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Inquiry into Devolution of Policing & Justice Matters

2 October 2007

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

Sir Brian Kerr ) Lord Chief Justice
Ms Alison Houston ) Lord Chief Justice’s Office
Mr Simon Rogers )

Mr Barry Gilligan ) Northern Ireland Policing Board
Sir Desmond Rea )
Mr Trevor Reaney )

The Chairperson (Mr Donaldson):
You are very welcome, my Lord, and I welcome your colleagues Alison Houston and Simon Rogers. I invite members to declare any relevant interests. I declare an interest as a member of the Privy Council, and as a member of the Northern Ireland Policing Board.

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

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

The Chairperson:
Thank you, members.

On behalf of the Committee, I thank you, my Lord, for offering to give oral evidence to the Committee, in addition to the written submission that it has received from you. This is a significant occasion for the Northern Ireland Assembly and, I hope, also for you. We are aware that, previously, neither you nor any of your predecessors have appeared before locally elected representatives at Stormont.

I am aware that you have business to attend to this morning and that you will need to leave by 11.35 am, which is when the Committee is due to hear evidence from the Northern Ireland Policing Board.

I invite you to begin your presentation with a short opening statement. That will be followed by questions from members. I remind the Committee that the terms of reference for this inquiry include, in the following order: the matters to be transferred, the ministerial models, and the timing and preparations for devolution.

I know, my Lord, that you wish to confine your remarks to matters related to the structure of the Northern Ireland Court Service, as well as some of the changes that are already provided for in legislation concerning the judiciary — for example, those related to judicial appointments. Your written submission also touches on timing and preparations. Members may wish to elaborate a little on those comments.

The Lord Chief Justice (Sir Brian Kerr):
Thank you, first of all, for your warm words of welcome. I am delighted to be here. I should say at the outset that I am grateful for the chance to address the Committee on the matter of the arrangements for the Court Service after the devolution of justice powers.

I confess that I have read, with a little bemusement, reports in the press that I am to be quizzed by the Committee or that I am to take a rare turn in the witness box. In fact, I hazard that I am probably one of the few people in this room who has actually given evidence from a witness box. However, I do not visualise my appearance before the Committee as an occasion for quizzing or confrontational cross-examination, but rather as an opportunity for a fruitful and constructive exchange, which will be not only of mutual benefit to the Committee and the judiciary, I hope, but will inform the public on a topic which is — or, at least, should be — of interest to us all.

When I have concluded my brief opening remarks, I shall be happy to deal with such questions as I can on the issues that I have touched on already in the letter from my office to your Committee of 30 July, and on what I have to say this morning.

Before I begin, may I again introduce Simon Rogers, who is my Principal Secretary, and Alison Houston from my office. They have worked with me on what I have to say this morning and on the submission that was made on 30 July.

It goes without saying that I am anxious to help the Committee in any way that I can. I hope that I will be able to answer most of the queries that the subject that I am about to address may prompt. If, however, there are questions that require consideration or, perhaps, a more elaborate answer than I can give extempore, I hope that you would find it helpful for me to supply supplementary material in writing.

I have already referred to the letter of 30 July. We also sent the Committee some material on the experience of other jurisdictions, which I hope has been of assistance in its deliberations to date. If we can help further, we would naturally be anxious to do so.

I hope that the Committee will forgive me if I start with a truism. I have no doubt that all of the members of the Committee accept that judicial independence is a cornerstone of democracy. The importance of that central and critical element of a fully functioning and healthy democracy cannot be overemphasised. Inasmuch, however, as the independence of the judiciary must be accorded its proper respect, so the deference due to the roles of the other two institutions of government — the legislature and the executive — must not be neglected. A proper understanding of the respective roles of each of the organs of government and an acute insight into the perimeters of their powers and functions is vital to the successful relationship that should exist among them.

The need to recognise and preserve the independence of the judiciary was, no doubt, the reason that that fundamental constitutional principle found statutory expression in the explicit and prominent guarantee enshrined in the Constitutional Reform Act 2005. That Act enjoins not only the First Minister, the Deputy First Minister and Northern Ireland Ministers to adhere to and uphold the principle of judicial independence; it requires them and all those:

“with responsibility for matters relating to the judiciary or otherwise to the administration of justice” —

— to refrain from seeking to influence particular judicial decisions through any special access to the judiciary.

Of course, while the independence of the judiciary must necessarily set the context for relationships among the various arms of government, it does not preclude interaction between them. I hope that my presence before the Committee can be taken as a clear acceptance on the part of the judiciary of the value of contact between us, provided, of course, that there is a clear understanding and acknowledgement on the part of all concerned — judges and politicians alike — of the roles that each of us play and of the areas into which we must not stray.

The report by the House of Lords Select Committee on the Constitution published on 26 July this year captures that point neatly. That Committee, as you will know, was examining relations between the executive, the judiciary and Parliament. Paragraph 27 of the report stated that:

“The other constitutional principle of central importance in governing the relationships between the judiciary, the executive and Parliament is that of the ‘independence of the judiciary’. This does not and should not mean that the judiciary have to be isolated from the other branches of the State. Nor does it mean that the judiciary … need to be insulated from scrutiny, general accountability for their role or properly made public criticism of conduct inside or outside the courtroom.”

Judges are not troubled by the need for them to be accountable. After all, because of our systems of appeals, no judge can expect that his or her decisions will be free from the most painstaking scrutiny in as public a forum as it is possible to imagine.

However, accountability must take place in its proper context and should not imperil the essential concept of judicial independence.

It is important that it should be recognised that the need to preserve that concept is not as a defence for judges or as a means for them to forestall or deflect scrutiny. It is, as I said, a cornerstone of our democracy and it is as important for every citizen of our society as it is for members of the judiciary. That notion was well expressed by Sir Igor Judge, the senior president of the Queen’s Bench Division in England and Wales, in his evidence to the House of Lords Select Committee on the Constitution:

The independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral — not on one side or the other — coldly applying the law that applies to your case. So although people sometimes think that when we defend judicial independence we are simply defending our own corner … that is not the case … The issues which arise here are of great importance to every member of the public.

I hope, therefore, that members of the Committee will accept that when I place particular emphasis on this point, it is not for the purpose of shielding judges from unwanted scrutiny or criticism. Rather, it is because the entire basis for such exchanges as may legitimately take place between the judiciary and the other arms of government must be clearly understood from the beginning, so that a productive and suitable relationship between us can develop. It is important that members should understand that we, as judges, recognise that there are matters that fall uniquely within your province and on which it would be entirely inappropriate that we should comment. Thus, for instance, the Committee will not receive observations from me on whether there should be two ministries or one, or whether there should be two Ministers or one. That, it seems to me, is a matter of policy on which a political decision must be taken. It is not something that I, as a judge, should comment on.

However, it is right that I should comment on the arrangements for the establishment of the Court Service, as that will impact directly on the judiciary and on how we do our work. Therefore, the most substantive part of the submission made on my behalf in the letter of 30 July, and my remarks today, concentrate on the structural arrangements for the Court Service on devolution.

I hope that the Committee will not be surprised to learn that I have given a good deal of thought to that question, and I have discussed it with colleagues in other jurisdictions, particularly England and Wales, Scotland, and the Republic of Ireland. It is also a topic that I raised and considered with colleagues during a meeting of Chief Justices at the recent Commonwealth law conference in Kenya. Indeed, as members will know, I was invited to meet the Committee last week on a day when I was in Scotland discussing proposals with colleagues there.

Professor Robert Hazell, director of the constitution unit at University College London, was questioned by the House of Lords Select Committee on the Constitution on the issue of an autonomous court administration. He said that:

“there is a recent trend throughout Northern Europe to introduce greater separation of powers between the executive and the judiciary, and as part of that to give the judges greater responsibility and control for managing the court service”.

That experience was echoed frequently at the recent Commonwealth law conference. I heard accounts from the Chief Justices of the various countries represented of the arrangements in their individual jurisdictions.

As a result of my various discussions and my reading about the issue, I have reached the view that the most appropriate arrangement for the Court Service would be a body at arm’s length from the Government under a board chaired by the Lord Chief Justice — in other words, a non-ministerial Department. Now, I do not suggest that there are not other possible models. The Committee will have seen from the papers that I submitted that different approaches have been taken in some jurisdictions, but I have concluded that the non-ministerial Department is the best option, for reasons that I hope to explain shortly. As I have said, that model has been adopted in many other jurisdictions in the Commonwealth, it is planned for Scotland, and it has been in place for some years in the Republic of Ireland. A 2006 report by the Canadian Judicial Council recommended precisely the type of model that I propose to the Committee.

I believe that that model provides the maximum safeguard for judicial independence, and it will also provide administrative efficiency. I recognise that if there were to be such a non-ministerial Department, legislation would be required. I appreciate that it may not be feasible to introduce such legislation before devolution, and that makes the deliberations of the Committee all the more important. I hope that the legislation to provide what I firmly believe is the optimal arrangement will not be long delayed, following devolution.

That legislation should enshrine the independence of the board, but it should also be recognised — in statute, if necessary — that the board will not deal with policy, which, as I have said, would be a matter for Government. I also understand that there must be accountability to the executive for the money provided by the legislature to the Court Service. I freely accept, for instance, that it should be incumbent on the board to produce a strategic plan with key objectives, outputs and strategies, including the use of resources.

I further accept that that strategic plan should be submitted to the Minister for approval. I anticipate that it would be a requirement that the board report to the Minister annually, and would provide information on performance of functions and such other information as the Minister may reasonably request. One would also expect that staff numbers and grading would be a matter for the board to agree with the Minister, as well, of course, as the budget. Finally, one would also anticipate that the Ministry of justice would be represented on the board.

I shall summarise the advantages of the model that I have proposed.

First, it reflects the appropriate constitutional position by preserving the independence of the judiciary.

Secondly, it will provide a more efficient service. The judges and others on the board, including representatives of the Department, the profession, and suitably qualified independent members, would set the strategy for the service. They would — I respectfully suggest — be best equipped to know what the service requires.

Thirdly, staff working for the service would know clearly where their lines of accountability lay, and they would identify the board as giving direction to that role.

Fourthly, since the judiciary control the actual business of the courts in case listing and case throughput, and since its members have experience of the difficulties that those challenges raise, they are best placed to devise and enforce realistic targets and goals.

Finally — and I accept that this is crucially important — the structure that will be put in place will have built-in accountability arrangements so that the executive can discharge their duty to ensure that proper standards are set for the service that is provided.

Thank you. I am happy to take questions.

The Chairperson:
Thank you, my Lord. We appreciate the detail that you have provided on the preferred model, with regard to the positioning of the Court Service. You may be aware that, when we heard evidence from the Court Service last week, its representatives made similar points, referring to the proposed Scottish model and the positioning of the Courts Service in the Republic of Ireland, to which you referred.

Would the structure that you recommend, in your opinion, have any implications for the matters to be transferred under devolution, particularly on the justice side?

Sir Brian Kerr:
I think not. As I hope that I have made clear, the individual matters that should be devolved are not something on which I feel either qualified or competent to express an opinion. That is a matter for Government and for policy, and I firmly eschew any comment on policy.

However, provided what I might describe as justice services are devolved — and anything that I have read about the proposed devolution involves that, as a basic minimum — it seems to me that the model that I advocate would be appropriate.

Ms Ní Chuilín:
Could the Chief Justice outline what the nature of the relationship would be between the board of the Court Service and the Government? You mentioned strategic plans and submissions on resources, but could you expand on that?

Sir Brian Kerr:
Let me just recapitulate on that issue and talk about it in practical terms. First, it seems highly likely that the ministry of justice will have a representative on that board, and that representative will, obviously, report to the Minister on a day-to-day basis.

Secondly, as I have said already, I fully apprehend that a strategic plan will have to be devised by the board and submitted to the Ministry for consultation. I expect that there will be a requirement that there be an annual report by the board to the Minister. I fully expect that the chief executive will be an accounting officer, in respect of justifying the budget that the board will hope to secure on an annual basis. I do not know whether that deals with all the issues that you raised. Clearly, there will be some considerable outworking of that relationship.

No doubt, one will wish to draw on the experience of similar models in other jurisdictions to ensure that accountability arrangements — which I accept are necessary and, indeed, fundamental to this model — are adequate, so that the legislature, which, after all, is the provider of funds for the service, can be satisfied that those funds are being deployed in a proper fashion.

Mr McFarland:
I thank the Lord Chief Justice for his submission.

For the last 30 years, we have had a turbulent society in Northern Ireland. I shall draw from our experience of the setting up of the Policing Board and the interaction of the police with politicians. The justice system would have been in a similar situation to policing, in respect of its attitude towards politics and politicians, and that relationship tended to be at arm’s length, for obvious reasons.

No one will challenge the judicial independence that you have already mentioned, but I am trying to tease out a few issues. After the establishment of the Policing Board, there was an adjustment period for the police to get used to the fact that politicians — for whom they may not previously have had enormous regard — began to interfere with what was a separate and easily understood society. The Policing Board included politicians who were messing about and asking questions, and it took some time for the new arrangements to settle down.

In your opinion, is there likely to be a period of psychological adjustment for the Court Service and the judiciary? We, as politicians, have a duty to scrutinise those areas for which we have responsibility, and to hold people to account. Clearly, politicians legislate and will provide the Court Service with the money to operate. I notice that you kept referring to the Minister, but there will also be a Committee at Stormont, which will take a lot of interest in what the justice service does. The situation with policing is slightly different because there is a Policing Board, and I think that the policing and justice Committee will end up once removed from the Policing Board, because our politicians sit on that board.

The Chairperson:
Alan, could you come to a question?

Mr McFarland:
I am just trying to set a scene. There is not likely to be a justice board that is similar to the Policing Board, so the policing and justice Committee may well have a more hands-on role in examining what the justice system does. Do you think that representatives from the judiciary and the justice system — perhaps yourself — are ready to appear regularly in a forum such at this to answer questions? Those questions may not necessarily be on judgements, but on issues that pertain to the running of the Court Service or the judiciary.

Will a psychological adjustment be required, and how long do you think that it might take for people to get used to interference by politicians?

Sir Brian Kerr:
I have already laid the claim that judges are ready to embark upon a relationship with the other arms of Government, and I do not mind repeating that and declaiming it. As I said in my opening remarks, it is vital that we, as judges, and you, as representatives of the executive and legislative arms of Government, have a clear view about what I described as the perimeters of our functions. Subject to that, and provided there is a clear understanding on all sides of the areas into which we must not stray, I foresee that a useful and constructive relationship can develop.

Although I am the Lord Chief Justice, and head of the judiciary in Northern Ireland, that does not mean that I have not had contact with politicians in the past. I have had regular meetings with the Lord Chancellor, who, until 2005, was the head of the judiciary but was also a politician. I also have regular exchanges with the Northern Ireland Office (NIO) on proposed legislation.

However, I can best exemplify what I said about the need to recognise the perimeters by saying that when I, as the head of the judiciary, and other judges comment upon proposed legislation, we do not comment on policy. We can be consulted, and stand ready to be consulted, about difficulties that might be anticipated in the implementation of particular items of legislation. However, we will not — and we make this absolutely clear — comment on policy. Likewise, when we are consulted by Government departments and politicians, we expect that they will not wish to make comment upon the discharge of our judicial function. That, it seems to me, is central to the notion of the separation of powers.

Therefore, there is no reason why a healthy and constructive relationship should not develop, provided that we all understand where we stand and where we are coming from.

Mr McCartney:
Thank you for your presentation. From your opening remarks, I find we have something in common — I too had to give evidence from a witness box in the past. I will not say how many times, that is for another day maybe.

Sir Brian Kerr:
You and I should probably refrain from going into that.

Mr McCartney:
You have stated your preference for the non-Ministerial model, and the Chairperson has already said that we had evidence last week from David Lavery and we talked about the Irish model. One reason why the Irish model was introduced was due to public perception, or perhaps the reality, that there was undue Ministerial or political influence or interference with the judiciary. Is that one reason why you would prefer to see that model implemented here? Furthermore, should we be more rigorous in ensuring that there is no political interference in the future?

Sir Brian Kerr:
I have no reason to apprehend that there will be undue political influence on the administration of justice or on the discharge of the judicial function. I have absolutely no reason to believe that that is likely to occur. If that were attempted, I, as the head of the judiciary, would conceive it as my duty to resist it firmly.

I am not in a position to say whether the choice of the model for the Republic of Ireland was influenced to any particular extent by the public perception about political interference. However, I have had a number of exchanges with the Chief Justice of Ireland and some of the judges, in particular Mrs Justice Denham, who prepared the report that led to the establishment of that model. They have said that it has led to a very successful relationship between the Department of Justice and the judiciary.

The chief executive is the accounting officer to the Department of Justice, Equality and Law Reform. He is answerable to the Dáil if issues arise, which has happened very infrequently. There is a symbolic dimension to the model that I propose, in that the public can feel confident that it recognises the vital principle of the separation of powers.

However, I am more concerned about practical effects. The judges who will comprise the board, along with other members, will bring unrivalled experience of the difficulties in the administration of justice in our community. Therefore, they, in an administrative rather than a judicial capacity, can bring a vital ingredient to the successful administration of justice. There are two elements: symbolic and practical, and I emphasise the latter.

The Chairperson:
My Lord, on that point, assuming that this Committee and the Assembly accept your proposed model, as you said, the current legislation does not make provision for it, and, if devolution of the relevant powers were to come before the required legislation, transitional arrangements would be necessary. Do you have a view on what those transitional arrangements should be, bearing in mind the model that the Northern Ireland Office has proposed?

Sir Brian Kerr:
You are right to remind the Committee that legislation would be required. Transitional arrangements are difficult to devise in a vacuum. I anticipate that the Northern Ireland Court Service’s current arrangements would endure until legislation was possible.

Let me be clear that, although I am proposing a model that will mean an alteration in the current arrangements, I am not saying that the current arrangements do not work — they do work, and I anticipate that they would continue to do so. However, I expect that, if we go down the road that I recommend to the Committee, those arrangements will work better.

Mr Attwood:
You are very welcome, Lord Chief Justice. I have two or three questions. In evidence to the Committee last week, the director of the Northern Ireland Court Service said:

“It is possible to think of a halfway house, where the proposed agency might have judges involved in the management and oversight of the courts.”

He added:
“It may be possible to design a form of agency that is sufficiently at arm’s length from the day-to-day running of the justice Department to allay some of the Lord Chief Justice’s concerns, without moving so far along the continuum that it becomes a separate Department in its own right.”

Are there not three options on the table? There is the option that you prefer, the option that the British Government recommend, and the halfway house that Mr Lavery outlined to the Committee. That should be considered, because, when we collapse all the issues down, there is a concern that, as a consequence of adhering to the proper requirement to keep the judiciary and the Court Service at arm’s length, there will be no proper accountability, proper oversight or proper probing. My first question is — and I would like to ask a supplementary question, Chairperson — what is your view on the halfway house model?

Sir Brian Kerr:
The direct answer is that there are, of course, at least three options, and probably a great many more than those that you have adumbrated. I do not wish to suggest to the Committee that it can choose only the existing arrangements or the model that I propose.

However, underlying your question appears to be a concern about the efficacy of the accountability arrangements. I pose the following question to you: is there any guarantee that what you describe as the halfway house will produce more effective and efficient accountability arrangements?

As I said in my opening remarks, the arrangements for the accountability of the board will have to be worked out. However, such arrangements have proved successful in many other jurisdictions. The Scottish Parliament clearly contemplates — if the current proposals are accepted there — that sufficient accountability will be built into the arrangements. In the Republic of Ireland, as I have said, for several years the broad model that I propose has operated without any express dissatisfaction with its accountability.

Mr Attwood:
I have some sympathy with the model that you propose, although I am concerned that efforts would be made to have higher levels of political interference than would otherwise be the case. However, David Lavery outlined why the halfway house could work better than any other model. For example, he outlined that Court Service staff could be part of the wider Northern Ireland Civil Service and would therefore have career and development opportunities that would not otherwise be open to them. There may be added value in the halfway house model, without compromising the accountability associated with any one particular model.

Sir Brian Kerr:
I cannot speak with authority about the career path for Court Service staff if the model that I propose is adopted. However, it is surely not beyond the wit of man to come up with arrangements that would facilitate movement between the Court Service and the mainstream Civil Service. In the Republic of Ireland, there is such movement from the Courts Service to the mainstream Civil Service. If any perceived disadvantages in joining a dedicated Court Service are anticipated, those could surely be overcome.

Mr Attwood:
Could you allay some of the concerns, real or imaginary, about the model that you propose, Lord Chief Justice? In your submission, you rightly outlined that there would be a need for effective working relationships, which would be supported by periodic meetings with the new Minister or Ministers. Do you have a view about the need for effective working relationships with a broader range of society, whereby the judiciary would not just engage on the political side with the Minister or, as Alan McFarland said, the Committee?

Do you have a view about whether, as the issue of accountability becomes more central to people’s thinking, the judiciary should have periodic meetings with a broader range of society in order to, in an appropriate way, inform how the judiciary conducts its affairs?

Sir Brian Kerr:
Let me preface my answer by re-emphasising the need to distinguish between the various functions that we are discussing. Judges that would be members of the Court Service would not be performing a judicial function; they would be performing an administrative function. It is right that they, in common with the other members of the committee, should be accountable to the other arms of government for the discharge of those functions. However, one must not confuse that role with the adjudicative role — the purely judicial function — that judges perform in reaching decisions on cases.

Allusion has been made to the fact that today is the first time that the Lord Chief Justice has appeared before a Committee. As it happens, I appeared before the House of Lords Select Committee on the Constitution.

It is generally recognised that I have a higher profile than my predecessors, although not all commentators — particularly radio commentators — might necessarily agree. I am anxious that, where appropriate, judges should engage in, if not public debate, then at least an explanation of the role that they perform. I have encouraged colleagues to participate in conferences. I regularly participate in such events — for instance, I made a few remarks at the recent launch of the victims and witnesses strategy, the new five-year strategy. I have also appeared before various boards, and some members of the Committee will remember that I addressed members of the Policing Board. However, one must be extremely careful that that is done in a proper way so that the concept of judicial independence is not imperilled.

If I were a defendant in a criminal case, if I were a claimant seeking compensation, I would take it severely amiss if the judge dealing with my case appeared in public and was subjected to questions about the discharge of his judicial function in relation to my case. Even though I am anxious to ensure that judges do all that they can to maintain confidence in the administration of justice, I am equally anxious that nothing is done that would corrode that confidence by a perception that judges are answerable to a wider audience or authority than the discharge of their judicial functions.

The Chairperson:
I will follow through on Alex Attwood’s comments about the separation of the Court Service from the Northern Ireland Civil Service. In his evidence last week, Mr Lavery said that he saw no need to be separate from the Civil Service. He envisaged that even in the event of your preferred model being adopted, there would still be a linkage between the Court Service and the Civil Service — and that, undoubtedly, was his preferred outcome.

My Lord, is it a question of the timing of devolution of policing and justice — whenever that may be — being an appropriate, perhaps, convenient time to introduce the model that you have suggested? Will devolution provide a vehicle to achieve that? Would you still be pressing for this kind of model if the Assembly did not exist and we were under direct rule? Does it make a difference that you are dealing with a Department of justice that, in the future, may be run by local politicians who live in the community and who are connected to and with people who may at some time appear before the courts? Perhaps that problem is not as great when our Ministers are not from the community. Is that part of the motivation behind this move?

Sir Brian Kerr:
It is not. I am grateful and relieved to hear that Mr Lavery did not consider that there would be any disadvantage in being employed as a civil servant for the Court Service. No, is my firm answer to your second point. I would advocate this model if direct rule continued. The catalyst for the reform is the change in the constitutional order that arose from the Constitutional Reform Act 2005. As I said before, until April 2005 the Lord Chancellor was not only a senior member of the Cabinet but the head of the judiciary, but that has changed. In England and Wales, the Lord Chief Justice of England and Wales has become the head of the judiciary, and in Northern Ireland I have become the head of the judiciary. It is due to that change in the constitutional order that I have, after some considerable deliberation, concluded that this is the preferred model.

Mr Attwood:
I must ask to be excused, because I have responsibilities in the House.

Mr G Robinson:
Can an imposed date for the devolution of policing and justice be considered seriously when numerous Members of the Assembly are opposed to the idea until all political parties and the general public deem the timing confidence appropriate?

Sir Brian Kerr:
My comment on that matter is not to pass any comment. The timing of the devolution of policing and justice is a uniquely political consideration. It is not for me to enter into the debate. I understand the concerns and, in common with any other citizen in Northern Ireland, I try to keep abreast of the debate. However, my role is not to engage in discussion about whether, when or in what form devolution should take place. My role is to ensure, as best as I can, that the most effective administration of justice and justice services are delivered. That is my exclusive concern.

Mr Kennedy:
I welcome the Lord Chief Justice and his delegation. You said that you have had ongoing contact with the Northern Ireland Office on many issues, including proposed legislation. What level of contact have you had concerning the changes, and has it been at ministerial level?

In addition, what type of relationship do you envisage with the First Minister and the Deputy First Minister should policing and justice be devolved?

Sir Brian Kerr:
I have had limited contact with the Lord Chancellor, Mr Straw, who is the Minister responsible for justice, on the topic under consideration this morning. Before Lord Falconer left the office of Lord Chancellor, I had preliminary discussions with him. I have also briefly — and I emphasise briefly — discussed the matter with the Secretary of State, Mr Woodward. I had no discussion on this topic with his predecessor.

The level of contact will depend on the model that is chosen. As I have said, one would expect that the board would include a representative from the ministry of justice, who would report to the Minister on its day-to-day activities. One would also expect that there would be a strategic plan and an annual report that would be presented to the Minister for his consideration. When one gets to the stage of working out the detail of the arrangements, there would have to be discussion as to whether the Minister could ask the board to give an account of its functions more frequently. Those matters depend on which model is chosen.

Mr O’Dowd:
Welcome, Chief Justice. This morning’s discussions on the relationship between the judiciary and legislators have been interesting. Unfortunately, time is restricted.

Many of the points that I wished to raise have been covered. As a lay person, my understanding is that although the legislature introduces laws, it is the judiciary that sets the sentencing tariffs. Is that achieved through a system that connects us with what happens in England, Wales and Scotland or does it happen locally? If there is a connection, will the concerns and views of the wider community be taken into account in such a system under devolution?

Also, what are your views on the present representative nature of the judiciary — particularly concerning women?

Sir Brian Kerr:
Those are two topics that could occupy quite a bit of time. Although they are not immediately germane to the issues in hand, they are pertinent topics and I am happy to respond briefly to them.

First, Northern Ireland’s judiciary is not connected to England and Wales with regard to sentencing. We do take into account decisions made in those jurisdictions and recommendations made by the Sentencing Guidelines Council. However, on occasion, we have explicitly refused to follow either decisions made in England and Wales or recommendations made by the council. Recently, when we have delivered judgements on a number of cases in the Northern Ireland Court of Appeal and where we have refused to take those matters into account, the sentences imposed by our Court of Appeal have been greater than those imposed in England and Wales.

Sentencing is an extremely difficult exercise. It occurred to me to have another look at the number of legislative provisions that a judge imposing a sentence might have to consult before finally fixing on his decision. On occasions, it can be as many as 20. Therefore, it is a difficult exercise. The judge who must perform that task, which is one of the most challenging and troubling jobs that judges do, will frequently seek guidance and assistance from whatever source he or she can. Judges, therefore, take into account, but are not bound by, decisions that are made in England and Wales.

The second question relates to a broad and important topic. The Northern Ireland Judicial Appointments Commission, of which I am chairman, has recognised that there is an imbalance in certain tiers of the judiciary. However, it has not been given a statutory remit to appoint judges who are representative of the community; our statutory enjoinder, which is a clear injunction, is that we must make recommendations for judicial appointment that are based exclusively on merit.

However, we also have a statutory obligation to embark on a programme of action that will ensure, insofar as is reasonably practicable, that the judiciary is reflective of the community — as opposed to being representative of it — in Northern Ireland. The commission has, therefore, begun to investigate what might be the disincentives — what some people call the “chill factors” — that deter people, particularly women, from making applications for judicial appointment. I am happy to say that since I became the Lord Chief Justice, there has been a significant increase in the appointment of women to the bench. We could take a great deal of time to discuss and explore the reasons why more women have not come forward for judicial appointment. I am convinced that that will change. There are extremely able young women at the bar and in the solicitors’ profession who, I hope and am confident, will apply for judicial appointment in the future.

The Committee can take it from me, as chairman of the Judicial Appointments Commission, that one of my abiding concerns is to ensure that, in keeping faith with the overarching principle that all appointments to judicial office must be based on merit, the “chill factors” and disincentives that may discourage women from applying for judicial office will be identified and removed.

The Chairperson:
Have you had any contact with the Office of the First Minster and the Deputy First Minister (OFMDFM) with regard to future relationships that concern the Judicial Appointments Commission and the Judicial Appointments Ombudsman?

Sir Brian Kerr:
No, I have not. However, I anticipate that that will take place in due course.

Mr McCausland:
Lord Chief Justice, you have said that all parties involved would welcome reasonable notice to enable changes to be made as smoothly and as efficiently as possible. What would constitute reasonable notice?

Sir Brian Kerr:
To be honest, that is something that I have not thought about. That will depend, I suppose, on the nature of the arrangements. We judges cannot be adamantine on that; we cannot impose our will. We simply recognise that there will be logistical adjustments to be made and — in common with every other body that has to make adjustments — we would welcome as much notice as you feel able to give us. I am sorry; that is a pretty imprecise reply, but I am afraid that I cannot come up with a better one.

The Chairperson:
Lord Chief Justice, our time has elapsed. We appreciate that you, and your colleagues Ms Houston and Mr Rogers, have found time for us in your busy schedule. I hope that you will not mind our seeking any other points of clarification in due course, if required. Your evidence has been very valuable to the Committee, and we appreciate it very much.

Sir Brian Kerr:
Thank you very much indeed. I am very grateful for the courtesy with which I have been received. I hope that this has been a fruitful, constructive and productive exchange.

The Chairperson:
Good morning, Sir Desmond. I welcome you and your colleagues Mr Gilligan and Mr Reaney, vice-chairman and chief executive, respectively, of the Northern Ireland Policing Board. Before proceeding, I again advise members to declare any relevant interest. I declare an interest as a member of the Privy Council, and as a member of the Northern Ireland Policing Board.

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

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

The Chairperson:
Sir Desmond, you will be aware of the inquiry that we are conducting into the devolution of policing and justice powers to the Assembly, and the relevant preparations for that. You have very kindly provided us with a written submission. I invite you to begin with a short opening statement, after which members will explore particular issues with you by way of questions.

Sir Desmond Rea ( Northern Ireland Policing Board):
Thank you, Chairman. As you said, I am representing the Policing Board, and I am joined by Barry Gilligan, the vice-chairman of the board, and Trevor Reaney, the board’s chief executive. We have provided each member of the Committee with a document, which perhaps could go into the record, if possible. My opening statement is a summary of that document.

I thank the Committee for its invitation to attend this morning’s session. I am sure that members will appreciate that I am the chairman of a corporate body comprising diverse political and community views on many issues including the devolution of policing and justice. I will do my best to reflect the mind of the board, but I may have to reflect a personal view on some issues that members may raise, or I may come back to the Committee in writing on specific matters.

I am conscious that there are current and former members of the Policing Board on the Committee; they will have an insight into the workings of the board. Members will have received a copy of the board’s written submission. That submission was considered and agreed by the board’s corporate policy planning and performance committee at its meeting on 19 July.

The board welcomes the opportunity to attend today’s oral evidence session. First, we will give the Committee an overview of the work of the Policing Board, and that may be through a question and answer session. Secondly, we will amplify the board’s written submission. Thirdly, we will brief the Committee on the board’s experience of the current tripartite arrangements, including the relationship between the board, the Chief Constable and the relevant Minister and Department, namely the NIO.

Finally, we will address issues relating to the operation of the tripartite arrangements under devolution, insofar as it is possible to envisage those. Following my opening remarks, we will be happy to attempt to answer questions and to provide any information that will assist members.

The Policing Board has a unique accountability and governance role with strong powers devolved under the relevant legislation. It is the board’s role to secure an effective, efficient and impartial Police Service and to hold the Chief Constable to account for the exercise of his functions and those of the Police Service in an open and transparent way. The board does that through monthly meetings that take place in public and private session. I can explain later what determines whether a session is public or private. The board is broadly representative of the whole community, and its political members and independent members bring a valuable perspective to debate and decision-making. Members may wish to question us on what the independents bring to the deliberations of the board.

We have entered a new and welcome phase in the history of policing in Northern Ireland, and full political support for policing is now secured. That completes the jigsaw in respect of policing. All that remains now is for dissidents to diminish their activity and for those on the loyalist side to go away. The Policing Board is now fully representative of the whole community, and district policing partnerships, fully representative of the whole community, will soon follow, because a number of those are being reconstituted.

Since its establishment in 2001, the Policing Board has made solid progress in establishing and developing its role. Its achievements in establishing a framework of accountability for policing in Northern Ireland have been significant, and they are a matter of public record. I will leave copies of ‘The Life and Times of the First Northern Ireland Policing Board’, which gives a flavour of the work that has been done — successfully, I believe — by the board since its inception. I could list a number of things that the corporate body has done since its inception, but they are in the paper that members have in front of them, and I will not waste any time going through them again.

The Policing Board has driven forward a programme of policing change unprecedented in the history of policing in these islands. Tribute must be paid to the Chief Constable, Sir Hugh Orde, and his senior officer team for driving its implementation, and also to the previous Chief Constable Sir Ronnie Flanagan for initially embracing the programme of change, which was designed to secure the support and confidence of the whole community.

Policing is an essential public service, and local people and communities must have confidence that the police service is representative of, and responsive to, the needs of all sections of what is an increasingly diverse society. The board has an important responsibility to ensure the delivery of that service at strategic and local levels.

Similarly, the DPPs marked a new milestone in injecting community involvement into policing through council and local independent memberships. DPPs have delivered a level of community involvement, openness and transparency to policing that was new to these islands. Recently, a senior police officer in England took me aside and told me that forces were in the midst of a review; he said that he realised how much progress had been made and how far policing in Northern Ireland had moved on in that respect, and he expressed a wish to come to see the DPPs in action.

In exercising its governance role, the board has put in place accountability mechanisms to monitor and assess the performance of the Chief Constable and all aspects of the PSNI’s work. The board does that, primarily, by working to the policing plan. Later this month, the board will meet a senior PSNI team to put together the next stage of the ploicing plan, against which the Chief Constable and the PSNI will be held to account. He is performance-appraised on his own work — the board initiated that process with the Chief Constable and with his full co-operation, and, to my knowledge, he was the first Chief Constable in these islands who was prepared to embark on that process.

The healthy tension between the board and the Chief Constable ensures that there is an appropriate balance between supporting the PSNI — for example, in negotiating the annual budget with Government — and scrutiny, challenge and accountability. Through its work, the board has made difficult decisions and has done so successfully in a complex political environment. The board has intervened, when necessary, in critical incidents and in issues that have impacted on the effectiveness of policing or public confidence — the tragic Omagh bombing atrocity, to name but one.

The board has established important working relationships with a wide range of stakeholders and interested parties in the wider criminal justice sector and in the community. I will not name them, but they are a matter of public record and are listed in the statement that has been given to members. The board has recently established reference groups to engage with various parts of the wider community, including minority ethnic communities, the lesbian, gay, bisexual and transgender (LGBT) community, older persons and women’s organisations.

As a public body, the board must also be subject to scrutiny on how it conducts its own business. In recent years, such scrutiny has included reports from the Office of the Oversight Commissioner, a Northern Ireland Affairs Committee report in 2005 and best-value reports. The board also commissioned an independent assessment report by a team representing in part, policing across the water and in part, human rights in the Republic of Ireland; the team was commissioned to examine the board and its work and to provide feedback in order that we could learn how better to go about our business.

Such scrutiny is important to assist the board in improving the discharge of its functions. As members know, the term of the Oversight Commissioner for Northern Ireland ended in May 2007. The board has been given responsibility for the oversight of the implementation of the remaining recommendations. Of the 170 recommendations, about 40 are at various stages of completion, and the board has the responsibility to ensure that those are completed.

As stated in the board’s written submission, it supports the concept of devolution of policing as set out in recommendation 20 of the Pattern Report, which states that:

“Responsibility for policing should be devolved to the Northern Ireland Executive as soon as possible, except for matters of national security.”

In that context, the board recognises that the major decisions about the devolution of policing and justice matters, as set out in the terms of reference of the Committee’s inquiry, are primarily matters for the political parties to consider.

However, the board wishes to present two points of principle. That was in our initial letter of reply, and I simply summarise.

The first is that the role and powers of the board should not be diminished under the devolution of policing and justice, including that the Chief Constable should remain accountable solely to the board for the delivery of the policing service in Northern Ireland. That principle is consistent with recommendation 21 of the Patten Report, and is stated in the document that you have in front of you. It is also consistent with paragraph 13.7 of the Government’s discussion paper on devolving policing and justice in Northern Ireland, and again that is stated in your paper. Moreover, that was also the unanimously agreed conclusion of the Assembly’s Committee on the Preparation for Government when it reported on law and order issues in September 2006.

Secondly, the Chief Constable’s operational responsibility should not be undermined when policing and justice powers are devolved. That principle is consistent with recommendation 24 of the Patten Report, and again that is summarised. It is also consistent with paragraph 13.13 of the Government’s discussion paper on devolving powers, policing and justice in Northern Ireland, and, once again, that is stated in the paper before you.

Those principles represent the unanimous view of the Policing Board, and it is essential that those fundamental principles are embedded in future devolution arrangements, with appropriate arrangements and protocols put in place to ensure that they are given full effect.

The tripartite structure in Northern Ireland policing terms refers to the working relationship between the Policing Board, the Chief Constable, the Government of the day through the Secretary of State and the Northern Ireland Office (NIO). Each has a direct interest and role in respect of policing in Northern Ireland. Although that tripartite relationship resembles the arrangements for policing, police services and police authorities in England, Wales and Scotland, in Northern Ireland the tripartite model of policing involves a one-to-one relationship: one police service; one policing board; one Government department; and one Secretary of State. It should be noted that Northern Ireland has set the standards in best practice in police accountability. For example, the Policing Board’s role in monitoring human rights compliance has now been included in the legislative role of police authorities in England and Wales.

The NIO exists to support the Secretary of State in taking forward Government policy in Northern Ireland, and the Chief Constable is operationally responsible for the overall management of the PSNI and delivery of the policing service. The board’s primary role is to secure an effective, efficient and impartial police service and to hold the Chief Constable to account. On most policing issues there will be a role, responsibility or interest for each of the organisations in the tripartite structure. The exact scope and limitations of those interests is not precisely defined, and, at times, there is a degree of tension between the three, with the Chief Constable seeking to maintain his operational responsibility, the Policing Board striving to achieve, in a transparent way, effective accountability for operational decisions that the Chief Constable has made, and the Government defining the overall policy, legislative and funding framework for policing.

The Policing Board has a constructive working relationship with Ministers and officials in the Northern Ireland Office, which is, at times, challenging and robust. The board wishes to see that kind of relationship continue under devolution. The board has sometimes been successful in persuading Ministers of its position, for example, in the area of restorative justice; what has evolved in respect of restorative justice is substantially what the board argued for, and, when it could not make progress, it sought clarification on issues. There are areas where the board did not succeed, and one of those is resolving the overlapping role of DPPs and community safety partnerships.

The future of policing reform in Northern Ireland, post-Good Friday Agreement and post- Patten Report, is one, I believe, of success. In terms of the future tripartite arrangements, the current tripartite approach to governance and delivery of policing services is well tried and tested, and over six years has proven to be effective. Under devolution the new tripartite arrangements will have the potential to become more complex and crowded, with the potential for duplication in approach, unnecessary additional bureaucracy and potential mission creep. Two of the three legs of the tripartite stool will remain unchanged if the above principles are maintained, and they are the board and the Chief Constable. It is in the third leg that the change will take place, and it is our mutual responsibility to ensure that arrangements and protocols are put in place for operation under devolution and that the reality of devolution, as envisaged in the Patten Report, is delivered, while enshrining the principles outlined earlier.

The role of Assembly Committees is distinct from that of the Policing Board, and their respective roles are set out unambiguously in statute. In the current tripartite structure, the board ensures the delivery of an effective, efficient and impartial police service and holds the Chief Constable to account, while the Northern Ireland Affairs Committee scrutinises the work of the Secretary of State and the Department. The new Assembly Committee would fulfil its scrutiny and policy development roles, assuming responsibility for that function from the Northern Ireland Affairs Committee. It would have a wide brief across the whole criminal justice system in Northern Ireland.

It should be noted that the board will need to have a continuing relationship with the Secretary of State in respect of non-devolved matters and national issues in which it will have an interest; for example, oversight of the PSNI’s role in national security matters.

The board has not considered the detail of powers that should be devolved across the criminal justice system, but I reiterate the board’s unanimous position in support of the recommendations made by the Independent Commission on Policing — the Patten Report — which stated:

“Responsibility for policing should be devolved to the Northern Ireland Executive as soon as possible, except for matters of national security.”

The board values the productive working relationships that it has developed with a range of national policing institutions. Those are listed for the Committee in my submission.

Six years into the delivery of the 10-year reform programme many challenges remain for policing — challenges that the board is alive to and is committed to dealing with. In the years ahead, perhaps public confidence, public expectations, quality of service delivery, and the availability of resources will feature most highly. As witnessed in recent weeks, the community wants and needs a policing service that is responsive to, and meets, community needs. In our important respective roles prior to and following devolution, we must continue to make progress on the issue of policing. That will be the real test of delivery. We must continue to move forward on policing — building community confidence as we go — to ensure the delivery of an effective, efficient, accountable and impartial policing for the whole community. Those are the issues that feature regularly in the board’s engagement with the Chief Constable and the PSNI.

In a devolved arena, policing will be competing with other essential public-sector services for funding. More will be required from less — the anticipated comprehensive spending review (CSR) 2007 figures, which I am told are likely to come out this month, indicate that. The board will continue its work in ensuring that the Chief Constable makes the best use of scarce resources for the delivery of effective and efficient policing.

In conclusion, Chairman, as we continue to consider the implications of the new devolved arrangements and plan for the establishment of effective and efficient working relationships under devolution, we will be pleased to further assist the Committee in any way that we can.

I am sorry if I have gone a little over time, but this is a comprehensive area.

The Chairperson:
Thank you very much, Sir Desmond. You said that “more will be required from less”, referring to the implications of the CSR and the resources that are available to policing. Does the board have a view as to whether there will be adequate funding for policing when devolution occurs?

Sir Desmond Rea:
The board does not have a view on the matter; it has not debated it yet. The PSNI recently made a decision in respect of the full-time Reserve, as you are aware. In the course of considering that decision, we were aware of other contributory factors that affect policing and how it is carried out. I have already referred to the continuing threat from dissidents and activity on the loyalist side and to the fact that they go must away. That affects budgets, policing on the ground, and how we go about policing, for example, by patrolling. Therefore, we have touched only indirectly on that subject. However, I suspect that when we see the CSR, we will look at it in some depth. The matter also raises the question about the number of police that we have, as you know.

Mr Gilligan:
The Committee is well aware of the reasons that we have more officers for each person than what we describe as most similar forces.

I have no doubt that, despite vast improvements over the past six years, some work remains to be done. For example, in Strathclyde — which is a larger area and has a larger population than Northern Ireland — the budget that is available to the Chief Constable is considerably less. Another area for improvement is single-officer patrolling — which the Chairperson mentioned — and getting more officers to the coalface. That would make better use of officers who are currently doing civilian-type jobs. Therefore, there are a host of areas that I consider as work in progress.

Mr McCartney:
Thank you for your presentation, the first part of which does not come within the Committee’s remit, so I will not ask questions on that.

Is the Policing Board ready to begin work if the powers for policing and justice were devolved to the North in May 2008?

Sir Desmond Rea:
As I said, that is a question for the politicians. When politicians make the decision on the devolution of those powers, the Policing Board will work with the Assembly to move forward.

Mr McCartney:
There is nothing in the Policing Board’s field of work that would prevent that from happening?

Sir Desmond Rea:
Nothing whatsoever.

Mr McCartney:
Have you had any communication with the NIO about its progress in working with other agencies on how the devolution process can be advanced?

Mr Reaney:
At an official level, there is a stakeholder group that consists of representatives from the various agencies that will be affected, across the criminal justice system. I represent the Policing Board on that group, and the Deputy Chief Constable represents the PSNI. That group is meeting and work is ongoing. I am sure that the Committee has heard about that from NIO officials.

Mr McCartney:
Can you give the Committee a progress report on the work of that group?

Mr Reaney:
At present, it is very difficult for me to give an overall assessment. All I can say is that — because the accountability arrangements for policing have been in place for a considerable time — the degree of change in policing is less than what would be expected in the rest of the criminal justice system, where more preparatory work will be required.

Sir Desmond Rea:
I was reflecting over the weekend about the relationships among Ministers, and between civil servants and the Policing Board. The three of us agree that those relationships have been characterised by a remarkably light touch over the past six years. The Policing Board will simply move across to the new Department that will be established when policing and justice powers are devolved.

Mr McCartney:
You are ready to move?

Sir Desmond Rea:

Mr Kennedy:
I welcome the Policing Board delegation. The halfback line of Rea, Reaney and Gilligan is very impressive. Thank you for your presentation.

I wish to ask about the future tripartite arrangements —

Committee suspended for a Division in the House.

On resuming —

The Chairperson:
We shall now resume proceedings. For the benefit of Hansard, I ask Danny — with the Division bell ringing in our ears — to give us an abridged version of his excellent and well-honed question.

Mr Kennedy:
You are only saying that because it is true, Chairman.

What relationship does Sir Desmond envisage between any policing and justice Statutory Committee and the Policing Board?

You will recall that the Policing Board has 10 political members, each of whom is an MLA. Any Statutory Committee would comprise 11 elected representatives. You have suggested that the Committee should undertake the role that the House of Commons Northern Ireland Affairs Committee plays. Is that a practical suggestion?

Sir Desmond Rea:
In a sense, that is the existing arrangement. I would expect the Statutory Committee to hold the Minister to account on policy and administration. I would expect it to meet the Policing Board at least once a year — perhaps twice a year. Meetings between the Policing Board and the House of Commons Northern Ireland Affairs Committee are much less frequent than that. That is one way forward.

As I said earlier, the tripartite relationship among the Policing Board, the Minister and the NIO has, in my experience, been remarkably light. I would have thought that the Committee —

Mr Kennedy:
Pardon me, Sir Desmond. At present, the Northern Ireland Affairs Committee fulfils an important role. However, it is made up of MPs, not all of whom are based in Northern Ireland. The situation with the Policing Board and any Statutory Committee would be different. The Policing Board has a political membership, and all 10 of its political members sit in the Assembly. To refer the work of the Northern Ireland Affairs Committee to locally elected representatives in that Assembly might create a build-up of tension.

Sir Desmond Rea:
That is correct, and I spelt that out in my opening remarks. For reasons of good governance, it would make sense for MLAs who sit on the Policing Board not to sit on the Statutory Committee. Nevertheless, the Committee would play an important role in scrutinising the work of the Policing Board and how it goes about its activities.

I thought that you were going to say that the Northern Ireland Affairs Committee deals with a wide range of matters, of which policing is but one finite part. Policing and justice, when devolved, will be of much greater importance to the Assembly. It is important that, as the matter progresses, memoranda of understanding between the different parties be established, and that we learn from experience and adjust accordingly.

The Chairperson:
I just want to probe that issue a bit further. Danny was diplomatic in his choice of terms — he talked about a potential tension. Is there a potential conflict of interest, given that Assembly Members sit on the Policing Board and the Assembly will also have to scrutinise that board? Has the board given much thought to that?

Sir Desmond Rea:
Although the board has given no great thought to it in any depth, that question is easily answered. You are quite right, there is a possibility of tension arising, but the best way to proceed would be by drawing up a memorandum of understanding that is reviewed regularly and by working to try to achieve the most positive relationships.

It is important that there is no political interference in the operational responsibility of the Chief Constable and how he goes about his work. That principle must be adhered to, and the board gives that degree of protection because independent members work alongside the board members. In the past, the independents have been quite prepared to flex their muscles as they deemed appropriate. Previous boards have been quite prepared to require political members to back off on something, get together, consider the matter, see if they can do a deal on it and then come back to the board to discuss that deal. That approach has been important in resolving certain matters about which there has been tension. For those of us who believe in devolution and want it to work, it is necessary to start off with goodwill and seek to build on it.

Mr Gilligan:
Desmond mentioned a key issue; to avoid any potential conflict of interest, an MLA should not serve on both the board and any future Committee on policing and justice.

The Chairperson:
That would avoid a personal conflict of interest, but I was thinking more of a conflict of interest arising at a corporate level, in that an Assembly that legislates on, and allocates resources to, policing would, at the same time, have a role on the board. Sir Desmond has made it clear that that could be covered — at least initially — by a memorandum of understanding. I believe that implicit in his remarks is the belief that if problems develop, the issue would have to be considered again.

Sir Desmond Rea:
That is correct.

Mr G Robinson:
Sir Desmond, what do you make of the Chief Constable’s remarks at the weekend about who might lead a devolved Department of policing and justice and about autumn 2008 being a more likely date for the transfer of policing and justice powers? Do you personally think that he should have made those comments, and what are your views on them?

Sir Desmond Rea:
First of all, this Chief Constable is remarkably open. He takes the issues and responds to them as he deems appropriate. I made it clear in my response to a previous question that this board wants to see devolution of policing and justice powers. We are ready to move into that mode tomorrow, as and when you decide — and it is for you to decide; I am not about to put odds on as to when you are likely to do so, simply because I do not know. However, we are ready and we will want to see it work.

Mr Gilligan:
I also draw the Committee’s attention to the fact that the Chief Constable made it very clear in that interview that he has answered to the Policing Board, and will continue to do so, in respect of his operational function.

Mr McCausland:
Sir Desmond, is there sufficient community confidence to allow the devolution of policing and justice powers to occur in the near future? How would you assess community confidence?

Sir Desmond Rea:
To answer the second part of the question first, various surveys have been carried out. The Northern Ireland Omnibus Survey is useful. Although it is a sample survey, it is a reputable source for ascertaining the community’s views on policing.

Policing is being accepted increasingly across the community. The wider community has seen a PSNI that has moved forward and embarked on a programme of change. The majority of the recommendations are about what is good in policing, not simply in these islands, but across the world. Those points have been embraced, and we have made progress with them. There now exists a remarkable degree of accountability in the areas for which we are responsible.

The surveys tell us that there is increasing confidence across the community. For example, if my memory serves me right, one of the statistics from the previous survey — which was ignored by a lot of people and which gives a good feel for public confidence — was that 66% of people were happy with the feedback that they got from the police. That figure has increased significantly, and the respondents to that were people against whom crimes had been perpetrated. Therefore, there is increasing confidence in policing in the community.

Republican areas, of course, present the biggest challenge. In the past, the PSNI has not been supported in those areas. The challenge is for policing to be evident on the ground and to gain the confidence of that community. I think that that will happen. With the exception of the dissident element of that community, the fact that the jigsaw on support for the police is now complete is a demonstration of that greater confidence.

Mr McCausland:
Does the survey not assess community confidence in policing as it is administered now? It is not actually assessing community confidence as to whether policing and justice powers should be devolved. I could have confidence in policing as it is administered now, but I might not have confidence in society being ready for the devolution of policing and justice powers. How can that confidence be assessed?

Sir Desmond Rea:
That question must be asked, and a means of asking it must be found. As devolution progresses, gains confidence, and demonstrates its capability to deal with issues, my gut feeling is that, overall, that confidence will grow.

Your first question takes me into a more political area. However, I have made it clear to the Committee that the Policing Board and the police service have the confidence to move forward with the devolution of policing and justice powers as and when the Committee deems it appropriate to do so.

Mr Gilligan:
One useful indicator is the reconstituted DPPs: how representative they will be of the entire community and how they truly engage with the police in fulfilling their role. I recognise that that will take time.

Mr McCausland:
It will take a lifetime, perhaps.

Mr McFarland:
The whole issue of finance and money will be tight. However, we are embarking on a number of enquiries. The Historical Enquiries Team is active. There will probably be a strategy for dealing with the past. Does it concern you and what are your views on whether the budget for all of that should be retained centrally in London, or with a justice Ministry here and the Policing Board? Potentially, that is a massive budget, particularly if there are claims of post-traumatic stress or claims against the Chief Constable. That could be a major nightmare with regard to budgeting. Can I have your thoughts on that?

We have been exploring the area of serious and organised crime, which is being kept away from policing in that a multi-agency approach is being taken, in particular through the links between the Serious Organised Crime Agency and the Assets Recovery Agency. Can you give your view on how that might be relevant to the future planning of policing and justice?

Sir Desmond Rea:
My gut feeling is that the money question will become a pressing issue in the next number of months, following the comprehensive spending review, which I believe will be announced some time this month, depending on when the election is. You are quite right that certain matters will be retained by London. There may be matters that are devolved but do not have a definitive budget attached to them. The costs of those could escalate. It is for the Assembly to negotiate with the NIO and the Treasury to ensure that those issues are covered. However, you are right to point out that the money required could escalate for a number of those areas.

You are quite right that certain national bodies are involved in tackling serious and organised crime here. Mr McFarland knows the background to the area of organised crime as well as I do, but for the benefit of other members, agencies as well as the police are involved. The Policing Board has found that difficult and would have liked to have extended its influence and remit on accountability in that area. However, because of the other parallel agencies, that has been difficult. The board has argued its case and its representatives have been given seats on a second tier of that body. Serious and organised crime is an important area and, if the Assembly decides to have a Committee that relates to policing, the Policing Board would be interested in liaising with that Committee. You are right that serious and organised crime is an area of tension.

Mr Gilligan:
Mr McFarland raised the question of the impact on resources that a strategy for the past would have. I share the view that the Chief Constable expressed in the interview that was referred to earlier: this is a matter that must be grasped by this body. I do not believe that you can divorce the two. That issue and all its ramifications, including the financial ones, must be addressed by the Assembly.

Mr Attwood:
It would help the Committee if you could, based upon the board’s experience of the extent and nature of policing, indicate whether you think that a future justice Department would be most effective and efficient as a free-standing body, or integrated into a current Department such as OFMDFM.

It may be helpful to state that the head of the Northern Ireland Court Service told this Committee last week that he could work with whatever model is chosen. However, he said that there would be benefits to having one coherent Department in charge of all aspects of the justice system. He added:

“If an existing Department were given that responsibility, it would certainly form the dominant part of that Department’s work.”

Bearing in mind the work of the Policing Board and other institutions in moving policing so far forward in such a short time, do you believe that a free-standing justice Department would best serve the future of policing?

Sir Desmond Rea:
Speaking as a citizen, not as Chairman of the Policing Board, I start from the premise that there are far too many Departments. That is a personal view.

There is some sense, particularly in the initial period after devolution, in having a free-standing Department, because there are several complementary functions and matters that relate to, and with, each other. That contradicts the point that I made a moment ago; however, there is some justification for a free-standing Department for a period of time. I am thinking of how the Probation Board and the Prison Service relate to policing. As and when the police college is built, it will also have a relationship with the Prison Service, as members know. I could mount an argument for a free-standing Department, but I have not reflected much on that.

Mr Attwood:
Thank you Professor Rea — that was useful. I wonder whether you will be as helpful in respect of my next question. In your letter to the Committee, you state that the role and power of the Policing Board should not be diminished by the devolution of policing and justice. After all the good work of the board and other policing institutions during the past four or five years, and after the transfer of responsibility for national security to MI5, are you concerned that the board will cease to have a role in an area in which it used to have an interest?

I will give two examples. First, are you concerned that agents, or covert human intelligence sources, who are currently the responsibility of the PSNI, and of strategic influence in the North, will be transferred to MI5 and may not operate under the same strict criteria that the Chief Constable, the Policing Board and others have so carefully worked out in the past number of years in order to develop confidence in an area that was contentious for so long?

Secondly, in the future, the important work of human rights advisers to the Policing Board, who conduct real-time assessments of operations and intelligence, including that of MI5, will cease. Where will the Policing Board stand if, in the future, MI5 direct the police to do something in the North that leads to a critical incident or someone’s death? How will the board reassure the public in the North that the police can be held to account?

Sir Desmond Rea:
You do not change, Mr Attwood. [Laughter.] Excuse me, while I give some background information to members of the Committee who do not have your insight.

Until now, “primacy” in respect of national security has rested with the PSNI. In their wisdom, the British Government decided to alter that situation, and it will soon change to the model that exists in the rest of the United Kingdom. That means that there are questions to be asked about accountability, as Mr Attwood said. Members who require some background on this issue should read annex E of the St Andrews Agreement, which is open about the issues and how they are to be tackled.

Since the Policing Board was formed six years ago, it has gradually extended accountability on intelligence in three formats. The chairman and the vice-chairman relate to the relevant assistant chief constable on the area of intelligence — particularly with regard to the recommendations on intelligence that flowed from the report on the police handling of the Omagh bomb inquiry and the inquiries that were mounted on the back of that report. We have done that consistently. In the course of that, the suggestion was made through the assistant chief constable to the Chief Constable that the board could be briefed on about 70% of the knowledge on intelligence — that is a notional figure. Those briefings have taken, and do take place. That is a good example of the openness of the Chief Constable, because he said that that would be possible. Mr Attwood and Mr McFarland will recall that in the course of one of those briefings — which took place in a public session, because the board encouraged the Chief Constable to conduct sessions in public where possible — the then assistant chief constable for crime operations briefed the board on the management of covert human intelligence sources (CHIS). It was interesting, because the journalists did not know what was happening, but a significant amount of information on the management of CHIS was put into the public sphere.

The board has also met — infrequently but consistently — the assistant chief constable for crime operations and the local head of the intelligence service. At a board meeting two or three weeks ago, at which progress reports were made on the memorandum of understanding, protocols and the board’s human rights advisers — as referred to in annex E of the St Andrews Agreement — it was asked whether there were any parallels in the rest of the United Kingdom to the degree of accountability that is being exercised here. The answer was an unequivocal no. There is, therefore, a degree of accountability in this area, and that should give comfort to not only Mr Attwood but to the wider community about how the board has gone about its functions on accountability and the Chief Constable’s openness in that regard.

We have been given information on the possible number of CHISs, but I will not go into that: you can talk about it afterwards.

Therefore, in answer to your concerns, I believe that we are well ahead of the game. Northern Ireland is an example of good practice throughout these islands on that issue — and some of the Committee members’ colleagues can confirm that. I apologise for the long reply, but the subject required it.

The Chairperson:
Thank you and your colleagues, Sir Desmond, for coming before the Committee this morning to give evidence. I am sorry for the interruption of the Division, but the Committee appreciates your candour, the weight of your information, and the written submission that you provided. If there are any points on which we need to probe further, we may be in touch in writing.