifying an individual, which seems inappropriate in this case. It may be better to bind ourselves more tightly to confidentiality.

289. The Chairperson: Do members agree to keep those discussions in strict confidence?

Members indicated assent.

290. The Chairperson: I will reply to the First Minister and the deputy First Minister when the meeting is over and inform them of what we have agreed.

291. Mr Attwood: Mr Chairperson, I wish to raise the matters that I mentioned earlier.

292. First, in response to Simon Hamilton — I was not being begrudging; I want everyone to share in the joy of the First Minister and deputy First Minister’s attendance at our next meeting.

293. Secondly, the Committee has already asked the First Minister and the deputy First Minister to share a paper with us about the areas on which there is broad agreement on the devolution of policing and justice and the areas that they refer to as problematic. Given that they have decided to attend the Committee and share their wisdom with us, they should also share that paper with us — the Committee has agreed that everything will be conducted in confidence. As the paper, whatever its condition is important to give us an understanding of their position — it is appropriate that the Committee has sight of the paper before next Tuesday, because it will help inform our discussions and questions to Peter Robinson and Martin McGuinness. I ask where the paper is and, depending on the answer I receive, I may make a proposal.

294. Mr Paisley Jnr: It would be helpful if the member asked the First Minister and deputy First Minister those questions when they are here. If we are inviting the First Minister and the deputy First Minister to our next meeting, we could ask them whether they want to provide us with a paper that day, which could act as an aide memoire or discussion point. There have been developments since the paper was made. The member is entitled to out the question to the First Minister and deputy First Minister, but whether he is entitled to have sight of their paperwork prior to the meeting, is another story.

295. Mr A Maskey: I am happy to wait for the meeting and let the First Minister and deputy First Minister share their wisdom with the Committee.

296. The Chairperson: I do not think that anyone will be short of questions for the both of them when they come before the Committee.

297. Mr Attwood: Subject to what the Committee Clerk recalls — and this is something that pre-dated Mr Paisley Jnr and Mr Hamilton’s joining the Committee — we agreed to ask the First Minister and deputy First Minister for a paper. Following a conversation that the Chairperson and Deputy Chairperson had — I am not sure whether it was with Robinson and McGuinness or their officials — they indicated that there were areas which were problematic and areas in which there was broad agreement. The Committee asked for a paper in the middle of September. I am not asking for something that the Committee has not asked for already: we asked for it before, and I am fairly certain that the Committee, the Chairperson or the Deputy Chairperson communicated that request, but we have not received the paper.

298. To identify the rubbing points between the First Minister and the deputy First Minister — if there are any — and to ensure that we maximise the opportunity to question them, we should honour our decision to get a report. We have asked the First Minister and deputy First Minister for a document. I am not talking about working papers, Ian; it is a paper that they said that they —

299. Mr Paisley Jnr: I think that they should bring an updated paper to the Committee.

300. The Chairperson: Just to clarify: I made a verbal report on behalf of the Deputy Chairperson and myself to the Committee. I am not aware that it was indicated to us that there was an actual paper: I think that they said that there were other points that they would want to share with the Committee at a later stage. I am not aware that there was any suggestion of an actual paper.

301. Mr McFarland: It would be helpful if we had something of that nature to help focus us next week rather than have everyone ask questions that they may have agreed or have answers to already.

302. The Chairperson: The Committee Clerk will prepare a brief for the Committee, as is the normal procedure. Beyond that, I feel that the consensus from members who have spoken — taking Alex Attwood’s point into account — is that people are happy to put questions to the First Minister and deputy First Minister when they are here next week. It is legitimate for Mr Attwood or Mr McFarland to ask the Ministers about the points that have been raised. The Committee Clerk’s office will send a briefing paper to members along with their packs on Thursday as normal.

303. Mr A Maskey: There is a serious proposition in front of us — which we have already endorsed — to have the First Minister and deputy First Minister come here next week. Everyone is aware that the matters that we are dealing with are serious and substantive, and everyone has expressed their views on that. The purpose of having both Ministers here next week is so that we can start to press those matters directly with them. They have indicated that they want to be here next week and take part in further public sessions.

304. For me, this is a serious engagement, and everyone has important issues that they wish to address. I, like other members, am looking forward to addressing those issues next week when we can deal with them directly. People can ask for all the papers that they want, and they may or may not get them, but when we are dealing with Ministers directly, face to face, we can ask all the relevant questions that we need to ask.

305. Mr Attwood: I ask the Committee Clerk to tell us what has been recorded in the minutes.

306. The Chairperson: We will have to give the Committee Clerk a few moments. We can come back to that. It will take a minute or two to go through the minutes.

307. Mr Attwood: We can come back to that.

308. The Chairperson: I cannot remember how many meetings back the issue was raised.

309. Mr Attwood: It was during the middle or the third week of September roughly.

310. Mr Kennedy: Given what Ian Paisley Jnr has said about whether a paper is produced or made available for the meeting by the First Minister and deputy First Minister, could that be issued to members in advance, or even on the day of the meeting at 9.00 am, so that we could have a chance to look at it before the meeting to avoid duplication of questions?

311. The Chairperson: I am happy to clarify that, and to indicate that if a paper is being produced, members should get it before the meeting. It is a matter for the First Minister and deputy First Minister as to how they want to handle that. I can add a line in the letter to that effect if it will help. Mr Attwood, are you happy with that?

312. Mr Attwood: Subject to what the minutes of the previous meeting say.

313. The Committee Clerk: I do not have all sets of minutes to previous meetings to hand.

314. The Chairperson: We will clarify that.

315. Mr Attwood: We will be here all day, so there is plenty of time to find out.

316. The Chairperson: I suggest that the Committee Clerk draw up a revised work plan to include the meeting that will take place in closed session with the First Minister and the deputy First Minister. At that meeting, there will also be a resumption of the detailed consideration of the issues on the category-one list of 18 November 2008, and subsequent meetings, and to provide time for an initial and general discussion on the handling arrangements for considering the category-two list of issues.

317. I seek the Committee’s agreement to make arrangements to procure some expertise on the financial issues contained in the category-two list, on which we have already touched.

318. It will take a wee period for that to be sorted out. I want the Committee to authorise us to allow the Committee Clerk to obtain whatever expertise is needed to facilitate those discussions — particularly around the financial issue — if he finds that the expertise is not available in-house. Do members agree to that?

319. Mr McFarland: We must be sensitive when it comes to the justice issues to which the Assembly has no link. We must also be sensitive to the fact that the Policing Board will have responsibility for the financial issues on policing, and Committee members who are on the Policing Board will know that a committee of the board deals with those financial issues. We must work out how we will interface without cutting across the Policing Board’s responsibilities.

320. The Chairperson: I understand that. Obviously, we will seek the views of the Policing Board officially. However, we are simply talking about the financial issues in the category-two list. Perhaps I am not explaining the matter properly. I will hand over to the Committee Clerk.

321. The Committee Clerk: I am happy to produce an initial briefing paper that will address the financial issues that the Committee should consider. Mr McFarland has made a fundamental point; for example, just as the budget for the justice element of the policing and justice family in Northern Ireland rests with the Ministry of Justice in large proportion and is not part of the Northern Ireland Office budget, which looks after the policing element, there is a requirement to tease out the financial detail of all the various agencies, bodies and organisations that make up policing and justice, or that may form the newly structured Department for policing and justice. There is work to be done.

322. Mr Paisley Jnr: Have you a detailed list of all of the agencies that fall into that category? Could you include in the Committee’s work plan how we might meet those agencies to find out their budgets, their current bids, what bids they were refused and where they have budget pressures. On that basis, we might get a much more accurate picture of Government spending on the justice side. Most of us who sit on the Policing Board are more familiar with the pressures on the policing budget. The justice side, however, appears to be a large black hole.

323. The Committee Clerk: The briefing paper that I will provide will touch on those issues. When the Committee took evidence from the Northern Ireland Office in its original inquiry into the devolution of policing and justice matters, a fairly comprehensive letter set out the budget for each of the organisations for which the Northern Ireland Office had responsibility, but it also included financial data in on the Court Service, the Public Prosecution Service, and so on, as well. The development of that information would aid the Committee.

324. Mr Paisley Jnr: There must be 12 agencies.

325. The Committee Clerk: There are 28 agencies.

326. Mr Paisley Jnr: Does that include the organisation that provides legal aid?

327. The Committee Clerk: No, the list includes the Legal Services Commission.

328. The Chairperson: We are working on the programme. However, we have got into a discussion on category-two issues. I want the Committee to authorise the Committee Clerk to bring in someone to advise specifically on the issue, if the expertise is not available in-house. It may be that the expertise is available in-house, and, if so, there is no issue. However, once we have secured expertise, we can then start work immediately, rather than wait until we move on to the category-two issues, at which point we would have to go down the same route but wait until expertise could be located. That would allow the Committee to take a short cut — arrangements could be put in place earlier. Can members agree that point?

329. Mr Attwood: What are the precise arrangements?

330. The Chairperson: To deal with category-two matters — those that involve financial matters — after we have dealt with category-one matters. Although I do not know the extent of the work that will be required in that specific area, it has been drawn to my attention that there may be a need to bring somebody in to assist the Committee, and, therefore, at this early stage, I am asking the Committee Clerk to make the necessary arrangements.

331. Mr Paisley Jnr: Serious research into the matter is essential.

332. The Chairperson: The Committee Clerk will investigate whether such work must be done and advise us on the questions that we should ask. For example, those of us who sit on the Policing Board should know whether there is a major deficit in the policing budget, and advice from a person with financial expertise would allow such a matter to be teased out. It makes sense to have someone in place in order to allow such investigations to take place. In effect, I am asking for the Committee’s approval for the Committee Clerk to make those arrangements.

333. Mr McCausland: We all appreciate the pressures on policing budgets; however, when one is dealing with 28 agencies, one cannot be familiar with them all, so such expertise would be helpful.

334. Mr Attwood: I agree that the Committee must seek best advice, so the suggestion that we find an independent specialist to provide such advice is reasonable. Nevertheless, to do so would further delay the entire process. Consequently, I wish to seek guidance from the Committee Clerk that he can act expeditiously.

335. The Chairperson: Mr Attwood may have missed the point that I am attempting to make. I am attempting to get the expertise in place so that there will not be a delay later. That cannot be achieved overnight, so I am asking members to agree that it should be done now. Although I do not know how long it might take to get such a person in place, I suspect that it would not take too long.

336. Mr Attwood: What is the time frame for appointing such a person?

337. The Chairperson: Would it be a procurement matter?

338. The Committee Clerk: I cannot say for sure, but if the Committee is asking me to begin preparation work for the consideration of the category-two issues, which include finance, my first port of call will be to ascertain whether the Assembly’s Research and Library Services has the capacity to provide such advice. If not, Research and Library Services will guide me in determining how to otherwise secure the support that the Committee appears to want. Providing that the Committee’s requests are in keeping with its mandate, I am sure that the secretariat will expedite any such requests, and a response should be forthcoming relatively quickly.

339. The Chairperson: Do members agree to such a request?

Members indicated assent.

340. The Chairperson: Do members wish to raise any other matters? Correspondence was mentioned.

341. Mr McFarland: My point concerns the degree of confusion about the good workings of the Committee. The minutes from our Committee meeting on 21 October record that we resolved:

“That the Committee should now adjourn and resume consideration of matters relating to the devolution of policing and justice on 4 November 2008, provided that, by then, the DUP and Sinn Féin had clarified, to the Committee, what the correct interpretation of the first sentence of the second paragraph of the letter of 28 July 2008 from the First Minister and deputy First Minister should be.”

342. Members should note particularly:

“provided that, by then”.

343. Last week, some Committee members were telephoned to turn up to a meeting that ended up not being quorate. Normally, only the Chairperson can call a meeting of the Committee. The Chairperson did not call a meeting last week, so I cannot understand why the Committee Clerk should have sent members a letter saying that people turned up and that were ready to meet. In fact, my office received a call urging me to come along to make up a quorum. If the Committee is to work properly, it must have rules, and those rules state that the Chairperson calls meetings before we turn up. I am confused as to how we got to the stage at which members turned up last week for a meeting that did not exist.

344. The Chairperson: I did not call a meeting last week. However, the First Minister and the deputy First Minister will appear before the Committee next week. Therefore, we are moving forward. That said, if a future meeting is arranged at a previous meeting, the Committee Clerks and the Assembly team must turn up at the Committee Room on the arranged date. On that basis, the Committee Clerks and some members turned up last week, but there was no quorum. In fairness to the Committee Clerk, he provided a briefing note — not a letter — that outlined the position. It is normal procedure that if a meeting is scheduled, Committee staff will turn up, not least to inform people that it is not taking place, in case they did not receive a letter to that effect.

345. I do not want to get into a discussion about the matter, because it is not a major issue. However, I did not call the meeting, because no response to the issues raised had been received. On that basis, I signed off on a letter, which all members received. I do not know whether anyone got in touch with the Committee Clerk’s office about the matter, but no one got in touch with me. However, I called the meeting off, and I take full responsibility for doing so.

346. Mr Paisley Jnr: I received a letter from you, which was passed to me in the Chamber last Tuesday between 10.30 am and 10.45 am. It set out the facts and stated that I was not being called; therefore, I assumed that the meeting had been cancelled. I was on standby to attend the meeting, but I did not even know what Committee Room to go to when I received the letter. That was the only area of confusion on my part.

347. The meeting was called off — end of story. Later in the day, we received a briefing note stating that it had been called off, and there was some media interest in the matter. However, we received a letter from you, and I accepted what it said. Therefore, to my mind, that was the end of the story. There is no doubt that there was some confusion, but things have moved on since then. It is water under the bridge, and the letter from the First Minister and the deputy First Minister has moved the matter on.

348. Mr Attwood: Like Ian, I am glad that we have moved on since last week. However, technically, if you are to be consistent, you should not have convened a meeting for this week if your interpretation of the motion that was passed at the previous meeting was that no meetings should take place, as there was no clarification from Sinn Féin and the DUP regarding the correct interpretation of the first sentence of the second paragraph of the letter of 28 July from the First Minister and the deputy First Minister. Therefore, technically, you should not have convened a meeting for this week, but it is water under the bridge, and I am glad that we are all here.

349. However, we need clarification on a couple of questions that were flagged up at last week’s ad hoc meeting. First, given the nature of the Committee’s business, if a precedent has been set, whereby decisions about meetings and other matters are decided jointly by the Chairperson and the Deputy Chairperson, when does that precedent not apply?

350. Secondly, within two or three weeks of the Assembly’s giving the Committee a mandate, a majority on the Committee, which is democratic, can, nonetheless, impede the work of the Assembly, which has made a unanimous decision. What are the rubbing points? I flagged up those matters with other members last week, and I am flagging them up again, because we may need to get further advice.

351. The Chairperson: You said that there was a meeting last week, but there was no meeting.

352. Mr McFarland: To return to Alex’s second point, the Committee revisited the devolution of policing and justice because the letter of 28 July tasked it with some business. It was not clear what the business was, because the First Minister and the deputy First Minister were not clear about it. On the basis of that letter, which stated that there was agreement between the First Minister and deputy First Minister, we went to the Assembly to get a new mandate. It was evident at the meeting of 21 October that the DUP and Sinn Féin disagreed over what that letter meant. The basis on which the process was to be started was unclear, so it strikes me that it was absolutely in order to go back to the authors of the letter, tell them that there is clear disagreement and ask them what the position is. It was quite in order for the Committee to ask how it can continue with its business when it is not clear about the starting position.

353. The Chairperson: Of course, the authors of the letter will appear in the front of the Committee next week. The member will then have an opportunity to ask those questions of the two Ministers.

354. Mr McFarland: Yes, absolutely.

355. The Chairperson: All those issues can be raised with the First Minister and the deputy First Minister next week.

356. Are there any other comments? At this point, I intend to draw the meeting to a close. Next Tuesday’s meeting will begin with a closed session with the First Minister and the deputy First Minister, after which I suggest that we resume detailed consideration of the issues on the category-one list. I think that we had reached issue G on that list at our previous meeting. Are Members agreed?

Members indicated assent.

357. The Chairperson: The meeting is now over.

18 November 2008

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

358. The Chairperson (Mr Spratt): I remind members that the meeting has returned to public session. The recording equipment is switched on, and members must ensure that their mobile phones are switched off.

359. The next item on the agenda is the consideration of the Committee briefing paper, which is at tab 3 of members’ packs. I invite discussion and seek agreement on the forward work programme, which is Committee briefing paper 13/08/09 at tab 3(b) of the members’ packs.

360. Before we proceed, I declare an interest as a member of the Northern Ireland Policing Board.

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

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

363. The Chairperson: It is important that the Committee agrees the forward work programme. Following agreement on that paper, I intend to resume discussions on the category 1 list of issues, starting at G, which was agreed previously. Following that, I want to have a short discussion on the category 2 list of issues. Such discussions will allow the Committee staff to make the necessary arrangements for inviting whoever is required to assist us with our deliberations on, for example, the financial area, as we discussed last week. I am sure that the Committee Clerk will be able to inform us whether that is required.

364. Mr Paisley Jnr: I see that you want to start at G. However, I note from what we have received today that F has now been answered.

365. The Chairperson: We have been tasked to go through them all formally. My understanding is that we have to read all of them into the record. As a result of what members heard earlier, some of them may require very little discussion. The process beyond that is that several issues have been parked up to G, and there may be some issues parked between G and the end, and then we must go through those issues again.

366. However, we must concentrate on the paper in front of us. Members will need to look at the remainder of the issues today. On Tuesday 25 November at 11.00 am, in room 144, there will be the continuation of the consideration of the category 1 list of issues, meaning those issues that have been parked. There will be continued discussion on that matter.

367. Mr Paisley Jnr: I am having difficulty with the programme. It should be flexible, as we will need to accommodate the Office of the First Minister and deputy First Minister (OFMDFM) again following any progress it makes on the financial side.

368. The Chairperson: The financial issues are in category 2. However, some discussion will be needed on that.

369. We must agree the forward work programme first, and we will then go into a full discussion on it. Any continuation needed on the category 1 list will be dealt with on 2 December, and there will be a conclusion of the category 1 list on 9 December. The Committee Clerk has already indicated that he will write up the issues and, on that date, there will be a preliminary report that we will be able to discuss.

370. The Business Committee will meet on Tuesday 6 January. It is this Committee’s intention to have the category 1 report, which was agreed last week, included in a plenary session on either of the first two days back after the Christmas recess. The final report of phase 1 on the category 1 list of issues may have to be agreed on 5 January to allow it to go to the Business Committee on 6 January. However, that decision can be made closer to the time.

371. The Committee Clerk: The Business Committee schedules business two weeks ahead, as opposed to just one week ahead. That would allow for the scheduling of the debate on 19 or 20 January.

372. The Chairperson: So, that is the date that we are aiming for. Are members happy with the forward work programme? It may have to be tinkered with. I will open it up now for discussion.

373. Mr McFarland: I know that the previous discussion that we had about increasing our meetings was related to having to report by 18 November. Are we happy that we will need more meetings? Reference was made earlier that the Office of the First Minister and deputy First Minister is going to press the NIO for full financial details. I see that we are doing the same. I just wonder whether —

374. The Chairperson: That is category 2.

375. Mr McFarland: Finance is category 1.

376. The Chairperson: No; some of it is. The main detail of it is category 2, and that is where it would be discussed.

377. When we discuss category 2, anyone who is required to question the NIO on that will be brought to the Committee. We have heard about the Chief Constable’s budget, and holes in other budgets were mentioned earlier. It will be for the Committee to decide when we discuss the category 2 list, and that is when the main work on that will be done.

378. Mr McFarland: The First Minister and the deputy First Minister said that they are crashing off now — now — to try to identify in detail all the financial pressures. If they are going to do that, why are we duplicating the work? Presumably, by the time that we come to discuss category 2, all that detail will have been released to the First Minister and the deputy First Minister and will be available to us.

379. The Chairperson: I assume that some of it will, but I understand that we will need to question that and ensure that other issues are not hurtling down. I understand that the First Minister and the deputy First Minister are already talking about some immediate pressures. The Chief Constable has made it clear that there are immediate pressures on the budget of the police service, so the First Minister and the deputy First Minister are discussing that. I have no doubt that they are discussing other pressures, and they said that they would discuss those with the Committee. I imagine that an onward discussion will take place, particularly on the finances.

380. Mr McCartney: Each week, the Committee Clerk writes up what we have agreed. Therefore, the report is written as we progress. If we were to agree something on Tuesday 9 December, the Clerk would be left to write that up over Christmas before we come back to approve what he has written on Monday 5 January. Therefore, can provision be made, if required, for an extra meeting between 9 December and 16 December?

381. The Chairperson: I do not think that there is any problem with that.

382. The Committee Clerk: To clarify, if the Committee reaches decisions and agrees on any of the elements on the category 1 list, those will be reported in the minutes of proceedings, which will be subject to scrutiny by the Committee. Therefore, any decisions that are taken today will be reported in the draft minutes of proceedings, which members will consider and approve next week. Those minutes will then be published. The Deputy Chairperson has referred to a developing situation.

383. Mr Attwood: I endorse Raymond’s comments, but perhaps I do so from a different perspective. On the basis of the process paper that has been provided by the First Minister and the deputy First Minister, and on the basis of what we have just been told, it is likely that the debate on the Committee’s first report will take place in the third week in January. If all the other process points in the paper were followed, the process would be completed, at the earliest, after summer 2009. That is unavoidable, and from the perspective of the SDLP, it does not represent an agreed time frame.

384. It may be that nothing can be done about that, because the parties in the Office of the First Minister and deputy First Minister have agreed to the process. However, under the quickest possible time frame, the process will take to the end of 2009. Therefore, any slippage will push it later than that. I agree with Raymond that, if necessary, we should seek extra meetings and longer meetings in order to complete the responsibilities that are identified in category 1, and to get those to the Floor of the Assembly at the earliest possible date. If a debate were to take place in third week of January, it would be the third week in November — at the earliest — before policing and justice could be devolved, if there were no hiccups or electoral interventions.

385. Mr Paisley Jnr: We must be wary of putting any spin on dates. The DUP was not told any dates today. We can all play that game, but we can either be mature or immature. Deadlines can be set, but as has been said before, once a deadline is set in Northern Ireland, it almost becomes a macho issue as someone wants to bust through that deadline. We all know the problems that we face, and that some of those will take longer to resolve than others. However, it is immature to bait each other on the question of when devolution will take place.

386. Mr O’Dowd: The two witnesses from OFMDFM stated that they would do everything in their power to ensure that the process is resolved. I am surprised to hear Alex Attwood say that he does not accept OFMDFM’s time frame, because I did not know that the SDLP had its own time frame for the matter. It is news to me that the SDLP’s time frame is tighter than the one offered by OFMDFM.

387. The process before us is fresh and new, so we should not pick it apart at this meeting. We should continue our work programme and work to ensure that it is implemented.

388. Mr Attwood: It is not immature to point out that although there has been 150 days since the last Executive meeting and we have waited two months for the witnesses from OFMDFM to appear before the Committee, the witnesses did not even outline what the process will mean. Consequently, Committee members have been left to make their own judgement about what the process will mean.

389. Given the length of the legislative process, both here and in Westminster, and that community consultation will have to take place, it is only reasonable for the SDLP to estimate the time frame that we are working under. The community consultation will last 12 weeks, and without it the process would be subject to a challenge by someone or some group with a vested interest — if not Mr Allister — going to court to say that the process must comply with certain requirements. If OFMDFM is not prepared to rebut the SDLP’s estimated time frame, it is even more reasonable to conclude that it is accurate.

390. I was pointing out that if OFMDFM says that it will move heaven and earth — or whatever language it chooses to use — to get the process over the line, the Committee should move heaven and earth to get it over the line. If that means extra meetings to accelerate the early part of the process to ensure that it does not get spun out and battered by electoral interventions and other circumstances beyond our control, it is a reasonable to make that point.

391. Mr McCartney: There is a danger that Committee members will begin referring to the answers that we were given in confidence during the private session. I have neither read nor heard anywhere that there will be a formal public consultation lasting 12 weeks.

392. Mr Attwood: Thank you for that clarification.

393. Mr McCartney: It was not a clarification; it was an observation that I made from what I heard this morning — there is nothing to suggest that there will be a formal public consultation, and none of the witnesses said that there would be one.

394. The Chairperson: The word “formal” was never used.

395. Mr Paisley Jnr: As I have said before, I do not want to get involved in a dispute between two members of the same family. However, we should move on and address the material before us.

396. The Chairperson: I am bringing the discussion back to that. Alex, you may have been out of the room at the time, but I said that any need for further meetings can be discussed and decided on by the Committee. Are Committee members satisfied with the work plan that is before them?

Members indicated assent.

397. The Chairperson: The second issue is whether the Committee should publish its report in one or two parts. In previous discussions, Committee members indicated that we should go through category 1 and present the first part of the report to the Assembly during a plenary session in early January 2009. The Committee must formally agree on that so that the Committee Clerk can produce the report in time. Do Committee members agree to publish the report in two stages, and to present the first stage to the Assembly at a plenary session in early January 2009?

Members indicated assent.

398. The Chairperson: I refer Committee members to the Committee briefing paper 11/08/09 to resume discussions on the category 1 list. I assume that we continue on the same thrust as we did on the previous list. We start at G. I will allow someone from each party —

399. Mr McFarland: Can I suggest, in the interest of efficiency, we had A to F and, at the time, we did not have the information that we have now? Some of the issues were solved earlier on — they have been answered. It might be worth going —

400. The Chairperson: No; we are starting off at G, which we have already agreed to do. We will then go through the rest of the list. The Committee has agreed to go back to the issues that were parked.

401. Mr McFarland: Why?

402. The Chairperson: I am chairing the meeting, Mr McFarland, if you do not mind?

403. We will start off with G, which is:

“What were the structures of the policing and justice Department and what functions should we place there and/or OFMDFM?”

404. Mr McFarland: Last week, we asked for a chart to ease our understanding of all the different complex issues. Those of us who have been on the Committee for the past year know that it is a complex issue, with all the different departments. We suggested at the last meeting that it would be helpful.

405. The Chairperson: I am not aware of any chart. There was a chart previously, and then the work was put into this format and agreed in this format. So, I am not —

406. Mr McFarland: I mean a chart of the departments — the parts of the justice Department.

407. The Chairperson: In fairness to the Committee Clerk, I am not aware of that question’s having being asked. There is no indication that that was asked for. However, if you are asking for that, I am sure that it can be worked up.

408. Mr McFarland: What all the different departments are and what they all do is quite a complex issue. A chart would help us when we come to look at finance, etc. Much of how issues would transfer across was agreed in our initial report.

409. The Chairperson: These are all issues that the parties, and everyone else, have raised in the category 1 list. They have been put into this format and they were agreed. We are now at G. I will go round each party, as has been the normal procedure, and I will allow up to 20 minutes of discussion on each issue. If we do not come to a consensus, the issue will be parked, and we will come back to the list as we have already agreed.

410. I have read G into the record. I will hear first from the DUP.

411. Mr Hamilton: At this stage, the only point that the DUP wishes to raise is that we heard earlier about the agreement on judicial appointments being carried out by the Judicial Appointments Commission (JAC), and we would like to have clarity on that issue. However, there may be other issues that we may wish to return to later.

412. The Chairperson: OK. I will hear now from Sinn Féin.

413. Mr McCartney: Sinn Féin has a fairly similar position. I am conscious of what has been said this morning about JAC, and Sinn Féin wants to hear what OFMDFM has to say in the future.

414. The Chairperson: OK. I will hear now from the Ulster Unionist Party.

415. Mr McFarland: Can I find out what this is about? I know that someone asked the question, but that does not mean that it is sensible. The question is:

“What would the structure of the policing and justice Department be?”

We had an entire report agreed by the Assembly as to what should devolve.

416. The Chairperson: Every member of the Committee agreed that we would go through the lists, irrespective of who asked the question.

417. Mr McFarland: What does it mean? What would the structure be? The structure is as it is at the moment and will devolve across according to the Assembly’s agreed report.

“What functions should be placed in OFMDFM?”

What does that refer to, specifically — whoever put it on the original list? Presumably they had a question as to what should remain with the Department and what should go to OFMDFM. Certain matters were recommended by the NIO to go to OFMDFM. I do not understand fully what we are being asked to decide here. That was why I was asking for some sort of chart, which might help us to clarify our minds as to what we are asking.

418. The Chairperson: I invite the Committee Clerk to come in on the discussion.

419. The Committee Clerk: I cannot say what that refers to specifically because I believe that it is a combination of contributions from parties that are represented on the Committee and other parties who sent in written submissions at an earlier stage in the process. The 28 organisations that make up the policing and justice family are identified in pages 446 and 447 of the original report. Those are identified by the Northern Ireland Office, and the detail shows the current status of each of those organisations or bodies. It also projects the NIO’s view, as it understood it, at the time that the letter was written about the future status and the future sponsor of each of those organisations. The issue for the Committee is to consider whether it is content with that.

420. Beyond that, there were some issues about where responsibility might rest in relation to the appointment of an attorney general and what Department the attorney general might be attached to, and about judicial appointments. However, as the members have acknowledged, that was referred to in an earlier part of the meeting that was held in closed session, so members will have been informed by the comments that were made then.

421. It is my understanding that the questions facing the Committee are what the structure would be and whether the Committee is content with the projections that the NIO was working on when it sent the letter back in, which was October 2007, if my memory serves me correctly.

422. Mr McFarland: I am more than happy with that, but the Committee needs a chart that members can go through and discuss what they are happy with and what they are not happy with. Some issues were left in the air — for example, where it gave such and such a figure — and it would be quite useful if we could clarify those issues in our minds.

423. The Chairperson: Both parties seem to have indicated that we should revisit that, so we will have that chart made available for the next meeting.

424. Mr McFarland: I would appreciate it if the Committee Clerk could also identify any other areas where we were not clear about where things should go, because we have come up against such issues time and time again. There were issues that we had left with OFMDFM to be discussed after the devolution of policing and justice, and it would be quite useful if we could clarify what OFMDFM’s position is on those. Now that there is a bit of a plan about what is going to happen with policing and justice, I wonder whether we should be considering those issues before the powers are devolved. The parties were still at loggerheads when the matter was dealt with previously, and things were parked because they were going to present difficulties.

425. If it is the case that we have broad agreement about where we are going, it may be quite useful for the Committee to consider some of the issues that were parked because of sensitivities with political parties or in OFMDFM. Therefore, it may help if the Committee was to have a list of issues that are outstanding or that we need guidance on, as that would give people a clear idea of what the existing issues are.

426. The Chairperson: Ok; will you give the UUP perspective on (g)?

427. Mr McFarland: No; what I am saying is—

428. The Chairperson: No; my question is that, so far, the DUP and Sinn Féin have indicated that the issue must be parked because we need to come back to it — is that what you are saying?

429. Mr McFarland: It is a very detailed and complex issue, and several key decisions must be made in relation to it; therefore, we cannot deal with it now because we do not have the—

430. The Chairperson: Are you saying that we need to come to back to it?

431. Mr McFarland: Yes; absolutely.

432. Mrs Hanna: The OFMDFM presentation has given us some indication about what they think the structures would be. I am not sure exactly what we mean by function — whether we mean power or authority. The First Minister and the deputy First Minister have given very clear views on where they believe the power or authority lies — I do not agree with their view, but that was the impression that I got from the presentation.

433. Mr Attwood: There are some big issues regarding this matter, including the staffing — never mind the structure — of the policing and justice Department. Several NIO officials are retiring reasonably soon. I want to know what involvement OFMDFM will have in the appointment of the senior NIO officials who may be employed in the new Department.

434. I also want to find out which independent people will be recruited to help the new Ministry once it is up and running. I do not know whether the NIO, or anybody else, has any observations on those matters. There are issues beyond the actual structure of the new Department. The deputy First Minister did not have an opportunity to indicate, but I welcome that the First Minister indicated that — at this stage — he sees the policing and justice Minister as being an equal Ministry. That is not contained in the paper from the First Minister and the deputy First Minister, but it should be guaranteed that the new Minister will be equal and will have full Executive status.

435. The Chairperson: The Committee can take its own decision on that.

436. Mr Paisley Jnr: We were given answers that detailed the structure of the policing and justice Department, the functions that that new Department should have, and those that should remain with OFMDFM. From what we heard this morning, I took a very clear indication that a demarcation line was being drawn, which signified that there will be a hands-off approach and that a new Department will be established.

437. We received some fairly clear indications in relation to the status of the Minister and a very clear identity and a function for the post of attorney general. If that person is singled out and is identifiable, a structure is emerging that is much more clear cut in that it would silo into one Department, and that there will be a hands-off approach from OFMDFM. That is fairly clear from the answers that we received this morning.

438. The Chairperson: Perhaps the Committee Clerk could clarify the point that Carmel Hanna made.

439. The Committee Clerk: It is worth reminding the Committee that when the composite list of issues was studied — and then was disaggregated into three different categories — several issues could have gone into each of the three categories. In relation to that question, the significant word is “structure”, because, in the category 2 and category 3 lists, there are issues that relate to the functions of the new Department.

440. However, the issue is about how the various parts of that Department might relate to each other. If I use the term that was used earlier this morning, the structure is a “modality” issue, whereas the other relationship issues are non-modality and are either category 2 or category 3 issues. Members may understand the distinction that was being made when the list was segregated the first time round.

441. Mrs Hanna: When I talked about the function, it implies power — although it obviously depends on what the function is — and authority. OFMDFM clarified that that authority or power should lie in OFMDFM rather than in the Ministry. That is why I asked about the functions. It depends on which functions and powers are being considered.

442. Mr McFarland: There are relationship issues regarding how we will interact with organisations, but there are also some fairly fundamental issues about the propriety of funding. I am thinking of organisations that, perhaps, inspected parts of the criminal justice empire that we thought should not be part of that and should not be funded by that. A number of commissioners are having that argument because they are being paid by the Departments that they are supposed to be examining.

443. One of the thoughts was that some of them could be funded by OFMDFM in order to give them separateness and an independence of funding. All of those are on the list that has been distributed to members, but I think that they are things that we need to work through by way of a logical system, saying where we think they should go. We have parked a lot of those issues because they were too difficult to deal with at the time of the Committee’s first report.

444. The Chairperson: On this particular issue, my feeling is that we should agree to park this in the meantime, because there are a number of issues that we need to come back to.

445. Mr Paisley Jnr: I understand why that needs to be parked, but regarding what has been discussed on the Judicial Appointments Commission, a fairly meaty point was made that we should cherish the independence of judicial appointments. That being the case — and I do not know how the Committee feels — should we hijack that point as one of our own? It seems to be a unique selling point of something that is very special, that we could promote, deliberate on and put something out there that would make the process more unique and maybe even something that others will learn from.

446. The Chairperson: How do members feel about that suggestion?

447. Mr McFarland: OFMDFM is announcing this as its idea. One of the things that the First Minister said was that this was unique and groundbreaking, etc.

448. Mr Paisley Jnr: I do not know whether we will get into that detail, as other issues will steal the headlines.

449. The Chairperson: Can the Committee not endorse it?

450. Mr McFarland: There is an issue around who funds that? Is it OFMDFM or is it —

451. The Chairperson: We are not going to answer that question today.

452. Mr Attwood: What has been outlined by OFMDFM needs to be probed further. I presume that what OFMDFM is talking about is not what is in law at present; namely, that the appointment of the Lord Chief Justice is made through the Prime Minister’s Office with the agreement of the Queen. As far as I can recall, that is the process for the appointment of the Lord Chief Justice. Although OFMDFM may or may not be proposing something different in respect of other judicial appointments, I would be interested to find out, particularly from the deputy First Minister, what the position is in respect of the appointment of the Lord Chief Justice, because my suspicion is that neither Downing Street nor the Lord Chief Justice, whoever that may be at any one time, would want a process other than that which was recommended by the Criminal Justice Review, even though we do not agree with that process.

453. I would like to know the full meaning of what they are talking about, because they have authority under the law in respect of some matters but not others. If we are going to have a wider discussion about the nomination of judges, I would welcome hearing that, but it should be in the context of how the JAC is working: does it have the right balance of membership, is it appropriate that the chair of that commission should be the Lord Chief Justice, and is there a need to rework the JAC in order to be more representative and earn more public confidence? There is no doubt that it is a step forward from the processes that have existed previously.

454. If there is going to be some groundbreaking approach from OFMDFM in respect of its authority over these matters, let us look at what the JAC is doing. I think that the power of OFMDFM is that, if it gives it up in respect of the appointment of the judges, it would be something done for political effect, not for the real reason that it should be done, namely one of principle.

455. The Chairperson: Are you proposing then that we ask OFMDFM for clarification?

456. Mr Attwood: Yes; I think that we need to find out what OFMDFM’s view is on the appointment of the Lord Chief Justice.

457. The Chairperson: Are members agreed that we ask for that clarification in the letter that we have already agreed to send on behalf of the Committee?

Members indicated assent.

458. The Chairperson: For the record, because there a number of other issues, we are parking issue G.

459. We will now move to issue H:

“What arrangements need to be in place to ensure that effect is given to Recommendation 28 of the Committee’s original report that Members of the Northern Ireland Assembly should cease to be members of the Policing Board or any District Policing Partnership, at the point of devolution?”

460. Mr Paisley Jnr: Could you read recommendation 28 into the record for us? I understood it to mean something slightly different; that a Member could not serve on both the Policing Board and the Assembly Committee for policing and justice.

461. The Chairperson: Recommendation 28 reads:

“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.”

462. Mr Paisley Jnr: So it does mean that. A major change in legislation would be required if the 10 Members of the Assembly who are appointed to the Policing Board would no longer be appointed. The question in issue H should be changed slightly.

463. The Chairperson: In relation to issue H, then, where should we start?

464. Mr Paisley Jnr: The matter will have to be thrashed out, but there is a question of cross-fertilisation if an MLA were to be a member of both the Policing Board and of a future Assembly scrutiny Committee — there are many conflicts there. I am happy to re-examine recommendation 28, but I got the impression that 10 members of the Northern Ireland Policing Board must be selected from the Members of the Assembly, on the basis of electoral strength.

465. The Chairperson: We will have to look into that.

466. Mr McFarland: We had a lengthy discussion on this matter, and an issue has arisen. If there are to be 11 MLAs on a scrutiny Committee, 10 MLAs on the Policing Board, and a Minister, that means that 21 Members of the Assembly will be involved in policing matters. That is an issue for the Committees, because we are hard pushed to staff them properly at the moment.

467. It is accepted that the Policing Board has an executive responsibility for matters such as personnel and buildings, and that the role of the scrutiny Committee is to bite the ankles of the Department and its Minister. One has an operational and executive role in looking after policing, and the other is a watchdog. It seemed daft to have the same people in those roles, so we eventually decided that as long as those bodies were staffed by different personnel, Members of the Assembly could sit on the Policing Board.

468. My party held a different view, however. It is important that the Policing Board has political input. One of the successes of the Policing Board is that it has politicians, or people related to political parties, because they can get things done much more quickly. In the longer term, it is difficult to justify having 21 MLAs involved in policing.

469. One of the options is that the MLAs on the Policing Board would be replaced by political appointees of the political parties, representing those parties and providing political input. Those Members who sit on the Policing Board — including you, Chairperson — know the demands that it makes. One of the Members is not here this morning because he is attending a meeting of the Policing Board. I suspect that you were under pressure to appear there as well as here.

470. The Chairperson: I am under no pressure whatsoever.

471. Mr McFarland: You cannot be in two places at once. That is an ongoing issue. I believe that we agreed — in order to achieve the transition — to accept that in the first instance at least, 10 MLAs would sit on the Policing Board and a different 10 MLAs would be members of the Committee. My party’s view is that, in the longer term, the Assembly could not sustain having 21 MLAs involved in policing.

472. Mr Paisley Jnr: Alan outlined why it was possible to do this in the first part of his answer. The role of the Policing Board is very different; it holds the Chief Constable to account, and is charged with delivering an efficient and accountable Police Service. A justice Minister will have a much more overarching role. The issue is one of practicality; a Member could not sit on a Policing Board and its committees and serve on an Assembly Committee at the same time, even though some complementary and overarching elements come into play.

473. I do not think that it is an issue that the Assembly should not be doing it: it is important for the Policing Board to continue to have that independent arm also, but it should be informed by elected representatives and not just a quango of appointees. Mr McFarland may not see some of the conflicts that he is worried about; if he does not mind my saying so, he is worrying too much about that issue.

474. Mr McCartney: My recollection of the report was that we had agreed that there should not be dual membership. Mr McFarland put in the caveat about whether there should be political appointees, but we did not come to any agreement. We just agreed on the dual membership issue. To answer the question about the arrangements, it should be explored whether legislation is needed to do that, or whether the procedures of Standing Orders can cover it. We need clarification and more discussion on the matter.

475. Mr Attwood: Mr Paisley is correct; the question is not phrased properly. However, the answer to the right question is that there should not be dual membership. The SDLP also believes that it is essential for some MLAs to be members of the Policing Board, because there is good evidence to suggest that, to degree, the Policing Board has been marginalised on several matters over the past year or so. In part, however, the Policing Board has contributed to that marginalisation, and that is not a healthy situation. The Policing Board, as envisaged by Patten, had a very defined and significant role. The SDLP’s view is that in order to keep the architecture and the balance of relationships right, it must continue to have that substantial and defined role. As well as there not being dual membership, my party has the strong view that the 10 political representatives on the Policing Board should be 10 MLAs.

476. The Chairperson: Obviously, clarification is needed on this question. Can the Committee agree to change the question slightly? I am not up to speed with the full wording, but the Committee Clerk will read it. We must see what arrangements are needed, and that can be clarified with the wording of the recommendation 28, if we can agree.

477. The Committee Clerk: It might read:

“What arrangements need to be in place to ensure 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?”

478. The Chairperson: — at the point of devolution?

479. Mr Hamilton: I think that that makes the issue clearer.

480. Mr Paisley Jnr: Should the issue be triggered by a convention among parties that they observe that, or should it be set down in Standing Orders or police legislation?

481. Mr McFarland: The Committee looked at that matter before, and it was possible for it to be done under the procedures of the Assembly.

482. Mr McCartney: It was also said that, with the review of public administration, the district policing partnerships would become an issue.

483. Mr Attwood: There may not be a need for anything to be done. It may well be in the policing legislation that the —

484. The Chairperson: We will clarify all of that.

485. Mr Attwood: We need only confirm the current legislation.

486. The Chairperson: Can the Committee agree the dual membership issue?

487. Mr McFarland: Can one also sit on the committee?

488. Mr Paisley Jnr: It is not law, Mr Attwood.

489. The Chairperson: Do members agree to change issue H to that read out by the Committee Clerk?

Members indicated assent.

490. The Chairperson: It is now 12.55 pm, and I will adjourn the meeting for lunch. I ask members be back at 1.35 pm.

491. The Chairperson: I welcome visitors back into the public gallery. We return to item I in the briefing paper that reads:

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

492. Some of those questions have already been answered this morning. However, for the record, there will obviously be ongoing discussions regarding this item. We will again go around the parties, beginning with Nelson McCausland.

493. Mr McCausland: I think that it is clear that the First Minister and deputy First Minister are undertaking those discussions with the Government at Westminster. Clearly there is a role for the Committee in relation to supporting, monitoring and the gathering of information. By doing that we will then be quite clear as to the actual cost of the delivery of policing and justice.

494. Mr McCartney: Very much the same. The intentions were stated very clearly this morning, and the Committee will have a supporting role.

495. The Chairperson: There is more work to do on it. Alan McFarland do you indicate the same?

496. Mr McFarland: Yes.

497. The Chairperson: Thank you. What are the views of the SDLP in relation to this item that deals with the financial negotiations surrounding the devolution of policing and justice? Members have indicated that they have been told that there have been ongoing discussions, but that there is more work for the Committee to do in this area. Alex Attwood, can you formally clarify your position?

498. Mr Attwood: Is the question what we as a Committee should do?

499. The Chairperson: Yes. It is how and when the financial discussions with the NIO should be conducted, and by whom.

500. Mr Attwood: I do not believe that the NIO will negotiate with the Committee. We can put pressure on them, but I do not think that they will negotiate with us.

501. Clearly OFMDFM are going to do some negotiation. For example, tomorrow, my party’s Minister will meet her British counterpart to discuss funding matters. Similarly, as members are aware, the Policing Board is trying to get to a position where it can negotiate in a tripartite way with NIO and the police. So, although there will be several negotiating strands, the Committee will find it hard to get any standing in all of that.

502. The Chairperson: I think that the Committee will have some input to category 2 discussions when it invites people to come before it to formally. Some indications were made of the shortfalls in the previous talks or whatever. For instance, we are now seeing some items appearing in the policing budget that nobody was ever told about. There is obviously some work to do there, although I do not wish to stray into category 2 matters.

503. My take of what has been said around the table is that there is additional work to do and that we are parking that issue, and that we need some clarification about the ongoing discussions that will obviously continue between the First Minister, the deputy First Minister and the Governments. Is that agreed?

Members indicated assent.

504. The Chairperson: Moving on to item J, we have the question of whether future budgets should be ring-fenced.

505. Mr Hamilton: That question is clearly allied to the previous point and its outcome. It is not something that we would want to say something definitive on at this stage, but I think everyone can see that it depends on the successful resolution of the previous point.

506. Mr McCartney: The previous matter will impact on the question of whether future budgets should be ring-fenced. Sinn Féin feels that funding should be separate from the comprehensive spending review, so, in that sense, it probably should be ring-fenced.

507. Mr McFarland: If we agree with the general concept of having a justice Department, with a Minister on the Executive, surely the Executive must be able to move money around. Providing that the initial deal is right, implementing it is surely a matter for the Executive. If pressures become apparent in a particular area, the Executive must be able to shift money around to meet them. The logical consequence of ring-fencing money is that, although things are great if spending stays within a budget, they are not so good if the budget is overstepped — if a budget is ring-fenced in one direction, it must be ring-fenced in the other — and one cannot ask anybody else for extra money. Therefore, it must surely be a sensible way forward to allow the Executive to use whatever money they are given as they wish.

508. Mr Attwood: In principle, the SDLP believes that such funding should be ring-fenced. There are many reasons for that, such as the subject’s high profile, the public-interest and communities’ needs. In general, the SDLP believes that the policing and justice budget should be ring-fenced because the general economic situation might tempt the Finance Minister to move money around, and that might disproportionately affect the delivery of, and confidence in, policing and justice.

509. That is the principle that the SDLP comes from, but it is prepared to consider marginal variations — the budget could include a discretionary element. Nevertheless, on principle, funding should be substantially ring-fenced.

510. The Chairperson: Given the fact that several views have been expressed around the table and given the context of our previous discussions, the matter must be parked, on the understanding that we will return to it later to conduct fuller and wider discussions. Do members agree that that is a fair assessment?

Members indicated assent.

511. The Chairperson: We move to issue K, namely when should the previously agreed range of policing and justice matters identified at recommendations 2 to 17 of the Committee’s original report cease to be reserved matters?

512. Mr McCausland: During the process, OFMDFM talked about building community confidence; that is the key issue.

513. Mr McCartney: Chairperson, please come back to me on issue K.

514. Mr McFarland: Surely this is factual; they will transfer when the powers are devolved. I do not know when that will be, but the Committee has already agreed in its report to the Assembly that those matters will be transferred on devolution.

515. Mr Attwood: That is right; reserved matters should transfer at the point of devolution. Excepted matters should become reserved matters and also transfer at the point of devolution.

516. The Chairperson: We will come to that later.

517. Mr McCartney: That range of policing and justice matters should cease to be reserved at the point of devolution.

518. The Chairperson: There is consensus around the table on issue K; those matters should cease to be reserved at the point of devolution.

519. We move now to item L, namely is there any requirement for a shadow Minister, a shadow Department and a shadow statutory Committee?

520. Mr Hamilton: The DUP does not think that there is a need for any shadow arrangements. However, there may be benefit in identifying early the individual who will take on the position of justice Minister. That will mean that the process will run similarly to how it ran pre-devolution, when Ministers who were identified early had the advantage of trying to read themselves into their brief. I do not see any need for shadow structures.

521. Mr McCartney: Group 3 of the process paper states that the candidate will be identified early. At that stage, one will be in a better position to make a judgement.

522. Mr McFarland: Presumably, the plan will follow in real time rather than shadow. A shadow arrangement would, perhaps, be required if we had difficulty reaching agreement. If we have reached agreement — and there is a plan in place — people will need time to read themselves into their brief, but a formal shadow arrangement will not be required.

523. Mr Attwood: Simon is not comparing like with like. First, the time between the indication of who a Minister might be, and his or her actual nomination, is short. However, the time between the indication of who the justice Minister might be and his or her nomination will be long. Therefore they are different situations; it is not comparing like with like.

524. Secondly, regardless of whether there is a shadow period, there should be a period in which people work through some of the issues that will arise, if and when a justice Minister is nominated. I am not saying that there should be a shadow justice scrutiny Committee, but the establishment of an ad hoc committee that will work through some legislation-related issues, policy developments and areas in which the community has heightened concerns would mean that the Minister could hit the ground running.

525. I believe that the lead-in time from the date on which the person is identified to the time when he or she is nominated will be extremely long. The community will not understand why the Assembly is not doing some heavy lifting in respect of justice matters during those months.

526. We will have a full shadow Ministry to some degree, because, subject to nomination in accordance with the Nolan principles, there will be a shadow justice Minister. That person will be in a pretty invidious position for six, eight, 10 or 12 months — or whatever period — while the world makes up its mind about whether he or she is the right person for the job. The person may have future responsibility, but he or she will not actually have a particular role in the meantime.

527. The Chairperson: Three parties seem to indicate that there is no need for a shadow Ministry. The SDLP hold a slightly different view. As the majority seem to agree that there is no need for a shadow period, is that the Committee’s consensus?

Members indicated assent.

528. Mr McCartney: The identification of that person will inform our decision.

529. The Chairperson: We are agreed for the purpose of the report.

530. I remind members and visitors in the Public Gallery to switch off their mobile phones, because it affects the recording equipment. Thank you.

531. We now move to item M, namely is there a need for further clarity of the powers to be devolved? If so, should they include matters relating to the Public Processions Act (Northern Ireland) 1998, flags and symbols and recruitment to the Police Service of Northern Ireland (PSNI)?

532. Mr Paisley Jnr: Taking those in reverse order, recruitment is already handled exclusively by the PSNI, as far as I am aware.

533. Mr Attwood: It refers to 50:50 recruitment to the PSNI. It is code.

534. Mr Paisley Jnr: Is that what it is about; the actual detail of it? We will have to take guidance on that. Most of that legislation will probably flow to Northern Ireland, but we should park it and return to it when we can get guidance that tells us what powers remain to be devolved. I cannot see why they would not be devolved.

535. Mr McCartney: Recruitment is an operational matter for PSNI. We want further clarity on the other matters. We want to come back to it.

536. Mr McFarland: The parades issue is ongoing. I think that the Ashdown report is due; it is a live issue —

537. The Chairperson: Sorry to interrupt, but there is a later question about that.

538. Mr McFarland: Yes, but it is the same issue of parading and processions, etc. That clearly will need more discussion.

539. It strikes me that we could experience enough agitation, or difficulties, when devolving policing and justice powers without having legislative powers on flags and emblems devolved. In a previous general discussion on that the feeling was that that matter should be left where it is.

540. Surely the legislation on PSNI recruitment will run out in 2010? When it ceases to exist recruitment will fall into a normal pattern of appointment based on merit.

541. The Chairperson: Therefore, we need to come back to those matters.

542. Mr Attwood: You are correct Chairperson. We will have to come back to that matter. The SDLP’s view is that all those sensitive powers that are currently held by the British Government need to be devolved, including powers on 50:50 recruitment to the PSNI and the Chief Constable’s appeal against a decision of the Parades Commission. All those powers should be devolved, but there must be cross-community safeguards. Decisions should not be made according to the whim of one individual. In that regard, recruitment to the PSNI is not a matter for the PSNI; it is a matter on which the House of Commons must legislate. Alan’s point is quite right. In the St Andrews agreement, which some people claim ownership of, the British Government made a commitment that the 50:50 recruitment policy would end in 2010-11.

543. The Chairperson: We will park those issues and move to item N:

“What needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as community safety; attacks on the elderly and other vulnerable groups; anti-social behaviour generally; sentencing policy within the judicial system; community confidence in policing; the role of the security services; and all-Ireland policing arrangements?”

544. Mr Hamilton: That came initially from Sinn Féin’s submission. I would hope that any justice Department anywhere in the world would endeavour to deal appropriately and would have the powers to deal with issues such as attacks on the elderly, community safety and antisocial behaviour. Those are standard issues on which any justice Department would potentially be able to legislate. The last two issues, the role of the security services and all-Ireland policing arrangements, stray into the territory of category-2 debates, so those are best left at this stage. Any justice Department must be responsive to the people who elected us, and I hope that our justice Department will be as responsive as all other Departments in the Northern Ireland Executive.

545. Mr McCartney: Simon is right; that item came from Sinn Féin’s submission that outlined what we felt would be the broad role of, and some of the aspects of, a justice Department. In many ways we agree that maybe not all of those matters should be discussed now; a future justice Department will come up with some of the answers. If members were content, that question could be removed as it is too broad.

546. Mr Hamilton: It is hard to answer such a question.

547. Mr McCartney: Yes, there are too many aspects to it.

548. Mr McFarland: Most of that is a list of what the Department will do. The security service, however, is an excepted matter and a national issue, and the all-Ireland policing arrangements are an ongoing North/South issue. Some of the issues are to do with the Chief Constable, others are to do with the Policing Board, and others will be to do with the justice Minister when he or she takes over.

549. Mr Attwood: Between now and the time of the nomination of the justice Minister, work must be done in this Building in order to work through such issues to find out what action needs to be taken with regard to legislation or policy when the justice Ministry is established.

550. Some of those issues cross over into category 2, but whatever category they belong to, we must get our heads around them. A motion on the Omagh bombing achieved all-party agreement on the Floor of the Assembly. During that debate, all the parties said that the British Government’s review of intelligence arising from the Omagh bombing at the hands of the Intelligence Services Commissioner was inadequate. Ian Paisley Senior spoke bluntly in that debate, and he and others went much further than that.

551. In the run-up time to the nomination of a justice Minister, we must get our heads around the fact that that is the view of all the parties in this Building on that matter. Reassurance cannot be given that the same situation will not transpire in respect of other security issues, so consideration must be given to whether there are mechanisms about which we can advise or can put in place to ensure the security service in Northern Ireland does not have a role similar to that which led to every party in the Assembly voting the way they did on the Omagh motion.

552. Similarly, with regard to all-Ireland policing and justice arrangements, we have a long time in which to ensure that a new North/South justice agreement is in place when devolution happens, given that substantial parts of the present agreement will fall when devolution happens.

553. The Chairperson: The security services and the all-Ireland policing arrangements will be discussed as category 2 items. Raymond indicated that the remaining issues are normal functions of a Department and, perhaps, can be removed from the question.

554. Mr McCartney: I was commenting on what Simon said — the question quotes almost word for word from Gerry Adams’s letter. Alex said that the final two aspects of that question are category 2 items. Sinn Féin agrees with that, and, as Alan McFarland said, the remainder are the functions of the Department. That series of questions does not necessarily require attention.

555. The Chairperson: One option is that the new Department and Minister will establish policies to deal with those issues. Do Members agree with that route and that the security services and all-Ireland policing arrangements will be covered in category 2?

Members indicated assent.

556. The Chairperson: We will move to the next issue, namely what procedures and protocols will there need to be between the Minister and Assembly Committee and any newly established Department and its associated agencies?

557. Mr McCausland: It is a work in progress. We should return to the detail of it at a later date.

558. Mr McCartney: There must be protocols and procedures. Perhaps we need to tease out the exact details. However, Sinn Féin believes that the protocols and relationships should be the same as in other Committees, notwithstanding any sensitive issues. A justice Minister may be unable to disclose information to the Committee, and we must establish protocols to address that issue.

559. Mr McFarland: The protocols and procedures should be normal. If we provide the money, we should be able to scrutinise its use. However, handling the judiciary and determining who will answer for the Lord Chief Justice, among others, is an issue that came up in our report. As Raymond said, how will the Committee handle more sensitive issues?

560. Mr Attwood: It is a very big question. Given the long lead-in time, the SDLP believes that good work could be done to remodel the relationship between, for example, a scrutiny Committee and the Public Prosecution Service (PPS). Under the current proposal, the model will allow a Director of Public Prosecutions to appear before a Committee to discuss management issues only. That is not a credible in this day and age when there is heightened public interest in the Public Prosecution Service. Therefore, the SDLP believes that the relationship between the Assembly and PPS — and, perhaps, one or two other Departments in the justice sector — must be remodelled. Given that we have so much time to deal with those matters, we could also consider in-house arrangements for PPS.

561. There is an argument that the PPS requires a management board. The same could apply to the Northern Ireland Court Service, where various proposals have been outlined by the chief executive, the NIO and the Lord Chief Justice. We need to see any and all protocols that will exist post-devolution, because the NIO and other agencies are working up protocols and memorandums, not least in respect of the sharing of security service intelligence. We have been asking to see those memoranda for some time, but we have not seen anything. We must see those source documents in order to get a picture of what devolution of justice will really look like.

562. The Chairperson: The NIO has those documents. Are you formally proposing that the Committee writes to the NIO to ask for those documents?

563. Mr Attwood: Yes, subject to what the Committee Clerk says. We have asked to see those documents, but have yet to see anything.

564. Mr Hamilton: When we first categorised the issues, and slotted this one into group O, the point was made that that work would be better placed in the second category.

565. The Chairperson: I suspect that we are getting ahead of ourselves. From the confessions of the Committee Clerk, I suspect that we will be returning to those issues.

566. Mr Hamilton: Is he looking for absolution?

567. The Chairperson: I will let the Committee decide whether to grant that. Obviously, we will need to discuss issue O further. Is the Committee content to again try to seek some clarification, in writing, from the NIO on that particular issue?

Members indicated assent.

568. Mr Attwood: Carmel and I have to be excused for five minutes; we will return after that. I do not think that that will affect proceedings.

569. Mr Chairperson: Will the interview last only five minutes?

570. Mr Attwood: Something like that.

571. Ms Hanna: More or less.

572. The Chairperson: Ok, the Committee will breeze on with its business.

573. Issue P deals with whether the “triple lock” within the Executive should apply to the decisions of a policing and justice Minister.

574. Mr Paisley Jnr: I suppose —

575. Mr McFarland: Can we not find out what those are?

576. Mr Paisley Jnr: Do you not know they are?

577. Mr McFarland: I am simply asking for those to be clarified for the record. An outsider who reads the Hansard report might not know what we mean by “triple lock”.

578. The Chairperson: It is clearly laid out in the St Andrews Agreement.

579. Mr McFarland: I know, but for the purpose of the Hansard report that should be clarified.

580. The Chairperson: Mr McFarland must be assuming that people will read —

581. Mr Paisley Jnr: Even I will not be reading the Hansard report.

582. The issue will depend on the standing and status of the policing and justice Minister. If the Minister is a full member of the Executive, will he or she be subject to the same rules, regulations procedures and ministerial code to which the other Ministers are subject or will he or she be subject to different ones? We must, first, clearly establish the standing and status of that Minister.

583. Once that is established, the answer will be straightforward. I assume that the powers and the standing of that Minister will be the same. However, if, for whatever reason, the policing and justice Minister’s status is different to that of other Ministers, he or she may be subject to more stringent rules. The status and standing of the new Minister must be clarified. That part answers the question raised in issue P.

584. Mr McCartney: Notwithstanding the way in which the question is framed, I agree with Ian; once the status of the Minister and the Department is established, we would say that there should be the same standards and application of rules.

585. Mr McFarland: I think that issue must be parked until we work out what the game is. Will the Minister be a full-role member? Will he or she be allowed to talk about only policing and justice? What guidelines will he or she follow?

586. The Chairperson: Are members content to revisit the issue?

Members indicated assent.

587. The Chairperson: For the record, the SDLP Committee members have left the room.

588. Issue Q deals with whether there is any requirement to seek to have any excepted matters devolved.

589. Mr Paisley Jnr: Not at this point — definitely not security services.

590. The Chairperson: Raymond McCartney?

591. Mr McCartney: Yes.

592. Mr McFarland: No. Those are national issues. We live in a sovereign country that just happens to have part of its Government devolved. Excepted matters deal with national issues and should, therefore, stay at Westminster.

593. The Chairperson: We have a diverse view, so, if members are agreed, we will park that and come back to it. That issue will be revisited and we may come to a vote at some point.

594. We come now to confession time. The Committee Clerk has indicated that an oversight has occurred. It is not the fault of the Committee Clerk, but there are five other matters to be included in the list of issues that we have developed. Those matters have arisen from recommendations in the Committee’s original report, and might be regarded as category 2 or category 3 issues. The Committee Clerk will take us through those issues; it is good to confess.

595. The Committee Clerk: Thank you, Chairperson. It is entirely my fault; during the original development of that list, the main concentration was on the contributions from the parties. In disaggregating the composite list of issues, I tried to keep an eye on the report, but, as the Chairperson says, I overlooked five issues.

596. We have touched on at least some of those matters in previous discussions. Most recently, we touched on a critical one, concerning what the status and independence of the Public Prosecution Service should be. That comes from recommendation 27 of the original report, and it was one of those peculiar ones that the Committee decided should be considered both before and after devolution. That issue can go into category 2 or category 3. However, the sense of the discussions so far is that it should be given at least some consideration as a category 2 issue.

597. The next issue — and this was touched on by the Committee before lunch — concerns the arrangements for appointments to the Policing Board, and that those appointments be distinct and discrete from appointments to the Policing Board and to any new statutory Committee. Recommendation 29 clearly points toward looking at that in a post-devolution situation. Therefore, that issue falls into what has been described as the category 3 list.

598. The next issue arises from recommendation 30, and concerns what the arrangements for appointments to the Police Ombudsman’s office should be. On the face of it, that is a category 2 issue.

599. The final two recommendations — and I hope that I have not overlooked others — are recommendations 33 and 34. Those recommendations deal respectively with matters raised previously by the Northern Ireland Law Commission, and the Northern Ireland Legal Services Commission. It seems to me that those would fit into the category 3 list of issues, and essentially, are probably issues that would be picked up on, after devolution, by the statutory Committee for policing and justice. The submissions that both those organisations made to the original enquiry include fairly detailed comments.

600. The Chairperson: I thank the Committee Clerk for drawing those five issues to our attention. Do members agree that the status and independence of the Public Prosecution Service would fit into issue H in category 1?

601. The Committee Clerk: Should that not be in category 2?

602. The Chairperson: We add those issues to G, H, I and J in category 2. On the category 3 list there are already issues A and B, so the final two outstanding matters, concerning the Law Commission and the Legal Services Commission, will become issues C and D.

603. The Committee Clerk: Essentially, the issue of the Policing Board seems to be a category 3 issue. If it will help members, I will rework the lists so that they are clear. I may also use the opportunity to identify the issues on those lists on which consensus has been reached. I will compile a further document to enable members to keep up to speed with what has and has not been agreed.

604. The Chairperson: Are members agreed?

Members indicated assent.

605. The Chairperson: We have now exhausted the category 1 list; we will discuss that list again at the next meeting, alongside the résumé of what has been agreed — quite a few of them have been parked, and we are seeking further clarification on others.

606. We will now move to a discussion of the category 2 list. At the last Committee meeting there was a discussion about what financial assistance, and other support, might be needed. The Committee staff have been in discussions regarding that, and regarding what expertise might be needed. I ask members to allow the Committee staff to consider those issues.

607. Members have received a briefing paper, which I assume everybody has had a look at. The Clerk will now take us through that paper, as it raises some issues, and questions that the Committee might ask, in regard to what expertise may be needed, and in what area.

608. The Committee Clerk: I will follow the order of the briefing paper. There are three fairly discrete issues in the category 2 list as amended, relating to judicial appointments — the Attorney General and so on —to relationships, both North/South and east-west, and to finance. When the Committee considered the category 2 list of issues, there seemed to be a sense that there might be a requirement for some form of wider consultation, possibly of a limited nature. On the other hand, it was felt that decisions taken by the Committee in relation to category 1 issues could be resolved in the Committee without much — or any — wider consultation.

609. There is a general requirement that the Committee should be given some advice and information on the finances that would be necessary to allow a Department of policing and justice to function. It is clear that there is a need for some sort of help and assistance, and I have opened up discussions in the secretariat on that front. However, the Committee may have heard references today to things that are going on concurrently. If the Committee has a role to fulfil in relation to finance, then perhaps one of the things that it might do is try to gather information from those organisations presently providing the range of policing and justice services and invite them to comment on the other two components of the category 2 list, the North/South and east-west relationships, and the issue of judicial appointments.

610. In many respects, the second page of that briefing paper is almost a draft letter that I suggest that the Committee might consider sending to the 28 organisations that have been referred to. However, it may be important — before going into the detail of those questions — to consider the context. If the Committee were inclined to take that course of action, it would probably need to get some indication that the Secretary of State and the Northern Ireland Office will co-operate by encouraging those organisations to supply information in the form in which it is requested.

611. I sense that the Committee wants issues, particularly of finance, “quality-assured”. That is my best guess of what I believe the Committee would wish to see. I can continue that discussion with the Assembly’s Research and Library Service, particularly if there is to be a discussion based on the briefing paper, and in the event of the Committee clarifying its thinking — either to affirm what is suggested in the paper or to come to a different conclusion. In essence, to begin work on the category 2 list and the forward work programme, any gathering of information must take place before the Committee meets in January for detailed consideration of those category 2 issues.

612. Mr McFarland: When the NIO previously appeared before the Committee, it indicated that extremely detailed work was being done on every aspect of the handover. It stated that all the detail would be ready when the flare went up. The NIO showed the Committee some of it, and it was quite complicated and detailed. My understanding was that that work was going on. There were lots of memoranda being written. Before the Committee hurtles off on its own track, it may be better to allow the NIO to provide an up-to-date briefing on the current position. If the NIO and agencies have agreed on what will happen and when, and that is tied up with memoranda, it would be useful for the Committee to be aware of that earlier rather than later, when agencies are invited to give evidence.

613. The Chairperson: Do members have any other comments on that, or the letter? I thank the Committee Clerk for the amount of work that he has done. The Committee must make decisions around research and particularly finances. It already knows that matters have been raised in other budgets that the Committee was not aware of and that are coming out of the woodwork.

614. Mr Hamilton: In relation to point F in the letter; is there a requirement for the justice sector of the North/South Ministerial Council to meet? I appreciate and understand that the Committee will discuss that issue; however, there is almost a political element to it, and, I want to secure a non-partisan, independent-of-any-agency approach.

615. If members wanted to tease that out during evidence sessions, there is, obviously, nothing anyone could do to stop them. However, I am not sure whether we should ask those questions.

616. Mr McCausland: Chairperson, that point is even clearer with regard to the next issue. Why would you ask agencies about the strategic review of parading? It seems odd. The key information that we need from agencies is costs. We need to get that information as quickly as possible so that it can inform our discussion with Westminster.

617. The Chairperson: I am aware that packs were distributed late. That was not the fault of the Committee Clerk’s Office, because we needed to get a clear understanding of what was happening today. I suggest that members take another look at the finance issue.

618. Mr O’Dowd: I agree with sentiments that have been expressed across the table. Several questions are political in nature. Statutory agencies cannot answer those questions, and should not be asked to do so. The letter should not be delayed. Its content should be broken down to financial implications for each of the Departments and agencies, and then it should be allowed to go ahead. Any question that is not financial should be taken out.

619. The Chairperson: Are there any other comments? OK. We can agree on the contents of the letter up to the elements that relate to financial issues. We will ask agencies to prepare to present their evidence under category 2 to the Committee.

620. The Committee Clerk: I must caution the Committee that, before the letter is sent, those questions need to be “quality-assured” in order to ensure that they are the correct questions. Subject to that quality assurance, therefore, the letter could be sent.

621. The Chairperson: That takes us back to the point about the financial adviser or researcher — I am not sure which is the correct term. At the next meeting, can you provide clarification on whether that service will be bought in — for want of a better term — or brought in?

622. Mr O’Dowd: The Committee has made its sentiments known. Can the Chairperson or deputy Chairperson not sign off on, or quality-assure, the letter if necessary?

623. Mr Paisley Jnr: I would be happy with that.

624. The Chairperson: Can I assume that necessary advice can be obtained reasonably quickly in order to enable us to do that?

625. Mr Paisley Jnr: We can trust you on that one.

626. The Committee Clerk: Having listened to the conversation, I can certainly go back to Research and Library Services, elaborate on the Committee’s views, and take it from there. In particular, if parties take the paper away and consider it further, it may be that they will come back with more information at next week’s meeting.

627. Mr McFarland: Chairman, I suggested that we chat to the NIO first. Has that idea been completely abandoned?

628. The Chairperson: No, we will request that. My take on that suggestion is that, in tandem, we will also go down the route of circulating questions and putting someone in place to assist us with that work.

629. Mr McFarland: I think that it is good to get somebody in place, but do we not need the Secretary of State’s agreement for us to approach agencies?

630. The Committee Clerk: The Secretary of State does not necessarily need to agree for us to approach agencies, although it might be valuable to encourage him to get them to co-operate. Equally, he could be prevailed upon to invite the Lord Chancellor to do likewise with regard to justice organisations.

631. The Chairperson: OK members, are we agreed on that approach — that the deputy Chairperson and I will examine the letter and judge whether it is best to bring the matter back to the Committee? I assume that it will take a few days to carry out any work that is required and to determine which expert is needed to carry it out. I will send a letter to NIO. Are we agreed?

Members indicated assent.

632. The Chairperson: OK. Thank you, members.

25 November 2008

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

633. The Chairperson (Mr Spratt): I invite members to put on record any interests that they may have. I declare an interest as a member of the Northern Ireland Policing Board.

634. Mr A Maskey: I am also a member of the Policing Board.

635. Mr McCausland: I am a member of Belfast District Policing Partnership.

636. The Chairperson: No Members from other parties are present today in the Public Gallery, so I will move directly to the first revision of the Committee briefing paper, 11/08/09. I invite the Committee Clerk to explain briefly how the paper has been reconstructed.

637. The Committee Clerk: The briefing paper deals with a combination of matters that arose last week. For ease of reference, each week, the paper will reflect decisions taken and agreements reached by the Committee on the category one list of issues. There will also be an opportunity to reinstate some issues that had been overlooked in the earlier version of the briefing paper. The paper also deals with the request to incorporate or make available to the Committee the structure chart that the Northern Ireland Office provided to the Committee in the course of its original inquiry. That chart is taken from a letter that was sent on 15 October 2007, and it can be found at annex 1 of the Committee briefing paper.

638. I have a small confession to make in that the page numbering sequence in the briefing paper is slightly out of kilter. The paper was prepared electronically, but I did not have an electronic version of the chart — instead of leaving space for two pages, I left space for only one. There is, therefore, a page 8 and a page 8b. During the week, I will improve the quality of annex 1 for inclusion in members’ packs next week.

639. Annex 2 is an extract from the summary of recommendations from the Committee’s original report. I have used some colour coding to help members to identify recommendations that need further work — although that work may not necessarily be for the Committee to undertake. Nonetheless, those recommendations are identified in red in the briefing paper. I also draw attention to recommendations 23 and 24, which appear in green in the summary. They are highlighted to remind members that they took a decision in principle — or on a “without prejudice basis” — that various organisations that presently form part of the policing and justice family should go in their various guises to particular parts of a devolved Department. Therefore, I hope that the combining of that information in the briefing paper will be of benefit to members.

640. The Committee will proceed, shortly, to look at the category one list of issues for a second time, and it is intended that a second revision of the Committee briefing paper — that the Committee will have to hand next week — will reflect the decisions that may be reached today on any particular issue. That paper will address, slightly differently, the observation that the Deputy Chairperson made last week about decisions that the Committee made on a rolling basis being in the public domain. They are in the public domain in a slightly different way, in the sense that the minutes of proceedings identify where the Committee has made clear decisions. However, the disadvantage of that is that it takes about a week and a little bit, because the minutes of proceedings can only be agreed the following week, and, subsequently, they are put on the website.

641. The Chairperson: I thank the Committee Clerk; he has put some work into this, and it has been helpful. It is hoped that other members will find it beneficial as we go through the issues.

642. For the purpose of the record, I have to read each issue, so bear with me, please.

643. Mr McFarland: Recommendation 24 states that the Probation Board should transfer as proposed, on a without-prejudice basis. I think that it should be the Probation Service. Have I missed something, or is it under another title?

644. The Committee Clerk: What page are you looking at?

645. Mr McFarland: Recommendation 23 contains the various entities that make up the criminal justice system, and recommendation 24, on page 12, contains the Probation Board — but I thought that the Probation Board is an appeal mechanism on probation. I thought that it was anticipated that the Probation Service would be set up as an agency.

646. The Committee Clerk: I must confess that I do not know the detail of that.

647. Mr McFarland: Would it be possible to have a checklist? Perhaps the Probation Board and the Probation Service are one and the same. If that is the case, it is contained in the recommendation.

648. The Chairperson: We will clarify the terminology.

649. Mr McFarland: If they are not the same organisation, the Probation Service should be included.

650. The Chairperson: If members are happy to proceed, I will begin with issue A: “On the basis that there should be a single Department with a single Minister, what would be the method for election/appointment of that Minister?”

651. Before I continue, I must inform the Committee that Dawn Purvis sent her apologies for being unable to attend this part of the session.

652. If members are content, I will take comments from each of the parties — after which, we will have a discussion and decide whether to resolve the issue or to defer it to the next meeting, when the final decisions on deferred issues will have to be made.

653. Mr Hamilton, what is the DUP’s view on issue A?

654. Mr Hamilton: The DUP agrees that there should be a single Department and a single Minister, who should be elected via a cross-community vote on a 50:50 basis. In order to achieve that, there may be a requirement for legislative change, which is something that the Committee must revisit.

655. Mr A Maskey: Sinn Féin is happy to follow the format proposed and suggested by the First Minister and the deputy First Minister in their letter to the Committee.

656. Mr McFarland: The Ulster Unionist Party agrees that there should be a single Department and a single Minister, when there is the confidence that the time is right for their deployment. However, we should follow the current system. Any party should have the opportunity to take the new Department if it wishes, and d’Hondt should be rerun, because it is the statutory method of doing such things.

657. Mr Attwood: We also agree with everyone else; there should be a single Department with a single Minister, and that the method of election should be the d’Hondt method, as laid down in the Good Friday Agreement and the Northern Ireland Act 1998.

658. The Chairperson: There is consensus on the first two components of issue A, but there is no consensus on the method of appointment, so that must be resolved. It has been indicated that we should revisit that matter — is that the consensus of the Committee?

659. The Chairperson: The Committee Clerk has indicated that it is important that the Committee makes a definitive recommendation on that issue, so if parties want to consider that and come to the next meeting with a definitive position.

660. Mr Attwood: From our point of view, what we have outlined today is the SDLP’s definitive position, and that will not change between now and the next meeting. Will the Committee Clerk clarify whether issue A covers the nomination process, or is that dealt with elsewhere on the list?

661. The Committee Clerk: For the purposes of the discussion, all the issues around the election or appointment of a Minister need to be captured under issue A — I do not believe that it is picked up in any great detail anywhere else.

662. The point that I was trying to make was that, for the purposes of legislation, if the Committee is minded to make a recommendation, it will need to be a fairly definitive recommendation in order to inform the legislation.

663. Mr Attwood: It may be more appropriate to deal with the election or appointment method under issue E, which deals with the arrangements for removing or replacing a Minister once he or she has been appointed.

664. The Chairperson: We are dealing with issue A at the minute, so let us not—

665. Mr Attwood: Yes; but as a Committee, we must decide whether the matter should be dealt with under issue A or issue E.

666. The Chairperson: We should not move on to issue E; I want members to focus their minds on issue A, which is what we are discussing.

667. Mr Hamilton: I take the Committee Clerk’s point regarding the requirement for a definitive recommendation — that is why I made the point that I did. In light of the need for parties to be more definitive on the matter, we probably do need to revisit the issue, after we have discussed it further.

668. Mr McFarland: On a practical note, I understand what the Chairperson is saying; however, if we moved that part of issue A down to issue E, we could have agreement on issue A today, and that could be laid to rest. The whole matter of who is appointed, reappointed or removed from office could be dealt with as a separate package under issue E. That would allow us to agree on a single Department and a single Minister, and lay issue A to rest.

669. The Chairperson: Are members happy that we do that and move on? It seems that there is an overlap between issues A and E.

670. Mr Hamilton: We can come back to this discussion.

671. The Chairperson: Certainly, we will come back to it when we are discussing issue E. However, we have now agreed on having a single Department and a single Minister. We can pick up on the latter part of issue A during the discussion on issue E, which we will be having in the not-too-distant future.

672. Issue B is already agreed, so we do not need to go back to that. Moving on to issue C, which asks what would be the status of the Minister’s position in, and relationship with, the Executive Committee?

673. Mr Hamilton: Again, that is something that we are still discussing and would like to revisit definitively next week.

674. Mr A Maskey: Sinn Féin is of the same opinion — that requires a bit more consideration.

675. Mr McFarland: The Ulster Unionist Party’s view is that if a Minister is appointed, he or she must have equal status. The idea that someone is appointed and paid as a Minister but is wheeled in only when policing and justice is being discussed seems like nonsense and a wrecking of the system.

676. Mr Attwood: The SDLP agrees that the proposed justice Minister should have full membership of the Executive, including full voting entitlements. In all aspects, the justice Minister should have equal status and authority to all other Ministers.

677. The Chairperson: Some different views have been expressed. We will return to that and decide on a definitive position next week.

678. We move on to issue D:

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

679. Mr Hamilton: The DUP agrees with the point that the First Minister and the deputy First Minister made in a letter that they sent to the Committee last week about the arrangements for the appointments.

680. Mr A Maskey: Sinn Féin is also happy to go along with the position that the First Minister and the deputy First Minister articulated last week.

681. Mr McFarland: If the justice Minister were elected as a normal Minister under the d’Hondt system, his remit would run until the next election. In that case, d’Hondt would have to be run again. That is all standard stuff for the Assembly.

682. Mr Attwood: The SDLP agrees with the Ulster Unionists that a Minister of justice who is elected under d’Hondt would last until the next Assembly election, subject to the power of removal in the hands of the nominating officer of the party that nominated the Minister.

683. The Chairperson: There is disagreement on that point, and we will need to come back to that next week with a definitive position. The parties need to have a discussion and come back to that issue at the next meeting.

684. Mr A Maskey: That would follow and fall into line with the last suggestion that issues E, A, B and C all be listed under issue E.

685. The Committee Clerk: That refers to the third component of issue A.

686. Mr A Maskey: There are three parts to issue A.

687. The Chairperson: I want clarity on that.

688. Mr McFarland: Can you confirm whether that is for appointment or removal —

689. The Chairperson: That is the very reason why I want clarity, and I can see the sparkle in your eye.

690. Mr A Maskey: We need clarity on the appointment/vacancy relationship.

691. The Committee Clerk: The third component of issue A will go into issue E. The Committee also wishes to revisit and to come to a definitive position on issue C next week. Issue C is:

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

Similarly, the Committee wishes to reach a definitive position on issue D:

Would the appointment of a Minister be an interim arrangement until the next Assembly election?

Those two issues are connected with discussions that the Committee will have next week on issue E:

“What would be the arrangements for removing and/or replacing a Minister once appointed?”

The Committee must bear in mind that the third component of issue A now fits in to issue E.

692. Mr McFarland: Issue E now includes the appointment, the removal and the replacement. You could say that issue E is divided into three parts — 1, 2 and 3 — for clarity of identification.

693. The Chairperson: That is probably fair comment.

694. Mr McFarland: Can I confirm that issue C and issue D are still separate issues?

695. The Chairperson: Is everybody crystal clear?

696. Mr Hamilton: No.

697. The Chairperson: I am not sure that I am. We will move on to issue E.

698. Mr Hamilton: Is this “new E”?

699. The Chairperson: I will read out issue E as it is at the minute, and then the Committee Clerk will read out issue E as it will be.

“What would be the arrangements for removing and/or replacing a Minister once appointed?”

That is issue E as it stands. The Committee Clerk will read issue E as it now is.

700. The Committee Clerk: “What would be the arrangements for appointing, removing and/or replacing a Minister?”

701. Mr Hamilton: Obviously, there are elements that we have parked or are revisiting. May I make a point about the members’ packs?

702. The Chairperson: I have already done that. It will be sorted.

703. Mr Hamilton: Has that point been made earlier?

704. The Chairperson: It will be sorted out for the next meeting. Members will be getting black folders for the next meeting so that papers can be removed easily.

705. Mr Hamilton: As regards the issue about replacing the Minister, we agree with the letter from the First Minister and the deputy First Minister that during the initial period, the appointment/replacement process should be the same. We are moving to where we may need to give the issue a bit more thought. We suggest that the appointment should be by cross-community vote; that element would have to be included somewhere. However, we will be happy to revisit that element of the question.

706. Mr A Maskey: As I said earlier, we support the arrangements proposed by the First Minister and the deputy First Minister, which includes filling any vacancy on the same basis as the elected Minister in the first instance.

707. Mr McFarland: We are for the standard method of appointing through the d’Hondt system, with nominations by the party that is to choose the Minister. The nominating officer would remove the Minister and produce another. It is the standard Assembly system that we have used for 10 years.

708. Mr Attwood: We agree with the Ulster Unionists that, under the Good Friday Agreement and the Northern Ireland Act 1998, the nomination power falls to the nominating officer of the party nominating the Minister. The power to remove the Minister falls to the nominating officer of the party that nominated, and the power to replace falls to the nominating officer of the party that wishes to replace the justice Minister.

709. The Chairperson: That is an issue that we will come back to next week. Obviously, parties need to have a discussion on the matter and come back with their definitive positions for the next meeting. Do members agree?

Members indicated assent.

710. The Chairperson: We move on to issue F: “What would be the name of the department?”

711. Mr McCausland: That would be moving towards justice.

712. The Chairperson: The justice Department.

713. Mr Hamilton: The Department of justice.

714. Mr McFarland: We would have preferred policing and justice Department, but we will probably run along with justice Department if that is the consensus.

715. Mr Attwood: I agree with the Department of justice.

716. The Chairperson: Are members agreed in calling it the Department of justice?

Members indicated assent.

717. Mr Hamilton: This is a personal sorrow that the Department of home affairs does not —

718. Mr McFarland: Home affairs was —

719. The Chairperson: Let us not to back there. We have an agreement. We will move on to issue G:

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

Members have the chart that lists the 28 organisations, and can see the category 2 list at H and J, also.

720. Mr Hamilton: This is allied to the list in annex 1. The suggestion in annex 1 is that the vast majority of those powers would be within a new justice Department, and we would agree with that.

721. Two elements, in respect of the Judicial Appointments Commission and the ombudsman, are for the First Minister and the deputy First Minister, which might, to return to my previous point, require the law to be amended to allow the Judicial Appointments Commission to appoint judges. Beyond that, we would not be suggesting or supporting a movement of anything else away from the justice Department.

722. Mr A Maskey: We are happy enough to go with the list that is in front of us, but we would like it to be more definitive.

723. Mr McFarland: Chairperson, you will recall that this is where we got into a number of issues that we might need to consider in slower time. One of them was the Public Prosecution Service (PPS), and who would look after it and fund it, and its independence, etc. The other issues were the two that Simon Hamilton mentioned, which are proposed for the First Minister and the deputy First Minister. I do not know whether it is possible to go through those issues one by one just to confirm that we are happy to reaffirm the original proposals of the report and the Assembly. Subsequent issues or information might need further investigation. Most of the issues are fairly simple, but I worry that before we could recommend that issue G be left for someone else to look at — if we are now producing the definitive answer — it would pay us to ensure that we are not missing some pieces of information on issue G that we had, perhaps, glossed over the last time.

724. The Chairperson: Therefore, you are indicating that you would like to come to a definitive position and bring that back to the next meeting?

725. Mr McFarland: No, I think that if we run through this today, most of the issues are fairly obvious, and, therefore, we can agree them easily. I would like to be sure that, in light of other questions raised, we are not somehow missing a trick. At one stage, it seemed fairly simple that the First Minister and the deputy First Minister would confirm the appointments to the Judicial Appointments Commission; now, that has changed, and I would like to be sure that nothing else like that has changed. The difficulty is whether we are in the same mind as the First Minister and the deputy First Minister in some of these areas, because you could argue that without hearing from them as to what their latest thinking is on this, we would not want to go down the line and find that their thinking is different to ours; in which case, we would have a row about it.

726. The Chairperson: The floor is yours; would you like to go through the list?

727. Mr McFarland: I am just saying that if you want to go through it —

728. The Chairperson: If you want to go through it, I am quite happy for you to do that.

729. Mr McFarland: I will take over the meeting, OK. Starting at the top of annex 1, with the Public Prosecution Service: it states that the future sponsor would be a

“Consultative relationship with the Attorney General for Northern Ireland; resourced by a Northern Ireland Department.”

730. That raises the question that if it is a Public Prosecution Service, perhaps the Minister for justice should not have control because it might be considered not to be independent enough if he were also providing the money for it. We had a row, as you know, about the appointment of judges, and the DUP and Sinn Féin agreed that that power would go off somewhere else. I wonder what the Committee’s view is on where the Public Prosecution Service should be.

731. Mr Hamilton: I thought that you were telling us your view.

732. The Chairperson: It is your view that we are looking for; your party’s view. I am chairing the meeting.

733. Mr McFarland: That is what I was trying to get you to do.

734. The Chairperson: Hold on a second, it is the UUP view on the issue that we are trying to get to. Two parties have indicated that they need some further discussions.

735. Mr McFarland: That is what I was trying to say to you in a roundabout way.

736. The Chairperson: You indicated that you wanted to go through the list. I am allowing you to do that. It is not a debate for other people at the minute. I thought that you were going to indicate what your position is on it.

737. Mr McFarland: What I am trying to point out to you, Chairperson, is that we spent quite a lot of time on this in the previous Committee. I know that you were not on a member of it, but the previous Committee spent quite a long time on this, and, because of the political situation at the time, some of the issues were glossed over rapidly. This is now a serious issue for this Committee, because this Committee’s recommendations will form the basis of the new Department and how it works.

738. The point that I was trying to make is that it would serve us well to pay a bit more attention to some of the issues that were scouted over very quickly the last time. I am trying to suggest to the Committee that these are issues that we need to take slowly, one at a time, and if we need more information on them, which we will do on some of them, we should do it in slow time. Does everyone agree with this?

739. The Chairperson: We are dealing with category 1 matters. PPS matters relate to category 2, which we will discuss at a later stage.

740. Mr McFarland: Have we not begun to discuss the matters to be devolved?

741. The Chairperson: We are discussing those matters because you suggested doing so.

742. Mr McFarland: No, sorry; the question suggested doing that.

743. Mr A Maskey: Members from two parties have spoken, and we are hearing from a member of a third party. I thought that the purpose of going round each party was to hear their proposals and thoughts. It does no good for Alan to ask me what I think; I have already given my views, and, next week, Sinn Féin will come back with a more definitive view on the matter. I want to know whether the UUP intends to make any proposals. Perhaps, Alan should come back next week with more definitive thinking.

744. Mr McFarland: I was trying to make the point that we need to know about how the policing and justice Department should be structured and what functions should be placed with it and with the Office of the First Minister and deputy First Minister (OFMDFM). Such questions lead immediately to the chart in members’ briefing packs, concerning the organisations in the criminal justice and policing fields — in other words, the structure of the policing and justice Department. On that chart, members will see a number of NIO recommendations about future sponsors, some of which have already been interfered with. For example, the DUP and Sinn Féin disagreed about where the responsibility for making judicial appointments should lie. I am suggesting that before we reach decisions about such matters, we should try to find out about what else the DUP and Sinn Féin — through the First Minister and the deputy First Minister — have decided to change.

745. I suspect that agreeing to most of the recommendations on the list will be fairly simple, because they are obvious; however, some items might prove to be politically neuralgic and others might not be very clever. Although, the first time around, we went through those items rapidly, this time, some of them may require slower consideration to ensure that we do not make wrong decisions. Coming back next week —

746. Mr A Maskey: Do you have anything to say about any of those matters, because you will be asking those questions?

747. Mr McFarland: Parties are being asked to come back next week with definitive proposals on those matters. However, although the First Minister and the deputy First Minster are able to give their views to the DUP and Sinn Féin, before asking the rest of us to make such decisions, surely, we have a right to hear about what is in their minds and, indeed, about the NIO’s latest thoughts. We have asked for that, but to suggest that the parties hurtle back next week with an agreed position on all those matters is not how the Committee should operate.

748. The Chairperson: Mr McFarland, you agreed to the programme for the next number of weeks, and we are following that programme. Parties indicated that they will come back with their views, and I am happy with that. Furthermore, I pointed out to you that PPS matters would be considered during category 2 discussions.

749. Mr McFarland: OK, I was just trying to be helpful. I will take a time out from protesting until next week; however, we will have the same discussion then. Although I was trying to be helpful, you may crash on if you wish.

750. The Chairperson: Did you wish to make any proposals?

751. Mr McFarland: As I explained, my party is in no position to make any proposals.

752. Mr Attwood: It is not possible to be exhaustive, so we should just address indicative matters. For example, the SDLP raised issues concerning the structure of the new justice Department. Incidentally, given the fact that we all agreed, it should be called the justice Department, rather than the Department for policing and justice.

753. I shall highlight two further points raised by my party. First, given the sensitivity and difficulty with which the powers that will fall to the new Department will have to be exercised, a process must be implemented to revisit issues concerning its staffing complement. Secondly, given the history of those issues, at the point of devolution, the Department must have support in order to ensure that it is seen to be fully independent.

754. Mr Hamilton: That is a little cryptic — will you provide more explanation about the meaning behind all that?

755. Mr Attwood: I will not to go into any great detail because I think that we will come back to this issue. Given the nature of justice powers in the past and the controversy around those, I will use this argument by parallel: your party and Sinn Féin agreed that all appointments, apart from that of the Lord Chief Justice, will be made through a Judicial Appointments Commission. That will ensure that there is as much independence as possible and that there is input from external stakeholders, which will result in confidence. That was because people felt that there was a better way to appoint judges than occurred heretofore, and was in order to ensure that confidence in the judiciary was enhanced compared to what it might have been before.

756. Given that those structures were put in place around the judiciary, and similar structures were put in place around policing, it can be argued that there needs to be a new level of independence for staff of the justice Department in order to have a new level of confidence. One of the ways to do so would be to build independent support into the new justice Department so that the levels of confidence can be higher than what might otherwise be the case.

757. I could give a number of other examples. However, given the sensitivities around those issues, and given the need to have independence for staff and support, mechanisms could be used to bring that about — although that is not indicative of what could happen in respect of the structure.

758. My second point refers to the status of the justice Minister at or around the Executive table. From our point of view, the staffing of the justice Department has to be on an equivalence basis with other Departments. Neither the Department nor the Minister can be second rate — the Department and the Minister should be full and equal to other Departments in the Assembly. For all the arguments about protecting the justice and policing budget, I hope that the equal status of the Minister and the Department will be protected, particularly when it comes to staffing, finance and resources.

759. As a matter of record, we should also ask how the part of the NIO that will be in place after the transfer of justice functions will be structured. I want to know how many people will be in the new NIO and what the structures will be, and I want to know how much money will be left for the part of the NIO that remains after devolution. As far as the budgetary issue is concerned, will it receive an unfair share of the NIO/justice cake in respect of its responsibilities for excepted matters that will continue after justice is devolved?

760. If the NIO will have a significant enduring structure in the North, does that mean that a lot of money will follow it? That could have consequences for the justice budget. Alan rightly highlighted some particular matters in respect of functions. To be fair, annexe 1 is a useful document because it outlines that all the bodies that it names — unfortunately, almost without exception — fall into the remit of the Department of justice. We can argue about the relationship among those bodies, the Department of justice and the Assembly, but annexe 1 outlines that the future sponsor of virtually all those departments, agencies and bodies will be the justice Department, save — in particular — the issue that Alan highlighted, namely the relationship between the PPS and the Assembly. That needs to be defined, not least because it was proposed earlier that the funding of the PPS should be the responsibility of OFMDFM.

761. We opposed that idea, as we believe that the funding of the PPS falls more naturally to the Department of justice. I do not understand the argument for funding of PPS to fall to OFMDFM. It seems incongruous with the natural order of things. We need to do some restructuring and re-engineering around how the PPS accounts to the Assembly and how it is managed internally. That is why we believe that a management board should be established à la the Policing Board, irrespective of the PPS. It should not necessarily comprise political representatives, but rather people who can enhance the quality and value of the work of the PPS and who can enhance public confidence.

762. There are other issues arising from annex 1, which I will not go into now, but it is not a litany of issues. Nevertheless, we should address the issues that we can address, because my sense is that we have a longer lead-in time than a few weeks or months before justice is devolved.

763. Finally, annex 1 does not contain the role and powers of the scrutiny Committee, nor are they contained in category 2 or category 3. They might be there, but it is nonsense to talk about the structure of the justice Department and its functions if we do not also talk about the structure and functions of the scrutiny Committee in relation to all the bodies that are contained in annex 1. Although the powers of a scrutiny Committee will vary depending on the particular body, we need to work out the powers of the scrutiny body in respect of all the justice bodies, given that some bodies have different legal status, as they are agencies, non-departmental public bodies or advisory non-departmental public bodies, either in category 1 or in subsequent categories. We need to work that through as well.

764. The Committee Clerk: Point O in category 1, which relates to the procedures and protocols that should be in place between the Minister and the Assembly Committee and any newly established Department and its associated agencies, may go at least some way towards addressing Alex’s point. There is an opportunity for that to be considered under that issue.

765. The Chairperson: I asked for an update on staffing issues and workstreams from the NIO, and that request is contained in the letter that we discussed earlier.

766. Mr McFarland: You seem to be suggesting that the Department of justice should be staffed in the same way as the Policing Board, which is effectively separate from the Civil Service. Are you suggesting that one of the Departments should not be staffed by civil servants, but rather that it should have specially recruited, more independent staff?

767. Mr Attwood: No, whatever I think may be the ideal outcome, the Department of justice must be equal to all the other Departments. Therefore, it will be staffed by members of the Northern Ireland Civil Service. I am not arguing for any special treatment for the Department of justice, otherwise I will fall into the DUP trap, and I am not going to do that. There has been a lot of controversy and dispute around justice issues. Therefore, when it comes to staffing the justice Department, in addition to staff who may move across from the NIO or other Departments, there is a need for other independent staff to ensure that the work is taken forward by the Minister and his officials in a way that allows matters to move quickly with confidence.

768. Therefore, I believe that there should be an independent recruitment of staff to assist in the transition period before the establishment of the justice Department — over and above whatever other staffing needs might arise in the natural order of things.

769. Mr McCausland: Does anyone think that Alex should get a job writing riddles for Christmas crackers? What does he mean?

770. The Chairperson: Do we want to go through all that again?

771. Mr McCausland: I have to listen to him; I would simply like to know what he means, because I am none the wiser.

772. The Chairperson: Some of the issues are category 2, and we will have wider discussions with the PPS on several matters. There is no agreement and, therefore, we need to revisit the matter at our next meeting.

773. Mr Hamilton: There is no understanding of the subject.

774. The Chairperson: Parties need to come back with a more definitive view next week, when some of the category 2 issues will be picked up, and we will have a wider discussion. I remind members that at last week’s meeting, they agreed on the timetabling of the programme to get us to our first report. Do members agree to revisit that issue?

Members indicated assent.

775. The Chairperson: We move on to point H:

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

That has been reworded since last week to reflect the decision that was taken on 18 November.

776. Mr Hamilton: The rewording makes much more sense than the previous version.

777. This issue can be dealt with in different ways: legislatively, through Standing Orders, or through a simple understanding that people will not be appointed to both bodies. The DUP is not wedded to any particular formula as long as the effect is the same and someone who is a member of the scrutiny Committee is not also sitting on the Policing Board.

778. Mr A Maskey: I would have thought that Standing Orders would probably be the best way of dealing with that. As Simon said in reference to the DUP, Sinn Féin is not wedded to any option, as long as it makes sense and prevents any conflict of interest. We should probably examine what can be done through Standing Orders.

779. Mr McFarland: Presumably the review of public administration (RPA) will take care of the Director of Public Prosecutions, and, in theory, no one will be able to be both an MLA and a councillor. The other matter could, as my colleagues said, be dealt with as part of Assembly business or through agreement among the parties. The Assembly route is slightly stronger legally than parties coming to an agreement.

780. Mr Attwood: Although I agree with the principle, we should seek advice on whether Standing Orders will suffice, and they may.

781. The Chairperson: The Committee Clerk will seek that clarification for the next meeting.

782. Mr Attwood: OK; as long as we get that clarification quickly.

783. The Chairperson: We may not get it that quickly, but we will get it as soon as we can.

784. We move on to point I:

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

785. Mr Hamilton: The political parties should handle the bulk of the negotiations. However, to reiterate a point that has been made frequently, this Committee has an important role to play in verification and independent scrutiny when carrying out some of the work that is scheduled for after the Christmas break.

786. Mr A Maskey: I think that the matter is in hand. OFMDFM has indicated in discussions with the Committee that it is taking forward some of those considerations, so it is work in progress.

787. Mr McFarland: It is work in progress and should be revisited.

788. Mr Attwood: I agree that it is work in progress, but I think that we are cheerleading more than being really involved.

789. The Chairperson: To reinforce what was said earlier; we have already agreed the appointment of someone to carry out the work that we instructed last week, and that needs to be done for the next meeting.

790. Moving on to J:

“Should any budget be ringfenced?”

791. Mr Hamilton: Chairman, the position has not really changed from last week, in that that is a question best answered in light of the ongoing work concerning the financial system. I do not think that a decision can be made; we may have preferences as to what should be done, but I think that when there is a clearer picture of where the financial situation stands, we can come to a more definitive answer.

792. Mr A Maskey: I think that the budget should be ringfenced for the Department; it is difficult to decouple that from the earlier conversation.

793. Mr McFarland: Our view is that there should be as normal a Department as possible, in which case the Executive should be able to move money around if they need to. All the other Departments can do that, and I do not see why this one should be any different if it is working under normal circumstances.

794. Mr Attwood: As we said last week, we believe that the budget should be ringfenced. Unless some guarantees are created, the needs of the community cannot be answered in respect of the impact and timing of the devolution of policing and justice. We believe that ringfencing the budget is one of those guarantees.

795. We are prepared to look at exactly how it should be ringfenced: in total, with some discretionary parts, or for a transitional period in order to build certainty and remove doubt. As a matter of principle, we think that where it comes across as part of the block grant, the budget should be ringfenced.

796. The Chairperson: There is not full agreement on ringfencing, but I sense that the Committee will want to pick up on that again in category two, as the discussion on finance continues. Are members happy that we move that to category two?

797. Mr Hamilton: I think we can kick it out of this category.

798. The Chairperson: Are members content?

Members indicated assent.

799. The Chairperson: We move on to M:

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

800. Mr McCausland: One of the difficulties with those areas is that there is still uncertainty at this stage; for example, take public processions, we do not know the outcome of the Ashdown review. Until those things have been clarified, we prefer not to take a definitive position.

801. Mr A Maskey: Those matters require a bit more consideration and we should come back to them.

802. Mr McFarland: Recommendation 9, in annex 2 of our original report, said that that should be subject to review when the Ashdown report is completed. There is ongoing work to be done.

803. Mr Attwood: Our principle is that all those matters should be devolved. However, cross-community protections must be put in place around matters such as 50:50 recruitment, and the Chief Constable’s appeals against the decisions of the Parades Commission. If, for the sake of argument, devolution happens sometime next year, whatever the outcome of the Ashdown review, I doubt that that will have been legislated for by then.

804. The Chairperson: We will revisit that as some clarification is needed. Are members agreed?

Members indicated assent.

805. The Chairperson: We move on to N:

806. The Committee agreed on 18 November that it would revisit the role of the security services and the all-Ireland policing arrangements when considering category 2 issues, C and D. All other aspects are considered to be policy matters for a future Department. Does the Committee agree to reflect that in its report? That was the basic agreement at the last meeting. Are we agreed?

Members indicated assent

807. Mr McFarland: Can we move those two issues into category 2?

808. The Chairperson: They have already been moved into category 2. We now move on to issue O:

“What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established Department and its associated agencies?”

On 18 November, the Committee agreed to revisit that when considering category 2 issues. Can we now move formally to put that into category 2 issues?

Members indicated assent

809. The Chairperson: Thank you. Moving on to issue P: “Should the “triple lock” within the Executive apply to decisions of a policing and justice Minister?”

810. Mr Hamilton: That is probably bound up or could maybe be moved to the new category E as we are now calling it, and perhaps could be moved into part 5 of “new E”? It seems that if the Committee agrees on an issue, we agree. However, if we cannot agree, we shift that issue into this massive category.

811. The Chairperson: Ok. That is your view.

812. Mr A Maskey: I agree with that.

813. Mr Hamilton: The Committee has only made two recommendations.

814. Mr McFarland: I am happy with that suggestion.

815. Mr Attwood: It is fine if we want to move that issue into E. However, the SDLP opposes the “triple lock” per se, wherever it raises its head.

816. The Chairperson: Therefore, the consensus of the Committee is to move issue P into “new E”. We now move onto issue Q:

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

817. Mr McCausland: No.

818. Mr A Maskey: Sinn Féin is happy to leave things as they are for the moment.

819. Mr McFarland: No.

820. Mr Attwood: The SDLP believes that all excepted matters should be devolved.

821. The Chairperson: Do we have a consensus to leave matters as they are?

822. A Member: Park it.

823. The Chairperson: Is the Committee in agreement that we park that issue and return to it next week?

Members indicated assent.

824. The Chairperson: Ok that takes us through to category 1 again. I will clarify the agreement that we made earlier. There was some confusion around my use of the word “appoint”. My understanding of what we agreed earlier was that there would be a person appointed from the Assembly’s Research and Library Service to provide financial advice. If a person was not appointed from that service, someone else would be brought in.

825. The Committee Clerk has been asked to report back to the Committee on whether the Research and Library Service has the necessary expertise to carry out whatever work the Committee requires on financial matters. If it does not, the Committee will need to get someone else in to carry out that work. We are not using the word “appointment” yet.

826. Mr McFarland: We need to identify someone for the Committee; there is no need to decide yet.

827. The Chairperson: Can we use the word identify rather than appointment, does that make it any clearer? Can we agree that?

Members indicated assent.

2 December 2008

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

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

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

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

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

Members indicated assent.

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

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

I will take the views of the parties on that.

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

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

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

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

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

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

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

Members indicated assent.

841. The Chairperson: We will move on to issue D:

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

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

843. Mr Attwood: May I ask a question?

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

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

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

847. The Chairperson: I call Alex Maskey.

848. Mr Attwood: I want to comment —

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

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

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

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

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

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

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

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

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

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

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

860. Mr Hamilton: I agree with the last comment.

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

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

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

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

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

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

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

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

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

870. Mr A Maskey: Suck it and see.

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

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

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

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

875. Some members: No.

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

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

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

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

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

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

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

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

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

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

886. Mr Hamilton: This Committee cannot bind anything anyway.

887. Mr McFarland: Absolutely, but the vote is —

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

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

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

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

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

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

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

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

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

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

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

899. Mr McFarland: I am assuming that they will.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

915. Mr McFarland: You mean until 2012.

916. Mr Hamilton: It is May 2012.

917. Mr McCartney: As outlined in the letter?

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

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

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

921. The Committee divided: Ayes 7; Noes 3.

AYES

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

NOES

Mr Attwood, Mrs Hanna, Mr McFarland.

Question accordingly agreed to.

922. The Chairperson: We will move on to item E:

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

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

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

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

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

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

926. It elaborates on the relationship.

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

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

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

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

931. The Chairperson: Sorry?

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

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

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

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

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

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

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

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

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

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

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

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

The Committee divided: Ayes 7; Noes 3.

AYES

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

NOES

Mr Attwood, Mrs Hanna, Mr McFarland.

Question accordingly agreed to.

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

Members indicated assent.

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

945. Mr Paisley Jnr: The party’s nominating officer.

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

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

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

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

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

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

952. Mr Hamilton: We agree.

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

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

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

955. Mr A Maskey: We are happy with recommendation 23.

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

957. The Chairperson: Did you say OFMDFM?

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

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

960. The Chairperson: That is recommendation 24.

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

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

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

964. The Chairperson: Yes.

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

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

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

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

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

970. The Chairperson: Are there any other issues?

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

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

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

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

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

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

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

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

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

980. Recommendation 26 of the original report says:

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

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

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

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

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

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

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

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

Members indicated assent.

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

Members indicated assent.

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

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

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

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

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

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

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

995. Mr Hamilton: That is an NIO recommendation.

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

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

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

999. Mr Hamilton: Recommendation 23 states:

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

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

1000. The Committee Clerk: The Committee agreed, originally, that all those should go to the Department of justice. However, the NIO proposed that the Judicial Appointments Commission and the Judicial Appointments Ombudsman would go to OFMDFM. The Committee is reaffirming the original recommendation. Are we clear on the fact that the JAC and the JAC Ombudsman would go to the Department of justice?

1001. Mr Hamilton: Yes. Sod the NIO.

1002. The Chairperson;

1003. Are we clear on that?

Members indicated assent

1004. The Chairperson: On recommendation 24, will our report say that further work is needed on the issue of the Public Prosecution Service?

Members indicated assent.

1005. Mr Attwood: I said that work also needs to be done on the JAC.

1006. The Chairperson: Would that work be done by the justice Department?

1007. Mr Hamilton: We will come back to discuss all the bodies that are listed in recommendation 24.

1008. The Chairperson: We will return to discuss recommendation 24 of the Committee’s first report into policing and justice.

1009. We move on to point H:

1010. At last weeks’s meeting, there was general agreement that members of the new Committee would not also sit on the Policing Board or the district policing partnerships. The issue was whether procedures to cover that would need legislation or whether that could be done through Standing Orders. Some additional work needs to be done on that issue. The Committee Clerk will provide some advice on that. Are members agreed that there was general consensus on the matter at last week’s meeting?

Members indicated assent.

1011. The Committee Clerk: Under matters arising, I mentioned that I have formally requested legal advice to establish whether such a measure could be achieved by Standing Orders or whether some other mechanism, such as legislation, may prove to be more appropriate. I expect to have that advice for the Committee by next week’s meeting.

1012. The Chairperson: Are members content with that?

Members indicated assent.

1013. The Chairperson: Issue I and issue J have been moved to category 2. Issue K and issue L are agreed.

1014. Mr Attwood: I wish to ask a question related to issue L to which I can anticipate the response. Curiously, in the House of Commons last week, Peter Hain asked the Secretary of State, Shaun Woodward, whether there was any intention to introduce the phased devolution of justice powers. The Committee has already agreed that there should be no shadow Ministry and no shadow Department. Is any consideration being given to the phased devolution of justice powers so that they are not all devolved at once but in parcels?

1015. The Chairperson: We have already agreed on issue L for the report.

1016. Mr Attwood: I know that, but I am referring to a different matter.

1017. The Chairperson: So you are simply raising a question.

1018. Mr Hamilton: The DUP’s position is as it was.

1019. The Chairperson: None of us can speak for the Secretary of State.

1020. Mr Hamilton: I try not to speak for him.

1021. The Chairperson: I am loath to get into a discussion on that. We have already made a decision on that issue, and I pointed that out for the purposes of the record.

1022. We move to issue M:

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

1023. Mr Hamilton: As we stated last week, the DUP’s position is that we should walk before we can run. It is desirable to consider some of those matters. We are happy to consider the legislation on public processions, but we await the outcome of the Ashdown review. If that review is due to report at the time of our consideration of the issues in category 2, there may an opportunity to invite Lord Ashdown to have a conversation about that issue.

1024. Mr A Maskey: Fundamentally, we all want all powers to be transferred, but Sinn Féin does not make any specific proposals. I agree with some of Simon’s comments; we are content that no further action needs to be taken.

1025. Mr Attwood: We also believe that all those matters should be devolved, and that we could spend some time on the difficult work of identifying whether there are any mechanisms that could be in place, whereby issues such as appeals against the decisions of the Parades Commission could be devolved in a way that would earn public confidence and cross-community support. We believe that they should be devolved, but that they should be devolved with protections. Not today but some other time, the Committee could look at what those protections might be.

1026. I am prepared to look at Mr Hamilton’s suggestion that Lord Ashdown might come before the Committee. However, that may depend on the Committee’s time frame, which could be considerable. There may be other people who we could usefully consult with, and the Committee could come back to that also.

1027. Mr McFarland: The process of 50-50 recruitment to the PSNI is due to be phased out in 2010 when the Patten proposals finish. The issue of flags and symbols was dealt with after 1998 and some of that is a national issue anyway. As regards public processions, we need to wait and discuss further the whole Ashdown procedures and where parading goes.

1028. The Chairperson: I think that there is general consensus. There is a risk of pre-empting the Ashdown report. Can the Committee revisit that issue? Everybody is in consensus that we may need to revisit that issue, and that would be beyond our first-stage report.

1029. Mr Attwood: I can understand why you made that comment. However, I do not think that it is complete. Whether Ashdown reports in January or whenever, it is highly unlikely that there will be any legislation to give effect to any of the report’s proposals within a year or two. Therefore, if we assume that we will have devolution of justice within a year or two, it will come in advance of any legislation that the Ashdown report may recommend — if at all. We need to put a marker down about the powers that the Secretary of State currently has to hear an appeal from the Chief Constable in respect of a Parades Commission determination. That is not a devolved matter, and it has been hinted by the NIO that it should not be devolved — even with devolution.

1030. We have to separate Ashdown, and what he does or does not recommend, from, and in the event of, devolution. We have to separate Ashdown, and what he does or does not recommend, and how long it might take before it becomes law, with the fact that we hope that we will have devolution of justice before that might arise.

1031. The Chairperson: Is there general consensus that we are basically parking this issue in the meantime, taking into consideration Alex Attwood’s points, and that there needs to be further discussion on category 2 issues? Are members agreed?

1032. Mr Hamilton: I think that there is general agreement on the stuff that is going to happen.

1033. The Chairperson: Are we agreed?

1034. Members indicated assent.

1035. The Chairperson: Issue N has been agreed already. Issue O relates to category 2. Issue P:

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

has been moved to issue E. Is that correct?

1036. Mr McCartney: It is part of issue C.

1037. Mr Hamilton: Issue C via issue E.

1038. The Chairperson: So, issue P is moved to issue C for further discussion? Are members agreed?

1039. Members indicated assent.

1040. The Chairperson: Finally, issue Q:

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

1041. Mr Hamilton: No.

1042. Mr A Maskey: Again, we would prefer that all those matters were devolved. However, at this time, we are not making any specific proposals.

1043. Mr Attwood: All excepted matters should be devolved.

1044. Mr McFarland: They are national issues, and they were left there specifically because they are national issues.

1045. The Chairperson: So, there is general consensus that there is no requirement. Is that agreed?

1046. Mr Attwood: No.

1047. The Chairperson: It seems that there is general consensus around the table, with the exception of Mr Attwood’s comments. Is that agreed? There are no proposals for any further —

1048. Mr Attwood: I propose that we consider excepted matters in order to determine what further matters could be devolved.

1049. The Chairperson: I did not catch your proposal, will you repeat it?

1050. Mr Attwood: I propose that we consider further the excepted matters category in order to determine what matters might be devolved.

1051. The Chairperson: Mr Attwood proposes that we further consider excepted matters in order to determine what further matters might be devolved.

1052. Question put, That the Committee further considers excepted matters in order to determine what further matters might be devolved.

The Committee divided: Ayes 5, Noes 6

Ayes

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

Noes

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

1053. Mr Attwood: Sorry Chairperson, but you raced through the matter of what protocols and procedures will be required between the Minister, an Assembly Committee and any newly established Department and its associated agencies.

1054. The Chairperson: That is a category 2 matter.

1055. Mr Attwood: Further to our letter, has there been any contact from the NIO with regard to the protocols and memoranda?

1056. The Committee Clerk: Not since our letter was sent.

1057. Mr Attwood: Has there not even been private contact to indicate that we would receive a response soon?

1058. The Chairperson: We have agreed to write again to remind the NIO to expedite its reply.

9 December 2008

1059. The Chairperson (Mr Spratt): We now move to the devolution of policing and justice. The letter from the Secretary of State, which has already been indicated to members, is being circulated now. I will give everyone a few minutes to read it.

1060. Should the Committee’s consideration of the Secretary of State’s letter be reported by Hansard as part of the substantive discussion of the matters at item 6 on the agenda?

Members indicated assent.

1061. The Chairperson: I invite members to declare interests. I declare an interest as a member of the Northern Ireland Policing Board.

1062. Mr Paisley Jnr: I am a member of the Policing Board.

1063. Mr McCausland: I am a member of the Belfast District Policing Partnership.

1064. Mr A Maskey: I am a member of the Policing Board.

1065. The Chairperson: We move to our consideration of unresolved issues C, E, G and H in category one; the letter from the Secretary of State dated 3 December 2008, which arrived here yesterday, and the replies given by the First Minister and deputy First Minister at yesterday’s Question Time. Members have been supplied with copies of those papers.

1066. Mr McFarland: Are they from the First Minister and Deputy First Minister or the Prime Minister?

1067. The Chairperson: They are from the First Minister and deputy First Minister during yesterday’s Question Time. Those papers have been tabled for members’ information. I will go around the table on the subject of the letter from the Secretary of State dated 3 December 2008.

1068. Mr Paisley Jnr: My party welcomes the fact that the Secretary of State has written to the Committee. The letter opens up some interesting points that the Committee should consider.

1069. Mr A Maskey: Sinn Féin acknowledges and welcomes the letter, and we will take some time to consider it. I see nothing in the letter that appears to be contentious.

1070. Mr McFarland: The letter is quite useful. We will have to go into some areas of it in more detail, but it is interesting that the financial side of things will probably not be considered by this Committee other than on an information basis. It looks as though detailed discussions are ongoing between the Department of Finance and Personnel and OFMDFM. The suggestion seems to be that the Committee should stay out of that and have a watching brief.

1071. The Chairperson: The Committee can still carry out investigations whenever it wants to.

1072. Mr McFarland: Yes; but the letter is suggesting that there should not be a parallel process, which seems sensible to me.

1073. Mr Attwood: I welcome the letter; however, it raises a number of issues. The first is that at an appropriate time — early in January, I would think — we should take up the offer that the Secretary of State makes in the final paragraph of the letter, which is to allow officials to appear before the Committee. We should schedule a visit from those officials into our future work programme.

1074. Mr Paisley Jnr: Are you suggesting that the Secretary of State attends the Committee, or do you just mean that his officials should attend?

1075. Mr Attwood: His officials — the Secretary of State has yet to offer himself, but, certainly, his officials will be welcome.

1076. Secondly, I do not agree with the Secretary of State’s assertion that the work on the memoranda of understanding and protocols is a matter, in the first instance, for the First Minister and deputy First Minister to take forward. The Committee raised the issue of memoranda of understanding and protocols in its first report. Given that we, as a Committee, are entrusted with protecting Assembly interests with respect to the devolution of policing and justice — a responsibility that the Assembly conferred on the Committee — it falls to us to have a working brief on memoranda of understanding and protocols, regardless of any conversations between the NIO and the First Minister and deputy First Minister. It has been this Committee that has made advances in respect of memoranda and protocols. Consequently, I think that we should have sight of the drafts at a very early stage.

1077. I am very surprised that the memoranda of understanding and protocols are not available at present. In late 2007, NIO officials told the Committee that all preparatory work on the devolution of justice would be completed, if necessary, before May 2008 — I think it was Peter May who gave evidence to the Committee in that regard. That was seven months ago, but now we are being told that the texts of the memoranda of understanding and protocols are still being finalised. Therefore, there is a tension between what we were told before and the fact that the memoranda of understanding and protocols are still not available.

1078. That aside, I think that the Committee should be asking to see the work that is available, so that we are consistent in what we have asked to see before and so that it is recognised that we are protecting the Assembly’s interests. We will have to revisit the letter. I agree with what other members have said about further exploring the matters raised in the letter. There is code in the letter, which I cannot quite work out.

1079. Mr McCartney: That is why it is code.

1080. Mr McCausland: You are good at riddles.

1081. Mr Attwood: The Secretary of State’s letter states that he intends to provide the Committee with documents “well in advance of devolution”. What will happen to that if, as according to the Prime Minister, devolution takes place in a few months’ time? In that event, the phrase “well in advance” probably means that the Committee should be receiving some of those documents from the NIO now.

1082. The Committee should request that officials attend a meeting as soon as possible. The Committee should also write to the NIO stating that it requires sight of the protocols at the same time as the First Minister and deputy First Minister, because our interest is to protect the Assembly; that is our mandate, and we need the information to complete our task.

1083. Mr A Maskey: I am trying to work out whether those codes have anything to do with matters that we know that we do not know, or matters that we might need to know that we do not know.

1084. Mr McFarland: Gerry’s securocrats —

1085. Mr A Maskey: At present, Sinn Féin has no difficulty with further progressing discussions with the Secretary of State or his officials, because, as the Chairperson has said, the Committee can decide to do whatever it wants about the letter that it has received and any matter raised therein. At present, we have no difficulty with that. However, that will evolve in the course of our discussions.

1086. The Chairperson: It can be taken up during our discussions on the work programme.

1087. Mr Paisley Jnr: First, I do not think that the finance aspect should be left to others. A budget of approximately £0·5 billion exists, excluding the further £1 billion for policing and justice. We must examine how that £0·5 billion is allocated to ensure that it is adequate to cover the cost of the jobs that will be transferred and any hidden or potential costs that may arise. We have a duty to identify those issues. Therefore, we have a real bit of work to do on the financial side.

1088. As regards the memoranda of understanding, I partly agree with Alex that the arrangements are primarily between the two Administrations. There is nothing to prevent us having parallel discussions, but they should be on the basis of what is proposed by the Administrations as opposed to discussions about early drafts between the two Administrations. I believe that it is more sensible to proceed once there is a draft proposal and then use that as a basis for discussion. There is no point in discussing the genesis of ideas about what the general agreement should look like. Alex may take exception to that point, but I think that a parallel piece of work is to be carried out, once proposals are available.

1089. The Chairperson: Do members have any other issues in relation to the Secretary of State’s letter? The second item, then, was yesterday’s questions for oral answer to the First Minister and the deputy First Minister.

1090. Mr Attwood: I propose that we invite the NIO officials to attend at a suitable time in January. In order to try to bridge the gap between Ian and me; I propose that the Committee writes to the Secretary of State. The letter should ask him, once he is in a position to do so, to share the memoranda of understanding and protocols with the Committee at the same time as the First Minister and deputy First Minister, which, I suspect, should be imminent.

1091. The Chairperson: The forward work plan will be discussed later in the meeting. The current programme takes us up to 20 January 2009 in relation to the category-one list, after which work will begin on the category-two list. Therefore, there will be no problem building that proposal into the work programme.

1092. Mr McFarland: Does this Committee need to tie in with the Committee for Finance and Personnel? It appears that the Minister of Finance and Personnel and the First Minister and deputy First Minister are already discussing the financial aspect with the NIO. Presumably, the Committee for Finance and Personnel will have an interest in that aspect. Does normal protocol require that with cross-cutting issues — in this case it is the devolution of policing and justice, which is for us, and the finance aspect, which is for the Committee for Finance and Personnel — we should be in contact with the other Committee.

1093. The Committee Clerk: I must consider that point, and take advice. This Committee has a mandate in relation to policing and justice and financial matters. I am not clear what role is envisaged between the First Minister and deputy First Minister and the Minister of Finance and Personnel and his Department. Members may be a little ahead of themselves in anticipating what role, if any, there may be for the Committee for Finance and Personnel. However, if the Committee will leave the matter with me, I will make some inquiries.

1094. Mr McFarland: The Secretary of State is stating in his letter that he is already tying in with the Department of Finance and Personnel?

1095. Mr Hamilton: I think that the Committee Clerk’s point is correct. Although this Committee has clearly been given notice about this aspect, I do not think that the Committee for Finance and Personnel has been given notice. On a personal note, it is easy for some people to suggest that the Committee for Finance and Personnel gets involved in this matter, but I have to sit through this nonsense once a week — [Laughter.] I have no desire to do so twice a week.

1096. Mr McFarland: I quote from the second page of the Secretary of State’s letter:

“I have agreed a process with them in which my officials and the NIO’s funded organisations will work with the Department of Finance and Personnel to identify future funding issues.”

That is taking place at the moment, and members of the Committee for Finance and Personnel will, presumably, be curious about what their Department is doing in that regard.

1097. Mr Hamilton: Or they may not be.

1098. Mr Paisley Jnr: There is a difference between what is stated in that letter and the roles of the Committee for Finance and Personnel and this Committee. They are distinct roles. I assume that the role of the Assembly and Executive Review Committee is to prepare the way for the devolution of policing and justice and to ensure that everything is in place. Once the matter goes to the Committee for Finance and Personnel, that Committee will be in a position to hold the Minister to account. The roles are slightly different and very distinct.

1099. The Chairperson: Are there any other issues on that?

1100. Mr Attwood: I return to what I said earlier. I propose that the Chairperson writes to the Secretary of State on behalf of the Committee, requesting that he shares draft memoranda of understanding and protocols with us at the same time as he sends them to the First Minister and deputy First Minister. That will enable the Committee to safeguard the Assembly’s interests. The First Minister and the deputy First Minister will be safeguarding a particular interest; this Committee has a wider responsibility to safeguard the Assembly’s interests.

1101. The Chairperson: Do members agree?

Members indicated assent.

1102. The Chairperson: I refer members to the papers relating to yesterday’s Question Time. Are there any issues members wish to raise?

Members indicated dissent.

1103. The Chairperson: I refer members to the third revision of the Committee briefing paper.

1104. Mr Attwood: I have another issue to raise.

1105. The Chairperson: What issue are you raising?

1106. Mr Attwood: It is an issue that you raised about Question Time yesterday and what was said during the Queen’s Speech last Wednesday. I wish to remind people of what the Prime Minister said during the debate on the Queen’s Speech last Wednesday.

1107. The Chairperson: Everybody can read: we all have the papers in front of us. You do not need to read them out to us. Do not insult the intelligence of people at the table, Mr Attwood.

1108. Mr McFarland: It is worth stating it for the Hansard report. Those who read the Hansard report will not have sight of the documents that we have in front of us, so it is quite in order to read things into the record so that people will understand what is being said. Perhaps you, Mr Chairman, or Mr Attwood, would read it. Someone should read it for the record.

1109. Mr Attwood: I know that everyone can read —

1110. The Chairperson: It was also recorded in the Hansard report of the Assembly proceedings yesterday.

1111. Mr Attwood: Yes; and Mr Kennedy was able to ask a question in that regard. However, no matter what the Prime Minister said; the question is; what did he mean?

1112. The Chairperson: That is a question for the Prime Minister.

1113. Mr A Maskey: Is there is a spokesman for the Prime Minister here now?

1114. Mr Paisley Jnr: I think the member should stay away from those John Le Carré novels.

1115. Mr Attwood: People in the Public Gallery may not have read what the Prime Minister said. He stated that the final part of a devolution settlement is possible and is: “now something that can be delivered, with policing and justice devolved in the next few months.”

1116. The First Minister and deputy First Minister appeared before the Committee and outlined a 36-stage process leading to the devolution of justice and policing. In that document there is no detail of any particular time frame, beyond the fact that part of those processes would run concurrently.

1117. In those circumstances, given that we have the responsibility to take forward a work programme, and that we have agreed to do so, do we have a limited time frame in which to complete that work? Is it people’s understanding that we have to complete our work within the next few months in order to have devolution in the next few months, or is our time period shorter or longer than that? Whatever the Prime Minister said, someone somewhere believes that things are going to happen in the next few months. We need to work out whether or not that has a bearing on how we process our work in order to comply with the mandate given to us by the Assembly.

1118. Mr Paisley Jnr: I am going to be cautious with what I say: I hope that the member is not on a wrecking mission. The First Minister and deputy First Minister appeared before the Committee on 18 November 2008, when they were open and transparent in making it clear that they see no undue delay in the delivery of the devolution of policing and justice.

1119. To use what the Prime Minister has said to try and elicit a date is, quite frankly, an attempt to wreck what has been, it is hoped, a more open and transparent process based on fundamental political realities. The member knows that this country has form when it comes to dates; all sides bust them. To use the Prime Minister’s language to try to tie down a date is really a wrecking mission.

1120. We know that there will be no delay in trying to get this done; we are on a mission to try and get this done, and we have identified some of the issues that we are supposed to be discussing; but if the Member wants to start playing on this, either by taking a poke at his political cousins here, or by trying to upset the apple cart — fair enough. However, he is on a wrecking mission if that is the way he wants to go, and we will sit back and watch. However, if he is genuine and serious about taking this issue forward, then I think that he should stop trying to over-analyse what the Prime Minister has said. The Prime Minister is a very important and influential person, but he is not involved in the nitty-gritty of these negotiations. The apron strings have been cut, and it is up to us to do it. We need to focus on that and get on with it.

1121. Mr McFarland: I am greatly heartened to hear the DUP scolding everybody about wrecking missions, given the last 10 years. How long is a political lifetime according to Ian Paisley Jnr? Is the answer three or four months, as my colleague Mr Kennedy said yesterday?

1122. The Chairperson: That is enough point-scoring.

1123. Mr Paisley Jnr: For the record, I notice that the Tories have declined in the polls since Saturday.

1124. The Chairperson: Let us not get into that discussion either. We can pick up this matter again in the forward work programme.

1125. If there are no further issues, we will move on to the third revision of the Committee’s briefing paper. Again, we will take each issue in order and proceed in the way to which we have become accustomed, which I am sure that I will not have to explain to anybody. We will start with issue C, which I will read into the record.

“What will 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?”

Are members content with the wording of the issue, which has been revised since last week’s discussion?

Members indicated assent.

1126. Mr Hamilton: The DUP restates its position that it has no issue with a justice Minister being in the Executive, but it has also said that there are issues of great sensitivity in relation to some of the powers that such a Minister will exercise. We think that there is a requirement for further discussion in respect of his relationship with, and position in, the Executive. There needs to be some further discussion in respect of that relationship.

1127. Mr A Maskey: Sinn Féin sees no contention in this particular issue, but for our own internal working, and due to our workload, we have not had the chance to sign off on this matter. We are content to leave the issue until our next discussion.

1128. Mr McFarland: In the Ulster Unionist party’s view, if the confidence exists for the devolution of policing and justice, the appointment should be run under the d’Hondt process. The justice Minister should be an ordinary Minister with the normal duties, responsibilities and access that a normal Minister would have.

1129. Mr Attwood: The SDLP also believes that the Minister should be elected under the d’Hondt process with full authority and membership of the Executive, as the other Ministers, to whom that person would be equal.

1130. The Chairperson: There is not consensus on the issue. When do members want to revisit it?

1131. Mr Hamilton: There is an indication of a meeting, possibly early next week. We could look at it at that stage.

1132. The Chairperson: I will be indicating that there should be a meeting to look at the first draft of the Committee report next Monday morning.

1133. The Assembly will meet next Monday, so I was going to suggest that the Committee meet for one hour at about 10.00 am, and that some of that meeting be in closed session.

1134. Mr Paisley Jnr: I have to give evidence to an industrial tribunal next Monday.

1135. The Chairperson: I want to have a discussion on when a meeting can be held to arrange a time that suits everyone. Are there any other views?

1136. Mr A Maskey: Sinn Féin members are happy for a meeting to take place as soon as possible, even tomorrow afternoon. Since only a few issues remain to be decided, and, in keeping with the intention of winding up this part of the Committee’s work programme by next week, we are more than happy to facilitate a meeting.

1137. Mr McFarland: Usually, the DUP and Sinn Féin have a chat overnight and then force through a vote on the day of the meeting. That would be in keeping with how things have been done.

1138. Mr Paisley Jnr: Is that a proposal? Do you want me to second it?

1139. Mr McFarland: That is what has happened every other time.

1140. Mr Hamilton: It has not happened every time.

1141. The Chairperson: To be serious, I am trying to arrange and facilitate a meeting.

1142. Mr McFarland: Chairman, in the end —

1143. The Chairperson: In the end, there will be a discussion —

1144. Mr McFarland: Whenever the meeting takes place, you will vote it through.

1145. The Chairperson: If we reach consensus, I am sure that a decision will be made.

1146. Is a meeting of the Committee for the Office of the First Minister and the deputy First Minister scheduled for tomorrow?

1147. Mr Kennedy: No.

1148. The Chairperson: Are members content to meet tomorrow afternoon?

1149. Mr Hamilton: That is not practical.

1150. Mr McFarland: I have a full diary for tomorrow.

1151. The Chairperson: The Committee Clerk tells me that it would be a struggle to have today’s minutes ready by tomorrow.

1152. Mr McFarland: My colleague Mr Kennedy suggests that our meeting take place on Friday morning after the meeting of the Committee for the Office of the First Minister and the deputy First Minister.

1153. Mr Kennedy: I suggest 11.00 am or 11.30 am, even though it is not ideal as Friday is constituency day.

1154. The Chairperson: I had hoped that we could meet next Monday at 10.00 am. As a compromise, I suggest that we meet at 9.00 am, as members will be in the Assembly anyway for the plenary sitting. I hope that only one issue will be left by the end of the day. As someone said earlier, only a few issues remain. There will be time to include them in the final report, which we will consider on 6 January 2009. The basis of the report will be done by next week, and we can add one or two issues.

1155. Mr Kennedy: Party meetings take place on Monday morning, so it might be better to reconvene at 2.00 pm. I understand that Assembly business is due to take place between 12.00 pm and 4.00 pm. We should be able to extricate ourselves from that at 2.00 pm.

1156. The Chairperson: If members agree, I am content. We must have a meeting, because we need to consider the draft report. Some of the meeting will be in closed session.

1157. Mr A Maskey: We suggest that the meeting convene at 10.00 am next Monday to conclude on the outstanding issues and that we meet later in the afternoon to approve the final draft.

1158. The Chairperson: Are members content?

Members indicated assent.

1159. The Chairperson: We will meet at 10.00 am to conclude on the outstanding issues and at 2.00 pm in closed session to agree the final draft.

1160. We now move on to issue E: what would be the arrangements for appointing, removing and/or replacing a Minister. The Committee has already agreed that the appointment of a Minister should be carried out by cross-community vote. Therefore, we are left with two issues: the removal and replacement of a Minister.

1161. Mr Hamilton: I will deal with those issues in reverse order. On the issue of replacing a Minister, the DUP is happy for a cross-community vote to be used, which was also referred to in the letter from the First Minister and the deputy First Minister of 18 November 2008. The DUP also believes that a cross-community vote should be required to remove a Minister from office.

1162. Mr A Maskey: Sinn Féin is happy enough. There are already means in place; for example, if a Member ceases to be a Member of the Assembly, he or she may resign; we should draw on those provisions.

1163. Furthermore, it may not be necessary to include the withdrawal of support from a nominating officer, as there may not be a nominating officer; and removing a Minister could be done with cross-community support.

1164. Mr McFarland: The view of the UUP is as before: d’Hondt should be used and the nominating officers should nominate. That is the system that is in use in the Assembly and the system that should continue to be used for such a contingency.

1165. Mr Attwood: The position of the SDLP is that the power of nomination, removal or replacement falls to the nominating officer in the party under the d’Hondt provisions.

1166. The Chairperson: There are different views on the issue. Do members have a proposal on how the Committee can deal with it?

1167. Mr McFarland: Go on, Chairperson; go for the vote. [Laughter.]

1168. The Chairperson: Do we have a proposal?

1169. Mr Hamilton: I propose that the removal and replacement of Ministers be done by cross-community vote.

1170. The Chairperson: Thank you. Are there any other proposals?

1171. Mr A Maskey: Chairperson, I have already referred to the fact that a Member may resign if they cease to be a Member of the Assembly. Does the Committee need to include that provision or do we just accept that —

1172. Mr Hamilton: It is a statement of fact; I am happy for it to be included.

1173. The Chairperson: OK. Those in favour please show.

Question proposed:

That the removal or replacement of a Minister be done by cross-community vote. — [Mr Hamilton.]

Question put.

The Committee Divided: Ayes 6; Noes 4.

AYES

Mr Hamilton, Mr McCartney, Mr McCausland, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt

NOES

Mr Attwood, Mrs Hanna, Mr Kennedy, Mr McFarland.

Question accordingly agreed to.

1174. The Chairperson: That is issue E dealt with. We now move to issue G: what would be the structure of the policing and justice Department, and what functions should be placed there and/or in OFMDFM? Recommendation 23 of the original report has already been agreed; this issue relates to recommendation 24.

1175. Mr Hamilton: The DUP’s position is that, of the organisations listed in recommendation 24 of the report, the Public Prosecution Service should be a non-ministerial Department. The Northern Ireland Policing Board, the Office of the Police Ombudsman, Criminal Justice Inspection Northern Ireland, the Probation Board, the Northern Ireland Law Commission, the Northern Ireland Court Service, and the Northern Ireland Legal Services Commission should be non-departmental public bodies or agencies in the Department of justice. The Judicial Appointments Commission should be in OFMDFM.

1176. Mr A Maskey: Since Sinn Féin is at an advanced stage in our deliberations on this issue, we would prefer to come back to it at the next Committee meeting.

1177. The Chairperson: Next Monday morning?

1178. Mr A Maskey: We should have a definitive position by then.

1179. The Chairperson: OK.

1180. Mr McFarland: One of the questions was who would look after the Public Prosecution Service (PPS)? Can Simon tell us where his party stands on that matter? There was some confusion about which organisation would sponsor the PPS, and there was talk of its being a Northern Ireland Department. I would like some clarity on that issue.

1181. Mr Hamilton: I am aware of the debate on that subject and of the various issues that arose. We understand that conflict might arise if the Department of justice were to be the sponsor of — or the body that argues on behalf of — such a non-ministerial Department. Perhaps the Department of Finance and Personnel could sponsor the PPS if it were a matter of arguing for its budget. At this stage, we have no hard-and-fast position on the matter, other than that the PPS should be a non-ministerial Department.

1182. Mr McFarland: There was an issue about the perception of the PPS. We probably would not be averse to the Department of Finance and Personnel having a budget line for the PPS; that would at least avoid any accusation of interference from the Department of justice. It must be clear that the PPS is its own organisation.

1183. Mr Attwood: The SDLP believes that the PPS should be part of the Department of justice. The Committee must decide on the issue, which is flagged up in the letter from the Secretary of State, dated 3 December 2008:

“areas requiring attention seem to me to include: any arrangements considered necessary for the PPS… to be accountable to the Assembly for matters of finance and administration”.

The Committee must agree this matter. The SDLP believes that the natural home for the PPS is with the Department of justice. The possibility of interference in the operation of the PPS was mentioned. However, that same argument could be made about all the other organisations that members have agreed should be sponsored by the Department of justice: the Policing Board, the Office of the Police Ombudsman, the Criminal Justice Inspection, the Probation Board, and so on. The SDLP believes that the natural home for the PPS, as with all those other organisations, is with the Department of justice.

1184. As regards the PPS, its sponsor Department will be responsible for finance and administration only — although those are significant areas of accountability. Given that, it is not right to argue that the PPS should be sponsored by a Department other than the Department of justice.

1185. The SDLP believes that all the other bodies in recommendation 24 should be sponsored by the Department of justice too. Sponsorship of the Judicial Appointments Commission (JAC) is the only issue over which we differ from other people. Simon might want to think about this matter, but it seems that there is some tension between a decision by the First Minister and the deputy First Minister to forgo their power of appointing judges while OFMDFM retains responsibility for the JAC. If it is necessary to take certain people’s fingerprints off the appointment of judges, why should their fingerprints be on the JAC? There will be difficulty for any body that takes responsibility for the JAC, and I suspect that Simon’s approach might create a certain tension.

1186. In any case, the SDLP believes that the JAC should be sponsored by the Department of justice because that is its natural home; the Department would have a better understanding of how the JAC might operate. The JAC is part of the family of organisations whose natural home is the Department of justice, which is why the SDLP believes that the JAC would be better placed in that Department than in any other.

1187. Mr McFarland: Could the Clerk dig out the evidence that the Committee received on that issue when it was preparing its original report? We received various submissions, and we could revisit the issue next Monday. It was a neuralgic issue in the Court Service and elsewhere about which people had concerns. Would it be worth revisiting the various bits and pieces of evidence for next week’s meeting?

1188. The Chairperson: Committee members have a copy of the original report.

1189. Mr McFarland: Sinn Féin members feel that they cannot make a decision today. It would be useful to examine and discuss the evidence that the Committee received on the original report next week to see whether it contains any useful advice.

1190. The Chairperson: We can get you a copy of that evidence. Do Committee members want to discuss that again on Monday morning?

Members indicated assent.

1191. The Chairperson: Apparently there are difficulties with the microphones.

1192. We move to issue H, which asks:

“What arrangements need to be in place to ensure that Members of the Statutory Committee for any new department should not sit, simultaneously, on the Policing Board or any District Policing Partnership at the point of devolution?”

1193. There is a document from the legal advisor, of which Committee members have been given copies.

1194. Are members content with the contents of the document?

1195. The Committee Clerk: I got legal advice yesterday and converted it into a briefing paper. The first thing to bear in mind is that there is no requirement to amend primary legislation. The paper discusses the alternatives, the first of which is the political sanction described in paragraph 3.

1196. Mr Paisley Jnr: Please define “political sanction”.

1197. The Committee Clerk: It is an accommodation or agreement among the political parties not to have their members sitting simultaneously on the Policing Board and the Statutory Committee. It is an agreement —

1198. Mr Paisley Jnr: Is it a convention?

1199. The Committee Clerk: Yes, although not one especially enforceable through the powers of the Assembly.

1200. The thrust of the advice is that, as the Committee anticipated, Standing Orders are the most appropriate and effective way of establishing an enforceable arrangement; that was what the Committee referred to in its earlier consideration. The paper concludes that section 43 of the Northern Ireland Act 1998, which addresses Members’ interests, is the most appropriate provision in primary legislation that the Committee should look to in order to develop Standing Orders that would give effect to that recommendation.

1201. As the Committee knows, in all circumstances Standing Orders are a matter for the Committee on Procedures. Therefore, if the Committee is satisfied that Standing Orders give effect to the Committee’s recommendation, I suggest that we simply convey the thrust of the recommendation to the Committee on Procedures and share with it the legal advice in the Committee’s briefing paper. That would allow the Committee on Procedures to develop Standing Orders to give effect to that recommendation.

1202. Mr Paisley Jnr: I suggest that we slow things down slightly. It would be best if parties agreed matters by convention. I can foresee circumstances where a strict Standing Order could pose problems. For instance, if a member of the Policing Board resigned because his party wanted him to come on to a Committee, there may be a delay of two or three weeks for that resignation to take effect and for someone else to be appointed. There would be critical votes on the board or the Committee, and having a strict enforceable Standing Order does not allow the necessary flexibility for such a circumstance.

1203. We are trying to run before we can walk. It would be better if we had a convention on it, as parties would not have a dual appointment. We can get there by taking it slowly and seeing how it functions rather than by having a strict Standing Order. Most parties do not want a dual position. Nevertheless, a firm Standing Order on the matter could pose problems, for example, if there were changes in the membership of Committees or if there were changes from the board to the Committee and vice versa.

1204. The Chairperson: As the DUP has no other comments on the matter, I will move on to Sinn Féin.

1205. Mr A Maskey: We are fairly relaxed about the matter, but we need a convention on it. Sinn Féin has no objection to amending Standing Orders if necessary. However, even a Standing Order may not be strictly enforceable legally until it is tested, so I do not foresee the situation that Ian was talking about.

1206. We do not wish to be precious about it. Our party is happy to go along with the legal advice on recommendation 28 that a member of the Statutory Committee cannot be simultaneously a member of the policing bodies. A convention on the matter is fine, but we are relaxed about the need for a Standing Order.

1207. Mr McFarland: The Assembly had already accepted recommendation 28. Therefore one could argue that if we wanted to beef it up, we could have a memorandum of understanding between the political parties that it would continue to be the convention if we did not want to change Standing Orders in the Assembly.

1208. Mrs Hanna: Using Standing Orders would create certainty and remove doubt on the issue. I would have thought there would be no great problem with someone leaving a Committee, even if that takes two weeks.

1209. The Committee Clerk: Given the wording of issue H, the circumstances that Ian Paisley Junior mentioned would not arise. Issue H asks:

Since the operative phrase is “at the point of devolution”, dual membership of the Statutory Committee and the policing bodies would not be a recurring issue.

1210. Advice is available for the Committee to decide to make a further recommendation, if it so chooses, on how the original recommendation should be implemented. That advice was offered on the basis that the Committee believed that Standing Orders were the most effective way — to use Carmel Hanna’s expression — to give the most certainty. There is a choice to be made. Perhaps the Committee wants to reflect further, and pick this matter up again on Monday morning.

1211. Mr Paisley Jnr: Perhaps we should come back to it. The interpretation of “at the point of devolution” opens up the fact that, six months later, a person could be on both the Committee and the board.

1212. Mr Hamilton: Or, six minutes later.

1213. Mr Paisley Jnr: I think that most of the parties want it to be the convention that no person is in that dual position. By inference, there would be a conflict in being a member of the Policing Board and the new Statutory Committee. No one has identified what that conflict is, but, nonetheless, people say that there may be a conflict. In order to avoid that situation, a convention must be accepted between the parties.

1214. I take the point that Carmel has made. If there were a critical vote either in Committee or at a Policing Board meeting, questions might arise, rightly or wrongly, about whether someone in that dual position would be a full and proper member of either organisation. As we know, some people could get precious about that. It is in that type of situation that flexibility would be required, as opposed to having a very strict, hard and fast rule.

1215. If we are talking about “at the point of devolution”, the member is absolutely right. There could be ten members of the Committee who are not on the Policing Board. However, later on, there could be a change of membership between the Committee and the Policing Board.

1216. I know from personal experience, and other members will know, that the process of appointments can take two or three weeks. I think we should acknowledge and recognise that. I hope that such a situation does not arise, but if it does, let it be by convention.

1217. Mr Hamilton: I share Ian’s concern, but having reread issue H in the context of recommendation 28, is this not a problem with the construction of the sentence? Perhaps it should read as follows: what arrangements need to be in place at the point of devolution to ensure that members of the Statutory Committee for any new Department should not sit, simultaneously, on the Policing Board or any district policing partnership?

1218. The Committee Clerk: Issue H was previously reworded to include the phrase “at the point of devolution”, and I respected the discussion on that. As members are discussing it now, however, it seems to me that, perhaps, for absolute clarity, issue H should be left as it is, but the words “at the point of devolution” should be replaced with the words “from the point of devolution”.

1219. Mr Hamilton: Recommendation 28 is clear that a person should not be sitting on the Committee and the Policing Board in perpetuity.

1220. The Committee Clerk: In other words, if someone is a member of the Policing Board at and beyond the point of devolution, that person cannot be a member of the Statutory Committee. To be honest, governing the membership of the new Statutory Committee is the only means by which the Assembly can rule on this; it cannot rule on the membership of the Policing Board.

1221. Mr McFarland: It strikes me that there are two options: first, that there is agreement between the parties. The hard bit is making that agreement permanent; a change in party leadership could result in a change in the agreement.

1222. Secondly, perhaps the better and healthier option is for the Assembly to have a Standing Order covering this matter. Ian made a valid point that that would provide a degree of certainty, and that everyone would understand what the game was from the point of devolution.

1223. The Chairperson: Is the consensus that we have another discussion about this?

1224. Mrs Hanna: Will it be the same discussion that we are having today?

1225. Mr Paisley Jnr: Would it help if I tried to firm up a proposal that we have this arrangement by convention among the parties, moving to a Standing Order so many months after devolution?

1226. Mr Attwood: If you are going to move to the certainty of Standing Orders, why not begin with that?

1227. Mr Paisley Jnr: Is there a Standing Order that will provide for it? I have no problem with a Standing Order in which the convention would be established.

1228. Mr Attwood: That may well be a Standing Order, but would it be enforceable?

1229. The Chairperson: If we refer the issue to the Committee on Procedures, there will be a debate on the Floor of the Assembly through which any problems can be addressed. Is that correct?

1230. Mr A Maskey: It sometimes takes time to resolve such matters through the Committee on Procedures. I suggest that we agree, by way of convention, that we do not have dual membership of any of those bodies. That would be in preparation for the appropriate Standing Order to be enacted, which could take some time.

1231. Mr Kennedy: I suggest that we proceed on the basis of a convention among the parties with the intention of creating a Standing Order by the next mandate. That will ensure that it is enshrined in Standing Orders by that stage and will give us a date to work towards as regards Standing Order.

1232. Mrs Hanna: For clarification, what are we enshrining in Standing Orders? Is it, as Ian suggested, the convention? If so, why enshrine a convention in Standing Orders? As Alan said, a convention may or may not work.

1233. Mr Kennedy: We cannot bind political parties by convention ad infinitum. We need to start with a convention and work towards a Standing Order.

1234. Mr Paisley Jnr: We should start with a convention and see how it progresses. This Committee makes that recommendation in its report.

1235. The Chairperson: There has been a fair amount of discussion on the issue. The proposal is to establish the arrangement by convention and, subsequently, move to a Standing Order after devolution. Is that correct?

1236. Mr Paisley Jnr: That was changed slightly: we agreed to move to a Standing Order by the next mandate.

1237. The Chairperson: Will we include the reference to the next mandate?

1238. Mr Hamilton: Should we not work towards that proposal as quickly as possible?

1239. Mr Paisley Jnr: I do not think that the process will take that long.

1240. The Chairperson: It will allow the Committee on Procedures to deal with the Standing Order issue.

1241. Mr Attwood: Can we narrow the differences and say that it is the parties’ view that the matter should be dealt with by convention and, ultimately, by Standing Orders, and that if the Committee’s report is accepted by the Assembly in January 2009, the matter is referred to the Committee on Procedures?

1242. The Chairperson: Are Members content?

Members indicated assent.

1243. The Chairperson: That completes the issues in category one. Are members content to return to the outstanding issues on Monday 15 December at 10.00 am? Thereafter, we will discuss the initial draft at 2.00 pm in closed session. Do Members agree?

Members indicated assent.

1244. The Chairperson: On 6 January 2009, the Committee will discuss officially the final report in closed session. Are Members content?

Members indicated assent.

1245. The Chairperson: We now move to the appointment of a specialist adviser. A paper is being tabled now, and I ask the Committee Clerk to take us through it.

1246. The Committee Clerk: The introduction deals with the generality of the financial matters being considered as part of the Committee’s consideration of the category-two list of issues. Over a period of weeks, culminating last week, the Committee decided that a specialist adviser should be appointed. The paper explains the role that the Committee would have in making that appointment.

1247. Essentially, the first step is to approve the terms of reference for the specialist adviser, which will allow those terms of reference and the various procurement documents to be issued to the identified individuals who — on the advice of Research and Library Services — will be capable of doing the work on behalf of the Committee.

1248. The Committee also needs to approve the evaluation criteria and weighting in order to determine who, from the competing bids, might be appointed as the specialist adviser. Furthermore, the Committee would be involved in the evaluation of those submitted bids. The final part of the process will involve the Committee sanctioning, or approving, the appointment of the chosen specialist adviser.

1249. The experience of the Assembly has been that that can be done either by the whole Committee being involved in all of the process or by the Committee agreeing to establish a subcommittee to approve the evaluation criteria and weighting, to evaluate the bids and — having concluded that evaluation process — to produce a recommendation to the Committee to make an appointment.

1250. The issues before the Committee are to approve the terms of reference that have been tucked into the back of the briefing paper. I am happy to take members through those terms of reference. The Committee must then decide how to move forward on the second and third aspects of the process.

1251. Mr Paisley Jnr: Will that take us until next December?

1252. The Committee Clerk: It can all be done relatively quickly.

1253. The Chairperson: Do Members want to be taken through the terms of reference?

1254. Mr A Maskey: We should agree to the establishment of a subcommittee.

1255. The Chairperson: Do members agree that a subcommittee will be established, which will consist of the Chairperson, the Deputy Chairperson, a member of the Ulster Unionist Party and a member of the SDLP?

1256. Mr Attwood: What will the subcommittee do?

1257. The Chairperson: We have just discussed that matter, Mr Attwood. I do not intend to ask the Committee Clerk to go through everything again. If you were not listening, that is your problem.

1258. Mr Attwood: What is the proposal?

1259. The Chairperson: The proposal is on the recommendation.

1260. Mr McFarland: I would like to get a feel for the timescale for all of this? According to the letter from the Secretary of State, the First Minister and the deputy First Minister and the Minister of Finance and Personnel are discussing all of the financial matters. Presumably we will get sight of some of their work eventually. My understanding was that our adviser would be able to study that work and then recommend people to whom we should speak in relation to financial issues.

1261. The Committee Clerk: If the Committee agrees to form a subcommittee, it could meet tomorrow, because I have been working on the evaluation criteria and the weightings. That would allow the documentation to be sent to the individuals whom Research and Library Services believes are capable of doing the job. They would be given a few days, perhaps a week or thereabouts, to formulate bids. Those bids would be submitted before Christmas. I will collate the bids and distribute them to the subcommittee. I suggest that the subcommittee meets on Monday 5 January 2009 to conduct the evaluation, if that is necessary — it depends on how many bids are received and their quality.

1262. That would allow the Committee, when it meets on 6 January 2009, to consider a recommendation from the subcommittee. That would allow for appointment of a specialist adviser.

1263. By that time, the Committee may have received a letter from the First Minister and deputy First Minister providing clarity as to the roles of the various players. The Committee will also be looking in detail at how it should proceed with the category-two issues, and whether it wishes to continue to write to all the organisations involved in the delivery of policing and justice services at the moment to ask them to respond to the information that the Secretary of State has supplied in his letter about Budget allocations for this year.

1264. One of the other things that the Committee wanted to tease out with them was whether they are facing any significant pressures, either now or in future years. That would all be for further discussion, agreement and action at the first meeting in January.

1265. The Chairperson: Some members indicated that they wanted to speak.

1266. Mr Attwood: I have been listening now, Mr Chairperson.

1267. The Chairperson: I did not want to interrupt you while you were writing your press release. [Laughter.]

1268. Mr Attwood: We did not oppose the appointment of a special adviser because the Committee should have some standing on the issue. However, at the time, I made it clear that, ultimately, our role was that of cheerleading, rather than a material one.

1269. I was dealing with the realities. I did not think that the NIO would deal with this Committee, since this business is being dealt with elsewhere in the Building. Look at Shaun Woodward’s letter: he is direct in this matter. He writes:

“I would ask the Committee to avoid creating a parallel process on finance, which may confuse or delay resolution of the issues.”

In any case, the Secretary of State has an elaborate process ongoing with the First Minister and deputy First Minister that involves Whitehall interests, which means something or other.

1270. The Chairperson: We are back to the code again.

1271. Mr Attwood: It is code for the security services, among other things. The point is that we are not going to get into that conversation.

1272. I have no difficulty with the appointment of a specialist adviser, but the Committee must recognise that the NIO has said that it will not be very helpful to him or her, and that there is a process, elsewhere in the Building, that it will be helpful to. I am not opposed to the appointment: however, the adviser may report to the Committee that he or she has not been able to get co-operation from the NIO or Government Departments because they are dealing with the NIO or the First Minister and the Deputy First Minister. Why should they deal with our specialist adviser?

1273. The Chairperson: I hear what you say about the letter and the Secretary of State, but the Secretary of State cannot direct the Committee. The Committee has a mandate to deal with the issues, and it was given that mandate by the Assembly. I remind the member of the discussions that took place over the last two or three weeks in relation to the appointment of a special adviser, and everyone around the table was keen that it should happen.

1274. I assume that the rest of the parties are happy to proceed on the basis of a subcommittee, which will include me; the Deputy Chairperson; Mr McFarland and —

1275. Several Members: Mr Attwood.

Members indicated assent.

1276. The Chairperson: Do we agree that the subcommittee will evaluate the bids and bring a recommendation to the Committee on 6 January 2008, and that the full Committee will endorse the decision of the subcommittee?

Members indicated assent.

1277. The Chairperson: We move to the forward work programme, which I assume members have already read. Are there any issues regarding the programme? Do members agree to the forward work programme?

Members indicated assent.

1278. The Chairperson: The next meeting will take place at 10.00 am on Monday 15 December and there will be a private session at 2.00 pm. Papers will go out to members as usual on Thursday.

15 December 2008

1279. The Chairperson: We move on to the devolution of policing and justice. I ask members to declare any interests. I declare that I am a member of the Northern Ireland Policing Board.

1280. Mr Paisley Jnr: I am also a member of the Policing Board.

1281. Mr McCausland: I am a member of Belfast District Policing Partnership.

1282. Mr A Maskey: I am a member of the Policing Board.

1283. The Chairperson: The first issue that we must deal with is at paragraph 6.1:

“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.?”

1284. I will follow the usual format of asking each party for its view before opening up the discussion.

1285. Mr Hamilton: There has been a significant amount of discussion on that matter by the Committee. The DUP’s position has been stated before. I understand that there are ongoing discussions on ironing out the outstanding matters, and, therefore, I propose that the Committee does not take any decision on the issue at this stage, but does so, perhaps, at a later date.

1286. Mr A Maskey: Sinn Féin is happy enough to support that. There are some ongoing discussions, and I am happy enough to let those take their course over the next short period.

1287. Mr McFarland: The Ulster Unionist Party believes that the Minister should have the normal relationship with the Executive under the normal rules.

1288. Mrs Hanna: The SDLP’s view is that the Minister should have the normal relationship with the Executive as under d’Hondt.

1289. The Chairperson: There is obviously no agreement on that. Is the Committee content to allow the discussions to continue?

Members indicated assent.

1290. The Chairperson: We move on to issue G, which mostly relates to recommendation 24 of the previous report:

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

1291. Mr Hamilton: I simply wish to restate the DUP’s position that the Public Prosecution Service (PPS) should be as per recommendation 24 of the Committee’s original report; the PPS should be a non-ministerial Department. The remaining organisations, with the exception of the Judicial Appointments Commission (JAC), should, as stated in recommendation 24, be under the new Department of justice. The JAC should be under the Office of the First Minister and deputy First Minister (OFMDFM).

1292. Mr McFarland: I would like clarification on what Simon said. Does the DUP consider that the PPS should come under the justice Department and the JAC should —

1293. Mr Hamilton: No, I said that the PPS should be a non-ministerial Department. At this stage, I do not wish to be prescriptive about what should be the sponsoring Department, for want of a better phrase, of the PPS, but it should be a non-ministerial Department.

1294. Mr A Maskey: Sinn Féin is happy enough for there to be further consideration of that matter. The PPS is clearly a non-ministerial Department, so we are happy enough to let the matter sit for now.

1295. The Chairperson: Are you happy enough with the other Departments?

1296. Mr A Maskey: Yes.

1297. Mr McFarland: The UUP is happy enough with either option that the two big parties may take. The matter is also subject to further discussion as part of the other issue. The UUP will, therefore, wait until it hears the outcome of that discussion.

1298. Mrs Hanna: If the matter is subject to further discussion, I would prefer to wait until Alex Attwood is present to be absolutely sure.

1299. The Chairperson: Alex is not here, and I am asking for the SDLP’s position.

1300. Mrs Hanna: That is fine. Sorry, I understood from the previous member who spoke that the matter would be discussed again anyway and has not yet been agreed.

1301. The Chairperson: It will not be agreed at this meeting.

1302. Mr Hamilton: The PPS is only one element of recommendation 24 anyway.

1303. The Chairperson: Mrs Hanna, are you happy enough to —

1304. Mrs Hanna: The SDLP is deferring a decision, and it is my understanding that that is permitted.

1305. The Chairperson: No, we are not deferring it.

1306. Mrs Hanna: That is fine. If the matter is not being deferred —

1307. The Chairperson: My understanding of what has been stated so far is that discussion is ongoing about where the PPS will lie. It has been agreed that it is a non-ministerial Department. The Committee has agreed that all other organisations, with the exception of the JAC, should come under the justice Department.

1308. Mrs Hanna: My understanding is that the SDLP believes that the JAC should be contained within the justice Ministry. We have agreed to the placement of the other organisations; the only outstanding issue being the Public Prosecution Service.

1309. The Chairperson: The DUP and Sinn Féin have agreed that the JAC should remain part of OFMDFM. Mr McFarland, will you reiterate your party’s position on that issue?

1310. Mr McFarland: We are happy for the JAC to remain part of OFMDFM.

1311. The Chairperson: Mrs Hanna, what is your party’s position?

1312. Mrs Hanna: We want the JAC to be part of the Department of justice.

1313. The Chairperson: The JAC is the only issue on which there is not full agreement. There is majority agreement that it should be part of OFMDFM, and the SDLP wants it to be part of the Department of justice. Do Committee members agree that there is majority consensus?

1314. Members indicated assent.

1315. The Chairperson: Issue H was resolved at the last meeting. However, there is revised wording, which I will read into the record:

“What arrangements need to be in place at the point of devolution, and beyond, to ensure that Members of the Statutory Committee for any new department should not sit, simultaneously, on the Policing Board or any District Policing Partnership?”

1316. It was agreed that that should be done by convention and that the matter will be referred to the Committee on Procedures. Do Committee member agree on that and the revised wording?

1317. Members indicated assent.

1318. Mr Kennedy: Would it be possible to put a timescale on that so that it is resolved as quickly as possible?

1319. Mr Hamilton: That is fair enough.

1320. The Chairperson: There are no objections to that.

1321. Item 6·2 on the agenda is the letter from the First Minister and the deputy First Minister.

1322. Mr McCartney: Will you inform Alex Attwood about the meeting on 5 January 2009?

1323. The Chairperson: Alex, a meeting of the subcommittee was agreed for 5 January 2009 at 12.00 noon, so note that in your diary.

1324. Committee members should take a few minutes to read the letter and let me know whether they have any points to raise.

1325. The Chairperson: Ian Paisley Jnr has indicated that he wishes to speak.

1326. Mr Paisley Jnr: I welcome the fact that we have the letter. It has opened up some issues and closed down others very well. I welcome the comments made about the independence of the judiciary in the penultimate paragraph, and that strong statement of clarity should be noted for the record.

1327. The paragraph before that opens up some of the issues that deal with finance. It recognises that there are significant pressures on the policing and justice budgets. It alarms me that over a period, we have a fairly good handle and idea of the policing side of the house — it takes about £1 billion to run policing — and yet there are significant historical pressures on that £1 billion. However, in my view, there is very little clarity on the justice side of the house. We need to identify those pressures on funding. The letter states:

“to reconcile the identified pressures with the funding for the current Comprehensive Spending Review period (2008/11) and beyond. It is hoped that this process will be completed before the end of the financial year.”

1328. In parallel, OFMDFM is holding:

“a series of direct meetings with significant stakeholder organisations in the policing and justice field, including the Chief Constable and Bar Council, to discuss funding pressures, as seen from the perspective of those with executive responsibility.”

1329. We should try to be factored in on whatever information OFMDFM pick up in that regard. It is essential that we get a clear understanding of the costs involved. It would be an injustice if we take decisions, in good faith, on the budgetary requirements of any future policing and justice Department, only to discover some time downstream — whether short term, medium term or long term — that we were given a jaundiced view of the finances.

1330. I take the view that there will be an attempt to tell us that it will cost considerably less than it actually will. We must have a clear understanding from the various stakeholders as to how much each section of the Department will cost, and it is important to get that information from the horse’s mouth. If people are brought to the Committee to give us that information, we must point out that they must tell us the truth, the whole truth and nothing but the truth about the costs; otherwise, in two, three or four years’ time, when they are being held to account by any future Committee, those words will be held against them for scrutiny. If they have misled the Committee in the early stages about the budgetary requirements of each section of the Department, they will be held to account as the Committee rolls on and does its work.

1331. It is important for the Committee to have a clear understanding, early on, from those significant stakeholders about how much each section costs. We must ask OFMDFM to factor us into any information that it receives, and the Committee must do whatever work is necessary to get a clear understanding of the costs — particularly on the justice side of the house.

1332. Mr A Maskey: I do not disagree with that sentiment. The Committee has agreed that it will undertake whatever work is necessary in examining the finances in the future. It is wise to seek to be kept in the loop by OFMDFM because it is important. However, we should also try to ensure that we deal with it in a way that will not create a parallel process or cause any additional confusion. I reaffirm that Sinn Féin members on the Committee will be intent to do their damnedest to ensure that they do a thorough job without straying into matters that they would not need to be involved in at this stage. The Committee must balance its work programme.

1333. Mr McFarland: Ian has a point; one could argue that it is the duty of the Committee and the Assembly to monitor such matters. However, I get a real sense from the letter — and, indeed, from the previous letters from the NIO, in which the Secretary of State asked us not to create a parallel process — that the First Minister and deputy First Minister are dealing with the issue and that it is not envisaged that the Committee will play a significant part in considering it. I am slightly worried that there may be a tension between the Committee’s duties and how the First Minister and deputy First Minister see the matter going.

1334. Mr Paisley Jnr: I draw the member’s attention to the final line of the fifth paragraph of the letter of 12 December from the First Minister and deputy First Minister:

“We are aware that finance has been identified among the non-modality issues which the Committee will be considering and on which it will report next year.”

1335. Thus, there is an expectation that the Committee will consider and report on the matter. That is why I am very enthusiastic about what is said in the letter — it gives the Committee a way in.

1336. Mr Attwood: First, I apologise for being a wee bit late.

1337. I welcome the fact that we have received the letter, although it does not move us very far forward on the issues on which we asked the First Minister and deputy First Minister to comment. My comments are based on my first reading of the letter.

1338. The second paragraph of the letter deals with the public consultation process when a Minister of justice is identified and/or determining the level of public confidence in the devolution of justice powers. In OFMDFM’s process paper, which was sent to the Committee on 18 November, group 5 includes the objective to commence a:

“process of building confidence to achieve cross-community buy-in”.

1339. The buy-in is to the principle of the devolution of policing and justice. Given that that is a policy — and a very significant one — public consultation should mean a full 12-week exercise under the established procedures. I sought clarification on that point, but the letter from Peter Robinson and Martin McGuinness provides no clarity whatsoever. We must be clear about what is going to happen, when it will happen and what it will mean when the First Minister and deputy First Minister ultimately propose the devolution of policing and justice. Unfortunately, the second paragraph of the letter adds nothing to our understanding: it does not clarify what public consultation will or will not mean, nor does it clarify when the public consultation process will begin.

1340. Given that it is four weeks since Peter Robinson and Martin McGuinness issued their earlier letter, and that the Committee made a number of attempts to get a reply, we should have received a reply that outlines precisely what the Ministers envisage will happen. Perhaps they think that the public can be consulted in another way, as suggested by their vague assertion in the letter of 12 December 2008, which states:

“We welcome views from any organisation and from members of the public generally.”

1341. If that is what they mean, they should say so. However, I do not think that they can get away with that, because it is stated at group 5 of their process paper that there will be consultation with party organisations and external stakeholders. The public consultation mentioned in the letter is a different process. Therefore, in my view, there must be certainty about what is or is not meant by consultation.

1342. We also asked about the group of actions set out in the process paper. We need to know which of those matters the First Minister and deputy First Minister consider to be concurrent and which they consider to be sequential. Once again, four weeks after it outlined its proposals, OFMDFM has not provided any clarity about which matters will be concurrent and which will be consequential. OFMDFM has reiterated that there will be different processes for different elements, but it does not say what those are.

1343. The third paragraph of the letter is also a mystery to me. In the process paper produced by Peter Robinson and Martin McGuinness — these are their words, not mine — the third action point of group 3 says:

“FM/dFM to set out a process to identify a candidate for the post of Minister for Justice”.

1344. We have asked what that process might be, but we have not received an answer. We are told, curiously, that Members of the Assembly will be asked to nominate a person, but that is a nomination process. It is not the process to identify a candidate for the post of justice Minister.

1345. In their letter, Peter Robinson and Martin McGuinness say:

“You also asked specifically about the process which we envisaged for the identification of a candidate and election of a Minister of Justice.”

1346. They have outlined what they envisage is the process for the election; namely, that nominations will be invited from the Members of the Assembly, but is that the height of what is going to happen in respect of identifying a candidate? At a previous meeting, Ian Paisley Jnr told me that conversations were going on between Mark Durkan and Peter Robinson about identifying a candidate, which came as news to me. I checked with Mark Durkan, who confirmed that no such conversations took place between Peter Robinson —

1347. Mr Paisley Jnr: I do not think that the record says that I said that.

1348. Mr Attwood: Sorry?

1349. Mr Paisley Jnr: I think that the record says that I said that there had been conversations about that issue. You said that there had been conversations.

1350. Mr Attwood: Fine. There have been no conversations at all about any issue.

1351. Mr Paisley Jnr: I do not know whether that is right.

1352. Mr Attwood: Sorry?

1353. Mr Paisley Jnr: I do not know whether that is right.

1354. Mr Attwood: I am saying on the record that it is right.

1355. Mr Paisley Jnr: I am saying that you should check the record.

1356. Mr Attwood: I am saying that I did check.

1357. Mr Paisley Jnr: Check again.

1358. Mr Attwood: I am saying that there were no conversations since Peter Robinson and Martin McGuinness produced a letter four weeks ago. I am not clear: are we now being told that OFMDFM’s process to identify a candidate for the post of justice Minister is by nominations for elections that will be invited from Members of the Assembly? Is that the height of it? We must have clarification about that.

1359. I concur with the points that have been made about budgetary issues. Although I thought that the height of our role would be as cheerleaders, it does appear that OFMDFM envisages a somewhat enhanced role in respect of that matter, which sits uneasily with the position set out in Shaun Woodward’s letter, in which he said that he did not want a parallel process. It is also interesting that the height of what OFMDFM is hoping for, at this stage in the process, is that the financial issues will be completed before the end of the financial year. That raises questions about when we might envisage Peter Robinson and Martin McGuinness coming to the Assembly and proposing that the devolution of justice should arise. On the basis of the letter of 12 December, they do not see that happening before the end of the financial year, because the financial matters may not be resolved by that stage. Therefore, we will be in April, and as members are aware, our view is that we will be into a date beyond that.

1360. I welcome the confirmation that OFMDFM accepts the independence of the judiciary as outlined in the Justice (Northern Ireland) Act 2002.

1361. Mr McFarland: I cannot understand why Alex Attwood is confused at all about the second paragraph of the OFMDFM letter, which deals with public consultation. There is no process for public consultation, and confidence for the devolution for policing and justice will exist when Peter and Martin say it exists. It is very simple.

1362. Mr A Maskey: Taking the letter in the round, and in conjunction with what has previously been said and written, it is self-explanatory. I do not see any confusion in it at all. A great deal of work has been done, and there is much yet to do. I am confident that we are on the right track, and the Committee is a very important part of that.

1363. I have no further comment to make in relation to the letter other than to say that we have noted it and we are grateful for it.

1364. The Chairperson: Are members content to accept the clarification contained in the letter?

1365. Mr Attwood: I propose that we write back to the First Minister and deputy First Minister. I acknowledge what Alan said: in the real political world, the devolution of justice will happen when Martin McGuinness and Peter Robinson decide that it will be so. However, I have stated somewhat differently — [Interruption.]

1366. The Chairperson: What is your proposal?

1367. Mr Attwood: I propose that we write to the First Minister and deputy First Minister to ask three questions. First: is the public consultation that is identified in group 5 of their process paper consistent with section 75 of the Northern Ireland Act 1998?

1368. Mr McCartney: That is already answered.

1369. Mr Attwood: It is not answered.

1370. Mr McCartney: If it is, they would have stated that that was the case, I assume.

1371. The Chairperson: Mr Attwood, go ahead and state your proposals, and I will put them to members.

1372. Mr Attwood: I want confirmation on whether the public consultation will consist of a fully fledged 12-week consultation period with the public, as required under section 75 of the Northern Ireland Act 1998. Secondly, I want the First Minister and deputy First Minister to identify which actions in their process paper are sequential and concurrent. Thirdly, will there be a process of identifying a candidate for the Minister of justice, beyond the process of nominations by Members of the Assembly? Clarity is required on those three questions.

1373. The Chairperson: The Committee Clerk will read those questions back to the Committee.

1374. The Committee Clerk: Mr Attwood proposes that we write to the First Minister and deputy First Minister with the following questions: is the public consultation consistent with section 75 of the Northern Ireland Act, and will it involve the normal 12-week period for consultation? What actions contained in the process paper are sequential, and which are concurrent? Is there any process for the identification of a candidate for Minister of justice?

1375. Mr Attwood: — beyond nominations from Members of the Assembly.

1376. The Chairperson: Are members clear on that?

Members indicated assent.

1377. The Chairperson: Question put, That this Committee writes to the First Minister and deputy First Minister with three questions: Is the public consultation consistent with section 75 of the Northern Ireland Act 1998, and will it involve the normal 12-week period for consultation?

What actions contained in the process paper are sequential, and which are concurrent?
Is there any process for the identification of a candidate for Minister of justice?

The Committee divided: Ayes 3; Noes 7.

Ayes

Mr Attwood, Mrs Hanna, Mr McFarland.

Noes

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

Question accordingly negatived.

1378. The Chairperson: Before I suspend proceedings until 2.00 pm, when the draft report will be discussed in closed session, I thank the Committee Clerk and the staff for the assistance that they have given to the Committee over the past number of weeks. They have done a lot of work.

1379. Furthermore, I wish the visitors in the public gallery, some of whom have attended every week, a happy Christmas and a prosperous and peaceful new year.

6 January 2009

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

1380. The Chairperson (Mr Spratt): I invite Committee members to declare any interests. I declare that I am a member of the Northern Ireland Policing Board.

1381. Mr Paisley Jnr: I am also a member of the Northern Ireland Policing Board.

1382. Mr McCausland: I am a member of the Belfast District Policing Partnership.

1383. Mr A Maskey: I am a member of the Policing Board.

1384. The Chairperson: We shall now consider unresolved category-one issues. The first is issue C: 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?

1385. I will follow the usual format of asking each party for its view.

1386. Mr Hamilton: I request that the Committee takes further time to consider the issues and, as has been suggested in the draft report, come back to them later to seek agreement.

1387. Mr A Maskey: Sinn Féin is happy to adopt that approach.

1388. Mr McFarland: The Ulster Unionist Party believes that it should be the normal relationship that a Minister has with the Executive, because he or she would be a normal Minister.

1389. Mr Attwood: Even though the SDLP does not agree with the adjustments made to the roles, functions and powers of Ministers in the St Andrews Agreement, we want no further change in that relationship. I apologise for missing the start of the meeting and for the absence of my colleague Carmel Hanna, who is out of the country.

1390. I will flag up a question about what the DUP and Sinn Féin representatives said. Does any change to the authority of the justice Minister require fresh legislation? I understand that that is the case. Therefore, if the Committee signs off on its report today, without there being agreement on that matter, and a change to the powers of the justice Minister is required, will that create difficulties down the road for parliamentary draftsmen? I flag up that issue as one that may delay the roll-out of the devolution of justice powers.

1391. Mr Paisley Jnr: That is just a matter of opinion.

1392. Mr McFarland: Will the Committee establish whether a legal issue must be determined?

1393. The Committee Clerk: I can seek legal advice. The Justice (Northern Ireland) Act 2002 provides for a range of the responsibilities if there were to be a request for the devolution of policing and justice powers. The Northern Ireland Office is also working on legislation that will be required in order to devolve those powers.

1394. Were the Committee and Assembly to recommend — in this or subsequent reports — a ministerial role that varies from that of any other Minister in the Executive, a parliamentary draftsman would be required to draw up the appropriate legislation.

1395. Mr Paisley Jnr: Should the Committee seek legal opinion, it must be clear about the question that it asks. What has been heard this morning is so vague and peppered with political angles that I believe it would be the wrong time at which to seek legal opinion. A more settled view is required.

1396. The Chairperson: There is not consensus on issue C. Therefore, the question is whether to move the issue to the second report. Is that the consensus?

1397. Mr Attwood: If that is the Committee’s view, I have no issue with it. I flagged up an operational problem, which is, if it transpires that the majority parties wish to change the powers of the justice Minister in order to make those powers different from those of any current Minister, new legislation will be required. I am not seeking legal advice on that, personally; however, I believe that such a move would require new legislation.

1398. The Chairperson: I sense that the Committee wants to consider the issue in its discussion of category-two issues, at which stage legal advice may be sought on the issues that you raise, Mr Attwood, and the matter can be dealt with in our second report.

1399. Mr Attwood: I have no problem with that. However, if the matter requires a change in the authority bestowed on a justice Minister, and that that authority awaits the approval of the Committee’s second report, further legislation will be needed to be introduced at Westminster. That is so far down the track —

1400. Mr Paisley Jnr: That is a matter of opinion, Alex.

1401. Mr Attwood: It may be a matter of opinion, but if my opinion is correct, I am pointing out that to do so will create issues and delays.

1402. The Chairperson: You have made that point.

1403. Mr Kennedy: Consensus exists between the two largest parties that the matter be referred to the next stage of our considerations. We have clearly expressed our view.

1404. The Chairperson: Does the Committee agree to move that matter to the list of category-two issues?

Members indicated assent.

1405. The Chairperson: We now move on the outstanding matter under issue G. I remind members that the Committee previously agreed the location of all bodies except the Public Prosecution Service (PPS). At the meeting on 15 December 2008, it agreed that the Public Prosecution Service would be a non-ministerial department. However, the outstanding aspect relates to which Department the Public Prosecution Service should be attached, and associated with.

1406. Mr Hamilton: Again, we should consider that matter at the next stage of our considerations. There is a role for the attorney-general-elect. In that context, it may be worthwhile raising it during our discussions with that individual. The attorney-general-elect will have roles to play with the PPS, and it may be useful to clarify those roles at that time.

1407. Mr A Maskey: I agree that that is an issue.

1408. Mr McFarland: Although we do not have a problem with that, it is an issue that has had a great deal of discussion and speculation around it for some time — in fact, going back beyond the publication of our previous report. In any discussion that we have with the attorney-general-elect, we must get it right.

1409. Mr Attwood: Our view is that the PPS should be with the Ministry of justice. Is Simon suggesting that we ask the attorney-general-elect — for want of a better term — to appear before the Committee?

1410. Mr Hamilton: I envisage that forming part of our discussions about the category-two issues. I cannot remember them off the top of my head, but some questions directly relate to the attorney-general and his work. It may be opportune to meet the attorney-general-elect and discuss those issues face to face. At that stage, we could also ask him about issue G and take his view on the matter.

1411. Mr Attwood: We should take our own opinion about those matters, whatever the attorney-general-elect may or may not say. However, if it is being suggested that the attorney-general-elect should be called before this Committee, I enthusiastically support that proposal.

1412. The Chairperson: I do not think that that was a proposal; I certainly did not hear anybody make that proposal.

1413. Mr Hamilton: I certainly was not proposing that. We will have certain further discussions on the attorney-general-elect’s position and the work of that individual. I do not know whether we will even take written evidence at that stage.

1414. The Chairperson: Individual parties could have informal discussions and parties — collectively — could have a discussion. At this point, however, the work programme for category-two issues will determine how that discussion with the attorney-general designate might take place.

1415. Do members agree that issue G should be discussed as a category-two issue?

Members indicated assent.

1416. The Chairperson: That concludes the detailed consideration of the category-one list. The Committee Clerk will draft this morning’s decisions into the report that will come back before members.

1417. It is now only 11.20 am. Lunch will be available in the room. Some members have indicated that we could work on the draft report from 1.00 pm, as opposed to from 2.00 pm. We can turn that around now if the Committee Clerk is satisfied that his staff have enough time to do that. Hansard staff will also produce draft minutes of evidence for then. With the Committee’s agreement, we will reconvene at 12.30 pm for some lunch, and we will work from 1.00 pm.

1418. We must go through the draft report paragraph by paragraph and agree on the final draft, because it has to be sent off for printing tomorrow.

1419. The Committee must also agree on the wording of the draft motion, because it must be with the Business Committee by 12.10 pm today. The suggested wording of the motion is:

“That this Assembly approves the First Report of the Assembly and Executive Review Committee on the arrangements for the devolution of policing and justice matters.”

1420. Do Committee members agree to that wording?

1421. Mr McFarland: The UUP has expressed several concerns, which are included in the draft report. Therefore, we will not be approving the report in the Chamber. However, in order to get the motion to the Assembly, we will abstain and let the other parties decide on the wording.

1422. Mr Attwood: The SDLP shares that view. There has been such a fundamental difference of opinion on critical matters that the motion does not reflect the flavour of the draft report or the flavour of the discussions. Therefore, I propose that the motion should read:

“That this Assembly, recognising the difference of views between the political parties on the arrangements for devolution of justice and policing, notes the First Report”,

1423. and so on.

1424. The Committee Clerk: The proposal is:

“That this Assembly, recognising the differences of views between the political parties on the arrangements relating to the devolution of policing and justice matters, notes the First Report of the Assembly and Executive Review Committee on that subject.”

1425. However, we need to look at the wording again.

1426. Chairperson, Mr Attwood’s proposal could change the essence of the original motion. If Mr Attwood’s proposal falls, the Committee must consider different wording for the motion — perhaps reverting back to that which appears in the briefing paper. Mr Attwood’s proposal is:

1427. The Chairperson: Are you satisfied, Mr Attwood?

1428. Mr Attwood: Yes.

Question put.

The Committee divided: Ayes 3; Noes 7.

AYES

Mr Attwood, Mr Kennedy, Mr McFarland.

NOES

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

Question accordingly negatived.

1429. The Chairperson: The proposal falls. We shall, therefore, revert to the original proposal:

“That this Assembly approves the First Report of the Assembly and Executive Review Committee on the arrangements for the devolution of policing and justice matters.”

1430. Does any member propose that motion?

1431. Mr Hamilton: Yes, I propose the original motion.

Question put.

The Committee divided: Ayes 7; Noes 1.

AYES

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

NOES

Mr Attwood.

Question accordingly agreed to.

1432. The Chairperson: Mr McFarland and Mr Kennedy should be recorded as having abstained. That concludes the first part of today’s meeting.

Appendix 3

Commissioning Letters
and Party Position Papers

Contents

Letter to Political Parties – 19 September 2008

Letter to the First Minister and deputy First Minister – 19 September 2008

Letter to the Alliance Party - 19 September 2008

Letter to the D.U.P. - 19 September 2008

Letter to the Green Party - 19 September 2008

Letter to the Independent Health Coalition - 19 September 2008

Letter to the P.U.P. - 19 September 2008

Letter to Sinn Féin - 19 September 2008

Letter to the SDLP - 19 September 2008

Letter to UUP - 19 September 2008

Letter from Sinn Féin – 29 September 2008

Letter from the P.U.P – 30 September 2008

Letter from the UUP – 30 September 2008

Letter from the Alliance Party – 1 October 2008

Letter from the D.U.P – 1 October 2008

Letter from the Green Party – 1 October 2008

Letter from the SDLP – 1 October 2008

Letter to Political Parties
19 September 2008

NIA Logo

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
c/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

19 September 2008

Devolution of Policing and Justice Matters

Please find enclosed a letter which I sent today to the First Minister and Deputy First Minister.

You will note the reference in the final paragraph about the Committee wishing to secure the views of all of the political parties represented in the Assembly and this letter formalises that request. Where appropriate, I have copied both letters to those Members of your party who are presently serving on the Committee.

I look forward to hearing from you in time for the Committee to consider your response at its next scheduled meeting on 30 September 2008.

Jimmy Spratt

Chairman
Assembly and Executive Review Committee

Letter to the first Minister
and deputy First Minister
19 September 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

19 September 2008

First Minister and Deputy First Minister
OFMDFM
Stormont Castle
Stormont Estate
BELFAST

Dear First Minister and Deputy First Minister,

Devolution of Policing and Justice Powers

As you know, the Assembly and Executive Review Committee has been considering your letter of 28 July 2008, about the devolution of policing and justice matters. When the Committee met, most recently on 16 September, I reported, in detail, on the matters that Raymond McCartney and I discussed when we met with you on 15 September. You will also know that the Committee decided to seek a fresh mandate from the Assembly in order to involve itself in the further consideration of the devolution of policing and justice matters.

In the course of our meeting with you, you agreed to consider the mechanisms by which you would provide us with a list of those issues which you believe the Committee might usefully consider. There was significant discussion in Committee about such a list and I was asked to write to request that you provide

a detailed list of issues which you agree that the Committee might usefully consider;
a further list of those issues that you have not yet reached any agreement on but which might be considered by the Committee; and
your assessment of the timing of any potential devolution of policing and justice matters.

I look forward to hearing from you in time for the Committee to consider your response at its next scheduled meeting on 30 September 2008.

I have copied this letter to the Chairperson of the Committee for OFMDFM.

I have also copied this letter to the leaders of the political parties represented in the Assembly since the Committee also decided to invite each of them to provide their own list of issues which they considered the Committee might look into.

Yours sincerely

Jimmy Spratt
Chairman
Assembly and Executive Review Committee

Letter to the Alliance Party
19 September 2008

Letter to the D.U.P.
19 September 2008

Letter to the Green Party
19 September 2008

Letter to the Independent Health Coalition
19 September 2008

Letter to the P.U.P.
19 September 2008

Letter to Sinn Féin
19 September 2008

Letter to the SDLP
19 September 2008

Letter to UUP
19 September 2008

Letter from Sinn Féin
29 September 2008

Letter from Sinn Féin 29 September 2008

Letter from the P.U.P
30 September 2008

Dawn Purvis MLA
Parliament Buildings
Belfast
BT4 3XX

Jimmy Spratt MLA
Chairman of Assembly and
Executive Review Committee
Room 428
Parliament Buildings
Belfast
BT4 3XX

30th September 2008

Dear Mr Spratt

Having responded to previous requests for information and taken part in an evidence session with the committee, I believe the views of the Progressive Unionist Party are on record in relation to the devolution of Policing and Justice.

As to outstanding issues, it is our view that the only remaining outstanding issue is public confidence, an issue that has been raised by many of the parties. Our concern is that this has been a barrier to progress for some time, at some point it is up to political leaders to help create that public confidence. We believe that your committee has an opportunity to help build confidence by expelling some of the myths around accountability issues in relation to policing and justice functions.

The current status quo is that elected officials and their public attitudes to the issue are at times damaging public confidence. This issue will continue to stagnate until such times as everyone has the political will to show the leadership necessary.

Yours sincerely

Dawn Purvis MLA

Letter from the UUP
30 September 2008

Letter from the Alliance Party
1 October 2008

1 October 2008
Mr Jimmy Spratt MLA,
Chairperson
Assembly and Executive Review Committee,
Room 428,
Parliament Buildings,
Belfast BT4 3XX

Dear Mr Spratt

Devolution of Policing and Justice Matters

In your letter of 19 September, you requested a list of issues we consider important with regard to the devolution of policing and justice.

The Committee’s previous report on Policing and Justice Matters identified a number of issues which require further discussion. My party gave evidence to the Committee on that occasion and – in addition to our meetings with other parties – we reiterate our willingness to engage with the Committee on outstanding issues.

I attach a list, which should be regarded as indicative, rather than exhaustive, of issues which my party believes need to be agreed before the timescale for devolution could be realistically established.

Yours sincerely

David Ford

Devolution of Policing and Justice – Outstanding Issues

the precise functions for a Department for Justice, particularly those functions which may (or may not) be transferred from OFMDFM and from the NIO such as prisons, parades and flags/symbols;
the budget of a Department for Justice, including how this relates to that of other departments and what happens in the event of an emergency (e.g. significant civil disturbances);
other issues of resource allocation, notably police numbers, dealing with the past and capital spending;
the policy development process of a Department for Justice, including whether or not the “triple lock” within the Executive would apply to decisions of a Justice Minister (it is hard to see how this would realistically function);
the relationships between the Minister for Justice and the Executive/OFMDFM/other Ministers;
the time period that a Minister for Justice would serve, and how replacement/removal would function;
the relationship between the Department of Justice and UK Departments, perhaps most specifically the UK Home Office (on issues such as human trafficking, immigration etc);
long-term considerations, including how Ministers for Justice will be appointed in future, which functions may eventually be transferred;
public confidence - proposals are needed on how to secure public support for the new set-up, particularly among people across the community who remain concerned by paramilitary or dissident activity.

30 September 2008

Letter from the D.U.P
1 October 2008

Letter from the Green Party
1 October 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly & Executive Review Committee
c/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

Dear Mr Chairperson,

The Green Party welcomes the opportunity to comment on the devolution of Policing and Justice.

First of all, can we state that the Green Party fully supports the devolution of Policing and Justice powers to the Northern Ireland Assembly and see it as a sign of the growing stability in Northern Ireland and confidence in the institutions established here. It is also welcomed as an important step in implementing the Good Friday Agreement in its entirety. Confidence in the Assembly and the Executives ability to oversee a fair and effective policing and justice system will further help to build trust and understanding between the two traditions in Northern Ireland.

As for the specific conditions of devolution of Policing and Justice, the Green Party wishes to make the following comments on the Committee’s ‘Inquiry on devolution of policing and justice matters’;

Recommendation 18: the Green Party agrees with the Committee that there should be a single department that will exercise powers in relation to policing and justice matters.

The Green Party would suggest that the department be called ‘Department for Policing and Justice’.

Ministerial options: The Green Party favours ‘Option 1: Single Minister’, which would provide for a single Minister for Policing and Justice with the possible methods of appointment as follows:

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

Appointment of the Attorney General for Northern Ireland:

The Green Party welcomes the recommendation for creation of the post of Attorney General for Northern Ireland, as a full time role. However, the issue of accountability is one which the Green Party feels needs to be given strong consideration by the Assembly, in order to strengthen transparency and confidence in the operations of that post. A such, we agree with the recommendation that a Standing Order be developed to facilitate the Attorney General reporting to the Assembly.

Public Prosecution System

In order to ensure the accountability of the PPS, the Director of Public Prosecutions should report top the Assembly, and Standing Orders effected to enable this.

Northern Ireland Policing Board

The Green Party believes that political parties should end the current practise of appointing MLAs to the Policing Board as this would be a conflict of interest were the Assembly to adopt a scrutiny role for the Minister/Department and or Attorney General, Public Prosecution Service, so long as a viable alternative can be found.

Office of the Police Ombudsman

The Green Party would support the advisory role in relation to the appointment of the Police Ombudsman being transferred to the Office of First Minister and Deputy First Minister, in order to keep this role independent from a Minister for Policing and Justice.

Status of the Court Service

The Green Party suggests that the Court Service should no longer be organised as a separate entity to the Civil Service, but rather incorporated within it, so as to allow for transfer of skills, job opportunities, capacity, etc.

North/South Arrangements

The Green Party urges the full co-operation between the PSNI and the Garda Siochana to enable the best enforcement of the law against those criminal activities which occur on a cross-border basis and welcome the recommendation that all excepted powers in this area will be transferred.

Again, we wish to thank you for giving us the opportunity to address the issue of devolution of policing and justice powers. We hope our comments have been helpful and if you wish to discuss them further do not hesitate to contact us.

Yours sincerely

John Barry, Kelly Andrews
Co-chairs, GPNI

Letter from the SDLP
1 October 2008

1 October 2008
Mr. Jimmy Spratt, MLA.,
Chair, Assembly and Executive Review Committee,
Parliament Buildings,
Stormont,
Dundonald,
Belfast, BT4.

Re: AERC/Devolution of Justice

I enclose preliminary SDLP paper in respect of matters to be considered by the Assembly and Executive Review Committee.

I trust this is satisfactory.

Yours faithfully,

Alex Attwood,
SDLPAssembly Member,
West Belfast.

Preliminary Submission

Assembly and Executive Review Committee

Devolution of Justice

1) Consideration of the eight current models in respect of devolution of justice.

2) Assessment of the OFM/DFM letter of 28 July 200, including (i) impact for d’Hondt, (ii) principles of inclusion, democratic entitlements and the sharing of power and (iii) the current and future veto powers proposed in the OFM/DFM.

3) Protection of the powers of the nominating officer in proposing and removing a Minister.

4) Proposals in respect of the sharing of intelligence gathering by the Security Services and oversight of its work.

5) Proposals for a North-South Justice Agreement.

6) Proposals for a Justice sector of the North-South Ministerial Council.

7) Proposals to undo recent Westminster proposals on terror legislation and its impact on the authority of devolved institutions.

Appendix 4

Research Papers

Research and Library Services

Research Paper
[insert ref number]

October 2008

Independence and Accountability
of the Public Prosecution
Service Northern Ireland

Fiona O’Connell

This paper has been prepared for the Assembly and Executive Review Committee to facilitate them in their understanding of the independence and accountability of the Public Prosecution Service of Northern Ireland post devolution of policing and justice. This paper considers Prosecution Services in the rest of the United Kingdom and the Republic of Ireland and highlights possible issues which the Committee may wish to consider further.

Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.

Summary of key points

This research paper has been prepared for the Assembly and Executive Review Committee to facilitate them in their understanding of independence and accountability of the Public Prosecution Service Northern Ireland particularly post devolution of policing and justice matters.

This paper looks at Prosecution Services in England and Wales, Scotland and the Republic of Ireland.

This paper also considers the existing arrangements for the Public Prosecution Service in Northern Ireland and highlights potential issues that may arise in relation to relationship between an Attorney General for Northern Ireland, Public Prosecution Service, Government Departments and the NI Assembly.

1.0 Introduction

2.0 Crown prosecution Service in England and Wales

3.0 The Crown Office of the Procurator Fiscal Service (COPFS), Scotland

4.0 The Office of the Director of Public Prosecutions, Republic of Ireland

5.0 The Public Prosecution Service for Northern Ireland (PPSNI)

6.0 Potential issues the Committee may wish to consider.

Independence and Accountability
of the Public Prosecution
Service Northern Ireland

1.0 Introduction

This research paper is prepared for Members of the Assembly and Executive Review Committee, to facilitate their understanding of issues relating to the independence and accountability of the Public Prosecution Service of Northern Ireland (PPSNI) after the devolution of policing and justice matters.

Section 2.0 of this paper considers the Crown Prosecution Service in England and Wales. Section 3.0 examines the Crown Office and Procurator Fiscal Service in Scotland. Section 4.0 discusses the Office of the Director of Public Prosecutions in the Republic of Ireland. Section 5.0 highlights the current structure of the PPSNI and also considers potential issues relating to the relationship between the Attorney General and the Director of Public Prosecutions and the Northern Ireland Assembly after the devolution of policing and justice matters. Finally, section 6.0 considers potential issues arising from the previous sections that the Committee may wish to consider further.

2.0 Crown prosecution Service in England and Wales

2.1 Background

The CPS is the principal prosecuting authority for England and Wales.[1] The legislative basis of the CPS is the Prosecution of Offences Act 1985.[2] The legislation sets out the constitution and functions of the CPS.

2.2 Role

The CPS is an independent prosecuting authority and its role includes: “advising the police during the early stages of investigations; determining the appropriate charges in all but minor cases; keeping all cases under continuous review and decides which cases should be prosecuted; preparing cases for prosecution in court and prosecutes the cases with in-house advocates or instructs agents and counsel to present cases; and providing information and assistance to victims and prosecution witnesses.” [3]

2.3 Organisational Structure and governance arrangements of CPS

The CPS is headed by the Director of Public Prosecutions (DPP) whose responsibilities include prosecution, legal issues and criminal justice policy.[4] The organisational structure also includes a Chief Executive who is responsible for running the CPS on a day to day basis, human resources, finance, business information systems and business development. The CPS consists of 42 areas, each of which is headed by a Chief Crown Prosecutor.

2.4 Independence and Accountability

The Attorney-General is accountable to the UK Parliament for the CPS prosecution policy; however Parliament does not give directions to the Attorney General.[5] Commentators have noted that:

The House of Commons thus has no effective machinery for ensuring due accountability to the House for the Attorney General’s decisions, the assumption that both he and the DPP should be free from extraneous political interference in their work.[6]

The Attorney General has a statutory duty to superintend the discharge of the duties of the Director of Public Prosecutions (DPP, head of the CPS), the Director of the Serious Fraud Office and the Director of the Revenue Customs Prosecutions Office. The Attorney General also currently oversees the functions of the Director Public Prosecutions (DPP) for Northern Ireland.[7]

The idea of superintendence by the Attorney General of the Director of Public Prosecutions is explained as:

setting the strategy of the organisation; responsibility for the overall policies of the prosecuting authorities, including prosecuting policy in general; responsibility for the overall effective administration of those authorities; the right for the Attorney General to be consulted and informed about difficult, sensitive and high profile cases; but not, in practice, responsibility for every individual prosecution decision, or for the day to day running of the organisation.[8]

The Director of the CPS is accountable to the Attorney-General and is under a statutory duty to make an annual report to the Attorney General on the discharge of his functions.[9]

As highlighted in a previous paper to the Assembly and Executive Review,[10] one of the functions of the Justice Committee at Westminster is to examine the administration and expenditure of the Attorney General and the Crown Prosecution Service. It does not however, examine issues relating to prosecutorial decisions. However, the Justice Committee is conducting an inquiry into the Crown Prosecution Service and as part of its terms of reference; the inquiry will consider how to achieve the balance between ensuring the independence and accountability of the CPS and its relationship with the Attorney General.[11] This inquiry will not consider issues relating to individual cases or prosecutions.

3.0 The Crown Office of the Procurator Fiscal Service (COPFS), Scotland

3.1 Background

The Crown Office of the Procurator Fiscal Service (COPFS) is the sole prosecuting authority in Scotland. It is a department of the Scottish Executive and is headed by the Lord Advocate who is head of the system of criminal prosecutions and investigations of deaths in Scotland.[12] The role of the Lord Advocate is set out in the Scotland Act 1998.[13]

3.2 Role

The role of the department is to: make decisions for bringing prosecutions for criminal offences; investigate all sudden, suspicious or unexplained deaths in Scotland; deciding whether criminal proceedings or fatal accident inquiries or Fatal Accident Inquiry should be held and for conducting such inquiries.[14] The Procurator Fiscal is also responsible for prosecution of crimes and investigations of deaths at a local level.[15]

3.3 Organisational Structure

Lord Advocate

The Lord Advocate is the head of the COPFS and a member of the Scottish Executive. The appointment of the Lord Advocate is a political appointment and may change when there is a change of Executive.[16]

Solicitor General

The Solicitor General assists the Lord Advocate and is also a member of the Scottish Executive, whose appointment may also change with a change in Executive.[17]

Advocates Deputes

Advocate Deputes are appointed by the Lord Advocate to serve for a term of three years. Their main role is to make decisions about proceedings on indictment, Fatal Accident Inquiries and prosecute cases in the high court.[18]

Crown Agent and Chief Executive

The Crown Agent is the principal legal advisor to the Lord Advocate on criminal prosecution matters. Currently the Crown Agent is also the Chief executive of the Prosecution Service.[19] The Chief Executive is the head of the Department and is the accountable officer. The Chief Executive’s main functions are corporate leadership of the COFPS, chairing the management board and setting the strategic direction of the department.[20]

Deputy Crown Agent

The deputy Crown Agent is responsible for the Operations Group, which consists of a number of operational units including: the High Court Unit; Appeals Unit; Fraud and Specialist Services Unit; Criminal Confiscation Unit; and Civil Recovery Unit.[21]

Policy Group

The policy group assists the Crown Agent as policy advisor to the Lord Advocate and consists of lawyers, policy advisors and support staff.[22]

Corporate Services Group

Led by the Director of Corporate Service, this group provides services to the Crown Office including finance, personnel, human resources, accommodations and IT, amongst other services.[23]

Area Procurators Fiscal

The COPFS is divided into eleven areas and are set up along the geographical boundaries of the eight Scottish Police forces.[24] There are eleven Area Procurator Fiscals and that have management responsibility, including financial management for their areas.[25]

3.4 Independence and Accountability

Decisions taken by the Lord Advocate in relation to criminal prosecutions or the investigation of sudden deaths are taken independently and this principle of independence is set out in Section 48 (5) of the Scotland Act 1998 which states that “Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.”[26]

As highlighted in a previous paper provided to the Assembly and Executive Review Committee, the Justice Committee of the Scottish Parliament has a role in examining the functions of the Lord Advocate other than as Head of criminal prosecutions and investigation of sudden deaths.[27] The research paper highlighted that Justice Committee would be precluded from considering matters relating to decisions to prosecute or on individual cases, but would consider general issues such as the efficiency and effectiveness of the Prosecutions Service.[28]

4.0 The Office of the Director of Public Prosecutions, Republic of Ireland

4.1 Background

The principal function of the Office of the Director of Public Prosecutions (DPP) is the power to prosecute criminal offences. The Office of the DPP was established by the Prosecution of Offences Act 1974.[29]

4.2 Role

The role of the Office of the DPP is to “enforce the criminal law in the courts on behalf of the people of Ireland; direct and supervise public prosecutions on indictment in the courts; and give general direction and advice to the Garda Siochana in summary cases and specific direction in such cases where requested.”[30]

4.3 Organisational Structure

The organisational structure of the DPP which is led by a Director of Public Prosecutions and Deputy Director is divided into three main divisions: Directing Division, which consists of barristers and solicitors and examines criminal investigation files ad make decisions about taking prosecutions; Solicitors Division, which consists of solicitors and legal executives who prepare cases on behalf of the DPP; and the Administration Division, which provides organisational, infrastructural, administration and information services to the Office of the DPP.[31]

4.3 Independence and Accountability

The independence of the DPP is enshrined in the Prosecution of Offences Act 1974 which states that “the Director shall be independent in the performance of his functions.”[32] There is a statutory function in the legislation for the Attorney General and the Director to “consult from time to time in relation to matters pertaining to the functions of the Director.”[33]

The accounting officer of the Office of the DPP is accountable to the Comptroller and Auditor General and the Dail Committee of Public Accounts Committee for “its expenditure of public money and its economy and efficiency in the use of its resources.”[34]

5.0 The Public Prosecution Service for Northern Ireland (PPSNI)

5.1 Current Structure of PPSNI

The PPSNI was established on 13 June 2005 and its legislative basis is the Justice (Northern Ireland) Act 2002.[35] The legislation defines the remit of the PPSNI and sets out its statutory duties and commitments.[36] The PPSNI is the principal prosecuting authority in Northern Ireland, taking decisions as to prosecution in cases investigated by the police. It also considers cases initiated and investigated by statutory authorities such as HM Revenue and Customs.[37]

The PPSNI is headed by the Director of Public Prosecutions for NI and there is a Deputy Director who has the same functions but exercises them under the direction of the Director. Both posts are statutory appointments and are appointed by the Attorney General of NI.[38] The Director of the PPSNI discharges his functions under the superintendence and directions of the Attorney-General.[39] The current position is that the Attorney- General holds two posts, the Attorney General for England and Wales and the Attorney General for NI.[40]

The staff of the PPSNI is composed of civil servants who are recruited by the Department of Finance and Personnel.[41] They are also attached to the Northern Ireland Office (NIO).[42] Funding for the service is provided by the Secretary of State for NI.[43] The organisational structure includes the PPS Management Board, chaired by the Director and consists of the deputy director, two senior assistant directors and two non–executive members. The Management Board supports the Director in the leadership of PPSNI and in reaching decisions regarding the development and implementation of strategy and governance of the service.[44]

5.2 Possible issues that may arise in relation to the PPSNI after devolution of policing and justice matters.

The Assembly and Executive Review Committee’s Report of the Inquiry into Policing and Justice matters published in March 2008, recommended that the Public Prosecution Service should transfer as a non-ministerial department. [45] However the Committee recommended that the independence and the accountability of the Public Prosecution Service should be examined before the devolution of policing and justice powers. [46] The next sections will consider some possible issues that the Committee may wish to consider regarding some relationships between an Attorney General for NI, the Director of Public Prosecutions, Government Departments and the NI Assembly.

5.2.1 The relationship between the Attorney General for NI and the Director of Public Prosecutions.

The UK Government has proposed in its discussion paper on devolving policing and justice that a new Attorney General for NI will be created. The Attorney General of NI will be appointed by the First and Deputy First Minister, subsequent to consultations with the Advocate General. The Attorney General for NI will appoint the Director and Deputy Director of Public Prosecutions and the relationship between the Director of Public Prosecution and the Attorney General for NI will be one of consultation, as the Attorney General for NI will have no power of direction or superintendence over the PPSNI, whether on individual cases or policy matters.[47] This proposal is similar to the arrangements which exist in the Republic of Ireland where there is a statutory function for the Attorney General and Director of Public Prosecutions to consult with each other from time to time. In contrast the Attorney General for England and Wales currently superintends the discharge of the duties of the Head of the Crown Prosecution Service. The Committee may wish to consider if the relationship between the Attorney General for NI and the DPP is one of consultation rather than superintendence, who will have responsibility for the strategic direction of the organisation and formulation of policy.

5.2.2 Relationship between the Public Prosecution Service and a Government Department.

The Director of the PPSNI, in his evidence to the Assembly and Executive Review Committee highlighted the issue of funding of the service. He stated:

“I note that the Attorney General will be appointed by the First and Deputy First Minister and their office will publish his report and provide his funding, office and staff. I ask the Committee to consider whether there is symmetry in those arrangements that could perhaps happily place the Public Prosecution Service together with the First Minister and Deputy First Minister for funding purposes.”[48]

However the Criminal Justice Inspection Northern Ireland in its written submission argued that policing and justice should be brought together in a single Ministry and that “the Public Prosecution Service should be funded by and report to that Ministry.”[49]

The Committee may wish to consider whether the PPSNI would be best placed with the Office of the First and Deputy First Minister or a future Ministry of Policing and Justice for funding purposes.

5.2.3 Relationship between the PPSNI and the Assembly.

The Government’s discussion paper on devolving policing and justice states that the Director of the Public Prosecution Service would be required by the Attorney General for NI to prepare an annual report on the exercise of his functions which would be laid before the Assembly and the Director would not be required to answer to the Assembly except in relation to finance and administration.[50]

In the Republic of Ireland, there would appear only to be accountability to the Comptroller and Auditor General and Dail Public Accounts Committee for expenditure and effective use of resources. Whereas in Westminster and Scotland, the Justice Committees have a role in looking at expenditure, administration and efficiency of the respective Prosecution Services in these jurisdictions.

The Committee may wish to consider what the role of a future Justice Committee or the Public Accounts Committee would be in relation to examining the finance and administration of the PPSNI.

6.0 Potential issues the Committee may wish to consider.

There are some issues arising from the above sections which the Committee may wish to consider in more detail, they concern the important balance between independence and accountability:

The Committee may wish to consider if the relationship between the Attorney General for NI and the DPP is one of consultation rather than superintendence, who will have responsibility for the strategic direction of the organisation and formulation of policy, for example would the DPP take on this function to ensure a greater degree of independence?

Would the PPSNI be best placed with the Office of the First and Deputy First Minister or a future Ministry of Policing and Justice for funding purposes?

What role might a future Justice Committee, the Committee for the Office of the First Minister and Deputy First Minister and the Public Accounts Committee have in relation to examining the finance and administration of the PPSNI?

[1] Crown Prosecution Service: Annual Report and Resource Accounts 2006-2007, Pg 90.

[2] Prosecution of Offences Act 1985, S.1(1).

[3] Crown Prosecution Service: Annual Report and Resource Accounts 2006-2007, Pg 3.

[4] Ibid.

[5] Bradley and Ewing (2007) “Constitutional and Administrative Law” .14th Edition, Pg 412

[6] Ibid.

[7] http://www.attorneygeneral.gov.uk/sub_our_role_work.htmhttp://www.attorneygeneral.gov.uk/sub_our_role_work.htm

[8] Memorandum from the Attorney General to the Constitutional Affairs Committee on its Inquiry into the Constitutional Role of the Attorney General, 6th February 2007, Pg 2. http://www.attorneygeneral.gov.uk/attachments/Constitutional%20Affairs%20Committee%20-%20Inquiry%20into%20the%20Role%20of%20the%20Attorney%20General%20-%20Memorandum.pdf

[9] Prosecution of Offences Act 1985, S. 9.

[10] Paper provided to the Assembly and Executive Review Committee by Research Services at the Northern Ireland Assembly in October 2008, “Committees with Ministerial Oversight Responsibilities for Justice Matters in the United Kingdom and Republic of Ireland” Pg 1.

[11] http://www.parliament.uk/parliamentary_committees/justice/jsc170708pn41.cfm

[12] A Guide to the Crown Office and Procurator Fiscal Service, Pg 2, available at the following link: http://www.copfs.gov.uk/Resource/Doc/13421/0000032.pdf

[13] The Scotland Act, Section 48 (5), available at the following link:,http://www.opsi.gov.uk/acts/acts1998/ukpga_19980046_en_4#pt2-pb1-l1g48

[14]A Guide to the Crown Office and Procurator Fiscal Service, Pg 2, available at the following link: http://www.copfs.gov.uk/Resource/Doc/13421/0000032.pdf

[15] Ibid.

[16] Ibid,Pg 3.

[17] Ibid.

[18] Ibid.

[19] http://www.copfs.gov.uk/About/Departmental-Overview/Ministers-Officials

[20] Ibid, Pg 4.

[21]A Guide to the Crown Office and Procurator Fiscal Service, Pg 4, available at the following link: http://www.copfs.gov.uk/Resource/Doc/13421/0000032.pdf

[22] Ibid.

[23] Ibid.

[24] http://www.copfs.gov.uk/About/Departmental-Overview/COPFS-Structure

[25] A Guide to the Crown Office and Procurator Fiscal Service, Pg 5, available at the following link: http://www.copfs.gov.uk/Resource/Doc/13421/0000032.pdf

[26] http://www.opsi.gov.uk/Acts/acts1998/ukpga_19980046_en_1

[27] Paper provided to the Assembly and Executive Review Committee by Research Services at the Northern Ireland Assembly in October 2008, “Committees with Ministerial Oversight Responsibilities for Justice Matters in the United Kingdom and Republic of Ireland” Pg 3.

[28] Ibid.

[29] http://193.178.1.79/1974/en/act/pub/0022/index.html

[30] http://www.dpp.ie/about_us/

[31] Ibid.

[32] Prosecution of Offences Act 1974, Section 2 (5)

[33] Ibid, Section 2 (6).

[34] Office of the Director of Public Prosecutions “Strategy Statement 2007-2009”, Para 2.5

[35] Public Prosecution Service Annual Report, 2006-2007 http://www.ppsni.gov.uk/site/default.asp

[36] Justice (NI) Act 2002 http://www.legislation.gov.uk/acts/acts2002/ukpga_20020026_en_4#pt2-pb3-l1g29 and http://www.ppsni.gov.uk/site/default.asp

[37] Public Prosecution Service Annual Report, 2006-2007.

[38] Ibid.

[39] Ibid.

[40] See NIO (2006) Devolving Policing and Justice in Northern Ireland: A Discussion Paper” Pg 12.

[41] CJNI “An Inspection of the Public Prosecution Service for Northern Ireland”, July 2007, Pg 4.

[42] Ibid.

[43] Public Prosecution Service Annual Report, 2006-2007 http://www.ppsni.gov.uk/site/default.asp

[44] Ibid.

[45] See recommendation 24 of the Assembly and Executive Review Committee (2008) Report on the Inquiry into Policing and Justice Matters, Pg 21.

[46] Ibid, Pg 21

[47] NIO (2006) “Devolving Policing and Justice: A Discussion Paper”, Pg 13.

[48] Oral evidence given by Sir Alistair Frazer to the Assembly and Executive Review Committee on 16th October 2007, see Assembly and Executive Review Committee (2008) Report on the Inquiry into Policing and Justice Matters, Pg 176.

[49] Assembly and Executive Review Committee (2008) Report on the Inquiry into Policing and Justice Matters, Volume 2, Pg17

[50] NIO (2006) “Devolving Policing and Justice: A Discussion Paper”, Pg 13

Research and Library Services

Policing Governance Structures in the United Kingdom and Republic of Ireland

October 2008 [1][2][3][4][5][6]

Jurisdiction	Policing Governance Structure
Northern Ireland	Northern Ireland policing is largely a tripartite structure includes: the Secretary of State for Northern Ireland; the Policing Board1; and the Chief Constable of the PSNI.2 The Policing Board’s is made up of 11 MLAs and 8 independent members. Its functions are to ensure an efficient, effective and impartial police service and hold the Chief Constable to account.3 Other responsibilities are: to secure an effective and efficient local police service; to appoint (and dismiss, if necessary) the Chief Constable and senior police officers (Assistant Chief Constable and above);to consult widely with local people about the policing of their area; to set local policing priorities and targets for police performance to monitor everything the police do and how well they perform against the targets set by the Policing Board; to publish a three year and annual policing plan which tells local people what they can expect from their police service and report on police performance every year; to make sure local people get best value from their local police; to oversee complaints against senior officers; and to discipline senior officers.4 The Chief Constable has sole responsibility for direction and control of the police.5 The Secretary of State for Northern Ireland may determine long term policing objectives and issue Codes of practice for the Policing Board.6

Jurisdiction

Policing Governance Structure

Northern Ireland

Northern Ireland policing is largely a tripartite structure includes: the Secretary of State for Northern Ireland; the Policing Board1; and the Chief Constable of the PSNI.2

The Policing Board’s is made up of 11 MLAs and 8 independent members. Its functions are to ensure an efficient, effective and impartial police service and hold the Chief Constable to account.3 Other responsibilities are: to secure an effective and efficient local police service; to appoint (and dismiss, if necessary) the Chief Constable and senior police officers (Assistant Chief Constable and above);to consult widely with local people about the policing of their area; to set local policing priorities and targets for police performance to monitor everything the police do and how well they perform against the targets set by the Policing Board; to publish a three year and annual policing plan which tells local people what they can expect from their police service and report on police performance every year; to make sure local people get best value from their local police; to oversee complaints against senior officers; and to discipline senior officers.4

The Chief Constable has sole responsibility for direction and control of the police.5

The Secretary of State for Northern Ireland may determine long term policing objectives and issue Codes of practice for the Policing Board.6

Jurisdiction	Policing Governance Structure
Scotland 7	Police (Scotland) Act 1967 provides for a tripartite sharing of responsibility for Policing between the Scottish Ministers, police authorities or Joint police boards and Chief Constables. Police Authorities and Joint Police Board are made up of local authority councillors and cover the eight police forces in Scotland and responsibilities include: setting the police budget; appointing senior police officers and civilian support staff and securing best value and continuous improvement within police force. Chief Constables have sole responsibility for operational decisions about police deployment and enforcing the law in their areas and appoint all officers up to and including the rank of superintendent for their police forces. Scottish Ministers are responsible for policing policy in Scotland. It should be noted that there is also a Police Advisory Board for Scotland (PABS) which is examines the “conduct and efficiency of police officers and advises the Scottish Ministers on general questions affecting the Police.”8 Membership of PABS is comprised of a Ministerial Chair, independent members, appointed by Ministers, staff association representatives and representatives from the Convention of Scottish Local Authorities.9
England and Wales	Policing in England and Wales is a tripartite structure of the Home Office, Chief Constables and Police Authorities. The Home Office funds the police and has overall responsibility as a coordinator.10 There are 43 police authorities, one for each force area. Most police authorities consist of 17 members, including nine Councillors, three magistrates and five independents although some authorities have more members.11 Responsibilities are12: • to make sure arrangements are in place to consult the local community about the policing of their area and their priorities; • to publish an annual local policing plan and a best value performance plan, setting out the policing priorities, performance targets and the allocation of resources; • to monitor the performance of the force in delivering the policing plan; • to report to the community on performance during the previous year; • to appoint the chief constable and other very senior officers and deal with some complaints and discipline issues; • under the Best Value initiative, scrutinise police activity for possible improvements; and • to publish a three-year strategy plan, which must be approved by the Home Secretary. Chief Constables are responsible for the direction and control of regional forces.13
Republic of Ireland	The Policing administrative structure in ROI, unlike other jurisdictions is not a tripartite structure. The Garda Siochana Act 2005, section 26 (3) sets out that the Garda Commissioner is accountable to the Minister for the Garda Commissioners functions and the functions of the Garda Siochana. It should be noted that the Irish Council for Civil Liberties in 2003 called for the establishment of a Garda Board “tasked with ensuring greater public accountability and civic oversight of An Garda Siochana.”14

[7][8][9][10][11][12][13][14]

[1] The Policing Board for Northern Ireland replaced the Police Authority for Northern Ireland, see the Police (Northern Ireland) Act 2000, section 2 (3).

[2]http://www.nio.gov.uk/index/faq/niofaq-policing.htm

[3] Police (Northern Ireland) Act 2000.

[4]http://www.nipolicingboard.org.uk/index/our-work.htm

[5] Police (Northern Ireland) Act 2000, section 33.

[6] Ibid, sections 25 and 27.

[7] Information obtained from a report by the Scottish Parliamentary Information Centre (SPICe) (2007) The Scottish Criminal Justice: The Police, Pgs 6-8 http://www.scottish.parliament.uk/business/research/pdf_subj_maps/SMDA07-02.pdf

[8] Donnelly, D and Scott K “The Organisation of Scottish Policing” in Policing Scotland (2005) edited by Donnelly, D and Scott, Willan Publishing, Pg 25.

[9] Ibid.

[10]http://www.homeoffice.gov.uk/police/about/?view=Standard

[11] Following information taken from report by Docking M (2003) “Public Perceptions of Police accountability and decision making” Pg 7 http://www.homeoffice.gov.uk/rds/pdfs2/rdsolr3803.pdf

[12] Ibid.

[13]http://www.homeoffice.gov.uk/police/about/?view=Standard

[14]http://iccl.ie/DB_Data/publications/ICCLsubmissiononschemeoftheGardaSiochanaBill.pdf

Research and Library Services

Supplementary Information on the Recommendations of the Criminal Justice Inspection Northern Ireland

Claire Cassidy

Introduction

This supplementary briefing is prepared for Members of the Assembly and Executive Review Committee to highlight the recommendations made by the Criminal Justice Inspection (CJI) Northern Ireland (NI), in its written submission to the Committee on the 10 August 2007. The Committee’s report on the Inquiry into the devolution of policing and justice matters recommended that the Northern Ireland Office (NIO) should make arrangements to have draft reports from CJI submitted to the Assembly, and that other matters raised by CJI should be examined before the devolution of policing and justice matters. The issues discussed in CJI’s written submission include:

1. Two slight modifications to CJI’s remit involving, the inspection of the Police Service of Northern Ireland (PSNI) and the review of individual cases.

2. The planning process of CJI’s programme of work each year and the input the relevant Committee of the NI Assembly may wish to have.

3. The implications for the future resourcing of CJI taking into consideration new responsibilities of CJI together with expected new demands placed on the Inspectorate by the NI Assembly.

4. The responsibility of the publication of CJI reports under devolution.

5. The management of the Criminal Justice System.

1. Modifications to CJI remit

In its written submission, CJI recommended that the Executive should call for an independent quinquennial review of its functions and performance to enable the Assembly to take a fresh view of what it wanted from the Inspectorate. It would be at this stage that two modifications of the organisation’s remit might be considered. These are outlined below.[1]

1.1 Inspection of the PSNI

Under the Justice (Northern Ireland) Act 2002[2], CJI currently has a remit to inspect the PSNI but it is constrained by Schedule 8.8 which states:[3]

(1) Before an inspection of the Police Service of Northern Ireland or Police Service of Northern Ireland Reserve is carried out under section 46, the Chief Inspector must inform those of Her Majesty’s Inspectors of Constabulary who have been appointed under section 41(1) of the Police (Northern Ireland) Act 1998 (c. 32) as inspectors of constabulary for Northern Ireland.

(2) If those inspectors notify the Chief Inspector that they wish to carry out the inspection, the Chief Inspector must delegate its carrying out to them under paragraph 7.

(3) If those inspectors do not notify the Chief Inspector that they wish to carry out the inspection, the Chief Inspector must, before the inspection or review is carried out, consult the Secretary of State with a view to obtaining his approval of the inspection which it is proposed to carry out.

Schedule 8.8 outlines how the Chief Inspector of Criminal Justice in Northern Ireland must first inform Her Majesty’s Inspectors of Constabulary before carrying out an inspection of the PSNI. Her Majesty’s Inspectors of Constabulary may wish to carry out the inspection themselves and if this were the case, the Chief Inspector of Criminal Justice in Northern Ireland must allow this to happen. If, in the situation where Her Majesty’s Inspectors of Constabulary does not wish to carry out the inspection, the Chief Inspector of Criminal Justice in Northern Ireland must obtain the Secretary of State’s approval before commencing the inspection.

Once responsibility for the PSNI transfers with the devolution of policing and justice, CJI will be the Assembly’s own designated Inspectorate in this area. Taking this into consideration, CJI recommends that HM Inspectorate of Constabulary inspect in Northern Ireland as agents for CJI, which would reflect the relationship between CJI and other England and Wales Inspectorates. CJI highlights how HM Inspectorate of Constabulary conducts ‘Best Value’ reviews of Policing Authorities in England and Wales and indicates how useful it could be if CJI were authorised to inspect the work of the Policing Board and District Policing Partnerships similarly.[4]

1.2 Reviews of Individual Cases

Presently under the Justice (Northern Ireland) Act 2002, CJI is not allowed to review individual cases. However, during the course of its work, CJI may have to review individual cases on file when inspecting an agency. If an individual case is reviewed as part of an inspection, CJI collates and anonymises the information and does not refer to individual cases in any reports. CJI recommended that in the most serious cases in Northern Ireland the Serious Case Review should be conducted independently by CJI rather than by the agencies concerned. If this were to happen, this would require a permissive power for CJI to conduct such reviews at the request of the Minister.[5]

2. The Planning Process of CJI’s prgramme for work

Each year CJI prepares a Business Plan which it submits to the Secretary of State for approval. Every three years CJI also submits a Corporate Plan looking three years ahead. Once the devolution of Policing and Justice occurs, the Minister of Justice will take over this responsibility for approving those plans. The relevant Committee of the Assembly may therefore wish to consider how it would like to make an input to the process.[6]

3. Resourcing of CJI

CJI has recently been invited to take on new responsibilities as part of the UK’s National Preventive Mechanism under the Optional Protocol to the International Convention against Torture. This, together with any new demands placed on CJI by the Assembly once policing and justice has been devolved, may have implications for the future resourcing of CJI.[7]

4. Publication of Reports

Presently CJI is required by the Justice (Northern Ireland) Act 2002, to submit its reports in draft to the Secretary of State, who then presents them to Parliament before they are published. Provisions of the Act ensure that the Secretary of State controls publications and can withhold reports to protect the safety of individuals or in the public interest. However CJI indicates that these safeguards are no longer necessary or appropriate as there is no danger to individual safety arising from CJI’s reports as individuals are never referred to. CJI believes this change would strengthen the perceived independence of the Inspectorate.

CJI also raises the point that the requirement for presentation to Parliament prior to publication can lead to the delay of reports being published due to the Parliamentary summer recess. CJI therefore proposes it should be allowed to submit reports and publish them at any time, whether or not the Assembly is in session.[8]

5. Management of the Criminal Justice System

CJI believes that policing and criminal justice should be brought together in a single Ministry, with joint Ministers or junior and senior Ministers as necessary. By doing so CJI believes this would make for a strong, unified Criminal Justice Board with the responsibility for the planning and management of the criminal justice system. At present the Northern Ireland Criminal Justice Board is consultative, not executive and in the view of CJI the nature of the independence of the respective criminal justice agencies is allowed to hinder effective planning and management.

At present the CJI does not have access to the papers of the Criminal Justice Board nor does it inspect the Northern Ireland Office, though it inspects its Executive Agencies. However CJI suggests that executive operations of the Ministry, such as its management of Community Safety Partnerships should be open to scrutiny.[9]

[1] Written submission of the Criminal Justice Inspectorate Northern Ireland, August 2007.

[2] Justice (Northern Ireland) Act 2002 http://www.opsi.gov.uk/acts/acts2002/ukpga_20020026_en_1

[3] Schedule 8.8 of the Justice (Northern Ireland) Act 2002 http://www.opsi.gov.uk/acts/acts2002/ukpga_20020026_en_17#sch8

[4] Written submission of the Criminal Justice Inspectorate Northern Ireland, August 2007

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

Research and Library Services

Research Proposals on Policing and Justice

Fiona O’Connell and Tim Moore
October 2008

Introduction

This paper aims to facilitate discussion on possible research proposals to assist the work of the Assembly and Executive Review Committee.

The Report of the Assembly and Executive Review Committee, published in March 2008, has indicated in its issues, finding and recommendations, matters requiring resolution pre and post devolution. The proposals outlined in this briefing note relate to matters requiring resolution pre-devolution and include:

Relationships within the field of criminal justice and policing;
Appointments to the Office of the Police Ombudsman;
Criminal Justice Inspection Reports; and
The Independence and Accountability of the Public Prosecution Service IN Northern Ireland (PPSNI).

The following sections will discuss the relevant issues and recommendations and will outline research proposals which aim to assist the Committee in its consideration of policing and justice issues.

1. Relationships within the field of Criminal Justice and Policing.

1.1 Paragraph 42 of the Committee’s report states “The Committee considered it essential 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 the relationship with the Assembly and relevant Statutory Committee.”[1]

1.2 Research Proposal: The Committee may wish to consider the work of Statutory Justice Committees, for example their membership, roles and functions. This would involve considering the work of Justice Committees in other jurisdictions such as the rest of the United Kingdom, Republic of Ireland and in particular the role of the Northern Ireland Affairs Committee in Westminster. The Committee may also wish to consider the relationship between a devolved Department of Justice and UK Departments such as the Home Office. However the Committee may wish to focus specifically on the work of Justice Committees.

2.0 Appointments to the Office of the Police Ombudsman for Northern Ireland

2.1 Recommendation 30 the Committee’s Report recommends that “the matters relating to appointments to the Office of the Police Ombudsman should be examined by political parties, initially before the devolution of policing and justice matters.”[2]

2.2 Research Proposal: The Committee may wish to consider the current arrangements for appointments to the Office of the Police Ombudsman, and how these arrangements may change after the devolution of policing and justice matters. The Committee may wish to consider appointments to bodies in other jurisdictions with functions to deal with complaints against the police, such as the Independent Police Complaints Commission (IPCC) in England and Wales and the Garda Síochana Ombudsman Commission (GSOC) in the Republic of Ireland.

3.0 Criminal Justice Inspection Reports

3.1 Recommendation 32 recommends “that the NIO should make arrangements to have draft reports from the Criminal Justice Inspection Northern Ireland submitted to the Northern Ireland Assembly, and that the other matters raised by the Criminal Justice Inspection Northern Ireland should be examined initially before the devolution of policing and justice matters.”[3]

3.2 Research Proposal: The Committee may wish to consider the nature and function of the Criminal Justice Inspection reports. The Committee may also wish to consider the “other matters” or recommendations raised in the written submission to the Committee from Criminal Justice Inspection Northern Ireland.

4.0 Independence and Accountability of the Public Prosecution Service

4.1 Recommendation 27 of the Committee’s report 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.”[4]

4.2 Research Services prepared a paper for the Assembly and Executive Review Committee on Court Service and Public Prosecution Service Models in England, Wales and Northern Ireland in November 2007. This included the legislative basis, accountability, organisational and governance arrangements of these organisations. This paper highlighted some issues in relation to the PPSNI such as appointment and role of a new Attorney General for NI, the potential relationship between the PPSNI and the Assembly and the role of an Advocate General in relation to non devolved matters.

4.3 The Committee may wish to have a refresher on this paper or may wish to consider this recommendation in more detail.

[1] Assembly and Executive Review Committee “Report on the Inquiry into the devolution of Policing and Justice Matters”, March 2008, Pg 21.

[2] Ibid, Pg 23.

[3] Ibid.

[4] Ibid Pg 22.

Appendix 5

Correspondence
to, and from, OFMDFM

Contents

Letter from the First Minister and deputy First Minister – 28 July 2008

Letter to Gail McKibbin, OFMDFM – 10 September 2008

Letter from Gail McKibbin, OFMDFM – 12 September 2008

Letter to the First Minister and deputy First Minister – 19 September 2008

Letter from OFMDFM– 22 September 2008

Letter to the First Minister and deputy First Minister – 8 October 2008

Letter from OFMDFM – 9 October 2008

Letter from the deputy First Minister – 13 October 2008

Letter to the First Minister and deputy First Minister – 14 October 2008

Letter from OFMDFM – 15 October 2008

Letter from the First Minister and deputy First Minister – 8 November 2008

Letter to the First Minister and deputy First Minister – 11 November 2008

Letter from the First Minister and deputy First Minister – 18 November 2008

Letter to the First Minister and deputy First Minister – 19 November 2008

Letter from OFMDFM – 20 November 2008

Letter to the First Minister and deputy First Minister – 24 November 2008

Letter to the First Minister and deputy First Minister – 3 December 2008

Letter from the First Minister and deputy First Minister – 12 December 2008

Letter from the First Minister
and deputy First Minister
28 July 2008

Letter to Gail McKibbin
10 September 2008

Mr Stephen Graham
Clerk to Assembly and
Executive Review Committee
Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

Tel: (0)28 9052 1784
Fax: (0)28 9052 5917
Email:stephen.graham@niassembly.gov.uk

10 September 2008

Gail McKibbin
OFMDFM
Stormont Castle
Stormont Estate
BELFAST

Dear Gail,

Devolution of Policing and Justice Powers

As you know, the Assembly and Executive Review Committee met yesterday to consider a number of matters including the letter of 28 July 2008, from the First Minister and the deputy First Minister, in which they ask the Committee to undertake further work on the devolution of policing and justice powers. Following discussions, the Committee determined that it should, in the first instance, call the First Minister and deputy First Minister to appear before the Committee to explore what further work the First Minister and deputy First Minister consider the Committee might undertake.

I should also explain that, at its meeting yesterday, the Committee resolved to seek a fresh mandate from the Assembly in order to carry out any further work on the devolution of policing and justice powers. In this regard, the Committee will, next Tuesday, consider the terms of a Committee Motion with the intention of referring that Motion to the Business Committee for its consideration. In light of that decision, the Committee would find it helpful if the First Minister and the deputy First Minister were to appear before the Committee on 16 September 2008 at 11.00 hrs to explain, more precisely, what role they consider the Committee might fulfil. The Committee considers that such an engagement might usefully inform its subsequent deliberations on the terms of the Motion which it plans to table.

I look forward to hearing from you so that we can agree on the detailed arrangements.

I have copied this letter, for information, to Cathie White, Clerk to the Committee for OFMDFM.

Yours sincerely

Stephen J Graham
Committee Clerk
Assembly and Executive Review Committee

Letter from Gail McKibbin
12 September 2008

ofmdfm logo

Mr Stephen Graham
Clerk to Assembly and
Executive Review Committee
Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

12 September 2008

Dear Stephen

Devolution of Policing and Justice Powers

Your letter of 10 September which asked for the First Minister and deputy First Minister to appear before the Committee on 16 September refers.

Due to other unavoidable diary commitments on that date the First Minister and deputy First Minister regret that they are unable to accede to the Committee’s request.

However, they appreciate that the Committee is keen to make swift progress in seeking a fresh mandate from the Assembly in order to carry out the further work on the devolution of policing and justice powers which they requested in their letter of 28 July 2008. To assist the Committee in these deliberations the First Minister and deputy First Minister would be happy to meet with the Chair and Vice-Chair of the Committee prior to the Committee’s meeting on 16 September to discuss what role they envisage the Committee might fulfil.

Yours sincerely

Signed Gail McKibbin

Gail McKibbin

Departmental Assembly Liaison Officer

Letter to the first Minister
and deputy First Minister
19 September 2008

NIA Logo

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

19 September 2008

First Minister and Deputy First Minister
OFMDFM
Stormont Castle
Stormont Estate
BELFAST

Dear First Minister and Deputy First Minister,

Devolution of Policing and Justice Powers

a detailed list of issues which you agree that the Committee might usefully consider;
a further list of those issues that you have not yet reached any agreement on but which might be considered by the Committee; and
your assessment of the timing of any potential devolution of policing and justice matters.

I look forward to hearing from you in time for the Committee to consider your response at its next scheduled meeting on 30 September 2008.

I have copied this letter to the Chairperson of the Committee for OFMDFM.

Yours sincerely

Jimmy Spratt
Chairman
Assembly and Executive Review Committee

Letter from OFMDFM
22 September 2008

Letter to the First Minister
and deputy First Minister
8 October 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

8 October 2008

First Minister and Deputy First Minister
OFMdFM
Stormont Castle
Belfast
BT4 3TT

Dear First Minister and Deputy First Minister

Devolution of Policing and Justice Matters

I am writing in relation to your letter dated 28 July, and the Committee’s subsequent request on 10 September, to ask that you appear before the Committee in order to provide clarification on the issues you raised relating to the devolution of policing and justice matters and to explore what further work the Committee might undertake.

When the Deputy Chairperson and I met with you on 15 September, you agreed to consider the mechanisms by which you would provide us with a further list of those issues which you believe the Committee might usefully consider.

As you will be aware, and as well as asking you to submit a ‘list of issues’, the Committee also invited the leaders of the political parties represented in the Assembly to do likewise. So far the Committee has received responses from seven parties, but, in the course of its meeting yesterday, the Committee reiterated its desire to meet with you, urgently, in order to obtain clarification on the issues mentioned in your letter of 28 July.

I was also asked to extend a standing invitation to you to present further papers, including your list of issues as referred to in the paragraph above, and to come before the Committee, from time to time, in order to assist us in our work on the devolution of policing and justice matters.

Yours sincerely

Jimmy Spratt
Chairman

Letter from OFMDFM
9 October 2008

Letter from the deputy First Minister
13 October 2008

Letter to the First Minister
and deputy First Minister
14 October 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

14 October 2008

First Minister and Deputy First Minister
OFMDFM
Stormont Castle
Stormont Estate
BELFAST

Dear First Minister and Deputy First Minister,

Devolution of Policing and Justice Powers

The Assembly and Executive Review Committee met, today, to continue its discussions on the devolution of policing and justice matters. In the course of the meeting, the Committee agreed, amongst other things, a list of issues which it would look at and which need to be resolved pre-devolution. It also decided, by a majority decision, to seek to prepare a report on those issues in mid November 2008, and which would be tabled in the Assembly.

As you know, I have written to you on a number of occasions, previously, and, most recently, I extended a standing invitation for you to appear before the Committee to assist us in our work. Yet again, I was asked, today, to reiterate that invitation, particularly so that Members might seek clarity on issues mentioned in your letter of 28 July 2008 to me.

I have copied this letter to the Chairperson of the Committee for OFMDFM, for information.

Yours sincerely

Jimmy Spratt
Chairman
Assembly and Executive Review Committee

Letter from OFMDFM
15 October 2008

Letter from the First Minister
and deputy First Minister
8 November 2008

Stormont Castle
BELFAST
BT4 3TT

TEL: 028 9037 8158
FAX: 028 9037 8040
e-mail: ps.ministers@ofmdfmni.gov.uk

Mr Jimmy Spratt MLA
Chairperson
Assembly and Executive Review Committee
Room 428
Parliament Buildings
Stormont
BELFAST BT4 3XX 8 November 2008

Dear

Devolution of Policing and Justice Powers

We refer to your letter of 14 October 2008 inviting us to appear before the Committee.

We are available to attend on the morning of the 18 November.

Given that these issues are at a preparatory and preliminary stage, it seems to us to be appropriate that this meeting takes place in private session.

We will of course make ourselves available for a public session at a later stage in the process.

Yours sincerely

THE RT HON PETER ROBINSON MP MLA MARTIN McGUINNESS MP MLA
First Minister & deputy First Minister

Letter to the First Minister
and deputy First Minister
11 November 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

11 November 2008

First Minister and Deputy First Minister
OFMDFM
Stormont Castle
Belfast
BT4 3TT

Dear First Minister and Deputy First Minister

Devolution of Policing and Justice Powers

Thank you for your letter of 10 November 2008 in response to the ‘standing invitation’ extended to you to appear before the Assembly and Executive Review Committee to discuss matters relating to the devolution of policing and justice; it was considered by the Committee at its meeting today.

The Committee decided that the discussion should take place next Tuesday morning, in ‘closed session’. The Committee further decided that, in keeping with an earlier general decision, those political parties represented in the Assembly, but which are not represented on the Committee, should also be invited to have a Member present for the duration of the Committee’s discussions on policing and justice matters, including the afore-mentioned ‘closed session’. The Committee agreed that, if necessary, you should be accompanied by your respective ‘special advisers’.

All the parties represented on the Committee gave undertakings, today, to treat the discussions, next week, as ‘strictly confidential’. I intend to seek to have that commitment reiterated by everyone who takes part in, or who attends, in whatever capacity, the ‘closed session next Tuesday morning.

I envisage that the session might follow the normal convention whereby you would be invited to make a short opening statement and this would then be followed by a ‘question and answer’ session.

It is worth noting that, in deciding to agree to the discussions being held in ‘closed session’, reference was made to a meeting which the Deputy Chairperson, Raymond McCartney, and I had with you on 15 September 2008, the details of which were subsequently reported to the Committee, by us, when the Committee met on 16 September 2008. Indeed, following that Committee meeting, I wrote to you on 19 September 2008 (enclosed) to request that you provide

a detailed list of issues which you agree that the Committee might usefully consider;
a further list of those issues that you have not yet reached any agreement on but which might be considered by the Committee; and
your assessment of the timing of any potential devolution of policing and justice matters.

During the Committee meeting today, a number of Members indicated that it would be helpful if you were to respond to each of these points in advance of, or during the meeting, next Tuesday 18 November 2008, and I undertook to convey that message to you.

Finally, I would like to suggest that someone from your office should contact the Committee Clerk, Stephen Graham, as soon as possible, so that the detailed arrangements for your appearance before the Committee can be finalised.

I look forward to seeing you next week.

Yours sincerely

Jimmy Spratt
Chairman

Letter from the First Minister
and deputy First Minister
18 November 2008

Letter to the First Minister
and deputy First Minister
19 November 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

19 November 2008

First Minister and deputy First Minister
OFMDFM
Stormont Castle
Belfast
BT4 3TT

Dear First Minister and deputy First Minister

Devolution of Policing and Justice Powers

Thank you for your attendance at the Assembly and Executive Review Committee meeting on 18 November 2008, and for your enlightening contribution to the Committee’s further consideration of matters relating to the devolution of policing and justice. I want to highlight three particular matters.

First, as a result of discussions during the meeting, in closed session, it was apparent that there was a need for clarification, at least, on the ‘public consultation’ element which features in Group 5 of your ‘Process Paper’. Indeed, you gave an undertaking to provide the Committee with further information on that issue and I am writing to confirm that it would assist the Committee greatly, if you were to elaborate on the issue generally. More specifically, it would also be helpful if you were to indicate if you consider that the Committee has any role to play in relation to that issue.

Second, I know you will appreciate that the Committee did not have very much time to absorb the detail of the documents you left with us at the end of the closed session but, having had time to reflect, it seems to me that you envisage the Committee’s role will extend only to the relevant stages in the process and which are contained within Group 1, Group 2 and Group 4 of your ‘Process Paper’.

Having said that, it is clear to me that the Committee has a role to play in relation to the method by which a Minister with responsibility for policing and justice matters would be elected/appointed in the Assembly – as part of its consideration of issues in Group 2 of the ‘Process Paper’ (otherwise known to the Committee as the Category One List of Issues). But in order to do so, the Committee may need to take account of, and have regard to, the iteration, and outcome, of work you intend to carry out to identify a Ministerial candidate, as referred to in Stage 3 of the ‘Process Paper’. Therefore, in my view, there is a need for some greater clarity here, too.

Third, you also recognise the fact that there are roles for each of us, and, indeed, the Minister for Finance and Personnel, in relation to the funding allocation for any new department. Clearly, it would be useful for all of us to know what our respective roles are so that we can achieve maximum outcome, whilst avoiding replication.

At its meeting yesterday, the Committee considered a Committee Briefing Paper (enclosed) which sought to give some direction on how it might make progress on the three prominent themes in its Category Two List of Issues, one of which relates to financial matters. In the course of the deliberations, the Committee decided against writing to those 28 organisations, presently providing the range of policing and justice services, to invite their views on matters relating to the appointment of the Attorney General and judicial appointments and North/South and East /West relationships.

However, the Committee does consider that it would be useful to ask those 28 organisations for what might be described as a ‘financial stock-take report’, probably based on the five questions posed under Issue E of Committee Briefing Paper 14/08/09. At this point, it is perhaps worth explaining, that the Assembly Secretariat is exploring what expertise it might be able to call on, on behalf of the Committee to, firstly, ‘quality assure’ these five questions and, secondly, carry out an analysis of the responses and present relevant findings to the Committee, in due course. Therefore, it seems to me that it would be wise for us all to approach this work in a co-ordinated, and structured, way. Furthermore, it strikes me that there is an urgent need to ensure that this happens as soon as possible, and immediately following any financial discussions you have with the Secretary of State for Northern Ireland, and others. With that in mind, you will wish to note that it is my intention to call on the Secretary of State (and to ask him to call on the Lord Chancellor) to ensure that everyone co-operates, fully, with the Committee’s investigations.

Finally, I have no doubt that the Committee welcomes, and will wish to make the best possible use of, your offer to provide whatever assistance you can to allow us to fulfil the mandate the Assembly has conferred upon us and, so, I expect to write to you again.

Yours sincerely

Jimmy Spratt
Chairman

Letter from OFMDFM
20 November 2008

Letter to the First Minister
and deputy First Minister
24 November 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

24 November 2008

First Minister and deputy First Minister
OFMDFM
Stormont Castle
Belfast
BT4 3TT

Dear First Minister and deputy First Minister

Devolution of Policing and Justice Matters

Appointment of the Lord Chief Justice and the Judicial Appointments Commission

On 19 November, I wrote to you to seek clarification on three particular matters, namely ‘public consultation’, ‘election/appointment of a Minister’; and ‘financial matters’. There is also a fourth issue on which the Committee agreed it required some more clarification from you. It relates to the fourth bullet point in your letter of 18 November 2008 about ensuring the independence of the judiciary, and comments which were made when we discussed this, and related other matters, in closed session.

Essentially, the Committee would like you to elaborate on the extent of the independence you envisage the judiciary might expect to enjoy, and, how, to what extent, and to whom, in the Assembly, the judiciary will be held to account.

I look forward to hearing from you.

Yours sincerely

Jimmy Spratt
Chairman

Letter to the First Minister
and deputy First Minister
3 December 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

3 December 2008

First Minister and deputy First Minister
OFMDFM
Stormont Castle
Belfast
BT4 3TT

Dear First Minister and deputy First Minister

Devolution of Policing and Justice Matters

The Assembly and Executive Review Committee met, yesterday, to continue its discussions on the devolution of policing and justice matters. In the course of the meeting, Members recalled two letters which I had to sent to you on the 19 and 24 November, respectively, and which sought clarification on a number of issues, namely:

public consultation
election/ appointment of a Minister
financial matters; and
the independence of the judiciary.

As you are aware, the Committee is seeking to conclude its consideration of its Category One List of Issues by 9 December 2008, and so I know you will recognise the virtue of a prompt response from you on these matters.

In the circumstances, it would be helpful if someone from your office was to contact the Committee Clerk, Stephen Graham, before the end of this week, with an indication of when a formal response can be expected.

I look forward to hearing from you, officially, in due course.

Yours sincerely

Jimmy Spratt
Chairman

Letter from the First Minister
and deputy First Minister
12 December 2008

Letter from the First Minister and deputy First Minister 12 December 2008

Appendix 6

Correspondence to,
and from, the NIO

Contents

Letter to Peter May, NIO – 20 November 2008

Letter to the Secretary of State (for Northern Ireland) – 20 November 2008

Letter to the Secretary of State (for Northern Ireland) – 3 December 2008

Letter from the Secretary of State’s Private Office – 3 December 2008

Letter from the Secretary of State – 3 December 2008

Letter from the Secretary of State – 14 December 2008

Letter to Peter May, NIO
20 November 2008

Mr Stephen Graham
Clerk to Assembly and
Executive Review Committee
Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

Tel: (0)28 9052 1784
Fax: (0)28 9052 5917
Email:stephen.graham@niassembly.gov.uk

20 November 2008

Mr Peter May
Northern Ireland Office
Block B
Castle Buildings
Stormont Estate
BELFAST
BT4 3SG

Devolution of Policing and Justice Matters

As you know, the Assembly and Executive Review Committee has a fresh mandate to consider, further, matters relating to the devolution of policing and justice.

At its meeting on 18 November 2008, the Committee resumed its consideration of an overall list of issues, reached decisions on a number of fronts and sought clarification on some other aspects.

It is likely that the Chairperson will be writing to the Secretary of State in the next few days on financial, and other, issues. However, there are two particular issues which, I consider, are best directed to you.

First, and you will recall this from the Committee’s original Inquiry, you, and your colleagues, confirmed, notably during evidence you gave to the Committee on 7 February 2008, that you would share various ‘memoranda and protocols’ with the Committee at some point. The Committee has picked up on that issue again and I would be grateful if you were to address the matter and respond as soon as possible.

Second, I believe it would be useful for the Committee to have an update on how the various work streams are progressing. An early reply on this point would also be greatly appreciated.

Yours sincerely

Stephen J Graham
Committee Clerk

Letter to the Secretary of
State (for Northern Ireland)
20 November 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

Tel: (0)28 9052 1784
Fax: (0)28 9052 5917

Rt. Hon. Shaun Woodward, MP
Secretary of State for Northern Ireland
Block B
Castle Buildings
Stormont Estate
Belfast
BT4 3SG

20 November 2008

Dear Secretary of State

Devolution of Policing and Justice Matters – Financial, and Other, Considerations

As you may know, on 23 September 2008, the Northern Ireland Assembly conferred on the Assembly and Executive Review Committee a mandate to give further consideration to matters relating to the devolution of policing and justice.

You will recall that, during the Committee’s original Inquiry into the Devolution of Policing and Justice Matters [Report: 22/07/08R (Assembly and Executive Review Committee)], you, and your officials, very helpfully provided a range of financial, and other, information. My purpose in writing to you, now, is fourfold.

First, and at the direction of the Committee, I am inviting you to ‘refresh’ the financial information that was supplied, previously.

Second, I wish to give you notice of my intention to write to the twenty eight organisations listed in a letter dated 15 October 2007, from your Principal Private Secretary to the Committee Clerk. I propose to do so in order to gather some independent financial information. In this regard, the Committee has agreed, in principle, that it wishes to establish the extent of the financial provisions required for a department which would exercise a range of policing and justice functions in a post devolution situation.

Although the questions below have yet to be ‘quality assured’ and are, potentially, subject to some adjustment, I would expect all the agencies, bodies and organisations which, presently, receive their budgetary allocation from either OFMDFM, the NIO or any other Whitehall Department, to specify their respective funding source, or sources, and also answer the following questions:

(i) What was your organisation’s estimate of requirements for 2008/2009?

(ii) What is your budget allocation for 2008/2009?

(iii) What are your budgetary pressures in 2008/2009?

(iv) What is your estimate of requirements for 2009/2010, 2010/2011 and 2011/2012?

(v) What are you facing by way of legacy issues or new pressures; how much do you expect these are likely to cost; and when will you have to meet those pressures?

In relation to (v) above, I would expect to see details of the issues or pressures, including an assessment of whether, or not, they are ‘inescapable’.

On behalf of the Committee, I am calling on you - and asking you to call on the Lord Chancellor – to insist that all the organisations under your respective control, cooperate, fully, with the Committee’s investigations.

I want to make it clear that I am pursuing this approach so as to secure the best possible, and most accurate, assessment of the financial pressures which would face a department with responsibility for policing and justice matters. I am also content to put on the record the rationale behind this approach. It is quite simple and I would urge you to convey this to your officials. I regard this as a ‘one-off opportunity’ to reveal all the known, or anticipated, financial pressures facing the ‘policing and justice family’. I am sure that any reticence to do so on the part of officials will not be lost on them. I cannot imagine that they would relish the prospect, in a post devolution situation, of appearing before a Statutory Committee of the Assembly to explain why, ‘on their watch’, they had failed, previously, to indicate the full extent of the financial pressures they faced. By the same token, I can assure you that I appreciate the general pressures, and difficulties, around public sector spending at the present time.

Third, it would be helpful if you were to confirm that the twenty eight organisations referred to earlier in this letter, continue to represent the entirety of those organisations which would be ‘transferred’ if the Assembly were to resolve that a range of policing and justice matters should cease to be reserved matters.

Fourth, in terms of any request there may be to devolve a range of policing and justice matters, and whilst this is essentially a matter for the Assembly, I would welcome your views on what changes you consider might be required to the Assembly’s Standing Orders, given that those Standing Orders were prepared by you under the provisions of the Northern Ireland (St Andrews Agreement) Act 2006, and which became to Standing Orders of the Assembly on 8 May 2007.

Yours sincerely

Jimmy Spratt
Chairman

Letter to the Secretary of
State for Northern Ireland
3 December 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

3 December 2008

Rt. Hon. Shaun Woodward, MP
Secretary of State for Northern Ireland
Block B
Castle Buildings
Stormont Estate
Belfast
BT4 3SG

Dear Secretary of State

Devolution of Policing and Justice Matters

The Assembly and Executive Review Committee met, yesterday, to continue its discussions on the devolution of policing and justice matters. As you will recall, I wrote to you on 20 November 2008 seeking information and assistance on a number of issues, including an update on financial information previously contained in a letter dated 15 October 2007 (during the Committee’s original Inquiry into the Devolution of Policing and Justice Matters), and calling on you - and asking you to call on the Lord Chancellor – to require all the organisations under your respective control, to cooperate, fully, with the Committee’s investigations.

As you may know, the Committee is seeking to conclude its consideration of its Category One List of Issues by 9 December 2008, and so I know you will recognise the virtue of a prompt response from you on these matters.

It is also the case that the Committee Clerk wrote, separately, to officials in NIO, on 20 November 2008 to ask for information on ‘memoranda and protocols, and an update on how the various work streams are progressing.

In the circumstances, it would be helpful if someone from your office was to contact the Committee Clerk, Stephen Graham, before the end of this week, with an indication of when formal responses can be expected.

Yours sincerely

Jimmy Spratt
Chairman

Letter from the Secretary
of State’s Private Office
3 December 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and Executive Review Committee
C/O Room 428
Parliament Buildings
BELFAST
BT4 3XX

Your Reference:
Our Reference: MC/08/868

Date: 03/12/2008

Dear Mr Jimmy Spratt MLA,

This is to acknowledge receipt of your letter dated 03/12/2008 to the Secretary of State for Northern Ireland regarding Devolution of Policing and Justice Matters.

A reply will be forwarded to you as soon as possible.

Yours sincerely

Nichola Crowley

Secretary of State’s Private Office

Letter from the Secretary of State
3 December 2008

Letter from the Secretary of State 3 December 2008

Letter from the Secretary of State
14 December 2008

Appendix 7

Other Correspondence

Contents

Letter to the Speaker – 13 May 2008

Letter from the Speaker – 8 September 2008

Letter from James H. Allister, QC, MEP – 22 September 2008

Letter to Members of the Committee – 25 September 2008

Letter from Alex Attwood, MLA– 26 September 2008

Letter to Alex Attwood, MLA– 29 September 2008

Letter to James H. Allister, QC, MEP – 7 October 2008

Letter from James H. Allister, QC, MEP – 8 October 2008

Letter To Members of the Committee – 8 October 2008

Letter to James H. Allister, QC, MEP – 16 October 2008

Letter to the Alliance Party – 17 October

Letter to the Green Party – 17 October

Letter to the Independent Health Coalition – 17 October 2008

Letter to the Progressive Unionist Party – 17 October 2008

Letter from James H. Allister, QC, MEP – 20 October 2008

Letter from David Ford, MLA – 20 October 2008

Letter to the Democratic Unionist Party – 22 October 2008

Letter to the Alliance Party – 22 October 2008

Letter to the Sinn Fein Party – 22 October 2008

Letter to the Social Democratic and Labour Party – 22 October 2008

Letter to the Ulster Unionist Party – 22 October 2008

Letter to Members of the Committee – 4 November 2008

Letter to the Speaker
13 May 2008

Mr Jimmy Spratt MLA
Chairperson of the Assembly and
Executive Review Committee
c/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

Mr William Hay
Speaker, Northern Ireland Assembly
Parliament Buildings
STORMONT
BELFAST BT4 3XX

13 May 2008

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

You will recall that the Assembly debated, and approved, the afore-mentioned report earlier this year and that you forwarded a copy of the report to the Secretary of State for Northern Ireland together with the official transcript of proceedings, in plenary.

As you know, it was the Assembly and Executive Review Committee which conducted the Inquiry and subsequently published the report on behalf of the Assembly. You will also be aware that it is the convention for Committees to monitor progress on the implementation of recommendations contained in reports of the Assembly.

Having considered the matter at its meeting on 6 May 2008, the Assembly and Executive Review Committee asked me to write to you to suggest that, if you found it helpful, the Committee would assume responsibility for monitoring progress on the implementation of twenty-eight of the forty recommendations contained in the report. These relate to recommendations for which the ‘lead responsibility’ rests with the political parties, the NIO or OFMdFM. Any progress on a further seven recommendations (29, 30, 32, 33, 34, 35 and 39) is dependent upon devolution of a range of policing and justice powers and, consequently would fall, in due course, to any Statutory Committee which might be formed if there were to be devolution of those powers.

However, it is also the case that there are five recommendations which fall to the Assembly to act on. Again, if you would find it helpful, the Assembly and Executive Review Committee is willing to take the lead in conducting the relevant reviews and investigations, in due course, in relation to Recommendations 9, 12, 26 and 27. Recommendation 25, which relates to the need to develop a Standing Order to require, and enable, the Attorney General for Northern Ireland to report to the Assembly has already been referred to the Committee on Procedures.

Yours sincerely

Jimmy Spratt

Chairperson

Letter from the Speaker
8 September 2008

The Speaker
William Hay MLA
Room 40
Parliament Buildings
Belfast, BT4 3XX
Tel: +44 (0) 28 9052 1130
Fax: +44 (0) 28 9052 1959
email: speaker@niassembly.gov.uk

Mr Jimmy Spratt MLA
Chairperson,
Assembly and Executive Review Committee
Room 428
Parliament Buildings
Belfast
BT4 3XX

8 September 2008

Dear Mr Spratt

Thank you for your letter of 13 May 2008 on behalf of the Assembly and Executive Review Committee, seeking my views on the suggestion that your Committee should monitor progress on the implementation of the recommendations contained within the report of its Inquiry into the Devolution of Policing and Justice Matters. You also explained in your letter that the Committee is willing to take the lead in conducting a number of reviews and investigations recommended within that report.

While I, as Speaker, generally seek to avoid direct involvement in the business of Assembly Committees, I have given the matters raised by the Committee some thought.

The work done by your Committee in preparing the report in question has undoubtedly made a significant contribution to the Assembly’s preparations for the possible devolution of policing and justice matters, and it is indeed important that the recommendations be taken forward. Should the Assembly and Executive Review Committee wish to assume responsibility for doing so I would however suggest that it should first seek advice on the extent to which its remit would allow it to do so. In particular, the Committee should consider Standing Order 59 and the resolution of the Assembly of 4 June 2007 (made under that Standing Order) which called on it to report on certain matters in relation to the devolution of policing and justice. I know that the Assembly’s Legal Service will be willing to advise the Committee accordingly.

Yours sincerely

William Hay MLA

Letter from James H. Allister, QC, MEP
22 September 2008

Ref: JA/SM/Assembly/3903

Mr Stephen J Graham
Committee Clarke
Assembly and Executive Review Committee
Northern Ireland Assembly
Parliament Buildings
Belfast
BT4 3XX

22 September 2008

Dear Mr Graham

If and when the committee next meets, could you assure me that it will directly address the issue of how and when all powers pertaining to judicial and policing matters, including the following:

the appointment of the Attorney General for Northern Ireland;
recommending who should be appointed as senior judges (i.e. Lord Chief Justice and Lord Justices of Appeal);
appointment of the NI Judicial Appointments Commission;
appointments up to and including High Court Judges, Tribunal Chairmen and coroners;
the right to require the NI Judicial Appointments Commission to reconsider any recommendation for a judicial appointment;
powers of removal from judicial office;
the appointment and removal of the NI Judicial Appointments Commissioner will be removed from OFMDFM.

I seek this assurance in part because throughout its last deliberations these issues were never addressed, indeed, if anything, endorsement issued for OFMDFM involvement. I, therefore, look forward to reversal of this stance and removal of all intended policing and justice powers from an office where two of the ministers have terrorist convictions.

Yours sincerely

James H Allister QC MEP

Letter to Members of the Committee
25 September 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

25 September 2008

Dear Member

Devolution of Policing and Justice Matters

You will recall that at its meeting on 16 September 2008, the Committee agreed 3 main actions as follows:

(1) to seek a fresh mandate from the Assembly to involve itself in the further consideration of the devolution of policing and justice matters;

(2) that the First Minister and the deputy First Minister should be invited to submit a list of issues which they consider the Committee might usefully examine; and

(3) that the leaders of each of the political parties represented in the Assembly should, likewise, be invited to submit lists of issues which they consider the Committee might usefully examine.

As regards (1) above, the Assembly resolved to grant the Committee a fresh mandate during proceedings on Tuesday 23 September 2008.

In relation to (2) and (3) above, the letters I sent to the First Minister and the deputy First Minister, and to the leaders of the political parties represented in the Assembly invited them to submit their lists in time for consideration by the Committee at its scheduled meeting on 30 September 2008. As you know, the Committee Clerk normally issues the meeting packs on the Thursday preceding the Committee meeting.

Therefore, today, in the absence of responses from the First Minister and the deputy First Minister, or any of the leaders of the political parties, and following consultation with the Deputy Chairperson, I instructed the Clerk to advise Members that, since there was no substantive business to consider, the meeting of the Committee on 30 September 2008 should be postponed. This letter formalises that instruction.

I also asked the Clerk to contact OFMDFM and the offices of the party leaders to encourage them to submit replies by 1 October 2008 so that the relevant papers would be available for issue on 2 October for the Committee to consider at a meeting on 7 October 2008.

Yours sincerely

Jimmy Spratt

Chairman

Letter from Alex Attwood, MLA
26 September 2008

Jimmy Spratt MLA,
Chair,
Assembly and Executive Review Committee,
Parliament Buildings,
Stormont,
Dundonald,
Belfast.

26 September 2008

Dear Chair

I refer to the decision to cancel the meeting of the Assembly Executive and Review Committee scheduled for Tuesday 30 September.

I submit that the Committee meeting should proceed on the following grounds:-

1) The Clerk had prepared a paper outlining a future work programme in respect of which no party dissented. In itself, this provides a basis for discussion;

2) As you know, I outlined at the meetings of the 16th and 23rd of September respectively, a series of issues which the SDLP wished to have discussed. The matters included: an assessment of the OFM/DFM letter of 28 July; the requirement that a future Justice Ministry should be a full Ministry and any Minister should be a full and equal member of the Executive: that no dismissal power should reside in the Office of OFM/DFM; the requirement for the appropriate sharing of security service intelligence and oversight of its work; North South Justice requirements etc. More than other parties, the SDLP outlined a range of views and concerns which, in itself, would be basis for discussion;

3) In particular you will recall that I urged the Committee at its last meeting to undertake dedicated work on securing guarantees around sharing of MI5 intelligence and oversight of its activities, mindful of the Panorama programme in relation to the Omagh Bombing which had been screened the previous night. I know that you and the Vice-Chair would agree that this matter is of enough importance for the AERC meeting to proceed.

4) While other members did not contribute extensively to the discussion on a work programme, you will recall that a DUP member did request that work should be undertaken on the financial aspects of the devolution of justice and policing.

I appreciate that your predecessor as AERC Chair, your Deputy and you have demonstrated a wish to protect the authority and role of the committee. However, given the issues outlined above, the many matters already raised at the committee, the fact that OFMD/DFM on their own behalf and/or on behalf of their parties have brought matters to the attention of the committee etc, there are substantial grounds for a meeting to proceed. If parties submit papers, a meeting may have added value but a meeting would, in any case, have real value.

I would also request that First Minister and Deputy First Minister be asked to clear their dairies to appear before the Committee on Tuesday next, by which stage it will be three weeks since the first request for their attendance at committee was made.

I am copying this letter to the Deputy-Chair and Mark Durkan MP MLA.

Yours faithfully,

Alex Attwood

MLA West Belfast

Letter to Alex Attwood, MLA
29 September 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

29 September 2008

Alex Attwood, MLA
Room 325
Parliament Buildings
Stormont
BELFAST
BT4 3XX

Dear Alex

Assembly and Executive Review Committee Meeting

Thank you for your letter of 26 September 2008 in which you requested that I re-consider my earlier decision to postpone the Committee meeting scheduled for 30 September 2008.

The decision to postpone the meeting was taken in good faith. When the Committee met on 16 September 2008 there was general agreement amongst Members that, in anticipation of receiving a fresh mandate from the Assembly, the primary purpose of the next meeting of the Committee would be to ‘scope’ and agree a ‘list of issues’ which the Committee wished to consider.

Additionally, and as you know, there has been a convention in the Committee to circulate and discuss ‘party position papers’ only when all such papers have become available. It seems reasonable to apply the same convention in relation to the most recent call for the submission of ‘lists of issues’ from the First Minister and deputy First Minister and the leaders of the political parties represented in the Assembly. By last Thursday, no replies had been received.

It was further suggested at the meeting on 16 September 2008 that, in order to provide the Committee with a single document containing a composite list of responses, the Committee Clerk should seek to develop a ‘matrix’ which recorded details of the replies which had been received and which also incorporated Committee Briefing Paper 03/08/09, previously prepared by the Clerk.

However, I should point out that the Committee might well wish to leave scope to add to the list of issues as it proceeds with its work.

By adopting such an approach, you, and others, will be provided with the opportunity to register views such as those expressed at 2), 3) and 4) of your letter.

In the circumstances, I am satisfied that my earlier decision remains the correct one.

I have discussed and agreed the terms of this response with the Deputy Chairperson.

Yours sincerely

Jimmy Spratt

Chairman

Letter to James H. Allister, QC, MEP
7 October 2008

Stephen J Graham
Clerk to the Assembly and
Executive Review Committee
c/o Room 428
Parliament Buildings
Stormont Estate
Belfast BT4 3XX

James H. Allister, QC, MEP
139 Holywood Road
BELFAST
BT4 3BE

Your ref :JA/SM/Assembly/3903
7 October 2008

Dear Mr Allister,

Thank you for your letter of 22 September 2008.

On Tuesday, 23 September 2008, the Assembly granted the Assembly and Executive Review Committee a fresh mandate to give further consideration to the devolution and justice powers, as follows

“That, in accordance with Standing Order 59(4) (b), this Assembly refers the following matters to the Assembly and Executive Review Committee:

(b) consideration of any other matter relating to the devolution of policing and justice matters.”

At its meeting today, the Committee had an initial discussion on the list of issues which it might wish to examine as part of its further consideration of the devolution and justice powers. In the course of those discussions, Members took note of the seven specific points contained your letter, and which relate to the future location of particular powers pertaining to judicial and policing matters.

You may also be interested to know that the Committee decided it would progress its further consideration of the devolution of policing and justice matters by way of a Committee Inquiry, or Report, the terms of reference for which have yet to be decided.

Yours sincerely

Stephen J Graham

Committee Clerk

Letter from James H. Allister, QC, MEP
8 October 2008

Ref:JA/KC/Assembly/3903-1

Mr Stephen J Graham
Committee Clarke
Assembly and Executive Review Committee
Northern Ireland Assembly
Parliament Buildings
Belfast BT4 3XX

08 October 2008

Dear Mr Graham

Thank you for your reply on behalf of the Executive Review Committee. I’d be obliged if you’d keep me informed as to the terms of reference for the intended inquiry or report, as and when agreed.

Also, I note by oversight I omitted from my letter of 22 September 2008 my belief that all powers to nominate members to the Policing Board should be removed from OFMDFM. Please draw this matter to the Committee’s attention.

Thanking you.

Yours sincerely

James H Allister QC MEP

Letter to Members of the Committee
8 October 2008

Mr Jimmy Spratt MLA
Chairman of the Assembly and
Executive Review Committee
C/o Room 428
Parliament Buildings
Stormont Estate
Belfast
BT4 3XX

8 October 2008

To Members of the Assembly & Executive Review Committee

Dear Member

Devolution of Policing and Justice Matters – Composite List of Issues

You will recall that at its meeting on 7 October 2008, the Committee agreed that parties should further consider the Composite List of Issues (copy enclosed), and that Members would report back, on behalf of their parties, at the next meeting scheduled for 14 October 2008.

The following are amongst the matters you will need to consider and report on:

1. The issues which are matters exclusively for ‘party political’ resolution and which might be discussed and agreed within the Committee.

2. That Members of the Committee have the authority to report to the Committee on behalf of their respective political parties.

3. The timeframe for agreeing the list of issues to be considered and the timeframe for completing the consideration of those issues.

4. What issues, if any, require wider consultation?

5. Whether party leaders and the First Minister and deputy First Minister should appear before the Committee, and when.

Yours sincerely

Jimmy Spratt

Chairman

Letter to James H. Allister, QC, MEP
16 October 2008

Letter to the Alliance Party
17 October

Letter to the Alliance Party 17 October

Letter to the Green Party
17 October

Letter to the Green Party 17 October

Letter to the Independent Health Coalition
17 October 2008

Letter to the Independent Health Coalition 17 October 2008

Letter to the Progressive Unionist Party
17 October 2008

Letter from James H. Allister, QC, MEP
20 October 2008

Ref: JA/SM/Assembly/3903-2

Mr Stephen J Graham
Committee Clarke
Assembly and Executive Review Committee
Northern Ireland Assembly
Parliament Buildings
Belfast BT4 3XX

20 October 2008

Dear Mr Graham

Thank you for your reply on behalf of the Executive Review Committee dated 16th October2008. As you say, I had asked to be kept informed as to the terms of reference for the intended inquiry or report, as and when agreed. You inform me that the Committee agreed a “list of issues” which it would look at and which need to be resolved prior to devolution of policing and justice powers. I would be obliged if you could inform me as to what is on this “list of issues”.

Thanking you.

Yours sincerely,

James H Allister QC MEP

Letter from David Ford, MLA
20 October 2008

Letter to the Democratic Unionist Party
22 October 2008

Letter to the Democratic Unionist Party 22 October 2008

Letter to the Alliance Party
22 October 2008

Letter to the Alliance Party 22 October 2008

Letter to the Sinn Fein Party
22 October 2008

Letter to the Social Democratic
and Labour Party - 22 October 2008

Letter to the Ulster Unionist Party
22 October 2008

Letter to the Ulster Unionist Party 22 October 2008

Letter to Members of the Committee
4 November 2008

Appendix 8

Recommendations
from Original Report

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.

Recommendation 2

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

Recommendation 3

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

Recommendation 5

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

Recommendation 7

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

Recommendation 8

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

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.

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.

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.

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.

Recommendation 15

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

Recommendation 16

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

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.

Recommendation 18

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

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.

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.

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.

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)[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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

[1] The Committee noted that the draft Criminal Justice Order will introduce a new system of ‘Parole Commissioners’ which will replace the current ‘Life Sentence Review Commissioners’

[2] The Committee noted that the Judicial Appointments Ombudsman will now transfer to the Department having responsibility for policing and justice and not OFMdFM as proposed in the NIO letter of 15 October 2007.

Session 2008/2009

First Report

Assembly and Executive Review Committee

FIRST REPORT ON THE ARRANGEMENTS FOR THE DEVOLUTION OF POLICING AND JUSTICE MATTERS

TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT, THE MINUTES OF EVIDENCE AND OTHER RELEVANT DOCUMENTS

Powers and Membership

Powers

Membership

Contents

Report

Appendicies

Appendix 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5

Appendix 6

Appendix 7

Appendix 8

Executive Summary

Summary of Recommendations

Recommendation 1

Recommendation 2

Recommendation 3

Recommendation 4

Recommendation 5

Recommendation 6

Recommendation 7

Recommendation 8

Recommendation 9

Recommendation 10

Recommendation 11

Recommendation 12

Recommendation 13

Recommendation 14

Recommendation 15

Introduction

A Fresh Mandate

The Committee’s Approach

The Category One List of Issues and the associated recommendations

The department and the departmental structure

Recommendation 1

Recommendation 2

Recommendation 3

Recommendation 4

Recommendation 5

Recommendation 6

The powers to be transferred, and the timing thereof

Reserved matters to be transferred

Recommendation 7

Excepted matters

Timing of the devolution of policing and justice matters

Recommendation 8

The appointment of a Minister

Recommendation 9

Recommendation 11

Recommendation 12

The Minister’s role in, and relationship with, the Northern Ireland Executive

Assembly procedures

Recommendation 13

Recommendation 14

Recommendation 15

Financial provisions

Memoranda of Understanding and Protocols

The Category Two List of Issues

A

B

C

D

E

F

G

H

I

J

K

L

The Category Three List of Issues

A

B

FIRST REPORT ON THE
ARRANGEMENTS FOR THE DEVOLUTION OF POLICING AND JUSTICE MATTERS

Minutes of Proceedings
Relating to the Report

Tuesday, 9 September 2008
Room 144, Parliament Buildings

Tuesday, 16 September 2008
Room 144, Parliament Buildings

Tuesday, 7 October 2008
Room 144, Parliament Buildings

Tuesday, 14 October 2008
Room 144, Parliament Buildings

Tuesday, 21 October 2008
Room 144, Parliament Buildings

Tuesday, 11 November 2008
Room 21, Parliament Buildings

Tuesday, 18 November 2008
Room 21, Parliament Buildings

Tuesday, 25 November 2008
Room 144, Parliament Buildings

Tuesday, 2 December 2008
Room 21, Parliament Buildings

Tuesday, 9 December 2008
Room 21, Parliament Buildings

Monday, 15 December 2008
Room 21, Parliament Buildings