Northern Ireland Assembly Flax Flower Logo



Transfer of Policing and Justice Matters

11 December 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd

The Chairperson (Mr Donaldson):
I remind members that Hansard staff are present for this session on the inquiry into the devolution of policing and justice matters. I ask members to declare any relevant interests that they may have. I declare an interest as a member of the Policing Board and as a member of the Privy Council.

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

The Chairperson:
Thank you. In relation to the matters that are to be transferred, two outstanding issues remain to be dealt with: future powers of the Army to operate in support of the police; and powers relating to the misuse of drugs.

The Committee Clerk wrote to the Northern Ireland Office on 15 October requesting clarification on what the NIO discussion document of February 2006 said about the future powers of the Army to operate in support of the police. The discussion document stated:

“Future powers to enable the army to operate in support of the police are under development since it is unlikely that these would be devolved.”

Members will see from the relevant briefing paper and the attached NIO letter that the Secretary of State believes that it would not be appropriate for the military-support powers that are contained in the Justice and Security ( Northern Ireland) Act 2007 to be devolved. The military-support powers that are contained in sections 21 to 42 of the 2007 Act will continue to be available on the request of the Chief Constable in order to provide support for the police.

The letter from the NIO also refers to the fact that powers in the Act apply to the police as well as to the military. As stated in the briefing paper, the Committee Clerk has responded to the NIO requesting clarification on whether the Chief Constable would need to make a request to the Secretary of State in order to invoke the powers that have been conferred on the police, for example, the power of entry, which is provided for under section 23 of the 2007 Act. The letter indicates that the Secretary of State would seek to involve the devolved Ministers as far as possible in the review of the operation of those provisions and in decisions about their repeal.

The Committee Clerk has responded to the NIO requesting clarification on whether the Secretary of State will seek to involve the Minister — or Ministers — in individual operational decisions or in decisions about whether those powers should continue to be reserved. It might be best, therefore, to await further clarification from the NIO on the issues that the Committee Clerk has raised before seeking to establish whether there is consensus in the Committee that those matters should not be devolved. Are members content to proceed on that basis?

Members indicated assent.

The Chairperson:
Powers relating to the misuse of drugs were raised as a result of the written submission from the Scottish Cabinet Secretary for Justice that stated that the Scottish Parliament could, in the future, take direct responsibility for the law on drug abuse. A response was received from the NIO on Thursday 6 December and was issued to members. That states that the majority of functions under the Misuse of Drugs Act 1971 are already exercised by the Department of Health, Social Services and Public Safety as they relate to Northern Ireland and are therefore already devolved matters.

There are two remaining substantive functions that fall to the Home Secretary on a UK-wide basis: determining the classification of controlled drugs; and making appointments to the Advisory Council on the Misuse of Drugs. There are no plans to devolve these two functions at the moment.

Thirdly, the responsibility for appointing legal members of tribunals will transfer to the First and deputy First Ministers, acting jointly, reflecting their responsibility for appointing judges.

Fourthly, the responsibility to appoint members of any advisory body will transfer to the Department of policing and justice. Therefore, on the misuse of drugs, by far the majority of powers and functions are either devolved already, or will be devolved on devolution.

There are really only two main outstanding issues that will continue to be dealt with on a UK-wide basis. That is the position from the NIO at the moment. All of that is without prejudice to the ability of the Assembly to seek devolution of further powers in the future. The question is whether, at the moment, we are content as a Committee to recommend that the arrangements as proposed, with the exception of the two remaining substantive functions — on the classification of controlled drugs and the making of appointments to the Advisory Council on the Misuse of Drugs — be part of the devolution. All the other matters transfer on devolution or are already transferred under the Misuse of Drugs Act 1971 and exercised by the DHSSPS.

Ms Ní Chuilín:
Regarding the two main points for this Committee, there is consultation ongoing with the Department of Health about whether to defer that regulation to Westminster. The matters will be decided on the outcome of that consultation.

The Chairperson:
Indeed, and as I have said, all of that is without prejudice. The Assembly could of course, in the future, ask for any of those powers to be devolved.

Ms Ní Chuilín:
If I agreed the matter today, it would almost hamstring work that we are doing in the Health Committee.

The Chairperson:
I appreciate that. I am quite prepared to accept, as I have indicated on other issues, a form of words in the report to the effect that the Assembly proceeds on the basis as proposed, but without prejudice to the Assembly requesting devolution of further powers. We could find a form of words that overcomes your difficulty.

Ms Ní Chuilín:
It could be Carmel’s, too.

The Chairperson:
I suppose at the moment, pending that review — and we might refer to it in the text of our report — the Committee is being asked if there is consensus on at least those functions and powers that are proposed to transfer on devolution, and if there are any of those that we do not want to accept. That is without prejudice to the ability of the Assembly in the future to request the transfer of the remaining functions. Are members content to proceed on that basis? Nothing is agreed until everything is agreed, but we are at least trying to build up the report to something that we can set down in front of you to look at the wording. If we were to draft something on that basis would members be happy to look at that, and do we have consensus on that basis?

Members indicated assent.

The Chairperson:
We will revisit the final issue to be addressed, which is the future powers of the Army to operate in support of the police, as soon as we get further response from the NIO. Members, you will recall that parties had given a commitment to bring forward papers for discussion following submissions from the expert witnesses. Papers are expected to address the issues raised in the recent research papers with regard to the structure, governance and accountability mechanisms required in any Department. I remind members that those papers need to be submitted by midday on 9 January 2008. Obviously, we came to a point where we reckoned that we needed more expert advice, so we are getting that, and after that, we hope that parties would be in a position to submit their papers by midday on 9 January. There was a preparation pack distributed on 7 November to assist parties in preparing papers, which included a list of the issues that parties may wish to address. The pack was also issued by email. I ask members to bear in mind the issues raised in those papers by way of preparation for the oral evidence session on 18 December with the expert witnesses. Members, that is all the substantive business that I have today. We have a draft press release, which will be circulated. It is more about next week’s meeting than it is about this week’s meeting — it is really just giving notice of our evidence session next week. Are members content with that?

Members indicated assent.