ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE
OFFICIAL REPORT
(Hansard)
Devolution of Policing & Justice Matters
25 November 2008
Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Alex Maskey
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
The Chairperson (Mr Spratt):
I invite members to put on record any interests that they may have. I declare an interest as a member of the Northern Ireland Policing Board.
Mr A Maskey:
I am also a member of the Policing Board.
Mr McCausland:
I am a member of Belfast District Policing Partnership.
The Chairperson:
No Members from other parties are present today in the Public Gallery, so I will move directly to the first revision of the Committee briefing paper, 11/08/09. I invite the Committee Clerk to explain briefly how the paper has been reconstructed.
The Committee Clerk:
The briefing paper deals with a combination of matters that arose last week. For ease of reference, each week, the paper will reflect decisions taken and agreements reached by the Committee on the category one list of issues. There will also be an opportunity to reinstate some issues that had been overlooked in the earlier version of the briefing paper. The paper also deals with the request to incorporate or make available to the Committee the structure chart that the Northern Ireland Office provided to the Committee in the course of its original inquiry. That chart is taken from a letter that was sent on 15 October 2007, and it can be found at annex 1 of the Committee briefing paper.
I have a small confession to make in that the page numbering sequence in the briefing paper is slightly out of kilter. The paper was prepared electronically, but I did not have an electronic version of the chart — instead of leaving space for two pages, I left space for only one. There is, therefore, a page 8 and a page 8b. During the week, I will improve the quality of annex 1 for inclusion in members’ packs next week.
Annex 2 is an extract from the summary of recommendations from the Committee’s original report. I have used some colour coding to help members to identify recommendations that need further work — although that work may not necessarily be for the Committee to undertake. Nonetheless, those recommendations are identified in red in the briefing paper. I also draw attention to recommendations 23 and 24, which appear in green in the summary. They are highlighted to remind members that they took a decision in principle — or on a “without prejudice basis” — that various organisations that presently form part of the policing and justice family should go in their various guises to particular parts of a devolved Department. Therefore, I hope that the combining of that information in the briefing paper will be of benefit to members.
The Committee will proceed, shortly, to look at the category one list of issues for a second time, and it is intended that a second revision of the Committee briefing paper — that the Committee will have to hand next week — will reflect the decisions that may be reached today on any particular issue. That paper will address, slightly differently, the observation that the Deputy Chairperson made last week about decisions that the Committee made on a rolling basis being in the public domain. They are in the public domain in a slightly different way, in the sense that the minutes of proceedings identify where the Committee has made clear decisions. However, the disadvantage of that is that it takes about a week and a little bit, because the minutes of proceedings can only be agreed the following week, and, subsequently, they are put on the website.
The Chairperson:
I thank the Committee Clerk; he has put some work into this, and it has been helpful. It is hoped that other members will find it beneficial as we go through the issues.
For the purpose of the record, I have to read each issue, so bear with me, please.
Mr McFarland:
Recommendation 24 states that the Probation Board should transfer as proposed, on a without-prejudice basis. I think that it should be the Probation Service. Have I missed something, or is it under another title?
The Committee Clerk:
What page are you looking at?
Mr McFarland:
Recommendation 23 contains the various entities that make up the criminal justice system, and recommendation 24, on page 12, contains the Probation Board — but I thought that the Probation Board is an appeal mechanism on probation. I thought that it was anticipated that the Probation Service would be set up as an agency.
The Committee Clerk:
I must confess that I do not know the detail of that.
Mr McFarland:
Would it be possible to have a checklist? Perhaps the Probation Board and the Probation Service are one and the same. If that is the case, it is contained in the recommendation.
The Chairperson:
We will clarify the terminology.
Mr McFarland:
If they are not the same organisation, the Probation Service should be included.
The Chairperson:
If members are happy to proceed, I will begin with issue A:
“On the basis that there should be a single Department with a single Minister, what would be the method for election/appointment of that Minister?”
Before I continue, I must inform the Committee that Dawn Purvis sent her apologies for being unable to attend this part of the session.
If members are content, I will take comments from each of the parties — after which, we will have a discussion and decide whether to resolve the issue or to defer it to the next meeting, when the final decisions on deferred issues will have to be made.
Mr Hamilton, what is the DUP’s view on issue A?
Mr Hamilton:
The DUP agrees that there should be a single Department and a single Minister, who should be elected via a cross-community vote on a 50:50 basis. In order to achieve that, there may be a requirement for legislative change, which is something that the Committee must revisit.
Mr A Maskey:
Sinn Féin is happy to follow the format proposed and suggested by the First Minister and the deputy First Minister in their letter to the Committee.
Mr McFarland:
The Ulster Unionist Party agrees that there should be a single Department and a single Minister, when there is the confidence that the time is right for their deployment. However, we should follow the current system. Any party should have the opportunity to take the new Department if it wishes, and d’Hondt should be rerun, because it is the statutory method of doing such things.
Mr Attwood:
We also agree with everyone else; there should be a single Department with a single Minister, and that the method of election should be the d’Hondt method, as laid down in the Good Friday Agreement and the Northern Ireland Act 1998.
The Chairperson:
There is consensus on the first two components of issue A, but there is no consensus on the method of appointment, so that must be resolved. It has been indicated that we should revisit that matter — is that the consensus of the Committee?
The Chairperson:
The Committee Clerk has indicated that it is important that the Committee makes a definitive recommendation on that issue, so if parties want to consider that and come to the next meeting with a definitive position.
Mr Attwood:
From our point of view, what we have outlined today is the SDLP’s definitive position, and that will not change between now and the next meeting. Will the Committee Clerk clarify whether issue A covers the nomination process, or is that dealt with elsewhere on the list?
The Committee Clerk:
For the purposes of the discussion, all the issues around the election or appointment of a Minister need to be captured under issue A — I do not believe that it is picked up in any great detail anywhere else.
The point that I was trying to make was that, for the purposes of legislation, if the Committee is minded to make a recommendation, it will need to be a fairly definitive recommendation in order to inform the legislation.
Mr Attwood:
It may be more appropriate to deal with the election or appointment method under issue E, which deals with the arrangements for removing or replacing a Minister once he or she has been appointed.
The Chairperson:
We are dealing with issue A at the minute, so let us not—
Mr Attwood:
Yes; but as a Committee, we must decide whether the matter should be dealt with under issue A or issue E.
The Chairperson:
We should not move on to issue E; I want members to focus their minds on issue A, which is what we are discussing.
Mr Hamilton:
I take the Committee Clerk’s point regarding the requirement for a definitive recommendation — that is why I made the point that I did. In light of the need for parties to be more definitive on the matter, we probably do need to revisit the issue, after we have discussed it further.
Mr McFarland:
On a practical note, I understand what the Chairperson is saying; however, if we moved that part of issue A down to issue E, we could have agreement on issue A today, and that could be laid to rest. The whole matter of who is appointed, reappointed or removed from office could be dealt with as a separate package under issue E. That would allow us to agree on a single Department and a single Minister, and lay issue A to rest.
The Chairperson:
Are members happy that we do that and move on? It seems that there is an overlap between issues A and E.
Mr Hamilton:
We can come back to this discussion.
The Chairperson:
Certainly, we will come back to it when we are discussing issue E. However, we have now agreed on having a single Department and a single Minister. We can pick up on the latter part of issue A during the discussion on issue E, which we will be having in the not-too-distant future.
Issue B is already agreed, so we do not need to go back to that. Moving on to issue C, which asks what would be the status of the Minister’s position in, and relationship with, the Executive Committee?
Mr Hamilton:
Again, that is something that we are still discussing and would like to revisit definitively next week.
Mr A Maskey:
Sinn Féin is of the same opinion — that requires a bit more consideration.
Mr McFarland:
The Ulster Unionist Party’s view is that if a Minister is appointed, he or she must have equal status. The idea that someone is appointed and paid as a Minister but is wheeled in only when policing and justice is being discussed seems like nonsense and a wrecking of the system.
Mr Attwood:
The SDLP agrees that the proposed justice Minister should have full membership of the Executive, including full voting entitlements. In all aspects, the justice Minister should have equal status and authority to all other Ministers.
The Chairperson:
Some different views have been expressed. We will return to that and decide on a definitive position next week.
We move on to issue D:
“Would the appointment of a Minister be an interim arrangement until the next Assembly election?”
Mr Hamilton:
The DUP agrees with the point that the First Minister and the deputy First Minister made in a letter that they sent to the Committee last week about the arrangements for the appointments.
Mr A Maskey:
Sinn Féin is also happy to go along with the position that the First Minister and the deputy First Minister articulated last week.
Mr McFarland:
If the justice Minister were elected as a normal Minister under the d’Hondt system, his remit would run until the next election. In that case, d’Hondt would have to be run again. That is all standard stuff for the Assembly.
Mr Attwood:
The SDLP agrees with the Ulster Unionists that a Minister of justice who is elected under d’Hondt would last until the next Assembly election, subject to the power of removal in the hands of the nominating officer of the party that nominated the Minister.
The Chairperson:
There is disagreement on that point, and we will need to come back to that next week with a definitive position. The parties need to have a discussion and come back to that issue at the next meeting.
Mr A Maskey:
That would follow and fall into line with the last suggestion that issues E, A, B and C all be listed under issue E.
The Committee Clerk:
That refers to the third component of issue A.
Mr A Maskey:
There are three parts to issue A.
The Chairperson:
I want clarity on that.
Mr McFarland:
Can you confirm whether that is for appointment or removal —
The Chairperson:
That is the very reason why I want clarity, and I can see the sparkle in your eye.
Mr A Maskey:
We need clarity on the appointment/vacancy relationship.
The Committee Clerk:
The third component of issue A will go into issue E. The Committee also wishes to revisit and to come to a definitive position on issue C next week. Issue C is:
“What would the status of the Minister’s position in, and relationship with, the Executive Committee?”
Similarly, the Committee wishes to reach a definitive position on issue D:
Would the appointment of a Minister be an interim arrangement until the next Assembly election?
Those two issues are connected with discussions that the Committee will have next week on issue E:
“What would be the arrangements for removing and/or replacing a Minister once appointed?”
The Committee must bear in mind that the third component of issue A now fits in to issue E.
Mr McFarland:
Issue E now includes the appointment, the removal and the replacement. You could say that issue E is divided into three parts — 1, 2 and 3 — for clarity of identification.
The Chairperson:
That is probably fair comment.
Mr McFarland:
Can I confirm that issue C and issue D are still separate issues?
The Chairperson:
Is everybody crystal clear?
Mr Hamilton:
No.
The Chairperson:
I am not sure that I am. We will move on to issue E.
Mr Hamilton:
Is this “new E”?
The Chairperson:
I will read out issue E as it is at the minute, and then the Committee Clerk will read out issue E as it will be.
“What would be the arrangements for removing and/or replacing a Minister once appointed?”
That is issue E as it stands. The Committee Clerk will read issue E as it now is.
The Committee Clerk:
“What would be the arrangements for appointing, removing and/or replacing a Minister?”
Mr Hamilton:
Obviously, there are elements that we have parked or are revisiting. May I make a point about the members’ packs?
The Chairperson:
I have already done that. It will be sorted.
Mr Hamilton:
Has that point been made earlier?
The Chairperson:
It will be sorted out for the next meeting. Members will be getting black folders for the next meeting so that papers can be removed easily.
Mr Hamilton:
As regards the issue about replacing the Minister, we agree with the letter from the First Minister and the deputy First Minister that during the initial period, the appointment/replacement process should be the same. We are moving to where we may need to give the issue a bit more thought. We suggest that the appointment should be by cross-community vote; that element would have to be included somewhere. However, we will be happy to revisit that element of the question.
Mr A Maskey:
As I said earlier, we support the arrangements proposed by the First Minister and the deputy First Minister, which includes filling any vacancy on the same basis as the elected Minister in the first instance.
Mr McFarland:
We are for the standard method of appointing through the d’Hondt system, with nominations by the party that is to choose the Minister. The nominating officer would remove the Minister and produce another. It is the standard Assembly system that we have used for 10 years.
Mr Attwood:
We agree with the Ulster Unionists that, under the Good Friday Agreement and the Northern Ireland Act 1998, the nomination power falls to the nominating officer of the party nominating the Minister. The power to remove the Minister falls to the nominating officer of the party that nominated, and the power to replace falls to the nominating officer of the party that wishes to replace the justice Minister.
The Chairperson:
That is an issue that we will come back to next week. Obviously, parties need to have a discussion on the matter and come back with their definitive positions for the next meeting. Do members agree?
Members indicated assent.
The Chairperson:
We move on to issue F:
“What would be the name of the department?”
Mr McCausland:
That would be moving towards justice.
The Chairperson:
The justice Department.
Mr Hamilton:
The Department of justice.
Mr McFarland:
We would have preferred policing and justice Department, but we will probably run along with justice Department if that is the consensus.
Mr Attwood:
I agree with the Department of justice.
The Chairperson:
Are members agreed in calling it the Department of justice?
Members indicated assent.
Mr Hamilton:
This is a personal sorrow that the Department of home affairs does not —
Mr McFarland:
Home affairs was —
The Chairperson:
Let us not to back there. We have an agreement. We will move on to issue G:
“What would be the structure of the Policing and Justice Department, and what functions should be placed there and/or OFMDFM?”
Members have the chart that lists the 28 organisations, and can see the category 2 list at H and J, also.
Mr Hamilton:
This is allied to the list in annex 1. The suggestion in annex 1 is that the vast majority of those powers would be within a new justice Department, and we would agree with that.
Two elements, in respect of the Judicial Appointments Commission and the ombudsman, are for the First Minister and the deputy First Minister, which might, to return to my previous point, require the law to be amended to allow the Judicial Appointments Commission to appoint judges. Beyond that, we would not be suggesting or supporting a movement of anything else away from the justice Department.
Mr A Maskey:
We are happy enough to go with the list that is in front of us, but we would like it to be more definitive.
Mr McFarland:
Chairperson, you will recall that this is where we got into a number of issues that we might need to consider in slower time. One of them was the Public Prosecution Service (PPS), and who would look after it and fund it, and its independence, etc. The other issues were the two that Simon Hamilton mentioned, which are proposed for the First Minister and the deputy First Minister. I do not know whether it is possible to go through those issues one by one just to confirm that we are happy to reaffirm the original proposals of the report and the Assembly. Subsequent issues or information might need further investigation. Most of the issues are fairly simple, but I worry that before we could recommend that issue G be left for someone else to look at — if we are now producing the definitive answer — it would pay us to ensure that we are not missing some pieces of information on issue G that we had, perhaps, glossed over the last time.
The Chairperson:
Therefore, you are indicating that you would like to come to a definitive position and bring that back to the next meeting?
Mr McFarland:
No, I think that if we run through this today, most of the issues are fairly obvious, and, therefore, we can agree them easily. I would like to be sure that, in light of other questions raised, we are not somehow missing a trick. At one stage, it seemed fairly simple that the First Minister and the deputy First Minister would confirm the appointments to the Judicial Appointments Commission; now, that has changed, and I would like to be sure that nothing else like that has changed. The difficulty is whether we are in the same mind as the First Minister and the deputy First Minister in some of these areas, because you could argue that without hearing from them as to what their latest thinking is on this, we would not want to go down the line and find that their thinking is different to ours; in which case, we would have a row about it.
The Chairperson:
The floor is yours; would you like to go through the list?
Mr McFarland:
I am just saying that if you want to go through it —
The Chairperson:
If you want to go through it, I am quite happy for you to do that.
Mr McFarland:
I will take over the meeting, OK. Starting at the top of annex 1, with the Public Prosecution Service: it states that the future sponsor would be a:
“Consultative relationship with the Attorney General for Northern Ireland; resourced by a Northern Ireland Department.”
That raises the question that if it is a Public Prosecution Service, perhaps the Minister for justice should not have control because it might be considered not to be independent enough if he were also providing the money for it. We had a row, as you know, about the appointment of judges, and the DUP and Sinn Féin agreed that that power would go off somewhere else. I wonder what the Committee’s view is on where the Public Prosecution Service should be.
Mr Hamilton:
I thought that you were telling us your view.
The Chairperson:
It is your view that we are looking for; your party’s view. I am chairing the meeting.
Mr McFarland:
That is what I was trying to get you to do.
The Chairperson:
Hold on a second, it is the UUP view on the issue that we are trying to get to. Two parties have indicated that they need some further discussions.
Mr McFarland:
That is what I was trying to say to you in a roundabout way.
The Chairperson:
You indicated that you wanted to go through the list. I am allowing you to do that. It is not a debate for other people at the minute. I thought that you were going to indicate what your position is on it.
Mr McFarland:
What I am trying to point out to you, Chairperson, is that we spent quite a lot of time on this in the previous Committee. I know that you were not on a member of it, but the previous Committee spent quite a long time on this, and, because of the political situation at the time, some of the issues were glossed over rapidly. This is now a serious issue for this Committee, because this Committee’s recommendations will form the basis of the new Department and how it works.
The point that I was trying to make is that it would serve us well to pay a bit more attention to some of the issues that were scouted over very quickly the last time. I am trying to suggest to the Committee that these are issues that we need to take slowly, one at a time, and if we need more information on them, which we will do on some of them, we should do it in slow time. Does everyone agree with this?
The Chairperson:
We are dealing with category 1 matters. PPS matters relate to category 2, which we will discuss at a later stage.
Mr McFarland:
Have we not begun to discuss the matters to be devolved?
The Chairperson:
We are discussing those matters because you suggested doing so.
Mr McFarland:
No, sorry; the question suggested doing that.
Mr A Maskey:
Members from two parties have spoken, and we are hearing from a member of a third party. I thought that the purpose of going round each party was to hear their proposals and thoughts. It does no good for Alan to ask me what I think; I have already given my views, and, next week, Sinn Féin will come back with a more definitive view on the matter. I want to know whether the UUP intends to make any proposals. Perhaps, Alan should come back next week with more definitive thinking.
Mr McFarland:
I was trying to make the point that we need to know about how the policing and justice Department should be structured and what functions should be placed with it and with the Office of the First Minister and deputy First Minister (OFMDFM). Such questions lead immediately to the chart in members’ briefing packs, concerning the organisations in the criminal justice and policing fields — in other words, the structure of the policing and justice Department. On that chart, members will see a number of NIO recommendations about future sponsors, some of which have already been interfered with. For example, the DUP and Sinn Féin disagreed about where the responsibility for making judicial appointments should lie. I am suggesting that before we reach decisions about such matters, we should try to find out about what else the DUP and Sinn Féin — through the First Minister and the deputy First Minister — have decided to change.
I suspect that agreeing to most of the recommendations on the list will be fairly simple, because they are obvious; however, some items might prove to be politically neuralgic and others might not be very clever. Although, the first time around, we went through those items rapidly, this time, some of them may require slower consideration to ensure that we do not make wrong decisions. Coming back next week —
Mr A Maskey:
Do you have anything to say about any of those matters, because you will be asking those questions?
Mr McFarland:
Parties are being asked to come back next week with definitive proposals on those matters. However, although the First Minister and the deputy First Minster are able to give their views to the DUP and Sinn Féin, before asking the rest of us to make such decisions, surely, we have a right to hear about what is in their minds and, indeed, about the NIO’s latest thoughts. We have asked for that, but to suggest that the parties hurtle back next week with an agreed position on all those matters is not how the Committee should operate.
The Chairperson:
Mr McFarland, you agreed to the programme for the next number of weeks, and we are following that programme. Parties indicated that they will come back with their views, and I am happy with that. Furthermore, I pointed out to you that PPS matters would be considered during category 2 discussions.
Mr McFarland:
OK, I was just trying to be helpful. I will take a time out from protesting until next week; however, we will have the same discussion then. Although I was trying to be helpful, you may crash on if you wish.
The Chairperson:
Did you wish to make any proposals?
Mr McFarland:
As I explained, my party is in no position to make any proposals.
Mr Attwood:
It is not possible to be exhaustive, so we should just address indicative matters. For example, the SDLP raised issues concerning the structure of the new justice Department. Incidentally, given the fact that we all agreed, it should be called the justice Department, rather than the Department for policing and justice.
I shall highlight two further points raised by my party. First, given the sensitivity and difficulty with which the powers that will fall to the new Department will have to be exercised, a process must be implemented to revisit issues concerning its staffing complement. Secondly, given the history of those issues, at the point of devolution, the Department must have support in order to ensure that it is seen to be fully independent.
Mr Hamilton:
That is a little cryptic — will you provide more explanation about the meaning behind all that?
Mr Attwood:
I will not to go into any great detail because I think that we will come back to this issue. Given the nature of justice powers in the past and the controversy around those, I will use this argument by parallel: your party and Sinn Féin agreed that all appointments, apart from that of the Lord Chief Justice, will be made through a Judicial Appointments Commission. That will ensure that there is as much independence as possible and that there is input from external stakeholders, which will result in confidence. That was because people felt that there was a better way to appoint judges than occurred heretofore, and was in order to ensure that confidence in the judiciary was enhanced compared to what it might have been before.
Given that those structures were put in place around the judiciary, and similar structures were put in place around policing, it can be argued that there needs to be a new level of independence for staff of the justice Department in order to have a new level of confidence. One of the ways to do so would be to build independent support into the new justice Department so that the levels of confidence can be higher than what might otherwise be the case.
I could give a number of other examples. However, given the sensitivities around those issues, and given the need to have independence for staff and support, mechanisms could be used to bring that about — although that is not indicative of what could happen in respect of the structure.
My second point refers to the status of the justice Minister at or around the Executive table. From our point of view, the staffing of the justice Department has to be on an equivalence basis with other Departments. Neither the Department nor the Minister can be second rate — the Department and the Minister should be full and equal to other Departments in the Assembly. For all the arguments about protecting the justice and policing budget, I hope that the equal status of the Minister and the Department will be protected, particularly when it comes to staffing, finance and resources.
As a matter of record, we should also ask how the part of the NIO that will be in place after the transfer of justice functions will be structured. I want to know how many people will be in the new NIO and what the structures will be, and I want to know how much money will be left for the part of the NIO that remains after devolution. As far as the budgetary issue is concerned, will it receive an unfair share of the NIO/justice cake in respect of its responsibilities for excepted matters that will continue after justice is devolved?
If the NIO will have a significant enduring structure in the North, does that mean that a lot of money will follow it? That could have consequences for the justice budget. Alan rightly highlighted some particular matters in respect of functions. To be fair, annexe 1 is a useful document because it outlines that all the bodies that it names — unfortunately, almost without exception — fall into the remit of the Department of justice. We can argue about the relationship among those bodies, the Department of justice and the Assembly, but annexe 1 outlines that the future sponsor of virtually all those departments, agencies and bodies will be the justice Department, save — in particular — the issue that Alan highlighted, namely the relationship between the PPS and the Assembly. That needs to be defined, not least because it was proposed earlier that the funding of the PPS should be the responsibility of OFMDFM.
We opposed that idea, as we believe that the funding of the PPS falls more naturally to the Department of justice. I do not understand the argument for funding of PPS to fall to OFMDFM. It seems incongruous with the natural order of things. We need to do some restructuring and re-engineering around how the PPS accounts to the Assembly and how it is managed internally. That is why we believe that a management board should be established à la the Policing Board, irrespective of the PPS. It should not necessarily comprise political representatives, but rather people who can enhance the quality and value of the work of the PPS and who can enhance public confidence.
There are other issues arising from annex 1, which I will not go into now, but it is not a litany of issues. Nevertheless, we should address the issues that we can address, because my sense is that we have a longer lead-in time than a few weeks or months before justice is devolved.
Finally, annex 1 does not contain the role and powers of the scrutiny Committee, nor are they contained in category 2 or category 3. They might be there, but it is nonsense to talk about the structure of the justice Department and its functions if we do not also talk about the structure and functions of the scrutiny Committee in relation to all the bodies that are contained in annex 1. Although the powers of a scrutiny Committee will vary depending on the particular body, we need to work out the powers of the scrutiny body in respect of all the justice bodies, given that some bodies have different legal status, as they are agencies, non-departmental public bodies or advisory non-departmental public bodies, either in category 1 or in subsequent categories. We need to work that through as well.
The Committee Clerk:
Point O in category 1, which relates to the procedures and protocols that should be in place between the Minister and the Assembly Committee and any newly established Department and its associated agencies, may go at least some way towards addressing Alex’s point. There is an opportunity for that to be considered under that issue.
The Chairperson:
I asked for an update on staffing issues and workstreams from the NIO, and that request is contained in the letter that we discussed earlier.
Mr McFarland:
You seem to be suggesting that the Department of justice should be staffed in the same way as the Policing Board, which is effectively separate from the Civil Service. Are you suggesting that one of the Departments should not be staffed by civil servants, but rather that it should have specially recruited, more independent staff?
Mr Attwood:
No, whatever I think may be the ideal outcome, the Department of justice must be equal to all the other Departments. Therefore, it will be staffed by members of the Northern Ireland Civil Service. I am not arguing for any special treatment for the Department of justice, otherwise I will fall into the DUP trap, and I am not going to do that. There has been a lot of controversy and dispute around justice issues. Therefore, when it comes to staffing the justice Department, in addition to staff who may move across from the NIO or other Departments, there is a need for other independent staff to ensure that the work is taken forward by the Minister and his officials in a way that allows matters to move quickly with confidence.
Therefore, I believe that there should be an independent recruitment of staff to assist in the transition period before the establishment of the justice Department — over and above whatever other staffing needs might arise in the natural order of things.
Mr McCausland:
Does anyone think that Alex should get a job writing riddles for Christmas crackers? What does he mean?
The Chairperson:
Do we want to go through all that again?
Mr McCausland:
I have to listen to him; I would simply like to know what he means, because I am none the wiser.
The Chairperson:
Some of the issues are category 2, and we will have wider discussions with the PPS on several matters. There is no agreement and, therefore, we need to revisit the matter at our next meeting.
Mr Hamilton:
There is no understanding of the subject.
The Chairperson:
Parties need to come back with a more definitive view next week, when some of the category 2 issues will be picked up, and we will have a wider discussion. I remind members that at last week’s meeting, they agreed on the timetabling of the programme to get us to our first report. Do members agree to revisit that issue?
Members indicated assent.
The Chairperson:
We move on to point H:
“What arrangements need to be in place to ensure that members of the Statutory Committee for any new Department should not sit, simultaneously, on the Policing Board or any district policing partnership at the point of devolution?”
That has been reworded since last week to reflect the decision that was taken on 18 November.
Mr Hamilton:
The rewording makes much more sense than the previous version.
This issue can be dealt with in different ways: legislatively, through Standing Orders, or through a simple understanding that people will not be appointed to both bodies. The DUP is not wedded to any particular formula as long as the effect is the same and someone who is a member of the scrutiny Committee is not also sitting on the Policing Board.
Mr A Maskey:
I would have thought that Standing Orders would probably be the best way of dealing with that. As Simon said in reference to the DUP, Sinn Féin is not wedded to any option, as long as it makes sense and prevents any conflict of interest. We should probably examine what can be done through Standing Orders.
Mr McFarland:
Presumably the review of public administration (RPA) will take care of the Director of Public Prosecutions, and, in theory, no one will be able to be both an MLA and a councillor. The other matter could, as my colleagues said, be dealt with as part of Assembly business or through agreement among the parties. The Assembly route is slightly stronger legally than parties coming to an agreement.
Mr Attwood:
Although I agree with the principle, we should seek advice on whether Standing Orders will suffice, and they may.
The Chairperson:
The Committee Clerk will seek that clarification for the next meeting.
Mr Attwood:
OK; as long as we get that clarification quickly.
The Chairperson:
We may not get it that quickly, but we will get it as soon as we can.
We move on to point I:
“How, and when, should the financial negotiations with the NIO be conducted, and by whom?”
Mr Hamilton:
The political parties should handle the bulk of the negotiations. However, to reiterate a point that has been made frequently, this Committee has an important role to play in verification and independent scrutiny when carrying out some of the work that is scheduled for after the Christmas break.
Mr A Maskey:
I think that the matter is in hand. OFMDFM has indicated in discussions with the Committee that it is taking forward some of those considerations, so it is work in progress.
Mr McFarland:
It is work in progress and should be revisited.
Mr Attwood:
I agree that it is work in progress, but I think that we are cheerleading more than being really involved.
The Chairperson:
To reinforce what was said earlier; we have already agreed the appointment of someone to carry out the work that we instructed last week, and that needs to be done for the next meeting.
Moving on to J:
“Should any budget be ringfenced?”
Mr Hamilton:
Chairman, the position has not really changed from last week, in that that is a question best answered in light of the ongoing work concerning the financial system. I do not think that a decision can be made; we may have preferences as to what should be done, but I think that when there is a clearer picture of where the financial situation stands, we can come to a more definitive answer.
Mr A Maskey:
I think that the budget should be ringfenced for the Department; it is difficult to decouple that from the earlier conversation.
Mr McFarland:
Our view is that there should be as normal a Department as possible, in which case the Executive should be able to move money around if they need to. All the other Departments can do that, and I do not see why this one should be any different if it is working under normal circumstances.
Mr Attwood:
As we said last week, we believe that the budget should be ringfenced. Unless some guarantees are created, the needs of the community cannot be answered in respect of the impact and timing of the devolution of policing and justice. We believe that ringfencing the budget is one of those guarantees.
We are prepared to look at exactly how it should be ringfenced: in total, with some discretionary parts, or for a transitional period in order to build certainty and remove doubt. As a matter of principle, we think that where it comes across as part of the block grant, the budget should be ringfenced.
The Chairperson:
There is not full agreement on ringfencing, but I sense that the Committee will want to pick up on that again in category two, as the discussion on finance continues. Are members happy that we move that to category two?
Mr Hamilton:
I think we can kick it out of this category.
The Chairperson:
Are members content?
Members indicated assent.
The Chairperson:
We move on to M:
“Is there a need for further clarity of the powers to be devolved, and, if so, should they include maters relating to the Public Processions (Northern Ireland) Act 1989, flags and symbols, and recruitment to the Police Service of Northern Ireland?”
Mr McCausland:
One of the difficulties with those areas is that there is still uncertainty at this stage; for example, take public processions, we do not know the outcome of the Ashdown review. Until those things have been clarified, we prefer not to take a definitive position.
Mr A Maskey:
Those matters require a bit more consideration and we should come back to them.
Mr McFarland:
Recommendation 9, in annex 2 of our original report, said that that should be subject to review when the Ashdown report is completed. There is ongoing work to be done.
Mr Attwood:
Our principle is that all those matters should be devolved. However, cross-community protections must be put in place around matters such as 50:50 recruitment, and the Chief Constable’s appeals against the decisions of the Parades Commission. If, for the sake of argument, devolution happens sometime next year, whatever the outcome of the Ashdown review, I doubt that that will have been legislated for by then.
The Chairperson:
We will revisit that as some clarification is needed. Are members agreed?
Members indicated assent.
The Chairperson:
We move on to N:
“What needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as community safety; attacks on the elderly and other vulnerable groups; anti-social behaviour generally; sentencing policy within the judicial system; community confidence in policing; the role of the security services; and all-Ireland policing arrangements?”
The Committee agreed on 18 November that it would revisit the role of the security services and the all-Ireland policing arrangements when considering category 2 issues, C and D. All other aspects are considered to be policy matters for a future Department. Does the Committee agree to reflect that in its report? That was the basic agreement at the last meeting. Are we agreed?
Members indicated assent
Mr McFarland:
Can we move those two issues into category 2?
The Chairperson:
They have already been moved into category 2. We now move on to issue O:
“What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established Department and its associated agencies?”
On 18 November, the Committee agreed to revisit that when considering category 2 issues. Can we now move formally to put that into category 2 issues?
Members indicated assent
The Chairperson:
Thank you. Moving on to issue P:
“Should the “triple lock” within the Executive apply to decisions of a policing and justice Minister?”
Mr Hamilton:
That is probably bound up or could maybe be moved to the new category E as we are now calling it, and perhaps could be moved into part 5 of “new E”? It seems that if the Committee agrees on an issue, we agree. However, if we cannot agree, we shift that issue into this massive category.
The Chairperson:
Ok. That is your view.
Mr A Maskey:
I agree with that.
Mr Hamilton:
The Committee has only made two recommendations.
Mr McFarland:
I am happy with that suggestion.
Mr Attwood:
It is fine if we want to move that issue into E. However, the SDLP opposes the “triple lock” per se, wherever it raises its head.
The Chairperson:
Therefore, the consensus of the Committee is to move issue P into “new E”. We now move onto issue Q:
“Is there any requirement to seek to have any excepted matters devolved?”
Mr McCausland:
No.
Mr A Maskey:
Sinn Féin is happy to leave things as they are for the moment.
Mr McFarland:
No.
Mr Attwood:
The SDLP believes that all excepted matters should be devolved.
The Chairperson:
Do we have a consensus to leave matters as they are?
A Member:
Park it.
The Chairperson:
Is the Committee in agreement that we park that issue and return to it next week?
Members indicated assent.
The Chairperson:
Ok that takes us through to category 1 again. I will clarify the agreement that we made earlier. There was some confusion around my use of the word “appoint”. My understanding of what we agreed earlier was that there would be a person appointed from the Assembly’s Research and Library Service to provide financial advice. If a person was not appointed from that service, someone else would be brought in.
The Committee Clerk has been asked to report back to the Committee on whether the Research and Library Service has the necessary expertise to carry out whatever work the Committee requires on financial matters. If it does not, the Committee will need to get someone else in to carry out that work. We are not using the word “appointment” yet.
Mr McFarland:
We need to identify someone for the Committee; there is no need to decide yet.
The Chairperson:
Can we use the word identify rather than appointment, does that make it any clearer? Can we agree that?
Members indicated assent.