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Inquiry into Devolution of Policing and Justice Matters

  25 September 2007
Members present for all or part of the proceedings:

Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson


Mrs Siobhan Broderick ) Northern Ireland Court Service
Mrs Jacqui Durkin )
Mr David Lavery )
Mrs Laurence McAlpine )
Mr David Thompson )

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

The Chairperson:
That is almost the way in which the Scottish model has progressed.

Mr Lavery:

Mr McFarland:
Mr Lavery, you have been engaged in talks with the Northern Ireland Office about how all that should proceed. If the Assembly agreed to it, that could all happen next May. Can you take the Committee through the discussions that you have been having and explain how things are progressing in the great plan for May? Is the system likely to be ready by then, if the Assembly gives its consent?

Mr Lavery:
There is much work to be undertaken, and a complex series of project work streams is being led by the Northern Ireland Office. NIO officials are best placed to give further updates to the Committee, because they are controlling the process. However, the Court Service is participating in all those work streams to ensure that it is ready to plug into any new devolved structure. Those include: human resources and personnel matters, finance; IT; and all other associated work streams.

There is also a lot of work to do on subordinate legislation, which my colleague Mrs McAlpine is dealing with. As the Northern Ireland Court Service is not part of the Northern Ireland Office, certain special arrangements will have to be made to bring it to an end as a separate department and transfer its functions into the justice Department. We would then emerge, phoenix-like, still the Court Service, but within the devolved context. Many work streams are going ahead, and I know that the Secretary of State has a clear objective that the necessary work should be completed in time for May 2008, if that date were to prove politically opportune.

Mr Attwood:
I have several questions for the Court Service representatives. I want to ask about money. I recently received a letter from the Minister of Finance and Personnel confirming that, at this stage, no conversations have taken place with the NIO or the Treasury about financial issues in the event of the devolution of justice, which surprised me, given that we are now nearly in October and that this inquiry may conclude its consideration of this matter in four or five months.

I am anxious about money. Alan McFarland and other members of the Policing Board, retired or otherwise, know that Her Majesty’s Inspectorate of Constabulary (HMIC) has proposed, under pressure from the NIO in my view, to reduce police numbers to 6,200 down from the current complement of 7,500 in or around 2010 or 2011. That has clear policing and budgetary consequences, and I cannot imagine a situation in which the NIO and the Treasury would not, in the event of the devolution of policing, try to claw substantial funds back to London.

Mindful that the Court Service budget for the next three years, which you kindly provided to us, is basically static and will therefore, in real terms, diminish year-on-year over that period, do you have any concerns that the Treasury and the NIO are examining the Northern Ireland Court Service in an effort to claw back funds in the event of the devolution? Do you have any concerns about funding if devolution occurs next year, given that policing and justice take up between 15% and 18% of the entire Northern Ireland budget? In the conversations at the NIO to which Alan McFarland referred, has finance featured at all, and if so, in what terms?

Mr Lavery:
Funding is obviously a practical consideration, and I am sure that the Assembly and this Committee will want to be satisfied that sustainable funding will be available to allow it to assume responsibility for the policing and justice system. In relation to process, the Department of Finance and Personnel is represented on the programme board that oversees the work streams that I mentioned in my answer to Mr McFarland. The Northern Ireland Treasury, if you like, is at the table at the planning stage for the creation of any future Department of justice. I am sure that it will want to ensure that if justice is transferred, there is a sustainable budget for the system.

The Northern Ireland Court Service is just one of a number of agencies that would form part of any future devolved justice system. We know the amount of funding that we have been given until the end of this decade. Under the comprehensive spending review we have been allocated funding for the Court Service for 2008-09, 2009-10 and 2010-11. It is a very challenging settlement, as can be seen in the figures that we shared with the Committee. It is a flat settlement.

That means that in order to live within our budget, we will have to find efficiencies in how we do our business. We have an advantage in that we have invested a great deal in the IT systems in the courts, and that will allow us to make such efficiencies. Our integrated court operations system is probably one of the most advanced IT platforms for court administration anywhere in the world. It is now fully on stream, and it will allow us to introduce efficiencies and contain costs.

If I had a concern about any aspect of my budget, looking ahead to the remainder of the decade, it would be about legal aid. It is a less predictable budget because it is demand-led; it is partly a matter of how many cases there are and the fees that are charged for them. As the Committee will understand, it would take, for example, only one or two very long-running, complex criminal Crown Court trials to affect our budget significantly. However, the legal-aid budget for the remainder of the decade has been settled by the Treasury at about £65 million a year. It will be a challenge to keep within that figure. We would be keen to discuss with our colleagues in the Ministry of Justice in England, and with the Treasury, the adequacy of the funding before any transfer of the legal-aid system to the Assembly took place.

Mr Attwood talked about clawback. I am certainly not conscious of any effort on the part of the Treasury or the Government in London to claw back funds from us. Our primary concern is whether the funding is adequate, because I assume that, were devolution of justice powers to take place next year, the financial settlement, the budget for the Court Service and the other parts of the justice system, would be transferred into the Northern Ireland block grant. I take reassurance from the fact that the Department of Finance and Personnel, which is the Northern Ireland treasury, will be at the table during the planning for devolution, and I am sure that it will be alert to the budgetary issue.

Mr Attwood:
I hope that that is the case.

My second question relates to an issue that the Chairperson probed you on. You said in your evidence that whatever model may be chosen for the future Court Service — agency or otherwise — as a civil servant, you could work with it. Interestingly, you then said that your personal opinion was that integration with the Northern Ireland Civil Service would be useful for staff development purposes. In your oral evidence to the Committee you highlighted what you understand to be the views of the Lord Chief Justice. I do not want you to get on the wrong side of Sir Brian Kerr, but if you were to make a personal call on the ideal model or structure for the future Court Service — similar to the one that you made about how your staff’s interests could be best accommodated in the future — what would that call be?

Mr Lavery:
I note your advice not to get on the wrong side of the Lord Chief Justice — I am conscious of that on most days of the week. It is probably better that I remain slightly agnostic on the subject, because it is a continuum. I have explained the options as alternative models, and, at their simplest, that is how they might be presented. However, it is possible to arrive at an arrangement whereby the Court Service would still be part of the justice system but would have what could be called an arm’s-length relationship with the justice Department. It may be possible to design a form of agency that is sufficiently at arm’s length from the day-to-day running of the Justice Department to allay some of the Lord Chief Justice’s concerns, without moving so far along the continuum that it becomes a separate Department in its own right.

For example, the Public Prosecution Service is one of the criminal justice agencies that would be devolved, becoming what is known as a non-ministerial Department: it would be a Department in its own right, but it would not be under the day-to-day superintendence of a Minister. That is what I think the Chief Justice is arguing for. The Irish Court Service is technically a non-ministerial Department.

However, as I told the Chairman, there would be accountability linkages. If public money were given to the Court Service in the future, there would have to be accounting mechanisms for that money. The chief executive of the Court Service would become the accounting officer and would have to be accountable to the Assembly for the use of that money.

There would also have to be other mechanisms to ensure that the courts could not simply go off in whatever direction they chose. If there are to be benefits from the devolution of justice, one of those would be in making the justice system work in a more coherent and joined-up way, instead of having lots of different agencies working semi-autonomously. It would be unfortunate if one of the agencies were to be floated off, quite independently.

In the South of Ireland, and under the proposals for Scotland, it is envisaged that courts services — even if they were non-ministerial Departments — would have to have regard to policies and strategies developed by the justice Minister and the justice Department. The legislation establishing the Irish Courts Service and the proposals published by the Scottish Executive for the Scottish Court Service both speak about allowing the justice Minister to set some sort of strategic direction to which the courts services would have to have regard.

We could make any of those models work in practice. It would be a case of striking the right balance between appropriate recognition for the independence of the courts and the judiciary on one hand, and having appropriate accountability to the public, through the Assembly and the justice Department, on the other.

Mr Attwood:
Mr Lavery has raised some issues that could usefully be pursued by the Assembly’s research staff as regards justice models in the South of Ireland and in Scotland. The issue is very difficult, and there is concern, when viewed from a party-perspective, that one party or another will attempt to encroach on the independence of justice and policing arrangements in the North. It is an acute issue, and I have sympathy for the Lord Chief Justice. On the other hand, am I correct in thinking, Mr Lavery, that you sit on the Criminal Justice Board in the North and that judges do not?

Mr Lavery:
Yes, that is correct.

Mr Attwood:
As I understand it, judges are entitled to sit on the Criminal Justice Board and should be doing so. There is a concern that the judiciary wants to keep its distance from arrangements in the North in a way that is unhealthy. It should have relationships with broader society, not just with political-accountability mechanisms. Would anyone like to comment on that issue?

I note that the Court Service is sitting in on all of the work streams relating to the devolution of justice actually becoming operational. Claire Salters and Peter May claim, in their useful paper, that that seems to be an extensive piece of work. Are there any issues arising from those work streams that you want to flag up to the Committee regarding rubbing points between the interests of the Court Service and the intentions of the NIO, or anything that has given you any anxiety?

Mr Lavery:
The work on the project is proceeding in a very workmanlike fashion. There are no rubbing points that I want to highlight. There is a lot of work to get through in the time available, but I do not see a lack of agreement or coherence in the way in which the work is being approached. My only concern is the one that I mentioned in response to the earlier point about money, which is that all of the projects, or all agencies, will have a cost, and we will need to be absolutely clear that the funds transferred are sufficient to provide sustainable resources for the new justice system.

You mentioned judicial independence. The Committee will be aware that there is already a statutory guarantee of judicial independence in legislation. The intention is that a concordat on judicial independence will be developed when the justice system is devolved, along with a concordat on prosecutorial independence.

The statutory framework for devolution has a lot built in to require public authorities, Departments and Ministers to respect the independence of the judiciary and not to seek to influence the decisions of the courts in individual cases.

The Lord Chief Justice will speak for himself on the question of judicial attendance at, and participation in, groups such as the Criminal Justice Board. He may give some thought to the architecture of a devolved justice system and the sort of groups in which it may be appropriate for judges to participate. There are certain groups and committees that are concerned with managing the system, where the involvement of judges or heads of the prosecution service — people such as the Chief Constable and the Director of Public Prosecutions — would not be appropriate. However, there are others at a more political level at which it is arguable that their voices should be heard. We would want to work that through in a devolved context.

Mr McFarland:
Alex Attwood has triggered a modified train of thought. How difficult will it be? Alex and I sat on the first policing board, and for long time — 30 years — politics here was a dirty business with which the Northern Ireland Office and the policing and justice systems did not trouble themselves.

Psychologically, how difficult will it be for the Court Service and the judiciary to readjust to politicians, for whom they did not have a high regard, being in charge of legislation? We legislate for what the judges will judge on and we provide the money. Has that sunk into the system yet? For a long time the police did not understand; they thought that they would be able to operate without politicians annoying them.

The policing, judiciary and prosecution services are vital — the system would collapse without them. Has the court system understood what it is moving into? The court system is operationally independent, but the law and its funding are now being administered by people whom it previously did not hold in high regard. Perhaps it is an unfair question, but how long will it take for that psychological change to sink in?

Mr Lavery:
All those questions are unfair. [Laughter.] That goes with the territory.

That is an interesting and important point, because the justice system has been under Westminster; devolved, it will be positioned much closer to Ministers and politicians who are part of the community; it will be a different political environment and will occupy a different political space.

The classic, and therefore the safe, answer to Mr McFarland is that the Assembly will make the law and the courts and judges will apply and operate it. The rubbing points tend to be on sentencing and what happens from day to day. That is where one encounters the grey area between the independence of judges making decisions in individual cases and a form of legitimate scrutiny by the public and the Assembly on whether sentencing, for example, adequately reflects society’s concerns.

I am sure that that will be as much of a challenge for a devolved justice system as it is in any other part of these islands or, indeed, has been under direct rule.

To answer Mr McFarland’s question the easy way, the Court Service looks forward to working in a devolved environment. Like all other justice agencies, for a long time the service was behind the curtain of security. When I took up my current position in the Court Service, I was struck by the fact that its name did not appear on the list of tenants of its building — it was used to being invisible. Since then, it has consciously set out to become public facing, opening an information centre in Windsor House. As the Committee will be aware, there is a European Commission information centre on one side of the front door of Windsor House and a Court Service information centre on the other side.

The Court Service has developed a strapline, which is its mission statement:

“Serving the community through the administration of justice.”

Its staff have always done that. Staff in local courts meet the public daily and are good at public service. However, the system has had to gradually rethink its position as a public service, which, I am sure, all the justice agencies have been doing. If it is the Assembly’s will to bring the Court Service into a devolved context, we, as civil servants in the courts administration, certainly look forward to that.

I am conscious that I am hogging the discussion.

Mrs Jacqui Durkin ( Northern Ireland Court Service):
Like any change, this one must be managed carefully with staff. They must be informed about business continuity and about what the change will mean, particularly to them. I am focused on there being business as usual, and that, as progress is made towards a devolved environment, the courts and the services that they support will be run as they always have.

As David has mentioned, it is fair to say that the staff look forward to change, to local administration and to informed decisions being made on local issues. At present, we work for Westminster Ministers. The staff and I have been focused on providing high-quality customer service to whoever uses the courts: legal professionals, members of the public, families who are in dispute and, of course, the judiciary. We are focused on continuing to do that regardless of the governance and accountability arrangements.

The Chairperson:
Mr Lavery, you touched on sentencing. Do you envisage that the new Department will be responsible for sentencing tariffs? Does the Court Service have a view on that?

Mr Lavery:
I am not sure whether the Court Service has a view as such on it. For the assistance of the Committee, and as colleagues will be aware, the legislature sets the level of maximum sentences. The courts tend to be faced with a maximum possible sentence when they make a decision on a particular case. The Lord Chief Justice has said in some of his public statements that within the parameters that are set by the legislature, there is a technical process by which to apply the facts and circumstances of a particular case in order to establish the correct tariff. At present, the judiciary determines tariffs through mechanisms such as guideline judgements that are issued by the Court of Appeal and work that is carried out by the Judicial Studies Board, which advises those who pass sentences on the technical aspects of the task.

Other countries and, indeed, other parts of the United Kingdom have different mechanisms. In England, the Sentencing Guidelines Council develops guideline ranges of sentences that are to be applied by the courts. However, the facts and circumstances of individual cases must still be taken into account. Therefore, I do not envisage that the Court Service will consider itself as having any role in sentencing. However, a justice Department might decide that the Court Service should have a voice on the subject.

Mr I McCrea:
The time is not right to devolve policing or justice powers. As justice is your area, do you have an opinion on whether those powers should be devolved or remain under the direct rule Administration?

Mr Lavery:
They say that fools rush in, but — having worked in a devolved environment in the Office of the First Minister and the Deputy First Minister during the previous Assembly and, therefore, having been on both sides of the fence — my personal opinion is that, in principle, devolution brings public services and governance closer to the community. In principle, the devolution of policing and justice is a desirable objective. As for the timing of its achievability and its appropriateness, that is an entirely political matter on which I cannot offer a view.

The Chairperson:
However, given the preparatory work that has been done, do you have any concerns about the practicality of meeting a deadline of May 2008?

Mr Lavery:
No. If it must be done, it will be done. Laurene McAlpine, who manages the legislative aspect of that, might wish to add something.

Mrs Laurene McAlpine ( Northern Ireland Court Service):
A number of streams of work are being directed towards the practical and legislative steps to devolving justice powers, all of which are progressing well. The legislative steps are important, but they are on track for Orders in Council and subordinate legislation to be ready for enactment in May 2008. There are no technical obstacles.

Mr McCartney:
I want to return to the various models for devolution, although Alex covered most aspects of that. You said that you remain agnostic about the best model. As the Committee progresses with collating evidence and forming an opinion, will you be in a better position to say whether the agency or non-ministerial model is better?

Mr Lavery:
We will certainly follow the Committee’s deliberations closely, because it will take evidence from key players in the justice system from next week onwards. Our views will evolve over time. However, the practical point is that which I made to the Chairman: even if we were to decide that the Courts Service of Ireland or the Scottish Court Service provided the better model, we would have to take two steps. First, the Northern Ireland Court Service would have to be devolved and made into an agency. Secondly, the Assembly would have to bring forward legislation to reposition the Court Service at arms length from the justice Department. In a way, it will be necessary to do what the Scots have done, which is to reach the agency model first, and then move beyond it, if the Assembly considers that that is the right course.

I remain agnostic because there are infinite ways of doing it. At some point, the Court Service will cease to be an agency and will follow a different model. However, you could quite easily set up the Court Service as an agency that would have many of the mechanisms that the Courts Service of Ireland has, such as having judges and representatives of the community on the management board, so that is not run by civil servants alone.

Our Court Service might achieve quite a lot of what the Irish model achieves, although, technically, it would still be an agency. We will need to do a lot of technical work, and if the Committee wants further evidence on that, we will be happy to return to it, as will our Minister, David Hanson.

Irrespective of that, will you recommend that the staff should not be separate from the rest of the Civil Service?

Mr Lavery:
I see no need for them to be separate from the Civil Service. We are a small department with approximately 750 staff, many of whom are women who live and work in local communities and do not want to work elsewhere. If, on promotion, they had the chance to work in, for example DHSS it would give them more opportunities. The Court Service used to be jealous of its position as a separate civil service, and that position gave us a degree of independence. However, on balance, I have told my staff that they should not be afraid of becoming part of the wider Civil Service, as opportunities, benefits and advantages for career progression would be available.

The Chairperson:
Mr Lavery, the Committee meeting has kept you away from a conference in Scotland today, which is being addressed by the Lord Chief Justice and touches on some of the issues that the Committee is covering. We appreciate your time and attention.

Mr Lavery:
You refer to the annual courts services conference. Four courts services are represented: one in England and Wales, one in Scotland, our Court Service and the Courts Service in the South.

The Chairperson:
And the criminals. I hope that this session does not drive you to drink.


Mr Attwood:
Mrs Justice Susan Denham’s recommendations on the Courts Service and the judiciary in the South were based on an environment in which Ministers for Justice, Equality and Law Reform in the South have, down the years, had sometimes unfettered powers. I refer to the relationship with the Garda Siochána and the Minister for Justice’s resistance to creating higher levels of accountability around the Garda. There has always been a sense in the South that Ministers for Justice, in particular, have had undue influence over the administration of justice. Court cases and tribunals have taken place about that. Therefore, we do not compare like with like. Although similar concerns might have existed under the old Stormont regime, the new culture in the North means that the opportunity for undue political influence is not comparable to the fears that might existed in the South when Mrs Justice Denham made her report.

Mr Lavery:
The justice system was in a different place in the early 1990s, when Justice Denham chaired the Courts Services Commission, which created the Irish Courts Service. Although I have no expertise to comment, the political context was unique and it affected policing and other issues as well as the courts. However, the principal driver for the Irish Courts Services Commission, which Mrs Justice Denham chaired, was the poor state and administration of the courts system and the lack of investment in it. The Irish Courts Service has said that, as part of the Department of Justice, Equality and Law Reform, it was always the poor relation . It was the least invested in and the least improved part of the Department. The real driver, as is clear from the reports of Justice Denham’s commission, was to try to make the Courts Service in the South a modern, public service with proper investment and a proper public-service ethos. In the North, before the 1978 legislation to create the Court Service — which came into existence in 1979 — there were three courts services. The High Court was run as an imperial service from London. Under direct rule, the High Court, the County Court service and the Magistrate Court Service were brought together under what was then the Administration of Justice branch of the Northern Ireland Office.

However, the justice system remained a bit of a patchwork quilt. One of the main drivers behind the creation of the Northern Ireland Court Service was to bring all those services together in order to create a unified courts administration that was properly invested in and that had good public-service standards.

We hope to do the same with tribunals. There are 26-odd tribunals in Northern Ireland, many of which are run by individual Departments. If the Executive agree, those tribunals will be brought together to create a more unified service. Rather than have 26 tribunals being run in 26 different ways, the idea would be to standardise them.

Although the political context was unique in Ireland in the 1990s, it was driven to an extent by the fact that the court system was in a poor state. The Irish court system was the poor relation because of a lack of investment, but it has now been transformed, and it benefits from having a buoyant economy. There is no shortage of investment in the Irish court system, and it has produced a more modern public service.

The Chairperson:
Will the review of public administration and the potential reconfiguration of local government have implications for the way in which the Court Service does its business?

Mr Lavery:
We are examining the RPA closely, and we are reviewing our court estate. The court map of Northern Ireland derives from the local authority map, and the Court Service must ensure that it has the right facilities in the right places. We also want to achieve coterminous boundaries, in order to have the same administrative boundaries as are used for policing, local government, and so on. We are watching the RPA evolve before we make any further investment decisions.

Mrs Durkin:
We are carefully considering how the council boundaries might move, because the court map is mapped to council boundaries and to police district command unit boundaries. Depending on the outcome of the RPA, we will seek to ensure that we have at least one, if not two, major court venues in each boundary area, and that those venues are capable of covering all types of court business, including criminal, civil and family business. We are looking closely at the other stakeholders to ensure that the structure of the estate and the services that we provide are cohesive with their boundaries.

The Chairperson:
What is your view on the arrangements for judicial appointments?

Mr Lavery:
Our current arrangements flow from the recommendations of the Review of the Criminal Justice System in Northern Ireland which was published in 2000. That review set the blueprint for the justice system for some time. It recommended that an independent Northern Ireland Judicial Appointments Commission (NIJAC) be established, and that innovation has been one of the great successes of the review.

Although it must appoint judges on the basis of merit — in other words, it must pick the best candidates — the NIJAC has a statutory responsibility to have a pool of candidates that reflects the community, and, ultimately, a judiciary that reflects the community. That system is innovative. In a way, other parts of these islands are catching up with Northern Ireland. England now has its Judicial Appointments Commission, and, in many senses, it followed our lead in doing so.

It will be interesting to observe in a few years’ time what difference our Judicial Appointments Commission has made. Will we be able to measure whether there are, for example, as a result of the NIJAC’s activities, more women on the judiciary than had been the case historically? It will be some years before patterns emerge, because we do not appoint a huge number of judges at any level in a typical year. Therefore, it will take a while for the NIJAC to have an impact.

The current system is more open and publicly transparent, and it is one in which people can have confidence if they aspire to a judicial career. The Court Service also appointed a judicial appointments ombudsman to whom people can bring a complaint, or concern, if they feel that their application, or candidacy, was not properly attended to, or treated fairly.

Although there is now a lot more openness and transparency in the system, that is not to say that it did not produce good appointments in the past. The system then was less open and less comprehensible. I am a fan, as the Committee can probably sense, of this public commission.

The Chairperson:
Would you like to say anything about your future relationship with the Public Prosecution Service (PPS) in the context of devolution?

Mr Lavery:
The Court Service has a close working relationship with the PPS because it is one of our main customers, and we are very conscious that all agencies have to work in a joined-up way if courts are to be sufficiently responsive. The public expect cases to be dealt with speedily, and sometimes the justice system does not achieve that. The PPS has gone through huge changes from being a small department of the Director of Public Prosecutions to being a huge department. A lot of issues emerge when an organisation is scaled-up in such a relatively short space of time. I know that Jacqui Durkin and her colleagues in court operations are in close and regular contact with us on how the PPS can help the Court Service get cases into court in a timely fashion. Perhaps Jacqui would like to say something about that.

Mrs Durkin:
There is a lot of co-operation at local level, and at a more strategic level through the Criminal Justice Board. There is a range of court user groups at each main court venue and, like other stakeholders, the PPS plays an integral part in working together to reduce avoidable delays in the courts, making sure cases progress, are listed and are heard in a timely fashion. The Court Service wants to continue to foster that good relationship with the PPS as it is a very important part of the justice system and a key stakeholder, as David Lavery said, in that any criminal business coming to court is now coming through the PPS.

The Chairperson:
Paragraph 10 of your written submission states that the Government will consult with the First Minister and the Deputy First Minister about how the Court Service should relate to a future justice Department and on the different models for court administration. Do you know when that consultation is likely to happen?

Mr Lavery:
That will probably take place at the end of the process and will be informed by the deliberations of the Assembly and Executive Review Committee. What that really means is that if this Committee has a view on a particular model for the courts and the judiciary, the Court Service will try to put the flesh on the bones. Given the role that the First Minister and Deputy First Minister will play in determining issues such as the number of Departments and ministerial offices, they will be involved in those deliberations. The consultation is likely to be at the latter end of the planning phase, and the Court Service will look to this Committee to see if, for example, a consensus emerges for a preference for courts to be closer to the justice system, or conversely, at arms length. The Committee’s deliberations will help inform the planning work of the Court Service. As I said earlier, optimistically, either system could be made to work.

The Chairperson:
Paragraph 5 of your submission refers to an agreement with the Secretary of State that tribunals will transfer to the Court Service and that that is now subject to the agreement of the Northern Ireland Executive. Are we talking about the administration of tribunals, and if so, is there a timeframe for that?

Mr Lavery:
Yes. My colleague, Siobhan Broderick, is leading that programme. The Secretary of State announced in March 2006 that tribunals, many of which are run by individual Government Departments, should be brought together into a unified tribunal service, and that the Court Service, because it is in that type of business, would be asked to take over the running of tribunals. Paragraph 5 refers to a decision that was made under direct rule, so it would be appropriate to go the Executive to ask them to validate, or endorse, that decision.

We hope to persuade them that there would be benefits from a more coherent administrative system if they did that.

There are also concerns that the tribunals are not ECHR-compliant. If, for example, a claimant applied for a social security benefit and was turned down by a Department — the Department for Social Development in this case — he will appeal to an appeal tribunal. He will go to Cleaver House, for instance, but the tribunal will be run by the Department that made the decision. Although the tribunals operate independently, it is felt, from a legal standpoint, that they are not sufficiently independent and that they should be in a different political space. In the autumn, it is our intention to invite the Executive to agree that our objective should be to create a unified tribunal service, which would become part of the Court Service. We hope to achieve that during the next one to two years. Some tribunals are small and could be transferred quickly, but others are larger, and it will take a longer time to transfer them.

If justice powers are devolved, the transfers will be made quickly, because it will simply be a case of transferring functions — a machinery of Government change. For instance, a Department could simply order that the appeals tribunal be transferred to the Court Service. Without the devolution of justice, we will have to enter into agency arrangements and agree with each Department that the Court Service will manage the tribunals for them. In the meantime, it has been decided that any new tribunals will be created within the Court Service. A tribunal was established on parking adjudication, and there was to be one established on domestic rates. Any new tribunal will not be run by a Department: it will be run by the Court Service.

Mr McCausland:
You said that under the proposed arrangements there would be greater consistency in how tribunals are run. Will there also be cost savings?

Mr Lavery:
I am interested in looking at how it could be rationalised. However, efficiencies could be achieved if a couple of dozen of little independent organisations were brought together, and that is what I expect will happen in the longer term. As I said earlier, we have an advanced IT system in place for supporting court administration, and we would like to assess whether it could be used for tribunals. Regardless of whether the administration relates to a court case or a tribunal, it is about managing the information that comes before a judge or a chairman and managing the information that leaves the hearing, so the IT system is one area in which efficiencies could be introduced. A lot of the duplication of work can be removed, and when information is keyed in, it stays in the system, electronically. That will produce efficiencies.

The costs involved must be made transparent. A lot of the costs are almost disguised by the fact that the tribunals, especially the smaller ones, are embedded in Departments. It is difficult to identify their actual running costs, because they draw a lot of their support from the Department of which they form part. The Court Service will be alert to ensuring that we do not take on something for which there are not sufficient resources. However, rationalisation ought to produce efficiencies and slightly reduce costs.

The Chairperson:
Will that include all tribunals such as the lands and water tribunals?

Mr Lavery:
Yes. All tribunals are part of this review. I am conscious that I am hogging the limelight. Siobhan Broderick is head of tribunal reform, and she will say something about the range of tribunals that are involved.

Mrs Siobhan Broderick ( Northern Ireland Court Service):
There are about 17 Northern Ireland tribunals in a number of Departments. Among the larger tribunals are the Industrial Tribunal and the Fair Employment Tribunal. Then there is the Appeals Service, which David mentioned, with the Northern Ireland Planning Appeals Commission and the Water Appeals Commission. There are also a lot of smaller tribunals such as the Lands Tribunal, which has already been mentioned, that is made up of traditional office holders and about five or six staff. There is also a Special Educational Needs Tribunal.

I am sure that you are all familiar with the wide range of work covered by tribunals. Members of the public go to tribunals more often than they go to courts and, therefore, it is more important that the tribunal standards are similar; that they are more coherent in how they approach users, and that they are more customer-focused.

The Chairperson:
What would be the resource implications if all of the tribunals were to be incorporated into the Court Service, and how would staff numbers increase?

Mrs Broderick:
About 200 staff are involved — I can write to the Committee giving specific numbers. There are approximately 100 staff in the Appeals Service; about 60 or 70 in the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET) and a sprinkling of staff in the other tribunals.

Mr Lavery:
We hope that the tribunal function will come to the Court Service together with the staff and the budget. We are a small department with about 750 staff, and in theory we should end up with about 1,000 staff if the tribunals join us.

The Chairperson:
I presume that bringing the tribunals under one umbrella organisation will create efficiencies.

Mrs Broderick:
The focus of the reform is on ensuring that tribunals are independent from sponsoring Departments. That should make them more customer-focused. Many tribunals are not, and that is due to economies of scale, which has been discussed. It would also improve the services and their efficiency, but I do not necessarily mean that efficiency is —

The Chairperson:
No, it is not the primary driver.

Mrs Broderick:
A better service, by its very nature, should be an efficient service. The aim is not to save jobs in the first instance.

The Chairperson:
Is this development similar to anything that is happening in Scotland or the Republic of Ireland?

Mrs Broderick:
England and Wales have introduced unified tribunal administration as a result of the Leggett review of tribunals in 2001. The Tribunals, Courts and Enforcement Act 2007 was introduced earlier this year in England and Wales, which provides for a unified tribunal structure as well as a unified administration. In essence, there would be one tribunal with lower and upper tiers. A claim would be submitted to the tribunal and it would identify where that claim should go.

Mr Lavery:
The English set-up has a courts service and a tribunal service, both of which are under the Lord Chancellor. We think that, due to economies of scale, the two should be brought together into a courts and tribunals service here.

The Chairperson:
Will the name of the service change?

Mr Lavery:
We think that we should rebrand — to use a fashionable term — and bring everything together under the courts and tribunal service. Tribunal staff are quite positive about the change and how it would benefit them. They feel that it would be attractive to join a wider service that does the type of work in which they have expertise, instead of being a small part of a bigger department.

The Chairperson:
Could that affect the timing of devolution?

Mr Lavery:
No. It ought to be neutral. We can proceed with the change whether there is devolution or not. We could do it more quickly if there were devolution, as it would simply be a matter of moving all of the functions across to the Court Service. If that happens before devolution, then agency agreements would be needed, which is clumsy, but could be done. However, it ought not to have any impact on the trajectory or timetable for devolution of justice.

Mr McCartney:
Would that include all of the tribunals, including the two that are under the NIO?

Mrs Broderick:
Yes. Those tribunals will transfer over prior to devolution, via the machinery of government section. As they are the responsibility of the Secretary of State for Northern Ireland, and our Minister will, ultimately, be the Secretary of State for Justice, we can transfer those services more easily.

The Chairperson:
Thank you, Siobhan. You have been very helpful.

Mr Attwood:
As the evidence session comes to a close, I am tempted to ask what might be viewed as being more political questions. However, if you could help us it would be very useful.

As chief executive of a senior justice agency in the North, and mindful that you would work with any model of a devolved ministry for justice, and given the fact that there will be a devolution project, funding issues and various complexities, do you think it would be better to have a free-standing ministry for justice, or, as some people may argue, one that is taken into the Office of the First Minister and the Deputy First Minister?

What would be better for efficiency, effectiveness and management?

Mr Lavery:
I do not have a view on that that would assist the Committee, other than to observe that the justice system is a big and complex machine; it is quite a task to make it work in a joined-up manner. The transfer of responsibilities from the Home Office to the new Ministry of Justice in England has created issues — that has not exactly been a tidy redesign.

There are benefits to having a coherent Department in charge of all aspects of the justice system. One of the benefits of devolution may be to make the justice system work in a more coherent and joined-up manner. Agencies such as the police, the prosecution or the courts tend to do their own thing. Getting them to work together with a shared set of objectives and principles is desirable.

As for where those responsibilities should fit politically, I do not have a view to offer. It could be a separate justice Department, or it could be positioned elsewhere; but there will be a heavy workload. If an existing Department were given that responsibility, it would certainly form the dominant part of that Department’s work.

Mr Attwood:
Although it was sensible that the criminal justice review recommended that the Office of the First Minister and the Deputy First Minister should have the responsibility to sign off on judicial appointments — except for the Lord Chief Justice, which is still the responsibility of London — that could cause problems. A recent example is the non-appointment of a Commissioner for Victims, owing to whatever is or is not happening in the Office of the First Minister and the Deputy First Minister. The appointment of judges could certainly be deemed to be as important or as controversial. Do you have any view on what was a well-intentioned recommendation, but one that could result in all sorts of difficulties?

Mr Lavery:
I take some reassurance from the fact that, owing to the way in which the legislation is drafted, the First Minister and the Deputy First Minister — or, at present, the Lord Chancellor — do not have a lot that they can do on recommendations for judicial appointments, other than to agree to them or send them back for reconsideration.

The legislation obliges the Minister or Ministers to whom the recommendations go from the Northern Ireland Judicial Appointments Commission (NIJAC) to accept the recommendation. Alternatively, the Minister or Ministers can send the recommendation back to NIJAC for further consideration if they have some concerns. If NIJAC, having reflected on the concerns, is minded to stick with the recommendation that it made, the law requires that the Minister or Ministers accept the recommendation.

Therefore, unlike a public appointment, there is a lot less room for manoeuvre or disagreement. The legislation has been well designed to avoid any type of obstruction, or even political interference, in decisions.

The Chairperson:
Thank you. We have covered the issues well. Thank you, Mr Lavery and your colleagues, for attending this meeting, and giving us your time, particularly as you might have been somewhere else.

Mr Lavery:
Thank you very much Chairman.

The Chairperson:
We may call on you again to assist us in the research that we may wish to undertake on the Scottish and Irish justice models, which Alex mentioned. I also thank the Hansard team.