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Assembly and Executive Review Committee

Second Report on the
Arrangements for the Devolution
of Policing and Justice Matters
Volume Two

Together with the Minutes of Proceedings of the Committee Relating
to the Report, the Minutes of Evidence and Other Relevant Documents

Ordered by the Assembly and Executive Review Committee to be printed 25 February 2010
Report: NIA 42/09/10R (Assembly and Executive Review Committee)

Session 2009/2010

Powers and Membership


The Assembly and Executive Review Committee is a Standing Committee established in accordance with section 29A and 29B of the Northern Ireland Act 1998 and Standing Order 59 which provide for the Committee to:


The Committee has eleven members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows:

Mr Jimmy Spratt (Chairperson) *
Mr Raymond McCartney (Deputy Chairperson)

Mr Alex Attwood Mr Nigel Dodds ****
Mr Simon Hamilton *** Mr Danny Kennedy
Mr Alex Maskey ** Mr Alan McFarland
Mr John O’Dowd Mr Declan O’Loan *****
Mr Ian Paisley Jnr ***

* Mr Jeffrey Donaldson resigned from the Committee with effect from Tuesday,
26 February 2008 and was replaced by Mr Jimmy Spratt on 4 March 2008.

** With effect from 20 May 2008, Mr Alex Maskey replaced Ms Caral Ni Chuilin.

*** With effect from 15 September 2008, Mr Simon Hamilton replaced Mr Ian McCrea and Mr Ian Paisley Jnr replaced Mr George Robinson.

**** With effect from 15 September 2009, Mr Nigel Dodds replaced Mr Nelson McCausland.

***** With effect from 26 January 2010, Mr Declan O’Loan replaced Mrs Carmel Hanna.

Declaration of Interests

In any proceedings of the Committee when devolution of policing and justice matters were being discussed, Members declared the following interests:

Observer Status

On 27 January 2009, the Committee agreed to re-extend observer status to those political parties represented in the Assembly, but not represented on the Committee, when the devolution of policing and justice matters were being discussed.

Table of Contents

List of Abbreviations

Volume 1

Executive Summary and Conclusions


The Committee’s Approach

The Financial Implications of the Devolution of Policing and Justice Matters

The Category Two List of Issues, to be resolved by the Committee, pre-devolution,
but which might require wider consultation and consideration (excluding the
financial implications of the devolution of policing and justice matters)


Appendix 1

The Category Two List of Issues, to be resolved by the Committee, pre-devolution,
but which might require wider consultation and consideration

Appendix 2

Minutes of Proceedings relating to the report

Appendix 3

Papers relating to the financial implications of the devolution of policing and
justice matters

Appendix 4

Agreements, Concordats, Protocols and Memoranda of Understanding underpinning
the devolution of policing and justice matters

Appendix 5

Correspondence to, and from, OFMDFM

Appendix 6

Correspondence to, and from, NIO

Appendix 7

Other Correspondence

Appendix 8

Summary of Recommendations from the Report on the Inquiry into the
Devolution of Policing and Justice Matters – 22/07/08R

Appendix 9

Summary of Recommendations from the First Report on the Arrangements for the
Devolution of Policing and Justice Matters – 22/08/09R (which deals with some of the
Category One List of Issues to be resolved, within the Committee, pre-devolution)

Volume 2

Appendix 10

Minutes of Evidence

Appendix 11

List of Witnesses

Appendix 12

Written Submissions

Appendix 13

Research Papers

List of Abbreviations

AG Attorney General

AME Annually Managed Expenditure

CICAPNI Criminal Injuries Compensation Appeals Panel Northern Ireland

CJINI Criminal Justice Inspection Northern Ireland

CSR Comprehensive Spending Review

DEL Departmental Expenditure Limits

DFP Department for Finance and Personnel

DPP District Policing Partnership

ERINI Economic Research Institute for Northern Ireland

FMDFM First Minister and deputy First Minister

FSNI Forensic Science Northern Ireland

HMT Her Majesty’s Treasury

NICtS Northern Ireland Court Service

NIJAC Northern Ireland Judicial Appointments Commission

NIJAO Northern Ireland Judicial Appointments Ombudsman

NILSC Northern Ireland Legal Services Commission

NIO Northern Ireland Office

NIPB Northern Ireland Policing Board

NIPF Northern Ireland Police Fund

NIPS Northern Ireland Prison Service

OFMDFM Office of the First Minister and deputy First Minister

PBNI Probation Board Northern Ireland

PPS Public Prosecution Service

PRRT Police Rehabilitation and Retraining Trust

PSNI Police Service Northern Ireland

RUCGC Royal Ulster Constabulary George Cross Foundation

SoS Secretary of State

SOCA Serious Organised Crime Agency

YJA Youth Justice Agency

Appendix 10

Minutes of Evidence

27 January 2009

Members present for all or part of the proceedings:

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


Mr Victor Hewitt

Economic Research Institute of Northern Ireland

1. The Chairperson (Mr Spratt): As is customary, I invite members to declare any interests. I declare that I am a member of the Northern Ireland Policing Board.

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

3. Mr Paisley Jnr: I am a member of the Policing Board.

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

5. The Chairperson: There are no members from any other parties present. I invite Victor Hewitt to join us. You are very welcome, and we are very glad to have you on board.

6. There is no doubt that a lot of people on the Committee are worried about various budgetary shortfalls. Some of that has been in the public domain. The Committee has agreed that it will visit some of those areas, because we have to be satisfied that we have the full picture before us. We have also indicated that we will continue with the complementary process, despite what the Northern Ireland Office (NIO) has said. As we get information back, we intend to pursue that path as a Committee. We also intend to call some of the organisations at various points as we get that information.

7. I know that Mr Hewitt has already been briefed and will bring the Committee up to speed on where we are, and take some questions after that.

8. Mr Victor Hewitt (Economic Research Institute of Northern Ireland): Thank you, Chairman. My task is to assist the Committee as much as possible, in order to help you to understand what financial position you are liable to inherit when these matters are brought into the Northern Ireland public expenditure block. In the past, some elements of the policing and justice system have been within that block, but the proposals at the moment are to include further elements, such as the Court Service, which was never part of it before. In some respects, you are entering unchartered territory in doing that.

9. My experience of this, going back to the 1990s, is that matters such as security and law and order have a way of working themselves up the priority list once they are in place. Since the block is fixed overall, you will find that those matters tend to squeeze out other things.

10. I have been looking at the overall figure work for the NIO. Typically, the overall budget had been rising until the last spending review. The future projections from that are on a downward track. At the time of the negotiations a year or so ago, I mentioned to the parties that they must not forget about the comprehensive spending review out-turn for the NIO, because that was something that would be coming down the track. The temptation in the Treasury is always to put pressure on.

11. A range of issues has been identified. For example, the NIO faces a 5% efficiency cut, as opposed to the 3% efficiency cut in the Northern Ireland Civil Service. That will impact on us in two ways. First, it will mean a general reduction in the baseline of the block as a whole. Secondly, you will find that there will be less money in the organisations when they are taken over than there appears to be at the moment. Land sales have more or less dried up, so the financing of the capital programmes is under some pressure. If these bodies are brought in, they will be made part of the overall civil service reform programme. I can see no provision within any of the NIO bodies for incorporation into the reform programme. There are issues such as Account NI and so on.

12. There is a growing bill for legal claims on the police side. We have seen some quantification of that in the last few days. It may have been somewhat exaggerated, but it is a very substantial amount of money. The legal-aid budget itself is under considerable pressure. There is no provision for additional payouts for victims at the moment. Prison costs here are running well ahead of the equivalent in GB. Those are just some of the issues which will bring their own pressures with them.

13. Our task at the moment is to go through such figure work as we have available. The various bodies have been written to requesting further information. When we get that, we will trawl through it to see how it stacks up. I have had some difficulty in reconciling the figures that we already have. There seem to be some substantial changes between the figures that we were given by the Secretary of State some months ago and the updated figures. There are quite large changes in the underlying budgets. None of them seem to fit against the departmental reports either. That may be simply the result of internal monitoring exercises, moving money around, but we need to get to the bottom of that.

14. The other point that you will need to bear in mind is how you are going to fund policing and justice in the future. The Northern Ireland block is effectively tied to expenditure in England through the Barnett formula. Therefore, when a spending review takes place, the standard formula is that we get a share of comparable spending in the rest of the UK. If, for example, health spending rises, we get a share of that extra spending.

15. Comparability is usually around 100% — most of the things done in the UK are also done here. The proportion, based on population share, is about 3%. Law and order expenditure will be no different. There will be law and order elements in the spend in England, of which Northern Ireland will get a share. However, any extraordinary elements in our block that do not have counterparts in the rest of the UK will create a pressure on the block as a whole. A classic example of that is the water service; there is no comparable spend in England.

16. Those are some of the preliminary issues that the institute has identified. We are going through the figures and have, on occasion, been less than happy with the arithmetic that has emerged. I saw a freedom of information request submitted to the PSNI about overtime. The cost was broken down into civilian and police overtime as percentages of the total bill, and the total had been calculated by adding the two percentages together. That is only correct if the same overall total is being used. Therefore, an answer of 16% was given, when the true answer was 10%. Little things like that worry me.

17. Mr Paisley Jnr: Is that called cooking the books?

18. Mr Hewitt: In fact, that is shooting oneself in the foot, by stating that more than the actual amount of overtime is being worked.

19. The Chairperson: Thank you. I know that it is early days and that there is a lot of work ahead of the Committee. Members have already identified many of the issues that you have raised.

20. Mr Paisley Jnr: You posed the question of future funding, which is a matter that will exercise the Committee. Have you identified any models or frameworks for funding, or is it simply a Barnett exercise?

21. Mr Hewitt: It is very much the latter. The Treasury is very much wedded to the Barnett formula — although it may become unwedded, given the present financial crisis. The standard procedure is that once a baseline is established, it is adjusted through the various components of the Barnett formula. There are actually a large number of subprogrammes that aggregate up into the overall departmental allocation. If that is to be the case, it is important that the baseline starts from the right position. If you start with a deficit you will continue to have a deficit.

22. Mr Paisley Jnr: You have obviously started work on identifying that baseline, but, if the figures that you have at the moment do not add up, is it possible to get even a ballpark figure of where the baseline is?

23. Mr Hewitt: The figures add up in that they provide totals, but reconciling those totals to other published information is not particularly easy at present. As I said, we are at only the beginning of a process that will be studied in considerably greater detail. I have not found much information about some of the gaps that have been mentioned, and the computation of that is quite important.

24. Mr Paisley Jnr: I imagine that finding projections for expenditure by the Police Service is slightly easier because of the voluminous publications on policing compared with other Departments. Have you delved into that yet?

25. Mr Hewitt: Yes, we have been collecting the annual reports of the relevant bodies in order to get a handle on their spending. However, the general principle that applies in these matters is that about 80% of the actual spend is generated by around 20% of the bodies. In other words, there are large spending bodies that must be looked at, and smaller ones that, given the time and resources, can be looked at. As far as the finances are concerned, the budget is driven by the really big bodies such as the PSNI and the Prison Service.

26. Mr Paisley Jnr: Have you started to consider legal aid? I think that that is where the big black hole will be.

27. Mr Hewitt: I have seen some very large figures that I have been unable to verify. It is well known that the UK system of legal aid is generous, and Northern Ireland tends to be top of that list. At the moment, I feel that the legal aid budget is in substantial deficit.

28. Mr A Maskey: I want to caution myself — and, at some point, the Committee — as we progress through this exercise. I am conscious that we do not want to end up with a series of reports and figures and budget projections from various agencies that are trying to put themselves in a negotiation position. We must determine the real need. If the Committee is to play a significant role in the process during the time ahead, we need to know what is really needed rather than what might be worthwhile or a good idea [Inaudible due to technical difficulties.]. How can we ensure that we do not end up as someone else’s advocate by default?

29. Mr Hewitt: You are really talking about what are technically called needs assessment exercises, which are difficult to do. The basic idea is to take some benchmark — usually expenditure in England — and look at the objective factors that drive that expenditure, such as population figures, the distribution of the population among various age groups, and other factors that are not easily changed by human intervention. Then you look at Northern Ireland’s objective factors relative to those in England to determine how far away from that benchmark we are. That will take you a certain distance, but there will always be special factors. Given Northern Ireland’s historical background, the special law-and-order factors will be substantial. It is doable, but it is not an exact science — I wish it was.

30. Mr McFarland: Along with others here, I was a member of the Policing Board for its first five years, and I sat on the finance committee. It is clear to everyone that there are a lot of legal bills, claims bills and legal aid. An enormous chunk of money goes towards various legal expenses, on which it is sometimes difficult to get a handle. I suspect that, although we can address broad-brush issues, we need to go into the figures to work out whether we can remove any of the impediments to good use of finance.

31. Some impediments may not be moveable. For example, during my time on the Policing Board, a constable took the police to court about overtime allowances. The judge ruled that, because the constable had received £9,000 a year in overtime in previous years, he was entitled to expect £9,000 a year as part of the settlement. These weird, esoteric things happen, and, therefore, we need to mine into that area in due course.

32. The Chairperson: That was a comment rather than a question.

33. Mr Hewitt, you will, undoubtedly, examine the papers. We have a letter from David Lavery of the Court Service, in which he indicates that he is happy to reply on behalf of four other agencies: the Criminal Injuries Compensation Appeal Panel for Northern Ireland; the Northern Ireland Legal Services Commission; the Northern Ireland Judicial Appointments Commission; and the Northern Ireland Judicial Appointments Ombudsman. We have already indicated that we are happy enough that he replies, but we made it very clear that we may also seek information from the other individual organisations.

34. Mr Paisley Jnr: Does he bid for those organisations in the comprehensive spending review?

35. The Chairperson: I assume that he does.

36. The Committee Clerk: I do not honestly know. The letter only arrived yesterday. I tried to reach him to have a discussion, but was unable to. If it will be helpful, I can take that issue up and establish what the arrangements are.

37. The Chairperson: We want to be clear that we are running a complementary process. The letters that come in should be copied to Mr Hewitt. Do members agree?

Members indicated assent.

38. The Chairperson: Does the Committee note the letter from the Court Service?

Members indicated assent.

39. The Chairperson: The Clerk will speak to Mr Lavery about the issues that were raised. Thank you very much, Mr Hewitt. It has been short today. I think that we will be seeing each other on a fairly regular basis. You are very welcome to stay on or to escape.

40. We now move to the category-two list of issues.

41. Mrs Hanna: I apologise for being late. I presume that you received Mr Attwood’s apologies. I think that he is in the Chamber, which is where I am also supposed to be.

42. The Chairperson: I think that Simon Hamilton has probably escaped as well. I understand that today is particularly busy. I will note the apology from Mr Attwood.

43. I remind members that these proceedings are being recorded by Hansard. I intend to go through the category-two list of issues in the same way that we did previously — by going round the different parties. Obviously, we are not going to hear from the SDLP. We will deal with the issues in the order that they appear; I will read them and then ask the parties to make their initial comments. Issue A is whether there is a need to endorse recommendation 22 of the Committee’s original report — that the post of Attorney General should be a full-time role, at least initially.

44. Mr Paisley Jnr: I am content with that proposal. I think that the role of the Attorney General should be full time for the initial period and the set-up arrangements.

45. Mr A Maskey: I endorse that position.

46. Mr McFarland: I am also happy with that proposal.

47. The Chairperson: I think that there is consensus on that proposal. The Committee is content that the post of Attorney General be a full-time role, at least in the initial period. We move to issue B, which concerns who will be responsible for appointments to the judiciary.

48. Mr Paisley Jnr: Edward Gorringe — I think that he is the chief executive of the Judicial Appointments Commission (NIJAC). I think that NIJAC should be responsible, and I also think that some of the appointments are the responsibility of the Prime Minister. I cannot envisage when those arrangements would change.

49. Mr A Maskey: The matter was addressed in the letter from the Office of the First Minister and deputy First Minister (OFMDFM) on 18 November 2008. I am happy with the way that the matter was addressed.

50. The Chairperson: We will refresh our memories on that.

51. Mr Paisley Jnr: I am not proposing anything different. There is no political role as such, so NIJAC is the obvious body to undertake the role.

52. Mr McFarland: I would like clarification. I understand the letter dated 18 November to say that, although the proposal was that OFMDFM would appoint the judges, it was always going to be NIJAC that selected them; OFMDFM would merely make the official appointment. OFMDFM then said that it would take no further role and allow NIJAC to appoint the judges. What is the legal position on that?

53. Traditionally, NIJAC has done all the sifting, assessing whether people are adequately qualified and so on. It was then the Prime Minister, the Secretary of State or whoever who made the official appointment. Presumably, that is why the role of making the official appointment was to be transferred to OFMDFM. What are the legal implications of a sudden change being made to the effect that the body that undertakes the selection procedure also makes the appointment? That would be a different system from elsewhere in the UK. Also, who appoints members of NIJAC?

54. Mr Paisley Jnr: NIJAC is already appointed.

55. Mr McFarland: There is concern about judges being appointed by OFMDFM, but my understanding is that the people who sit on NIJAC are appointed by OFMDFM.

56. Mr McCartney: Only five of its members are political appointments.

57. Mr Paisley Jnr: I think that there are 12 altogether.

58. Mr McCartney: Yes; but only five are political appointments.

59. Mr McFarland: I would like that to be examined further.

60. The Chairperson: A briefing paper will be drawn up to deal with the points that you have raised. I think that it is around five.

61. Mr Paisley Jnr: NIJAC is a balanced commission; it has five political appointments in addition to professional commissioners. The commission could be in place for a considerable period of time, with people needing to be replaced as they die or retire. It is not a case of block appointments being made every so often.

62. Mr McFarland: I would still appreciate clarification on the matter.

63. The Chairperson: In relation to the point that Mr Maskey raised, the letter states:

“In order to ensure the independence of the Judiciary responsibilities … the appointment and removal of judicial office holders would rest with the Judicial Appointments Commission."

64. Does that provide clarification?

65. Mr A Maskey: Yes.

66. The Chairperson: Do members agree that we should park that subject until we have a look at the research paper?

Members indicated assent.

67. The Chairperson: The next item is the relationship between the Serious Organised Crime Agency (SOCA) and the security services, the Minister, the Department and the Assembly.

68. Mr Paisley Jnr: The security services should be available to give regular briefings to the future Minister and Committee, if necessary. The Policing Board receives regular briefings from SOCA and the security services. That should be the be-all and end-all of the relationship; as a devolved administration, we should have only a briefing relationship. National security is national security, and the administration and direction of national security starts and stops with the Prime Minister.

69. Mr A Maskey: We do not currently have any control or authority over the relationship. Therefore, it will probably rest, as Ian Jnr said, with a briefing role, and we will probably have to develop that. Is this really a category-three issue? In a sense, our party is easy, because I suspect that there is not going to be a change in the relationship between now and the transfer of power. Rather than return to this question next week or the week after, I suggest that it might really be a category-three issue, although I am not moving that formally this morning.

70. The Chairperson: Are you putting that formally?

71. Mr A Maskey: I am trying to look at the realpolitik of it. We will not change the current relationships as they are set out, and Ian Jnr is also making that point. Therefore, at least at this point, we would probably defer it because we are not going to change it. However, it will be on the basis that there will need to be some understanding.

72. Mr McFarland: It is most unfortunate that Alex is not here as this is his favourite topic above all else.

73. Mr Paisley Jnr: I am delighted that he is not here. Let us get it sorted.

74. Mr McFarland: As Ian said, these are national security issues. However, I believe that there is an issue – and it is the same issue that we had on the Policing Board when it was transferring this stuff from Special Branch to the security service, which is that there needed to be in place protocols and memoranda of understanding on people’s rights with regard to the access of information. One could argue that although national security is a case of just national security, other issues will arise through SOCA, whereby organised crime issues that are quite within the remit of our Police Service and Courts Service here — although handled by SOCA — are not national security issues per se. It would probably be quite useful if we had a clear idea of what those issues were before they were transferred here, and how information will be handled by our Minister and our Department and, therefore, our Police Service.

75. I understand that some of the issues regarding the Police Service are already in place — they were put in place at the time of the transfer. However, it would be useful for us to satisfy ourselves that we are not missing a trick as regards having the matter tied up before it comes across, because it may not be possible to tie it up afterwards. Therefore, it would be useful to get some idea, perhaps from the Policing Board or the Chief Constable, and perhaps even the Courts Service, as to what sort of things might need to be tied up before we transfer. Issues are involved that are outside national security, but which are handled by those organisations and will impinge on our system here after devolution.

76. The Chairperson: With regard to the memoranda, perhaps that is a point that the Committee might also like to take up with the NIO when it appears before the Committee, which we want to do reasonably quickly.

77. Mr McFarland: We have asked for those already.

78. Mr A Maskey: That is obviously the way to go in the short to medium term. However, our view in the longer term would be that some of the data-related matters perhaps need to be dealt with by being transferred into the Police Service. That is another discussion for another time. Sinn Féin’s view on that will not change tomorrow, or this side of the transfer of powers. We may never change it. Therefore, further consideration will be given to those matters. That is why I am suggesting that memoranda may be the best that we will get in the short term, and we have already started that in train with the NIO. Given that we are taking the matter forward on that basis so far at least, I am not so sure that we will get much more out of having more discussions on that every week. Therefore, I am suggesting that it might be a category three matter.

79. Mr Paisley Jnr: I take the point, and we should caution against constantly going to an issue that has already been at an operational level. I will not use the word “satisfaction", but there has been satisfactory progress and there is now a settled relationship between the Policing Board and how it interacts with SOCA and the security services. Some of us are satisfied with that and others might want to change it. However, the fact is that there is a settled relationship, and that is an operational issue. Why would we want to bring those operational matters, over which we would have no jurisdiction anyway, into week in, week out discussions in this forum? I do not think that that is necessary.

80. That is why I believe that if we can we settle on the view that if a regular briefing is established between the Minister and the Department and the security services and SOCA, that regular briefing satisfies on a knowledge basis. However, as regards a policy and operational basis, operations would rest with the police, and policy and operational direction of the security service would rest with the Prime Minister. That is the way that it should be.

81. Mr McFarland: I agree with that, but that is not what I am talking about. I understand that the NIO has agreed memorandum protocols as to how those organisations will link in with any new Department, and that has been part of the ongoing discussion. For some time, the Committee has asked for sight of those in order to understand how that relationship is to work. I am not proposing that we discuss this every week, and certainly not the operational side of things. However, I am keen to see that for which Alex keeps agitating: for the NIO to come to the Committee and update us on the position and explain how that relationship will work after devolution. It would be useful to get that issue clear in our minds before policing and justice matters are devolved. Clearly, there will be further discussion afterwards.

82. The Chairperson: In that case, the Committee agrees that it will take that issue up with the NIO, and defer it in the meantime. It is not for discussion on a weekly basis, but we will raise some of those points with the NIO.

83. Mr McFarland: Excellent.

84. The Chairperson: We now move to issue D:

“What needs to be done to ensure the maintenance of existing North/South policing and justice agreements?"

85. Mr Paisley Jnr: My party is very supportive of appropriate co-operation between this jurisdiction and any other jurisdiction with which we have to have a good security relationship with regard to sharing of information about, for example, sex offenders, drug dealing, serious crime and people trafficking. There needs to be good, genuine co-operation in place.

86. Further to the previous question, protocols are established. Let us see what they are. If we are satisfied with them, so be it. If we think that more work needs to be done, then let us develop that debate after we have explored the protocols. However, we do not think that simply establishing another formal tier in the North/South Ministerial Council will address that; it will merely amount to creating another tier. It should be dealt with appropriately by examining the protocols that exist and see whether there is work to be done. If there is work to be done, we are prepared to do it. If there is no work to be done, which I doubt, then so be it.

87. The Chairperson: We have joined together issues D and E, because they are related. What do members think?

88. Mr Hamilton: That would be sensible.

89. The Chairperson: Do members agree that issues D and E fall into each other? Issue E asks:

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

90. That has been addressed by Ian. Are members happy to join those two issues? It seems to me to make sense.

91. Mr Hamilton: We could say that we cut down on our issues by one.

92. Mr A Maskey: From Sinn Féin’s point of view, we would certainly want to maintain and continue with the agreements that already exist. We believe that it is necessary to have a justice sector in the North/South Ministerial Council. [Inaudible due to technical difficulties.]

93. The Chairperson: I do not think that any of us are 100% clear on what the agreements are in relation to some of the issues.

94. Mr Paisley Jnr: We know that they do not cover parking fines.

95. The Chairperson: We will not go into that.

96. Mr Hamilton: Ian is an expert on them.

97. The Chairperson: That will obviously come up in the protocols about which we will be talking to the NIO. Members may want to ask the Chief Constable when he next appears before the Committee what arrangements exist. Some members know some of the arrangements and co-operation that exist. I believe that those are matters that the Committee needs to tease out.

98. Mr McFarland: I agree with you. The operation of it is fairly good, but, as I recall from previous discussions on these issues, a number of legal systems will collapse on the devolution of policing and justice matters. I believe that the Committee already decided that we should replicate those systems, because they were important. Perhaps we can refresh ourselves, today or in due course, on what those systems are and what the Assembly needs to do in order to re-establish them. It would be useful, too, to get another briefing on the North/South justice sector with regard to what exists and what we need to do in order to maintain that.

99. I believe that the Committee also talked about what other developments had occurred. As you will recall, the two Governments set up a group, which was made up of civil servants, to take forward discussion on areas of mutual interest. The last time that we met with NIO officials, I think that they ducked the issue, or their answer was not quite clear. Therefore, the next time that NIO officials appear before the Committee, perhaps we could re-examine whether there are any other areas that are at present unseen — that were, so to speak, cleared away before devolution, but that may, in fact, impact on us afterwards.

100. The Committee Clerk: The issue was raised during deliberations on the category one list of issues, and it was suggested that, when the Committee became involved in category two list of issues, it would be useful to have an early session with the NIO on the whole range of memoranda of understanding protocols.

101. It is also worth pointing out that, in reflecting that issue in correspondence with the Secretary of State, he suggested that such information could be shared only after it had been provided to the two Administrations. That assertion by the Secretary of State was challenged in the most recent letter from the Chairperson of the Committee, and we have not received a reply to that. That is the up-to-date position.

102. The Chairperson: Given that the Committee is calling in the NIO, and given the wider context surrounding the financial issues, I presume that we would want to keep them two separate issues, as opposed to everything being combined into one briefing.

103. Mr McFarland: For the record, the Ulster Unionist Party does not see any need for a North/South Ministerial Council meeting on policing.

104. Mr Attwood: I apologise for arriving late, but I had to speak in the Chamber.

105. The arrangement in respect of North/South policing is between the PSNI and the gardaí. Therefore, that does not fall, in part or in full, with the devolution of justice and policing. We can certainly have a meeting with the police to discuss what that means and what more could be done, but it will fall outwith the responsibility of the Assembly.

106. The second issue is that there are elements of the justice agreement between the British Government and the Irish Government that will fall at the point of devolution, and there are elements that will continue, because they fall within the responsibility of the British and Irish Governments. However, the area that is not within their sovereign responsibility, and which is a North/South element, will fall. That is the end of it, unless some arrangement is put in place for it to continue. Given that most of this is important but politically neutral, if I may put it that way, it seems to me that the Committee should, at least, be saying that those are the elements that will fall, and will it cause us any difficulty to renew them in order that there is not a gap in, for example, protections on a North/South basis, which might otherwise happen. If that part of the justice agreement falls, the Committee should, as a minimum, be trying to get to the point whereby we can sign off on an arrangement entered into at the point of devolution between the Dublin Administration and the North Administration.

107. It would be worthwhile asking not just what the agreement says, but what is the programme of work that is being taken forward at an official level between the respective justice Ministers, so that we can get a sense of all the work that they do, and a sense that it is not a threatening mandate, but rather it is commonsense work that is necessary for the welfare of the citizens North and South.

108. There are proposals to extend that justice agreement and to have a justice sector of the North/South Ministerial Council. All of that can be outlined during the course of our conversations. For now, however, we must get our heads around whether we can agree to continue those elements that will fall on the day of devolution, and then take forward from that the other elements on which we might potentially agree.

109. Mr A Maskey: To return to Alan’s point: relevant, ongoing structures already exist, and I suppose that it would be possible to work around them. With regard to issue E, we believe that a justice sector of the North/South Ministerial Council is needed. It would probably be helpful to identify what currently exists within those structures. I suppose, therefore, that the specific question is what needs to be done. Do we need legislation? Do we need to ask for legislation? We need to work out exactly what currently exists. Let us answer that question, because it may well be answered very simply. [Inaudible due to technical difficulties.]

110. The Chairperson: I sense that the Committee needs to have further discussion on that matter. We are pretty much agreed that we want to speak to the NIO about protocols, and so forth. I ask you formally whether we agree that D and E are joined as one issue.

111. Mr Hamilton: Agreed.

112. The Chairperson: Perhaps around the middle of February, given our work programme, we can schedule an early meeting with the NIO on the specific issue that we just discussed, and take it from there. Therefore, we will park the issue in the meantime until those arrangements are made. The Committee Clerk’s office will go ahead and make those arrangements for a convenient time in the not-too-distant future.

113. Mr Attwood: I propose that if this is a North/South justice arrangement, it seems to me that we should invite officials from the Department of Justice, Equality and Law Reform, because it is not a one-sided issue. They might have a view about what should or should not happen on the far side of devolution. It seems to me that in order to complete the circle, we should invite the other partners in the current arrangements without prejudice to whatever future arrangement we might propose.

114. Mr Paisley Jnr: I have no objection to that in principle, as long as it carried out separately. I hope that they do come. They did not come the last time the Policing Board invited them. It would be interesting to see if they could come.

115. The Chairperson: But that would be separately?

116. Mr Paisley Jnr: Absolutely.

117. Mr Attwood: Separately on the same day, or around the same time anyway?

118. The Chairperson: We will see what arrangements can be made. I am not going to be tied down. I want to give the Committee staff some flexibility to arrange an appointment, and I will not tie them down to dates.

119. Mr A Maskey: Can we ask the NIO to provide us with some of that information in writing before its officials appear before the Committee? I believe that the Committee would find that useful.

120. Mr Hamilton: It would be useful in every case for witnesses to provide a written briefing.

121. The Chairperson: OK. We will arrange for the Committee office to start to deal with that matter.

122. We shall now proceed to issue F:

“What is the extent of the financial provisions for a department which would exercise the range of policing and justice functions?"

123. Mr Hamilton: Think of a number and multiply it by 100.

124. Mr McFarland: That is Victor Hewitt’s area, is it not? We discussed that already.

125. The Chairperson: Yes, the Committee discussed that at an earlier stage and decided that we would deal with it as a separate issue. Letters were sent out after the briefing that we received from our specialist adviser. I do not see any real value in a round-table discussion on the matter now. We are waiting on advice and on letters to come back.

126. Mr Paisley Jnr: Issue I in the category one list, to which a reference is appended to issue F, asks:

“How, and when, should the financial negotiations with the NIO be conducted, and by whom?"

127. I think that members need to cast their minds with regard to how that would function. Would that involve, for example, the justice Minister working up his bid, taking it to the Minister of Finance and Personnel, and the Minister of Finance and Personnel then making a proposal? That is how other Departments operate. Is it the same sort of arrangement that we envisage, because we may have a different arrangement for justice money? It might be funny money. How do we conduct those negotiations — [Inaudible due to technical difficulties.]

128. The Chairperson: That might be an issue that the Committee might want to take up with the First Minister and deputy First Minister, too.

129. Mr McFarland: OFMDFM told us in its letter that it and the Finance Minister will be negotiating with the NIO and the Treasury for that first tranche. Thereafter, presumably it becomes a normal function of government. Money will come in accordance with the Barnett formula and, presumably, the Finance Minister, in discussion with the Minister for justice, will then talk to OFMDFM and, once it is in place, it will become a part of the normal budgetary process. I understood, however, that OFMDFM and the Finance Minister will negotiate for the initial tranche.

130. The Chairperson: Can we then defer issue F and come back to it?

131. Mr Attwood: I would like to comment on the point that Ian made — which, if I understand him correctly, is a valid point. Whatever negotiations are going on between OFMDFM and the NIO, there may be some point in the Committee thinking through some of the overarching issues. Therefore, the question posed, for example, by issue J in the category one list of issues — “Should any budget be ‘ring-fenced’?" — is something that the Committee might want to consider in its deliberations. I suspect that the London Exchequer will try to bend OFMDFM to accept that, in order to get some financial guarantees up front, OFMDFM might begin to send out signals as to, for example, what the total size of the Police Service might be in due course. I can envisage the Committee — not, perhaps, now but in four or five weeks’ time — wanting to converse generally about overarching issues such as that and ring-fencing budgets, along the lines that Ian outlined.

132. The Chairperson: Can we park that in the meantime? The finance issue is, obviously a big one and one to which the Committee will return, and I imagine that we will return to issue F frequently.

133. Let us now turn to issue G:

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

134. Mr A Maskey: On a minor procedural matter: could issue G not just as easily be included in issue L?

135. The Chairperson: Does the Committee agree to reallocate issue L to issue G? Issue L now reads:

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

136. Mr Paisley Jnr: I believe that we are slightly ahead of ourselves on issue G and that we really need to await the publication of the Ashdown report and see if there are any significant changes to what we assumed would be in it. Therefore, I think it may be premature to discuss that item.

137. Mr McFarland: Have we a timescale for the publication date?

138. Mr Paisley Jnr: I have no idea. It might be worthwhile the Committee Clerk trying to find out how long is a piece of string.

139. The Chairperson: We can do that.

140. Mr Paisley Jnr: Simon Hamilton is interested in issue L.

141. Mr Hamilton: I know that there has been controversy about some aspects of issue L, and we have discussed whether we should be even delving in to them. As with some of the Committee’s other discussions, it will, perhaps, take time to reach a definitive position on that. The point was made previously that the subject of flags, for example, is difficult enough without lumbering it with additional problems. Having received a hospital pass to talk about issue L, I would like more time to reflect on that.

142. Mr A Maskey: The point has already been made that we cannot deal with the Ashdown report on parading until it is published. The other two things that Sinn Féin is content to include are — [inaudible due to technical difficulties.]

143. The Chairperson: I am not sure that Simon did not indicate that he had a query on the category three list of issues. He said that we needed to see the Ashdown report first in order to see what emerges from that.

144. Mr McFarland: The parading issue needs to be sorted before devolution. Uncertainty cannot remain around the issue of parades because, if disagreements were to take place on it every year, it is the one issue that would put the policing and justice budget into orbit. The issue needs to be sorted for good. Given that, among other considerations, it is not clear whether Ashdown will recommend that the remit of the Parades Commission be extended, we should park the issue.

145. The matter of flags and symbols, which is set out in issue L, was dealt with some time ago. It is covered by legislation, and it was part of the original agreement; and system of recruitment to the PSNI is sorted out in 2010 when the current system will return to normal. Therefore, those are, in a way, non-issues, and I am not sure who raised them in the first place because that are not directly related to our considerations.

146. The Chairperson: I believe that they came out of one of the party leader’s letters and party submissions. Most of the issues that were raised came out of party submissions.

147. Mr Attwood: Given that the Committee has reached this stage of its discussions, the NIO and the Ashdown report team owe it to us to provide some certainty about their progress on the issue of parading, which, to some degree, is hanging over the debate. Ian — cryptically — talked about where the Ashdown team might be in respect of its proposals, and I suspect that it will dilute its proposals as time goes on.

148. In the run-up to devolution, one of the first questions that people will be asked, after questions on finance, is how parades will be managed if there is a bad season. That is part and parcel of the financial discussions that might take place, so the Committee should ask the NIO when it expects that Lord Ashdown will publish his report. As I understand it, the membership of the Parades Commission is due to be advertised this year as its term has concluded.

149. Mr McCausland: It has been extended for a year.

150. Mr Attwood: When was that announced?

151. Mr McCausland: It was announced very quietly. Towards the end of 2008, the current term was extended for a year.

152. Mr Attwood: Has it been extended until May 2010?

153. Mr McCausland: I think that it was due to run out in December 2008, and it has now been extended until December 2009.

154. Mr Attwood: Even at that, if new legislation were to result from Ashdown’s report — and I hope that there is not much — December 2009 might yet be the time at which justice is devolved or not. There needs to be some certainty about where they are, when they will be published and what the Government might do. I suspect that those questions will be met with a very loud silence; however, I think that we must find out where things are.

155. The Chairperson: Would it be more appropriate for me to write to Lord Ashdown and ask him exactly what the position is at the moment? Is the Committee in favour of that?

Members indicated assent.

156. Mr McCausland: We talked earlier about finance, and now we are talking about parades. Every year, the cost of policing protests is astronomical. It would be helpful if the PSNI could give us a sense of the cost of its policing operations. There is clearly a connection between the financial issue — which is considerable — and reaching a proper resolution on parades and protests.

157. The Chairperson: The police have a breakdown of costs.

158. Mr McCausland: It would be useful to have that.

159. The Chairperson: Those questions can be asked; the figures can be made available.

160. Mr McCausland: It is worth getting a global figure.

161. The Chairperson: We move to issue H:

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

162. Mr Paisley Jnr: In order to keep the strapline of the Public Prosecution Service — to provide an effective prosecution service — it should be attached to the Department of Finance and Personnel (DFP). Essentially, the relationship will be about ensuring that the Public Prosecution Service (PPS) is properly financed and resourced, but ultimately independent of the Government.

163. The Chairperson: This came from category one.

164. Mr Paisley Jnr: The rationale is that there is a financial relationship with that agency. [Inaudible due to technical difficulties.] There is no ministerial role.

165. Mr A Maskey: We think that it should be linked to OFMDFM. [Inaudible due to technical difficulties.]

166. Mr McFarland: I am curious as to how this is handled in Scotland, which is the closest mirror of our system. At a previous meeting, the Republic of Ireland’s Court Service and the Scottish Court Service briefed us; however, I cannot quite remember how they handled this matter. They had changed their systems to try to protect the agency and to ensure that there was no question of any perception of political interference or budgetary constraints on the PPS. Can we park this until we find out how it is handled in Scotland?

167. The Chairperson: We can return to it next week.

168. The Committee Clerk: Would it help if — [Inaudible due to technical difficulties.]

169. Mr McFarland: Yes; it is worth reminding ourselves what they said. The head of the Public Prosecution Service has a view on this; perhaps the Attorney General-designate has a view. This issue has been neuralgic for some time now, and it is worth getting more advice from those involved in order to get it right.

170. Mr Attwood: Ian’s comments confirm one of the issues around that, namely that the height of accountability for the PPS will be around administration and finance. Although that is significant in itself, I do not think that it is the range of accountability that it should. That is why one of the post-devolution issues will be how we can get a better accountability culture around the PPS without interfering with its independence. I think that that can be done, and I think it essential that it is done.

171. I may have misunderstood Ian, but the Minister and the Committee will have a very particular role around the administration and budget of the PPS. It is not that that independence will mean that you cannot touch the agency; it is that the agency will have to account for how it spends and administers the money. I do not think that DFP is the right place for that; the justice Department would be a much more appropriate home. The nature of the business that that Department will be carrying out will mean that it will have a much better knowledge of how the justice pound is being spent. If it has responsibility for all of the justice agencies, then it will bring to the accountability function an insight borne of the fact that it lives in that world. In my view, it would be very useful to ensure that one of the biggest budgets in the justice system — that of the PPS — is spent and administered appropriately. I do not think that it would compromise its independence by being placed there.

172. The Probation Board is an independent body, as is the justice agency; a whole range of organisations are independent bodies, but will be part of the justice family and the justice Ministry. The PSNI will be so more than any other body. Whatever its level of accountability to the Assembly, subject to the role of the Policing Board and the district policing partnerships, it will be in the justice family. No one is saying that, because it will be in the justice family and there will be a justice Minister and a justice Committee, it will be any less independent. In parallel, I think it is self-evident that the PPS should go into the justice Ministry arrangements.

173. I do not understand why, given all of the evidence, the PPS should be any different. Why should the PPS be taken out of all of that and given to DFP? It is the first time that I have heard that suggestion, but I understood that there was to be a conversation between Sinn Féin and the DUP around the function staying with OFMDFM. It is the first time that I have heard that DFP is going to be the preferred home, as the DUP sees it, for the future of the PPS.

174. The Chairperson: I think that that issue has been looked at a previous meeting on the category-one list. That is my recollection.

175. Mr McFarland: Was the original NIO recommendation that it went to OFMDFM?

176. The Chairperson: Maybe we can come back to that in the additional information. We are not going to resolve this today because there are three different views on where it should be, and at least one party has asked for more information. There is more information coming back. Is the Committee agreed that we park this issue for the moment?

Members indicated assent.

177. The Chairperson: We move then to issue I:

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

178. Mr I Paisley Jnr: Can you read recommendation 27 to the Committee?

179. The Chairperson: Recommendation 27 states that:

“The Committee recommends that the independence of the PPS and its accountability to the Assembly should be examined before, and following, the devolution of policing and justice matters to produce recommendations which would, in turn, be considered by the Assembly."

180. Mr Paisley Jnr: What do you think that means?

181. The Chairperson: I thought that you were going to tell us.

182. Mr Paisley Jnr: It is a recommendation of our Committee, but it is open to interpretation. It is a reporting function, but it not as though it is just an annual report. It is more than that. I would like to park the issue.

183. Mr A Maskey: We are happy enough to come back to this. However, we think that it sits more readily with OFMDFM.

184. Mr McFarland: This is the issue that Alex has just raised, as to how these organisations should be accountable to us. There are two aspects. One is the provision of administration and finance for these organisations; we are paying their bills. The Assembly should be interested in how they spend their money and should have the ability to question whether they are doing it wisely. There is the administration side — are they working well? We look at everything else through the Departments.

185. That is one aspect; the other is more difficult. As you know, we were warned off this issue by a number of senior legal figures — I leave it at that — who did not want politicians anywhere near any of this. However, if the public is paying the bills, and our constituents complain about how badly things are working, the Assembly will want to have the ability, not to question the judgement of judges, or the PPS on its decisions as to whether to prosecute, to hear the evidence. There is an issue of broad policy which will interest the Assembly and its Committees.

186. The question is how we do that. The original proposal was that the Attorney General would turn up every so often in the middle of the Assembly, sitting on a little dais, and be open to questions. The issue is whether the Committee can speak to the Lord Chief Justice or the chief executive of the Court Service, and how all that is to work. This question is related to that. One can argue that that will go live on devolution. Post-devolution, we may want to have these people talking to the Committee and Assembly and so on. These issues have to be discussed. They are extensive and, politically, potentially fraught. Perhaps we should park them and refresh our memories as to what the various organisations said to us, using our original report, which contains a lot of evidence from senior legal figures about this. We can discuss it in due course, but not today.

187. Mr Attwood: When the original recommendation was proposed, the word “before" was not included. I proposed that that should be incorporated, and I had reasons for doing so.

188. I will characterise what I have been looking at. Over and above the fact that there is going to be some relationship to a Northern Ireland Department, there remain issues about how the PPS conducts its own internal affairs. A management board should be created to manage the internal affairs of the PPS because of the extent of Assembly and ministerial responsibility for its finance and administration. However, that is different from hands-on management responsibility. A management board should be created, and it should be structured out of the current management of PPS. I do not say that I recommend that model but, one way or another, we have got to a point where responsibility for managing the police without compromising its operational independence comes through a Policing Board made up of politicians and community representatives. There is a need for a management board, composed of appropriate people — I do not prejudge who they should be — to be responsible for managing the Public Prosecution Service. I anticipate that such a management board would reflect a range of interests and inputs on how the PPS can best be managed.

189. We should begin to probe into some policy areas at this stage, because they are very important. For example, during discussion on either the Preparation for Government Committee or the Programme for Government Committee — I cannot remember which one — there was a unanimous agreement that we were unhappy with the current PPS policy in relation to giving reasons for cases collapsing or prosecutions not being pursued. That arose from a particular, prominent case in which prosecutions were withdrawn that were very relevant to this Building and to neighbouring buildings. At that stage, the Committee unanimously agreed that we should look at the policy for instances when cases collapse or are not pursued and that, within reason, more should be done by the PPS in respect of that. That is a critical policy issue.

190. In our negotiations with the British Government at Hillsborough, when the British Prime Minister agreed to a range of SDLP proposals, the one that he, Jonathan Powell and the then Lord Chancellor resisted was to do with the giving of reasons. That was the one issue that provoked most resistance and opposition from the British systems, both legal and political. There is a reason for that. We agreed unanimously, and we should look at the issue of giving reasons in order to determine whether we can develop that policy further, because it is very restrictive at the moment. It would be useful to look at that as a representative issue.

191. I am looking at the structural matters to do with the PPS and relevant policy areas around the PPS. Given that we have a number of months before policing and justice powers are devolved, we should probe into those areas now. It might be useful if parties were to prepare very short papers on the matter. The SDLP is certainly prepared to produce a paper, in indicative terms, on what some of the issues might be in relation to that.

192. Mr Paisley Jnr: Alex has opened up a real can of worms. Creating a board or quango to look at the Public Prosecution Service, which is a non-departmental organisation would be, to put it in the kindest terms, overkill. It is fraught with so many dangers. The strapline for the Public Prosecution Service must be that it is independent; it is very difficult to understand how a board could be created that would not, in some way, upset that independence. That is especially true if that board were to examine issues, as the Policing Board does.

193. If there was a disagreement at a board meeting about what cases are and are not pursued, it is easy to imagine the disarray that would result within the Public Prosecution Service. How about a discussion about sentencing arrangements for some particular person? Take any recent case that has not been prosecuted — for example, the case against Nuala O’Loan for breaching section 63(3) of the Police (Northern Ireland) Act 1998. The Public Prosecution Service said that the evidential test for prosecution had been met but that it was not in the public interest to prosecute her. Imagine what a political football that would be at a meeting of the PPS board.

194. The issues that that proposal would open up are incredible. Alex has put some ideas on the table, and we all need to go away and reflect on the implications of those but, for the record, I believe that a board such as that proposed by Alex would be fraught with real danger.

195. I am not opposed to getting explanations as to why a prosecution is, or is not, being pursued. Indeed, that happens with victim conferencing. When the victims are brought in, they usually meet the senior prosecutor. They can see, and have read to them, the senior counsel’s decision as to why a case has not gone to prosecution. I have seen that happen. There is an explanation role, and it does tend to work. However, there is the odd case where it does not work, and those cases usually become problematic. By and large, however, it does work. We must be very careful about entering into a situation where we start — [Inaudible due to technical difficulties.]

196. The Chairperson: My sense is that parties may be given more time to discuss the issue, and we will come back to it. Parties need to go off and reflect on what has been said this morning and come back on this very serious issue. Are members agreed?

Members indicated assent.

197. Mr Attwood: I will prepare a paper anyway.

198. The Chairperson: A thesis?

199. Mr Attwood: Just a paper.

200. The Chairperson: I thought that someone referred to a thesis.

201. Lunch is available outside the door. We still have two or three issues to deal with.

202. Mr Paisley Jnr: I propose that we come back to those issues next week. There is a debate in the Chamber, which is due to last for three hours, and I am going to be called into the Chamber.

203. Mr A Maskey: [Inaudible due to technical difficulties.]

204. The Chairperson: Are members happy to adjourn the meeting and call it quits? Lunch is available to members outside the door. I hope that it has not got a parking ticket.

205. We are stopping at item I. That leaves items J, K and M to deal with. I suggest that when we start with those issues next time. Are Members agreed?

Members indicated assent.

3 February 2009

Members present for all or part of the proceedings:

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

206. The Chairperson (Mr Spratt): I remind members that this part of the meeting, which is on policing and justice issues, is being recorded by Hansard. I intend to proceed in the usual manner. Last week, the Committee agreed to resume at issue J, which has now become new issue I on the category two list of issues. I sometimes think that we should have started by discussing the last issue before moving to discuss issue I, but we will take them in the order in which they are laid out. New issue I states:

“In relation to Recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?"

207. Mr Paisley Jnr: As I believe I said last week, I am happy to consider and hear suggestions on how that should be taken forward. My gut instinct is that, because the role of the Police Ombudsman is supervisory and over-arching, the Secretary of State should make that appointment. My reason for suggesting that is so that the Police Ombudsman has a level of independence from the institutions here. However, neither I nor my party is hard and fixed in that view, and we will consider any other suggestions that are made and come to an arrangement of the matter. We think that there is merit in ensuring that that appointment is seen to be transparent and outside of the influence of parties here that may have to question or be questioned by the ombudsman.

208. Mr A Maskey: Sinn Féin’s preference is for the matter to reside with the Office of the First Minister and deputy First Minister (OFMDFM). I take Ian’s point, and, at the centre of the issue, we must consider the independence of the system. However, that is built in, and is being built in, by the provisions and the recommendations that we are making. Therefore, given the cross-community nature of OFMDFM and the importance of that function, our preference is for that matter to reside with OFMDFM.

209. Mr McFarland: Where did this issue lie in the expectations of the NIO on its famous chart? I understood that, under the current legal remit, the ombudsman answers to Parliament and that that was not due to transfer across when policing and devolution is devolved.

210. The Committee Clerk: Perhaps there is some confusion. The specific question is about who should give the advice on who should be appointed as the Police Ombudsman. The Committee has already agreed on the financial allocation of the Police Ombudsman, so you are now considering only the issue of the appointment of the ombudsman.

211. Mr McFarland: Where is the ombudsman to go? In the past, that issue has been kept well away. We discussed the matter with the Policing Board last year, and the view was that, as Ian said, the Police Ombudsman was to be so independent that it had nothing to do with us here. It would, so to speak, be on a link into Westminster rather than into us.

212. The Committee Clerk: The proposal which, I believe, the Committee endorsed was that the Office of the Police Ombudsman would be an executive non-departmental public body that would be answerable to the Department of justice. However, that is not the issue that we are now considering.

213. The Chairperson: We should be considering the appointment of the Police Ombudsman.

214. Mr McFarland: I presume that the appointment of the Police Ombudsman will be similar to that of judges and the Judicial Appointments Commission (JAC).

215. The Chairperson: It has been suggested that OFMDFM undertakes the advisory role in relation to the appointment of the Police Ombudsman, and Ian Paisley Jnr has suggested that the Secretary of State deal with it. Ultimately, we are considering who should play an advisory role on the appointment. It will fall within the remit of the Department of justice, and the role will, therefore, be scrutinised by the associated Committee.

216. Mr McFarland: The selection procedure will be sensitive, as is the case in the appointment of judges. The judges were put out to the JAC so that it would not be possible to prevent or allow favoured candidates to be successful. That is less of an issue now, because the rushing round that was part of the ombudsman’s remit previously will transfer elsewhere, so he or she will be dealing with police officers only — as we thought would be the case originally. It is, therefore, likely to be less of a neuralgic issue.

217. The Chairperson: The position of Police Ombudsman will be advertised publicly, I believe. The Committee is trying to establish from where the advisory role will come.

218. Mr McFarland: I thought that the appointment lies with the Secretary of State.

219. The Chairperson: The Secretary of State does make the appointment at present.

220. Mr McFarland: I understood that his Department makes the selection as well; there was no advertisement previously.

221. The Chairperson: I think that there was, Alan.

222. Mr McCartney: It was advertised.

223. The Chairperson: It was a public advertisement; but we will check that, because I suspect that there are different opinions on the matter. We need to do more research and find out the criteria when Al Hutchinson was appointed, and how that was done. That should provide us with some assistance in making our decision. Are members content?

Members indicated assent.

224. The Chairperson: We proceed to new issue J:

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

225. Some of that was relocated from issue O in the category one list of issues on 25 November. It is, probably, bound in with issue K. That is where I felt that issue K should be discussed before issue J. However, we agreed on the order, and it must be followed — unless I am directed to deal with issue K first. Are members happy to proceed with the issues as they appear?

226. Mr Hamilton: We could deal with them simultaneously, but discuss issue K first.

227. The Chairperson: I will have to read issue K. Will we discuss issue K first, or will that be confusing the issue again, because we did separate them?

228. Mr Hamilton: In that case, keep them separate.

229. I will address issue J. There is a relationship between the resolution of issue K and issue J. As discussed previously, we should see how day-to-day relationships between the Committee, Minister and the Department work in other jurisdictions.

230. Scotland, for example, had to increase the number of its justice Committees from one to two so that different aspects of the work could be carried out. I am not by any means proposing that we have two Committees, but it would be interesting to see why Scotland had to do that and how it operates on a day-to-day basis. We should also examine how the system operates in the Irish Republic and other places with similar systems. We can learn lessons from other jurisdictions. That is why there is a benefit in going to the jurisdictions to see how their systems work.

231. Mr A Maskey: The same procedures that apply to Ministers, their Departments and agencies will, by and large, apply to the new Department of justice.

232. Mr McFarland: If there is to be a normal Department, it should be treated as a normal Department. The only slightly confusing issue is the business of the Policing Board.

233. The Chairperson: That has been dealt with already.

234. Mr McFarland: It is the same issue: how the Committee links in with the agencies. The Policing Board is an agency and part of the Department. Part of the overall picture is how the different organisations will operate. Logically, they would operate on the same basis as a Committee — if it has an interest in an issue, it calls forward interested parties, such as the chairman of the Policing Board or the Chief Constable, and is able to have a relationship with them and have a chat with them to find out what is going on.

235. Mr Hamilton: I failed to make that point earlier, and other members have. I cannot see any radical difference in the structure or operation of a Committee scrutinising the Department of justice than any other Department in the Executive. However, Alan has made a reasonable point. There is a difference with the Policing Board, which is unique, and we will have to construct our own lines of demarcation between ourselves and the Policing Board. There are also issues of sensitivity, and that creates a different perspective. By and large, I think that it would operate in exactly the same way as any other scrutiny Committee.

236. Mr McFarland: The Committee has, I believe, built a fairly good working relationship with the Policing Board and the Chief Constable. When we first approached the matter, it could well have been an issue, but it has ended up not being an issue. From our previous experience on the Preparation for Government Committee, there was an issue with the judiciary and the level to which politicians should be involved. It was made clear to us that politicians should not go anywhere near Court Service matters. Some exploration must be done in linking in with that part of the Court Service, because, clearly, there are sensitivities – perhaps for very good reason – and the worry is that politicians will start interfering with judicial decisions.

237. The Court Service itself is fairly easy. When David Lavery appeared before the Preparation for Government Committee, he was quite open to the idea of coming to talk to a Committee. Therefore, we have some exploration to do with the more formal structures of the criminal justice system.

238. The Chairperson: For the purpose of the Hansard report, I state that the SDLP is not present. Alex Attwood has left the Committee to go to the Chamber.

239. There is a fair degree of consensus on how we will deal with this issue. The only provision is that we will probably want to look at what is happening in other places. We are agreed that it will work on the same basis as any other Committee. Are members agreed?

Members indicated assent.

240. The Chairperson: We will do some more work on that issue when we have looked at Scotland, the South, and whatever other places we hope to examine, and add a few more bits and pieces to it. That will also include a paper on the PPS, on which the Committee Clerk is working and which should be ready in a couple of weeks’ time.

241. The Committee Clerk: If that is not ready for next week, it will certainly be ready for the following week.

242. The Chairperson: We now move on to the final issue – new issue K in the category two list of issues:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?"

243. Mr Hamilton: This matter is extremely important, and the Committee is committed to resolving it. However, the issue will require further discussion, and my party would like some time to do that.

244. Mr A Maskey: We are still considering the matter. It is an important issue, and we have not finalised our view on it.

245. Mr McFarland: Our view, as you well know now, is that it should be a normal relationship, a normal Minister, identified in the normal way, and who has a normal ministerial relationship with the Executive.

246. The Chairperson: Although the SDLP are not present, I assume that they would echo what you have said.

247. Mr A Maskey: Just as a matter of interest, what is a “normal" Minister?

248. Mr Paisley Jnr: If you find one, point him out. – [Laughter.]

249. The Chairperson: More work, therefore, needs to be done, and there needs to be more discussion. So, we are parking that issue in the meantime. That brings us to the end of policing and justice matters for today.

17 February 2009

Members present for all or part of the proceedings:

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


Mr Victor Hewitt

Specialist adviser

Mr Stephen Pearson

Economic Research Institute of Northern Ireland

250. The Chairperson (Mr Spratt): I welcome Mr Victor Hewitt and Mr Stephen Pearson. Victor has been before the Committee before, and both he and Stephen will be speaking to us over the next number of weeks as we delve into the task that we have been given. I remind you that the evidence session is being recorded by Hansard, although the record of the proceedings will not appear in the public domain for the time being.

251. I ask Committee members to declare any interests. I declare an interest as a member of the Northern Ireland Policing Board.

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

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

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

255. The Chairperson: If you are leading the discussion, Victor, we will go over the information that you have given us and ask questions afterwards.

256. Mr Victor Hewitt (Specialist adviser): Thank you, Chairperson. We have received most of the returns from the various agencies to the letter that was sent to them. However, we are pursuing a couple of stragglers. We had only a few days to have a preliminary look at the responses. We have tried to put the information that they provided on to a common format, and we have translated some of it into a graph index, on which it is easier to see the trends in expenditure.

257. We have been sifting through the papers and making other enquiries. We detect that the various bodies are keen to have the opportunity to put their case to the Committee, but, indirectly, they also want to lodge bids for resources. We are not just receiving information; they are making a plea to their sponsor body, which is the Northern Ireland Office (NIO).

258. We have attempted to sort out those bids, and we have still to complete that work, but we are trying to put the bids into three categories. The first category is “major pressures", which are clearly not covered at present and are inescapable. Money that has yet to be identified will have to be found to address those pressures. The second category is “other pressures", which may become inescapable and appear to be difficult to cover. The third category might be best described as “aspirational issues", and that category covers bodies that are bidding for resources that, in the normal course of events, they may be expected to absorb using their own funds, such as pay and prices pressures, to which all bodies are expected to make a contribution.

259. At present, we have identified four areas of concern under “major pressures". The numbers in those areas keep moving around, but the first issue is legal aid, which is experiencing a substantial shortfall in its budget — I will return to the numbers in a moment. The second issue is the cost of inquiries. The third issue is hearing-loss claims against the Police Service of Northern Ireland (PSNI). The fourth issue is the knock-on effect of the equal-pay claim, and the Northern Ireland Civil Service is dealing with that issue. I will explain how that interconnects with the NIO element — it comes in through the PSNI.

260. We asked for information across the entire comprehensive spending review (CSR) period; that is, starting from 2008-09 and going through to 2010-2011. We asked for information from all three years because, in a sense, we wanted to see how the bodies coped with any pressures that they identified in the first year — 2008-09. With only one month of 2008-09 to run, 2008-09 is almost completed. Any pressures that were identified in 2008-09 have been dealt with in some way or other. Therefore, it is only 2009-2010 and 2010-11 that are now particularly relevant. When looking at the figures, one should focus on the final two years of the CSR period rather than the entire CSR period. Somehow or other, the first year of that will have been covered, and the Committee may wish to raise with any witnesses that are called how they dealt with the pressures that were identified in the first year of the CSR period.

261. The main driver of legal-aid costs has variously been described as expensive cases or complex cases, and legal-aid provision has consistently fallen short. During the current year, a Legal Services Commission bid to the NIO for approximately £20 million was successful. To that, another £4 million was added from the Legal Services Commission’s own reserves and various other pots of money. Therefore, £24 million was made available on top of its provision for this financial year, more or less ensuring that this year’s bill was met.

262. The future years are always speculative. It is a bit of a moving feast, and I hope to have an opportunity to speak to the Court Service — the Legal Services Commission’s sponsor department — to try to establish a clearer view on that. Certainly, over the next year, and possibly over the next two years, one is looking at a shortfall of somewhere in the region of £36 million, although an upper limit might be almost £60 million. Obviously, clarification is needed.

263. Mr Paisley Jnr: You say that you are looking at a figure of £36 million, but that figure could be as much as £60 million?

264. Mr Hewitt: If one looks at its returns, the Legal Services Commission starts off with a very large amount of money, but that covered everything in year one. The figure remains at £60 million for the next two years. Figures that I obtained from other sources suggested that that might be a slightly large figure, so I need to sort out with the Court Service exactly what its overall —

265. Mr Paisley Jnr: That would be the original £24 million on the £200 million to which your paper refers?

266. Mr Hewitt: Yes.

267. The cost of inquiries is an interesting vehicle. Essentially, the NIO has been meeting the cost of inquiries on an ongoing basis but meeting it from the shortfall in its expenditure each year. That carry-forward is more or less exhausted, so the NIO faces a pressure of around £46 million for the remainder of the CSR period. Again, that figure is an estimate, because the cost of inquires tends to grow, and the NIO would not expect to have available end-year flexibility to cover that pressure, so it is a genuine one.

268. Mr Paisley Jnr: Is that for the five specific inquiries, which are Wright, Finucane, Hamill, Bloody Sunday and Rosemary Nelson?

269. Mr Hewitt: Those are the ongoing inquiries, as far as I understand.

270. The next two major pressures are pressures on the PSNI. One is an inherited claim on hearing loss that goes back quite a number of years. I understand that ear protection for training on firearms ranges was not available in the 1970s or the 1980s, and, when it did become available, it was not mandatory. By the time it became mandatory, it was nearing the end of the relevant period. A substantial number of individuals have potential claims. The estimate that I have for claims is somewhere in the region of £98 million, but, again, that figure is a moving feast.

271. The Chairperson: There is only a 50% uptake at present, so that figure has the potential to increase dramatically. We must be careful about that and ensure that we quantify accordingly.

272. Mr Paisley Jnr: I assume that you received that figure from the police.

273. Mr Hewitt: We received it from the NIO.

274. Mr Paisley Jnr: Did the NIO mention any other pending inquiries or claims? Were flak-jacket claims mentioned?

275. Mr Hewitt: The NIO mentioned equipment claims for injuries to backs, for instance.

276. Mr Paisley Jnr: I hear that the total could be twice the amount that you mentioned.

277. Mr Hewitt: It is difficult to say, because few of those affected have come forward. There will be some environmental claims as well.

278. Mr Paisley Jnr: Are those claims anything to do with Sammy Wilson?

279. Mr Hewitt: They are not related to your colleague.

280. None of the environmental claims has crystallised to the point where it is possible to put a figure on their value. However, you should be aware that other claims are in the pipeline.

281. The equal-pay claim for low-paid civil servants is another interesting issue. You will have heard Department of Finance and Personnel (DFP) announcements on the ongoing negotiations between itself and the unions about the size of that claim for the entire Civil Service.

282. The PSNI is caught up in the situation because a number of the civilian personnel of the PSNI was recruited through the same Civil Service mechanisms. There is a feeling, therefore, that if the Civil Service is liable for its low-paid personnel, the PSNI should be liable for its low-paid personnel. That bill is a moving feast, potentially, although not to the same extent as that for inquiries. It would be prudent to imagine something in the order of £20 million in back pay. To that, one must make provision for an ongoing cost, because salaries that had not been expected to increase, will increase.

283. Taken together, those pressures will amount to around £200 million. We regard those as inescapable pressures that will have to be met, one way or another, and for which there is not adequate provision at this time.

284. One can identify at least as much again in other claims, but we are still in the process of sorting the wheat from the chaff over what claims are inescapable and what claims will be absorbed normally by the body.

285. I want to take the Committee’s mind on how one might proceed with the financial inquiry. The Committee will have a range of options. First, it could act merely as the recipient of information provided by the bodies and collate it into an overall picture, or, secondly, it might wish to take a more active and probing approach to the information that it has been given, in order to challenge, to some degree, the validity of some of the claims that are made.

286. I am not sure as to how the Committee will wish to proceed on that, because it creates two different costing situations for us. There is a difference in the Committee’s having a role in an inquiry and in its merely collating information.

287. It is up to the Committee to decide whom to call, but I suggest that the groups associated with the inescapable pressures are candidates to be interviewed. Beyond that, groups with a substantial budget should be given some priority by the Committee — even if they are not identified as being a major pressure. Therefore, that is where we are at. I am now happy to take questions.

288. The Chairperson: Thank you for that, Victor. You mentioned the policing budget, which the Committee has discussed to some degree. However, those of us who sit on the Policing Board will be aware that some of the pressures are being pushed. That budget must be signed off by the end of March, and it is now being frantically worked on. It is already in the public domain that some of the pressures are being pushed into next year’s budget, which leaves the PSNI in an even worse position as its moves into the next budgetary period. The budget will be more than £30 million, and we will have to tease that out. Therefore, we need to bring organisations along, and we need to put on record some of the substantial pressures that are being placed on the Budget.

289. Issues concerning the Court Service and the Prison Service also need to be considered. A document on newbuilds for courts is out for consultation, and I am not sure whether the NIO has costed that, but we need to get some idea about it. There are also pressures on the prison establishment for new prisons. The Criminal Justice Inspection Northern Ireland has made recommendations on Hydebank Wood young offenders’ centre. There could be substantial spends in some of those areas, and we need to get an idea of those spends.

290. I will open up the floor to questions on the various papers, but, first, we need to decide on the order in which we can begin to contact people, because, when today’s meeting has finished, we will have to notify potential witnesses for our evidence sessions. I am not sure whether we can get any witnesses in time to attend next week’s meeting, but we need to start planning for the meeting on 3 March. We need to schedule the people whom we are going to see and decide how we will do that over the next few weeks.

291. Mr McFarland: If representatives from the Court Service are appearing to talk about financial issues, presumably we can also discuss their thoughts on the structures in the Court Service, because, when its director, David Lavery, appeared before the Committee, he had some interesting thoughts on the way forward. We could therefore take the opportunity to discuss structures with witnesses from the Court Service rather than call them back to appear before the Committee a second time.

292. The Committee Clerk: I do not see any reason why we cannot do that. I can inform the Court Service of our intentions.

293. Mr McFarland: We will get only one go at negotiations with the Treasury and the NIO between now and the end of March. If we do not get those negotiations right, we will suffer further down the line. Equal-pay claims, for example, should be left to the NIO to sort out before the matter transfers across to us. Their messing-around led to the inequality in the first place, so it seems silly to expect us to resolve the issue.

294. Elements of the proposals from the Eames/Bradley Consultative Group on the Past might be adopted. The whole business of the inquiries and the work of the Historical Enquiries Team (HET) should remain within the NIO’s budget. Presumably, costs will not come out of our policing budget. I will leave that matter to be dealt with.

295. On the subject of hearing-loss claims, Committee members who are on the Policing Board will know better than I do, but I sat on the Policing Board’s finance and general purposes committee for several years, and there was a great tendency to simply agree on issues without challenging them.

296. I spoke to the chairman of the Policing Board the other day. I wonder whether we are being robust enough about hearing-loss claims, but colleagues on the Policing Board will know whether we are. For a long time, the board automatically paid out on claims on the grounds that it was cheaper to pay out than to fight them.

297. Mr Paisley Jnr: The board does not do that any more.

298. Mr McFarland: I know that. When the Policing Board began to fight claims, the number of claims made decreased. I understand that the situation started with firearms instructors, who, given their job, are more likely to submit hearing-loss claims. Age affects people’s standard of hearing, and, in fact, my hearing is deteriorating. Therefore, if everybody jumps on the bandwagon, anyone who was ever a police officer will receive compensation. Is the board likely to fight that type of situation or will it simply put its hands up and accept that, at the moment —

299. The Chairperson: At the minute, the board is putting up a fight. It is examining cases, and it intends to continue to do so.

300. Mr McFarland: Therefore, the board is looking at claims case by case?

301. The Chairperson: Some work is currently in the judicial system, and the Committee cannot get involved or ask questions about that, because the board will not discuss the matter with us, the police or anybody else. When representatives from the board appear before the Committee, they will not discuss details of specific cases. Some cases are driven by the legal profession, which is, in effect, advertising and telling people who served as police officers within a certain period that they are likely to have suffered hearing loss. Everybody trundles along and submits a claim, and it creates, as Alan said, a snowball effect. I mentioned the 50% uptake, because the figure of £98 million could turn out to be much more.

302. Mr McFarland: May I ask a question about legal aid? Legal aid is, technically, unending. Is the budget for legal aid limited, or does it continue limitlessly each year? The only way in which to estimate budget requirements for legal aid is to analyse the previous year’s costs. Is it possible to cap legal aid? There was an argument in England recently because the legal-aid budget was capped as a result of its getting out of hand. Is that the case here?

303. Mr Hewitt: I am not entirely familiar with the process, but legal aid is clearly a rising cost. I understand that solicitors consider people’s circumstances and what resources are available to them when deciding whether to grant legal aid. However, once legal aid has been granted, it appears to be difficult to control. However, as I said, I am not entirely familiar with the procedures, so I will look into that matter.

304. Mr McFarland: In a busy year, if the legal-aid budget is used, is it impossible to grant legal aid thereafter? Or do we identify that the budget will run out and cap the level of legal aid to ensure that everybody receives some aid but not as much as is required? It is useful for the Committee to understand that black hole in the system.

305. Mr Hewitt: I will enquire about that matter.

306. Mr Paisley Jnr: The Committee must be careful about how it approaches the matter. I understand Alan’s view that some people in various organisations are over-egging the pudding and inflating their bid, and so on. It is not the Committee’s job to analyse how much money each body receives. We should deal with facts, and consider how much money bodies receive and for how much they bid. Moreover, as is outlined in Victor’s paper, we must determine what we believe they need for the remainder of the current CSR period. We proceed on the basis of expected costs and whether we can achieve sufficient supply in order to meet that cost. That is one level that we should take it at, but it is a very short-term level.

307. The paper provided does not address the longer view, and it is essential that the Committee get to grips with long-term issues. What will the policing and justice budget be after summer 2012? Assuming that the devolution of policing and justice powers continues, that there are no hiccups and that it rolls on with political support, how will we make a reasonable and fair calculation when submitting a bid to the Northern Ireland Office? Should we consider the current budget and estimate £200 million, plus 2% for inflation?

308. How do we make a longer-term guess? When the NIO transfers powers, we should inform it that not only should the moneys come across, but that it should use a formula for transferring money to supply the very needy, and very greedy, bodies in the longer term. We need to take that approach.

309. We should not analyse how much money each body receives, but not because we do not have the appetite for doing so. We would all be very old men by the time that we assessed all the bodies to ascertain whether they were wiping our eye or were bidding for too much. That is not our role; that is the role of a scrutiny Committee. Let us get to grips with the ballpark figure of what the process will cost. We could then identify where the gap is, plug that gap and then take a longer-term view of how we receive moneys from the NIO to meet bodies’ needs. We should take that approach.

310. Mr A Maskey: That is fair enough, but the difficulty is that, in order for us to understand what needs to be sorted out, we must perform some robust scrutiny. I do not want to spend the next year going through each body’s budget either, because that will take considerable time. From my experience of the Policing Board, it is like smoke and mirrors. It is a most unsatisfactory process.

311. We could not hope to conduct that level of scrutiny. However, Victor spoke about aspirational issues, of which that is one. We must be mindful that we are not a sounding board, or somebody else’s negotiator. The figures that have been presented may not be realistic. They may be, but when the police presented figures in different papers to the Policing Board, those figures were vastly different over a period of a couple of weeks, simply because there was a row at the Policing Board. I was very angry about that process.

312. I do not simply want to pass on somebody else’s wish list. Alternatively, I do not want to pass on very deserving bids.

313. Mr Paisley Jnr: We will have a tab on that over the next 10 years.

314. Mr A Maskey: In order for us to put a tab on what we think is realistic, we will have to conduct a certain amount of robust scrutiny. It is about achieving a balance, because I do not want to give somebody the opportunity to tell the Committee how much they want and need. What that person says may be 100% legitimate, but it may not be. Some of that may be a good idea, but we could do it next year, or in a different way.

315. Mr Hewitt: Both points are well made. I am particularly concerned about the longer term. We envisage that a position will be reached at which those functions will be transferred along with a budget. Thereafter, they will fall within the purview of the Northern Ireland block — into the assigned budget, as it is called. That assigned budget is driven by the Barnett formula. For policing and justice in future years, Northern Ireland will receive a share of what is being spent additionally on the policing budget in Great Britain.

316. If the baseline at which the powers are transferred is not right, there will be very substantial deficits and very little additional moneys coming across. It is a very rough rule of thumb, but considering the numbers in this area in Northern Ireland, a 2:1 ratio would not be far off the mark. In other words, we tend to spend twice as much, on average, as is spent in Great Britain on many policing and justice issues.

317. This is an expensive area. I suggest that the Committee may want to work towards a statement of principle with the Treasury. At the time of the 1998 comprehensive spending review, it was envisaged that the Prison Service would be downsized and that certain arrangements would be made. The documentation for that comprehensive spending review included an expression about making provision for all known pressures. It is very important to know the pressures for which one should make provision before moving to a different financing regime in future. As I said at our first meeting, those issues tend to push their way up the priority list. They are very difficult to avoid, yet the resources would have to be found from elsewhere in the block.

318. I remember when the policing of parades drove up overtime hours to astronomic levels, and in those days, provision for that had to be found by removing money from capital projects, because that was the easiest way to make that provision. Given the nature of the public-expenditure regime that we have now, money cannot be moved from capital into current. Money can be moved from current into capital, but not from capital into current, so that route is closed off. Other areas of current expenditure would have to be raided in order to meet those pressures. Those are some of the longer-term options that could, perhaps, be thought about.

319. In relation to the other point made by Mr Maskey, I believe that — for the credibility of the Committee, if nothing else — it would be wrong to for the Committee to be a sounding board for organisations. The Committee should ask some questions of those people and require them to justify their budget claims. That is my personal view, of course.

320. Mr Attwood: Thank you for the presentation. If nothing else, the evidence that we have heard this morning and all the documents that we have seen have given us a snapshot of the budgetary position for all these organisations, or at least the significant ones. That allows us to look at the issue with our eyes wide open.

321. My own view is that when all the figures are extracted, the situation that has been presented is benign. The situation is going to deteriorate generally, not least because, I presume, there is going to be a further demand for efficiency measures by the London Exchequer, which will work its way across the Irish Sea to here.

322. I was attracted to the idea of a statement of principle that Victor outlined. The Committee might be overreaching itself if it were to try to create that, but I hope that some statement of principle will be agreed elsewhere between the NIO and other people who are negotiating these matters. The NIO and London have to acknowledge, in order to help the North to become even more stable, that policing and justice arrangements must be kept stable for a significant period of time. Previously, those arrangements were such a point of friction in our community that it is important now to ensure that, one way or another, that is not the case in the future. Therefore, when it comes to these matters, a political statement of principle must be accepted by London.

323. Having said all that, I believe that the people whom you suggest that the Committee should speak to are the right ones. If speaking to those people will help us to identify where the hard issues are and where the real bottom line is, that is as good a place as any to start. Therefore, I agree that the Committee should speak to the organisations that you recommend.

324. This may be beyond the scope of your involvement to date, but in your contact with the relevant groups, are you getting any sense that the budgetary issues are getting resolved? The First Minister and deputy First Minister have said that they hope — that is the word that they used — that by the end of the financial year, which is now six or seven weeks away, the budgetary issues between the devolved Administration and London will be resolved.

325. Given that you have identified a £200 million budgetary pressure, are you picking up from those organisations that those issues are part of the discussions? If those matters are part of the discussions, are you getting any sense that they are getting resolved? In particular, are you picking up anywhere along the line an indication that a conversation is occurring between the NIO, the devolved Administration and the police about reducing the police numbers, as has been proposed by HMSC and the NIO?

326. The Chairperson: I do not think that the issue of police numbers is relevant; we are dealing with financial issues.

327. Mr Attwood: It is relevant because 80% of the police budget is spent on staff costs and thus relates to police numbers. Therefore, it is relevant to ask whether, in respect of the police budget, you are picking up on a side discussion going on about a reduction in police numbers.

328. Mr McCartney: I do not think that that is an appropriate question to ask Victor.

329. Mr Attwood: Of course it is.

330. The Chairperson: No; I do not think that it is. Those are points that we can raise legitimately with the police.

331. Mr Attwood: People are looking at the financial figures and are having conversations at some level, and it is fair to ask whether they are picking up on what those conversations are about.

332. The Chairperson: There is no suggestion from the submission by the Police Service that any such discussions are going on. It is unfair to draw the advisers into that.

333. Mr Attwood: There are other questions that they can answer.

334. Mr Hewitt: I will give a partial answer. Clearly, the major axis will be between DFP and the NIO when settling the overall Budget Estimates for the NIO responsibilities that might be transferred. The Treasury will be the other major party in that. Those engagements are actively proceeding; it is no secret that the Minister of Finance and Personnel is determined that the financial aspects be resolved satisfactorily before those matters are taken forward. In that sense, a parallel operation is taking place to the Committee’s inquiry.

335. I am not aware about the issue of personnel other than the issue of the full-time reserve being phased out. That is now the subject of a security review. According to the Patten Report, the budget is predicated on the full-time reserve being phased out, but if the security review came to a different conclusion, that would bring an additional pressure. That is the only personnel issue with the police of which I am aware.

336. The Chairperson: Efficiency measures and the fall in receipts of the sale of land and properties because of the fall in prices must have an impact on the some the budgets.

337. Mr Hewitt: That has had an impact, but I am not sure that that is an enormously large problem in the NIO area. The fall in property prices is clearly a large problem in areas such as social housing. I do not have the exact numbers, but I can find out the amount of capital receipts that was budgeted for. Such matters are considered over the course of a single year.

338. To take an example from outside the NIO, the collapse of the Workplace 2010 scheme meant that a receipt of £175 million did not come in this year. That is an in-year pressure. It is not that £175 million does come in every year; that needs to be dealt with for one year, and once that year is past, one is in clear blue waters. There is a similar situation with the police estate. One can see that the police are under pressure to dispose of property and that this is not a particularly good time to do that.

339. The efficiency savings are not only a matter for the police. The Chancellor has indicated that he wants to raise the target for efficiency savings from 3% to 5% for UK Departments, including the NIO. Those efficiency savings are effectively cuts, because they are cash-releasing savings from Whitehall Departments. The consequence for Northern Ireland is that they will be translated through the Barnett formula, which works both ways, up and down. That will result in a “down" to the Northern Ireland Budget and to the Scottish Budget. I understand that that is being resisted, and the Minister of Finance and Personnel said that in the Chamber. That would be a further pressure on the overall Budget for Northern Ireland.

340. Mr McFarland: Given that the Policing Board is responsible for people and buildings and that the budget is devolved from the NIO to the Policing Board, is there an issue of propriety or potential for a row with the Policing Board over why the Committee is talking to directly to the police, and not to the Policing Board, in the first instance? It is a question of how the issue should be handled.

341. The Chairperson: We will be talking to the Policing Board.

342. Mr McFarland: So, we do not see the Policing Board getting in the way of the list of three?

343. The Chairperson: There will be another list, and I anticipate that we will call the Policing Board fairly early.

344. Mr McFarland: So, the Policing Board will not get upset about not getting called before the police?

345. The Chairperson: We will work that out in a minute or two. Once we get the list, we will work out the order in which we should call witnesses. Perhaps we should group witnesses, so that they are called on an ordered basis.

346. Mr Paisley Jnr: I wish to return to the issue of disposal of the police estate. The police may take an operational decision to close a building, but the building would remain the property of the Policing Board. The Policing Board can decide when to dispose of it. To whom do the receipts go, and to whom would they go in the future? Would they go to the Policing Board, would they go to the justice Department or would they go to the Treasury?

347. Mr Hewitt: That depends partly upon what has been negotiated between the bodies, and partly on the size of the receipt. If it is a very large receipt — probably over £10 million — the Treasury would take a particular interest in it. However, in the first instance, the receipt would go back to the body that owns the property and, normally, be used within its budget. We must distinguish between planned receipts and unplanned receipts. Usually, planned receipts are built into a budget; for example, a body is given a certain amount of money, and it is assumed that it will generate a certain amount of additional money from the sale of the property. Combined, those two things will fund that body’s operations. If, during the course of a year, something is identified as being surplus to requirements, but was not built into the budget, that is an additional receipt, and, quite often, it comes down to negotiation between the two bodies.

348. Mr Paisley Jnr: Can we get absolute clarity on that point? It will probably take some good work from Victor, but as I understand it, the PSNI is planning to close around 50 or 51 stations. Even if it decides to do that, the decision of when to dispose of those stations, if ever, remains entirely with the Policing Board. One assumes that they would want to dispose of those stations; however, the timing of the disposal — involving as it does market place offers, and so on — would be crucial. If the Policing Board decides to dispose of those stations, up to, or after, 2012, who gets the benefit of that money? It might help us with our calculations if we factor in that a number of the receipts from closed and sold stations could come back to the Department or go directly to policing.

349. Mr Hewitt: I will look into that for you. Most of the information about receipt lines should be within the Policing Board budget; however, I will make the necessary enquiries.

350. The Chairperson: The forensic science laboratory feeds off the policing budget. It is something of a moveable feast from year to year, depending on the cases, and so on; however, it needs a set budget, too. As an agency, it charges the PSNI for its services; therefore, in order to make a projection, we need to tease out with the PSNI what the spend has been in that area over the past number of years.

351. Are there any other questions? We will try to put our questions into some sort of order, and work out a table as a result of that. Two issues are, I assume, the PSNI and the Policing Board. There is a table of spend for each Department, which might be helpful.

352. Mr McFarland: The Ad Hoc Committee on Criminal Justice looked at the changing role of the Probation Board, which was mightily expanding its role to look after prisoners from the moment that they appeared in the dock until the moment that they left prison. One of the points made by that Ad Hoc Committee was that there had to be a proper budget allocated to that. Given that that is in the process of happening, it is worth keeping an eye on whether that is factored in somewhere. If it is not factored in until after the devolution of policing, suddenly, an extra budget will have to be found.

353. The Chairperson: This is a bit of a lottery now. We will try to group them after that.

354. Mr McCartney: Many of those groups feel that their budget is satisfactory. I assume that we can rule them out immediately.

355. The Chairperson: I imagine that there is no point in calling a group that says its budget is satisfactory. I am looking for recommendations as to whom we should call.

356. Mr Paisley Jnr: I will start the bidding then. On this list, you have already proposed 1, 2, 3 and 4. I propose: 5, 6, 7, 8, 9, 10 and 13.

357. Mr McFarland: Not the Policing Board?

358. Mr Paisley Jnr: I want you to propose something, Alan.

359. Mr McFarland: The bill for the Legal Services Commission is not due to its functioning. Have we a bill for the administration of that body? It is difficult to estimate: we have talked about it already, and it could be up, down or all over the place. The £65 million is made up mainly of legal aid costs.

360. Mr Hewitt: Yes. Legal aid accounts for the bulk of that figure. The administration costs are a fraction of it.

361. The Chairperson: We need clarity as to that figure. I heard it mentioned this morning that it may be as high as £80 million. You have a figure of £38 million and other figures have been talked about: we need to tease out of them exactly what the sum is. In other parts of the United Kingdom, budgets have had to be capped as a result of spiralling costs.

362. Mr Hewitt: I have given some additional figures, but the sum varies a great deal. We covered those costs in 2008-09 by bidding for £22 million from the Department. They brought a £2 million transfer from Court Service funds and they used a £2 million cash balance. That made £24 million, which covered that pressure. However, the pressures built up again in the final two years, and according to the table, they amount to £60 million in the final two years. Later this week, I will meet with the Court Service and go through these figures with the officials in some detail, if the Committee agrees.

363. The Chairperson: We will call them, anyway. Alan, do you wish to call any others?

364. Mr McFarland: I would like the Committee to call the Ombudsman’s office, if the Eames/Bradley report is accepted. The bulk of the Police Ombudsman’s office now deals with historic matters, and it has taken on many extra staff and detectives from all over to deal with them. However, they will be hived off into the Historical Enquiries Team area, so that the Ombudsman will be left dealing with current policing matters. Presumably, an enormous swathe of his budget and personnel will go off with them. If that happens, and the historic stuff is left with the NIO, these budgets could change quite a bit.

365. The Chairperson: Should we call any other organisations?

366. Mr Attwood: OFMDFM and the NIO want to have this matter concluded. We have five or six weeks before the end of the financial year and we need to move quickly. Therefore, we should consult with a very short list of organisations. I agree with Victor’s recommendations. We should call the Legal Services Commission, the Court Service, the Northern Ireland Office and the PSNI. That is where the budgetary pressures lie, and given the time frame in which we have to work, that is the way that we can best direct our energies.

367. Mr McCausland: The organisation that was left out earlier was the Policing Board.

368. Mr Hewitt: Will the Committee ask the Policing Board about its own costs or about its responsibilities for the wider budget?

369. The Chairperson: We will research the possibilities for the wider budget.

370. Mr McFarland: The Prison Service is an enormous expense, and the cost per prisoner here is completely out of kilter with that in the rest of the UK and elsewhere. Why it costs something like £58,000 to keep a prisoner for a year here is going to become a major issue.

371. Mr Hewitt: The figure is closer to £84,000.

372. Mr McFarland: Either way, the figure is enormous compared with that in GB. The Prison Service is a big spender, and we may need to have a chat with some of its representatives.

373. The Chairperson: Did you also mention the Police Ombudsman, Alan?

374. Mr McFarland: If the Eames/Bradley report is implemented — and I do not know whether it will be — an entire chunk of the Police Ombudsman’s office will go to the Legacy Commission and the Historical Enquiries Team. Presumably, that will mean that the Police Ombudsman’s office will come to us with a much leaner cost base of about £9 million.

375. The Chairperson: That is one of the issues that we will raise with the NIO. There is also an issue with the RUC GC Foundation. It was promised a museum many years ago, and the NIO was supposed to be involved in negotiations concerning a sum of between £4 million and £5 million. We need to tease out exactly what is happening between the NIO and the RUC GC Foundation, because that may be a pressure that emerges. I will not die in a ditch over whether the RUC GC Foundation is called before the Committee, but the issue needs to be raised with both the foundation and the NIO.

376. Mr McCartney: The RUC GC Foundation has raised the issue.

377. The Chairperson: My understanding is that a promise was made to the RUC GC Foundation. When policing and justice is devolved, I do not want us to suddenly find a £5 million promise that we did not know about beforehand.

378. Mr McFarland: In the Ad Hoc Committee, an issue was raised about the rapid expansion of the Life Sentence Review Commissioners. Do you remember that that system was changing? Does the budget figure for the Life Sentence Review Commissioners relate to the new organisation or the old one?

379. Mr McCartney: It relates to the old organisation.

380. Mr McFarland: Do you remember that there was discussion about those commissioners increasing in number?

381. Mr McCartney: They were to become sentence review commissioners rather than Life Sentence Review Commissioners.

382. Mr McFarland: That is right. The commissioners were to dramatically increase in number and have more staff, premises, and so on. I wonder about the figure listed there, because I am not sure whether all that has happened yet.

383. Mr Attwood: That has happened, and the paper states that the figure listed relates to the new organisation.

384. Mr McFarland: Is that the new figure? I have not read the paper in detail.

385. The Chairperson: We will clarify that.

386. Mr Attwood: Alan’s wider point questions whether the Prison Service has enough money to do all that it is meant to do in respect of prisoners who may come before the parole commissioners. Big money is needed for that, and it is unclear whether the Prison Service has that money.

387. The Chairperson: We can ask that question to representatives of the Prison Service when they are here.

388. Mr McFarland: The Probation Board is also tied in with that issue. It is supposed to be delivering a lot of those things, but it is unclear how much of that is in its budget.

389. The Chairperson: Meetings with those organisations need to be worked into a schedule, and the Committee office will do that. If an issue that is raised requires people to be brought before the Committee towards the end of the process, we will do that. We have still not been given any information on the state pathologist.

390. The Committee Clerk: We have not received a reply; therefore, I have no idea on that one.

391. The Chairperson: We will keep the pressure on, and we will pass that information on to you as soon as we receive it. The figure involved is almost £2·2 million, but we can make a decision once we receive the relevant information.

392. We will need a week in which to notify these people; we have to give them the opportunity to appear before the Committee. That will be at the meeting on 3 March.

393. The Committee Clerk: It will be on 4 March.

394. The Chairperson: Yes, 4 March. Those sessions will take place in the Senate and will be public.

395. Mr A Maskey: Is there a way of asking some of them to be here next week, because people such as David Lavery —

396. Mr McFarland: The witnesses will be expecting to come, because we have already told them that we are likely to call them. Some of them may well be able to come earlier, and if they can do so without inconveniencing —

397. The Chairperson: If any of the witnesses is available to appear before the Committee — if we can get a couple of them to attend next week — the Committee office will notify members by email about who will appear. We have a short meeting planned, but if we can get some of the witnesses to come along, that will be some of the work done. I imagine that getting some of the bigger players might be difficult without giving them some notice; we will have to give a reasonable period of notice to people such as the Chief Constable.

398. The Committee Clerk: I gathered from the discussion earlier that it would be better to have witnesses appear before the Committee on a single subject. If representatives from the Court Service and the Legal Services Commission were invited to appear on the same day, that would allow the structure of the questioning to run with a theme. If the Chief Constable and the Policing Board were to be invited to appear together, I may then have some scope to slot in the other witnesses around those arrangements.

399. The specialist adviser has said that he plans to have discussions with the Court Service later in the week. There may be a question over how soon the Court Service would be in a position to come along. If we could manage it that way, I would have some flexibility to organise a programme, which would then be issued to members as soon as possible.

400. The Chairperson: Are members satisfied with that approach? That is a reasonable approach.

401. Mr Hewitt, are there any other issues that you want to cover? You will be with us at the sessions —

402. Mr Hewitt: Yes, we had planned to provide the Committee with briefings for those sessions, provided that we can get some advance notice of whom the Committee is going to see. I take it that the Committee has no objection to our speaking to the organisations to clarify detail beforehand?

403. The Chairperson: I do not think so. You will be available if there are questions on the day; the Committee Clerk tells me that the system can allow for that.

404. Mr Hewitt: Yes.

405. The Chairperson: You will be with the Committee anyway, and you will be able to feed questions through to members. Although you will not be able to ask a question directly, you can feed questions through to anyone through the Committee Clerk if there are issues.

406. Mr McFarland: Do we all get earpieces?

407. The Chairperson: We can talk into our sleeves.

408. I ask members to bear in mind that the Committee felt it important to have this discussion in closed session today. We are not hiding anything; everything will be revealed as witnesses are brought along to the various sessions. I ask members to bear in mind the confidentiality of the discussions this morning, and I ask that there is no speculating in the press. I do not think that that would be helpful to this process. We are trying to get the best deal possible for the eventual devolution of policing and justice issues. It is a big area on which there could very easily be speculation. There is a whole range of areas to cover. The other meetings will be in public session, so issues will be coming into the public domain as we question people. Are there any other issues?

409. Mr McCartney: Can we have the completed list of whom we are calling?

410. The Committee Clerk: One through to 12 are: the Legal Services Commission; the Northern Ireland Court Service; the Northern Ireland Office; the Police Service of Northern Ireland; the Northern Ireland Prison Service; the Public Prosecution Service; the Youth Justice Agency; the Probation Board for Northern Ireland; the Forensic Science Agency of Northern Ireland; the Compensation Agency; the Northern Ireland Policing Board; and the Policing Rehabilitation and Retraining Trust. There may be more clarification from the RUC GC Foundation by correspondence or through our specialist adviser.

411. The Chairperson: Clarification on the museum issue.

412. Mr McFarland: Why is the Police Rehabilitation and Retraining Trust on the list?

413. The Chairperson: The Police Rehabilitation and Retraining Trust is based at the Maryfield complex in Holywood. There is an issue around the Forensic Science Agency’s laboratory, and a section of the NIO is in some sort of discussion, but we do not know —

414. Mr McFarland: If there is a reason for that, that is fine.

415. The Chairperson: The reason is that there would have been a £5 million pressure on the NIO had the Police Rehabilitation and Retraining Trust been moved from Maryfield to re-accommodate the Forensic Science Agency, which is currently located at Seapark, Carrickfergus. The Seapark site would have required an entire rebuild had the Police Rehabilitation and Training and Trust been relocated to there, which, obviously, is an issue.

416. Earlier, we mentioned other issues around the Court Service, such as the consultation document on the IT equipment that has to be installed into various courts around the Province. The document mentions six, seven or eight courts. Obviously, there is spend there, and we must get to the bottom of that.

417. The Committee Clerk: As regards Mr McCartney’s question, I wish to clarify that, at present, the Office of the Police Ombudsman is not included on the list. The Committee will want to pursue, with the Secretary of State, the question about the Historical Enquiries Team and whether that budget will transfer across to result in a leaner Office of the Police Ombudsman, and whether, at this stage, the Committee wishes still to call it the Office of the Police Ombudsman.

418. The Chairperson: On the financial issue, the Committee must talk to some of the players — from the Police Service of Northern Ireland and some other bodies that members mentioned already — before we bring in the NIO. Once we have clarity on some of those points, we will raise them with the NIO.

419. Mr Paisley Jnr: I thought that we were leaving the NIO until near the end.

420. The Chairperson: I know that the Committee wants to speak to the NIO about other issues, but I am merely talking about the financial issues. It may well be that some of those other issues will arise when the NIO officials are before the Committee.

421. We agreed that the Committee is open to suggestions as to who should be called to give evidence. We can do that once we have held a meeting to clarify certain points on some issues. Are there any other issues?

422. I thank Victor Hewitt and Stephen Pearson for attending this evidence session. I hope that from your point of view, this has been a helpful exercise. I know that your work is ongoing, and I understand that the Committee Clerk will review the list as soon as he makes arrangements with the various bodies. We will keep you up to speed with who is attending the Committee and when. That will also help you to sort your diary. The Committee appreciates your help and assistance with the matter, but much work remains to be done.

423. Mr Hewitt: Thank you, Chairman.

24 February 2009

Members present for all or part of the proceedings:

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


Ms Anne McCleary
Mr Mark McGuckin
Mr Robin Masefield
Mr Max Murray

Northern Ireland
Prison Service

Also in Attendance:

Mr Victor Hewitt

Specialist adviser

424. The Chairperson (Mr Spratt): I welcome representatives of the Northern Ireland Prison Service. I welcome Robin Masefield, the director general, Mark McGuckin, the director of finance and personnel, Max Murray, the director of operations, and Anne McCleary, the director of services. We anticipate having up to an hour for the meeting, during which time the witnesses will give a brief opening statement, leaving time for Committee members to ask questions.

425. First, I invite Committee members to declare any interests. I declare an interest as a member of the Northern Ireland Policing Board.

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

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

428. The Chairperson: Alex Maskey, who is absent, is also a member of the Northern Ireland Policing Board.

429. You are very welcome. This is a crucial issue for us at the moment. We are dealing particularly with the financial aspects of the devolution of policing and justice, and I am sure that members will have quite a few questions.

430. Mr Robin Masefield (Northern Ireland Prison Service): Thank you. We very much appreciate being given the opportunity to appear before the Committee, and we thank you for allowing us the time to do so. I will keep my remarks very brief. I am grateful to my colleagues, who have been introduced already.

431. Mr Gary Boyd, who is our chief accountant and head of financial services, is here along with my head of press office. However, the four of us at this table will aim to deal with all your questions.

432. On 6 February 2009, I responded in writing to the Committee Clerk’s questions. I am conscious that that was a slightly shorter and crisper response than some other organisations might have provided, but I do not wish to eat into the Committee’s time for questioning.

433. Four key issues face the Northern Ireland Prison Service. I am also conscious of yesterday’s debate in the Assembly. The first issue to face the Prison Service is the Criminal Justice Order (Northern Ireland) 2008. The previous time that some of my colleagues and I appeared in the Senate Chamber, we were questioned on our views on and preparedness for implementing the draft Order.

434. Secondly, the Northern Ireland Prison Service estate has had a fair amount of investment over the years, but it is still deficient in a number of key areas. I imagine that you may wish to pose questions on that. That has implications for capital expenditure and for resource-revenue costs thereafter.

435. Thirdly, the service devotes a lot of attention to organisational development issues such as staff development and human resources.

436. Finally, we are conscious of the pressures that the wider economic and financial climate in which we operate place on the Prison Service, the wider Northern Ireland Office and Government more generally.

437. The Chairperson: I know that several projects are ongoing at present, particularly where modernisation is concerned. What is the current expenditure position with those projects, and, as a result, what might be the possible pressures on funding in the years that lie ahead?

438. Mr Masefield: There are perhaps three areas that I could discuss on that point. I shall talk about the Order, and my colleague will speak about the human resource dimension, about which we have particularly impressive stories to tell about the changes that we are introducing with staffing. Thirdly, we will talk about the development of the estate, which covers capital, as well as revenue, issues.

439. A range of pressures was identified across the Northern Ireland Office family, as I might call it, in the preparation of the draft Order a year ago. I remember being asked whether the Prison Service could afford to implement the Order. I answered then that we could, and I believe that that remains the position. A total of £4·7 million is set aside for the Prison Service to implement its share of the Order.

440. We are on target with the progress that is being made this year, and, in the final year of the comprehensive spending review (CSR) period, we will have £2·6 million in additional moneys. Many demands are being placed on us, including the recruitment of additional staff such as psychologists and the gearing up of the offender-management model, which we think is the right way forward. In the light of those demands, we believe that those additional moneys will provide us with the funding that we, along with the Probation Board and the Northern Ireland Office, require to play our part in implementing the draft Order. That is one strand of modernisation against which we can put a tick.

441. My colleague, as head of personnel and finance, will address the staffing issue.

442. Mr Mark McGuckin (Northern Ireland Prison Service): The Prison Service is a staffing-led organisation, and it delivers its function working with and through people. There is a significant resource requirement for staff. A couple of years ago, we looked at the overall staffing position and the reliance that is placed on highly paid and highly skilled prison officers to carry out a whole range of functions across the system.

443. We identified a range of opportunities for efficiencies. We put together and agreed a package with the staff associations that addressed the overall staffing complement — the overall numbers that are involved — and the type of staff. As a consequence, we had a 10% pure efficiency reduction in the overall number of staff that were required, and we brought in support grades to carry out functions that are not directly related to engagement with prisoners. For example, the contact that some staff had with prisoners was as court escorts. However, maintaining the security of the environment is the key consideration.

444. In addition, and with the agreement of the Prison Officers’ Association (POA), we introduced a support grade. Staff in that grade carry out peripheral functions in secured areas around the establishments in question, such as maintaining the fabric of the building and so forth. There is a range of posts in that grade and over the next two or three years, we will gradually bring more support grades on stream, thereby replacing prison officers that have left through natural wastage. Pure efficiencies and the use of different types of staff have created total efficiency savings of approximately £25 million or £26 million over the period. That helps us to address some of the other pressures that we face.

445. Mr Paisley Jnr: Thank you for coming today, ladies and gentlemen.

446. To cut to the chase, we are trying to secure the devolution of policing and justice powers to Northern Ireland. To do that, we need to know how much the Prison Service costs now and how much it is likely to cost us until 2012 and beyond. We need that information in order to inform our negotiations with the Northern Ireland Office, which normally likes to negotiate with people who are in the dark about such matters. By having that information, we can agree a figure with the Northern Ireland Office through which the Prison Service can be sustained, not only at its current level, but efficiently and effectively in the future. Thus, the Prison Service will be able to grow and develop and do what is expected of it. It will be able to look after people properly and meet the expectations of the twenty-first century public in Northern Ireland.

447. Robin, I am asking you for a ballpark figure: in order to sustain the Prison Service and to develop it in the way that I suggested, how much money should we request from the Northern Ireland Office?

448. Mr Masefield: I could give you a number of answers to that.

449. Mr Paisley Jnr: I just want the truthful and the real answer.

450. Mr Masefield: You will always get from me, sir, a truthful answer, and indeed a real answer, in the context of the role of the agency as a member of the Northern Ireland Office family. Very broadly, the result of the comprehensive spending review settlement was that we were provided with a flat real settlement of a 2·7% increase across the board for year-on-year inflation costs, and that has, undoubtedly, created some pressures for us.

451. The truth is that in the last year of the SR04 period, as our accounts show, our out-turn was several million pounds below the initial opening budget. We were able to return money to the central fund, which was excellent, because it contributed to the end-year flexibility.

452. Mr Paisley Jnr: Was that capital money that was returned?

453. Mr Masefield: No, it was revenue. We brought forward a small amount of capital because of our successful spending against it on new accommodation. This year, as the end of the financial year approaches, we will break even or perhaps, we hope, come in slightly under budget. We do not deny that we will struggle to continue to take the service forward in the next two years.

454. On 1 April 2009, we will enter the third year of the pay-and-efficiency agreement to which my colleague referred. Therefore, we can anticipate the budget levels and the salary costs in that agreement. We can also get a good handle on the staff who will replace those who left through the natural wastage — Mark referred to them already.

455. I single out the implications for the development of the estate as presenting perhaps the biggest single challenge to the service; you may wish to question us further about that. I am conscious that I did not come back to you on that, Chair; it was the third element of your opening question. The estate, undoubtedly, requires development in two strands. In addition to the capital cost, to which you referred, revenue costs will tail thereafter. Those comprise the capital charge, which is currently 3·5%, and depreciation.

456. For example, if, as we hope, Magilligan Prison were to be replaced with a new redeveloped facility, that new facility would cost more, because, over the 50-year period, we would be paying a capital charge and a higher level of depreciation for a new asset than for the current facility. Therefore, within our budget for the coming year, we will seek to contain the increasing costs incurred as a result of our progress in developing accommodation to meet the increasing prisoner population. We hope to offset those costs against any savings that we may be able to make.

457. Mr Paisley Jnr: That is very interesting. However, can you answer my question: how much money do you actually need? How much should we be asking the Northern Ireland Office for, for a sustainable period, up to 2012 and beyond, to allow the Prison Service, not to struggle through — as you put it — but to sustain itself and grow?

458. Mr Masefield: The specific figure is £13 million, which is the cost that is associated with the estate development. That is the combined revenue cost for the year in which we are starting, 2009-2010, and then for 2010-11.

459. Mr Paisley Jnr: Is that £13 million on top of the £134·9 million that you will bid for under the resource budget?

460. Mr Masefield: With respect, clearly an element of those capital costs, and the associated revenue costs, is included in our budget. The centre — the Northern Ireland Office — will look to us to manage and produce a balanced budget, notwithstanding those pressures, which are largely, but not exclusively, the result of modernising the estate, trying to produce a prison service that is fit for the twenty-first century, and some inescapable consequences from the continually rising prisoner population.

461. Mr Paisley Jnr: I will ask that again, because I need to get this in plain English — I am a wee bit stupid when it comes to these things: is that £13 million on top of the £134·9 million that you are budgeting for in the years 2008-09 and 2009-2010?

462. Mr Masefield: As you will appreciate, I am not going to give you a direct answer saying yes —

463. Mr Paisley Jnr: Why not?

464. Mr Masefield: That is an additional cost in the budget that we have — it is an additional pressure that we will need to meet within our budget.

465. Mr Paisley Jnr: I understand the word “pressure"; however, in a year to 18 months, at the very outset, you guys will be totally answerable to the Assembly. Do you want to be here, in a year to 18 months, explaining that you should have told us how much was really needed? Now is the time to put that on the table, tell us what you need, and perhaps we can get a sustainable budget for the future. We are trying to help. At the minute, your political master is the Northern Ireland Office, but that will not be the case for very much longer. You have to make a judgement call today: will you give us the full picture or only part of the picture? I hope that your call is that you will give us the full picture.

466. Mr Masefield: My clear response is that to an extent, we are flagging up that £13 million pressure, and we flagged up earlier that we were struggling to contain that with the resources that we have. That is the business that the four of us appearing today seek to do, and there are a number of offsetting means by which to do that — it can be done while living within the pressures.

467. Mr Paisley Jnr: In January 2001, the prison population was 800; in 10 years, it has practically doubled, which as an unfortunate reflection of today’s society. Nonetheless, you have to manage that population, and you do so under very difficult circumstances. We commend the very capable people who are working on the front line. From what you know, and indeed, from the changes in Government policy that are being announced and that seek to keep people in jail for longer, without releasing them — because that is what the public demands — do you envisage that population growing by another 100% over the next 10 years?

468. Mr Masefield: We do, frankly, yes. Two years or three years ago, as part of our strategic development programme, a lot of work was done on population projections, and those figures were independently quality assured by Queen’s University law department. The projection is for roughly a 5% growth in the initial years and a 4% growth thereafter. That did not take into account the changes in the Criminal Justice (Northern Ireland) Order 2008, which had not come through at that time. As you are aware, the hope is that the Order will provide properly for diversions from custody those who do not need to go to prison, but who may now be sent there as a result of a lack of an available alternative.

469. Just yesterday, there was a very welcome development with the announcement of the women offenders’ strategy, which is putting in place, for example, a probation facility that did not exist previously. Good progress is being made in providing an alternative. This morning, Max Murray was present when the Minister announced the introduction of electronic monitoring — or tagging — which is another alternative. Until now, the courts would have been obliged to send people to custody, so that step is welcome. It is our hope that the prison population will roughly balance out over time.

470. My personal belief is that probably in the longer term, as you said, we will end up with more of those individuals — people serving long-term, indeterminate and extended custodial sentences — who will find it very difficult to satisfy the parole commissioners that they have reduced the risk of serious harm that they pose to the community.

471. Mr Paisley Jnr: Does that mean that by 2018 we could have a prison population in excess of 3,000 people?

472. Mr Masefield: We would not go that far; our calculations are that in 15 years, the adult male prison population will have risen to 2,200.

473. Mr Paisley Jnr: What about the female population?

474. Mr Masefield: We have not completed the work that would take those calculations to the same level. In the next few weeks we hope to publish a strategic outline case for projections the female prisoner population, which has increased significantly. For example, when we transferred from Mourne House at Maghaberry in June 2004, there were just 17 female offenders in custody; there are now 55.

475. Mr Paisley Jnr: Therefore, that figure has more than doubled.

476. Mr McCausland: Thank you. Can you clarify some of the points that Ian made earlier? You said that there have been costs of £134·9 million and an additional £13 million associated with the estate. You talked about pressures and how you cope with and contain them. I like to approach these things very simply — you either add £13 million on to the £134·9 million, or you make savings within that £134·9 million for some or part of what you need. Which is it, and how would you do it?

477. Mr Masefield: I will give you as simple a response as I can as head of the organisation, bearing in mind my fellow directors. It is our job to manage the budget within the resources that we are given. We strive to do that, and we are about facing the period in the annual cycle where we are producing the business plan for the next year — 2009-2010 — when we will be working with our governors and colleagues on the basis of our improved financial strategy to address that very question and to begin to make some of the hard choices.

478. It may interest the Committee to know that in England and Wales, what they call a core day was introduced. That has made a fundamental change to the working week. That is because the English prison service did not have sufficient resources. It means that the regime now closes down on Friday lunchtime and prisoners no longer go to workshops or receive education classes on Friday afternoons, and evening association is also curtailed. That is the hard choice that was made in order that they could live within their budget. I am not suggesting anything as radical for the Northern Ireland Prison Service, but we will be taking a hard look at all aspects of cost.

479. If you were to ask me whether we could make more efficiencies, I would say that undoubtedly we could. Some of those are within our gift, and some are not necessarily so. Mark McGuckin described some of the detail of the longer-term process that we are engaged in, and we are making further progress in capping the ceiling for the pay progression of staff that are now joining as main-grade officers. There is a wide strategy in place to progress that and to reduce costs over time.

480. We have made real progress. A comparatively short number of years ago — five or eight years ago — we were three times as expensive as the English prison service on the costs for each prisoner in place. We believe that we are now less than twice as expensive. The English prison service no longer publishes its figures precisely, and the costs are not exactly comparable, but we are on a reducing glide-path on the annual costs for each prisoner place.

481. The Chairperson: Regarding the £13 million of additional costs for the prison estate, can you clarify that those are non-cash costs representing additional capital charges and depreciation? What is the value of the estate that the charges apply to?

482. Mr Masefield: I can confirm the former. On the latter point, the current value of the estate is around £200 million —

483. Mr McGuckin: It is around that, but the additional charges are based on the accommodation that we have been building in recent times, such as the new house block that opened at Magilligan recently, and the new house block that we are building at Maghaberry. It also includes additional accommodation at Magilligan. For clarification, the sum is a total of £13 million across the next two years, as opposed to £13 million in each of the next two years.

484. Mr McCausland: In the figures that are included in the members’ papers, you referred to administration and programme costs. I assume that administration relates entirely to the salaries — is that what that means?

485. Mr Masefield: It is principally a distinction, though it is a bit over-simplistic. “Administration" is largely the headquarters staff, whereas the “programme" is about front-line delivery, and it also covers services to the prisoners, such as food, utilities or running costs.

486. Mr McFarland: Thank you. I am keen to explore some of the challenges that you face. Your critics would say that the Prison Service has not made the same journey that the PSNI has made, in that the experience of most of its officers lies in the dark days of the Troubles. The prison officers were outstanding in the way that they dealt with the Troubles. As you know, when we discussed the draft Order, there was a suggestion that there are new prison techniques and new methods. The Prison Service’s critics say that its officers are fairly elderly — by and large, they are at the top end of the age scale — and that they are not necessarily at an age when they can be retrained for all those modern techniques. Presumably, you will be faced with that issue.

487. The service is attached to a powerful union, which is famed for its strength. Indeed, it is very protective of its members. From the point of view of unions, that is as it should be; however, it is expensive for the service.

488. Under the draft Criminal Justice Order (Northern Ireland) 2008, the Probation Board was to take over much of the training period when prisoners are in jail. That service takes an interest from their first appearance in court, and it monitors them until they are released from prison. Those duties were carried out formerly by prison officers, but they are to be transferred to the probation service, as I understand it. That is another issue.

489. At our previous meeting, you talked about the fact that a substantial percentage of those who are in prison should not be there, because they are fine defaulters who ended up in prison when they should have been dealt with in the community.

490. How will all that work out? We are trying to think not just about the budget for this year and next, but to make sure that we have an accurate picture of what will happen in five years when the prison population has risen. Ian Paisley mentioned this, and my sense is that when we get control, politicians will be less tolerant of the current bail system. The Chief Constable appears repeatedly before various Committees saying that he is fed up with encountering prisoners who are due for their ninth appearance in court but who, each time they arrive in court, are given bail yet again instead of being locked up. That is yet another issue.

491. The Chairperson: Please ask your question.

492. Mr McFarland: It is important that we get this right first time, because we will not get another go at it. It is important that the Prison Service has a projection of what it will cost in five years, or else we in the Assembly will be left looking silly because we did not ask the questions when we had the chance.

493. Can you tell us what the situation with all this will be? How large will the increase in the prisoner population be? Some will be released because they are fine defaulters. Technically, the service should change the style of its officers, and I presume that that will reduce the cost, making it more comparable with the service England. Will you give us a picture of where you see all that going?

494. Mr Masefield: I will respond first, and my director of operations will answer on changes affecting staff training.

495. Referring to your point about the draft Order, I want to give you an idea of the future scale of the service. By year 3 — 2010-11 — we will have about £2·6 million. We will have roughly 200 staff, many of whom are already in the system, meaning that they will not all be new staff. They will operate what we call the offender-management model. There are two key elements to that: a case manager and a sentence manager. The case manager will be a probation officer and will have responsibility for the individual prisoner, from the pre-sentence report that goes to the court, through to discharge, making the process seamless — much as we discussed at our previous meeting. We see that as a positive improvement.

496. There will also be a sentence manager, who will be a prison officer — one of our own staff — whose job will be to ensure that the individual in question is working to his sentence plan for the time that he is with us. He will ensure that the prisoner’s needs are addressed, his offending behaviour corrected and that he is getting on the relevant programmes, such as enhanced thinking skills, cognitive self-change, or sex offender treatment programmes. That officer will ensure that progress is made and that the individual is prepared for potential release and for the judgement as to whether they can go back safely into the community. We have recruited 20 additional psychological assistants already to help us with that element of the programme.

497. Therefore, the picture has changed slightly since we spoke previously. The probation service is playing a slightly bigger role, but we will probably do more of the programme work ourselves, partly as a result of our subsequent decision to bring in psychological assistants. The probation service is providing some additional support, but our staff will largely be responsible for such matters. That will place additional requirements on the staff on the landings, who will liaise with the sentence managers about the progress of individual prisoners.

498. Mr Max Murray (Northern Ireland Prison Service): The big emphasis, particularly as regards public-protection sentences, is on satisfying parole commissioners as to somebody’s suitability for release. The only way to do that is to ensure that significant risk-assessment procedures are in place and that what will be called sentence planning is in place, whereby a sentence plan is drawn up. Interventions must be in place, and subsequent and further risk assessments must be completed by psychologists after a dossier, as we call it, is prepared. That dossier is then passed to the parole commissioners, after which an oral hearing is held at which the parole commissioners, in the presence of legal representatives, will explore suitability for release and then [inaudible] make an evaluation. That is a challenge for the service, and we will have to step up to the mark to meet it.

499. Inherent within that process is the need to ensure that our prison officers similarly understand the environment in which they operate today. You are right in what you say about our prison officers; the previous recruitment campaign for prison officers was held in the early 1990s. Many of our prison officers had worked in the Maze Prison or Belfast, and their experiences were largely of working with paramilitary prisoners where the emphasis was mainly on disengagement rather than engagement.

500. The expression “culture change" is not one that we use lightly; in fact, it is an expression that we do not particularly like, but it encapsulates everything that we are about at the moment. A major culture change programme is under way in the service. For example, we sent all our principal officers, senior officers, first-line managers and second-line managers for a full week’s training at the Prison Service College. Last year, we ran a two-day training programme for all prison officers, which 70% to 80% of prison officers attended.

501. The programme’s emphasis was largely on learning from the previous programme that we delivered to principal and senior officers, in which victims talked on DVD about their experience of crime and what they expect of the Prison Service when an offender goes into custody. It is not about locking up a prisoner; it is about working with the prisoner to avoid any instances of re-offending in future.

502. As I said, the programme was delivered over two days. It had a significant impact to the extent that, last year, when prison officers were being interviewed by line managers for their personal development plans, 600 of them identified the need for further interpersonal training skills and de-escalation skills. For the first time in many years, we noticed a move away from the old traditional requirement for control and restraint (C&R) skills, which are the basic use-of-force skills. Thus, the service is moving forward and changing, albeit gradually. Certainly, the demand is there, and there is a need to implement the new arrangements under the Criminal Justice Order (Northern Ireland) 2008.

503. The Chairperson: I remind members that we must try to stick to financial matters — that is really our task today.

504. Mr Attwood: Robin, I thank you and your team for coming along today.

505. In one sense, the policing and justice budget is very vulnerable. My view is that the Exchequer in London will try to claw back money from the North, given that, for all the obvious reasons, there has been such an extravagant policing and justice budget over the years of conflict. I do not think that London will appreciate the need to maintain policing and justice budget lines in order to help maintain stability in the North.

506. In the event of the devolution of policing and justice, the budget for it will be part of the devolved pot. In those circumstances, and given the higher cost base here — for example, the higher cost for each prisoner place — we can see the politics of this place beginning to probe how every pound is spent in the Prison Service and elsewhere in the criminal justice family, as you put it. Therefore, I believe that there is a little, for want of a better word, vulnerability around the budget lines for the Prison Service. That will not go away; it will be a political theme for the next five, six or seven years.

507. Given that the Prison Service is still part of the NIO, and in the light of what back-room people in London have been saying about achieving more efficiency savings, have you, or has the NIO, been given a heads-up to produce additional efficiency savings when powers are devolved? Even the Minister of Finance and Personnel accepts that such savings would, in fact, be straightforward top-line budget cuts. Have you had any indication that you are about to be hit in such a way?

508. Mr Masefield: To answer your question slightly differently, I can truthfully say that we have had no indication of how big our slice of that potential efficiency cake might be. Nevertheless, in the light of the overall economic climate, central Government is flagging up the need to make further savings. However, the Prison Service has yet to be informed of its allocation.

509. Mr Attwood: As you know, they are coming. Indeed, they may come tomorrow, when the various Finance Ministers and others will meet the Prime Minister in London.

510. I am impressed by the fact that you have put a budget line in place to deal with the consequences of the Criminal Justice Order (Northern Ireland) 2008. Your office will be responsible for ensuring that much of the resultant work in prisons is carried out, but I am concerned about whether the culture in the Prison Service will allow for, or whether enough of your officers have the necessary experience to do, that sort of work.

511. When Peter Smith, the head of the Parole Commissioners, gave evidence to the Committee, he took great pains to talk about the enormous financial consequences of the 2008 Order, and Robin Masefield appears to acknowledge that. Given what you said about the increasing number of prisoners, and so forth, are you satisfied that even the budget lines that you have been able to put in place, which look impressive on paper, will be adequate? Given what Peter Smith and the Probation Board told us about those matters, I am concerned that even those impressive figures may underestimate what will be required.

512. Mr Masefield: I shall be broadly reassuring, in line with the response that I gave the last time. The financial provision that we have made should pretty well cover what will be required. Nevertheless, it is difficult to anticipate the future, and the measures introduced by Paul Goggins — whereby prisoners who need not be in custody can be diverted elsewhere, whereas others may be staying longer with us in future — have created tensions in rebalancing the criminal-justice system.

513. As I said on the previous occasion that I appeared before the Committee, there are two types of resources. One can have all the money in the world, but, in order to do the business, one must have the right people with the right skills in the right place at the right time, and that is hugely difficult for the Prison Service, and, to a lesser extent, the Probation Board and others.

514. Obtaining a report from an accredited psychologist is a particular bottleneck through which every prisoner must pass. However, those professionals are in short supply, and, to some extent, the prison services in Northern Ireland, Scotland, England, Wales and the South are all competing with one other for their services. In order to bring people on, there has been ongoing engagement with the universities. For example, the University of Ulster has been working with Skills for Justice, and Queen’s University Belfast has been considering opportunities for postgraduate courses. We have taken short-term remedial action by bringing in psychological assistants, but we are still finding it difficult to attract individuals with a full master’s degree in forensic psychology, which, perfectly understandably, is the level of accreditation and experience that is required to satisfy the Parole Commissioners.

515. Mr Attwood: First, are you saying that the criminal-justice regime is not in a position to provide the range of information and reports that is necessary in order to put people forward for parole hearings?

516. Secondly, can you confirm whether the unit cost for prisoners is £87,000 per annum per prisoner? Over and above what you said about changing your officers’ profile, how do you intend to reduce that figure to make it more consistent with prisoner costs in Britain?

517. Mr Masefield: I shall deal with your second question first. The current target is a spot over £80,000, and next year it is projected to be approximately £78,000.

518. Therefore, we are seeking to reduce that figure. More significantly, over a year ago, the Select Committee on Northern Ireland Affairs produced a report, which said that cost per prisoner-place comparison was outdated and should be moved away from, because England no longer calculates on the same basis.

519. The unit cost per member of staff is, in some ways, a more accurate measure of efficiencies. It is decreasing much more significantly, and Mark referred to the £25 million reduction for the three-year period, and that is as a result of the efficiency savings.

520. Mr Attwood: What are your target costs?

521. Mr McGuckin: At this point, we do not have a target cost as such, because there are so many variables, not least the number of cell spaces and the number of prisoners therein. The steps that we have taken over the past couple of years through the efficiency package will continue to deliver further cost reductions in the unit costs of staff. Staff profiles change over time, and some more highly paid prisoner officers will leave the system and will be replaced by people who are on a new capped salary from 2002. It will take time to feel the effects of that replacement, but it will reduce overall costs.

522. Mr Attwood: Is there not a target of, for example, £70,000, £65,000 or £55,000?

523. Mr McGuckin: It would take a considerable amount of time to reach such targets, and, in the meantime, there are so many variables that would interfere that it is unrealistic to set targets now. The idea is to keep the downward pressure on the overall costs in line with the other factors that intervene at any particular time.

524. Much of our existing accommodation is inefficient. Although the houses in Maghaberry are of reasonably good quality, they are, in staff terms, inefficient. It will take time to replace those houses with more cost-effective and staff-efficient accommodation, and the associated costs — capital costs, depreciation in the value of the premises, and so on — will also increase. Therefore, we can reduce the unit cost of staff by improving the accommodation, but we also face other challenges.

525. Mr Masefield: It is a challenge that we must address. However, HM Prison Service and the Scottish Prison Service face similar challenges.

526. Mr A Maskey: I want to approach the matter from another angle. I am slightly alarmed that you have no early projections on numbers of female prisoners, given the backdrop of some serious indictments, which I do not need to explain now, of female-prisoner management systems in the Prison Service. Those reports and the rectification of the problems must have capital-arm-revenue cost implications. Therefore, without projections of the numbers, how will we project figures and search for a proper budget? We are here to try to establish a necessary and appropriate budget.

527. If I were a Minister or a representative from the Treasury, I would be interested in your opening remarks to the effect that you were able to return revenue money — you did not give a figure, and I would be interested to hear it — in the first year of the comprehensive spending review. In the second year, you might break even and, in the third year, you might struggle. As a Minister or representative of the Treasury, I would say that, in the third year, I will squeeze you, and you will struggle, but you will come in on budget.

528. I want to get a handle on the level of revenue that was returned, because I can understand capital’s being returned if, for a variety of reasons, it was not utilised. However, revenue is entirely different, and, therefore, I am interested in the revenue figure that was returned, and in how was that figure calculated, because it is obviously erroneous. We try to base our calculations on realistic figures, should we decide to lobby later, and what I have heard so far does not encourage me much.

529. Mr Masefield: I will deal with your question about finance first. To the best of my recollection, the figure is somewhere between £3 million and £4 million. That is partly because the centre in the Northern Ireland Office has the level of allocation that it gets from the Treasury through the CSR. However, it is also in the business of trying to build backup, or contingency, capacity and subsequently fund developments such as the powers legislated for in the Criminal Justice Order (Northern Ireland) 2008.

530. It is in all our interests to find out where we did not need to spend that money. Perhaps the prisoner population did not rise, for example, or we had been funded for things that we did not need. The money could have been put back into the centre and funding issued collectively, and the Probation Board may have benefited from that to an extent.

531. I will return to the second point about women prisoners. I am conscious that I did not quite give a full answer, and I want to give full and honest answers to all the Committee’s questions. I have a meeting with Minister Goggins at lunchtime today to discuss the issue of prison numbers. We anticipate that the number of women prisoners will increase, but there is a slight debate about the extent of that increase and the impact of some of the diversionary measures, such as the women’s strategy that was published just yesterday and the tagging system that was introduced today.

532. I am conscious that the female-prisoner population is significantly skewed, in that 20% of women in prison are there as the result of one arrest operation. In principle, we remain absolutely committed to providing a better long-term facility for women than Ash House at Hydebank Wood, which has serious limitations. In recent months, numbers in Ash House have been between 55 and 60, which is nearing even the increased capacity.

533. We are looking at developing a business case to progress the matter in both the short and longer term. I anticipate that a strategic outline case for the women’s facility will be produced within a month. That will be the same as what we did for Magilligan Prison a year ago and will provide clearer answers to your question.

534. Mr Murray: I was involved in the decision to move women prisoners from Mourne House at Maghaberry Prison to Ash House after there were a couple of tragic deaths in custody at the former. At that time, I received projections, which I still have on file, that numbers were likely to increase from 17 to approximately 34, but to no more than 40, by 2009. That shows the reliability of projections — we need to be careful not to rely on them.

535. Many of the women in custody should not be there and should instead be dealt with through support systems, such as mental-health treatment on the Health Service. Indeed, much work is being done with the Health Service to look at personality disorder, for example. Many females have personality disorders, and we must manage those women correctly. The intention is to have dispersals and diversions rather than to rely on their being taken into custody all the time.

536. The female prison population is particularly difficult, because it contains some seriously damaged and abused prisoners. However, when the original decisions were made in 2004, no statistician in the world could have foreseen that there would have been an increase to 61 last year. That was simply not on the cards.

537. Mr A Maskey: Can you give an indication of the degree to which you will struggle with shortfall in the third year of the CSR?

538. Mr Masefield: I would hate to leave you, Mr Paisley or anyone else with the impression that the shortfall is £13 million year on year. That figure is a composite of a little more than £5 million in the year that we about to go into and around £7·5 million the following year. Therefore, the shortfall in year three of the CSR will be in the region of £7 million or £8 million. That is predominantly, but not exclusively, as a result of the required estate development and the associated resource tail.

539. It is possible that there will be a change. This is speculative, but my finance colleagues think that the Treasury may revisit the capital charge that it levies, which used to be 6% and which was reduced to 3·5% a couple of years ago. It is sometimes difficult to project how UK-wide changes will affect us.

540. Mr Murray: The devolution of policing and justice powers will bring a major benefit in that we will not have to pay VAT on the new facilities.

541. Mr Paisley Jnr: Pay VAT?

542. Mr Masefield: Yes, we pay VAT at present.

543. The Chairperson: I will be leaving the Chair shortly, because I have to speak in a debate in the Assembly Chamber. The Deputy Chairperson, Raymond McCartney, will take over in the Chair.

544. Mr Hamilton: We are almost encouraging you to come up with negatives, and I envisage that will be a characteristic of these evidence sessions. We are almost like Bruce Forsyth, in that we are encouraging you to go higher and higher. Thus far, you have given us a figure of £13 million.

545. Mr Masefield: With respect, the annual figure is £7·5 million — it is £13 million over the two years.

546. Mr Hamilton: OK, so it is lower. [Laughter.]

547. Mr Masefield: I would be in even more trouble if the figure of £13 million were allowed to gain currency.

548. Mr Paisley Jnr: It is now out there — this meeting is being broadcast live.

549. Mr Hamilton: To be fair, Robin made it clear that the figure of £13 million is over two years. We are almost transfixed with the comprehensive spending review period, as is evidenced by many of our questions. To make predictions about 10 years into the future is almost like asking how long is a piece of string. If you are saying that the potential exists for the prison population to grow at a rapid rate — almost doubling over a 10-year period, which is not a long time — have you any projection of the possible cost of that worst-case growth?

550. I also wish to ask about the capital budget. I am aware that you spoke about the resource pressure on capital, because there is a tendency for people to say that capital is the cost of the bricks and mortar, while forgetting about the resource costs. The capital budget has increased impressively since 2005, and it will reach £26 million by the end of the CSR period. Is that sufficient to cover the cost of the planned capital expenditure, and does it take into account the need to cover the potential growth of the prison population over the next 10 years? Are those projects sufficient?

551. Mr Masefield: It is always nice when one can answer a question fairly simply. The answer is yes, it should be sufficient for the capital, partly because there is a limit to the rate at which one can spend it. There is an estate-development strategy that has been well worked out. Anne and her team in estate management are excellent in that area, and I want to pay tribute to them.

552. There are plans for some additional accommodation, to which Mark referred. There will be another 120 places opening in Mourne House at Maghaberry Prison later this year, and there are plans for further development on a similar scale elsewhere at Maghaberry in order to meet the needs of the prison population. What is important is that there will be an opportunity to decant to make much-needed, sequential improvements to the square houses at Maghaberry, which also need to be brought up to date, as the inspectorate regularly tells us. A range of other, slightly smaller-scale projects will also be advanced.

553. Specifically, the big two projects are Magilligan Prison and, as is briefly referred to in the draft strategy for the management of women offenders that was published yesterday, the plans for a female facility. There is scope in that figure of slightly over £70 million capital over the three years of the CSR to do the preparatory work, including its exemplar design and business case, and the programme management thereafter. Of course, the Treasury does not get into discussions about what the position will be at the end of the CSR period.

554. Mr Hamilton: You are content that the capital budget is sufficient?

555. Mr Masefield: Until March 2011, yes.

556. Mr Hamilton: Have any projections been carried on the cost associated with the rising prison population, and how far that is beyond any extrapolation of current budgets?

557. Mr Masefield: Yes and no. I briefly referred to taking on business-case advisers, for example. The project at Magilligan Prison will go out to tender shortly, and at that stage the detail can be considered. As my colleagues have already said, it is crucial to ensure that the future generation of establishments and replacement accommodation is designed efficiently and effectively, as we are doing already, so that it encourages interaction between staff and prisoners.

558. If, for example, any of you were to visit Magilligan Prison, Halward House will be formally opened in a couple of weeks’ time. That is a state-of-the-art facility. Representatives from the English Prison Service have visited and peer-reviewed the programme for opening that unit. Halward House is extremely effective. Prisoners are eating on the landings outside their cells and interacting with staff, which is exactly the model for developing the service at Magilligan and Maghaberry prisons as we want to.

559. Mr Hamilton: Do you feel that any elements of your expenditure duplicates work that other agencies in the justice family carry out, or could be better carried out by other agencies?

560. Will the implementation of the 2008 Order have the potential to remove some of that duplication and, therefore, ease some of the pressures on your budget, or will it have the contrary effect?

561. Mr Masefield: At a legislative level, we hope that there will be some advantages coming from the 2008 Order; for example, the introduction of electronic tagging, which was announced today. It is a slightly longer piece of work, because it also involves the devolved side and the Court Service. Therefore, it is a three-way system.

562. Real opportunities exist for dealing with fine defaulters. A quarter of all receptions into prison are individuals who have failed to pay fines, and they are in custody for an average of four and a half days. One must query whether that is an efficient use of the taxpayer’s money. It is very important that the fines get paid, but there are possible alternatives, such as the attachment of earnings and other mechanisms.

563. A real tension is evident concerning wider efficiencies and back office. The Prison Service prides itself on how many units operate extremely effectively on their own, and procurement is an area in which one particular individual has assisted us and undoubtedly achieved significant savings.

564. For larger procurement operations, we work across the Northern Ireland Office family and with the Central Procurement Directorate in the Department of Finance and Personnel, and to do so is right and proper. However, there is some tension as one moves towards centralising back-office functions. It can mean that one loses that flexibility and ability to meet immediate needs proactively. Especially in the Prison Service, one needs to have operational flexibility in order to move fast and to meet changes, whether they be changes in the nature of the population, or even at a more immediate level, such as issues about food and other aspects of procurement.

565. Mr O’Dowd: On the first point about how much money the Prison Service needs, your response was that you were looking at a 4% year-on-year increase in the prison population. I have said to you before that if we achieve those figures, politics and society have failed. For example, if the entire Health Service budget were to be invested in acute services, it would be a waste of money, because one would be investing repeatedly. Therefore, when we are looking at the policing and justice issue and at the Prison Service, we will be asking the various sectors over the coming months about their budgets, and we will have to take a collective view on where is best to invest money.

566. Although I have no difficulty in ensuring that the Prison Service is properly equipped, funded and resourced, any section of the justice system that comes through these doors may tell us that it wants, for example, another £13 million, £20 million or £50 million. However, should we then not collectively say that that £20 million or £50 million should be invested in prevention measures or in mental-health services?

567. You said that some female prisoners come from a background of abuse. If that is the case, they should not be in prison but being cared for elsewhere. Therefore, we must ensure that we first create a society that does not automatically have a 4% increase year-on-year in its prison population. There will always be people who have to go to prison. I have no difficulty with that, but we must invest in our society and in our justice system.

568. Simon touched on the issue of using money wisely, but the Youth Justice Agency and the Probation Board offer services to offenders, as does the Prison Service. Therefore, if there any duplication, we can fine-tune that, or we can remove one of those agencies from certain services and better use the money.

569. Mr Masefield: I am glad that Max referred to mental health. He is absolutely right — we are at last making progress in achieving a closer working relationship between the criminal-justice sector and the health sector. That is hugely important, and it is something that I have made a priority. We transferred lead responsibility for prisoner healthcare on 1 April 2008, which is excellent, and we have a very good, close working partnership with the South Eastern Health and Social Care Trust, and it is now bringing in additional staff.

570. The Department of Health, Social Services and Public Safety has published its personality-disorder strategy. We had a workshop with the Department and with the Probation Board last Friday on working together, and we have another session this Friday. You are right to say that real opportunities exist. One of my opposite numbers in England and Wales said a few years ago that care in the community has become care in custody, and there is a real danger of that happening here, unless one focuses on that issue very much.

571. It may not necessarily be for me to comment on the latter point. There is a certain architecture in the Northern Ireland Office. It has an unusually wide range of satellite bodies — arm’s-length bodies — and a figure of over 40 is probably identifiable, which seems to be quite a lot. Intuitively, there is scope for some efficiencies to be made. Whether one would specifically want to make those savings in the areas that you mentioned —the Youth Justice Agency or the Probation Board — is questionable, because I think that my colleagues would agree that those are huge strengths. The Probation Board certainly has huge strength and credibility in all the areas with which it deals, because it has been independent of the Northern Ireland Office, and has its own management board and ethos.

572. The Youth Justice Agency has also done extremely well. Its models of restorative justice are a worldwide example of good practice. We are assessing those models to determine whether we can develop more of our own restorative practice in the Prison Service. In answer to your question, there is probably some scope for financial savings to be made. However, to an extent, that would mean that those organisations would lose some of the ethos that they had built up. That may be a judgement for others to make in years to come.

573. Mr Kennedy: I welcome the representatives from the Prison Service. Thank you for your presentation and your answers. I have a question about the issue of what are called efficiency savings. With the potential of a rising prison population, do you have any concerns that the ratio of prisoners to prison officers will become distorted? How do we compare with other parts of the United Kingdom in that respect?

574. Mr McGuckin: For a variety of reasons I am not concerned that the ratio would become distorted. First, if the prison population increases, more prison buildings will be needed. We will, therefore, build accommodation that is efficient from a staffing perspective. We can make better use of the resource that is available. In recent years, the ratio of staff to prisoners has decreased. The ratio is probably slightly above one member of front-line staff to each prisoner. In England and Wales, the ratio is lower than that.

575. It is not appropriate to make clear comparisons between here and there because of the nature of the establishments that operate in England and Wales. There are approximately 140 prison establishments there. They range from the very open, which will have very low staffing ratios, to the high-security establishments, which will have very different staffing ratios. Effectively, we have three prisons, and we take all comers. Unfortunately, we are not allowed to turn anybody away at the gate.

576. We must manage a very diverse population in those establishments. Some of the differences have been discussed today. Therefore, we will always have a slightly different, and slightly higher, ratio of staff to prisoners. With modern building techniques and modern accommodation, we can make further inroads. Over time, the ratio should decrease a little bit more.

577. The Deputy Chairperson: I have a couple of questions before you finish. What percentage of the revenue budget is paid out in staffing costs?

578. Mr Masefield: In straight pay costs, it is 66%. If I understand it correctly, however, that excludes some of the staff-related costs, such as training, travel and subsistence, and other issues. If those costs were included, it would certainly be more than 70%, and perhaps nearer 80%.

579. The Deputy Chairperson: You said earlier that a new wage cap had been in place since 2002. What was the average pay before 2002 and post-2002?

580. Mr McGuckin: Before 2002, the average salary was about £35,000. The top of the scale is currently around £28,500, post-2002. Nobody is at that level yet. A few people are probably earning close to that amount, but that is the top of the scale. That demonstrates the difference, because, pre-2002, many staff were at, or near, the top of the old scale.

581. The Deputy Chairperson: What was the pre-2002 make-up of 66% of the budget?

582. Mr McGuckin: The 66% covers Prison Service grades, general service grades, administrative staff, and so on. I cannot give you a percentage breakdown. However, of the staff who are in that category pre- and post-2000, probably around 25% are on post-2002 scales. That does not include the support grades that we discussed earlier, which we are building up gradually. Currently, out of 1,800 Prison Service grades, there are around 500 support grades. That balance will continue to increase. The current projection is for the number of support grades to rise to around 700.

583. Mr Masefield: The average annual salary for those grades will be around £20,000, or less.

584. The Deputy Chairperson: The point was made that accommodation can have an impact on staffing levels. At present, what major impediments are there to reducing staffing? Are they the building’s design or already-established custom and practice?

585. Mr McGuckin: Both. The building’s design has a key impact, because of lines of sight, staff safety, and the number of staff that needs to manage small areas and landings. There is also the issue of moving away from the security culture of the past and from reliance on physical security and staff numbers. Therefore, an organisational-development issue must be addressed if we are to make more efficient use of our resources. Ratios must also be reduced in order to deal with the increasing population of the present.

586. Mr Masefield: If I may comment briefly, a third factor, which is not unimportant, is our relationship with the Prison Officers’ Association. Traditionally, during the past 10 years or so, we have negotiated to reduce significantly staffing levels. Certainly, the number of man-hours in Magilligan Prison, for example, where you were governor some years ago, Max, has reduced. A proportion of those staff savings has gone into the annual pay round or to make efficiencies.

587. The Deputy Chairperson: As part of the NIO, the Prison Service currently pays VAT. What implications will there be for VAT at the point of transfer of policing and justice powers? Will the British Treasury make savings as a result?

588. Mr Masefield: As we understand it, on devolution, we would no longer be liable for VAT.

589. The Deputy Chairperson: Before we finish, you have an opportunity to raise any points that you feel that you have not covered.

590. Mr Masefield: Thank you, but I do not think that we have any more points to raise.

591. Mr O’Dowd: Has VAT been taken into account in your future budget?

592. Mr Masefield: No.

593. Mr Paisley Jnr: For completeness, you gave us a projection for the male-prisoner population. You will soon have a projection for females. Have you got a projection for young offenders?

594. Mr Masefield: No. Young offenders is an interesting area, because it is different. During the past four or five years, its figure has largely flatlined and remained remarkably consistent. There can be fluctuations, particularly among juvenile offenders. Their figure tends to be between 10 and 20, or even 30. I believe that there were 14 when we last counted. Interestingly, the number of young offenders, who are aged between 18 and 21 —potentially up to 23 years of age at Hydebank Wood — has stayed broadly between 180 and 200 for the past four or five years, with the majority of them on remand.

595. The Deputy Chairperson: Thank you, Robin, Mark, Max and Anne for your presentation. I am sure that we will see you again in future.

24 February 2009

Members present for all or part of the proceedings:

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


Mr Gareth Bell
Mr Phil Tooze
Mr Davie Weir

Youth Justice Agency
of Northern Ireland

Also in Attendance:

Mr Victor Hewitt

Specialist adviser

596. The Deputy Chairperson (Mr McCartney): I welcome Mr Davie Weir, Mr Phil Tooze and Mr Gareth Bell from the Youth Justice Agency.

597. Before the witnesses give their presentation, I ask Committee members to declare any interests.

598. Mr McCausland: I declare an interest as a member of Belfast District Policing Partnership.

599. The Deputy Chairperson: I remind Committee members and our guests to switch off their mobile phones, because they interfere with the recording equipment.

600. Mr Davie Weir (Youth Justice Agency of Northern Ireland): The Youth Justice Agency was created in April 2003, and it is an executive agency of the Northern Ireland Office (NIO). The agency’s aim is to reduce youth crime and build confidence in the youth justice system, and it caters for the needs of young people aged 10 to 17 who are in the criminal-justice system. We are accountable to the Minister through the NIO’s departmental sponsor. We do not develop policy, as that is a role of the NIO’s criminal-justice directorate.

601. We have a chief executive, Dr Bill Lockhart, who sends his apologies for not being able to appear before the Committee today. We also have four executive directors and two non-executive directors. There are four directorates in the agency. The first is the community-services directorate, which is responsible for the supervision of young people in the community and for contributing to the prevention of offending by children and young people. The community-services directorate supervises some 700 young people in the community at any one time.

602. The second directorate is the youth-conference service, which is responsible for diversionary youth conferences for young people who are referred by the Public Prosecution Service (PPS) and for court-directed youth conferences for those referred by the courts. The youth conference service processes between 1,600 and 1,800 youth conferences a year.

603. The third directorate is custodial services, which includes the Woodlands Juvenile Justice Centre in Bangor. The centre caters for children who are committed, remanded and those who are subject to the Police and Criminal Evidence Act 1984 (PACE). It is staffed to cater for 36 young people, although the numbers fluctuate widely.

604. The fourth directorate is responsible for corporate services, including human resources, finance, planning, communications, and so on.

605. The recently completed Woodlands Juvenile Justice Centre in Bangor is widely regarded as a state-of-the-art facility. It cost £16·8 million to build, which was funded entirely from the sale of land around the building. The centre costs £7·8 million a year to run, and it is staffed by 169 people: care staff; education staff; security staff; and support staff.

606. The community-services directorate maintains 17 centres across Northern Ireland to try to provide access for all young people in the jurisdiction. That costs £5·5 million a year to run, of which £1 million is devoted to funding external bodies that contribute to the work of the agency.

607. The current staffing level is 111. That is made up of people with a background in social work or in youth work, administrative staff and support staff.

608. The youth-conference service runs from five administrative centres across Northern Ireland, many of which are shared with community services’ facilities. It costs £2·8 million a year to run and has a staff of 42 professional social workers, youth workers, educationalists and people with a background in restorative justice.

609. Corporate services is housed in the headquarters building in Waring Street in Belfast. Its costs are £4·8 million, but that includes a number of costs that are simply allocated there for central purposes. It has a staff of 30 civil servants.

610. Our resource departmental expenditure limit for 2008-09 was £21·5 million in total. We anticipate that it will be £21·7 million in 2009-2010. We have had five years of unqualified accounts, and we have survived within budget in each of those five years. Last year, a Criminal Justice Inspection of corporate governance gave us a clean bill of health. A Criminal Justice Inspection also took place at the juvenile justice centre at Woodlands in Bangor and at the youth-conference service. Independent valuations by a number of bodies of various strands of service that are being delivered have taken place.

(The Chairperson [Mr Spratt] in the Chair)

611. Our key strategic areas in the delivery of justice are: the supervision and completion of orders; the involvement of victims, particularly in the youth-conference service; measures of satisfaction by victims and by young people; the objective of facilitating the reintegration of young people into the community; reducing offending through assessing risk, planning, intervening and reviewing; linking young people to education, training and employment opportunities; and contributing to the reduction of antisocial behaviour.

612. On safety, we implement a policy of no escapes from the juvenile-justice centre. We aim to reduce our already low level of restraint employed in the centre, and we aim to screen all young people for mental-health needs.

613. We aim to stay within budget, to publish our audited accounts, to retain our Investors in People status and to continue to monitor the development of training for staff.

614. Our key operational issues are to reduce offending and to provide models to support the introduction of the Public Protection Arrangements Northern Ireland (PPANI). We are working on the development of a priority-offending team for young people who are at highest risk, on improving our IT network, and we are working for staff health.

615. The Chairperson: I am sorry that I have only just been able to join you, but I was in the Assembly Chamber. I declare an interest as a member of the Northern Ireland Policing Board.

616. Mr O’Dowd: In your comments, you said that, as part of your service, you screen young people for mental-health illnesses. Screening is good, but what happens after that, and what budgetary commitment do you have to assisting people with mental-health illness? What resources are in place for assisting young people with an illness such as a personality disorder?

617. Mr D Weir: I shall answer part of your question, and Mr Tooze will answer the other part. We have a tiered assessment model for the young people whom we supervise in the community that presents criminogenic needs and the risks that they pose to themselves and others. Our strategy is to develop closer links with child and adolescent mental-health services in the community.

618. The principle is that, because we are responsible for supervising them, that does not reduce children’s entitlement to services from other mainstream services. There is always a struggle for resources for child and adolescent mental-health services, but our link is to provide access for the children whom we are supervising where a need is indicated to the community-based mental health services. The situation is slightly different for young people who are in custody.

619. Mr Phil Tooze (Youth Justice Agency of Northern Ireland): Yes, it is slightly different. We screen every young person who comes into the centre on reception. We do a fairly thorough risk assessment of all the needs of the young person, because we are dealing with young people rather than adults. To meet those needs, we have four psychiatric nurses, one of whom is usually on the rota at all times in the centre.

620. We have a full-time forensic psychologist, and a consultant psychologist who comes into the centre weekly. Those staff meet our everyday needs. In conjunction with that, all our staff are trained as care workers rather than as prison staff. There is a difference between our centre and a prison-type establishment. We try to meet the needs of many young people that way.

621. Many young people who come into custody have significant mental-health needs as a result of a range of causes, such as substance abuse, self-harm or attention-deficit hyperactivity disorder (ADHD). We tend to meet that side of keeping young people in custody without too much difficulty. Young people are often with us in the centre for only a matter of days or weeks, so it is very difficult to predict what will happen to them. Some 70% of our population are remanded rather than sentenced. We must work with our community-services team in order to ensure that there is a link with those who plan services in the community.

622. Mr Hamilton: I want to ask about your capital budget. The Woodlands Juvenile Justice Centre is your major capital programme, and it does not appear that you envisage anything significantly beyond that in the forthcoming years. I just want to confirm that that is the case and that there is nothing else in the pipeline, even on a smaller scale.

623. Mr Gareth Bell (Youth Justice Agency of Northern Ireland): We will adopt a new case-management system next year, which will involve the procurement of software and some IT equipment that will enable us to transmit information across our network. That will cost £690,000, as we explained in our letter to the Committee. Our baseline capital budget is £200,000 a year, which is spent on replacement IT, vehicles, plant and equipment. The one potential problem, which we highlighted in our letter, concerns the recommendations of the recent review report on the use of constraint. We may require security equipment costing £250,000, which is obviously in excess of our baseline budget.

624. Mr Hamilton: While we are on that grid, there is an estimated £1 million in capital receipts for the most recent comprehensive spending review (CSR) period. Can you tell us what that amount relates to, and whether, in the current climate, it is an achievable and realistic figure? If it is neither, what pressure would that put on your budget?

625. Mr Bell: That figure relates to the Whitefield House site at Blacks Road in Belfast, which is an old 1970s building. It is still operational, and we still have people working there, but it has been identified for disposal along with two other NIO properties. A project team from the criminal-justice directorate will be responsible for those three sales.

626. We had originally planned to sell Whitefield House this year, but it has been subsumed into the forthcoming project. For the purposes of our finances, that sale has been re-profiled to the final year of the CSR. The latest information on the value of the property reveals that we may not realise the full £1 million, and that will have an impact on the budget of the future justice Department. We may retain Whitefield House and transfer it to the Department when we leave it, but it will still be an issue for the Department as a whole.

627. The Chairperson: Will you declare an interest, Mr Paisley Jnr?

628. Mr Paisley Jnr: I am a member of the Policing Board.

629. Mr McCartney: Thank you for your presentation. In your response to the first question, you said that your budget was adequate, which is sound. In your experience, is there any duplication among yourselves, the Probation Board and the Prison Service, and have you identified any areas in which any such duplication could be reduced?

630. Mr D Weir: There is a legislative overlap between our organisation and the Probation Board, which is responsible for the preparation of pre-sentence reports to the youth court and for the supervision of young people, as are we, in the 10- to 17-year-old age group who are subject to probation orders. We are working to address that situation by way of a pilot project in greater Belfast, in which the Probation Board team that focuses exclusively on the young people in the 10- to 17-year-old age group is working with us.

631. We often have situations in which a child is subject to both a youth-conference order and a probation order. The objective is to have greater efficiency in the supervision of that young person and to ensure that the various orders or plans that he or she is subject to are managed coherently. The pilot scheme will kick off on 6 April and run for two years. During the second year, it will be reviewed to identify whether there are increased efficiencies in the model. We are working closely with the Probation Board on that front.

632. Mr Tooze: The custody system in Northern Ireland is probably far more efficient than in anywhere else in the UK. We take the majority of juveniles in the system; the only juveniles who go to the youth court now, or who have to go to the youth court, are those with cases in which, statutorily, they cannot come to us. There are certain 17-year-olds who cannot come to the juvenile-justice centre because of legislation. That usually happens if they have had a juvenile-justice-centre order, are 17 and cannot come to us, or they are remanded over the age of 17 and cannot come to us.

633. We now take all young women under the age of 18, so there are no young women now placed in Hydebank Wood at all. The vast majority of 15-year-olds in England and Wales is held in Prison Service custody. Currently, no 15-year-olds are held in Prison Service custody in Northern Ireland, and very few 16-year-olds. There is not really an overlap of prisons. As regards efficiencies, our set-up is comparable to the system in England and Wales.

634. Mr Attwood: I have just one question. The specialist adviser to the Committee told us a week or two ago that, when one examines the range of submissions from the various policing and justice organisations, quite a number of them, understandably, are trying to make a pre-emptive bid for additional resources, given that the focus of our investigation is the financial arrangements after devolution. In your submission from Mr Lockhart, you are definitive in saying that you do not see the need to raise any specific requirements for additional funding within or beyond the current CSR period allocation. You did not have any unsuccessful bids in the spending review, and you were lucky in that regard. You convey a high level of certainty that your budget is fit for purpose over the next two years. Can you confirm that there is no issue, as you see it at present, contrary to that assessment?

635. Mr D Weir: We do not identify any issues concerning capital spend. The centre is very new, and that is our one large capital investment. As regards staffing and resources, we feel that we are adequately equipped to deal with the young people who are referred to us. Our premises, and so on, are leased, and we have long leases, so we know our expectations.

636. Mr Bell: I shall expand on that. The one issue for us at an agency level is the proposed capital expenditure — if we have to do it — which is to install security equipment and CCTV coverage at the centre. However, we have spoken with the NIO and, on the scale of things within the NIO’s overall capital expenditure budget, £250,000 is not a lot. That is why that has not gone forward as a bid from us, because the NIO feels that it can meet that expenditure.

637. The other point that I will make about our current budget is that, had we been sitting here two years ago, we would have been saying that yes, we are under funded, because we were rolling out youth-conference services across the Province, but we were still getting funding as a service that was rolling out. However, we did get quite a reasonable uplift in the current CSR period, and that is why we are confident, more or less, that we have enough money.

638. The Chairperson: Mr Alex Maskey, will you declare any interests?

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

640. Mr McCausland: You said that you are adequately staffed, which is the current situation. Looking ahead to the next few years, do you anticipate any substantial rise in the number of young people whom you will be dealing with, and, as a result of that, any impact on staffing?

641. Mr D Weir: A significant rise in the numbers in custody would have an impact. However, we are investing time, energy and some resources in prevention. Sorry, I know that I am not quite answering your question, but part of our role is to prevent young people from entering the criminal-justice system. Demographics show that Northern Ireland’s youth population is not growing. Therefore, unless there is a massive upswing in the numbers admitted into custody, we are well within capacity.

642. Mr Tooze: Even then, it is not significant. We are limited in our capacity. We are a 48-bed centre, and we are already staffed and resourced to look after 36. The highest level that we have reached in the two years since we opened is 42. At present, we can cope with fluctuations within that sort of range fairly comfortably. Therefore, even if the worse came to the worse, and courts changed their sentencing culture to give more custodial sentences, there would be some, but not an enormous, impact.

643. Mr Paisley Jnr: I am very impressed by the Youth Justice Agency and the work that it has put into reviewing services over the past couple of years.

644. I agree with some of Alex’s points about the agency’s living within its budget and appearing to be fit for purpose. When the draft Criminal Justice Order (Northern Ireland) 2008 takes full effect, will it have an impact on the role that your organisation plays and the pressures that it faces?

645. Mr D Weir: The agency is preparing for that through, for example, the way in which we respond to pressures that may come from young people who are subject to electronic monitoring. We are looking at what that may mean if there are, for example, call-out costs at weekends. We do not anticipate that that will involve enormous numbers, and staff have demonstrated that they are flexible. Therefore, we can respond to those sorts of pressures. We have also set up pilot local-risk-management panels. However, those panels involve the same staff, with the same young people. We are simply employing a slightly more sophisticated model of assessment and supervision. At present, we do not anticipate that that will have a big impact or that it cannot be accommodated in the existing system.

646. Mr Paisley Jnr: I do not want to compare chalk with cheese, but the message that the Committee has picked up in a written submission from the Probation Board is that the draft Criminal Justice Order will have quite a sapping effect on its role. Why will it be different for the Youth Justice Agency?

647. Mr Tooze: Part of the Probation Board’s problem is caused by changes involved in the ending of 50% remission. Therefore, the draft Criminal Justice Order, when it becomes law, will have a significant impact on adults. In the juvenile-custody population, a juvenile-justice-centre order requires six months in custody and six months’ supervision, which means that that change will not affect the majority of young people who get sent to our centre.

648. Remand accounts for 70% of our centre’s young people. The two or three who are subject to section 42 detention orders under the Criminal Justice (Children) (Northern Ireland) Order 1998 are already dealt with by lengthy sentences, which means that the Probation Board would probably become responsible for their supervision on release. That aspect does not impact on us.

649. Mr Hamilton: The spreadsheet of spending areas in the papers presented to the Committee refers to “agency programme expenditure external funding". That funding has grown fairly significantly, from under £1 million to more £5 million, towards the end of period to which the spreadsheet applies. What does that relate to? How secure and fundamental is that funding to the agency’s work?

650. Mr Bell: For clarification, the £5 million referred to should have been bracketed, because it covers all four items and is carved up each year as part of the agency’s internal budgeting exercise, during which we decide on our priorities.

651. We will soon complete our budgeting exercise for next year, and, for instance, that £885,000 will be around £900,000. The rest of it will be in the running costs. The breakdown was not available when the spreadsheet was being prepared.

652. Mr Hamilton: How secure is that external funding?

653. Mr Bell: That external funding is funding that we provide to bodies outside our agency. It is not external funding that we receive.

654. Mr Hamilton: What programmes receive that funding?

655. Mr D Weir: There are a number of programmes. We have a contract with the Extern organisation, which provides intensive support for young people. It can take up to 10 young people, and it provides 15 hours supervision a week for each young person. There are also contracts in place with a range of voluntary youth organisations, which provide individual mentoring to young people as a component of their youth-conference order or plan. For example, we make a small contribution to the Duke of Edinburgh’s Award, because a number of our young people registers with it. We are in partnership with Barnardo’s, Action for Children, the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) and Extern in the delivery of services and in the promotion of employability of young people who are our clients. We access their services in order to secure and strengthen their position in the community, and we contribute to efforts that are made to prevent young children aged 10 to 13 from offending. We contract out those services.

656. The Chairperson: Does your agency, as part of the NIO, pay VAT? That question was also asked of the Prison Service.

657. Mr Bell: The agency pays VAT on the majority of its expenditure. There are certain contracted-out services on which it is allowed to reclaim VAT, but there will be a reduction in our overall expenditure with the move to the Northern Ireland Civil Service VAT regime.

658. The Chairperson: No other member has expressed a wish to ask a question. Earlier, we heard from representatives from the Prison Service, who peddled the Treasury/NIO line on budgets, and so on. If the devolution of policing and justice powers were to be happening in a short time, would you be informing us of any pressures that you are under — pressures that you have not told us about already. If you come along here in 12 or 18 months’ time and tell us of another £1 million or £2 million that you have not informed us about today, you will not find the Committee well disposed to you. Can you assure us that your agency is not peddling an NIO/Treasury line? It is a serious question.

659. Mr D Weir: We have no skeletons in our cupboard.

660. The Chairperson: Are you saying that there is nothing hurtling down the track for which you will be coming looking for money in the foreseeable future?

661. Mr D Weir: We are equipped appropriately to deal with what is coming to us.

662. The Chairperson: Thank you for your evidence. We may want to correspond with you or speak to you again after the Committee has had more considerations.

24 February 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Alex Maskey
Mr Alan McFarland
Mr Ian Paisley Jnr


Ms Maura Canavan
Ms Cheryl Lamont
Mr Brian McCaughey
Mr David van der Merwe

Probation Board for Northern Ireland

Also in attendance:

Mr Victor Hewitt

Specialist adviser

663. The Chairperson (Mr Spratt): I welcome representatives of the Probation Board for Northern Ireland (PBNI) to this oral evidence session of the Committee; thank you for coming along. The Committee is examining the financial issues on the eventual devolution of policing and justice issues to the Northern Ireland Assembly. I declare an interest as a member of the Northern Ireland Policing Board.

664. Mr A Maskey: I also declare an interest as a member of the Northern Ireland Policing Board.

665. Mr Paisley Jnr: I, too, declare an interest as a member of the Northern Ireland Policing Board.

666. The Chairperson: When the other members arrive, I will also ask them to declare whether they have any interests.

667. I welcome the director of probation, Brian McCaughey, and David van der Merwe, Cheryl Lamont and Maura Canavan. You are very welcome. I ask that you give a short opening address, after which Committee members can ask you questions.

668. Before you begin, Ronnie Spence, chairperson of the Probation Board for Northern Ireland, has tendered an apology. He is unable to attend the meeting because he has another engagement this afternoon. However, he said that he is happy to address, at a later stage, any issues that the Committee might have.

669. Once again, I ask members to switch off their mobile phones, because they interfere with the recording equipment. I also remind members that Hansard is recording this session, and therefore, everything that is said is on the record.

670. Mr Brian McCaughey (Probation Board for Northern Ireland): Thank you for the invitation to give oral evidence to the Committee. The Probation Board for Northern Ireland is a non-departmental public body that is answerable, at present, through an independent board on to the Northern Ireland Office. Probation has existed as a public service for more than 100 years and has been provided in Northern Ireland through a non-departmental public body since 1982. Our mission is to make communities in Northern Ireland safer by assessing and managing the risk that offenders pose.

671. We aim to reduce crime and the harm that it does by challenging and changing the attitudes and behaviours of offenders. We are one of the smallest organisations in the criminal justice family, albeit that we are centrally involved in the assessment and management of offenders.

672. We provide 9,500 reports to judges and parole commissioners annually, including 6,000 pre-sentence reports to assist judges in determining sentences. Additionally, the Probation Board supervises 4,000 offenders who are subject to court orders, 3,200 of whom are in the community and 800 of whom are serving sentences and awaiting release. As measured by reconviction rates, we are among the most effective probation bodies in the UK.

673. The comprehensive spending review (CSR07) provided PBNI with the additional resources to assist in the implementation of new legislation and sentencing. We very much welcome having that extra money to assist us in carrying out the additional responsibilities, and we acknowledge the effort that the NIO made to secure those resources. However, the outcome fell short of what we requested. More significant is the very large gap that has emerged over the past decade or so in spending on probation in England and Wales in comparison with Northern Ireland.

674. I refer members to a paper that was published in December 2008 by the Centre for Crime and Justice Studies at King’s College, London — ‘Criminal Justice Resources Staffing and Workloads: An Initial Assessment’ — which reported a 160% real-terms increase in spending on probation between 1999 and 2005 in England and Wales. In Northern Ireland, the increase was 13% over the same period. It is always difficult to be sure that one is comparing like with like, and I understand that, given the differences in structures, systems and staffing grades, but I am wholly confident in concluding that probation in Northern Ireland has not enjoyed the similar increase in resourcing as experienced in England and Wales, and indeed by our colleagues in the South of Ireland.

675. Another significant area where we believe that we are underfunded is in our capacity to work in partnership with the voluntary and community sectors in preventing offending and re-offending. We work in, with and through the community, and we wish to address that area for the future. In the past, some 20% of the PBNI budget was devoted to that vital work, but other budget pressures have meant that it has been gradually squeezed throughout the decade, with the result that it is now around £1·2 million a year. That represents 7%, as opposed to 20%, of the budget.

676. In conclusion, PBNI is one of the smallest organisations in the criminal justice family; nonetheless, we are central to assessment and management, supervising most offenders within the system. Our focus is on achieving positive change in offenders, thus reducing crime and the harm that it does. We, as an organisation, balance care and control, and we always prioritise public safety. Uniquely, we deliver our services locally, in offenders’ homes, in a family context, in his or her community, and along with voluntary, community and statutory partners.

677. We apply Northern Ireland standards and service requirements in an individualised case-management approach to supervision. Independent reconviction data demonstrate that that approach is highly effective, but the overall allocation of resources has historically not adequately reflected our responsibilities and is significantly out of line with spending patterns in England and Wales.

678. Mr Paisley Jnr: Thank you. At the outset, I will say that I admire your guts and candour in spelling out a very clear written report to us, which clearly shows where you have pressures and where you need money to be spent. It also gives us a reasonably good steer as to what we should be asking the Northern Ireland Office for. Thank you for not giving us any fancy verbiage or footwork on this. Your presentation was straight to the point, and I admire your candour.

679. If I am correct, you said in your report that the probation service’s budget is £18 million a year below what you believe is required. Over the CSR period of three years, that is £52 million short of what you require. Is that correct?

680. Mr McCaughey: Yes.

681. Mr Paisley Jnr: Secondly, I want to ask about delays in the implementation of the Criminal Justice (Northern Ireland) Order 2008. As you know, the NIO has indicated, and many of the wise and the good have told us, that this is the twenty-first century way of doing things under the Order. You are saying that if you are not resourced properly, you will not be able to implement the Order properly or that there will be significant delays in its implementation. That would obviously create a backlog in the system, putting more pressure on the prisons and so on.

682. If you were to get that additional money, would that mean that other money would be released and given to the other parts of the justice portfolio? For example, do you think that less money would have to be given to the Prison Service, or, if we were able to feed that money into that service, would a saving made be elsewhere? Realistically, do we need that money as well as that which we are getting?

683. Mr David van der Merwe (Probation Board for Northern Ireland): It is anticipated that there will be savings across, as you say, the entire criminal justice system, particularly in respect of those sentenced for fine default. It is proposed that such people should be made to do supervised activity orders or community service, thus freeing up prison spaces. Electronic monitoring will enable some individuals who are currently on remand awaiting sentence to be released on bail, which would again free up prison places. There is also the conditioned early-release scheme. However, we are not in a position to make any judgement on whether the Prison Service can make any savings, given the structural nature of the facilities that it manages. Certainly, there is an intention to move people out of prison and into the community, reserving prison for the most dangerous.

684. Mr Paisley Jnr: Therefore, if you get money and are able to do your job in the way that you want to, could major savings potentially be made at the expensive end of the delivery of the justice system?

685. Mr van der Merwe: Potentially, yes.

686. Mr Paisley Jnr: That is very interesting.

687. I also want to ask you about one of the specific projects that you mentioned in your paper, which is the integration of the case-management system with the Causeway Programme. Potentially, that could cost just over £1·25 million. I, as a member of the Policing Board — which I have already declared as an interest — am aware that we have been following the Causeway Programme for nearly six years. What is the timescale for the Probation Board’s being integrated into that programme?

688. Mr van der Merwe: Currently, it is estimated that the Probation Board will come online to the Causeway Programme in autumn 2011, given that the current phase that integrates the Court Service and the Prison Service into the Causeway Programme is about to go live imminently, just before the summer of this year. Planning will then begin for the next phase, which brings the Probation Board and further functionality for the Prison Service into the system.

689. Mr Paisley Jnr: If you spend the ballpark figure of £1·25 million, will you save money ultimately? Will that help to save money, or can you explain why that expenditure is necessary and why we should be drawing up a bid that includes that cost?

690. Mr van der Merwe: That expenditure will bring about savings in the paper-intensive nature of the current system. Currently, any pre-sentence reports that we prepare are printed out and hand delivered to the Court Service, which must then read those papers into its electronic system. The programme also improves security and data protection considerably, as it makes it possible to submit reports electronically via a secure network from the Probation Board to the Court Service, as well as facilitating other data exchanges between the Probation Board and the Prison Service on the management of offenders. Therefore, there are two benefits: one is on the security of data and data protection; and the other is on the efficiencies that it will create.

691. Mr Hamilton: I echo Ian’s opening comments about the frankness of both your presentation and the papers that you have given to us. I am sure that the Chairperson will not be asking whether these witnesses are trotting out the orthodox line from the Treasury or NIO.

692. The Chairperson: I think that they have escaped from the clutches of NIO and the Treasury.

693. Mr Paisley Jnr: You may have lost their Christmas card, but you have ours.

694. Mr Hamilton: Such candour makes our job much easier — we are not having to hoke about looking for problems because you are very open and honest. In comparison with recent years, you have a fairly hefty capital budget going forward. What does that entail, and is it sufficient? Is there a belief in the service that that capital budget is sufficient to meet the capital demands that are being put on you, aside from the IT project, which has been touched on?

695. Mr van der Merwe: There are two main elements to that project. The first is the physical facilities from which we operate. Being a community organisation that operates in the community, we need to have facilities in most regional towns throughout Northern Ireland. Over the years, our estate has suffered as a result of a lack of investment, so the first element of the project concerns refreshing the estate. In particular, we need to provide interview facilities and group-work facilities for offenders, which, by their nature, must ensure that any conversations that take place in them are private, and there must also be a certain consciousness about the personal safety of our staff. It is not just a question of renting open-plan office space.

696. The second element concerns the ongoing investment in IT facilities, a significant chunk of which includes the refresh of our own case-management system, as well as the general upgrade of IT facilities, which continues each year. The shortfall that we highlighted concerns the capital cost of integrating our case-management system with the Causeway Programme’s IT system.

697. Having said that, the announcement last week of the withdrawal from Workplace 2010, and the potential signal that that sends about a change in the Government’s intention as to whether they wish to own or rent property, has implications. Our budget was drawn up on the basis that we would be selling off all our estate and renting back property, albeit not at a private finance initiative level, because the facilities are too small. A rethink is required, given that we are not sure whether we can realistically sell the properties that we currently own. There are around £1·3 million of presumed proceeds in that capital funding — effectively an element of self-funding — that we are no longer confident that we can achieve. Therefore, an additional £1·3 million may be required over and above the £1·2 million that we have already flagged for the Causeway Programme integration.

698. Mr Hamilton: Had the service intended to completely change its estate and move away from current accommodation to entirely new accommodation?

699. Mr van der Merwe: Our estate is currently around 60% owned and 40% leased, and we intended to phase out the remaining owned properties.

700. Mr A Maskey: Thank you for the presentation. Brian, you said that under CSR07 you got additional resources to cope with the further requirements on the service, and, obviously, you welcomed that. However, you are still £18 million a year short. The presentation listed a number of areas in which that deficit has had an effect, including the fact that:

“frontline service delivery will be reduced."

701. That sentence is repeated for two areas. Some of those pressures are self-explanatory; however, I am trying to get a handle on what the real pressures are. In other words, what needs to be done in those areas?

702. Mr McCaughey: For us, the pressures are in the number of offenders that we require one probation officer to supervise them. Given that the new legislation is primarily about public-protection sentences and sexual and violent offenders, as director of the board, I want to ensure that that is at a manageable and doable level. That is the reason that my ideal world was outlined in the presentation, and I understand that that has to be balanced against realism. However, I felt — and the Committee has obviously understood — that that presentation should describe my ideal world, along with the four additional areas that have been identified. In answer to your question, the major pressure concerns the number of offenders that one probation officer would be expected to supervise.

703. Mr van der Merwe: As the director said, probation staffing is structured around an individual case-management approach. We need to cut according to our cloth; however, in reality, a probation officer would supervise more offenders than is perhaps ideal or would be considered best practice. We cannot cut out areas of service altogether because every offender needs attention. The degree to which we can give adequate attention to each offender and challenge and change their behaviour is important — I think that that is where we may lose some of our benefit.

704. Mr McCaughey: I can respond to that; indeed, I touched on this point earlier. Our approach, historically, has been to work in partnership. Everything that we do is in partnership; however, our ability to support community and voluntary groups and to get them to work with us will be reduced greatly by that budget pressure.

705. Mr A Maskey: You gave figures for the considerable number of reports that the Probation Board provides for the Court Service, for example. Are there any examples — and these may be difficult to provide — of when work has fallen down because the appropriate level of staff was unavailable? In other words, are there any elements of the system that simply do not work because of the deficit that you described?

706. The Chairperson: Before you answer, Mr McCaughey, I inform the Committee that I must leave the Chair. That is no reflection on the answer that you are about to give. I am due to speak first in the Chamber when the debate resumes after lunch. The Deputy Chairperson, Raymond McCartney, will take the Chair.

(The Deputy Chairperson
[Mr McCartney] in the Chair)

707. Mr McCaughey: I can answer that question fairly quickly. We have Northern Ireland standards and service requirements for the supervision of offenders. However, if we had insufficient staffing or resources, we would have to move away from those standards and service requirements. It is not simply by chance that the Probation Board for Northern Ireland has a high success rate; the standards and service requirements that we apply are of a high order, and we supervise offenders very thoroughly. However, if resources were insufficient, we would have to step back from those expected standards.

708. Mr Attwood: Thank you for the detail, as well as the tone, of your submission. I have two or three questions to ask. Some of the figures that you outlined project beyond 2010-11. It is important that we anticipate that, especially in respect of the outworking of the Criminal Justice (Northern Ireland) Order 2008.

709. As regards the current spending period up to 2011, I remember that the Probation Broad was offered funding for implementing the outworking of the Order, but it indicated that it was content with the funding that it received as a result of the negotiations with the NIO and Paul Goggins on its budget lines and work on the Order. Subject to what you said, that is my recollection. What has changed in the past year to make the Probation Board realise that it needs more money to carry out its work in following through the legislation?

710. Mr McCaughey: I understand your question, and you are correct. However, the Probation Board and I approached this evidence session as an opportunity to update the Committee on our current and future situation and to reflect on the past.

711. We made our submission under the Criminal Justice Order (Northern Ireland) 2008; however, we did not get our full submission, yet we were content that what we got would allow the board to move forward. That has been the approach that the organisation has adopted. We have never, ever received our full requests. Our organisation has a “can-do" approach — we have cut our cloth accordingly and moved forward positively.

712. Mr van der Merwe: An element of that £600,000 for the sentencing framework was not delivered. The Northern Ireland Office agreed to that by delaying the implementation of certain aspects of the legislation, in particular, the roll-out of the bail-information scheme. We had proposed a certain roll-out timetable; however, the Northern Ireland Office extended that timetable, and, consequently, the Probation Board had to operate with fewer resources. Therefore, there was an agreed approach to rolling it out. We got everything that we had asked for, but the timing was sometimes delayed beyond the CSR07 period.

713. Ms Maura Canavan (Probation Board for Northern Ireland): When we were carrying out the exercise on the CSR07, we reviewed the baseline for our ongoing work, excluding all the new work under the sentencing framework, and our baseline budget was cut. Therefore, although we received the money for the sentencing framework according to the timings, the overall requirements that we submitted were reduced.

714. Mr Attwood: Is there an adequate budget line for the business that the Probation Board does in respect of the Order? I am concerned that, in general, the budget lines that relate to the consequences of that Order, whether for the work of the Prison Service, Probation Service, or any other service, are simply not sufficient to fulfil the expectations of the legislation. The evidence from England and from the parole commissioners supports my concern. Within two or three years, when prisoners say that they want to be released, will it be the case that the regimes to facilitate that, or even to get them a hearing of any weight before the parole commissioners, will not be in place because of a lack of funding?

715. Mr McCaughey: We were content that we could deliver a service based on the allocation that we received. The main difference is that the presumption of dangerousness that exists in England and Wales must be determined by the courts here. In Northern Ireland, there is no automatic presumption of dangerousness set against a schedule of offences of a violent or sexual nature. In England and Wales, an individual who was convicted of such an offence would automatically go to prison. However, as that is not the case in Northern Ireland, I do not envisage as many people going to prison here.

716. The member raised an important point, but I stress to the Committee that some individuals will still go to prison for violent and sexual offences. It is imperative that programmes in prison are available to allow those individuals to evidence the reduction in the risk that they pose. Otherwise, the parole commissioners will left be with the dilemma of how on earth to evidence a reduction in risk that would allow them to decide whether to release those prisoners.

717. Mr Attwood: It may interest you to know that the director of the Prison Service gave evidence that it has had to set aside parcels of money to create the new regime over the next couple of years. He also flagged up the issue that being able to recruit qualified staff to carry out the work in prisons was another matter.

718. You make a big play for extra funding in order to decrease the ratio of officer to offender and, usefully, you provided the figures for comparable jurisdictions. Is the ratio in Northern Ireland decreasing?

719. Ms Cheryl Lamont (Probation Board for Northern Ireland): That ratio has remained steady for a period. Perhaps I could take the liberty of describing briefly the work of a typical probation officer. I am a probation officer in Dungannon, and my caseload of 24 cases includes those that range through low-, medium- to high-risk offenders. I also prepare four court reports each month. As Brian McCaughey, the head of the organisation, said, probation officers operate standards of practice that provide both an effective mechanism for the supervision of offenders and public assurance.

720. I must also provide a service to the court, probably for a couple of mornings each month. In addition, I co-deliver an anger-management programme. I stress the fact that probation officers are not office based. We deliver our work in the streets and communities of Northern Ireland. To that end, we connect with local community and voluntary groups, and we represent the organisation in various fora, such as in domestic violence partnerships and child-protection panels. A probation officer does all that work and is also, quite rightly, expected to attend team meetings on the internal communication of the organisation.

721. The Probation Board employs qualified social workers as the main deliverers of the service, and they will be expected to adhere to, and to continually develop, their professional expertise. Therefore, a lot of demands are placed on them. I stress that, as we go forward with the complexity of the work, when I was a front-line worker, I took notes with a pen and paper, which David alluded to. However, we now have case-management systems in which we input our work.

722. I also stress that the tools that we — thankfully — now use in the assessment and management of offenders require time to complete. Furthermore, in comparison to the time taken, the assessment, case-management and evaluation (ACE) tool, which is what we call our validated instrument, is more user-friendly than the offender assessment system (OASys) tool that is used in England and Wales. Therefore, in my view, the caseload has remained fairly similar in some ways, but there is a complexity to the work across the range, which, hopefully, I have explained to you.

723. Mr Attwood: My concern is that your community budget is getting squeezed from 20% to 7·5%, and it may get squeezed further, which is not good. There is an increasing number of prisoners, so attempts must be made to reduce the ratio of offenders to probation officers. Robin Masefield said that the number will increase by up to 5% per annum over the next number of years. There is also the Order to consider, which is very expensive to implement. Therefore, for those four reasons, there will be serious budgetary pressures over and above anything that might arise either because of the general budgetary situation or because the Exchequer is going to get very mean about the budget for the devolution of justice generally.

724. Looking ahead two or three years, there will be some difficult situations, because, in the current budgetary environment, I do not know how those four objectives can be attained in the current and likely budgetary environment. I am on the same page as Brian on this issue, but, for the purposes of the report —

725. Mr McCaughey: I understand the member’s comments, and I look forward to engaging in those challenges for the future. Those are the real challenges. I am not so sure about an increase in prisoners over the next number of years, and it will be for the Assembly and the Department of justice to promote use of our prisons for the most dangerous, violent people who will cause hurt and harm to our families. If that is the strategy, how, therefore, should we manage all the others? Surely, the numbers of people going to prison for non-payment of fines cannot be right; surely, in Northern Ireland, we can think of a more effective, worthwhile way to allow those offenders to make good the harm that they have done to society and to make some payback to society by way of specified activities or some sort of community service.

726. I should have mentioned earlier that perhaps we could do more about prevention and diversion to determine whether people actually enter this system of ours, because once they join the system, it is very hard to get off the rails. I wonder whether there are other ways of managing people — and female offenders in particular — before they are brought into the court system. We are developing a new strategy, which is out for consultation, on how we can engage with female offenders and deal with all the issues and reasons why they might offend and, if at all possible, prevent them from having to go to prison. We can then deal with the issues that are involved, particularly where parenting issues, children, mental health and addictions are concerned.

727. I would also look at specific sentence reports, as opposed to full reports to court, in the context of savings. I am not sure that we need 6,000 reports to court, because I believe that I could tell very quickly whether someone needed a full report or an initial assessment, which would direct the court. Savings could be made in those areas, so I do not see the world as being totally negative. In fact, we have a great opportunity.

728. Mr Paisley Jnr: On that issue of reporting, I am not trying to set you up against the people with whom you work. However, is there a culture in the courts system whereby people want all paperwork and reports before they will pass sentence or make a determination, or is there a willingness to take guidance and direction on an expert or a directed report?

729. Mr McCaughey: We are piloting a new arrangement for the provision of specific sentence reports in order to evidence the reduction, delay and increase in saved days and the effectiveness of the decisions in order to ensure that people can take up community service.

730. Mr Paisley Jnr: How that progressing? Is it too soon to say?

731. Mr McCaughey: It is improving. However, as you suggested, we are attempting to change custom, practice and culture.

732. Mr McFarland: Thank you for your briefing and answers. I want to examine the ratios and cost of supervision. It is clearly important that high-risk offenders are supervised properly, and the same argument could apply to medium-risk offenders. Although it is ideal by your standards, would it make an enormous difference if more low-risk offenders were allocated for each individual officer? Although reoffending rates are lower here than in England, they are still enormous. There are questions about the effectiveness of the system, because some individuals are career criminals who will continue, even under supervision, to be criminals. How effective and cost-effective is that?

733. What is the role of the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO)? Am I right in saying that it is a separate organisation? The voluntary sector, including community restorative justice, and other agencies manage offenders when they are released from prison. In the longer term, will an issue arise about how well money is being spent, either by those groups or by organisations that look after people when they leave prison? The system seems to involve an enormous number of people, and money is being drawn from different sources. Is that a good way to spend money in the longer term when budgets start to tighten?

734. Mr McCaughey: That is a great question. As director of probation, I believe that if we are tasked to give a lead on the assessment and management of offenders in Northern Ireland, we should at least have a say as to which groups that work with offenders receive money. That is not fully the case today. Our submission outlines the funding and budget that my counterpart in the South of Ireland receives. All money for engaging with offenders in the voluntary and community sector in the South is channelled through the probation service. The Committee should consider that.

735. Mr McFarland is absolutely right. Based on NISRA’s independent research on the matter, Northern Ireland is more effective in this field than anywhere else. Three out of four people on our community-service scheme will not have been reconvicted within two years. Moreover, seven out of 10 people on community supervision will not have been reconvicted in two years. Those figures are unmatched elsewhere because of how we do our business in, with and through the community and because of our high standards on service requirements.

736. That leads me on to the future, when policing and justice powers will be devolved. In order for the community to understand and have confidence in criminal justice, they need to be involved in its delivery. I am seeking, through our submission and through the additional moneys that we have requested, to increase our community-development budget in order to allow us to engage further with community groups on the management of offenders, particularly lower-risk offenders. I want the Probation Board for Northern Ireland to return to the world of diversionary activities and engaging with communities. I do not want to only deal with one son in a family who has been in trouble, but deal with the second son who is at risk of becoming involved. Quite frequently, parents ask for help with him because he is going along the same lines as his brother.

737. Mr McFarland: Earlier, we heard from the Youth Justice Agency of Northern Ireland, which has an enormous budget and sees itself getting involved again in that sort of activity. There is an effort to find more money for youth diversion in the policing world and in youth justice. A number of different agencies see themselves as being the deliverer on those sorts of matters. Is there an issue in trying to get the police, the Probation Board and youth justice into some common agreement over who should do that work and who should be funded to do it?

738. Mr McCaughey: I appreciate the question. In our submission, we put a figure on where we believe that additional moneys should go to community development to work with adjudicated offenders. That is for us to engage further with the community in order to engage with adjudicated offenders. That is based on our knowledge and experience over the past 27 years and on the reduction in budget that has been mentioned.

739. However, I am a realist, and it would be a decision for the future as to whether that money would come to the Probation Board, which has responsibility for the assessment and management of risk that is posed by offenders, or whether there would be some other mechanism that a Department of justice would wish to look at to co-ordinate and better target that funding. As the body that is responsible for the supervision of 4,000 offenders, 3,200 of whom are in the community, that is the uplift that I would require to seek to enrich the community and voluntary sector to work with me.

740. The Chairperson: I wish to clarify a couple of points on the figures that you presented. The CSR shortfall for 2008-09 to 2010-11 is £4·1 million. There is a shortfall beyond the CSR period for the Order of £4·85 million. From 2011-12 onwards, there is a shortfall of £11·07 million from the revision of offender ratios. The shortfall from the case-management system integration with the Causeway Programme is £1·29 million, and there is a shortfall of £2·6 million from community development. That is a total shortfall of £23·91 million, minus £1·02 million from 2008-09, which has passed already. That gives a total figure of £22·89 million. How does that figure fit with the figure of £18 million that you highlighted?

741. Mr van der Merwe: Some figures are annual figures. The case-management system figure is a one-off amount of £1·2 million, as opposed to the revision ratios, which are an annual amount. There is almost an element of double counting in the way that you have analysed the figures.

742. The £4·8 million for the Order going beyond 2011 is an annual figure. We have disregarded the actual shortfall in the current CSR period in calculating the figure for the year as £18 million. We have only worked on the Order figures going forward of £4·8 million a year, the revision of supervision ratios of £11·1 million a year, and the community development figure of £2·6 million, which gives £18·2 million. The capital money for the Causeway Programme is separate from that.

743. The Chairperson: I have one more question about the board’s agency status. Does the board pay VAT as part of the NIO arrangements?

744. Mr van der Merwe: The board is not registered as a VAT vendor. We have to pay VAT on all our invoices, but we cannot claim it back.

745. The Chairperson: Thank you for that. Do members have any further questions?

746. Thank you for coming along. Are you aware of any other issues that could have a material and inescapable consequence for your budget in future? It is refreshing to see that, as was shown in the first presentation, you are not in the clutches of the Treasury or the NIO. You have given us an honest and upfront presentation, which is a good news story. I assume that if policing and justice powers were to be devolved in the near future you will not trundle along with cap in hand, saying that you wanted a few million pounds that you did not tell us about.

747. Mr McCaughey: I reiterate that we have approached this event — and our submission — by outlining as best we can to the Committee exactly what the situation is for the Probation Board. We do not have a world of surprises for the future. I am telling you as I see it so that the Committee is as informed as it possibly can be.

748. I also reiterate that the Probation Board is one of the smaller organisations in the system. However, our track record provides strong evidence of our value for money and creativity. I hope that we have demonstrated our positivism and can-do approach. We have adopted a localised and individualised community response to the management of offenders, and we have a strong history of working in partnership in local communities with the voluntary and community sectors and in a North/South and European context. Above all else, our performance and results stand up against anyone else’s, and I ask the Committee to look at that.

749. The Probation Board is a growing and vibrant organisation that pursues excellence in everything that it does. We look forward to working with all Departments on all the issues that have an impact on offending. We believe that in Northern Ireland we have an opportunity to set a standard for criminal justice for others. We believe that we can give a lead for the future. As director of the Probation Board, I want the Committee to know that the organisation wishes to play a full and central role in assisting the Assembly in its aspirations for the future of criminal justice.

750. The Chairperson: Thank you for being so frank and upfront with us. We may seek written clarification on certain points or we may ask you to speak to the Committee again directly. I wish you well.

3 March 2008

Members present for all or part of the proceedings:

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


Mr Paul Andrews
Mrs Jacqui Durkin
Mr David Lavery
Mr David Thompson

Northern Ireland
Court Service

751. The Chairperson (Mr Spratt): I welcome the representatives from the Northern Ireland Court Service, and I thank them for coming here today to help us with our inquiry into the devolution of policing and justice powers, and, in particular, to answer questions on financial issues.

752. I welcome David Lavery, the director of the Court Service; Jacqui Durkin, its head of court operations; David Thompson, its finance director; and Paul Andrews, its head of publicly funded legal services, which deal with legal aid. I anticipate that the session will last for up to an hour and will mostly involve questions from members. I invite you to make a brief statement, and then I will ask you to leave yourselves open to questions.

753. Mr David Lavery (Northern Ireland Court Service): The Court Service welcomes the opportunity to assist the Committee with its deliberations. As the Committee will be aware, we wrote to the Committee Clerk on 9 February 2009, providing an overview of the Court Service’s financial position. Together with colleagues in the Northern Ireland Legal Services Commission, we submitted a joint memorandum, dated 26 February, which provided an overview of the legal-aid system in Northern Ireland and the financial pressures to which that system has been subject.

754. Other aspects of the Court Service’s financial position — apart from legal aid — are dealt with in the letter of 9 February, which we sent to the Committee Clerk. We shall draw particular attention to what we said in that letter about the court-building programme in Northern Ireland, inquests and, perhaps, judicial costs.

755. Apart from those brief introductory remarks, Chairperson, I do not propose to make any other formal statement. We are pleased to assist the Committee in any way.

756. The Chairperson: Before I begin, I declare an interest as a member of the Northern Ireland Policing Board. I invite Committee members to do the same.

757. Mr Paisley Jnr: I am a member of the Policing Board.

758. The Chairperson: There is no one else present who is required to declare an interest.

759. Can you outline some of those costs, Mr Lavery, particularly the court-building costs?

760. Mr Lavery: The Committee has invited us to provide an overview of the budgetary pressures to which the Court Service will be subject for the remainder of the comprehensive spending review (CSR) period and beyond. We have identified a number of such pressures, of which the most significant by size and challenge is, of course, the immediate legal-aid pressure that has preoccupied the Committee today. We estimate that it will cost £60 million over the next two years.

761. We have also brought to the Committee’s attention the fact that there is a build-up of demand for improvements to the court estate in Northern Ireland. We have projected a total capital cost of the order of £100 million of work that lies ahead of us but for which we have not been funded in the current CSR round. We thought it appropriate to draw to the Committee’s attention some other pressures that will arise over the next couple of years.

762. The only one that might be described as explicitly devolution-facing is assimilation costs for staff who will join the Northern Ireland Civil Service. The Northern Ireland Court Service is technically a separate civil service, and there are some slight differences in our terms and conditions around salary scales and grading structures. Clearly, if we become part of the Northern Ireland Civil Service on devolution of justice powers, our staff will cease to be Northern Ireland Court Service civil servants and become members of the wider Northern Ireland Civil Service instead. Should that happen, there would be a need to assimilate our grading structure and our salary structure. We have projected a cost of approximately £400,000 over the next two years in order to achieve that. There are some slight differences in some of our pay scales that would have to be addressed. We can examine that in greater detail if it would assist the Committee.

763. In my letter, I also identified a pressure of £7·5 million for judicial costs, even though those have not been created by the proposed devolution of powers. I tried to explain that there is a constitutional principle that judicial salaries should be paid out of the Consolidated Fund. In other words, it should not be in the gift of an Assembly or a Parliament to vote money to judicial salaries. For largely historical reasons, the amount of money in the Consolidated Fund for judicial salaries in Northern Ireland has been capped, or has marked time, at a particular level that is no longer sufficient to cover the totality of judicial salaries and other costs. In practice, we are making up the shortfall from our departmental budget. That situation must be addressed under devolution in order to place all the money for judicial salaries into the Northern Ireland Consolidated Fund. It is simply a means of underscoring the principle of judicial independence.

764. However, we have also identified some judiciary ancillary costs. For example, in the past couple of years, some concessions were made on the taxation treatment of judicial pensions, which were funded at the time but have not been funded for new judicial posts. Therefore, as new judges are appointed, the costs associated with the adjustment to the taxation of judicial pensions fall to the Court Service. That amount is building up over time, and we have identified it as part of the £7·5 million judicial costs.

765. We have also identified the need to take up some additional responsibility for judicial transport. As the Committee is aware, during the Troubles, and up until now, many judges who have dealt with criminal cases in Northern Ireland have received police protection and have been driven around in police cars. However, part of that infrastructure is likely to change this year. There will be a consequential impact on the Court Service’s budget as we take up the slack and provide travel allowances. In some cases, if a judge were travelling a very long distance over many days to preside over a trial, we might have to provide a car-pool facility, in the same way as — dare one say it — Ministers and senior public officials have such a facility. Therefore, we have also factored in that cost.

766. We have also identified an estimated figure of £2 million for inquests. There are around 20 so-called “legacy inquests" going back a number of years, and those will now come before the Coroner’s Court in Northern Ireland. Those cases gave rise to issues concerning the European Convention on Human Rights and were the subject of litigation that has been before the courts for many years. A backlog of cases in which the European Convention on Human Rights is relevant has built up. With some recent decisions made by the Appellate Committee of the House of Lords, those legacy inquests are now in a position to proceed, and they will be expensive cases to administer.

767. The complex nature of the cases is such that the coroners will almost certainly require additional legal support, by way of appointment of counsel, to assist them in the preparation of their cases, and in the presentation of the cases at the inquest. Therefore, we have included an estimate of up to £2 million, which includes a figure for the appointment of an additional coroner. We have temporarily appointed one additional coroner to build up the capacity of the coroner system to deal with cases that are, by their nature, complex, and are likely to last many weeks or months.

768. We have also declared a very small amount in our pressures for tribunal reform. As the Committee may be aware, the Northern Ireland Executive agreed in principle that the Court Service would assume responsibility for running Northern Ireland’s tribunals, and one of the steps that we propose to take is to bring together administrative staff. There is a multiplicity of small tribunals in Northern Ireland, and we think that we could achieve efficiencies by bringing some of the staff together into a common back office, but accommodation and staffing costs are associated with that.

769. We have declared total resource pressures of around £70 million, and a capital pressure, primarily for building new courthouses, of £100 million.

770. To conclude, the legal-aid pressure, which has preoccupied the Committee today, is an inescapable pressure. Those liabilities exist, and they are in the system. Bills will have to be paid, but funding has not been provided in the legal-aid baseline to do that. The only other inescapable pressure is the devolution assimilation costs for staff, which amount to roughly £400,000. All the other elements are matters that the Court Service will want to do, or will be obliged to do, in the next few years. Therefore, it would be remiss of us, at least, not to declare those to the Committee so that members are aware of the level of pent-up demand for expenditure in some areas.

771. The Chairperson: The £100 million figure for new courts is out to consultation at present. Does that amount include expenses for high-tech IT equipment and other specifications?

772. You were present to hear the Northern Ireland Legal Services Commission’s evidence to the Committee. Have you any comment to make about the fact that legal-aid costs in Northern Ireland appear to be higher than those in other parts of the United Kingdom? It appears that high costs here are down to legal costs and payments to legal professionals. It seems that our pay scales and billing scales differ from those operating in other parts of the United Kingdom. Have you considered reforming that policy, or has any work been done to bring our costs into kilter with the rest of the United Kingdom?

773. Mr Lavery: You said that the court-building programme was the subject of a public consultation. At present, we are consulting about a proposal to change the way in which we operate a number of the smaller courthouses. We are suggesting that five courthouses become hearing centres. Rather than open from Monday to Friday to provide office facilities but have court hearings on only one or two days a week, we are suggesting that they become limited-opening courthouses, which we call hearing centres. Therefore, the courthouse would open only on days on which a court hearing was taking place. The office would be open for normal business on court sitting days, but the office facilities would be provided from other larger courthouses in the same locality on the other days of the week.

774. Our proposal applies to the five smallest courthouses. We have published a consultation paper on that type of rearrangement at Bangor, Limavady, Larne, Strabane and Magherafelt courthouses.

775. The Chairperson: Would that create efficiencies?

776. Mr Lavery: It would, but they would be fairly modest. It would not be necessary to heat and light the building on the days on which it was closed, nor would security and the associated paraphernalia be required. The staff would continue to work, but they would be relocated on non-court sitting days to another court office, from where they would perform their duties.

777. The £100 million, about which we have notified the Committee, is to improve the court estate, which is an estate of variable quality. Recently, we opened some modern courthouses in Belfast and in Dungannon, and they are among the best in Europe. However, we have some old buildings as well, some of which date back to the nineteenth century. They are difficult to adapt to modern expectations. For instance, it is difficult to provide disability access to those buildings.

778. We also must face such issues as population and business growth in some areas, so that figure comprehends a range of expenditure, the most pressing of which is Ballymena courthouse. It will need to be closed for major refurbishment, because it needs a roof replaced and a great deal of remodelling work.

779. We have also identified the need to replace courthouses in Lisburn, Newtownards and Bangor. Lisburn has outgrown the capacity of its existing building. We hope to develop a new and better courthouse for Lisburn. The Court Service believes that Newtownards and Bangor courthouses could probably be replaced by a new and better courthouse serving north Down. There is also considerable pressure on Londonderry courthouse. Derry has a very busy court, and we have plans to redevelop the administrative block in order to provide additional court capacity there.

780. Our projection, including for courtroom technology, is a total capital spend of the order of £100 million. That simply is not in the budget. As I explained to the Committee, our budget is about £21 million in capital spend over 2008-09, 2009-2010 and 2010-11. That is something of which the Committee should be aware. It is something about which we will return to the proposed Department of justice and the Department of Finance and Personnel.

781. The Chairperson invited me to comment on the issue of legal aid, and we heard the observations of colleagues in the Legal Services Commission. The legal-aid system in Northern Ireland was established in 1965, and it provides access to justice for many people. We must not lose sight of that. More than 70,000 received support in dealing with legal problems last year; therefore, legal aid provides an opportunity for people to address legal grievances or to have representation in court proceedings that they might not otherwise be able to afford. Legal aid is an important service that provides people with a great deal of assistance.

782. However, in some areas, expenditure is unquestionably higher than it is in comparable regions of the United Kingdom or Ireland. There is a number of reasons for that. First, there is a relatively high degree of social deprivation in Northern Ireland. The Committee knows, and Mr Daniell from the Legal Services Commission explained, that entitlement to legal aid — civil or criminal — begins with an assessment of the person’s ability to pay for his or her legal representation. In order to obtain legal aid, a person must satisfy the appropriate authority that he or she does not have the means to pay for the case.

783. Serious criminal-legal-aid cases that end up in Crown Court, such as those discussed earlier, begin in the Magistrate’s Court, where 80% of defendants charged with indictable offences qualify for legal aid. Thus, a substantial proportion of people who appear before criminal courts, particularly on serious criminal charges rather than for minor offences, such as motoring offences, is eligible for legal aid under the current scheme.

784. The criminal-legal-aid scheme is a free scheme, not a contributory one. Once someone qualifies for criminal legal aid in Northern Ireland, legal representation is paid for by the taxpayer. Unlike civil legal aid, which may require a contribution, if a person qualifies for criminal legal aid, he or she is provided with solicitor and barristers free of charge.

785. A third factor that has a bearing on all of this is the volume of cases. Although the number of civil cases going before the Northern Ireland courts has declined, there has been a steady growth in the number of criminal cases. In the period for which we have provided statistics to the Committee, there has been a 29% increase in the number of Crown Court cases, which are the most serious and tend to require the greatest amount of work and legal representation. Hence, the volume of cases before the courts acts as a driver for legal-aid applications.

786. I must also concede that there has also been a growth in the average cost of cases. It is not just a case of more cases costing more money — the average cost of criminal cases has been growing. A particular growth area that the Committee has already discussed with our colleagues from the Legal Services Commission is that of very-high-cost criminal cases, which are the most expensive Crown Court cases. We have been surprised at the number of those qualifying as very-high-cost criminal cases. That is something at which we may need to look.

787. We thought that the threshold would be such that we would have one third of the number of cases that has been coming through the system. There is clearly something there for which we have not planned. We are getting a higher volume of very-high-cost criminal cases, and once a case is certified as being a very-high-cost criminal case, it is not subject to a system of prescribed standard fees. The remuneration for the lawyers who work on those cases is assessed by a judicial official known as a taxing master after the case is concluded.

788. No one knows how much those cases will cost, or how much the Legal Services Commission will have to pay, until the case is concluded and an assessment of costs has been made. That has been the cost driver that has confronted the legal-aid system in the past year or so.

789. The additional £24 million that had to be provided for legal aid in the financial year that is just ending, 2008-09, is almost entirely attributable to that greater incidence of very-high-cost criminal cases. We have had more of them, and they have cost us more in legal fees than we would have expected.

790. The Chairperson: You say that you may need to look into those cases. Should not you be looking into them?

791. Mr Lavery: We will certainly address your further question as to whether any planning has been done in order to address that.

792. If I can refer members briefly to the memorandum that we submitted, it states that there is a very substantial disparity between the average cost of criminal legal-aid cases in the Northern Ireland Crown Court in comparison with that in England and Wales. The Chairperson earlier drew attention to the fact that we have projected an average Crown Court case cost of more than £13,000 — almost £14,000 — compared with £6,300 in England and Wales.

793. I do not believe that the Scottish figures would enable us to compare like with like. The figures for what are known as solemn proceedings there, which are the more serious criminal cases, are much higher.

794. In sticking to the figures that we can stand over, it costs almost £14,000 for a Crown Court case in Northern Ireland and £6,300 in England and Wales. In his evidence, Mr Daniell stated that £13,887 is on the high side. He explained the way in which that figure had been calculated, which was to take the average cost of a Crown Court bill and multiply it by three. That was done on the assumption that every Crown Court case involves a solicitor, a barrister and a senior barrister, or QC. That average has been calculated by taking into account the fees that QCs, ordinary barristers and solicitors charge. If we could calculate more exactly the average cost of each case — rather than the average cost of each bill — it would be somewhat lower than that, but it would certainly not be £6,300.

795. The Chairperson: I am sorry to interrupt, but you say that the cost of the bill is multiplied by three to represent the fees of a solicitor, a junior barrister and a QC. Do court cases in other parts of the United Kingdom involve a solicitor, junior barrister and QC? Is that the norm, or does Northern Ireland have, because of the Troubles, and so on, a culture of dealing with cases differently from England and Wales or from Scotland? Is it possible that their court culture does not require a solicitor, junior barrister and QC in every case? Are we paying through the nose?

796. Mr Lavery: I was trying to reach that point. The level of legal representation in cases is one of the cost drivers in Northern Ireland. In criminal cases, the norm is to have both senior and junior counsel, as well as a solicitor. By comparison, in Crown Court cases in England and Wales, many more cases are dealt with adequately by a solicitor and one counsel, rather than by a solicitor and two barristers. We intend to address that, because it is clearly a cost driver. If the average bill had simply to be multiplied by two rather than by three, the result would be a lot closer to the English figure — it would be perhaps £8,000, rather than £13,800. Clearly, the level of representation is a cost driver and something to which we have regard.

797. At present in Northern Ireland, the level of representation that there will be in a Crown Court case is a judicial decision. The defendant appears for the first time before a Magistrate’s Court on the preliminary charges before the case is eventually transferred to the Crown Court for trial. As I explained in my introductory remarks, 80% of defendants qualify for legal aid at that point and receive it free of charge. The magistrate decides then whether to grant a certificate for one or two counsel. Therefore, right at the very beginning of a case, when it is starting on its way along the production line as it were, a judicial figure decides to allocate a QC to a case; however, that may change later.

798. I think that you are looking for ideas or suggestions about that this morning. There may be a case for deferring the decision to bring in senior counsel to a much later stage, when the Crown Court judge who will try the case has read the papers and has had an opportunity to decide the case’s level of complexity and, indeed, whether it is going to trial. Although every case starts with the intention of going to trial, many are resolved by way of a guilty plea and do not proceed to a fully contested trial. Therefore, there may be a case for deferring that decision.

799. The Chairperson: I have to say that I am becoming more and more worried about what you are saying.

800. Mr Lavery: I mean to reassure you.

801. The Chairperson: You tell me that a judicial figure decides the level of representation at a particular stage of the production line. To me, that smacks of jobs for the boys the girls, and it therefore needs to be examined. You said that the commission and Court Service intend to address that.

802. The situation has become very worrying. We will have to consider this matter seriously in relation to devolution. There is now a need to examine it, because spiralling costs and the growing cost of legal aid, which seems to be a year-on-year pressure, have obliged you to go to the Treasury annually. The time for addressing it has passed: to be blunt, it is now time for action.

803. Nelson McCausland has joined us. Do you have any interests to declare, Mr McCausland?

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

805. The Chairperson: Thank you, Nelson.

806. I am sorry to have interrupted you, Mr Lavery, but some of the things that you said worried me.

807. Mr Lavery: I am trying to reassure you somewhat. You invited us to address what can be done about this, as you did Mr Daniell. Some of the areas that we are addressing involve changing to having a more robust system of standard fees for cases, for example. Any system that leaves assessment of the cost of the case to the end of proceedings brings with it an element of unpredictability.

808. We have started a process of introducing a regime of standardised fees for criminal cases. Many Crown Court cases are subject to standard fees already, where the fee is set through legislation — by the Lord Chancellor at the moment and, in the future, by the Northern Ireland Minister for justice — so it is clear at the outset how much a case will cost, irrespective of how long it lasts. We think that that is a clear way of introducing cost control and efficiency. It seems safe to assume that if lawyers know that the case will attract a particular set fee and that that fee will not get any bigger, regardless of whether the case lasts longer, that will act as an incentive toward efficiency.

809. However, in the past year or so we have had a problem in that we have not, as yet, introduced standard fees. The very-high-cost cases are, by their nature, assessed ex post facto by a judicial figure, and there is no sufficient predictability in the way in which those fees will turn out. We have been in consultation with the legal profession regarding immediate reforms, and we plan to introduce a new system of fees for very-high-cost cases. That will be based on the corresponding rates of remuneration in England and Wales. That will require solicitors and barristers to account for the amount of work that they do and the time that they spend doing it, rather than the traditional way, whereby counsel marks their fees. That is based on what is called a brief fee, which is a composite fee that includes all the preparatory work done, as well as up to and perhaps including, the first day of the case.

810. Early in the new financial year, we plan to introduce a new fee regime for the very-high-cost criminal cases, and that will be based on the level and structure of remuneration for England and Wales. That will be an immediate way of introducing a greater degree of cost control and budgetary predictability.

811. However, I cannot pretend that it will have any impact on the cases that are in the system already, because I cannot change retrospectively the basis on which those cases have been taken on. Some of them have been completed already, and the bills are waiting to be paid. However, it is intended that from April onwards, cases for which criminal legal aid has been awarded, which become very-high-costs cases, will be remunerated at the same rates as in England and Wales. That seems to us to be an immediate way to address cost control.

812. More generally, I would offer standardised fees as a response. Standard, predetermined fees, where one knows in advance what one will get, and prompt payment of those fees to give people predictability and cash flow, is the right road to go down. That will gradually close off those other avenues where the assessment of the fee is at large and is an ex post facto assessment. The fewer of those situations that there are, the better. Our overall objective is to achieve cost control and budgetary predictability, as well as value for money.

813. I am sorry that I am monopolising the discussion, but I should say that the Committee should be encouraged not to look solely at criminal legal aid. Civil legal aid has also seen quite a lot of growth, particularly in the area of matrimonial and children’s cases. Again, it seems to us that the single biggest cost driver is the level of representation; the number of lawyers that are used in each case has gone up significantly. In children’s cases, it is quite common for many of the parties — not only the child, but the parents and, perhaps, grandparents — to have their own separate legal representation. That is one of the explanations for the significant growth in that area of civil legal aid. Again, we intend to address that.

814. I am sorry if I have monopolised the discussion on that point, but I wanted to give the Committee some sense of what we are looking at.

815. The Chairperson: Just before I invite members to speak, for the record, will you clarify that you said that, over the entire CSR period, you have £20 million of capital available, and that the annual amount is £4·8 million for next year, £8·8 million for the following year, and the capital spend of £100 million is completely uncovered at present? Is that correct?

816. Mr Lavery: Yes. Our capital allocation for 2008-09, 2009-2010 and 2010-11 was, I think, £21·8 million. That allows us to maintain our court estate and begin the repairs to the Ballymena courthouse, which was referred to earlier. However, as far as building a new courthouse anywhere is concerned, that sum would not look at it. We thought that it was appropriate to at least alert the Committee to the fact that there is a bit of a pent-up demand for that type of remedial work.

817. Mr Paisley Jnr: Thank you for your very helpful presentation and for the letter that you forwarded to us on 9 February. First, I would like some clarification on a figure that is listed on page 5 of that letter. A summary of the budgetary pressures is provided, and a figure of £60 million is identified for legal aid. Is that the same £60 million legal aid pressure that the Legal Services Commission talked about?

818. Mr Lavery: Yes.

819. Mr Paisley Jnr: Does that mean that it is not a separate figure?

820. Mr Lavery: Fortunately, yes.

821. Mr Paisley Jnr: You are reassuring us with that answer.

822. The second issue concerns your comments about trying to drive costs down. What will be the practical outcome of your suggestions on how to do that? Will the legal profession accept that radical change? Would there be any impact? I suggested to the previous witnesses that there may be a strike. What are the real, nitty-gritty, down-to-earth repercussions of pursuing what you suggested to us?

823. Mr Lavery: You are encouraging me to speculate. However, a recent example is the disruption to the work of the Crown Court towards the end of last year and at the beginning of this, when counsel refused to appear in cases. Their complaint — which was shared by solicitors — was about the length of time that it was taking to pay for very-high-cost criminal cases.

824. Mr Paisley Jnr: You cannot argue with money.

825. Mr Lavery: Part of our difficulty was that we were not funded to pay those cases; we had to secure additional funding to pay the bills that were in the system. However, the Bar Council passed a resolution stating that counsel need not accept or retain instructions on any matter about which they were not satisfied that they would be paid a reasonable amount within a reasonable period of time.

826. One might view that as a bit of a shot across our bows. However, I think that the authorities in the legal profession — the Bar and the Law Society — realise that we are moving into a different world where they are negotiating for fees, ultimately, with the Northern Ireland devolved Administration rather than with the Treasury in London. They realise that they will be just one of the many sectors of our community competing for finite resources. We have had those conversations with those organisations. In future, there will be no blank cheques, which was a term that somebody used earlier this morning. If we want an increase in the legal aid budget in Northern Ireland post-devolution, anything that is allocated will be money that cannot be spent on schools, healthcare, housing or social welfare.

827. Mr Paisley Jnr: We want to ensure that we know the consequences of seeking this money. You are telling me that what is desirable is possible, but that there may be a few bumps in the road.

828. Mr Lavery: I do not think that any practitioner would embrace any Government initiative that would restrict either the number of opportunities to undertake publicly funded work or the rate of remuneration that is paid for it. However, we have been very clear with both professional bodies — the Bar and the Law Society — that there will inevitably be a need to reduce the cost of publicly funded legal services in Northern Ireland.

829. The Chairperson invited me to explain what we were doing. One thing that we need to do — and that we are considering — is having what one might call smarter procurement. We are one of the bulk purchasers of legal services in Northern Ireland, as is the Public Prosecution Service and perhaps the Central Services Agency (CSA) and one or two others. It ought to be possible for the bulk purchasers to co-ordinate activities somewhat better than has been done in the past so that the cost of legal aid does not drive, say the PPS, to increase the fees that are paid to prosecutors or vice versa — that the fees paid to prosecutors do not drive the cost for defence lawyers.

830. I think that we need to work in a more joined-up way. Personally, I believe that the devolution of justice to Northern Ireland will not only provide the opportunity, but it will present the necessity to do that. As you speculated, there will be bumps along the way.

831. In case I do not get the chance to say this, I should point out that one has to acknowledge that there has been an element of historic underfunding of the legal aid budget in Northern Ireland. It is an incomplete picture to simply ask how the Court Service let the situation get out of control. At the minute, and as Mr Daniell explained, the legal aid system is designed to be demand led; it helped 70,000 people to access justice in 2008. Given how it is now structured, it probably costs about £80 million a year, rather than the £65 million that is in the system. It will ultimately be for those in the devolved Administration to decide how much they want to spend on publicly funded legal services. The system is there to help people — not to help lawyers.

832. Mr Paisley Jnr: Make no mistake about it — my personal objective is to achieve an outcome where devolution delivers a system that is better, not for the lawyers or the courts, but for the people. We are, ultimately, the people’s servants, and we must ensure that what we get out of this process is better.

833. I want to ask about judicial salaries expenditure. You said that that amounts to £7·7 million per annum, the lion’s share of which comes from the Consolidated Fund. The Court Service has to fund almost one third of that total, and by next year, the figure will be almost 40%. Is that a strike at judicial independence? It seems to me that it is a real blow to judicial independence, bearing in mind the saying “he who pays the piper".

834. Mr Lavery: It is wrong in principle, and the Northern Ireland Act 1998 more or less obliges us to reposition judicial salaries into the Consolidated Fund. It states that for that reason, the control of judicial salaries is reserved or excluded from the devolved Administration. It is a constitutional principle in the South of Ireland, Scotland, England and Wales that judges do not have to wait for the Parliament to vote on their salaries each year.

835. I pay a substantial sum of money annually from my departmental budget —

836. Mr Paisley Jnr: You should not be paying that.

837. Mr Lavery: I should not be paying it. However, I have to, because the Treasury froze the amount of money that is available for judicial salaries.

838. Mr Paisley Jnr: We need to examine that matter at the point of devolution.

839. Mr Lavery: The Treasury will look at the matter by moving the money from the Court Service budget into the Consolidated Fund, with the result that I will be £2 million worse off.

840. Mr Paisley Jnr: I understand your point. You also mentioned that the sum for transport arrangements will amount to £800,000 in 2009-2010. I understand that, historically, when a judge was under threat — which all of them were, wrongly, for a considerable period of time in our country’s history — they received a threat assessment and were given a police escort. If such a threat has been removed, which I understand has happened for a considerable number of judges, that would mean that they would no longer need police protection. Therefore, that would mean that in addition to their pay, they would receive the perk of a driver and vehicle. I have no difficulty if that aspect of the job is outlined upfront. However, there appears to have been some sort of sleight of hand whereby one day the Police Service is paying for the transport because of the threat, but when that threat is removed, the Court Service pays for it because the police can no longer afford to. How did that state of affairs arise? Does every judge or magistrate in England and Wales have a driver?

841. Mr Lavery: No. Those costs are modelled on comparable jurisdictions. We have looked at the situation in England, Wales, Scotland and the South of Ireland, and we have developed proposals that we are discussing with judges. If judges no longer require police protection, we expect them to make their way to court under their own steam, as is the case in other jurisdictions.

842. However, as you will appreciate, a judge may have to be assigned on a peripatetic basis in some cases, which means that instead of being assigned to Laganside Courts in Belfast, for example, from Monday to Friday, some judges are a floating resource that can be deployed all over the place. Indeed, on appointment, all judges at County Court and Magistrate’s Court level operate on that basis for years.

843. Just as in any other walk of life, although someone cannot claim motor mileage or travel and subsistence for journeys between their home and their base, they are entitled to claim mileage for business travel. Part of that figure is a reflection on a calculation of how much we think judges would be entitled to claim for motor mileage at Civil Service rates. If, for example, a peripatetic judge who is based in Belfast is sent to Antrim courthouse, he would be able to claim mileage for the distance between Belfast and Antrim. Otherwise, he would bear that at his own personal expense. That is considered to be business travel.

844. You referred to a “perk", although I would not describe it as such. We have also factored in that it may be reasonable, on hardship grounds, to have a car-pool arrangement; for example, when a coroner has to go to Enniskillen for three days to carry out an inquest, he could be driven there and could work on his papers in the car on the way there and on the way back.

845. Mr Paisley Jnr: Would access to that car-pool arrangement be standard for all judges? Would it be cheaper to have that arrangement?

846. Mr Lavery: It would be controlled. The proposals on which we are consulting require the Lord Chief Justice, as head of the judiciary, to effectively act as gatekeeper. Our current suggestion is that a judge who routinely travels a round trip of more than, for example, 130 miles on two or more consecutive days may be able to apply for a pool car and a driver. That is, ultimately, at the Lord Chief Justice’s control. However, you can see that it is a way to address wear-and-tear issues. I am not sure that I would describe it as a perk. It is not unlike other aspects of public service where similar facilities are available.

847. Mr McFarland: Would a peripatetic judge who travels back and forth regularly from home in north Down to work in Belfast, but who is considered to be able to work anywhere, get any mileage?

848. Mr Lavery: No. That is a matter for Revenue and Customs. Its advice is that that travel is regarded as normal commuting, for which people are not entitled to business expenses.

849. Mr McFarland: Can you bring me up to date with the situation as regards the reorganisation of the Court Service? My understanding is that it is due to become an agency. The Committee discussed previously the possibility of the service becoming some form of board that is run by the Chief Constable. Can you indicate the sort of costs that are involved in that? The other area that we are curious about is the cost to the DPP and where it might fit into the system as regards how it will be looked after.

850. Mr Lavery: I am not an expert on the latter point. I believe that the Committee will take evidence from the Public Prosecution Service. Without wanting to dodge the question, the matter is probably best raised at that meeting.

851. When the Committee was kind enough to invite us to give evidence in September 2007, we explained that on devolution, the Northern Ireland Court Service would cease to be a separate public service in its own right and that it would initially be an agency of the new justice Department, like the Prison Service, the Probation Service and other associated parts of the justice system. However, during that session, the Committee took evidence from the Lord Chief Justice — and, I must say, I hope that it will be the Lord Chief Justice and not the Chief Constable who heads the Court Service. I believe that that was a slight slip of the tongue.

852. Mr McFarland: It was; I am sorry.

853. Mr Lavery: That is unless you have something planned for me that I have not anticipated.

854. Mr McCartney: Back to the old days, Alan.

855. Mr Lavery: When the Lord Chief Justice gave evidence to the Committee, he said that there would be merit in looking at how the courts in the South of Ireland are run, and at what is planned for Scotland, where the Scottish Court Service will be put more at arm’s length from the Scottish Government’s justice directorate. As is the case with the Courts Service in the South of Ireland, the Scottish Court Service will be a non-ministerial Department — a civil service Department that will be run as a board, rather than as an agency of the Scottish Justice Department. That board would be chaired by the chief justice in Scotland and would comprise public representatives and executive members.

856. It is interesting that the issue of where the courts and the judiciary fit into the justice system in Northern Ireland is being examined alongside a similar process in Scotland. The Scottish Court Service began as an agency of what became the Scottish Justice Department, but it was decided that that was not the best arrangement, and they looked consciously at the system in the Irish Republic, where the Courts Service is run by a board that is chaired by the Chief Justice of Ireland and that comprises judicial, legal and lay and business representatives. It is thought that the benefit of that arrangement is that it puts the courts and the judiciary at arm’s length from the Irish Department of Justice, Equality and Law Reform and that it is more compatible with the principle of judicial independence. It is also felt that that is a better space in which to place that aspect of the delivery of a public service.

857. The Committee’s reports have indicated that it intends to return to that issue at some point. On day one of devolution, however, we in the Court Service will have to be an agency, because primary legislation will be required to reposition us in the way that I am talking about.

858. Mr McFarland: Are there more costs attached to the Court Service becoming an agency under devolution than there would be if it were moved over in its current state?

859. Mr Lavery: Not that I have identified. The costs that I referred to, such as those attached to the assimilation of our staff into Civil Service grades, would be the same either way. In a previous evidence session, I suggested to the Committee that it would be of real benefit to our staff to become employees of the Northern Ireland Civil Service, because they are a small and isolated mini-service at present. Joining the wider Civil Service would have many benefits for them, such as broader career opportunities.

860. Mr Attwood: I apologise to the Committee and to the witnesses; I have had business to attend to on the Floor of the Assembly, and I have been in and out of the Committee meeting. As you know, Mr Lavery, the reason for these evidence sessions is to create certainty about the financial issues on the subject. Therefore, I have a couple of questions to ask in that regard, and then I will ask a broader one.

861. First, I wish to create certainty about what you consider to be the inescapable resource pressures. In the paper that you submitted to the Committee, you highlighted four or five matters, and you emphasised two as being inescapable pressures. Although you say that all the matters that you referred to were inescapable pressures, you repeated that assertion for two particular issues. Yet, in the evidence that you gave today, you said that the inescapable pressures were staff costs and legal aid. In order for us to have certainty, given that this process has a wide audience, including the representatives of at least two or three Governments, and in order to inform negotiations that are going on elsewhere and to inform our report, can you tell us what you believe will be the inescapable pressures over the next two years? Are they legal aid and staff costs only, or are there more from the other menu of issues that you identified in your submission?

862. Mr Lavery: I will deal with that first. To avoid any possible misunderstanding, the two inescapable devolution-specific costs are legal aid, which will cost £60 million, and staff devolution costs, which we have projected will cost £400,000. All the other matters will have to be attended to whether devolution happens or not — they are not, in that sense, devolution-dependent. For example, I identified £2 million that I project to be the cost of dealing with some of those inquests. If devolution were not to happen, I would still have to find £2 million to pay for those inquests, because they are not devolution-specific.

863. Mr Attwood is absolutely right to invite me to summarise the two inescapable financial pressures of devolution, which are legal-aid costs at £60 million and staff-assimilation costs on devolution at £400,000. The judicial costs, which is in the grey area closest to devolution, become an issue on devolution simply because, as I tried to explain, it is inappropriate for judicial salaries to be paid out of a departmental budget. Therefore, at the very least, the money that I will use from my budget to pay judicial salaries this year needs to be repositioned within the Consolidated Fund. I would much prefer it if new money were put in — a proposal that Mr Paisley encouraged me to agree with — because the payment of judicial salaries out of the Court Service budget is a disadvantage to me. The two inescapable financial pressures of devolution are legal-aid costs and staff-assimilation costs.

864. Mr Attwood: Can you confirm that you are not making a case to the Committee, or to others, for some flexibility around the £10 million of pressures that you identified for 2009-2011, the final two years of the current CSR period, to address those pressures?

865. Mr Lavery: We certainly identified those pressures, and every department in the justice system will do exactly the same. We must draw the line somewhere; it cannot turn into a Dutch auction at which everybody produces everything that they want to do.

866. I hope that I have not misled the Committee. What I have tried to do is to encourage you to carry out a bit of due diligence before you take this on, so that you know that there are some inescapable costs — legal-aid costs and staff costs — and, so that you aware that there is a build-up of demand in the system. Whether devolution happens or not, the courthouse in Bangor needs replacing, because it is not fit for purpose. Therefore, the process is more akin to due diligence. I have reflected those pressures in some of the pre-devolution discussions that have taken place. I draw a line under legal-aid costs and staffing costs as the points at which those pressures become inescapable.

867. However, if policing and justice powers are devolved, I will ask the justice Department for £2 million for those inquests and £100 million for court buildings, just as I would in the normal bidding environment in government.

868. Mr Attwood: One of the useful benefits of this evidence session and the previous one is that people will be able to move forward with their eyes wide open to what some of the cost consequences of the devolution of policing and justice powers will be, whether they be for the Court Service, the Prison Service or elsewhere in the system.

869. I have a passing familiarity with the legacy inquests, and I am a wee bit surprised at the fact that the pressure point for those may be as little as £2 million. Given the complexity of the issues raised by those inquiries, I would have thought that the sum might have been higher. You can hold that answer for a second.

870. It seems that, unless the legal profession demonstrates some flexibility with ongoing very-high-cost cases, we are where we are in respect of legal-aid costs. This Committee cannot run from the consequences of that. We might not like where we are and how we got here, and we may like the new regime that the Court Service and the Legal Services Commission will introduce from April. However, it seems that we cannot escape the consequences of the matters that have been outlined today.

871. Nonetheless, it would be helpful if you could indicate what you think the average cost of criminal legal aid in Northern Ireland will be once the new regime starts in April. Will it be somewhat higher than £6,300, which is the average cost of legal aid in England and Wales, or will be closer to £13,887, which is the average cost in Northern Ireland at present? Answer those two questions, and I will return to my final point in a minute.

872. The Chairperson: Do you have another question?

873. Mr Attwood: I will wait until I hear David’s answer.

874. Mr Lavery: On the first point about inquests, I also acknowledge that that is a projection, which may prove to be right or wrong. Of the £2 million attributed to the inquests, I am confident about £400,000 of that, which I know to be the cost of the additional coroner and coroner’s staff that I have put in place to build capacity in the Coroners Service. I know that there will be an influx of new cases, and that there are at least 20 legacy cases. I know that those will take up a great deal of the senior coroner’s time, so I have backfilled the system by asking the Judicial Appointments Commission to appoint an additional coroner.

875. The balance of £1·6 million is a projection of how much I think that I will need in the remainder of the current CSR period to pay towards those cases. However, I am not overly confident, given the pace at which they are being dealt with, that those cases will not spill into the following CSR period. Those cases may have a longer tail, and, if so, further funding will be required from 2011-12 onwards.

876. I can offer a fair degree of certainty about the £2 million for 2009-2010 and 2010-11, but I am not sure whether the job will be done by then, or whether a proportion of those cases will extend into future years, for which funding will be required. I can see in front of me only the first two years of the cases.

877. On very-high-cost criminal cases, it is transparent from the figures we have provided to the Committee that the problem is not just the £60 million for 2009-2010 and 2010-11 but the £45 million to £50 million in the next three years. As Mr Daniell explained, and he used the analogy of the oil tanker, until those legacy cases are out of the system, there is an accumulated liability in the legal-aid system. Even if all the reforms that I have mentioned are introduced from this April, they will not have an impact until much later. I believe that it will be the third year of the next CSR cycle before costs come down.

878. Mr Attwood: Five years’ time?

879. Mr Lavery: At the current rate of reform, and given the cumulative liabilities, it could be the fifth or sixth year.

880. You asked me how much the cost could be decreased. I do not think that it can be decreased to £65 million, which is the legal-aid system’s baseline as it currently operates. There is an irreducible value or around £80 million at present.

881. To reduce that to £65 million would require some radical surgery. One would either have to stop certain types of legal aid or go much further than we suggest is currently possible, and redesign the system. It may simply have to be decided that nobody gets senior counsel in certain categories of work, or that, in children’s cases, not every member of the family needs a solicitor and a barrister, and perhaps a senior barrister. The system would have to be radically redesigned.

882. That is why I also have an appetite for Mr Daniell’s view, whose contribution I watched on a monitor in the Great Hall, having left the Senate Chamber. He spoke of the need for a fundamental re-examination of how legal aid should be supplied in this country. Whether almost £7 million should be spent on a non-departmental public body (NDPB) to run the legal-aid system is a legitimate question, as is whether legal aid should be delivered in the way in which it is at present. That is why, at the end of the paper that the Court Service submitted jointly with the commission, it is stated that we want to develop some strategic options for the incoming Minister to consider.

883. Mr Attwood: As you see it at the moment, in five or six years’ time, on current costings, the budget line would be at least £80 million. Is that correct?

884. Mr Lavery: Yes, I believe so.

885. Mr Attwood: Thank you very much.

886. The Chairperson: It is not just the inescapable pressures resulting from devolution of policing and justice powers in which we are interested but the inescapable pressures for which we do not yet have money to meet, regardless of whether devolution happens.

887. Mr McCartney: Thank you for your presentation. I shall ask questions similar to those that I asked the Legal Services Commission representatives about the process of resolving budgetary pressures. What process do you currently use to deal with those pressures when they have been identified? What are the strengths and weaknesses of that process, and what do you envisage as being the ideal process for the future? Furthermore, what impact will the transfer of policing and justice powers to the Assembly have on that process?

888. Mr Lavery: Those are important questions. I want the future process to be somewhat different from the present one.

889. The 2009-2010 financial year begins in April, and, although I have already been allocated £65 million for legal aid for that year, I know — we all know now — that that will not be sufficient. Therefore, Mr Daniell, the chairperson of the Legal Services Commission, and I will begin the year in the knowledge that there is not enough money in the system to discharge all liabilities. We must, therefore, begin a dialogue with the Treasury in London, with which we currently deal directly for funding.

890. In conjunction with the Legal Services Commission, we will begin the financial year by telling the Treasury that there are insufficient funds in the legal-aid baseline to discharge the accumulated liabilities and that we will require an injection of additional funding. Unfortunately, such discussions tend to drag on throughout the year, in the course of which they are elevated to ministerial level. My Minister is the Lord Chancellor and Secretary of State for Justice, Jack Straw, who, in the past year, wrote to the Chief Secretary to the Treasury to seek additional funding for legal aid. Last year, correspondence began in the middle of the year, and the matter was only resolved in the fourth quarter.

891. I do not mind whether Hansard reports that I believe that beginning the year knowing that there is insufficient funding, and having to wait until the fourth quarter to resolve the problem, is no way in which to run a business. Furthermore, the system generated some of the problems that we encountered at the turn of the year, when the Bar, in effect, went on strike — it knew that there was not enough money in the system to pay the bills. The arrangement created a great deal of disruption for the courts as well.

892. I hope that, under devolution, we might have a much more transparent process, whereby setting the legal-aid budget would be based on more appropriate dialogue with the Department of Finance and Personnel, the Department of justice and the Legal Services Commission. Using that process, we could agree a realistic budget for the next three years, ensuring cost-control budgetary predictability and value for money, thus allowing the Legal Services Commission to plan for the year ahead, rather than have it know that by the third of fourth quarter it will run out of cash. Consequently, all the energy that must be devoted each year to to-ing and fro-ing with the Treasury in order to get more money would not be wasted under the new arrangements. We would be better served devoting our energy to reducing costs or to redesigning the system.

893. That may be a rather anecdotal approach to answering your question. Nevertheless, as Mr Daniell and I said, the system basically involves a protracted discussion throughout the year in order to get top-up funding. The best outcome would be to have a proper, proportionate and sustainable budget at the beginning of the financial year, based on which everyone could plan their business, instead of constantly having to go back throughout the year with what Mr Hamilton called the begging bowl.

894. Mr McCausland: I apologise for not being here earlier, but I was attending another Committee. You said that, in many cases, people here are represented by a solicitor, a junior barrister and a senior barrister, and that that would not be the case across the water. What is the difference in the size, per head of population, of the legal profession in Northern Ireland compared with that in Great Britain? Do we have a much greater proportion of barristers?

895. Mr Lavery: I shall hand that hospital pass to my colleague. We have the figures, and, given that I do not wish to mislead the Committee, whoever finds them first can answer.

896. The Chairperson: I ask everyone to check his or her mobile phone, as I can clearly hear that one is switched on.

897. Mr Paul Andrews (Northern Ireland Court Service): England and Wales and Northern Ireland are two very different marketplaces. Anything that I say will already be in the public domain, because it formed part of my evidence to Sir George Bain’s review. My analysis is, therefore, a matter of public record.

898. In Northern Ireland, 30% of solicitors work in firms with five or more partners. In 1986, there were 276 qualified barristers in Northern Ireland, but, by 2006, that number had risen to 560. The Law Society of Northern Ireland said that a relatively high percentage of its members were undertaking low-margin publicly funded legal services, together with a range of pro bono work. It was suggesting that there was a high level of dependence on legal aid, and that there was wide coverage of that in towns and villages throughout the jurisdiction where legal aid was available to individuals.

899. The preponderance of significant commercial multi-partner firms in London means that there is a significant number of solicitors there. Therefore, the same read-across to a commercial base in Northern Ireland does not exist. Although certain information is available, that is distorted by the commercial ventures of solicitors’ firms in England and Wales, which perhaps do not do legal-aid work as we know it. A good majority of firms in this jurisdiction does at least some legal-aid work.

900. Mr Lavery: We have hesitated to introduce some of the changes that have been introduced in England, such as contracting for legal services. In England, the Legal Services Commission awards contracts to firms of solicitors to do a certain amount of legal-aid work in a particular geographical area.

901. The structure of the legal profession in Northern Ireland is that there tend to be smaller firms in country towns that are dependent on a mix of work. Those firms provide a community legal service, and even people in rural areas can access a choice of legal representatives, which we think is important. Now is not the time to do something too radical on that, because small firms depend on conveyancing, probate and a bit of legal-aid work. There is currently no conveyancing work, and some of those firms are much more dependent on the throughput of their legal-aid cheques to sustain their viability.

902. In answer to Mr McCausland’s original question, I am not sure whether there are too many lawyers here, but I undertake to write to the Committee if we can extract any empirical information on that. The structure of the Bar is different; it operates not from chambers but from a library system, and it has comparatively lower overheads. I have a hunch that the growth in the Bar in Northern Ireland has been so great over the past 20 years that we are top of the league for lawyers per capita. As I said, if I can provide any empirical evidence to the Committee, I undertake to do so.

903. The Chairperson: As with the Northern Ireland Legal Services Commission, there are a number of areas on which we will want to come back to you, and we will want to raise a number of questions with you in writing in the not-too-distant future.

904. For clarification, are you currently able to reclaim VAT?

905. Mr Lavery: At present, the Legal Services Commission pays legal-aid bills. VAT is paid on top of the fee as a dispersement and is not reclaimed. One would want to address that, and devolution might provide the opportunity to do so. VAT is a significant additional cost. If one looks at a typical block bill for a case, it comprises the fees for a solicitor plus VAT, the fees for a barrister plus VAT, the fees for a QC plus VAT and, possibly, the fees for an expert witness or two.

906. Many people get paid in a case, and VAT is a significant additional dispersement that we cannot at present recoup.

907. The Chairperson: Finally, is anything hurtling down the track about which you have not told the Committee? For instance, if devolution of policing and justice powers takes place in the not-too-distant future, is there anything that might lead to your coming along, cap in hand, to the Committee, to the Department of Finance and Personnel or to the justice Minister to say that, although you appeared before the Committee, there is a requirement for £10 million or £20 million that was not mentioned but the Court Service should have foreseen?

908. Mr Lavery: That is a bit like encouraging the defendant to have other offences taken into consideration before sentencing.

909. In its letter of 9 February, the Court Service tried to avoid surprises emerging under devolution. That is why we had the debate about what is or is not an inescapable pressure. Certain things are driven by devolution about which the Committee must know. There are also things that the service must do, and about which the Committee must be aware, if, as we hope, a devolved environment is achieved. That is what I call the due-diligence element of the exercise.

910. Nothing has occurred to us that has not been disclosed to the Committee. It is clearly not in anyone’s interest not to disclose something.

911. The Chairperson: David, I thank you and your colleagues for coming along, for being frank and open with the Committee, and for your presentation and the papers that you have supplied to Committee members. The Committee appreciates that, and we will probably come back to you.

912. Mr Lavery: Thank you very much for your time.

3 March 2008

Members present for all or part of the proceedings:

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


Mr Jim Daniell
Mr Gerry Crossan

Northern Ireland Legal Services Commission

913. The Chairperson (Mr Spratt): I welcome Mr Gerry Crossan, the chief executive of the Northern Ireland Legal Services Commission, and Mr Jim Daniell, its chairman. I ask members to declare any interests that they have. I declare an interest as a member of the Northern Ireland Policing Board.

914. I invite Mr Crossan and Mr Daniell to make a short presentation based on the papers that they have submitted to the Committee, after which members will have an opportunity to ask questions.

915. Mr Jim Daniell (Northern Ireland Legal Services Commission): I shall keep my remarks brief so that there will be plenty of time for questions. The Northern Ireland Legal Services Commission welcomes the opportunity to discuss the issues at hand. We recognise that we are responsible for a significant amount of expenditure, which is increasing. That is an important issue in the context of devolution.

916. I wish to stress a few points from the commission’s perspective. The expenditure that we have described in the papers is, to a large extent, demand-led, in the sense that we work to a legislative framework that, for civil legal aid, requires us to grant certificates for civil legal aid in circumstances that are prescribed by financial eligibility and merit. For criminal legal aid, it is the responsibility of judges to determine when someone should be in receipt of legal aid. In that sense, therefore, expenditure is very much demand-led, from the commission’s perspective.

917. The quantum paid in particular cases is determined in a range of ways. For example, the very-high-cost case category on the criminal side, which accounts for a significant amount of our expenditure and is not particularly predictable, is a matter for the taxing master, who is a member of the judiciary. In other areas of criminal work, we work to scales that the Court Service sets for us. Similarly, on the civil side, although we set some fees after discussion with representatives of the legal profession, others are set on a statutory scale in the County Court by the judiciary. At High Court level, again the taxing master plays a key role. Therefore, there is a limit to the amount of direct leverage that we have on the amount of expenditure.

918. I must also mention the level of expenditure over time, which is particularly significant in this conversation. Very often, a certificate for legal aid might be granted and the bill presented for payment some years ahead. Therefore, in some cases, for certificates that we are granting now, payment will be made in three or four years’ time. Obviously, that makes prediction of financial requirements quite complex. It also means that any actions that are intended to have an impact on the amount of money spent on legal aid are likely to have that impact some way ahead. I would go so far as to say that, for the current comprehensive spending review period (CSR), the figures that the Committee has been given are for expenditure that has, more or less, already been committed. Therefore, there is a limit as to what can be done in the current CSR period to reduce the funding, the figures for which have been presented to the Committee. Even going into the next CSR period, it is like turning a big ship around — it would take time to make changes that have an effect on expenditure.

919. I know that the Committee has been presented with a supplementary paper to provide a bit more background — it is a joint memorandum by the commission and the Northern Ireland Court Service — in addition to the letter of 9 February 2009 that we sent. However, I advise a slight note of caution about making comparisons with other jurisdictions. Obviously, in legal-aid cases, there is an issue concerning whether one is comparing like with like. Indeed, one of the reasons why we did not include figures for the Republic of Ireland is that the system there is so different. Any attempt to compare overall expenditure per capita with that jurisdiction would not work and would be fairly meaningless.

920. That is all that I want to say by way of introduction. I welcome questions, and we will deal with them if we can.

921. The Chairperson: Thank you for your presentation, and for the papers that you supplied.

922. I will go straight to the point that you made about cost in Northern Ireland in comparison with other jurisdictions. In paragraph 15 of the joint memorandum, there is a dramatic difference in the figures for the cost per capita of criminal legal aid. For instance, the Northern Ireland Crown Court gives a figure of £13,887, compared with £6,300 for England and Wales, and £2,824 for Scotland. The average cost of civil legal aid in England and Wales is slightly higher than that for Northern Ireland.

923. We want some explanation of the reasons why the cost of criminal legal aid in Northern Ireland is dramatically higher than it is in any other part of the kingdom.

924. Mr Daniell: First, we are talking about average costs. The table at paragraph 14 compares net expenditure per head of population, but I will answer the question about average costs as best I can.

925. I ask members to note that this illustrates the difficulty of comparing cases. The figure of almost £14,000 for Northern Ireland is presented as an average cost for each case, as is the figure for England and Wales. We keep records that are based on average cost, not for each case, but for each bill issued. In some of the more serious criminal cases, for example, one might find that three bills have been issued: one to a solicitor; one to a junior barrister; and one to a senior barrister. The final figure is arrived at by effectively multiplying the average cost of each bill by three. Those calculations were made rather quickly, and the figure that I quoted may have slightly overstated the situation. I do not wish to overdo that, but not every case in the Crown Court involves a solicitor, a junior barrister and a senior barrister. That figure should be slightly lower, therefore. I hope that we can find time to explore that issue in more detail.

926. There is an important point to make about the Crown Court in Northern Ireland. A different court structure operates in England and Wales to that in Northern Ireland. Full-time district judges sit in Northern Ireland’s Magistrate’s Court, which takes more serious cases than its equivalents in England and Wales. The result of that is that some of the less expensive cases, which would go through the Crown Court in England and Wales, do not go through the Crown Court in Northern Ireland. There is no question that the fees for criminal cases in the Crown Court in Northern Ireland are more expensive, but we must be careful not to exaggerate them. The figures that we have presented, if taken at face value, may slightly overplay the difference.

927. The Chairperson: When we compare England and Wales with Northern Ireland, we are not comparing like with like.

928. Mr Daniell: We are not comparing like with like; that is correct.

929. The Chairperson: In land mass and everything else, we are comparing ourselves to a much larger area. Therefore, the comparison with England and Wales is not reasonable. It begs the question: what can be done to reduce those costs? If devolution of policing and justice powers takes place, Northern Ireland plc — for want of a better expression — must pay for it.

930. The costs are higher. Has that been the tradition over the years? Has that system been allowed to creep in here, yet not in other parts of the United Kingdom? We do not know the legal-aid costs for the South, so we cannot make a comparison with that jurisdiction. We need an explanation, because the issue that costs appear to be going up and up, even against the backdrop of a more peaceful situation in Northern Ireland, is one that is raised regularly. We need serious answers. I am sorry to put you under pressure, but do you believe that a review of the cost of the legal-aid system is required? Northern Ireland seems to be totally out of kilter with the legal system in the rest of the United Kingdom.

931. Mr Daniell: I will make a number of comments in answer to your questions. The annual expenditure on criminal legal aid in the Republic of Ireland is approximately €50 million, which, per capita, is a very much lower level of expenditure than that in Northern Ireland.

932. I will not simply leave it at this simple answer, but, from the commission’s point of view, the simple answer is that we make payments on the basis of fees on the criminal side that the Lord Chancellor and the Court Service set for us. I know that representatives from the Court Service are appearing before the Committee after us.

933. Between 18 months and two years ago, there was an inspection of the Public Prosecution Service (PPS), and reference was made to the fact that fees that the PPS paid — particularly counsel fees in certain types of serious criminal cases — are approximately twice as high here as they are in England and Wales. For obvious reasons, there is a relationship between fees paid to counsel by the PPS and those in legally aided cases.

934. I can only speculate as to why the issue has not been addressed more rigorously over the years. It is possible that, during the Troubles, it was thought prudent not to rock the boat with major reform that would affect the legal profession. There may have been some thinking along those lines.

935. Another issue, which is particular to Northern Ireland, relates to the costs associated with the nature of the legal profession. When it comes to accessing justice, there has always been a feeling in Northern Ireland that individuals should be able to choose the solicitor whom they wish to choose rather than have it determined for them by the sort of contractual arrangements that exist in England and Wales. It may be that the feeling has been that we want to sustain a legal profession throughout Northern Ireland close to where people live, for instance. That carries some inevitable costs.

936. I will talk about reforms and control mechanisms in a minute, but we must bear in mind that incidence of very-high-cost cases has mushroomed in Northern Ireland in recent years. That must be looked at carefully. Those cases are complex criminal cases in which the commission has a role. If it is expected that the trial for those cases will last more than 25 days, they are certified as being very-high-cost cases. In those circumstances, the bills are referred to the taxing master for determination.

937. It is fair to say that the present regime of very-high-cost cases that came in with the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 was expected to produce around 20 or 30 cases a year. It has produced substantially more than that. Since 2005, there have been around 250 to 280.

938. The Chairperson: Why is that the case?

939. Mr Daniell: It is an interesting subject. There is an element of speculation in this, but Northern Ireland benefits in some ways from having a falling crime rate, and, in many areas, it has lower levels of crime than England and Wales have. I stress that I am speculating, but I do not think that that applies in cases of extremely complex fraud, money-laundering and organised crime. Those are the types of cases that tend to become the very-high-cost cases, and they are extremely expensive to run. More research in that area would probably demonstrate that that is the case.

940. The Court Service representatives will speak for themselves, because this is its area on which I am trespassing. A great deal of work is ongoing into how costs can be brought under control. The Court Service is consulting on, and we are working towards, the future introduction of a system in which contractual arrangements will be entered into with practitioners for very-high-cost cases. The commission will want to ensure that it receives case plans, that it can cost plans in advance and that payments are made on the basis of those plans. We feel that that will help bring costs under control.

941. There are also issues concerning fee levels, and the Court Service will talk about those. There may be scope for reductions in the determination of Crown Court fees. Fixed fees may be considered for non-Crown Court work.

942. Another area that may be considered in future is the requirements for qualification for legal aid in criminal cases. It is very noticeable that, in the Republic of Ireland, there is a strict requirement that legal aid will normally be granted in circumstances in which someone’s liberty is an issue.

943. In Northern Ireland, the judiciary can use a number of criteria to determine whether criminal legal aid should be granted. On the merits side, it is considered whether that is in the interests of justice. Although defendants are required to present a statement of means to the judge, I understand that the way in which that is administered allows far more people through the gate to receive legal aid than is the case on the civil side. It may be a question of tightening up the financial-eligibility aspect of criminal legal aid.

944. There may be questions around representation; for example, the extent to which junior and senior counsel represent defendants in a Crown Court and whether that is always necessary. All those issues are currently being considered, and they would help to bring overall costs under control.

945. The Chairperson: Your comments on the costs include much speculation. Does the commission do any solid research on those matters, or is that a matter for the Court Service?

946. Mr Daniell: We have worked with the Court Service to do a considerable amount of research on our budgetary needs, and that is the basis on which the figures that we presented to the Committee have been worked out. For example, we have an idea of how many very-high-cost cases are in the system, and we can come to a view on when bills might be likely to be presented on those. The same goes for all categories of case.

947. By working on past patterns and by considering very-high-cost cases, we can come to an educated view. However, it is no more than an educated view. At last Tuesday’s Committee meeting, the Prison Service said that expected to have x number of prison officers in post in three years’ time and that it needed x amount of capital spent on prisons, but our position cannot be as definitive as that.

948. Looking ahead, we must bear in mind that the very-high-cost-case area is extremely difficult to predict, but we also must consider other factors that may affect the take-up of legal aid. For example, the recession will inevitably increase the number of people eligible to receive legal aid. The recession may cause an increase in acquisitive crime, an increase in matrimonial problems and housing difficulties, all of which could lead to an increased demand for legal aid. I hope that the Committee will appreciate that it is difficult to come to a clear view on what that will mean for the numbers.

949. The Chairperson: Ian Paisley Jnr has joined the meeting. Will you declare any interests for the purposes of the witnesses?

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

951. Mr Hamilton: The Chairperson’s questions initiated a discussion on how very-high-cost cases can be resolved in the longer term. However, I want to touch on the extremely stark financial pressures that you face. You said that the commission is a demand-led organisation, but that demand seems very high. For the remaining two years of the CSR, you face an estimated shortfall of £60 million, which the Court Service, your sponsor department, described as being “inescapable". You were open in saying that funding is insufficient to address the values of bills that will be presented. Such openness is useful but paints a worrying picture. This year, you received an additional £22 million from the spring Supplementary Estimates. How regularly do you receive that kind of “dig-out" just before the financial year’s end?

952. Mr Daniell: I refer you to paragraph 6 of the supplementary paper. The table depicts a graph with three lines. The blue line illustrates allocations in the various CSR periods since 2000-01; the yellow line shows the amounts that we needed to meet the demands on us; and the red line shows the supplementary allocations that we have had to request.

953. It is worth stressing that almost year in, year out, the commission and the Court Service expend an enormous amount of time and effort trying to find ways in which to boost our in-year funding through negotiations with the Treasury and securing funds from elsewhere. That usually happens in the autumn when it appears that we will not have sufficient funding for the remainder of the year. I have been at the commission for only just over a year, but we were in the middle of that process when I joined, and I am told that it as regular an occurrence as day following night.

954. Although it is understandable that allocations are set as stringently as possible, in order to seek value for money, the amount of time and effort that is spent by the management of both organisations in arguing for more money could be better spent on considering how to manage the budget in future. We cannot avoid spending the money — there is no question of that — yet we still spend weeks and months trying to find ways in which to secure it.

955. Mr Hamilton: You have only been there for a year, but you are already battle-scarred by going back and forward to address financial pressures.

956. The table in paragraph 6 is alarming: it shows that you required an additional 50% to meet costs in 2004-05, and even in the current year you require an additional one third. The Assembly is used to Departments requiring a small additional percentage from the in-year monitoring processes, but that is a substantial chunk in addition to your existing allocation.

957. I presume from much of what you said in response to the Chairperson’s questions that you were talking about long-term changes being required, and you compared the situation to an oil tanker that takes a long time to turn around. Therefore, we could expect this scenario to continue indefinitely.

958. Mr Daniell: “Indefinitely" is a big word, but I agree with the Court Service’s view that it is extremely unlikely that, for the remainder of the current CSR period, we will be able to make significant inroads into the projections illustrated in the table. The only point that I want to stress, and I made the same point in the letter of 9 February 2009 that I sent to the Committee, is that the costs of ordinary civil and criminal business are much more predictable and would fit within our normal allocation. However, it is difficult to predict what will happen with the very-high-cost criminal cases that, to a large extent, take us far above our allocation. Perhaps £60 million over the next two years will be an overestimate, but I cannot be certain. However, the taxing master could make determinations that are appealed and, for some reason, increased. If that happens, it is not inconceivable that £60 million could be an underestimate. We have been quite conservative — £60 million is a realistic figure. I would hope that that figure would not increase.

959. By implication, you may be suggesting that the measures that the commission takes will deal with the problem in the next CSR period, which will take place between 2011-12 and 2013-14. I am very cautious about that. We have estimated that, if the commission were to continue being allocated £65 million in cash per annum over the three years of the next CSR period, that would leave a shortfall of around £50 million. The commission does not consider that the changes that I have been describing, which are being examined at present — a similar exercise is also being carried out on the civil side, which I have not mentioned yet — would be sufficient to eliminate, or even to eat into, that £50 million.

960. I hate to say it, but I am in the business of speculation. I do not think that the type of changes that we have been discussing would eliminate more than £10 million to £15 million of that shortfall. However, that is to suppose that the present patterns of demand remain the same.

961. Mr Hamilton: It is probably even more troubling that that scenario is likely to continue at that scale into the next CSR period. You are telling us today that, other than some of the measures that you have been speaking about that will take a long time to realise any benefit, the only approach available to the commission to meet that shortfall is the begging-bowl approach — asking for additional cash to fill that gap. That is what the commission has always done, and that is what it is likely to do for the remainder of this CSR period, and probably into the next period as well.

962. Mr Daniell: That is a fair description; that is what the commission has done. If, looking beyond the current CSR period into the next one and beyond that, I were told now that there was only £65 million a year available, and that there was no conceivable way in which that could be increased, the commission would consider more fundamental changes. However, I am not sure that even those changes could take effect in the first year of the next CSR period.

963. Mr Hamilton: Thank you; that is very useful.

964. Mrs Hanna: You described the commission as being a big ship that would take time to turn around. With that, you implied that you expect changes — we are, after all, talking about finances. There is a public expectation that the ending of the Troubles would lead to a reduction in legal-aid costs. I am not talking about the historical cases, because I appreciate that we are speaking mostly about the criminal side: fraud; extortion; and so on.

965. I know that a fairly public discussion took place a few months ago about reducing the legal-aid bill. Were those people just talking about the civil side of the legal service? There was discussion among barristers and the public, and on the radio, and the public had an expectation that that would make sense. You said that it would take time to turn the ship around, but it is the Legal Services Commission and the Court Service that set the criteria and guidelines. However, the taxing master appears to have influence. When policing and justice powers are devolved, we will also have input. In your opening remarks, I thought that you were talking about turning the ship around, but, in response to questions, you seem to be saying that that will not happen in the near future.

966. Mr Daniell: Rather than turning the ship around, it will be a case of veering from the course, through making the sorts of changes that I have mentioned. Obviously, after devolution, the Assembly will have the opportunity to legislate, and that is entirely a matter for the Assembly. However, a great deal of the expenditure after devolution has already been committed through the granting of legal-aid certificates. The commission works within a legislative framework, which, up until now, the Lord Chancellor has set. The commission has to grant legal aid in the circumstances that are provided for by legislation. The way in which bills are paid is also provided for by legislation. There will be an opportunity for that to be examined.

967. If there were a clear desire to reduce substantially the amount of money that is spent on legal aid, legislation would be needed, as would a major change in approach to how legal aid is distributed. The only ways in which to cut expenditure are either to reduce the number of cases in which legal aid is granted or to reduce the fees that are paid to practitioners. There may be other ways of looking at the issue, such as changes to the legal system. For example, could the legal system be operated in a manner that requires less expenditure? On the civil side, the commission is keen to look at alternative means of dispute resolution and collaborative family law, and at whether there are ways to prevent cases from getting to court, and, therefore, being less costly and probably better for the people concerned. Such measures could be considered.

968. It is worth making the point is that we are engaging in a reform programme on the civil side, and that programme contains a number of components, one of which is the introduction of a funding code, which will enable us to take a much more rigorous approach to the merits test that decides when is it is justified to provide legal aid. For example, is it sensible to give legal aid in a case that there is not much hope of winning? We will be able to take decisions based on the funding code.

969. The programme will introduce measures such as a simplified approach to financial eligibility and a statutory charge to enhance our ability, when people win cases and are given property or a share of property, to place a charge on that to reduce our expenditure. Therefore, things can be done now, but a sea change would require a new approach.

970. Mrs Hanna: That is a bit like a patient going to A&E and paying a cover charge. The issue really boils down to placing qualifications on whether a case is taken on, and we all accept that people need legal aid to get justice in cases for which they cannot afford representation. However, it is fair to say that there is a certain amount of cynicism among the public about the amount of legal aid that is granted and the level of lawyers’ fees.

971. Mr Daniell: An example on the civil side is an undefended divorce. In such cases, I suggest that there might be limits to the amount of legal aid that it would be sensible to pay. However, in a case of a freeing order for a child, which results in a child’s links with his or her parents being removed, that represents an extremely serious change to that child’s status, as well as a big change for the parents and others involved. In such cases, there is a degree of vulnerability, which suggests that the case should be made a high priority for help. The funding code will enable the establishment of high-priority cases, in which the merits test will work on the presumption that legal aid should be granted, whereas it may not be in lower-priority cases. In fact, the code will enable some types of case to be taken out of the scope of legal aid altogether.

972. You mentioned the quantum of fees. On the criminal side, fees are set by others, as they are in a substantial proportion of cases on the civil side — the level of fees set is not entirely within our control. In some areas, we are in discussion with the Bar and the Law Society of Northern Ireland about fee levels, because we are very conscious of achieving value for money.

973. The Chairperson: How far in advance of cases are legal-aid certificates issued?

974. Mr Daniell: Legal-aid certificates are issued to establish that people can secure legal aid when their cases come to court, and that could mean a couple of months or, in some cases, a couple of years. The other complication is that sometimes there is good reason why the bill is not presented until long after the case has concluded.

975. That might be because in some of the very-high-cost cases, it may take some time for very complex cases to be assessed. For one or two cases, one might be talking about a year or two for that to happen. On the civil side, it might be that the solicitor wants advice on how to present the claim, and that may also take time. I have seen one case where the bill was presented six or seven years after the case.

976. Mr McCartney: I have three or four questions to ask, but I hope that they will run into one another and that they can be answered easily. Once you have identified a pressure on your budget, what process is involved in trying to resolve it? What has been your degree of success — in other words, what are the strengths and weaknesses of the current process? From your perspective, what do you think that the process should be in future? Finally, how do you see the transfer of justice having an impact on the Assembly, and how should it have an impact?

977. Mr Daniell: What seems to happen with the budget and the process of resolving it is that an allocation is determined for us during a particular CSR period, but most people will probably feel that it is not enough. Then, on an in-year basis, by about the sixth or seventh month, it is apparent that, given the rate of spend, we will not have enough to meet the bills for the remainder of the year. We then enter into negotiations with our sponsor department — which is the Court Service — about how to meet the shortfall. My experience is limited, but on the occasion in question, there were extensive negotiations between the Court Service and the Treasury about how to secure the funding through Supplementary Estimates. An element of end-year flexibility was involved, and a small amount of money was also secured from Court Service funds. From the commission’s perspective, the process tends to be rather hand to mouth.

978. As for what it should be, I can present only the ideal, which is that a realistic approach should be taken to what our requirements are likely to be in advance, and a realistic sum is then allocated in the CSR period — or at least in advance of the year in question, rather than leaving it so late in the day. We have the means to say that we know that we will require more than £65 million next year and the year after; therefore, it is far better to resolve that now. It is not a question of our having the ability to reduce that amount. We know that we are going to have to spend it; therefore, it would be much better if the system enabled us to resolve such issues now. If the system then wanted to go on and say that we must ensure that, along with the department concerned — which is the Court Service and the Lord Chancellor, but in future it will be the Department of justice — we had better look for ways to make substantial savings for the next period, that would be an acceptable way forward, as long as people understood what those savings might mean. If the savings are to be substantial, it would mean making significant inroads into the system of legal aid as we know it.

979. I have a few general thoughts about the transfer of justice powers to the Assembly. I think that it will be of enormous benefit to the commission, and I will give a couple of examples of what I mean. The complexity of legislation is one reason that legal aid increases over a long period. New legislative requirements can increase the number of times that someone might have to go to court, in relation to either the Government or for another reason. One positive example of that is the children’s legislation, which was a very good piece of legislation that was introduced in the 1990s; however, it increased substantially the amount of consequent court appearances that people made and, therefore, expenses. If we are part of a devolved Department of justice, which in turn is part of the family of Northern Ireland Departments, it will be a lot easier to conduct legal aid impact assessments in order to understand the consequences of decisions that are made about policy and about legislation for spend on legal aid.

980. I can give one specific example that might help. We are not talking about millions of pounds, but there is the potential for hundreds of thousands of pounds. The Criminal Justice (Northern Ireland) Order 2008 was agreed by the Northern Ireland Office Ministers and passed by the Westminster Parliament, and a substantial sum of money was made available for its administration. That money covered the need for additional probation officers, prison facilities and psychologists, for instance. Nothing additional was provided or — as far as I can see, even thought about — in relation to legal aid.

981. Following the passing of The Criminal Justice (Northern Ireland) Order 2008, the required number of parole commissioners was increased, because there was going to be a lot of hearings before the parole commissioners. Those hearings will require representation by a solicitor and probably a barrister. As things stand, that will cost. It will probably not impinge on the current comprehensive spending review period, but it will impinge on the next.

982. Had we had a devolved environment in which we were much closer to a Department of justice and were part of the Northern Ireland Administration, I would make certain that when changes of that sort are made, proper consideration would be given to the impact on the spend on legal aid. I think that it will help us enormously in that context.

983. There are bigger issues about such things as the number of people in the legal profession and the way in which they are regulated — both of which have an impact on the availability of services to the public, and so forth. I assume that in a devolved environment, all that will be looked at in a coherent fashion in one Department. All those issues will have the capacity to affect the quality of service that we can provide and its costs. Furthermore, it will be possible to examine them holistically, which will be an enormous benefit.

984. Mr Paisley Jnr: Thank you for your evidence. You understand clearly why you are here; we want to devolve policing and justice, and we have to know how much it will cost us. Today, you told us that it will cost a heck of a lot of money. From what I have heard today, I do not know whether we can afford you — you are a high cost. However, I welcome your candour.

985. Your starter-for-10 question: are you hiding anything else of which we should be aware? If you return to give evidence to a justice and policing Committee in a few years, will you be telling us something that you should be telling us today? Is there anything else that we should know?

986. Mr Daniell: Not to my knowledge. As I said earlier, this is not an exact science. We do not know what is over the horizon.

987. Mr Paisley Jnr: I have got that. Having read some of your material, I can understand why, come the revolution, lawyers will go to the wall first. Your evidence provides figures on very-high-cost cases. It is important that I read one sentence into the record, because it relates to a substantial payment:

“While every effort has been made to produce a realistic forecast of the costs of VHCCs based on what we know about cases already in the system and the likely incidence of such cases in the future, the actual funding requirement could vary significantly from the figures given in the table above; this particular cost head will be monitored closely and the projected spend kept under review to ensure that the figures are as robust as possible."

988. You are projecting for £65 million for very-high-cost cases in the current comprehensive spending review, and the figure for the current financial year — 2009-10 — is £26 million. What percentage of that goes on lawyers’ fees?

989. Mr Daniell: Almost all the very-high-cost-case spend will go to lawyers.

990. Mr Paisley Jnr: Are you saying that £26 million will go to lawyers in this financial year?

991. Mr Daniell: Yes, including VAT.

992. Mr Paisley Jnr: Does any of that money go to forensics, or is it all for lawyers’ fees?

993. Mr Gerry Crossan (Northern Ireland Legal Services Commission): The main expenditure will be for lawyers, but some of it will be for fees for expert witness.

994. Mr Paisley Jnr: You used the word “mushroomed" to describe what has happened over the past number of years; you said that in the noughties, there have been 280 cases since 2005. Would it be unfair to suggest that since the end of the terrorist war here and the end of the Troubles, lawyers have been incredibly ingenious in finding new ways to make a heck of a lot of money out of this place? Would that be an unfair characterisation?

995. Mr Daniell: That would be a little unfair, yes, because —

996. Mr Paisley Jnr: How is it unfair, and when is it accurate?

997. Mr Daniell: It is unfair to the extent that prosecutions in very-high-cost cases in particular are brought by the Public Prosecution Service. It is obviously critical in any democracy that people have the ability to defend themselves in such cases. Lawyers have to be available to defend cases, and very-high-cost cases almost certainly involve solicitors as well as junior and senior counsel. It is reasonable that defendants should have the opportunity to defend themselves. Whether there is an issue about the amounts of fees that are paid in those circumstances is not something that I should speculate on.

998. Mr Paisley Jnr: Does some quantum not exist, given that this situation has mushroomed since 2005? We can look at other trends and see that cases that were typical in Northern Ireland in the 1970s and 1980s have clearly declined since 2005. It is incredible that those types of cases have mushroomed from 2005 onwards.

999. Mr Daniell: We do not have sufficient research capacity to go into this subject in great depth; however, that is something that we — or a new Department — may need to do. I said that certain types of cases, such as those involving money laundering, organised crime and fraud, are extremely expensive. Those cases have continued at a rate since the end of the Troubles, and they attract those sorts of fees.

1000. Mr Paisley Jnr: Although your submission is very nicely written, I am worried that you are basically saying that we need a blank cheque to cover those costs. I am not criticising you for that, but that is essentially what you are saying to me. To ask politicians, who are trying to cut up a budget, to leave a blank cheque for these purposes is completely unacceptable.

1001. You said that fundamental changes may need to be considered. The sort of fundamental changes that you are talking about, which would allow you to run your part of the Department for the ballpark figure of £65 million to £70 million a year, are not just fundamental changes; they are root-and-branch changes. That would have an impact on people’s mentality, on their expectations of justice, on the expectations, rightly or wrongly, that lawyers have of the system, and on how justice is dispensed in this part of the United Kingdom as compared with England, Scotland and Wales. Can the root-and-branch change that you are advocating be achieved, or is it a lullaby or a siren call for such change so that when we arrive at the next CSR period, we will be shafted again with a request for £80 million? I am sorry to be so blunt.

1002. Mr Daniell: There is not a lot to disagree with in what you said. I will go back to your point about a blank cheque, because I do not agree that we are asking for that. We are making an educated assessment of what we are likely to need over the remainder of the CSR period and, indeed, beyond. However, we do not have the levers that enable us to guarantee that we can live within that amount. The amount that we need may turn out to be less, or it may be more.

1003. Mr Paisley Jnr: Imagine that your wife came to you at the end of the month and said, “Darling, I need slightly more money than I got last month to balance the budget". You would ask for a ballpark figure, and she could say that the amount could vary significantly but that she would take a closer look and let you know. However, she would still be clear that she needed more money. That is a blank cheque.

1004. Mr Daniell: If you are describing a blank cheque in the context of demand-led expenditure, which would be the same as social security expenditure, in which, under legislation, you are required to acquire liabilities, I suppose that it is a blank cheque.

1005. Mr Paisley Jnr: Does this stuff not make Mr Goodwin look modest?

1006. I have one more question to ask, Chairperson; I do not know whether you have asked it already. Do you pay VAT back to the Government?

1007. Mr Daniell: Yes. We pay solicitors so that they can pay VAT.

1008. Mr Paisley Jnr: We have discussed this point generally, and that may be one area of change.

1009. Mr Daniell: I will answer the second part of your question, which was about the root-and-branch review. I stress that that will not help in the current CSR period. If, when we become part of a Department of justice, we were asked what we would have to do to really bring the expenditure down, on the criminal side, I would suggest looking hard at the extent to which legal aid is granted in the first place. For example, should there be a much stricter means test? One option I have wondered about for some time is whether more could be done in some of the very-high-cost cases, so that if someone is found guilty, they should pay money back into the fund for the cost of the defence. Issues such as that could be examined. There are also issues about levels of representation, which could be looked at radically, and that would have to be done in conjunction with the PPS.

1010. On the civil side, we have a reform programme already that will give us some tools that will help us in that area. However, I do not pretend to say that the reform programme as it stands will make an enormous inroad into the levels of funding that we are talking about. However, one might have to think about going down the same road as England and Wales and have a contracting arrangement whereby solicitors tender for contracts. That will mean that they will undertake to run so many cases a year on the basis of that contract. One may have to think about whether that contract would be solely with solicitors, and they would have to decide whether they wanted to employ barristers. That would come out of a standard fee that would go only to the solicitor. However, not only the legal profession, but other groups, have made strong arguments against taking that route. It would mean a major change and would probably begin to change the nature of the legal profession in Northern Ireland.

1011. Mr Paisley Jnr: Devolution has to be seen as something that is at least equal to, if not better than, the previous arrangements under direct rule. What you say would scare me, in that the arrangements would get worse, because the system may not function in the way that the public wanted it to. That would be an absolute kick in the teeth for those of us who wanted to devolve those powers. When one accepts the argument about who should get legal aid and one goes down the road of having a means test, etc, as Carmel Hanna quite rightly said, people who have an expectation that they need justice would be penalised as a result.

1012. I like what you said about making the guilty pay; I am very happy with that sort of suggestion, certainly as regards my own personal arrangements. I would also like to find out how much it would cost. How much can barristers, solicitors and the legal profession make out of the system? Would some sort of capping arrangement be a way to bring down the costs?

1013. Mr Daniell: The contractual arrangements that exist in England and Wales that I have described would be an effective means of capping what would be paid.

1014. Mr Paisley Jnr: If we started to do that, would the legal profession go on strike?

1015. Mr Daniell: I cannot answer for the legal profession.

1016. Mr Paisley Jnr: What is your gut reaction? If you were a lawyer in Northern Ireland expecting to make £26 million in the coming year, and you were then told that, as of the next CSR period, you can expect to make — as a collective group — £10 million, would you go on strike?

1017. Mr Daniell: The only comment that I will make is that the Bar has withheld briefs in a couple of categories of case; therefore, there is the possibility of that happening. However, we are in the realms of severe speculation. If there is a reality about what money is available, there may be a limit to the extent to which people may be prepared to go down that road.

1018. Mr McFarland: Thank you for your briefing. I have two questions to ask.

1019. First, following up on the issue of organised crime, the Serious Organised Crime Agency deals with areas where there can be no criminal case, and it then goes after assets. My understanding is that, under the current system in criminal cases, the judge can order the seizure of ill-gotten gains and assets. I presume that that happens already. When it does, does that money go back in to the system? If, for example, the criminal were to receive legal aid, and then £15 million, his ranch in Spain and his cars were taken from him, would that money be credited to the legal aid budget, or would it go to the Treasury?

1020. Mr Daniell: It goes to the Treasury; we do not benefit from that.

1021. Mr McFarland: Clearly, that needs to be looked at. My second question concerns the size of your administrative budget. Could others do areas of your work easily, and are there areas of duplication between your work and that of others? Could how all that is dealt with be streamlined if we had more control of it here?

1022. Mr Daniell: I do not think that there is a large amount of duplication. The Social Security Agency, on our behalf, determines whether people are entitled to civil legal aid, because that determination is largely connected with whether people receive benefits or not. Of course, we need to look at our administration expenditure. There may be scope for making some reductions after the reform period that we are about to enter, but that would possibly be £500,000 or £1 million, not the sorts of sums that would make the difference that is being discussed.

1023. Mr McFarland: What size is your current budget?

1024. Mr Daniell: The administrative budget is about £7•5 million. The more that the system is simplified — for example, by the use of standard fees, as opposed to fees that are based on an hourly rate — the more we can begin to think about how things can be done more efficiently and how more savings can be made. We are very conscious of that. In future, we may have to think about the possibility that certain areas will be removed completely from the scope of legal aid, and that would reduce our amount of administrative expenditure.

1025. The Chairperson: We wanted to cover a whole range of issues, but time is not sufficient to allow us to do so. We will write to you, so you can anticipate quite a few questions hurtling down the track on issues that have arisen from your paper.

1026. I have two or three questions to ask on efficiency savings. Are effort and spending being duplicated by, for example, the Legal Services Commission, the Northern Ireland Court Service and tribunals? What steps are being taken to eradicate any duplication?

1027. In the context of the Deloitte report, do you envisage efficiency savings being made as a consequence of a joined-up approach being taken between the commission and the Court Service? If so, what is the timescale for those efficiency savings, and how significant will the savings be?

1028. Your submission advises that the commission was actively seeking ways to maximise value for money. Will those examinations lead to efficiency savings and a reduction in spend, and what progress, if any, has been made on that to date?

1029. Mr Daniell: To be fair, I did not answer the previous question as fully as I should have done, and you have sparked a thought in my mind about duplication, the Deloitte report and our relationship with the Court Service. I do not think that there is duplication in our internal processes and in how we process payments, but I think that there is an element of duplication with the policy work that we and the Court Service carry out.

1030. That is a difficult but important area. Northern Ireland is obviously a much smaller jurisdiction than England and Wales. The commission has set up structures to handle legal aid that effectively mirror those in England and Wales. There may be questions about whether that is the right approach in the future. Indeed, the commission has pressed the Court Service and the Northern Ireland Office, which have agreed to review those issues over the next few months.

1031. I will give you some examples of the sort of thing that I have in mind. The commission is responsible for the development of policy and the setting of fees on the civil side of legal aid. A small unit that comprises only a handful of people in the Legal Services Commission is working on a major reform programme. There are also people in the Court Service with whom that unit has to relate and agree certain things. In those areas where the commission is responsible for the setting of fees, it develops a business case for a certain fee level, which the Court Service then has to agree. The commission then goes back to negotiate with the profession, and then back to the Court Service. There is a lot of toing and froing.

1032. On the criminal side, although the Court Service is responsible for fees and policy, there is an argument that it could be a lot closer to the operational side of the commission. Given the constraints, things work very well between the two organisations, but there is a case for improvement.

1033. In England and Wales, for example, the Legal Services Commission and the Ministry of Justice are co-located — they effectively work as one, which is how I think we ought to work in Northern Ireland. The chief executive of the commission in England and Wales is on the management board of the Ministry of Justice, which means that they effectively work together as one.

1034. Speaking partly personally, although I know that the commission agrees with most of what I say, I think that there is case for saying that we ought to look at the architecture of the delivery of legal aid, the relationship between the its operational delivery and the sponsor Department, and whether the current degree of separation is right or whether the two organisations should be much closer together, with less duplication in policy.

1035. There are elements of legal aid that must retain its independence; for example, in matters such as judicial reviews against Government, or care orders in cases involving children, where private individuals might be taking a case against public authorities. On the criminal side, the essential independence of decision-making in individual cases is critical, therefore, it must be retained. However, subject to that, there is a case for reviewing structures and architecture and for saying that perhaps new systems might be developed in the future. Whether a non-departmental public body is the right model is open for discussion.

1036. The Chairperson: Thank you. As I said, you will probably receive some communication from the Committee in the not too distant future. I thank both of you for coming along today; you have been very frank and straight with us. There are obviously pressures, and work needs to be done to try to reduce some of those pressures.

1037. Mr Daniell: I would like to make one brief comment; I do not want there to be any misunderstanding of an answer I gave about people who have been found guilty in court reimbursing the commission. In short, the guilty should be made to pay. Obviously, a large number of people who are found guilty in court do not have the means to pay for their defence. However, I was referring to those cases where people who are found guilty clearly have access to resources. There may be a case for those sorts of people paying either a contribution or the full cost of their defence.

1038. The Chairperson: Thank you.

10 March 2009

Members present for all or part of the proceedings:

Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Alan McFarland


Mr Robert Crawford
Mr Ray Jones
Mr David Whitcroft

Compensation Agency for Northern Ireland

Also in attendance:

Mr Victor Hewitt

Specialist adviser

1039. The Deputy Chairperson (Mr McCartney): I welcome Mr Robert Crawford, Mr Ray Jones and Mr David Whitcroft from the Compensation Agency to the Committee. Thank you for coming. We are behind schedule, so I thank you for your patience.

1040. Before Mr Crawford makes his presentation and I open up the meeting for questions, I ask Committee members to declare any relevant interests.

1041. Mr McCausland: I am a member of the Belfast District Policing Partnership.

1042. Mr Robert Crawford (Compensation Agency for Northern Ireland): With me are Mr Ray Jones, who is the director of operations at the agency, and Mr David Whitcroft, who is the agency’s accountant. They will assist me on any technical matters that may arise. I will say a few words about the work of the Compensation Agency for Northern Ireland to set the context for our discussion. The agency is demand-led. We receive claims from people who have suffered injury or damage as a result of violent crime. Our work, therefore, depends on the level of violent crime.

1043. We do not accept all claims. At present, we deny liability in around 60% to 65% of claims. That percentage can go up or down, and that will affect the amount of money that we pay out. It may be some time before a claim is paid. Our current average is 12 to 14 months between application and payment. However, some cases can take much longer. For example, we have cases on the books that are more than 10 years old. Again, that creates some difficulty for us in predicting when money will be spent. Either way, we need to make provision for those cases in which we accept liability and anticipate accepting liability.

1044. There are two classes of claim. We take resource cover for all the claims that we receive, and we either put a price on each of those, or estimate how many of those claims we are likely to pay, and apply an average price. Currently, we hold around £62 million for all the claims that the agency has received. We have attempted to estimate how much funding we will need in the remainder of the 2007 comprehensive spending review (CSR) period, and that figure is based on the number of claims that we anticipate receiving — not an exact science — the number that we anticipate paying, and the amount that we anticipate paying out for each claim. There is around £23 million remaining for that purpose in the two remaining years of the CSR period.

1045. I emphasise that the figures that I am giving are non-cash-resource figures — they are not cash. Essentially, the agency’s work is about getting funding to cover liabilities — that is the challenge that we face. Usually, cash is much easier, in the sense that once one has resource cover, it is a matter of profiling the cash and controlling that year on year.

1046. Unlike our counterparts in England, Wales and Scotland, we are managed by departmental expenditure limit (DEL) rather than by annually managed expenditure (AME). That means that we operate on a three-year cycle, unlike AME, which operates on a one-year cycle. I do not know why it is the case, but AME is much more flexible and easier to manage. We have not been able to find any reason as to why we differ from our colleagues. As a result of our being so, however, we must do more forecasting and planning, and we are involved in more controls.

1047. As a final comment, I will build on that and say that it is difficult to predict the future level of payments. We have attempted to improve our predictions. In the past year to 18 months in particular, we have done a great deal of work on forecasting, and we think that we are in a much better position now. For example, since April last year, we have been able to move to a three-year business plan for the first time, and that has been a big help to our planning.

1048. The point that I want to leave the Committee with is that we have no crystal ball that will help us to determine the number of claims that will come through the door next year or the year after. With that caveat in mind, we will seek to help the Committee as much as we can with our future funding.

1049. The Deputy Chairperson: Thank you. On your final point, are there any developments in the criminal-justice system that might place a financial burden on, or create financial pressures for, your agency?

1050. Mr Crawford: Several things are happening, but I would not say that they will all necessarily create pressures. For example, with effect from this April, we are introducing a new criminal-injuries scheme, which will change a number of the headings under which compensation is paid. There are about 400 descriptors that are applied to injury types, and we have made a calculation that is based on the experience of colleagues in Great Britain and on the way in which compensation rates are changing. That will affect our payments, and we have already factored that into our current budget.

1051. The calculations that we have made may be wrong — there may be more claims, or fewer claims of a high value. We cannot predict that accurately. We used a conservative figure in making that calculation, but if that figure were to be less than we estimated, we might make savings of £1·5 million or £3 million over the next couple of years. However, I must point out that at the end of the current financial year, we have seen an increase in the number of claims that we have received for criminal damage and criminal injury — those types of claims were up by about 10% for criminal damage and 2% for criminal injury. If that trend were to continue, meaning that we receive that number of claims every year from now on, that would involve an increased cost of several million pounds.

1052. We are looking at how we can manage our money better. We have entered into one agreement so far and are looking for other agreements with health trusts on long-term residential care. We anticipate saving several million pounds over the next couple of years if we can get those agreements in place. That is related to the fact that, particularly for some of our older claims, we must pay all the money out to an applicant for, perhaps, the next 25 years of care. However, if we can get agreements with health authorities on the provision of that care, we can pay the money in instalments. That arrangement is outside the existing constraints of the scheme, so we are not yet certain whether it will be possible to get the kind of agreements that we seek. However, we have one in place already that has saved us a considerable sum of money. That is an example of the sort of things that are happening.

1053. Most fundamental to this is the fact that we have seen an upturn in the number of claims, particularly in this financial year. Claims have been falling for the past five years. Therefore, it is not clear to us whether the increase represents a change in that trend or a blip. We have alerted the Northern Ireland Office to the fact that we might need to consider obtaining further resources. However, if we were to do that, we would be looking at the resources for year three, because, as I said at the start, we already have £23 million provided in the current CSR period for future claims, and that will certainly cover us for next year.

1054. The Deputy Chairperson: If there were a drop in case numbers, would that have staffing implications?

1055. Mr Crawford: Our framework document already commits us to reducing staff numbers by five, so we will go from having 80 staff to 75 staff. If there were a reduction in caseload, and the number of claims that we receive decreases, we would certainly look at whether we could make further reductions.

1056. We are in the middle of a staffing review, because we need to create our business plan for next year, and we want to build our staffing requirements into that. A number of other factors needs to be taken into account; for example, the grade-C issue has not yet been resolved. We have quite a number of staff at that level, so that will have an effect on agency staff.

1057. To give the Committee some examples of figures, for approximately the past five years, we have been operating with five fewer staff than our full complement allows, meaning that we have given approximately £150,000 back to the Northern Ireland Office this year. We did so because it has been possible for us to manage with fewer staff than we have money for. The budget figures that are provided do not take account of the planned reduction in the number of staff by five. Therefore, by the end of the CSR period, we expect to be running at around £122,000 under the budget figure.

1058. I should mention the fact that we have got very good staff and many very experienced staff, as well a very low sick-leave record, which stands at about 2·9%. That means that we do not have to plan on the basis of having many staff out sick, and we do not. We have the staffing complement, and the budget to bring in staff if we need to. However, in practice, we have been able to operate well under our complement.

1059. The Deputy Chairperson: I will ask one final question before I invite questions from Committee members. Is there any duplication in other parts of the system that you feel you could cover, or vice versa?

1060. Mr Crawford: During the year, we helped out on a short-term basis with AccessNI work. We were able to accommodate that within our existing budget without seeking staff or funding for us to do so. Agency staff are excellent caseworkers, so we have the skills to do casework. I am not sure whether, in the long term, it would be sensible to mix our work with other work. However, as I said, we provided short-term assistance for AccessNI projects, so we know that we can provide it. One difficulty is that we also set targets for ourselves, and anything that we bring into the mix prejudices our staff’s ability to meet those targets. The way in which the agency is driven is through managing cases. Our framework document requires us to seek to reduce the average time that it takes to process claims, and that is our fundamental objective. We make modest improvements on that year on year. That objective could be at risk if more is added to the agency’s workload.

1061. Mr McFarland: Thank you. I have several queries, but I will give you them all together. Will you differentiate for me between the Criminal Injuries (Compensation) (Northern Ireland) Order 1988 and the Criminal Injuries Compensation (Northern Ireland) Order 2002? Each has a figure of £13 million or £14 million attached to it. Presumably, there is a difference of some sort between them. How many cases have you in total for your 75 staff? Will you take us through the amazing fluctuations in capital that are outlined in your submission, which vary from £30,000 and £830,000? I am not sure what you are at there. The table at paragraph 4 of your submission shows budgeted expenditure of £430,000 for 2008-09, which rises to £830,000 for 2009-2010, and then falls to £70,000 for 2010-11, yet it was at £30,000 in 2006-07.

1062. Mr Crawford: I will ask Ray Jones to let you know the number of cases. He will look that up while I answer your other questions.

1063. There are two different criminal-injury schemes. The 1988 scheme is court-based and is the old way of handling criminal-injuries claims. By court-based, I mean that it is adversarial. The applicant submits an application and hires a lawyer, and the agency tests his or her position. The eventual settlement is approved by the court, and, if necessary, it goes to appeal. It is all court-based, and there are many legal fees to be paid. A good publication is available on that. Sir Kenneth Bloomfield headed a review of the first criminal-injuries scheme, as set out in the 1988 Order. He reported in 1999 and made a number of recommendations.

1064. One of its recommendations was to introduce the tariff scheme, which came in under the 2002 Order. It is so called because it is based on specified amounts for each criminal injury. In other words, if an individual breaks an arm, a certain amount is paid out, or if an individual sustains hearing loss in both ears, £8,500 is paid out. That is how it works — it is not court-based. Legal fees are not paid, and, on appeal, cases are heard by an independent appeals panel.

1065. We differentiate between them because the schemes are fundamentally different. We can manage the money between them because all the money that the agency receives is programme money. It is not like votes for different types of expenditure — we can mix and match. However, we must manage them, in a management-information sense, as two separate schemes.

1066. The 1988 scheme is now closed. Some 560 cases under it remain outstanding. We receive a small number of claims under the 1988 Order each year, mainly for sex-abuse cases, for which there is a longer time limit in which to make a claim. Any minor who has been injured can claim up until the age of majority plus three years, which is essentially 21 years of age. We are managing out those cases. We have had about 12 new claims under the scheme this year, and the number of claims falls each year, as one would expect. We cleared about 275 of those cases this year, and, over the next three years, we will clear the remainder — except for possibly a rump of cases.

1067. Mr Ray Jones (Compensation Agency for Northern Ireland): The total number of cases that we have in hand is approximately 7,500. The average intake for tariff is about 5,000. The current intake for damage is around 700 or 750 cases. Technically, we still have the capacity to take very old cases under the Criminal Injuries (Compensation) (Northern Ireland) Order 1988. Only 12 cases were submitted under that legislation this year, on a very limited and restricted basis.

1068. Mr Crawford: In precise figures, the 10% increase in damages that I mentioned involves a rise from 663 to 720 cases in the current year, and we predict a future figure of about 700. In the tariff cases to which Ray referred, we predict that we will come in at a little more than 5,000 — at 5,006 — and we predict a figure of around 5,000 for the future. We also have those old cases to manage out.

1069. Mr McFarland: What about the capital element?

1070. Mr Crawford: The capital figures that we have provided do look as if they are all over the place. However, that is simply because our main capital expenditure is on computer systems, which we are refreshing. The profiled expenditure relates to when we anticipate spending that capital.

1071. In fact, the figures have changed a little since they were provided, because we have pushed some work back into next year in order to get the computer system for the new tariff scheme definitely up and running by the start of April. Work on our website, for example, will not be completed by then; therefore, some of that expenditure will fall into the following year.

1072. Mr Attwood: What is the explanation for criminal-damage compensation in 2007-08 rising to more than £25 million from £920,000 in 2006-07?

1073. Mr Crawford: It is helpful to have the opportunity to explain that, because it also explains some of the forecasting difficulties. Much of that rise relates to a series of criminal-damage claims for firebomb attacks in the dissident republican campaign, specifically on large commercial premises. There is a time lag with large claims before money is paid out, and the agency makes provision for those claims.

1074. First, a loss adjuster is sent out within 24 hours. An ongoing debate then takes place between the applicant and the Compensation Agency. Many professionals are involved in judging the size of the loss, including financial loss of profit, and so on, and that explains the time lag.

1075. Mr Attwood: I appreciate that, but there is a consistency and a pattern in all the other claim lines. If one examines them, they do not vary much year on year. However, there is a huge variation in criminal-damage compensation year on year. Is the fact that claims were in the system that took a long time to process and that converged in that year the only reason for that?

1076. Mr Crawford: Yes, because the incidents happened within a certain period, and the time lag to clear the claims was about the same in most of those cases.

1077. Much of that work involves related claims. In other words, one incident may generate eight or 10 claims, in which case the agency runs them together as far as possible, because the issues are the same, and because doing so cuts down on administrative and legal costs. It is quite common for a number of large claims to be paid at the same time.

1078. Mr Attwood: I can imagine what the answer to my second question will be, and I do not want you to cause yourself unnecessary grief. However, I get the impression that the Compensation Agency is pretty tightly run and knows what it is doing. It has said in its framework document that it can reduce staff by five. Is it not the case that you could reduce staff by another five?

1079. Mr Crawford: The agency has already reduced staff by five. It currently employs 69·8 full-time equivalent permanent staff. The framework document requires the staffing level to get to 75 in two years. We have one vacancy to fill, which was occupied by a supernumerary member of staff. Therefore, the agency does not have five vacancies that it is seeking to fill; it is running at five under its complement.

1080. However, we have cover if the workload pressure on staff were to increase. That is why we gave £150,000 back this year — we did not use it, and I do not anticipate our using it over the next two years.

1081. At present, we are carrying out a staffing review, and, as I mentioned earlier, there are a number of issues to be bedded into that. The next framework document review is due in 2010, and I would not be surprised if, in that, the figure goes down further. What I am saying is that we do not use all the resource unless we must. Providing that we keep reducing the time taken to process claims, which is the big driver, it is much more prudent and proper that we give the money back so that it can be used elsewhere. Certainly, we could employ the extra five staff and make a bigger dent in our budget; however, at present, we are achieving our aims with the existing structure. That is the long way of answering yes.

1082. Mr Attwood: Out of the four or five agencies from which we have heard evidence up until now, yours is the only organisation that has given us evidence to that effect.

1083. Mr Crawford: A caveat is that if there were to be a change in circumstances and a large number of claims made, we would want that cover.

1084. Mrs Hanna: Good afternoon; you are very welcome. Have you any ideas as to why there has been an upturn in the number of cases this year?

1085. Mr Crawford: We have tried very hard to figure that out. We have looked at the crime figures, and, for most classes, they are going down. There are a couple of areas, such as violent crime, in which there have been increases.

1086. Mrs Hanna: You do not see a common trend in the cases?

1087. Mr Crawford: Not really. I would like to carry out more work into that, perhaps with NIO statisticians and others who may be able to help. The 2% increase in claims for criminal injury might correlate with some areas of violent crime; however, claims for offences against the person have gone down. What we find more odd is the number of criminal damage claims, because there has not been an upsurge in damage, nor have there been big incidents during the year that resulted in damage to many properties.

1088. We do have many vehicle claims. It strikes me that people who previously would have claimed from insurance, and therefore not bothered submitting a claim to us, may now be claiming from the agency, or there may be a better information system in place. However, we have never before noticed information provision to be bad in Northern Ireland, because we get about three times per capita the number of claims as are submitted in GB — people do know about the schemes.

1089. However, that is only speculation. People may now be thinking of claiming from us, where previously they would have claimed off their insurance. The amounts for criminal damage would facilitate that, because we pay everything but the first £200. Many insurance rates are better if one has an excess that is higher than that. Therefore, it becomes sensible to claim from the agency rather than off one’s insurance. We cannot, however, substantiate that with fact.

1090. What we have done is to ensure that our staff are fully aware that we do not pay claims on uninsured vehicles. There is a clause in the legislation that allows us not to pay for damage if the vehicle has been on the road unlawfully or without tax. We have tightened up to ensure that staff know that. However, we have not noticed any change in the claims that we are denying for that reason. The explanation probably is that people consider claiming from us as being a better option than going through their insurance.

1091. Mrs Hanna: You stated that your emphasis is on strengthening the process and in getting the claims processed within a certain time limit. Did you say that the average processing time was 12 to 14 months?

1092. Mr Crawford: Yes, 12 to 14 months.

1093. Mrs Hanna: Did you say that some cases have taken 10 years to process?

1094. Mr Crawford: Yes, we have such cases on our books, and perhaps I should say a little bit about that, because it does sound really rather bad. In some very serious injury claims, it can take years to establish the extent of the injury; for example, brain damage can take years to assess. Very often, the decision to let the claim continue to run is made between the applicant, or the applicant’s representative, and the agency. What we can and what we do do, at the request of applicants, is to make interim payments.

1095. Mrs Hanna: My next question was about interim payments, particularly for such cases.

1096. Mr Crawford: We do that. You will probably be familiar with the Green Book method of assessing compensation. We use that largely in the old cases. Post-2002, of course, the method used is different. However, in the old cases, the Green Book is very much the starting point. There is a point at which we decide that, as we will be paying more than X, we make X as an interim payment so that applicants are not disadvantaged. Some applicants do not want interim payments, but, for the most part, we find that they are helpful.

1097. In other cases, such as criminal-damage cases, we have real difficulty in establishing the scale of the loss. For example, if a property were damaged and records were not kept, and an issue were to arise about the amount of profit or income that a business earned, we would have real difficulty with establishing the scale of the loss. Indeed, a few cases have lingered because of that issue.

1098. Mrs Hanna: Do you try to recreate that record rather than its being the applicant’s responsibility to do so?

1099. Mr Crawford: It is the applicant’s responsibility to keep that record. At some point, we seek to close a case by making an offer, on the basis of our assessment of the earnings of a particular business, and we have a forensic accountant who does that for us. However, if the applicant were to choose not to accept that offer, there would be some arguing back and forth, and, sadly, sometimes that can create an impasse.

1100. Therefore, that is how things operate. However, ultimately, there is always a point at which we will make an offer, and we will not hang on, waiting for more evidence. Therefore, to conclude, unless we are unable to trace an individual, we will make an offer. There may be 30 such cases in which we have made offers, and we are in negotiations with those people.

1101. Mr McCausland: I am going over ground that has already been covered, but I want to get clarity. Under the 1988 Order, your table shows that expenditure increased from around £10·3 million, to £11·4 million, to £14·2, to £17·8 million between 2005-06 and 2008-09. Considering that it is nearly the end of the financial year, is it your understanding that the figure will be £17·8 million for this financial year?

1102. Mr Crawford: That is the budget that we have allocated for this year. The actual expenditure will be around that figure, but we have not finalised it as yet, so we cannot give you a final total.

1103. Mr McCausland: What is your budgeted figure for next year?

1104. Mr Crawford: Again, we have not broken that down yet. We have included the “resource non-cash" totals in the table. Those are the available amounts that we have to set against the various areas. We may need to draw forward some money from year three to cover that, but we have not broken it down yet. When we draw up our business plan, which we are in the process of doing, the amount will probably look similar to that figure, because the expected number of claims on our projection will be similar to this year.

1105. Mr McCausland: There is a changing trend, which ranges from £10·3 million up to almost £18 million.

1106. Mr Crawford: I have just been reminded that there is a point that I need to make. You referred to the 1988 Order figure. However, what I have just said applies to the 2002 Order figure. We have now provided for the remaining 560 claims that apply to the 1988 Order. There are only 12 new claims, and we have not made provision for them, because we assess them individually as we receive them. Indeed, all the claims have been assessed individually. That is the amount that we expect to spend, so that is the provision that we have now taken for them.

1107. Members will notice that the “total resource non-cash" figure for 2008-09 is almost £51 million, whereas it appears that we have projected relatively small figures for the next two years. The reason for that is precisely what I have just said. In the past year, we estimated the value of all old criminal-injury claims and all existing criminal-damage claims in the system, and we made provision for those. Therefore, almost £31 million of that £50 million is essentially an adjustment, because we improved our forecasting and planning. Therefore, the figure is £17·8 million, and, strictly, there could be around a dozen new claims. Our expected figure for that is £100,000 for the next two years. However, the 2002 Order figure for 2008-09 will be almost £14 million for the next two years. In fact, it will be less than that, because the 2009 scheme will come in in April, so we will have to factor that into the figure.

1108. Mr McCausland: Between 2005-06 and 2007-08, the criminal-damage figures jumped from £15 million to £25 million because of arson attacks. Therefore, for future years, it would take only one such arson attack to add a further £10 million to that figure.

1109. Mr Crawford: That is a very good point, and one that I wish to clarify. We do not carry provision against one-off attacks, which would prove to be very expensive. We have an estimate based on the level of criminal-damage claims this year, and that estimate did not include that large jump. We value all criminal-damage claims as they are received. We are looking at a 12-month rolling average, and, therefore, our current prediction is based on the past 12 months.

1110. The sort of calculation to which you refer is not built into our budgeted expenditure. However, we have an agreement with the Northern Ireland Office and, indeed, through the NIO, with the Treasury that we will seek extra money in that event, because it simply cannot be predicted. That would be an advantage if we were in an AME environment rather than in one that concerns departmental expenditure limits, because, in AME-type accounting, it is expected that one may need to seek additional funds year on year.

1111. Mr McCausland: Currently, you can go back to the Treasury and say that you need £10 million. Would that arrangement remain if policing and justice powers were devolved?

1112. Mr Crawford: That would need to be negotiated between the Department of Finance and Personnel and the Treasury. However, it is explicitly annotated in the NIO’s relationship with the Treasury as one of the risks in which the Treasury would allow the NIO to seek extra funding. I imagine that that should carry on, because it is already built in.

1113. The Deputy Chairperson: I thank Robert, Ray and David for their presentation and patience.

1114. Mr Crawford: Thank you.

10 March 2009

Members present for all or part of the proceedings:

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


Mr David Brooks
Mr Stan Brown
Mr Peter Connon
Mrs Janet Kirkwood

Forensic Science NI

Also in attendance:

Mr Victor Hewitt

Specialist adviser

1115. The Deputy Chairperson (Mr McCartney): I remind everyone to switch off their mobile phones as, even on silent, they interfere with the recording equipment.

1116. I welcome Mr Brown and his delegation. I apologise for the delay and thank you for your patience. I hope that it has not been too disruptive for you.

1117. Mr Stan Brown (Forensic Science Northern Ireland): We got a free lunch at your expense, so there was no problem with that.

1118. The Deputy Chairperson: By the end of the meeting you will know that there is no such thing as a free lunch.

1119. Will members please declare any interests?

1120. Mr McCausland: I declare an interest as a member of Belfast District Policing Partnership.

1121. Mr S Brown: Thank you for the opportunity to appear before the Committee. Forensic Science Northern Ireland’s (FSNI) mission is to provide effective, impartial forensic science in the support of justice. Our staff complement for the coming year is 214; 179 of those, including 136 scientists, are directly involved in service delivery. Our main customer is the PSNI, but we also carry out work for the Police Ombudsman, the Historical Enquiries Team (HET), the state pathologist, defence representatives and other customers both here and further afield.

1122. Despite its small size, FSNI is a complex organisation that plays an important role in the criminal justice system. The complexity arises from our broad range of scientific disciplines, the legalities of expert witness in court and the detailed quality assurance throughout the end-to-end process from the crime scene to the court. We are accredited to stringent quality standards for that process.

1123. We are a net-funded agency. Our resource cost for next year will be £11·1 million, of which cash funding is £527,000. Customer revenue, at £9·5 million, will cover 86% of our total costs. Matching resources to customer demand is a complex matter in an organisation such as a forensic science laboratory. However, the biggest challenge facing the agency is the need for new accommodation, which I will return to in a moment.

1124. In the past, the agency’s focus was on effectiveness and getting things right. More recently, the creation of a forensic-science market in Great Britain, the police imperative to ensure value for money and the need to reduce delays in the criminal justice system have required an increased focus on efficiency as well as on effectiveness.

1125. Therefore, we are in a period of rapid change: we are redefining our entire product range and restructuring our service level agreements to a three-year horizon. Those initiatives need a close focus on business processes and customer services. The Perseus management information and business change programme will be vital in driving that forward. The agency has ongoing capital requirements for equipment, and we are content that current funding is adequate for that purpose and for the initial phases of the Perseus programme.

1126. Similarly, our resource funding from the Department is generally adequate, although a number of one-off pressures may arise with regard to the recent European Court of Human Rights ruling on DNA databases, possible new regulatory requirements from the forensic regulator on DNA contamination control, and facilities projects required to maintain our current premises.

1127. We have been in a temporary, and increasingly unsuitable, facility since 1992, which inhibits our efficiency substantially. The proposed new laboratory is a specialist building, and much work has already been done on the specification. The Strategic Investment Board is closely involved, because the project will straddle two comprehensive spending review (CSR) periods and, probably, the devolution of criminal justice. The total cost for the building is in the region of £50 million; £25 million has been set aside by the Department within this CSR period. Project delays may require some rollover of that into the next CSR.

1128. The alternative to new accommodation is refurbishment of the existing premises, which would be very problematic operationally, would cost £26 million and would yield an inferior solution, both operationally and in the physical independence of FSNI from the police. Without new accommodation, the agency will gradually become technically non-viable.

1129. The Deputy Chairperson: Your paper states that FSNI will be self-sustaining by 2011-12. How much investment will you need to achieve that?

1130. Mr S Brown: Being self-sustaining depends very much on what customers are prepared to pay for our service. As most of our revenue hangs off the police budget, we very much depend on how much the police decide to put in the direction of forensics. There is some expenditure that should naturally belong to the Department, such as research and development, which, under HM Treasury rules, should be an allocation from the Department that we recoup through product sales. Therefore, sustainability is a question of what our total costs and total revenue will be. Those figures are currently somewhat unpredictable, by the nature of the beast.

1131. The Deputy Chairperson: What impact will the proposed increase in costs have on the budget of the PSNI?

1132. Mr S Brown: The major cost increase is probably due to the depreciation charges and capital charges on the new building. If we build a building for £50 million with a 25- to 30-year lifetime, there will be a depreciation charge of between £1·5 million and £2 million per annum, which will need to be folded into our total costs. Ostensibly, we should recoup that from our customers, but we are not sure how the Department intends to treat that. The programme to deliver the new accommodation is a departmental project, not a project of this agency.

1133. Mr McCausland: You mentioned that the income from the police was dependent on how much they requested. Does that mean that the amount of work that they give your organisation is determined by their budget, rather than by the requirements of the cases?

1134. Mr S Brown: There is always a finite amount of resources available to the police and therefore, ultimately, to us. There is always a greater demand for our services than we can normally fulfil, so it is a question of prioritising and trying to get ahead of the game. It takes quite some time to ramp up resources in a forensic laboratory in order to meet demand fluctuations. For example, it takes two to three years to train a new reporting officer up to the competency required to go to court. There is also investment in equipment and so on. Getting that right and strategically aligned is the complex part of it. We are working very closely with the PSNI on that at a number of levels.

1135. Mr McFarland: These charts that you have provided — do they represent outcomes, or do they represent the budgets for the three previous years?

1136. Mr Peter Connon (Forensic Science Northern Ireland): They represent the budgets.

1137. Mr McFarland: How far off are they from the outcomes?

1138. Mr Connon: The resource figure, at £1·9 million in 2007-08, can be compared to the final outcome of £1 million in that year. I do not have the other figures to hand, but I can provide them.

1139. Mr McFarland: That is almost a 50% underspend. Is that what you are saying?

1140. Mr Connon: In that particular year, yes.

1141. Mr McFarland: Is that the norm?

1142. Mr Connon: No, it is not necessarily normal. Look quite closely at the subsequent funding years — there were various reasons in that year for perhaps not being able to utilise the spend towards the end of the year.

1143. Mr McFarland: The budgets for the two previous years were £1·4 million each. What were the outturns?

1144. Mr Connon: I will have to come back to you with those figures.

1145. Mr McFarland: I am curious to see those. If one is handing back money all of the time, there is a great tendency for the Treasury to assume that it is not needed. It is useful for us to know those sorts of things.

1146. Mr S Brown: It is one of the complexities of lab work that it can take quite a lot of time to specify and procure an investment. Sometimes the permission arrives too late for us to do it in that financial year.

1147. Mr McFarland: The Eames/Bradley group has made a proposal to ring-fence the historic cases into a separate organisation, and there is some discussion about whether that would remain with the NIO. Clearly it makes some sense that it should not continue to affect the current policing budget. What sort of contracts does your organisation have at the moment, and how would those be affected if, in fact, the NIO continued to deal with those historic cases, presumably under new contracts? If your organisation were to move across with the estate, as it were, presumably you will be contracting separately.

1148. Mr S Brown: There would be no problem with contracting with any organisation. For example, our organisation has some contracts with laboratories and partners in England, and even with some police forces in England. We also have an agreement with the HET. It would be a standalone agreement, which we would negotiate with the NIO.

1149. Mr McFarland: Is there much spare capacity in your organisation? It is a bit like a research area in a university. If there are a group of extremely experienced scientists — which, by and large, one usually has to be to do your sort of work — there are tons of kit sitting around that does magical things. If the organisation is fully utilised by the police, then it does not have spare capacity. The logic is that if there is spare capacity you might look at starting some commercial venture with that capacity in order to bring more money in, and presumably help to buy new equipment, etc. Does that feature in your view?

1150. Mr S Brown: It does indeed. Capacity is a complex issue, in that there are around 14 different specialist teams, and each team has to be a certain minimum size in order to function. It is conceivable that that minimum size inherently has some spare capacity in some areas. We are actively looking to sell that spare capacity.

1151. Mr McFarland: Are you allowed to keep the money from that, or does the Treasury claw it back?

1152. Mr S Brown: The money is clawed back at the end of the year, but our framework agreement is currently being renegotiated with the NIO, and we are looking for some more freedom on the ability to retain receipts and roll them forward. That would be very helpful and would enable investment and development in the business.

1153. Mr McFarland: If you were encouraged to do that, what sort of income do you imagine achieving? For example, if the new justice Minister were very impressed with this all-singing, all-dancing service and was eager to make use of the scientists and decided to get some money in by doing a deal with the Treasury that would allow the money to be kept, what level of activity would that involve? If you were freed up to do that sort of thing, what level of financing might that raise?

1154. Mr S Brown: That is the $64,000 question; perhaps even more than $64,000. Some forensic science is easy enough to export, in the sense that exhibits can be moved from another country to here and we can work on them and get the results that we need. Other services need close scene attendance and close interaction with the police on an hourly or day-to-day basis. Some exhibits are very small and can be moved easily; some are bulky and very expensive to move. Therefore, only some aspects of what we do are exportable.

1155. We can export products and do work for other countries or customers, or we can export consultancy services. For example, there is a big potential demand for our services in many parts of the world because of our experience over the last 30 years. I do not have a figure for how much we could raise, but it could be quite sizeable — at a guess, it could be 10% or 15% of total turnover. However, our top priority must be to serve the criminal justice system in Northern Ireland. If we were to do business elsewhere, that would be done in order to bolster our capacity and maintain our home capability.

1156. Mr Attwood: I found your submission to the Committee somewhat neutral; it did not give me any meat. You may have heard the evidence that the Public Prosecution Service and others gave earlier — they gave a lot more insight into their financial situations. It may be that what is outlined in your submission is the height of it, but I would like to see if it is. Is it going to be the case that you are self-sustaining by 2011 and that, in the event that we have devolution of justice by that time, there will be no call on the public purse in respect of the Northern Ireland budget?

1157. Mr S Brown: A lot of the money that comes to us from the Northern Ireland public purse is circular money.

1158. Mr Attwood: Yes, I know that.

1159. Mr S Brown: It is our goal to achieve that by 2011-12, but there are a number of unknowns. One unknown is how the new accommodation will proceed and how the financial treatment of that occurs. Another unknown is how much research and development should be funded centrally from the Department, and another is how much we need to spend on our current accommodation before the new accommodation is ready. A further unknown is the effect of the European Court of Human Rights ruling on DNA — that could have a big impact on the work that we do. We are also investing in a major business change programme called Perseus, which is scalable. We will get benefits as we start to roll that out, but we are not yet sure how far it could actually go.

1160. Mr Attwood: You have named five unknowns, and there are only two years before we reach 2011. I would conclude that certainty around all those unknowns is not going to arise between now and then.

1161. Mr S Brown: I would not bet my house on our reaching it by 2012; it is a goal that we are trying to get towards. It focuses the mind and helps us be more businesslike.

1162. Mr Attwood: Whatever about how money from the public purse moves from one agency to another, if there is devolution of policing and justice powers by 2011, there will be a call upon public funds to directly grant-fund your organisation, but we do not know what the amount is going to be.

1163. Mr S Brown: Yes, but I still think that the vast majority of our moneys will be customer revenue.

1164. Mr Attwood: There is a budget line of £25 million in the last two years of the CSR for your new accommodation. Given that no new site has been identified yet, will that money just go back —

1165. Mr S Brown: We have identified a site — it is not absolutely confirmed yet, but it has been identified, and a lot of study has gone into the location of that and the various options around that.

1166. Mr Attwood: You may have identified a site, but there are still procedures to go through, so it is unlikely that that money is going to be spent in the next year. Do you expect that the £25 million that has been allocated for the next two years will be spent by the end of 2011?

1167. Mr S Brown: We have checked that with the consultant architects. They feel that the vast majority of it probably will be spent within that time, if we have the approval for the outline business case shortly. The programme has taken much longer than we anticipated. If we can get approval this summer, then there is a good chance that we will be able to spend most of that money.

1168. Mr Attwood: So your best guess at the moment is that that budget line will be exhausted by the end of 2011?

1169. Mr S Brown: Or there will be some rollover from it.

1170. Mr Attwood: How much is needed after 2011?

1171. Mr S Brown: Roughly the same again. The total cost will be about £50 million. We have been rigorous on the design of the building, with regard to size, scope, specification and so on. We have taken full cognisance of optimism bias and things like that. The final cost looks like being around £50 million.

1172. Mr Attwood: In view of what you said earlier about being self-sustaining by 2011, how much of that will have to come from our funds?

1173. Mr S Brown: I imagine £26 million or £27 million. I have not discussed it with anyone, but my guesstimate is that just over half should be coming in the next CSR.

1174. Mr O’Dowd: I want to ask about your current income; specifically, your current contracts with the PSNI and other bodies. What is the format of those contractual obligations? How safe are they over the next few years? Are you confident that they will be renewed? You said that you might be taking on further contracts; are you confident of your present contracts as a source of income?

1175. Mr S Brown: We are confident that the PSNI wants us to be its local provider of choice. It is under legal pressure to ensure value for money in its own procurement, so it will have to test us against other providers in England and Wales. We have to become businesslike. We are competitive, for many different reasons. We can compete with English providers, and we have the substantial advantage of local responsiveness. If and when we have our new laboratory, we will have the finest forensic laboratory in Europe, a very experienced team of people and a good, competitive cost base. Therefore, we should be able to retain the vast majority of the PSNI’s business. Senior police officers have told me that that is what they would like to see happen. We are open to the fact that they have the right to compare our costs and service levels with what is available elsewhere.

1176. Because there is a market in England and Wales, and because PSNI is a part of the Association of Chief Police Officers, there is a market aspect to this whole provision. There is also the criminal justice system here which, I would argue, is more important than the marketisation. We are confident that we will do it. We have a business development directorate, whose sole responsibility is to ensure that we provide customer satisfaction and that customers want to stay with us. However, where there is a market, there will be no 100% guarantees.

1177. Mr O’Dowd: Is it simply based on best value for money? Does the PSNI go to the open market, and suppliers bid for their business?

1178. Mr S Brown: Yes and no. It is best value, but not just in terms of unit price: there is much more to it than that. It is a complex, wrapped-up service with respect to responsiveness. We are confident that we can be highly competitive in our home market because of our physical proximity to our customer and to scenes. It would be very hard for any provider based outside this country to match that. We may also be competitive in taking some business in England and Wales. We also partner with other laboratories in Europe and further afield, as well as across the UK and Ireland. There is potential for partnering with competitors and adding some of our services to theirs as they compete for business. Forensic science is a very collaborative area.

1179. Mr O’Dowd: You mentioned the ruling of the European Court on the preservation of DNA evidence. What are the implications of that ruling? Can we have a little background?

1180. Mr S Brown: This is a ruling known as S and Marper. Two people were arrested, and samples of their DNA taken. Later, they were released without charge. The European Court ruled that their DNA should not be retained on the DNA database. At that time, DNA profiles of anyone who was arrested were retained. We have to go through all our many, many thousands of DNA profiles — and physical samples, which we hold in deep freeze — isolate those belonging to people who were not subsequently charged or convicted and remove them from the system. The administration of that will be quite time-consuming. It affects the whole of the UK, except for Scotland. Scotland already conforms to the European Court’s ruling.

1181. The impact on cases is that there will be fewer hits on people who might turn out to be of interest in an investigation. In the case of sex offenders, I understand that DNA will be retained whether or not they are subsequently charged.

1182. The Deputy Chairperson: Are there any other developments in the criminal justice system that will have a similar impact?

1183. Mr S Brown: Yes. The other example that I mentioned was the Forensic Science Regulator, who controls all forensic science in the UK. Partly in response to the Omagh bomb trial, the regulator has been looking at the contamination-control measures around the end-to-end process of DNA samples. He may come out with requirements for an enhanced way of controlling DNA handling, and in order to comply with that we may need to invest in facilities and consumables, and allow more time.

1184. The Deputy Chairperson: Does value added tax (VAT) have any impact on you?

1185. Mr S Brown: We are VAT-registered in our own right, separately from the Department.

1186. The Deputy Chairperson: A question that the Committee has asked of all witnesses is whether there is any issue that you have not raised here that may emerge further down the line to put additional demands on your budget.

1187. Mr S Brown: We need to maintain our capabilities. The broad scope of capability that we have is very good indeed for the size of our lab. Maintaining those capabilities is very important, because they synergise with each other. The issue may arise about whether — in case of future need — we wish to maintain a capability that is particularly underused. There is also the fact that science changes constantly, and one is never quite sure what will come along. As recently as 12 or 15 years ago, DNA testing was not standard practice; that has had a huge impact on laboratories such as ours.

1188. Mr Paisley Jnr: For the record, I declare an interest as a member of the Policing Board.

1189. One of the pressures that you identified was that you are in temporary accommodation. Will you outline some of the problems that you face as a result?

1190. Mr S Brown: We are based in a converted cigarette factory; most of our staff work without seeing daylight from morning until evening. In winter, we never see it at all. The other accommodation consists of Portakabins outside. That creates a workflow problem. We have to keep our exhibits separate — for example, of a suspect and an injured party — in order to avoid creating a false connection. We must decontaminate the inspection rooms between cases. Those flows, and being stuck for space, mean that it takes us longer to do that. Processing material would be much easier and decontamination quicker in a new building, because there would be reserve capacity that would obviate those bottlenecks.

1191. Mr Paisley Jnr: How far down the line are you towards achieving a newbuild project?

1192. Mr S Brown: We have a conceptual design; we have sized out the floor spaces that we need for each of the specialist forensic areas; we have specified the high-level finish and equipment that we need; and, based on that, we have done an analysis of what the building will cost.

1193. Mr Paisley Jnr: Which is how much?

1194. Mr S Brown: Roughly £50 million. The outline business case is currently being prepared and will hopefully be submitted in the next two or three months. We will then go into full design. We will have a tendering process for architects to quote against that particular specification.

1195. Mr Paisley Jnr: At what point do you foresee being under real pressure over accommodation?

1196. Mr S Brown: It will be a gradual process. The first thing that we will have to do if the Forensic Science Regulator rules that DNA contamination-control procedures must be ratcheted up even higher will be to spend money on the existing accommodation. It might cost £500,000 to bring that lab up to a satisfactory condition. Those things are very important in validating and supporting evidence for the courts.

1197. Mr Paisley Jnr: That is certainly true of recent trials. If there is any question at all about the forensic evidence, it can affect the result.

1198. Mr S Brown: That is right. Quality is absolutely critical.

1199. Mr Paisley Jnr: That is one fairly significant cost for you. From what I gather — do not pull any punches, because it is better to know early on — it will be an immediate pressure.

1200. Mr S Brown: It becomes an immediate pressure if and when the regulator rules that those additional standards are required. For other operational reasons, we may choose to gradually move premises ahead of the regulator’s decision.

1201. Mr Paisley Jnr: Do you have a location in mind?

1202. Mr S Brown: We have a putative location, which we are not 100% certain that we will get. However, we are reasonably confident that we have a site that meets our purposes.

1203. Mr Paisley Jnr: Will you have to spend money purchasing that site?

1204. Mr S Brown: No, it is a publicly owned site.

1205. Mr Paisley Jnr: It is a land swap. Thank you.

1206. The Deputy Chairperson: Thank you for your evidence and your patience. We hope that the lunch in some way compensated for your long delay. Thank you very much.

10 March 2009

Members present for all or part of the proceedings:

Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Alan McFarland


Sir Alasdair Fraser
Mr Ian Hearst
Mr Jimmy Scholes

Public Prosecution Service for Northern Ireland

Also in attendance:

Mr Victor Hewitt

Specialist adviser

1207. The Deputy Chairperson (Mr McCartney): Before I welcome the witnesses to today’s proceedings, I apologise on behalf of the Committee for the delay. I am sure that everyone can appreciate that the events of Saturday night and last night have disrupted business. A number of members of this Committee, including the Chairperson, have had to attend an emergency meeting of the Policing Board.

1208. I welcome Sir Alasdair Fraser, Mr Ian Hearst and Mr Jimmy Scholes from the Public Prosecution Service to today’s proceedings. You will be aware from previous evidence sessions that we expect you to make a short presentation, at the end of which I will invite members to ask questions.

1209. Sir Alasdair Fraser (Public Prosecution Service for Northern Ireland): Thank you very much, Chairperson. We fully understand the exceptional circumstances that have sadly arisen. I welcome the opportunity to speak today on the work undertaken to address the financial implications of devolving policing and justice powers. With me today are Jimmy Scholes, the acting deputy director of the Public Prosecution Service, and Ian Hearst, an assistant director, who has responsibility for finance.

1210. My service made a submission to the Committee in response to the specific issues raised about the finance that is available to the Public Prosecution Service. I hope that you will find it helpful if I explain a little of the background to the Public Prosecution Service. The service was established in June 2005 by the Justice (Northern Ireland) Act 2002, which defined the statutory duties and commitments and the legislative framework within which it must provide its services. It is the principal prosecuting authority in Northern Ireland and is responsible for all criminal cases that the Department of the Director of Public Prosecutions for Northern Ireland and the Police Service of Northern Ireland prosecuted previously. At present, our total caseload is just under 56,000 cases.

1211. Since 2005, we have been building a regional service. We have established a headquarters in Belfast and regional offices in Lisburn, Ballymena and Omagh. Yesterday, we received a new office in Londonderry, and I am very happy that, after a number of years, we are able to return to Derry. I am anxious to secure premises in Newry. Funds have already been committed to achieving that, and I contend that those funds should remain available so that, if premises become available, we can fulfill our desire to open premises in that city. Along with the development of the estate, and in line with the roll-out of the service, we have carried out a recruitment exercise, which has resulted in an increase in our staffing levels from 170 to 570 — our full complement will be in and around 610 persons.

1212. I hope that the background that I have provided goes some way to explaining the year-on-year increase in expenditure, including revenue and capital, as set out in the table at section (D) of our submission. Now that we have reached what might be described as an almost steady state concerning accommodation and staffing, the service can accurately predict and control 75% of its costs. The remaining 25% of costs relate to expenditure on counsel fees.

1213. I understand that, last week, the Committee heard evidence from the Court Service and from the Legal Services Commission on the pressures that they face owing to mounting legal costs and the unpredictability of those costs. My service is not immune from those pressures either. We have sought to address the issue of counsel fees in the context of a challenging 2007 comprehensive spending review (CSR). That review introduced a number of measures, including restricting the use of senior counsel to a limited number of cases; using our own staff in the Magistrate’s Court and, increasingly, in the County Court; and the careful management of counsel fees paid, particularly in high-cost cases.

1214. We have had to meet a number of other pressures, and, in order to do so, we have had to freeze vacancies among administrative grades. By not recruiting 40 staff when vacancies arose, it was possible for the service to meet a pressure from counsel fees of £1·15 million. That pressure will continue during the current CSR period. In our submission, we have identified other pressures, including costs that may be awarded against the prosecution, and costs associated with preparing the service for its status as a non-ministerial department. We have included a bid of £150,000 to assist with the resource implications of the latter. That money would cover the anticipated costs arising from our having such status and would go towards, for example, establishing a private office, reinforcing our finance team and securing internal audit services to support the Public Prosecution Service as it faces the increased scrutiny that will arise on devolution.

1215. The submission also provides details of further pressures anticipated to arise in future but for which a bid at this time has not been made; namely, the service’s response to the Saville Inquiry, the findings of which are now due to be published in 2009, and new work that will arise from the Serious Crime Act 2007.

1216. In conclusion, I seek to assure the Committee that, although the Public Prosecution Service is a relatively young organisation approaching a steady state, the underlying costs and pressures that contribute to its funding requirements are now better understood and quantified.

1217. In giving evidence, I am fully aware of the financial constraints that apply and that lie ahead. I have sought to identify the significant issues that we will face, and to disclose fully to the Committee any concerns that I hold. I am grateful for the opportunity to speak to the Committee.

1218. The Deputy Chairperson: Thank you. I note that no Committee members in attendance at present have any interests to declare.

1219. In your submission, you mention measures to limit senior counsel in certain cases. Can you give me some impression of what that will cost to achieve, and what will be the quality of justice be as a result?

1220. Sir Alasdair Fraser: At the beginning of the financial year — looking at what I described as the challenging budget that we face — our management committee decided that it was important that the Public Prosecution Service took immediate steps to ensure that it could live within budget. One of those factors was a decision to restrict and limit the use of senior counsel. It was the experience here over many years that senior counsel was engaged, both by the prosecution and the defence, in cases in which they would not be instructed in England. I suspect that that practice grew by reason of magistrates being willing to issue a certificate for two counsels to defendants, and the prosecution’s wishing to present itself as treating the case in an equal way in instructing senior counsel.

1221. I consider that no longer to be appropriate. I have sought to limit the instruction of senior counsel to various categories of case, which include murder, manslaughter, serious sexual offences such as rape, and serious motoring offences such as causing death by dangerous driving. I have chosen those cases because, principally, they encapsulate the more serious cases that proceed to trial, and they also, in my experience, are cases that cause considerable concern across the community.

1222. I am not in a position to give the Committee a precise figure on savings. However, I am certain, by reason of fact, that the Public Prosecution Service can live within budget, having not filled a number of vacancies, as a result of which we have made significant savings. I can provide the Committee with a figure at the end of the financial year.

1223. The Deputy Chairperson: You have talked about your budget’s unpredictability. Do you feel that there will be an increase in the very-high-cost criminal cases, and what pressure would that put on your budget?

1224. Sir Alasdair Fraser: The fundamental problem is that my service is demand-driven. It does not have the facility to use the normal budgetary techniques of prioritising or cutting down work. That option is not available to us. I suspect that the Public Prosecution Service is rather like the Fire and Rescue Service — if there is a fire, we attend it. It is difficult to predict in a year’s time what the number of high-cost cases will be.

1225. As matters stand, and as the sad events that have occurred in the course of the past few days demonstrate, it would be reasonable to assume that the present level of high-cost cases will continue. Our problem is in providing accurate accruals in order to provide reasonable costings to the Treasury or, on devolution, to the Department of Finance and Personnel.

1226. A number of variables may or may not arise in each case. For example, an expected plea may become a contest, and an expected contest may become a plea. There may be unanticipated difficulties in cases, or an extraordinary event may cause slippage. Recently, for example, the profession was concerned about the level of remuneration that was being paid, and a number of serious cases that perhaps should have been tried this year were moved into next year.

1227. All those factors may influence costs, and they are not included in the 75% of costs that we can master. Those other costs are much more fluid.

1228. The Deputy Chairperson: What impact has the Criminal Justice Order 2008 had on your workload, and how do you envisage it will affect the Public Prosecution Service?

1229. Sir Alasdair Fraser: If you have the Serious Crime Act 2007 in mind, two matters arise from that piece of legislation, the more serious of which for us is that Parliament has given us a statutory responsibility for civil recovery. When deciding whether to prosecute, the prosecutor may conclude that the evidence is insufficient to support a prosecution but sufficient to support a civil action against the putative defendant. In those circumstances, we must acquire the skills of a civil practitioner in order to pursue that action through the High Court.

1230. The possibility of such an arrangement is an unusual development, and only two agencies are empowered to act in such a manner: the Serious Organised Crime Agency (SOCA); and the Public Prosecution Service. At present, SOCA pursues civil recovery. However, within a limited period — we have not been informed of its duration — responsibility for what, in effect, the Assets Recovery Agency was doing will pass to the Public Prosecution Service.

1231. Serious crime prevention orders is another aspect of the 2007 Act. It is now open for the prosecution to apply for such an order in the High Court as a civil matter, or, on conviction, in the Crown Court. The orders, which cover a range of conduct, are a significant development. We recently applied for, and obtained, the first such order in the United Kingdom. We obtained a second order relating to persons involved in the smuggling of fuel, and the court ordered that that person, or persons, could not become involved in the purchase, sale, possession or transmission of fuel for a period of five years. That is a new area of work that will develop over two or three years.

1232. The Deputy Chairperson: We may return to that subject at the end.

1233. Mrs Hanna: Good morning and welcome. What reform is necessary to control counsel fees? For instance, is there a cap on fees? Will you explain the charging scale for counsel?

1234. Sir Alasdair Fraser: I have been director for 20 years, and there has never been a year in which there was not a difficulty in settling fees with the Bar. My service has acted quite properly, and it settles fees largely on a case-by-case basis. Scales of fees are applied to about 15% of cases, and there is a read-down from that scale. However, the remaining 85% of cases are examined individually by a senior member of the department, who may be in discussion with counsel.

1235. It is a distinguishing feature here that counsel negotiates directly on its fees, whereas in England the clerk to chambers carries out those negotiations. Owing to the fact that counsel negotiates directly here, I have always required those negotiations to be conducted by a senior member of staff on my behalf, in order to ensure equality of arms and that my staff are not overborne in their responsibility to protect the public purse.

1236. We consider that we pay fees that are affordable, fair and reasonable for work done, and it is on that basis that we approach the formulation of a fee in each case. Extraneous factors may influence that decision; for example, 2005 statutory rules for legal aid set out fees in the form of an order. Obviously, we are now aware what the defence pays, and I accept that that may have had an inflationary effect on prosecution fees. The Bar would contend that the position has always been that the prosecution, historically and currently, pays less than the defence is paid out of the legal-aid fund, despite the fact that public moneys are furnished through both organisations.

1237. This legislature may wish to consider whether the current arrangements are desirable or whether an opportunity exists for a more radical approach to be taken, perhaps with a central authority’s taking responsibility for fees. However, in this rather lengthy answer, I am seeking to explain how we assess individual fees at senior level and take decisions, and to outline the difficulties that we face. We have in hand a working party — of which the Court Service is an observer — to prepare a graduated scale of fees, if that is the system that we wish to adopt.

1238. We are looking closely at the Crown Prosecution Service in England to ascertain whether we consider its arrangements to be effective and affordable. If we adopt its arrangements, that will bring a new transparency to the basis on which fees are calculated and paid. Of my own volition and without being asked, I have decided to publish annually the earnings of counsel whom I instruct. The public should be able to reassure itself that there is openness and accountability, and that what is being done is not being done behind closed doors.

1239. Mrs Hanna: Thank you very much. I was going to ask you whether you planned to take a different approach, but you have answered that question to some extent. However, I am still unsure whether you feel that adopting England’s arrangements would be more financially efficient.

1240. Would you ever consider capping fees?

1241. Sir Alasdair Fraser: The idea of capping fees is not something that one can rule out. However, as a prosecutor, I would say to the Minister responsible that that action would be more appropriately taken by a Minister.

1242. The figures that the Committee received last week on the average cost of the defence that is funded by legal aid are of some interest. I understand that you have received evidence that the average cost is £13,887 per case in Northern Ireland and £6,300 per case in England and Wales. I must be cautious in what I now say, because I am not certain that the factors that I have weighed, in calculating that equation, are exactly the same as those that the Legal Services Commission used in making its calculation. Equally, I must recognise that, in a case in which I am paying counsel to prosecute, I should not pay, for example, for five separate sets of counsel and five separate sets of solicitors to defend. Therefore, it may be that I am not comparing like with like. However, the average cost that we have calculated for criminal court cases for this financial year, 2008-09, is £5,800. The financial year is not yet over, however, so that remains a provisional figure.

1243. Whether or not the calculations are comparable, there is clear blue water between what we appear to be paying and what legal aid appears to pay. There is a complicating factor, however. It is a Government precept that there should be equal or like pay for equal or like work. There may be an argument that, if the figures are comparable, too great a gap exists.

1244. Mr Attwood: I have two or three questions. Mr Scholes may be able to help me with the first one. From the useful paper that you gave the Committee, I am unable to work out your ideal top-line requirement in the years 2009-2010 and 2010-11. You have given us figures for the devolution-funding bid and for total anticipated pressures, but then there is a separate figure given for a shortfall in counsel fees for this year, and so on.

1245. This is an evidence session to determine the funding that is required for the devolution of justice powers. Let us assume that those powers are to be devolved on 1 April 2009 — the start of the financial year. What have you identified as your top-line pressure over the next two years, and what will your top-line pressure be if you are to fill the 40 vacancies on which there is, at present, a moratorium?

1246. Sir Alasdair Fraser: I understand the question. We have sought to present our response in answer to the particularity of the questions raised. However, to rise a little above that, the CSR 2007 was challenging, particularly so on counsel fees. Our bid was not accepted, and we received a reduced bid of around £6·8 million, which we knew immediately was not enough. Therefore, we initiated a moratorium on the filling of vacancies. Those vacancies arose in a rather haphazard fashion and could not be predicted, nor could the range of skills that we lost be predicted. The moratorium was a rough but necessary means of ensuring that we could pay our bills at the end of the year.

1247. Our spending in this financial year has demonstrated that, with additional funding of around £1·15 million for counsel fees, we will be able to live within budget. We have identified the resource implications of the devolution of justice powers. The financial side will have to be beefed up somewhat, and a private office will have to be provided and a more focused internal audit conducted.

1248. Taking into account the additional bids to cover counsel fees, costs awarded and the resource implications of having non-ministerial department status, the total devolution funding bid for 2009-2010 is £1·6 million. That figure rises by a small amount for the third year of the CSR period. Those figures are founded on a rigorous approach, as a result of our experience this year. If we were to be allocated funding for those additional bids over the next two years, we could end the moratorium on filling vacancies.

1249. My approach is to be as forthright as I possibly can be. I understand that if policing and justice powers are devolved, there is little purpose in my telling the Committee in 12 months’ time that I cannot remain within budget.

1250. In our submission, I also included the civil-recovery issue, which we are not yet ready to bid for, because the specific responsibilities for that have yet to be determined. The Attorney General has not yet issued advice as to who should do what and when, and SOCA has not yet indicated its intentions. Therefore, we have not dealt with that issue yet. However, I put that down in good faith as a marker.

1251. I also put down as a marker the issue of the Bloody Sunday Inquiry report. In previous years, we have tried to work within our resources, but we are now stretched financially. In the scheme of things, the amount of money that is involved is not huge; however, it is a significant amount of the taxpayer’s money. I thought it wise to inform the Committee of the actions taking place in respect of that. The Committee should also be made aware of other matters, such as the Historical Enquiries Team and incentivisation. There are streams of funding that assist that.

1252. Mr Attwood: Your explanation is much appreciated, because, in previous evidence sessions, some of the witnesses from other organisations were a bit polite in setting out their true budgetary position for the next couple of years. You have not been impolite, but you have been explicit. However, what is the bottom line? You spoke about a bottom line of £4·5 million, before the costs of filling the 40 vacant posts are included. Assuming that there is no further issue around counsel fees, is that figure accurate?

1253. Sir Alasdair Fraser: Yes. If I were to enter into a process of negotiation, I would advance what the bottom line was from the start. However, I am not in that position.

1254. Mr Attwood: For the purposes of the Committee’s report, the bottom line for the next two years of the current CSR period, over and above your current budget and excluding staff costs for filling 40 posts, is £4·5 million. On the issue of the moratorium on filling staff vacancies, in your submission, you state that a shortfall of 40 posts represents a 10% reduction in the overall staff complement. Therefore, does that reduction not — these are my words — have a disproportionate impact on your efficiency and effectiveness? That suggests to me that you must be getting close to that stage.

1255. Sir Alasdair Fraser: Through hard work and good will my colleagues have carried an extra burden. It is my judgement that that is a short-term commitment, not one on which I can rely in the long term. We did it because we had to do it. I would like, at the beginning of the next financial year, to begin to fill those vacancies. The moratorium has had an adverse effect. For example, we have been the subject of criticism from Criminal Justice Inspection about the work of notifying witnesses and victims of their requirement to go to court and the assistance that we as prosecutors should give them. The cuts have exacerbated the problems in an area in which we were found to be not perfect.

1256. Mr Attwood: I have a lot of sympathy with your view on that. I do not think it is sustainable to continue the moratorium on the hiring of staff for, for example, the next two financial years. You and I, and your colleagues, have had enough conversations about how the Public Prosecution Service (PPS) might be. We have to face up to the issue of the 40 unfilled posts.

1257. I think that the Committee heard last week that the amounts spent on defence fees — £14,000 here and £6,000 in Britain — were for high-value cases, not for the general run of cases. Are you saying that the PPS’s payments to counsel amount to less than £6,000 for high-value cases, or are you saying that the payments to counsel in the general run of cases amount to less then £6,000?

1258. Sir Alasdair Fraser: I am saying the latter. That underlines the caution with which I introduced the subject.

1259. Mr Attwood: I appreciate that. What do you think is the average payment to prosecuting counsel in high-value cases?

1260. Sir Alasdair Fraser: I am not certain whether an average in that sense is useful.

1261. Mr Attwood: Comparing the figures —

1262. Sir Alasdair Fraser: I would be hypothesising, which I do not wish to do.

1263. Mr Attwood: If you can give the figures in respect of the general run of cases, why can you not give some indicative figure in respect of high-value cases?

1264. Sir Alasdair Fraser: There is, on the defence side, a clear definition of what a high-cost case is. I think — and my colleagues will correct me if I am wrong — that every case that exceeds 25 days falls into that category. The PPS has a system of scale fees and special fees. Special fees make up 85% of our business and are the subject of individual negotiation. I could certainly prepare a costing that related only to special fees, taking out the 15% — that would cover all of the work of the Magistrate’s Court, but as we are mainly doing it, there would not be much there. It would also include the less serious indictable cases. We can do that, and if it will be of value I will write to the Committee with that information.

1265. Mr Attwood: It would be interesting to compare and contrast, subject to the general warning about figures and statistics.

1266. When will the High Court advocate system be in place? The Court Service said last week that its proposals in respect of reducing costs in very-high-value cases might take a number of years to take effect. Is the advocate system a short-term proposal, or will it be three or four years before it is in place?

1267. Sir Alasdair Fraser: Once we have completed our costing and we know what we are biting off, as it were, I intend to move during the course of 2009-2010. I anticipate that we will start slowly in each of the four regions and that we will increasingly use the senior public prosecutors once they have completed their training. The experience in England and Wales is informative; by using in-house lawyers in the Crown Court, they have reduced their reliance on counsel by 11%.

1268. It is important that there be a strong, healthy, vigorous Bar. It is equally important that, where we have rights of audience in the Crown Court, we use them to take advantage of the experience that senior public prosecutors will achieve, create career opportunities for them and raise the significance of the job of public prosecutor in the public estimation. That is something to which I am wedded, but I want to move carefully.

1269. Mr Attwood: The financial impact of that in year one might be a 1% reduction in expenditure on counsel’s fees.

1270. Sir Alasdair Fraser: I do not want to use the word seedcorn, but I will. I do not want to find that by designating a small number of experienced lawyers I am losing timeliness. In an ideal world, I would like to replace the senior public prosecutors with other lawyers to carry out their casework, train the senior public prosecutors and get them into court. When they are in court, there should be savings in counsel fees.

1271. Mr McFarland: The Court Service told us that the time between the end of a case and the bill filtering through the system could be up to two or three years. Does that also affect your budgeting? It makes things difficult if you have to wait two years to know what money is coming down the line.

1272. Sir Alasdair Fraser: It does, and that has been an issue. Counsel have differed in the speed with which they have provided my service with the necessary information for an assessment of what fees should be paid and an audit trail. My regional prosecutors, who have a delegated notional budget for counsel’s fees, know exactly what accruals are in existence each month, and they are under pressure to take steps to ensure that the bills are paid at the earliest possible time and that the accruals do not distort our budget.

1273. You are absolutely right that there is an issue. However, as long as we are calculating fees in the manner that I described, and until we move to a more arithmetic or mechanical method, that problem will remain.

1274. Mr McFarland: There is a function by which you can recover 22·5% of assets in criminal cases. Is that negotiable with HM Treasury? If you were stuck, could you increase that to 40%? How will that affect things when you take on the civil cases? Presumably, a similar system will exist. Is the percentage in civil cases likely to be 22·5% as well, or are we likely to see a different system?

1275. Sir Alasdair Fraser: The incentivisation money has a tendency to be notionally allocated to every purpose. If we raise an issue of funding, we will likely be told to use that money. As a matter of fact, there are limitations on what we can do with the money. The immediate cut is 50% to HM Treasury. Of the remainder, 45% goes to my service — which, as you rightly said, is 22·5% of the total. Another 45% goes to the investigating body, and the other 10% to the Court Service.

1276. As you will see in our submission, we have around £1·1 million of incentivisation money in 2008-09. The Home Office has rules to guide the use of that money; it must be used at least in part to promote and secure further confiscation proceeds. Therefore, I will willingly allocate part of that money for that purpose. I will increase by one, perhaps, the numbers of staff available to do the work. However, that will not deal with everything. The money is ring-fenced for three years; I have to use it during that period.

1277. On the downside, although Treasury or other Government Departments might suggest that we can fund any particular problem from that money, it is an unreliable source of funding because it depends entirely on whether a confiscation order is made at the end of criminal proceedings. At present, there are not, as I understand it, arrangements in place for civil recovery. Applying the logic of the scheme, it would seem desirable that the same sort of arrangement might be made. However, there might not, perhaps, be such a significant part paid to the investigator, because with civil actions we would be taking it forward.

1278. Mr McFarland: The Assets Recovery Agency — now part of SOCA — deals with civil cases. If no criminal case is pending, and none is likely to be, it pursues the assets of organised crime and criminals. Presumably, its investigators produce a case, which you then prosecute.

1279. Are you saying that that entire investigation side will become more like it is in the United States, in that the PPS will have detectives with surveillance assets to find the evidence and drum up the case that you will prosecute, or will SOCA continue to do that bit, with you just conducting the prosecution? I am not sure what is going to happen in civil cases.

1280. Sir Alasdair Fraser: You have raised a difficult issue. There is a serious crime task force, which seeks to co-ordinate strategy in the investigation of the sort of offences that you have in mind. Nonetheless, there remains a clear distinction between the investigator and the prosecutor. We have followed the approach that was set out by the Royal Commission on Criminal Procedure, which is to maintain a difference between prosecution and investigation. Others favour what you have described; a much closer working relationship between investigator and prosecutor.

1281. Under current arrangements, we are required by the Justice (Northern Ireland) Act 2002 to give prosecutorial advice to the investigator. I am happy that investigators are increasingly taking advantage of that. We provide advice, perhaps, even before someone has been arrested, as long as that falls within the remit of prosecutorial advice.

1282. Perhaps it is a judgement for other people to call. My view is that, as matters stand in the society that we serve, it is better to have a clear line of distinction between the investigator and the prosecutor. There is always a risk that, if those roles are melded together, the prosecutor begins to lose objectivity in the pursuit of the chase.

1283. Mr McFarland: Under the current proposals, you will come across as a non-ministerial Department. Traditionally, it is vital that the Public Prosecution Service be independent and be seen to be beyond influence. Is there scope for more co-ordination between the broader Court Service and your administration, which would save money without impinging on the service’s prosecutorial impartiality?

1284. Another question that we have been asking for some time is where the Public Prosecution Service should be based. Does it need a home? Logically, the service would be attached to a Department, and the Committee has discussed whether that should be the Office of the First Minister and deputy First Minister or the Department of Finance and Personnel (DFP). Have you any thoughts as to where your home might be?

1285. The Deputy Chairperson: That is getting away from the subject of finance.

1286. Mr McFarland: Yes, but when the Committee discussed the advantage of having the Public Prosecution Service in front of us, that was the only outstanding question from phase 1 of the policing and justice discussion. I thought that the Committee might take advantage of Sir Alasdair being here in order to ask it, rather than bring him back in another three or four weeks’ time. Since he is here to discuss the effective and efficient co-ordination of administration, it is fitting to raise the question of where the Public Prosecution Service should be based.

1287. The Deputy Chairperson: If the question is one of efficiency, the Committee can proceed.

1288. Sir Alasdair Fraser: At an early point, and to underline the independence of the service, we considered that the best location would be in the Office of the First Minister and deputy First Minister. I recognise that this is a decision that will be taken by others — I can offer only my own views.

1289. In a financial context, it is important that the Public Prosecution Service should not depend on a sponsor Department for its finances; rather, it should be placed in the position that it negotiates a settlement with DFP, perhaps with the support of a Minister. Someone will certainly have to look after the interests of the Public Prosecution Service at meetings of the Executive which discuss finances and the like — and, perhaps, in the Assembly.

1290. There are so many issues there that are not issues for me as director of the Public Prosecution Service. They are clearly political and procedural matters that it will be for the Assembly to determine. For my part, I would be content to be in the Office of the First Minister and deputy First Minister. Without wishing to appear unduly negative, I am not particularly attracted to the justice Department, which I think will essentially be an operational Department that will not truly meet my needs in taking quasi-judicial decisions independently and dispassionately.

1291. On the matter of administrative costs, Mr McFarland’s suggestion is good. If there are services that can be purchased in a common way, it makes sense to do that. To an extent, we are already in that position, because a number of Departments and agencies avail themselves of a range of services from HR Connect, for example. Therefore, that suggestion is very much in the service’s mind.

1292. There is also the common pursuit of the Causeway project, which will link the various agencies in a very close and direct way in sharing information. That sort of approach is the future. Resources will not increase; we must make the most of what we have and have the confidence to work more closely and effectively while maintaining our respective independence.

1293. Mr Hamilton: The matter has been well aired, but I want to go back briefly to the issue of counsel’s fees and the deficit of £1·1 million over the next two years, which Alex and other members were talking about. That problem is not going away any time soon. Over the CSR period, there is a gap, but that gap is likely to continue. The PPS faces a perennial problem. Is it a fair assessment to say that, without the swift and successful enacting of some of the measures that you talked about, the problem will be with us for the foreseeable future?

1294. Sir Alasdair Fraser: The instruction and briefing of independent counsel will always be akin to a marketplace. There will always be some debate and discussion as to what the market rate should be. For my part, the future lies in settling a scheme that is open, transparent, accountable and applicable to cases, and that brings a greater certainty to the settling of them. If we can achieve that, then the rubbing points — which do exist — will be reduced. I do not want to place the Bar in a position that it would view as wrong. It is vital for our society that there be a strong, vigorous and independent Bar, and that public funds be available for the Bar to provide services; to prosecute and defend. I do not think that any of us here would contend otherwise. However, within that context, I will be working to ensure that there is a reduction in the rubbing points.

1295. The Deputy Chairperson: Does your agency pay value added tax (VAT), and what will the application of that be at the point of transfer?

1296. Sir Alasdair Fraser: Under the Finance Act 2008 we pay VAT to counsel, but that VAT is recouped and has no effect on my budget. It is money that we pay, and it is money that is brought back. It is governed by the 2008 Act. The VAT returns are managed by the financial services division of the NIO; presumably, on devolution, that will transfer to DFP. There are arrangements in place to address that.

1297. The Deputy Chairperson: Do financial considerations enter into the decision on whether to proceed with a prosecution?

1298. Sir Alasdair Fraser: That is a very difficult question. It is not something that I have experienced, and I cannot recall a single case where that was a factor. However, if the witnesses were 10,000 miles away, and if the case was very minor and, perhaps, of a technical nature, the prosecutor would have to consider whether the public interest required that expenditure to meet that prosecution. In any event, alternatives to prosecution might be available. To answer your question, it could be a public interest factor that would be relevant, but it has not happened.

1299. The Deputy Chairperson: Finally, are there any issues that you have not touched on that may confront you in the future, and which might have some impact or pressure on your budget? I have asked the same question of all witnesses.

1300. Sir Alasdair Fraser: This is a hostage to fortune. I have sought to be as forthright as I possibly can. None of us has the ability to predict events that have not occurred.

1301. The Deputy Chairperson: The Committee may have some additional questions, but it will put them in writing and seek responses. Thank you.

24 March 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Alan McFarland


Mr Eddie Gaw
Mr Sheamus Hamill

Police Rehabilitation and Retraining Trust

1302. The Chairperson (Mr Spratt): I remind members to turn off their mobile phones because they interfere with the recording equipment. Hansard is recording today’s evidence session and, therefore, everything that members say will be recorded.

1303. I welcome Eddie Gaw, chief executive of the Police Rehabilitation and Retraining Trust (PRRT), and Mr Sheamus Hamill, chairman of the board of directors. You should make a short presentation, after which members will ask questions. The Committee is running close to quorum, but I hope that other members will join soon.

1304. Mr Sheamus Hamill (Police Rehabilitation and Retraining Trust): The Police Rehabilitation and Retraining Trust is a company limited by guarantee that was formed on 2 March 1999. Therefore, 2009 is our tenth anniversary. The trust is funded by the Government through grant aid, which, this year, amounts to £2·2 million. We must find our revenue and capital from that sum — it is one funding package.

1305. Our sponsoring Department is the policing policy and strategy division of the Northern Ireland Office (NIO). A management statement and financial memorandum is in place between the trust and the NIO. The trust is non-profit making and is what is known as an arm’s-length body. It has rigorous governance structures and follows Treasury guidance and other guidance on governance issues.

1306. The trust was established following a 1994 internal review of policing. That review identified the need for changes to the police service in subsequent years. Research was conducted among serving officers, and they identified four main areas in which they felt that they would need help and support in the event of a change in policing in Northern Ireland and a downsizing of the service. Those four main areas were: careers guidance and personal development support; training and education; psychological therapies; and physiotherapy.

1307. In essence, those areas break down into two main streams. One focuses on developing vocational and employment opportunities for officers with particular emphasis on redeployment, self-help and self-reliance and the other aims to relieve the distress and hardship of officers who have been physically injured or psychologically damaged in the course of their policing service. Until two years ago, that is what the trust had done since its establishment.

1308. Over the past two years, we have sought — with the approval of our sponsoring Department — to expand our services to other areas. We now provide psychological and physiotherapy services to former military personnel in Northern Ireland. We also offer services to serving police officers through their occupational health and welfare unit, and we provide services to the Prison Service Trust, which came on stream from Christmas 2008. We also formed a subsidiary company called Futures (NI) Ltd, which is a wholly owned company that has the potential to provide our services to other elements of the public sector. We may say more about that company during the question-and-answer session.

1309. In fulfilling its purpose, the trust aspires to be a centre of excellence for the provision of services in the field of rehabilitation, careers, education, training and employment, and in supporting those with psychological or physiotherapy needs. The trust’s model is very successful in handling the people issues that relate to the downsizing of the Police Service, and in treating some major health issues associated with former and serving officers.

1310. As a provider of services, we see the necessity for the trust’s work continues post-2011. Moreover, the model that PRRT has developed can be used across the entire public sector, either to manage sickness absence and allow people to return to work sooner, or through outplacement support during any subsequent reorganisational or structural change. Our services could also be accessed by victims’ groups or similar groups.

1311. The trust has two concerns. As with many other groups, we are concerned about funding post-2011, because, at the moment, we have been notified of our funding only until 31 March 2011. Our other concern is that we may have to leave our current site at Maryfield.

1312. The Chairperson: The estimated costing of relocation from your present site by 2011 is £5 million. That appears to be in order to facilitate a rebuild of Northern Ireland’s forensic laboratory on your current site at Maryfield. Would that allow for all of the costs that are involved in relocating? Would it be necessary to have additional staffing? Would it also allow for improved or updated IT equipment, given the facilities that you have on the site to carry out some of the functions that you mentioned during the opening presentation?

1313. I understand that you already pay rent to the Northern Ireland Office. Therefore, the Northern Ireland Office gives you a grant, but it takes money back off you for rent, and so on. Can you give us an idea of what that figure might be? Have any discussions about the relocation taken place? Have you been notified officially of that, in writing or otherwise? If so, when were you notified?

1314. Before you say anything, I declare an interest as a member of the Northern Ireland Policing Board. I do not think that there are currently any other interests in the room.

1315. Mr Eddie Gaw (Police Rehabilitation and Retraining Trust): At the moment, the formal position is that the Northern Ireland Office, our sponsor Department, has written to inform us that, with effect from March 2011, we should no longer be at the Maryfield site. That letter arrived late in the last calendar year. On that basis, we undertook some initial costings of alternative accommodation, which is where the figure of £5 million came from.

1316. That amount is probably a ballpark figure for replicating, at a basic level, what we have at Maryfield. We have since undertaken some further work to replicate what we are doing and expand it in relation to new IT and further staff. We came up with a figure of about £8·5 million for a new building on a greenfield site. The figure of £5 million can probably now be translated to about £8·5 million for a greenfield newbuild.

1317. The Chairperson: There is an indication from the Northern Ireland Office that there are buildings that might be suitable and that it would help you to relocate.

1318. Mr Gaw: The Northern Ireland Office is liaising with Land and Property Services to assess what buildings are available. We had a meeting with our sponsor Department as recently as last week. Despite a number of reminders from our sponsor Department, Land and Property Services has not, as yet, identified any buildings.

1319. The Chairperson: The figure of £8·5 million is in relation to a newbuild. However, if another building were located, the figure would be £5 million. Is it correct that what is being suggested is a relocation figure of £5 million?

1320. Mr Gaw: The £5 million figure was based on our initial findings. We viewed a couple of buildings, and it was based on what we would need to do to turn one of those into a clinical, medical and rehabilitation centre.

1321. The Chairperson: My understanding is that the PSNI buys in other services, so there is a possibility of picking up any slack. In relation to physiotherapy to get officers back on duty, do you pick up some of the work of the occupational health and welfare services branch?

1322. Mr Gaw: Very much so. We are working with the occupational health and welfare services branch on the physiotherapy side and the psychology side. We are formalising contracts with the branch in relation to those areas. The focus is about getting people back to work. As Sheamus mentioned, it has made us give some thought to working with other public-sector bodies on the absentee-management side of things.

1323. The Chairperson: In relation to the figures, you are basically selling your services to other people as a provider. What sort of ballpark figure, on a yearly basis, do you bring in from those other organisations, including the PSNI?

1324. Mr Gaw: As Sheamus said, there are different contracts. We work with the Royal Irish Aftercare Service, which is a separate contract, and we bring in a significant amount of money from that. In relation to the PSNI, we bring in only enough to cover one psychologist’s costs and half of a physiotherapist’s costs — perhaps between £70,000 and £100,000.

1325. The Chairperson: What would the other significant sum be with respect to the Royal Irish Aftercare Service?

1326. Mr Gaw: That contract brings in £400,000 a year.

1327. The Chairperson: Are there any legislative proposals or refurbishment needs that might put your budget under pressure n the foreseeable future?

1328. Mr Gaw: The big forthcoming pressure will be with respect to the requirements of the Disability Discrimination Act 1995 (DDA). We are not DDA compliant at the moment and, as you might guess, that has practical implications for a number of our clients. In addition, there are implications for our reputation, so I have been speaking with the Northern Ireland Office about an additional capital budget to make PRRT DDA compliant. Initial soundings from our sponsor Department have been very positive regarding additional capital availability for the DDA work.

1329. Mr Hamill: In addition, we are at full capacity on our present site. If we were to take on additional work, we do not have enough space within our existing building’s footprint for further consultation, treatment or, indeed, training rooms. We would either have to resort to some type of temporary structures or consider building a permanent, purpose-built structure.

1330. Mr Gaw: We have looked at the cost of leasing spare capacity in, for example, health centres, but that would be a hugely expensive way in which to go about our business.

1331. The Chairperson: You said that you have identified possible opportunities to use your expertise with victims’, and other, groups at other centres. I assume that that would be cross-community work with groups outside the security forces?

1332. Mr Hamill: Very much so. The model that we have developed and refined is applicable to any group in Northern Ireland, and we would be prepared to provide our services — either in retraining or, more particularly, with respect to psychology and physiotherapy — in any part of the Province to any group that fits the spirit and criteria under which we work.

1333. Mr Hamilton: I commend you for the good work that you do in difficult circumstances. The £8·5 million capital requirement that you mentioned is obviously the most significant pressure on your budget. If you were to have that facility, in order to sustain yourselves in the future, how confident are you about the contracts that you have outlined, such as those with the police and the Royal Irish? I understand that it makes good business sense to work with victims’ groups in order to expand your pool of clients, but, in light of the level of investment required, are you confident that your existing contracts are secure enough to sustain your organisation for the lifetime of any new premises?

1334. Mr Hamill: In order to answer that question, I must break it into a number of parts. Our contract with the Royal Irish is to provide services for three years, with an option to renew for a further two years. Obviously, we do not know whether it will take up the option to renew — that is a matter for it.

1335. Everything that we do is based on cost recovery. For example, although the Royal Irish contract is for £400,000, the regiment gets £400,000 of services. We are a not-for-profit company. The occupational health and welfare services branch contract is a contract in the sense that it is has time-renewable points at which the PSNI can, quite rightly, review the arrangement to ensure that it is getting value for money.

1336. If we were to develop any other new business streams, it would be very much around a cost-recovery type of business arrangement. That means that if someone wanted to buy our services and we needed to buy in extra staff then that cost is charged as part of the contract. One of the advantages that we see is the non-profit-making part — we are there to provide the services and clients are buying precisely that service, with the associated expertise and support mechanisms developed by PRRT over the past 10 years.

1337. Mr McCartney: Thank you for your presentation. Is most of the trust’s current work on the psychological and physical rather than on career and employment opportunities?

1338. Mr Hamill: At present, it is split fifty-fifty. There are still quite a number of officers leaving the Police Service each year, and that will continue until 2011. Even after that, the officers who leave on 31 March 2011 will be provided with up to two years’ support. We regard our business as being 50% training and careers guidance and 50% psychological and physiotherapy services.

1339. Mr McCartney: Is the cost split fifty-fifty or does it cost more to deal with the physical and psychological side?

1340. Mr Gaw: The cost is probably about fifty-fifty. We have more staff on the clinical side, but we buy in training expertise and academic expertise.

1341. Mr McCartney: Do the psychological and physical services extend to the wider family or is it confined to former personnel?

1342. Mr Gaw: The services extend to the wider family.

1343. Mr McFarland: The original idea behind the organisation was to see police officers through the retirement process by helping with training and looking after those who had been damaged, which will go on for some time. The trust is now contracting out and becoming a private company.

1344. In GB, for example, military veterans have priority treatment on the NHS, which is illegal here. The Minister cannot offer ex-military people here similar treatment because it is against human rights and equality legislation. If the trust is moving outside its original structure and design — to see police officers through the retirement phase — how does offering UDR, Royal Irish Regiment and ex-police officers, in effect, a separate private health service fit in with equality legislation? If the Health Service here is not allowed to treat military personnel in the same way as the rest of the UK, how come ex-police and UDR can access PRRT as a special private health service?

1345. Mr Hamill: I do not necessarily agree that we are a health service. Elements of what we do certainly constitute healthcare in the sense of the psychology and the physiotherapy. The trust was set up by Government in order to provide those services to the police and, in particular, to officers who were retiring or leaving the service. There was a recognition that certain needs existed within that police community. For example, if police clients did not, or could not, access psychological services from us, they would have to access them through the National Health Service or some other route.

1346. The Royal Irish Aftercare Service procures services from us. We responded to a procurement process that it issued and were successful in securing the contract, so we provide those services.

1347. Mr McFarland: Again, that is part of the process of downsizing the Royal Irish Regiment — those organisations were set up to see people into civilian life. The question is one of viability: can we justify the service when 70 officers leave a year, many of whom do not have psychological problems? How do you see the service going forward and making money, unless organisations such as the RUC Benevolent Fund and the UDR Benevolent Fund buy services off you for their ex-members? However, that is no longer part of the downsizing process. I wonder about the legality of that.

1348. Mr Gaw: We are mandated by legislation to provide the services that you mentioned. We are in dialogue with our sponsor Department about broadening our services. Sheamus Hamill spoke about the establishment of a sister organisation called Futures (NI), which will go into the market on a non-profit-making basis. I have held meetings with the Civil Service and local councils to talk to them about any services that we can provide on the health side of absentee management. We will get the legislative side sorted out with our sponsor Department and then broaden our services — we will not be taking on any contracts beyond the vires of what we are doing at the moment.

1349. Mr Hamill: Taking psychological care as an example, in the trust we see somewhere in the region of 350 officers a year, most of whom are former officers. We do not see the same people each year, and, although no one knows why and when psychological trauma manifests itself, our figures support the assertion that we see 350 new people each year. We have not seen any tailing off in those numbers — if anything, the numbers have climbed, albeit slowly, each year.

1350. Our prediction for the next number of years is that there will be a cadre of former officers who end up with some type of psychological disorder that will require an intervention. We provide that intervention in what many people see as a secure environment. Many ex-officers are reluctant to discuss their condition or even their former occupation with GPs. Referrals to us are down to the individual — the individual usually self-refers, although we will see some people who have been referred to us by their GPs. Our clients know that they can come to our organisation on their own without having to tell anyone else about their condition or what they may be experiencing.

1351. With regard to the physiotherapy aspect, we obviously see people who have been involved in very traumatic incidents, such as bomb explosions. However, quite a lot of the people we see are officers who suffer from the wear and tear of the occupation that they had. For example, many officers spent long periods of time on foot patrol walking cross-country with the military, so we see people with lower-limb difficulties and hip problems. We see people with back problems, because they wore body armour or had to sit for long periods in vehicles that were not ergonomically adapted for that purpose. We do not see any diminishing of that need as the retired police population grows and gets older.

1352. Mr McFarland: Can the UDR people, like the Royal Irish Regiment, self-refer, or do they —

1353. Mr Hamill: They come through a different route.

1354. Mr McFarland: Are there are no regular Army personnel here at all?

1355. Mr Hamill: No.

1356. Mr Attwood: There are two points that I want to clarify. The biggest pressure after 2011 will be the new accommodation. I am not clear as to whether you expected that, through NIO processes, alternative accommodation would be identified, rather than looking for a budget line to acquire or build what you have at the moment. Is there any clarity on that?

1357. Mr Gaw: NIO has asked us for an indicative budget to put in its budget line. We go through NIO on this.

1358. Mr Attwood: I appreciate that, but the Chairperson indicated that the NIO might look internally to see whether there was alternative accommodation to relocate the service. Does that seem the more likely outcome at the moment, as opposed to looking for a newbuild budget, a new purchase budget or whatever other alternative there might be?

1359. Mr Hamill: Our preferred choice is to remain on the site that we currently occupy. It is obvious that, if we do remain there, some remedial work will have to be done to the building; it is getting quite old and has not had any maintenance for quite some time. If we have to leave the site, and there is another suitable publicly owned building or location for us to move to, we will require approximately £5 million to make such a move.

1360. A lot would depend on the building that we get in that instance. We might get a building that does not require an awful lot of work done to it; the two or three sites that he have looked at have all been sitting vacant for quite some time and are in a sad state. To turn them into the type of accommodation that we need would require approximately £5 million. A brand-new building on a brand-new site would cost £8·5 million or thereabouts.

1361. Mr Attwood: Do you anticipate being served with a notice to quit Maryfield?

1362. Mr Gaw: We have been served with a notice to quit with effect from March or April 2011.

1363. Mr Attwood: I am mindful of what you said about your workload increasing as more recently retired people cross your door with the range of problems that you identified. Is it not the case that your other core business — giving advice to officers who retire or take severance — will decline with the ending of severance in 2011, subject to any potential future scheme? That core business would decline while the other core business would clearly expand.

1364. Mr Hamill: You are quite right; after 2011, the numbers of officers leaving the police will not be anywhere near current numbers. When we considered the matter a few years ago, we took the view that we had a pool of expertise that could be put to use across the public sector. Whether it be the psychological or physiotherapy side of things or careers guidance, those services are already there and are already being paid for by the public purse. We feel that they have an adaptability across the public sector.

1365. I accept your point that the number of police officers needing guidance on careers and retraining will decline quite a bit. However, there is no reason why our service could not be offered to other elements of the public sector.

1366. The Chairperson: Given that you work with serving police officers, what impact do you feel the recent upturn in terrorist activity will have on your current and future budgets in both areas of your business?

1367. Mr Hamill: Some of this can be a little unpredictable. Certainly, we have received evidence in the past week that some retired officers are anxious and pessimistic about what the future might hold. However, it is difficult to know what effect that is likely to have on serving officers. To extrapolate the situation with the retired police community, it might be that serving officers might feel more under pressure than they have done in the past.

1368. It is one of those things and, as I said earlier in reply to another question, it is difficult to know what triggers psychological difficulties in particular. We have commissioned a piece of academic research, which is under way, that we hope will answer some of those questions in about nine months’ time, when we have done our work. We are looking at whether there are certain triggers.

1369. For example, some academics believe that retirement itself acts as a trigger for psychological difficulties. When officers leave the Police Service, they leave the comfort of their colleagues and their work environment. They end up at home or doing a new occupation and new things; however, sometimes that is not enough to help them deal with problems that have been dormant for some time. Some officers have been retired for 10 years with absolutely no difficulties. One example is a former officer who drove past the scene of a road traffic collision and suddenly, for no reason whatsoever, all types of events came together and an intervention was required from us.

1370. The Chairperson: I will ask a couple of questions that I have asked the other organisations that have appeared before us. Does your agency, as part of the NIO, currently pay value added tax (VAT)? Are you able to reclaim that or does it go directly to the NIO?

1371. Mr Gaw: We pay VAT, but because we are a clinical, medical and educational establishment, a number of our purchases are VAT-exempt. We pay VAT of approximately £140,000 a year; we can claim back about £10,000 a year. Therefore, we pay approximately £130,000 net.

1372. The Chairperson: I am not sure whether we got a figure for rent. On the one hand, the NIO gives you money and, on the other hand, it takes money away for rent each year. What is the figure for rent?

1373. Mr Gaw: The rent is £110,000 a year.

1374. The Chairperson: Does that move up or down?

1375. Mr Gaw: It tends to be stable. The problem in and around the issue of rent is that it is difficult to know what the landlord’s responsibilities are — the lease seems to be lost in the mists of time. In the past year, I have had to start some capital work that I would have thought should be the responsibility of the landlord. Rather than getting into an ongoing debate — there are health and safety issues — we have taken the hit and paid for that work. I do not want to dip into money for front line services to spend on capital projects.

1376. The Chairperson: Are you telling me that the NIO is treating you like squatters in the Maryfield complex at the moment?

1377. Mr Gaw: I could not possibly say that.

1378. The Chairperson: I will not press you on that one.

1379. Mr Hamill: We pay our rent, and, to be fair to everyone, a lot of work has been ongoing to try to sort the problems out. However, we pay our rent, and for that we get nothing. The trust pays for everything else, from the grass-cutting to any other work that may need done in relation to the building. As I said earlier, unfortunately the building is getting quite old and tired, so as time goes on it will soak up more money.

1380. Mr Gaw: We are in debate with the NIO about the responsibilities of the lease, and who does what, but, as I said, there are certain issues on which one just has to bite the bullet and pay, otherwise they will be ongoing for the next two to three years.

1381. The Chairperson: You say that you have to cut the grass; my recollection is that there are fairly big grounds at Maryfield. You could perhaps think about getting a few sheep in, or letting the land as conacre and making a few quid. [Laughter.]

1382. Thank you for those answers. Are you aware of any other issues that could have a material or inescapable consequence for your organisation’s budget? Is there anything that you have not told us about that you suspect may be hurtling down the train lines at you, and which could have an impact on your budget? I suggest that if policing and justice is devolved, and you come back in six or nine months’ time to tell us that you forgot to mention £2 million or £3 million, you might not get a good reception at this Committee. If there is anything, now is the opportunity to put that on the record.

1383. Mr Hamill: As a trust we have always lived within the budget that has been allocated. Until quite recently we only got the budget on a yearly basis; last financial year was the first time that our budget has been allocated for three years. We work with the allocation that is given to us. Like many others who may sit in this chair, if we had more money we could do more things.

1384. We feel that, with the £2·2 million allocated this year, for example, we can do probably about 70% of what we want to do in relation to providing services to our clients and responding to our clients’ needs. If we were allocated something in the region of another £500,000, that would probably allow us to do 90%-95% of what we feel we need to do. However, it is difficult to make predictions about the needs of the retired police community and the serving police community if we continue to do some business for them. If there were capacity for something in the region of another £500,000 per year, that would give us a certain amount of flexibility. Even with our current budget we have increased the number of psychologists in the organisation from three to 11. That in itself says a lot about some of the problems and issues that there are.

1385. In addition to those 11 psychologists, we have a range of associates who are distributed throughout the Province. It is unfair to ask someone to drive from Enniskillen to Maryfield to receive a service, so there are associate psychologists who are paid to provide that service. We do the same with physiotherapy. Again, if we had a little more flexibility we might be able to provide one or two more centres across the Province. By centres I do not mean buildings; I mean people who are already in business and can provide the service that we need through our associate group. There are things like that that would help us to expand.

1386. If the public sector were to see PRRT as a model that could be put to use in helping the wider public sector to address the levels of sickness absence, or to address some of the needs of the other victims’ groups throughout the Province, then we would need some flexibility in relation to our grant allocation to allow us to at least start up some of those new initiatives. I do not imagine that that would involve much more than around £500,000 on top of what we are already receiving.

1387. The Chairperson: I assume that you are referring to Futures (NI). Are you saying that you need an additional figure from Government for whatever work you want to do, that you are already discussing it with the NIO, and that that figure is around £500,000 in addition to your current budget?

1388. Mr Hamill: Yes. If we had that flexibility, it would allow us take the services for our client base from providing 70% of what we want to do to over 90%. That would enable us to cut waiting times — which are very good at the minute, al though we could do more work on that. We could expand our associate practices throughout the Province, and the extra money would give us flexibility to provide new specialisms if we needed them for dealing with other aspects of business. For example, with respect to victims’ groups or sickness management issues, it may well be that we need counsellors, rather than psychologists. We would have to acquire the services of people with those skills so that we would be in a position to dispense the services that a future customer might wish for or need.

1389. The Chairperson: At what stage are your discussions on Futures (NI) with the Northern Ireland Office?

1390. Mr Gaw: We have put a business case to the Northern Ireland Office. It is discussing it with its finance people. There are certain financial obligations to be met and tweaks to be made to the business case. However, the ball is in the court of the Northern Ireland Office at the moment. Shortly, there should be a meeting with some of the senior finance people.

1391. The Chairperson: The figure involved is £500,000?

1392. Mr Gaw: Yes.

1393. Mr Hamill: We see that sum as covering the start-up costs. As I said, any service that we would provide from then would be self-funding. If a Department were to take up our services, the charges would pay for the services. From my point of view, there is an advantage in that there is a non-profit element in that.

1394. The Chairperson: Thank you both for coming along today and making your presentation to the Committee. We may want answers to some additional questions; we will write to you in due course if that is the case. We wish you well.

1395. Mr Gaw: Thank you very much.

24 March 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Simon Hamilton
Mr Danny Kennedy
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr


Mr Adrian Donaldson
Mr Barry Gilligan
Mr Sam Hagen
Sir Desmond Rea

Policing Board

1396. The Chairperson (Mr Spratt): In case there is any doubt, and in relation to certain comments that have been made elsewhere, I want to make it clear that the Committee is presently undertaking very important and absolutely necessary work around the financial implications of devolving a range of policing and justice matters. I also want to dispel any suggestion, speculation or rumour that might exist about “talking up" the figures.

1397. The fact is that the Committee has the authority of the Assembly to undertake this work, and has asked for written submissions from over 20 organisations providing a range of policing and justice services. The purpose of the oral evidence sessions with some of these organisations is to explore further and to probe the extent and reality of the pressures on the policing and justice budget.

1398. The Committee has not yet reached any conclusions about the evidence that it has heard so far. That is a matter to be considered — and which will be considered — later. I expect that it will form a significant part of the Committee’s report to the Assembly in due course.

1399. Mr Paisley Jnr: I think that a message should go out loud and clear from the Committee in line with your comments. If the Northern Ireland Office thinks that it can facilitate the devolution of policing and justice a lot quicker than this Committee — well, we have seen the mess that it has made of that over the years.

1400. The Committee is working strenuously in a hard, robust and diligent way to examine the figures that are brought to us, not figures that we invent. If Departments that are answerable to the NIO complain properly to us, we have a duty as public representatives to take that on board.

1401. If there is to be devolution of justice and policing, we will take on the responsibilities, but only if the money is there to match those responsibilities. The NIO will not be getting off cheap on this one. The Secretary of State can answer those issues when he comes before the Committee.

1402. The Chairperson: Those who have been making those comments will well know who I am referring to.

1403. Mr Paisley Jnr: I think he is called Shaun, is he not?

1404. Mr Kennedy: No clues, please.

1405. Mr Paisley Jnr: That is your starter for 10.

1406. The Chairperson: I will not go any further on that matter. I will leave you to make up your own mind.

1407. We move now to the Policing Board oral evidence session. I welcome Professor Sir Desmond Rea, chairman of the Northern Ireland Policing Board; Barry Gilligan, the vice-chairperson; Adrian Donaldson, the chief executive; and Sam Hagen, director of corporate services. You are very welcome.

1408. I ask members to declare any interests. I am a member of the Northern Ireland Policing Board.

1409. Mr Paisley Jnr: I am a member of the Northern Ireland Policing Board.

1410. The Chairperson: There are no other declarations of interest; if anyone else arrives I will ensure that they declare their interests.

1411. We expect the session to last for up to one hour, and I understand that you will begin by making a short opening statement. We know that there are two sides to your evidence this morning, so perhaps you will keep the two matters separate — the budget for the Northern Ireland Policing Board, and, secondly, the policing budget and the board’s relationship to that.

1412. Sir Desmond Rea (Policing Board): Thank you for your words of welcome. As I look around the room, I am mindful of the importance of treating people well, because there comes a day when one gets one’s comeuppance.

1413. Mr Paisley Jnr: Why are you looking at me? [Laughter.]

1414. Mr Kennedy: He is looking directly at the Chairperson.

1415. Sir Desmond Rea: Yes. As you rightly said, I am joined by Barry Gilligan, the board’s vice-chairman, Adrian Donaldson, who recently joined us as chief executive, and Sam Hagan, the board’s director of corporate services. Lorraine Calvert, who deals with our public relations, is sitting behind us. On behalf of the board, I thank the Committee for its invitation to attend. The Committee will have received a copy of the board’s submission, which was considered and agreed by the board at its meeting on 5 February.

1416. The board welcomes the opportunity to attend today. Our aims are, first, to provide the Committee with information about the board’s finances, secondly, to expand on the information provided in the board’s written submission, and, thirdly, to address the board’s role in relation to PSNI finances. Following my opening remarks, I, along with my vice-chairman, the chief executive and the director of corporate services, will be happy to answer members’ questions and to provide any information that might assist with the Committee’s work. If we cannot answer any questions, we will do the necessary work to come back with an answer.

1417. The board is an executive non-departmental public body, and I note that that status is recommended to remain following the devolution of policing and justice powers to the Assembly. The role of the board is to secure the maintenance of an effective, efficient, impartial and representative policing service and to hold the Chief Constable to account for the exercise of his functions and those of the police and police staff. The board carries out its role in an open and transparent way.

1418. In addition to holding the Chief Constable to account, which we do at monthly meetings, in public session and in private session, the board has a number of statutory responsibilities which require specific resources. Those responsibilities include, as you all know, support for district policing partnerships (DPPs), community engagement — encouraging the public to co-operate with the police in order to prevent crime, including community safety partnerships (CSPs).

1419. I am mindful of the fact that a consultative document on our relationship with DPPs and CSPs has been issued to all interested parties. It has not, as yet, gone out to the public. I have read the report, and, personally, I welcome it. The board has yet to consider the report, but I believe that we will find it to be a positive document, because many of the arguments put forward by the board concerning those bodies and their functions have been incorporated into it.

1420. The board also monitors the PSNI’s compliance with the Human Rights Act 1998 and assesses the level of public satisfaction with the performance of the police and DPPs. In addition, there are a number of areas of the board’s remit which the Committee may not be aware of. For example, the whole area of selected medical practitioners accounts for approximately £315,000 of the board’s budget. Members may wish to ask questions about that, and we will be delighted to answer them.

1421. Chairman, you and members of the Committee will have received the board’s response to your questions about the board’s finances. You will note that the total estimated budget for the year 2008-09 is approximately £8,660,000, and that the board has set its business plan in line with the funding available. Members may find it helpful if I provide a summary of some of the detail that underpins those figures.

1422. Salary costs account for approximately 30% of the board’s programme budget, which covers both staff and the nine independent members of the board. The board has 10 MLAs and nine independent members. Approximately 33% of the board’s non-staff budget is used to pay for typical running costs — rent, rates, postage, stationery and courier services — and, secondly, expenditure to carry out its work plan. Some of the key elements include: research and surveys; human rights advice; the selected medical practioner side of the work, which I have already referred to; advertising; and community engagement.

1423. The board also funds 75% of the costs of the 26 DPPs, one in each district council area. The overall cost to the board this year is £3·15 million — approximately 36% of the board’s total budget. The remaining 25% of the DPP funding is raised and provided by councils. Most DPPs attract funding of between £100,000 and £120,000, with Belfast attracting estimated funding of £383,000 in 2009-2010. DPPs are important because policing with the community was at the heart of the Patten recommendations. DPPs are an essential element in delivering policing with the community. They relate to the local district commander; they relate to the needs of the local area; they prioritise those needs and input them to the policing plan; they monitor the performance of the district commander against the plan; and they engage with the community in the prevention of crime. The relationship with CSPs is in that latter area.

1424. As regards the board’s capital budget, the board is not a capital-intensive organisation. The majority of the fixed assets are furniture and fittings and computer equipment; accommodation is leased. As assets are depreciated on a straight-line basis over five years for IT assets and five to 12 years for furniture and fittings, there is a planned capital expenditure in 2010-11 to refresh the board’s computer facilities.

1425. The board has a history of staying within its budget. In 2007-08 it delivered within 3% of its allocated budget, and we are confident that we will deliver within this year’s budget. The board develops and delivers its business plans in line with its allocated budget. As the role of the board is to remain unchanged following devolution, I as chairman do not anticipate any significant additional requirements in future years. Neither do I anticipate any significant easements that could be delivered by adjustments to existing plans and priorities.

1426. This statement does not take into account the consultative document that has come out this week in respect of DPPs and CSPs, to which I have already referred. The only area outside the normal business areas that has the potential to become a significant pressure: the discussions in relation to the equal pay claim for junior civil servants could have a significant impact on the board’s budget. As I said earlier, we will be happy to take questions on any aspect of the submission.

1427. I turn now to the finances of the PSNI. Chairman, you and the Committee members will be aware from our submission of the board’s statutory obligation to provide the Chief Constable with funding for police purposes. The Chief Constable will provide the Committee with a detailed input later today. However, I wish to reinforce the board’s concern about the availability of sufficient resources for front line policing. Much of the financial pressure experienced by the PSNI recently is a direct result of issues over which the Chief Constable has no control; it is not an issue of due diligence.

1428. The Chief Constable will cover the detail of the figures, but the pressures relate mainly to what can be termed legacy issues, such as the maintenance of the Historical Enquiries Team; claims for hearing loss, the estimates for which continue to rise significantly; support for public inquiries, and the associated legal fees; and pension costs. All those pressures place a significant burden on the PSNI and make it difficult for the Chief Constable to continue to deliver an effective, efficient and modern policing service.

1429. Indeed, those significant pressures have meant that the PSNI has not been able to take forward projects that are important for the delivery of policing with the community. In reaching a balanced budget for next year, the Chief Constable has had to defer and set aside plans to modernise the facilities for receiving and dealing with calls for assistance — call handling, in other words; to continue to significantly reduce overtime; to introduce police community support officers (PCSOs) — an issue which the board sees as particularly important; and to develop or modernise the police estate.

1430. I wish to draw members’ attention to the relative inflexibility in the PSNI finances due to the maintenance of the establishment of 7,500 officers. The associated costs account for around 80% of the total PSNI budget, and, therefore, only the remaining 20% can be played around with. The commitment to retain 7,500 officers means that any financial pressures must be met from 20% of the budget, which is approximately £200 million. Significant pressures such as hearing-loss claims must be dealt with from within that £200 million and not the overall £1 billion budget. That puts the current difficulties in clear perspective. As discussions on the financial settlement in the next comprehensive spending review begin, there will be a focus on the financial sustainability of retaining an establishment of 7,500, which was the number of officers recommended by Patten.

1431. The current security threat is placing further operational and financial pressures on the PSNI. The murders of the two soldiers in Antrim and of Constable Carroll in Craigavon are stark reminders of our dark and difficult past. The Chief Constable and his officers are pursuing the investigations into those murders and have had to make a separate bid for additional money to pay for those; of course, the board fully supports that bid. On the back of the three murders, I spoke to the Northern Ireland Office and drew its attention to the pressures that the police are under. Should the current threat level remain, it will have a significant impact on the PSNI’s finances and its ability to provide the style of community policing that the service and the board would wish to provide.

1432. Due to the hard work of many communities and public representatives, there has been great success in delivering more peaceful marching seasons in the last few years. The board hopes that the current security threat will not lead to increased tensions at that time of year, because such tensions all too often spill over into public disorder that requires a police response. The costs of such a response would have to be met from the Chief Constable’s ever-decreasing pot and, therefore, detract from normal policing. I urge you all to use whatever influence you have to continue to deliver more peaceful summers. In the past two or three years, local representatives of the different political parties have used their best efforts, and they have secured more peaceful marching seasons. The board and I hope that that continues.

1433. The Chairperson: In your submission, you stated that as a result of legislative changes and staffing issues, the Northern Ireland Policing Board adjusted its current work plan to stay within its budgetary allocations. Will there be a knock-on effect for future budgets as a result of those actions? Can those adjustments be monitored and managed, on an ongoing basis, to relieve the pressure on budgets?

1434. What additional pressures, if any, will arise in relation to the budgeted police grant for 2009-2010? You identified some of them, but I do not think that you provided figures. It would be helpful if the Committee had some idea of the figures that you and your colleagues will be considering.

1435. I remind you that the proceedings are being reported by Hansard staff.

1436. Mr Sam Hagen (Policing Board): The Northern Ireland Office sets our budget, and we draw up our business plan to live within that budget. Our submission states that our business plan reflects the budget that we have been given. You asked whether that will have a knock-on effect in the future; we are given a CSR settlement over three years, and we plan our corporate plan every three years and our business plans on a yearly basis. We do not foresee significant problems living within our budget and fulfilling our business plan.

1437. Sir Desmond Rea: In respect of the policing budget, a funding gap was identified. First, we had pressures in the last four months of the current financial year. Considerable efforts were made by the police, and by the board working with the police, to seek to resolve those pressures. We managed to do that by pushing some of this year’s obligations into next year. However, that means that there will still be problems coming down the track.

1438. A funding gap of £101 million was identified in 2009-2010, and £75 million in 2010-11. In discussions between the board, the police and the Northern Ireland Office, it was agreed that we should set aside the pressures emerging from hearing-loss claims and equal-pay claims. As a consequence, the residual funding gap identified in 2009-2010 was £43·7 million, and, in 2010-11, it was £29·4 million.

1439. In order to reach a balanced budget for 2009-2010, the PSNI proposed that internal bids for funding should be rejected; PCSOs should not be proceeded with, as I outlined to you; a 5% cut should be imposed across transport, telecoms, supplies, etc; staff overtime should be reduced by 8% — incidentally, the projected figure for the following year is 20%; and police recruitment in 2010-11 should be stopped. If those cuts are implemented, there will be a remaining pressure in 2009-2010 of £13·8 million and a surplus in 2010-11 of £13·8 million. NIO approval would have to be sought to transfer budget provision from 2010-11 back into 2009-2010.

1440. Those are the figures with which you are playing. I am sure that you will want to ask the Chief Constable further questions about those. Given our role regarding the maintenance of the Police Service of Northern Ireland, we, as a board, have been working closely with the Chief Constable and his team — particularly David Best, who is responsible for finance. When we have approached the NIO, we have done so jointly. I have no doubt that you, as a Committee, are concerned about that. The resources and improvement committee monitors expenditure against budget on a continual basis. Board members regularly meet David Best and the Chief Constable in order to question them about expenditure against budget.

1441. Mr Barry Gilligan (Policing Board): Overtime is an area of pressure in the budget. Members and former members will be aware that a lot of work has been done with the PSNI over the lifetime of this board to reduce the average daily overtime hours, which were certainly out of kilter when compared to other police services.

1442. Members need to be aware of the very direct correlation between overtime and the policing of the community. On a visit to Lisburn, I was informed that £5,000 had been made available to deal with the specific problems of underage drinking and youths causing annoyance. That was very effective. When I asked where the £5,000 went, I was informed that it went directly to pay for overtime. Our chairman mentioned the possibility of a difficult marching season. If that was to happen, or there was dissident activity, it would impact on overtime that would ordinarily have gone into the policing of the community.

1443. The Chairperson: Is the board aware of any figures in relation to overtime due to the pressures of the past few weeks?

1444. Mr Gilligan: I am not currently aware of the specific figures. However, from my conversation with the Chief Constable, there is no doubt that practically all of the overtime that is available is going towards addressing the present security threat.

1445. The Chairperson: Just so that it is clear for the record, Sir Desmond, in relation to what you said regarding equal pay and the hearing-loss claims, does that amount to more than £100 million over the next two years? Figures of £90-odd million have been bandied about in relation to the hearing-loss claims. Are we saying that the combined figure for equal pay and hearing loss is in the region of £100 million over a two-year period?

1446. Sir Desmond Rea: There has been considerable conjecture in respect of the hearing-loss claims. However, as a result of the discussions with the Northern Ireland Office, it has been agreed that given that those are legacy issues — particularly the hearing-loss claims — the only sensible way in which we could proceed was to take it out of the consideration. The NIO agreed. In other words, it said that it would discuss those two areas with the Treasury. It certainly accepted the rationale for the way in which we jointly approached that issue.

1447. The Chairperson: Is it fair to say that that is an increasing sum, particularly on the issue of hearing loss? Is that figure rising on a monthly basis?

1448. Sir Desmond Rea: That is what I understand.

1449. Mr Hagen: It is about provision accounting. The figures that are being used relate to providing for future bills. Cash will not actually be going out the door, but it has to be accounted for when it is known about. Our understanding is that hearing-loss claims are increasing. The money is provided for on the basis of the number of claims that are received. The number of claims being received each month is increasing.

1450. Mr Kennedy: Good morning, Sir Desmond. You are welcome, and so are all of your colleagues. Thank you for your presentation and for your personal commitment to policing as you prepare to step down as chairman over the coming months.

1451. The Committee has no difficulty in finding common cause with the Policing Board in ensuring that adequate resources are provided for policing in Northern Ireland. The Committee must, however, also be sure that every possible efficiency saving is made without reducing the service or impacting adversely on it. You were strong in your defence of DPPs and CSPs. There is a general view that they are sometimes seen as expensive talking shops that produce little or nothing, and their cost-effectiveness is questioned.

1452. Do you plan to streamline those partnerships as part of the review that was indicated? Will there be savings, or are you content that they will continue to operate as at present? There is also a strong suggestion that there is some duplication between DPPs and CSPs that could be addressed.

1453. Sir Desmond Rea: The chairman of the community engagement committee is Alex Maskey and his vice chairman is Barry Gilligan, who is also vice chairman of the Policing Board. Barry will answer those questions.

1454. Mr Gilligan: The board’s view is that DPPs have contributed significantly to increased confidence in policing. That view is shared by many visitors who study the whole new policing arrangements here.

1455. I will not bore the Committee with statistics, but the board’s surveys indicate a very strong level of confidence in policing. We are not complacent about it, but the Chief Constable has pointed out time and time again that Northern Ireland is one of the safest areas in these islands in which to live. The board attributes that in many instances to the very close working relationship that the local community has with the PSNI.

1456. There are undoubtedly some areas where that does not work as effectively as in others; however, the board has a mechanism that enables it to compare the efficiency of DPPs. I believe that the board’s investment of £3·15 million in DPPs represents very good value for money, but we are not complacent about that.

1457. In respect of savings, I would like to see investment in DPPs going up as a result of the document that Desmond talked about at the outset — it describes the closer working relationship between DPPs and CSPs. I would see that very much as the DPPs taking on a bigger role; however, there should be a net saving to the public purse. If you add together the amount of money that we currently spend and the amount currently spent on CSPs, there should be a net saving, albeit that the board believes it should have a bigger budget to deal with that.

1458. Sir Desmond Rea: A further point that emerged in the consultative document issued by the Northern Ireland Office is that the reconstitution and reduction in number of local councils in 2011 affords a possible opportunity to reduce the number of DPPs. However, in reducing the number, DPPs become more distant from rather than closer to the community. Nevertheless, that is a possibility. In other words, coterminosity will become an issue. I have no doubt that the board will discuss that and make its wishes known to the Chief Constable at the appropriate time.

1459. Mr Kennedy: On the issues of police resources and of the police reserve, the current security climate and the situation on the ground have caused concern, particularly in light of the potential closure of quite a number of local police stations and, almost automatically, a reduction in the number of police reservists. Where is the Policing Board on that issue? Is it looking at it? What projections do you have in relation to police resources on the ground, that is, actual police officers — as opposed to members of DPPs or community activists — who can respond to criminality and all its associated problems?

1460. Sir Desmond Rea: I will deal with the part of the question that refers to the closure of police stations. As you are politicians and you deal with people’s concerns, you will no doubt be aware that there were proposals for the closure of 16 police stations. However, the board did not feel that sufficient account had been taken of the alternatives that were being proposed for policing communities in those areas, alongside those proposals. Coincidentally, the board also felt that the documentation did not take sufficient account of the dissident threat and the policing of that threat — and that was before the recent killings. The board asked the Chief Constable, and we sent the document back and said that we would not consider it until he came forward with reasoned proposals in both those areas.

1461. We have yet to receive a reply to that, but that is not a criticism. The PSNI will come back to us at the appropriate point in time. They may well come back with proposals in respect of six or seven stations and leave a second tranche to a later date. In other words, we asked the hard questions, and we told them that we would not consider the document, and the meeting has been postponed.

1462. Bearing in mind the constituency that you represent, I think that your question about police officers relates to the full-time reserve, and you wrote to me about that issue. I have written to the Chief Constable about it, but I have not received a reply from him. I wanted his risk assessment to be part of that reply. However, I will take the matter to the board and reply to you on the back of that.

1463. Mr Paisley Jnr: I welcome the delegation from the Policing Board, as Danny has rightly done. I want to go back to the issue about there being no requirement for significant funding beyond what you are getting as a board. Let us look at board funding first of all. In the answer to Danny’s question about DPP versus CSP funding, there appears to be an anomaly in respect of competition, as organisations are doing some of the same work, or some of their work is overlapping. Can I take from what you have said that there is potential for a budget pressure if that anomaly is not dealt with immediately? Has the board come to any conclusions about how that might be addressed, so that we can streamline the funding and then do, as Mr Gilligan has suggested, that is, direct more targeted resources to it?

1464. Sir Desmond Rea: First, I do not wish to do any injustice to the report. It will, no doubt, come to the Committee, and the Committee will make its own judgement on it. What is basically being said in the document is that the Minister believes that there is a reasoned case for bringing together DPPs as and when the review of public administration takes place. There are financial issues in there, and that is one of the things that he says need to be looked at. In the meantime, he is saying that he has been out there — and I attended a DPP meeting with him, along with the CSP, in Craigavon, where the two senior administrators share an office — and that there is evidence of good practice. In the meantime, he would like to see movement — he is correct in saying that — and he would like to see people voluntarily moving to come together, and implicit in that is that there could be savings.

1465. Mr Paisley Jnr: That sounds like some carrot, but there will have to be stick as well. Is there stick in the document — or baton?

1466. Sir Desmond Rea: I cannot remember definitively whether that is the case. Therefore, I had better not answer.

1467. Mr Gilligan: I will put the matter into context. I put the Policing Board and DPP costs at £3·15 million, 35% of which is spent on DPP managers and other staff. Common sense says that, at the very least, we could achieve a common secretariat, which would enable an immediate saving.

1468. Mr Paisley Jnr: I am trying to suggest that a budget pressure might arise if the matter is not addressed.

1469. Mr Gilligan: There might be.

1470. Mr Paisley Jnr: The other issue is that you are tasked by the Policing Board to deliver an efficient and effective Police Service by, essentially, securing a budget that is fit for purpose. In the past year, how difficult has it been to deliver a balanced budget?

1471. Mr Gilligan: I want to reiterate the chairman’s words from the start of the meeting. Our budget is generous but not very flexible. It amounts to approximately £1 billion, 80% of which is allocated to wages and salaries and 20% to other costs. With a given of 7,500 officers, if we are told to find a 3% efficiency saving on our entire budget, we cannot touch 80% of it. Therefore, on a balance of £200 million, a 3% efficiency saving becomes a 15% saving. We have been there; we have done that through the Gershon review. We did it several years ago, but we can only go so far. At a police finance meeting, someone asked me, as a businessman, what to do during difficult times. First of all, we should turn to the reserves. The PSNI has no reserves, and it has not been allowed to carry over reserves for the past couple of years. Therefore, the well is pretty dry.

1472. Mr Paisley Jnr: You said that 80% of the budget cannot be touched. However, there is an indication that you, perhaps, might have to consider reducing the number of recruits or the number of officers from 7,500. Given the current climate and the current pressures caused by the dissident threat to police officers, what sort of message, in your view, would that send to the community?

1473. Sir Desmond Rea: My recollection is that there is no intention to reduce the number of recruits in 2009-2010.

1474. Mr Paisley Jnr: Yes; but what message would that send?

1475. Sir Desmond Rea: I am not sure that reducing the number of recruits sends a good message. That is my personal view, because the board has not discussed the matter. It is important to retain that number until there is significant reason for change. As Barry said, the total budget, including capital, amounts to approximately £1·2 billion.

1476. Mr Paisley Jnr: I agree that cutting recruitment would not be good. What do you think about reducing the total number of police officers? If the Policing Board agreed to or recommended a reduction in numbers, would that send a message to the effect that the community has been depleted of a service?

1477. Sir Desmond Rea: Patten asked what should be the size of a police service in Northern Ireland if the population of 1·5 million or 1·6 million was transferred to a similar geographical area in England. We must not forget that, at that stage, the RUC had a total of 13,000 officers. That figure comprised 9,000 full-time officers, and the remainder were full-time Reserve and part-time Reserve. Patten decided that 4,300 officers would be required, against the reality of 9,000. However, he acknowledged that Northern Ireland is not a normal society because of the continuing terrorist threat from both identities and the civil unrest in the summer period.

1478. If one were to take the typical norms today — in other words, for example, the number of police for every 1,000 people in the population in England and Wales — the figure of 4,300 would be more in the region of 6,100, as I understand it. In a sense it is obvious: if the dissidents went away, if the loyalists decommissioned, if civil unrest in the summer period came to an end, and assuming that criminality in both identities is contained by effective and efficient policing, there are prizes to be won. Ultimately, following the devolution of policing and justice, the Assembly will be responsible for that budget, which will be competing with education and health.

1479. Mr Paisley Jnr: I understand the public-relations message; it is a very powerful message and one that I do not want to diminish. However, as the longest serving chairman of any major policing authority in these islands, you have a fair grasp of what is going on, and what the political appetite is, what the political stomach is. In your view, is there the political appetite, is there the community appetite and is there the ability to deliver policing in Northern Ireland, as it currently stands, with a reduced number— I think you mentioned a figure of 6,100 — of police? Is that possible?

1480. Sir Desmond Rea: It is not possible as long as the threats continue.

1481. Mr Paisley Jnr: I stress again: we police the situation as is.

1482. Sir Desmond Rea: You are correct. However, I am pointing out that there are prizes to be won.

1483. Mr Paisley Jnr: I accept that, and I think that that is a positive point to have on the agenda.

1484. The Patten Report suggested that there should be a police academy or college. I understand that money has been set aside for the bricks and mortar to build that. Are there any medium- to long-term pressures on delivering that ideal, that goal? Can that be delivered under the present police budget?

1485. Mr Gilligan: I think that the capital can be delivered because the capital has been set aside for it. There is no doubt that training costs will go up when the new college opens in 2012. Those increased costs, which are probably around £5 million a year, will have to be found from the existing police budget.

1486. Mr Paisley Jnr: Where do you imagine that that money will be found if the budget does not increase?

1487. Mr Gilligan: To be fair to the PSNI, I have looked at its budget over the past few years, and I have looked at the work that has been done in securing efficiencies, and I sometimes ask myself: could the same not be done in every Government Department in Northern Ireland? Over the years, the PSNI has managed to achieve a balanced budget. I am sure that the money will be found, not least because, in my view, training is hugely important. The cost of not training could be significantly higher than the money that we are talking about. Specifically where that money will be found, Mr Paisley, I do not know. However, I am confident, given the importance of a new training facility, that it will be found.

1488. Mr Paisley Jnr: I set that against your earlier answer that there are 80% of costs that we cannot touch. The money has to be found from the remaining 20%. It does not readily come to mind as to where you would find the additional money, within that 20%, unless there is an increase in the budget. You are a business man. Do you not agree?

1489. Mr Gilligan: There will certainly be significant pressure on the budget.

1490. The Chairperson: Perhaps you could quickly just clarify a point that Mr Kennedy made. Is the policy of the closure and disposal of police stations driven by financial pressures as much as by operational requirements?

1491. Mr Gilligan: No, it is not driven by financial pressures.

1492. Mr McCartney: Thank you very much for your presentation. What role does the board play in scrutinising the validation process of the budget for the PSNI?

1493. Mr Hagen: The Policing Board has a number of committees, one of which is the resources and improvement committee. The director of finance and support services for the PSNI presents figures to the committee each month on Police Service spend. He also presents the policing budget to the committee. The budget, as prepared by the Chief Constable, is presented in draft form. After the budget has been considered and scrutinised by the committee, it is then presented to the parent Department in final form. Therefore, the Policing Board’s role is between the draft form and final form of the budget. That is the process that we use.

1494. Mr McCartney: If any part of the budget is overstated or understated, does the Policing Board have a role in bringing that to the attention of the PSNI?

1495. Mr Hagen: The committee goes through the budget in detail, comparing the figures with those of previous years and examining the assumptions that have been made. Therefore, the committee goes through the budget in quite an amount of detail.

1496. Mr McCartney: This morning, Sir Desmond outlined the pressures that legacy issues — the Historical Enquiries Team, hearing-loss cases and public inquiries — place on the budget. If those pressures were removed and realised, or satisfied, in another way, what relief would that bring to the budget? What is your appraisal of those pressures on the budget?

1497. Sir Desmond Rea: That is an interesting question, because we have been arguing with the NIO that legacy issues should be removed from the current policing budget. We believe that that is an argument that, above all, should be taken up by the Assembly and by the First Minister and deputy First Minister in their negotiations with the Northern Ireland Office and the Treasury. We have argued strongly that that should be the case. What was the other part of your question?

1498. Mr McCartney: Would removing those legacy issues relieve overall pressures?

1499. Sir Desmond Rea: If those pressures were removed, there would be considerable relief. One of the most substantial sums has not been mentioned. Do not forget pension costs; historically, we had a complement of 9,000 police officers, which is a sizeable number.

1500. Mr McCartney: Do you consider the pension issue to be a legacy issue as well?

1501. Sir Desmond Rea: We have argued that it would be better if that issue were tidied from a particular date and time.

1502. Mr McCartney: The Committee heard evidence, either directly or indirectly, about an approach that was used at corporate level whereby hearing-loss claims formed class actions and were settled. Is there a new approach, or could there be a different approach, whereby such claims are contested more rigorously?

1503. Sir Desmond Rea: It might be better if you leave that question for the Chief Constable, as he will be able to give you a definitive answer. David Best is with him, and he will give you the authoritative answer in respect of that. I am aware of the fact that there are cons of a class action. Therefore, a different approach has been adopted. However, the Chief Constable and Mr Best are the authoritative sources on that issue.

1504. Mr McCartney: Do you envisage that there will be improvements in the role that the Policing Board has in the process of securing a proper budget for the PSNI, which to date has been carried out with the NIO? What would be the best scenario for the Policing Board: to continue with that scenario or to have a justice Department that would negotiate the budget? Which process would be the most advantageous for you?

1505. Sir Desmond Rea: All of us are realists. If the transfer of policing and justice occurred yesterday, we would operate in exactly the same way as we have operated with the NIO, and we would expect our reasoned arguments to be respected by whoever it was.

1506. Mr Gilligan: Another point that I should add is that, obviously, we do not look at budgets in isolation. We take account of the 43 other police services in the UK and the Garda Síochána by benchmarking how much overtime they have and what sort of office space they use. That has been one of the factors in driving down overtime hours, which were totally out of kilter.

1507. Mr McFarland: Thank you for your presentation. On a housekeeping point, I struggled for some time to work out how you were being given £8 billion to run the Policing Board. That figure must either be written as £8,666,000 or £8·6 million. At present, however, in your paper it appears twice as £8,666 million. I understand what is meant, but it would be difficult for an outsider coming cold to Committee records. It would, therefore, be useful to have an accurate figure in your paper.

1508. Sir Desmond Rea: That is a valid criticism.

1509. Mr McFarland: Both you and the PSNI commission consultants to carry out studies. Is there any scope to co-ordinate the studies, so that you do not each spend what is, I suspect, quite a lot of money over the years on such consultations, studies, and so forth?

1510. The devolution of policing and justice powers will involve some 21 MLAs, including those on an Assembly Committee overseeing the Minister and the Department, which has a link to you. The Policing Board already oversees the PSNI. Given that all those people will be involved and there is only a single pot of money available from the block grant, how long can the funding of £8·6 million be justified and continue?

1511. Mr Gilligan: In answer to your first point, the question of duplication and value for money is examined by every Policing Board committee: for example, at a recent meeting of the community engagement committee, chaired by Mr Maskey, proposals were put to us that we spend £60,000 on a survey. A particular survey was under discussion, and the committee was unanimous in its view that a number of surveys had already been carried out on a similar theme. The committee, therefore, decided not to proceed and tasked officials with studying the results of those other surveys. We are, therefore, constantly mindful of duplication.

1512. Was your second point about how long will we continue to receive funding of £8 million?

1513. Mr McFarland: Yes, and it is based on the amount of people who will be involved: a total of 21 MLAs, 11 on this Committee and 10 others, a Minister, and an entire Department. This Committee will oversee the Department and Minister and hold them to account on the Floor of the House, and so forth, and the Policing Board holds the police to account. Given the constrained financial position in the current recession — and that will become worse —how long will the luxury of £8 million for the Policing Board last?

1514. Mr Gilligan: I do not consider £8 million to be a luxury.

1515. Mr McFarland: Consider that amount in the great scheme of things.

1516. Mr Gilligan: During the years of its existence, the board has proven to be extremely effective. From your past experience as a member of the Policing Board, you will know that the level of accountability and the policing structures that are in place are the envy of many. I argue that £8 million is money well spent, and I suggest that there are many other areas at which you might look to make savings of £8 million, rather than at the Policing Board.

1517. Sir Desmond Rea: Perhaps Sam will tell the Committee what consultancy exercises have been conducted in the past five years.

1518. Mr Hagen: Our main consultants are advisers on human rights, and that is our main cost.

1519. Sir Desmond Rea: I would like to add a point on human rights advisers. At 10.00 am this morning, we launched a thematic inquiry on domestic abuse. I have read that superb piece of work. I commend it to the Committee, and I will ask for a copy to be sent to each and every member. It addresses an essential problem in society and represents money well spent.

1520. I noticed in some of the papers that there has been recent scrutiny of the PSNI’s use of consultants, some of it by the Northern Ireland Audit Committee. The Policing Board is continuing that scrutiny.

1521. Mr Hamilton: The issue of the closure of police stations was raised. The other side of that is the sale of the property and the realisation of some receipt. What happens to receipts for the sale of police stations or other elements of the police estate? Are they retained by the police, or do they go, in all or part, back to the NIO or the Treasury?

1522. Sir Desmond Rea: There are issues about that in the current economic climate.

1523. Mr Hagen: The PSNI has a capital budget which is set for the comprehensive spending review period. It has an amount to spend and an amount that it says that it will receive, from, for example, the sale of police stations. The difference between the two is met by the grant that it receives. If it gets less for the receipts than estimated, then it has to meet the difference. If it gets more than estimated, the surplus is handed back to the Department. However, in that case, the PSNI can bid for that, along with other elements of the Department.

1524. Mr Gilligan: In respect of the college, the projected disposal of sites currently used for training is directly offset against the capital expenditure on the college, so the PSNI will get the benefit of that.

1525. Mr Hamilton: If a decision is made to close a station on purely operational grounds, and the PSNI does well out of it, that is almost a disincentive. If it sells a lot and does well, it acquires a surplus to which it does not have 100% access.

1526. Mr Gilligan: Those days have gone.

1527. Mr Hamilton: Yes. I understand that. [Laughter.]

1528. Sir Desmond Rea: Tears in his eyes.

1529. Mr Paisley Jnr: Let us give a pocketful of sympathy here.

1530. Mr Hamilton: Say we were back in the good times again, and the PSNI was doing well: the system does not provide much of an incentive. There may be good operational reasons to close a facility or to sell off a piece of land. The police have identified significant pressures in their submission.

1531. Mr Gilligan: This comes back to the answer that I gave the Chairman: financial issues do not drive the closure of stations.

1532. Mr Hamilton: I fully appreciate that. However, where there is a capital problem and a gap and a deficit, selling off pieces of land is one way to fund that, if the decision has already been made to get rid of the land already for operational reasons. If the PSNI does not retain all the proceeds, that does not help it to meet other deficits. A mechanism might be looked at to encourage the wise disposal of assets.

1533. Mr Hagen: There is an argument that, where we estimate the proceeds of the sale of a police station or piece of land correctly, and need a mobile station to fill the gap left by the closure, the cost of that mobile station should be included in the estimate. The gap, then, would not include the spending on another mobile station.

1534. Mr Hamilton: Certainly, retention of anything over and above the estimate would be useful for the policing budget. That goes without saying, and this might be worth looking at.

1535. The Chairperson: I am conscious that we are now running out of time. The Chief Constable has arrived, and he has another engagement to attend. I do not wish to detain you too much longer. However, I have a couple of final questions which we have asked everyone who has appeared in front of the Committee. Does the Policing Board currently pay value added tax (VAT) and, if so, can it be reclaimed?

1536. Sir Desmond Rea: The answer to that is yes and yes.

1537. The Chairperson: Is it a significant sum?

1538. Mr Hagen: It is not significant for the board.

1539. The Chairperson: You do pay VAT, however?

1540. Hagen: We pay VAT, and then we claim it back. We are allowed to keep what we reclaim.

1541. The Chairperson: Are you aware of any other issues that could have material or inescapable consequences for your budget in the future? Again, everybody has been asked that question. In other words, is there anything that you are not telling us about at present? It will be a sad day if, after the devolution of policing and justice, you return to us in 18 months’ time and say that there is another £2 million or £3 million that you knew about, but omitted to tell us about. I suggest that should that happen, you will not get a good hearing.

1542. Sir Desmond Rea: In respect of the board, the answer to your question is no. However, there is major concern within the board that the window of opportunity could be missed in signing up to devolution of policing and justice without securing a settlement that, above all, takes into account legacy issues and enables the PSNI and the board to move forward on a level playing field.

1543. The Chairperson: OK. Thank you very much indeed for the evidence that you have given us. I know that there are a number of other issues. An hour is not really long enough to cover all of the areas that we wanted to probe into. We hope to send you a number of additional questions this evening. We would ask you to reply to most of those questions, if possible, before the Secretary of State appears in front of us next week.

1544. Sir Desmond Rea: If we can answer any questions that will facilitate your programme, we will be delighted to do so.

1545. The Chairperson: Thank you very much, gentlemen, for coming along today. We will talk to you in the not-too-distant future.

1546. Sir Desmond Rea: Thank you.

24 March 2009

Members present for all or part of the proceedings:

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


Sir Hugh Orde

The Chief Constable

Mr David Best
Mr Mark McNaughten

Police Service of
Northern Ireland

1547. The Chairperson (Mr Spratt): I welcome Sir Hugh Orde, the Chief Constable, David Best, director of finance and support services, and Mark McNaughten, the strategic financial manager of the PSNI. You are all very welcome. To clear up one piece of business before we move any further, I declare that I am a member of the Northern Ireland Policing Board.

1548. Mr Paisley Jnr: I am a member of the Policing Board.

1549. The Chairperson: Thank you. There are no other declarations of interest at the moment. Chief Constable, during this session there is a possibility that we may have to leave the meeting in order to vote in the Chamber; if that happens, I apologise, but there is nothing we can do about that. I know that you have time pressures as well, and we will try to deal with that as quickly as possible if it happens.

1550. The Chief Constable (Sir Hugh Orde): Thank you, Chairman; I will keep my opening comments brief. It will be more useful if I answer the questions of the Committee, rather than say what I think you would like to hear.

1551. The first point I would like to make is that the PSNI has focused on efficient financial management during the six and a half years in which I have had the privilege of commanding the organisation. By way of example, in the last three years over £71 million has been saved through Gershon efficiency, the target being £62 million. We are certainly committed, and hope to make similar savings in the next three years. We are aware of the importance and the high cost of policing in Northern Ireland.

1552. The PSNI has consistently come in on budget in the last six or seven years. Its accounts have never been qualified by its oversight bodies, and, as I said, it has delivered efficiency savings. That being said, we face significant funding pressures this year and looking forward. It is right to point out to the Committee that the funding currently available in the system is not sufficient, in my judgement, to sustain the current level of police numbers — 7,500 — into the future, with the appropriate infrastructure to move towards 2011. We are looking to fully recruit 440 new officers in the next financial year. The year after that it will become difficult. That could, of course, be the first year of devolution — the Committee should be aware of that.

1553. There is no mechanism to further reduce the number of officers other than by natural wastage. There is clearly no more money, and there is clearly no “Patten II", for want of a better description. We are limited in how quickly we can downsize our organisation, as we anticipate no more than 70-100 officers leaving the service per year.

1554. The current funding is based on all full-time reserve (FTR) officers leaving the service by March 2011. Members will be fully aware of the current threat, which I am on record as declaring to be of major concern over the last 16 months, and which sadly led to three murders recently. That level of threat is currently being reviewed, and we are already in discussions with Government should our assessment be that we need to retain some of those individuals. Any delay, of course, will incur additional costs.

1555. There are significant pressures from legacy issues; in particular, hearing-loss cases, and the Northern Ireland Civil Service equal pay claim. The recent policing budget could only be agreed through the agreement of the Government to set those issues aside in our current budget planning. The hearing-loss cases increase week in, week out; there seems to be a concerted advertising effort among certain firms of solicitors encouraging claims, and they are reaching in excess of 150 per month. That is a significant pressure, continuing into the future, of which the Committee needs to be aware.

1556. On the issue of pension costs, because of the way we are treated with pensions — which, in essence, are uncontrollable — in my judgement there has to be a system whereby our pension liabilities are prevented from impacting on current police expenditure. That would be in keeping with the rest of the United Kingdom, where pensions are collected and paid for centrally.

1557. In addition, the other legacy issues we continue to face in relation to funding of public inquiries and inquiries from outside sources are simply not sustainable. My current focus is on policing the present; policing the past is a significant drain on current police expenditure, which is allocated for service delivery now. In the prevailing security situation there is a direct impact from any costs that I cannot put into front line policing.

1558. As a result of the current increase in terrorist activity, I have been to speak with the Government. We are in discussion over significant additional funding over the next two years to enable us to continue to deliver an effective level of service against, commensurate with, and proportionate to that terrorist threat.

1559. The Chairperson: Regarding the historic hearing-loss claims that you mentioned, and the pension commutation payments, the current PSNI budget has a deficit of £24·4 million. Do you envisage further scenarios which would have an extreme impact on the budget? In relation to the dissident threat over the past weeks and the horrific murders which have taken place, can you tell us whether there is any indication in monetary terms of any pressure that that may bring?

1560. As regards future pension liability, is the PSNI treated any differently to other police services throughout the United Kingdom? It is important that we get that on record.

1561. The Chief Constable: As regards the terrorist threat, we have significantly and consistently reduced our overtime budget by around 50% over the past six years, from around 14,000 average daily hours to around 7,000. That is the right thing to do, because we were high on overtime, and we needed to make sure that it was being used appropriately. There is, without doubt, a direct relationship between the situation that we are currently facing, the activity that we are undertaking, and the expenditure on overtime. Overtime is far more flexible; it enables us to disrupt activity. Investigations are working flat out, 16 hours a day to solve these crimes, so there is a spike in overtime at the minute.

1562. We have spoken to the Government, and are looking at a number of areas. We have asked for additional help in relation to helicopter top cover. Of course, we have no military helicopters at all. We have a plan to purchase a new helicopter in the system, about 18 months down the line. That is simply the lead time to purchase it: we have an airframe.

1563. We are looking at additional money for armoured vehicles. We have downsized our armoured fleet quite appropriately, and are now having to review that to give our guys the confidence to go out and deliver community policing in vehicles that look like police vehicles and are not Land Rovers, so it is in a consistent and appropriate style.

1564. We are also looking at overtime in order to bridge the funding gap so that we can provide the right level of cover to our guys in order that they can deliver an effective service and an effective investigation in these particularly horrific and complicated crimes. You will be aware that one person was charged last night, and I am confident that we will make further progress. However, prisoners are expensive, and have to be looked after — quite properly — in accordance with relevant legislation and human rights principles, which is also hugely expensive.

1565. In dealing with the terrorist issues over the next two years, a conservative estimate of costs would be in the region of £50 million.

1566. Mr David Best (Police Service of Northern Ireland): If you include the FTR, that comes to around £76 million over two years.

1567. The Chairperson: What does the reduction of 14,000 average daily hours to 7,000 equate to in monetary terms? I know that that is a difficult question because people are on different pay scales, but can you give us a ballpark figure?

1568. Mr Best: One thousand average daily hours equates to over £6 million per annum.

1569. The Chief Constable: I think that it is absolutely right that we made those significant cuts. Overtime had almost become institutionalised to some extent. Devolving the budget — over 80% of our budgets are devolved — has allowed us far more local control and inventive and sensible use of resources.

1570. In facing this type of issue, you have to be realistic, and there may be some shift backwards. I do not see the situation going back to the way it was in 2002, with 14,000 average daily hours of overtime. Bizarrely, it was a lot quieter then than now. I think that we can prove that we can make savings — what we need now is the right amount to deliver against the current threat.

1571. Mr Best: The area of claims for hearing loss is very difficult. Last year, we were receiving between 20 and 30 a month. At the start of this financial year, the figure jumped up to 60, and during the summer and the autumn there were about 150 a month. In the last couple of months, the figure has grown further; we received 346 claims in January and 187 in February. The figure for March is likely to be in the region of 250. When we issued our budget a couple of months ago, we made an assumption that we would receive 150 claims a month and allocated £98 million for that purpose over the next two years. We will probably have to revise that figure upwards. If we made an assumption of 250 claims a month, which is possible, our provision would have to rise to about £68 million per annum. The issue is very difficult.

1572. A question about class action was asked. Our legal people have consulted on that issue and, to date, have advised us not go down that route, because it would give every police officer an entitlement; 7,000 officers could potentially claim. We have taken legal advice on the issue, and that is our current position. As claims rise, that position will be reviewed, and class action is a potential option.

1573. The main issue with regard to pensions is that we are treated differently from other police services. That has been raised with the Policing Board over the last two years. If we have an overspend on elements of our pensions, or an actuary does a valuation in response to a change in the financial markets, there could be an extra liability or a credit. If there is an extra liability, that can hit our main police grant budget, which would not happen with any police service across the water. We are in discussion with the NIO and the Policing Board and hope to reverse that situation, but there is a potential cost. The latest figure is £64 million per annum. Therefore, it is very important that that additional funding is secured. In other words, if the actuaries change their figures, the Government should pick up the bill as they do for the Northern Ireland Civil Service and all the police services in the United Kingdom.

1574. Last year, the Home Secretary announced a change in pension commutation, providing for an entitlement to a lump sum when an officer retires from a police service. There was an additional liability of £11 million for each of the next two years. Last week, the outcome of a judicial review led to that period being extended backwards, and we now have a potential additional liability of £20 million. Those are a couple of pressures that we need to take on board as we look over the next couple of years.

1575. The Chairperson: During the evidence from the Policing Board, a figure of about £100 million for hearing loss and for the Civil Service pay claim was mentioned. You are talking about a figure of about £100 million for hearing-loss claims, and my understanding of what you said was that that figure had almost doubled from your previous estimate.

1576. Mr Best: The Policing Board got figures from us about a month ago. We have revised those figures, and the cost of hearing-loss claims is now estimated at £98 million over the two years. The cost for Civil Service equal pay is now estimated at £50 million, which is the result of a recent valuation that included some other staff, including EO2 officers. That is new information that the Policing Board would not have had, because it is so recent. Therefore, the figure for both over the next couple of years is about £150 million and rising.

1577. Mr McCartney: You were in the Gallery when I asked about the hearing-loss claims. Does the projected cost of £98 million include legal fees?

1578. Mr Best: Yes, it does include legal fees.

1579. Mr McCartney: From the PSNI side or —

1580. Mr Best: From both sides.

1581. Mr McCartney: OK. Sir Desmond listed four categories of legacy issues: the Historical Enquiries Team (HET), the hearing claims, public inquiries and pensions. If those costs were removed from your projections, how would you appraise the pressure on your budget as a result?

1582. The Chief Constable: It would make my budget manageable, in the sense that it would be predictable. The big problem that we have with pensions is that if an actuary gets out of bed on the wrong side, we may find ourselves potentially £30 million overspent and with no way of catching up.

1583. On the legacy issues, individual judges run public inquiries as they choose, which is entirely in keeping with the legislation under which they operate. As all inquiries are different, they require a bespoke response, and finding the information that the retired judges need is hugely labour-intensive; I cannot control it, in that sense. I also have to provide legal representation to all past and serving officers at those inquiries, including for example, from the RUC or independent investigators such as the Chief Constable of the Avon and Somerset Constabulary. That runs to tens of millions of pounds, which, again, I cannot really control.

1584. The HET is slightly different. We secured a red-circled amount of money — £32 million, if I remember correctly — to run that over five years. That is a predictable spend, and we have that money. The problem with that was there was a dispute, or a discussion, with the NIO about previous years in which we came in underspent and the NIO said that we could use that money to fund the HET. It is a complicated argument akin to robbing Peter to pay Paul, but it can contribute to the unpredictability of trying to run a budget in a professional way.

1585. Pensions are the biggest problem, simply because of volume. The hearing-loss claims are out of my control, in that I cannot constrain people who have a right to take an organisation to litigation. We have a right to defend where we can do so, and we examine robustly every single case; that is the right approach. When we settle, we settle at a figure that is as low as it properly can be. However, some cases are hard to defend. If I could get rid of all those issues, I would have a lump of money that I knew could be used to deliver policing in Northern Ireland, and I could be held to account by the Policing Board for that expenditure.

1586. Mr Best: The issue of the FTR could also be brought into that debate. Given that we have not provided for any FTR expenditure beyond 2010-2011, if we were to retain half of the FTR beyond that point, we would have a liability of £10 million a year. If they all stayed, we would have a liability of £20 million a year — if the security situation required it.

1587. There were a number of questions about police stations in the discussion of legacy issues. Station closures can be expensive, because some stations were built with a great deal of infrastructure. In the current market we could lose money by closing a station, because the sale value is low. In addition, we have put a lot of costs into some of those stations, and they are sitting on our balance sheet. To write down those costs, if we sell stations, is an additional cost. It is driven by operational need, but there are financial implications that influence whether a station is closed or not.

1588. Transferring the policing budget to the Assembly does have risks. Policing has risk attached, such as the occurrence of disorder. For example, the Chairman referred to the high overtime in 2002-03. We put in a bid for approximately £30 million in overtime in that year. We have had a couple of good years recently in which we have lived within our overtime budgets. However, things can go wrong; hearing-loss claims and other legacy issues can arise. The pressures can come and go quite quickly, and that is a risk that must be managed.

1589. Mr McCartney: Sir Desmond and Barry Gilligan both referred to issues regarding the impact of the legacy costs, including modernising the police estate. It is not within the remit of the Committee to go into the length of detentions — and I do not want to go there this morning. However, criticism has been made about the holding centres in the police estate. What impact will that have on the future?

1590. The Chief Constable: In a general sense, the problem with the police estate is that we wish to invest in what we want to keep and we want to lose what we do not want to keep, and Des made that point. Toome is an example. It is costing us a substantial amount of money. If we sold it, it would have a negative impact on our balance book. Therefore, it would be crazy to sell it because we would be costing ourselves real money.

1591. I do not want to get into the detail of certain observations made by an individual on the radio this morning. As a custody suite, Antrim is not in the plan for refurbishment, because it is one of our most modern suites. I was there and spoke to all the staff the Sunday before Professor McWilliams visited it. It is one of the holding centres that would be seen as very much fit for purpose in the current sense of the word. If there were recommendations for refurbishment or something similar, it would be a very expensive operation and would increase the costs. For example, if I wanted to rebuild the custody suite at Antrim, it could cost around £10 million to £15 million, which is a substantial amount of money.

1592. Mr McCartney: Would that be the case even if you were only to make adjustments?

1593. The Chief Constable: It is hard to adjust such a building. By definition, it is there to deal with extremely serious crimes. That is why it was built. It was built in 2003 to the highest specification available at the time. If people are now saying that it needs to be refurbished, then that is a debate we would take back to the Policing Board and put into our budget projections for future years.

1594. Mr McFarland: I have three points. The first refers to the Eames/Bradley Consultative Group on the Past’s report and the legacy issues. The sense one got from that was that the historic cases needed to be packaged up and left with the NIO. Have you had any indication of whether that is likely to happen? Clearly, if the past were to be taken out of your budget and you could police the present, it would make quite a difference to your budget. Where are we on that issue as regards discussions with the NIO?

1595. The Chief Constable: I am unsighted on where the debate on the Eames/Bradley group report has gone. [Interruption.]

1596. The Chairperson: The Committee will suspend for about 10 minutes. We will resume with Mr McFarland’s question.

Committee suspended for a Division in the House.

On resuming —

1597. The Chairperson: I reiterate to everyone to turn off their mobile phones, because they interfere with the recording equipment. That includes Ian Paisley Jnr, of course.

1598. Chief Constable, I am sorry that your evidence was interrupted. The best thing to do is to start again. Alan, will you put your question again?

1599. Mr McFarland: What discussions have you had around the Eames/Bradley group recommending that past issues should be bundled up and perhaps left with the NIO?

1600. The Chief Constable: I am unsighted with regard to any developments on the Eames/Bradley group’s report, apart from the fact that the £12,000 idea is no longer in the thinking. I have said on record that I have no difficulty with the HET moving into the proposed structure under the three-commissioner system recommended by the Eames/Bradley group, provided that there is no drop in service to victims. The HET was a PSNI idea, which was supported by Government, and we are very proud of what it has achieved.

1601. The financial issue will not really affect us in the sense that it is a red-circle budget. Having said that, even if it does move across, it will not remove the responsibility from my organisation to search for material and to do all the research work, which we sometimes still have to do, even for the Historical Enquiries Team. Therefore, in essence, there is a transfer cost.

1602. We think that we have recovered most of the material in relation to murders, but Eames/Bradley group report goes far wider than that. It is a one-stop approach; victims of the Troubles can come and see the commission to find out where the best solution lies for them. However, inevitably, there will still be a cost on my organisation to supply whatever we can to bring some form of resolution to those families, so, notwithstanding the move to implement the proposals of the Eames/Bradley group, there will still be an impact on the policing budget.

1603. Mr McFarland: Presumably that is unquantifiable, given that it depends on how many people come forward.

1604. The Chief Constable: Absolutely. It is utterly dependent on demand.

1605. Mr McFarland: My second question relates to the police college. As I recall, the original business case contained a clawback, in that the college was going to be used by international police services that would fly in to use our state-of-the-art college, which would pay for a chunk of it. What is the situation with the incoming money from the sale and use of the police college when it is built?

1606. The Chief Constable: I will ask David to deal with that question. The bigger picture is that there is still huge interest in what has been achieved in policing in Northern Ireland. Only last week, I spent a whole 36 hours in America, and some key officials are very interested in the way that this organisation has worked towards the resolution of a difficult conflict. There is still a likelihood that they will seek training and other things here — people will be looking to here as a centre of excellence. It is unquantifiable, but I think that it may be small money compared to the overall cost of running the college. It will be an add-on, rather than something we can predict.

1607. Mr Best: The business case prepared for PSNI made no assumptions about income from that source. There is an expectation, but we do not want to anticipate it. Who knows where the security situation will be? Hopefully, it improves as time passes, but no assumptions have been built in.

1608. I listened to the earlier discussion with the Policing Board. Some £90 million is set aside, £52 million of which is in the current CSR period, but £38 million falls into a future CSR period. We need to make sure that that funding is clearly identified in the future period. I wish to confirm, with respect to Barry Gilligan’s comments, that there will be additional running costs for the police college. The figure of £4 million to £5 million is the best estimate that we have.

1609. Mr McFarland: My third question is about the part-time reserve that was to form the final 10% of the Patten issue to raise it from 30% to 40% of the current population. That was clearly diverted early on. We then had the plan to bring in the police community support officers (PCSOs). Can you update us as to where we are with that, with respect to costs, personnel, people and changes?

1610. The Chief Constable: The harsh reality is that we do not have the money for PCSOs. That is a shame as I think that it would have been a real step forward. We wanted only 400, and they were to be focused on the very front end of community policing, with no mission-creep, which some forces have been guilty of. They would have been working to local sergeants to deliver community policing. It is a shame because it was an opportunity that we would like to have taken up.

1611. As long as we have an establishment of 7,500, our flexibility is limited. However, I recognise that there is no more money. Part-time officers are down to about 500, which is not what Patten envisaged at all. Those 500 are absolutely embedded in neighbourhood policing. We saw the 400 PCSOs as a critical add-on to that, but it is not happening because of lack of finance. The only way to move on is to look at our overall budget and the mix of sworn officers, PCSOs and support staff. At the moment, we are committed to 7,500 for all sorts of very good reasons, but, as I said in my opening comments, after next year we will recruit to full capacity. After that, it becomes hugely difficult. To achieve that, we will have to do something else within the current structure.

1612. Mr McFarland: You will recall that, early in the Policing Board’s life, we had a visit to Chicago. There, they use 1,000 volunteers on a voluntary basis — often retired officers. Do you see something like that being brought in to cope with rising costs?

1613. The Chief Constable: Sadly, I did not go to Chicago. That must have been a Policing Board trip, rather than a police trip.

1614. Lots of forces do that. In Sussex and Surrey, they open police stations on a volunteer basis. I have no issue with looking at all such ideas, but to add service, rather than to provide essential service, and although it would be nice to have, it cannot be predicted. Continuity and health and safety issues all have to be considered. However, I have no difficulty in having a serious debate about the matter. It is not something that we have dealt with, quite frankly. We get huge support from volunteers for policing generally, but not for opening stations, and so on.

1615. Mr Paisley Jnr: Thank you for your presentation, Chief Constable. In your letter to the Committee of 6 February 2009, you indicated that, in order to achieve the breakdown plan in the current financial year, it was necessary for the Police Service to implement budget cuts totalling £15·3 million in the last three months of the financial year. To achieve that, the NIO had to transfer £9·1 million from the budget allocation of future years. You say, quite rightly, that that is not a sustainable solution. You used the phrase “robbing Peter to pay Paul" in your presentation. The bottom line is that this cannot go like this for much longer, and we accept that.

1616. I have checked my hearing of what we were told earlier. Mr Best said that there are four pressures, respectively totalling £70 million, £60 million, £50 million and, potentially, £20 million. You are essentially telling us that, in order to continue to deliver policing as it is and address the relevant pressures, you need a budget comprising what you currently get plus an additional £150 million for every year of the current spending round. If the NIO granted us that sort of settlement — and that is a huge “if"— could we deliver policing?

1617. The Chief Constable: We will deliver policing with whatever budget we get; it is a question of how effective that policing will be. As an organisation, we must ensure that we provide value for money and drive all possible efficiencies out of the money that we are given. The chairman and the deputy chairman of the Policing Board talked about how we are held to account in that regard, and it is right and proper that that is the case. As w touched on in our opening remarks, we can deliver savings without impacting on front-line services.

1618. The NIO has been very fair in trying to resolve issues such as hearing-loss and equal-pay claims, but those pressures are not to deliver policing but to deal with legacy issues. My frustration is that the money that we are allocated, through all the bidding processes, to deliver policing now is being eroded by trying to deal with things that are outwith my control. I cannot refuse to provide information to a public inquiry; that is a civil offence followed by a criminal offence under the Inquiries Act 2005, and I would not want to commit that offence. I have to put huge effort, resource and expertise into doing work that is not built into the budgetary base. Hearing-loss claims, equal-pay claims, and so on are nothing to do with us, but they impact on our budget. We received some very helpful correspondence about hearing-loss and equal-pay claims from the permanent secretary, and I am hopeful that those issues will be dealt with, and likewise the pensions issue.

1619. I would like all the things that we should not be dealing with in the first place to be taken out of our budget. That would give us a sensible bidding process so that, through the Policing Board, we can come to the Assembly with our proposed budget. Then we can deliver policing. David may be able to talk about the figures in more detail.

1620. Mr Paisley Jnr: You have set out the numbers very clearly this morning. Your settlement has been described as a generous settlement, and, realistically, it is a generous settlement. However, the fact of the matter is that the NIO has not distinguished between legacy costs and policing costs and has lumped those costs together. You have to make calculations of service delivery on the basis of how it is handed to you, and you do not choose the cloth to be cut that way.

1621. If any of us successfully persuade the NIO to separate legacy costs from policing costs, we could consider a reduced settlement because the NIO would be responsible for settling legacy issues. However, rightly or wrongly, legacy issues are currently contained within policing costs. Would £150 million in each year of the current spending round and the succeeding spending round be sufficient to deliver policing and meet those pressures?

1622. The Chief Constable: Given all the pressures, including the bid that has been made for extra funding from Government to deal with the rise in terrorism, the short answer to that question is no. A settlement of £150 million each year would be at the bottom end of an estimate. Rather than £300 million over two years, the amount of money required is probably more likely to be somewhere between £300 million and £400 million.

1623. The other option is for us to be treated like other forces and for pressures such as pensions to be taken out of my budget. We have far more pensioners than serving officers, and a police force that did have 13,500 officers is now being funded by the pension contributions of 7,500 serving officers who only pay either 8% or 11%. More police officers are retiring early, so pensions are an ever-increasing pressure on our budget. Pension payments take up about 36% of my budget, and another 45% of my budget goes towards paying serving officers. There is pressure on me to save money, but that is only relevant to a very small amount of money; the rest of my budget is predetermined expenditure that pays current and retired police officers.

1624. I would be much happier to have a smaller budget that recognised that pensions and legacy issues are not our responsibility. That would mean that we could be held to account for the money that we are given to deliver policing. There would then be interesting debates about how many police officers, PCSOs, part-time officers and police stations we want to have. It would mean that we could control the business; I cannot control a business in which so many things are simply outside my influence.

1625. Mr Paisley Jnr: Do you agree, however, that it is not realistic to talk about reducing police numbers in the current policing climate? Do you accept that?

1626. The Chief Constable: One can certainly have a conversation about the policing mix. If you want to build community confidence through community policing, there is a serious debate to be had on the value for money of, say, a community officer versus 1·6 PCSOs who are utterly focused on delivering community policing with the local sergeant. Frankly, that debate must be had.

1627. Mr Paisley Jnr: That is at the micro level. At the highest level, there are 7,500 officers. Let us be honest; it is not realistic for politician in this room to go out and advocate that 1,000 fewer police officers are needed in the current climate.

1628. The Chief Constable: Politically, advocating a drop in police numbers is probably —

1629. Mr Paisley Jnr: Suicide.

1630. The Chief Constable: It would not be seen as a good thing.

1631. Mr Paisley Jnr: It is like asking to cut the number of nurses.

1632. The Chief Constable: That said, from a professional basis, I will deliver policing with whatever number of officers I have to the maximum of my ability. We are unique in the sense that we have this notional establishment. Every other force turns on and off the recruitment tap in order to manage expenditure. Many forces are currently turning off the recruitment tap because budgets are going in the wrong direction.

1633. Mr Paisley Jnr: If you did that, you would upset the 50:50 balance. Is that right?

1634. The Chief Constable: No, it would not. If numbers are cut, the 50:50 balance will be maintained. Patten’s view of 30% was his top end of optimism. We will achieve 30%, even if recruitment stops. That does not add up, simply because the retiring officers would be skewed in one direction and the number of new officers — however many come into the force — will be 50:50. The debate is about what is the best policing mix to deliver effective community policing.

1635. The harsh reality — which I referred to at Stevie’s funeral and, last night, when I spoke to my colleagues in the Police Superintendent’s Association of England and Wales — is that if you respond in London to a call about criminal damage, as that officer was doing, the maximum number of officers that you will send is two, instantly, even in the tough areas of London. In the same situation, we had to send a minimum of five officers, and that still did not work. The increased cost of policing in the current environment is, therefore, very high. We can deliver that. We can also deliver it in different ways.

1636. The numbers argument, therefore, is a red herring. What I want is clarity on what my budget is, and certainty that I can influence that budget and that nothing will suddenly appear from 20 years ago that I will have to fund. That is where the pressures are. It was hearing loss this year, and — notwithstanding the support from the NIO — all of a sudden, claims go up. The potential impact of that on our budget in 2009 is another £3 million. In essence, had we not had that support from Government, that £3 million of notional money — because it will never be spent in 2009 — would have gone into my balance book. I cannot pay it, so I must claw it back from real money in 2010. That is £3 million out of overtime. That is no way to run a business.

1637. Mr Paisley Jnr: That is a crazy way to run a business.

1638. A couple of weeks ago, Forensic Science NI made a helpful presentation to the Committee about the modern requirements of forensic evidence and about how its facilities are almost at tipping point. It urgently requires a new facility. Are there any pressures as regards storage of forensic materials which place an additional pressure on policing?

1639. The Chief Constable: None that has been brought to my immediate attention. We have reviewed all our property storage. The forensic laboratory, quite rightly, needs be an independent organisation and institution. I understand that there have been plans to rebuild it. Conversations have taken place in that regard. In essence, we probably supply 98% of its business.

1640. Mr Paisley Jnr: I will put it another way: is there any pressure on the police with regard to storage of forensic material?

1641. The Chief Constable: Nothing has been brought to my attention that we cannot cope with. I am happy to come back to the Committee if there is something specific.

1642. Mr Paisley Jnr: In you submission, to which you referred earlier, you have highlighted that as a pressure:

“To achieve the shortfall of £38.5m in capital budgets, a number of planned developments were delayed, including Cookstown, Ballymoney, Downpatrick, Armagh, Castlereagh, and the purpose built Call Management facilities and new facilities to store forensic exhibits."

I do not ask in order to trip you up, Sir; I ask because Forensic Science told us that if they do not get that facility, that will affect their ability to deliver forensic science in a way that lawyers cannot pick apart — which, if they do, lets guilty people go free. They will have huge problems unless that matter is addressed. I wonder whether you have started to feel that pressure, not necessarily in a financial sense, but from a practical point of view.

1643. The Chief Constable: Put it this way: new facilities would, certainly, enhance capacity. In recent cases, exhibit storage in the past has been severely criticised. That was many years ago. Just last Sunday, as I have mentioned, I visited the murder investigation unit. No one brought to my attention any concern about storing the mass of exhibits that relate to current inquiries. The issue is about enhancement and the right way of going. I am not sighted. I will get back to the Committee if there is a specific issue causing a problem between us and Forensic Science. I happen to be going there next Tuesday to discuss current cases. I will seek clarification and get back to the Committee.

1644. Mr O’Dowd: I apologise for being absent from the meeting for a while; I had to attend another meeting, which, thankfully, did not last too long. Chief Constable, I want to return to a point that my colleague raised with you earlier about the Antrim detention centre and your forecasts for future budgetary matters. Given the concerns raised this morning by Monica McWilliams, the Human Rights Commissioner, and the concerns raised by other groups and political parties, including Sinn Féin, about 28-day detention — which in itself is a debate for another day, and you are aware of Sinn Féin’s opposition to it — if the British Government and the PSNI continue to use that legislation, surely you will have to plan for and provide humane, adequate detention centres. The Antrim centre was built for 7-day detention, which itself is an abnormality in domestic law. You are now holding people in that centre for 28 days, and it does not have adequate facilities. Surely, you will have to plan for proper facilities in the future.

1645. The Chief Constable: As a matter of record, nobody has been held for 28 days. I had a conversation with the Human Rights Commissioner this morning, and a number of points spring to mind. Monica rang me last night and I gave her instant access, within an hour of her request; she did not rely on any legislation to get access. Her observations this morning relate, in part, to her organisation’s objection to 28-day detention, which, as you say, is a debate for another day. As police officers we will use the legislation that is enshrined in United Kingdom law, which we are entitled to use, subject to massive judicial oversight. That was evidenced by one of the hearings before the judge, which lasted for 12 hours and ran to 1.30 am. I do not think that there was any debate around whether the detention was lawful.

1646. There is a debate to be had about the conditions, and I await with interest her report on that this afternoon. She told me — and stated publicly — that no prisoners had complained about the way in which they were being treated or the compliance with human rights legislation by officers. Those officers are independent from the investigation. It is inappropriate to link an objection to current enacted legislation to particular cases where my officers are charged with investigating three of the most brutal murders in the unfortunate history of Northern Ireland. It is a complicated mix.

1647. I have no difficulty with looking at any report that comes out from any organisation — be it the Humans Rights Commission, lay visitors or my own officers — that says that detention facilities need to be enhanced. That proposal would go into the bidding process, and we would look at it. If a decision was reached that a new build was required — as I suspect would be the case — we would build it. We could come back to the proposed costs. There is nothing to benchmark it against, because we have the most modern facility in the United Kingdom.

1648. Mr O’Dowd is right in that the law was different when the Antrim centre was built. However, that does not mean that I have any intention of keeping people in custody a day longer than they should be in custody. That has been evidenced by the way in which the recent cases have been dealt with to date. People have been charged; some have been released, and some are being retained, subject to judicial oversight.

1649. I am happy to have that debate. If it means that we have to build something else, it will have to become part of the bidding process. The Committee will want to reflect on how that could be done. Perhaps it would have to come from schools or hospitals, or something else, if it was within you overall budget allocation. I think that that is how it would work: it would go into the bidding process.

1650. Mr O’Dowd: I acknowledge that Monica McWilliams did state —

1651. The Chairperson: John, I am reluctant to allow —

1652. Mr O’Dowd: I am not going to go into it too much.

1653. The Chairperson: We are here to examine the financial implications and issues.

1654. Mr O’Dowd: One of the questions —

1655. The Chairperson: I have given you some flexibility.

1656. Mr O’Dowd: We always ask witnesses whether they are going to return to us in the future and tell us of costs that are required for some project or other. That is why I am exploring this issue. I acknowledge that the Human Rights Commission stated that there are no complaints against any of the officers involved in the Antrim centre. The Chairperson has told all witnesses that, if they come back in the future saying that there is £6 million that they thought they might have to spend, but did not tell us about, that will be looked on dimly. If there are concerns, we need to acknowledge them and we need to plan for them into the future.

1657. The Chief Constable: On the recommendation of the Police Ombudsman, we routinely respond to concerns about detention and find the necessary money from with the budget. The ombudsman was concerned, for example, about ligature points — that certain parts of police cells could be used by someone in custody to hang themselves. We are finishing our refurbishment of every single cell to remove that risk. We always respond to such issues, but we do so within our budget and our allocation for capital expenditure.

1658. Part of the pressure on our capital stems from legacy issues — as members know, some buildings in the police estate are in an awful state of disrepair. Also, there is no longer any additional money available from Patten. Over time, we will have to manage certain legacy issues by selling what we do not need and keeping what we do. The other day, we were offered £60,000 for one building because of the current economic climate — that is crazy.

1659. Some buildings have a book value of several million, simply because of their security infrastructure, but that is worthless to anyone else. To sell those buildings, we would hit our bottom line to the tune of £1 million, £2 million or £3 million and would, therefore, have to find another £3 million. We are in negotiations with central Government to get that pressure removed. The unique situation here means that is not sensible to penalise my organisation by stating that the book value of a certain building is £5 million when its real value to anyone, even in the current economic climate, is probably 20% of that.

1660. Mr Hamilton: It is clear that the current budget within which you operate is, in many respects, crippled by — [Inaudible due to mobile phone interference.]

1661. That is not my mobile phone.

1662. Mr Paisley Jnr: Guilty!

1663. The Chairperson: I always look in one direction, and I just happened to be looking in your direction.

1664. Mr O’Dowd: Action should be taken.

1665. Mr Paisley Jnr: There is the man to do it.

1666. The Chief Constable: Section 44 is always available to us in these circumstances. [Laughter.]

1667. Mr Hamilton: Your budget is clearly crippled by costs relating to legacy issues and policing the past, and you have outlined some of those issues in detail. At present levels, what percentage of your budget is being spent on legacy matters and the policing of the past?

1668. The Chief Constable: That is an extremely good question, and quite hard to answer.

1669. Mr Best: A couple of significant issues have arisen recently, and a figure of between £300 million and £400 million to fix those up has been mentioned. The big ones have come recently. The legacy costs, including the HET investigations, are projected to be £15 to £20 million per annum, over the past couple of years and projected forward. However, if members study the new figures for the next couple of years, there is a bigger problem, and the figures mentioned are a fair reflection of that.

1670. Mr Hamilton: Upwards of £400 million out of £1·2 billion represents approximately one third of your budget.

1671. Mr Best: The Policing Board referred to the cost of reinstating overtime. Potentially, if one includes the bid that was submitted recently in response to the current security situation, a large part of which was to reinstate overtime, those figures will be accurate.

1672. Mr Hamilton: That is fairly sizeable — [Inaudible due to mobile phone interference.]

1673. The Chairperson: Will everyone check their phones again to ensure that they are switched off? It is interfering, as you can hear.

1674. Mr Paisley Jnr: I think it is Eamonn Mallie.

1675. Mr Hamilton: Before the interruption, I was expressing shock about how one third of the budget is being taken up.

1676. The Chief Constable: So much of this is unpredictable. On hearing loss, we do not know how many cases will be settled and how many will go to court each year, how many will be contested or uncontested, or how many we will win. Similarly, we do not know when, or if, we will have to pay out on the equal-pay claims. It is in there somewhere. It is foreseeable, so it is right that it appears in our accounts, and we are obliged to include it.

1677. The figures are, to some extent, projections, and that is what makes it so difficult for me, as Chief Constable, to manage the budget. One minute my budget looks good, and suddenly I am looking at a £15 million overspend, or whatever it is. That amount of money cannot be clawed back in the last six to eight weeks of a budgetary year.

1678. Mr Hamilton: The figure of £50 million was mentioned in relation to the current dissident threat. What duration does that amount cover?

1679. The Chief Constable: Two years.

1680. Mr Best: It covers a two-year period. It is £49 million plus FTR, plus some close protection unit (CPU) projected costs because the CPU is going to be retained longer. Therefore, it is £50 million plus.

1681. Mr Attwood: I apologise to the Chairperson and to Sir Hugh; I had a meeting upstairs which meant that I could not be here for the Policing Board’s presentation. I hope that I am not going back over issues that may have been covered in the opening submission. However, I would like some clarification. I think that the Secretary of State adjusted his position somewhat on the Eames/Bradley proposal to make a financial acknowledgement of people. He made a comment — I think that it was in a parliamentary answer during Northern Ireland Question Time — in which he opened the door for that possibility. You may want to check that.

1682. You said that you got a letter from the permanent secretary which was quite helpful. Was it helpful because he gave you some reassurance in respect of the additional costs around pensions, hearing loss, legacy issues and so on? Or did he reassure you that those costs may be separated out from your annual budget and dealt with under separate budgetary arrangements outside the PSNI’s annual framework? What reassurance are you getting?

1683. Mr Best: We have been reassured that the PSNI, the Policing Board and the NIO will agree to set the sums of money aside. Currently, there are no guarantees as to where that funding will come from. There is the potential that all those costs will still have to be recovered from the police budget.

1684. Mr Attwood: Those are just the current pressures that you are talking about. You have been reassured that the pressures which have arisen will be met. However, we do not yet know where the funds are coming from.

1685. Mr Best: Currently, we do not know where they are coming from.

1686. The Chief Constable: Without that letter, we could not have balanced the books this year.

1687. Mr Attwood: Is the permanent secretary giving you any reassurance around the demands which you might anticipate over the final two years of the CSR period?

1688. Mr Best: One of the big pressures referred to earlier was pensions. If we were to move to a similar scheme, there is a potential pressure of £64 million each year over that two-year period. That is under discussion at the moment.

1689. Mr Attwood: Potentially, therefore, there is some reassurance for this year. Somebody said that they hoped to have the financial arrangements around the devolution of policing and justice confirmed by the end of the financial year. Given that there are still issues around pressures over the next two years of the CSR period, are you in a position to say that you have been reassured in respect of those matters? Are you telling the Committee that that reassurance has not materialised?

1690. Mr Best: Certainly, from the perspective of the PSNI, at this point in time, we have not received assurances on those issues. Those issues are under discussion.

1691. Mr Attwood: My second question is on a slightly broader point, but it does arise from what you said, Sir Hugh. There is a debate to be had around police numbers. Are you currently having that conversation with the NIO, subject to, and mindful of, the security situation that has now arisen? In general terms, given what the NIO and Her Majesty’s Inspectorate of Constabulary (HMIC) recommended in respect of overall police numbers, has there been a conversation over recent months concerning the longer term?

1692. The Chief Constable: I think that that is a discussion for the Policing Board, in the sense that we have to produce a balanced budget for the board’s approval. However, we have reassured the board that next year, we are committed to recruiting 440 people, which will keep the numbers at around 7,500, give or take the normal churn. The HMIC’s report on police numbers — which came up with, I think, the figure of 6,026 — made a number of assumptions which have not been met. Indeed, if one looks at the Patten programme, some of his assumptions around normalisation have not been met. It is a debate that currently rests between us and the Policing Board, and that is the right place for it to be. We have to look at our budget and make those hard decisions. We are clear that next year we can balance the books; however, I think that the year after that, there is still a debate to be had.

1693. Mr Attwood: I agree that the HMIC assumptions were flawed on a lot of the criteria, but, prior to the recent situation that has arisen, had the NIO asked you whether it is time for you to say that we can get to fewer than 7,500 officers within two, three or four years?

1694. The Chief Constable: As I said in my opening remarks, and as I have also told the Policing Board, we cannot fund 7,500 officers next year or the year after. It is unlikely that we can deliver that with the available funding. Likewise, as you pointed out, there is no plan or mechanism to reduce numbers more quickly than natural wastage. When the severance scheme ends in 2011, we predict that the natural wastage will be somewhere between 70 and 90 officers a year. That is assuming the current economic climate. People might stay longer, so it will be a very slow process in terms of legal obligations. We cannot make officers redundant. That is not a situation that I want to be in, and it is not one that is available to me in law anyway.

1695. Mr Best: My understanding is that the NIO’s position is that 7,500 officers will be retained for 2009-2010 and 2010-11; after that, it will be subject to further debate.

1696. The Chairperson: Final question, Mr Attwood. Before you came in, it was indicated that the Chief Constable has time pressures. We are beyond our time, and Danny Kennedy has not got in yet.

1697. Mr Attwood: I will be very quick. Given what John O’Dowd said about future accommodation costs in respect of Antrim police station, and subject to what you might hear from Monica McWilliams, do you feel that the accommodation facilities at Antrim are fit for purpose, regardless of whether they are for a detention period of seven days, 14 days or 28 days?

1698. The Chairperson: I am not going to allow that question. That answer has already been given to Mr O’Dowd. We are discussing purely financial issues here. I made that clear earlier.

1699. Mr Attwood: It is a financial issue.

1700. The Chairperson: I am sorry, but I am not going to allow that question. You can read the transcript of evidence.

1701. Mr Kennedy: I welcome the Chief Constable and his colleagues. I apologise for my unavoidable absence, which might be welcomed by others.

1702. Mr McCartney: It is.

1703. Mr Kennedy: With regard to the question of ongoing pressures on police resources due to the current level of threat, is it prudent to restrict personal protection weapons (PPWs) to current or former members of the security forces? There seems to be a widespread campaign. It might have a benefit in one sense, but, in another sense, surely it will increase the costs of providing adequate cover to people who feel more vulnerable as a result of that threat. Do you have any comment on that?

1704. Secondly, the Policing Board told us earlier that the closure of police stations was in no way connected to saving money. Do you share that view?

1705. The Chief Constable: There is no financial implication to the PPW issue. Deputy chief constable Paul Leighton is reviewing some of the issues around that policy, but, frankly, the biggest danger a PPW has is to its owner. Sadly, since I have been here, more owners of PPWs have committed suicide using them than have died from shots fired in anger or protection, and it is a matter that we are looking at.

1706. With regard to the closure of police stations, we have a huge police estate. It is about 170% of the size of that of any comparable police service. However, much of it is in disarray, falling down, not compliant with health and safety, and needs to be got rid of. In the more recent past, selling it gave us a financial benefit, and we could invest that in the police stations that our officers worked in. Frankly, if police officers are working in inadequate and squalid conditions, it is not the best environment from which to expect them to go out and provide a high-quality service. That is a really important debate.

1707. The reason for closing a police station relates to whether it is needed to provide an effective policing service. There is an inevitable economic benefit to so doing, and common sense dictates that I can only invest in a certain amount of estate. Therefore, there is an economic element to it, but the primary reason is whether we need a particular station to provide a front line service to community policing. The frank answer is that we have far too many police stations.

1708. The Chairperson: I have a couple of final points. In relation to parading, which has not been touched on, there is evidence in your submission of a downward trend in the cost of policing parades. We are thankful for that and hope that that trend continues. However, do you project some stability in the cost of policing parades, or will it continue to be a volatile item in relation to the budget?

1709. The Chief Constable: That is very hard to predict. The challenge of policing in Northern Ireland — certainly during the parades season — is unlike any other policing practice. I have experience of policing the Notting Hill carnival: predictably, year on year, disorder dropped from 1977 onwards. It went from a public-order situation to a public-safety situation in a clear, definable trend. The 2007 marching season was an extremely bad year, but it was preceded by a good year, and the past two years have been good.

1710. All other things being equal, and with the amount of engagement that I am getting, things are looking good. However, developments can move very quickly. Consequently, planning is unpredictable. My current best guess is that I think that we will be OK this year. Public support for policing is increasing and the amount of community engagement is increasing. The responsibility of the leadership shown around loyalism in relation to the current attacks, from top to bottom, suggests that there is an increasing grip that can be used in other ways. All other things being equal, I would like to think that this marching season will be very peaceful. However, I am not in the business of second-guessing the situation this far down the line. Sadly, it will run to the wire.

1711. The Chairperson: Everyone who has given evidence to the Committee has been asked about value added tax (VAT). Does the PSNI currently pay VAT and, if it does, is it reclaimed and retained within the budget?

1712. Finally, there is another question that everyone has been asked — and John O’Dowd has mentioned it already. Are there any other issues that you are aware of that could have a material or inescapable consequence on the budget in the future? Is there anything hurtling down the tracks that could cause alarm and that might well have financial implications in the future? If there is, this is an opportunity to give the Committee some idea of what it might be.

1713. The Chief Constable: I will ask Mark McNaughten to deal with the technicalities of VAT. As regards anything else that could happen, there is nothing that I can think of, currently. However, to be frank, I did not see the hearing-loss issue coming. You may remember the post-traumatic stress class action that was won by the organisation. At the time, I was far more concerned about that, because it was costed at hundreds of millions of pounds. The hearing-loss issue was a different issue, and I did not see it. Is there anything else like that? Heaven only knows. I cannot see anything huge or out of the ordinary as regards the routine issues that could suddenly hit us and knock us sideways.

1714. By way of reassurance, we will deliver policing with whatever budget we are given. We will deliver efficiency savings with whatever budget we are given, and we will do our best to maximise front line service to the communities and drive the efficiencies out of that. My biggest worry is the uncontrollability of legacy issues that impact on our current policing budget.

1715. Mr Mark McNaughten (Police Service of Northern Ireland): We pay VAT as a service, but we also reclaim it, so there is no net cost to the service.

1716. The Chairperson: Quite a number of areas have not been covered, because we have not had the time in this session. As with other witnesses, we have several questions that we will send to you before close of play today. We would be grateful if we could have answers to some of those questions before the Secretary of State gives evidence next week. I understand that there may be pressures, but, if it is possible, we would appreciate it if we could have answers to some of those questions, even though you may have to come back to the Committee at a later stage with more details.

1717. Thank you, Chief Constable, and your colleagues for giving evidence to the Committee today. We will be talking to you again.

1718. I remind members that the media has had access to both the visual and audio feeds from the Committee’s proceedings today and the session in the Chamber. We have no plans to issue a press release. I remind members of their responsibilities when issuing press releases or giving interviews on what has been discussed with the witnesses here today. Thank you very much.

1719. The Chief Constable: Thank you.

31 March 2008

Members present for all or part of the proceedings:

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


Mr Shaun Woodward

The Secretary of State for Northern Ireland

Mr Anthony Harbinson
Ms Hilary Jackson

Northern Ireland Office

1720. The Chairperson (Mr Spratt): Good afternoon, Secretary of State. I welcome you to the Committee. I understand that you have time constraints this afternoon, and that you will be able to stay with us for 45 minutes to an hour. Your colleagues Hilary Jackson, political director; and Anthony Harbinson, director of resources, are also very welcome.

1721. Before we start, I ask Members to declare interests. I declare that I am a member of the Northern Ireland Policing Board.

1722. Mr McCausland: I am a member of Belfast District Policing Partnership (DPP).

1723. Mr Paisley Jnr: I am a member of the Northern Ireland Policing Board.

1724. Mr A Maskey: I am a member of the Northern Ireland Policing Board.

1725. The Chairperson: I ask members to make sure that mobile telephones are switched off; that also applies to the Public Gallery.

1726. Secretary of State, I understand that you will make a short opening statement, and that you will then be happy to take questions from members. I think that most members will have questions for you. Welcome again, and I ask you to make your opening statement.

1727. The Secretary of State for Northern Ireland (Mr Shaun Woodward): Thank you very much, and thank you to all the members of the Committee for being here this afternoon and continuing your extremely important work. I shall begin, Mr Chairman, by referring back to the events of the last few weeks and the last day.

1728. Very clearly, people in Northern Ireland were deeply and rightly concerned about the two terrible criminal attacks that took place: the pre-planned attempt at mass murder that succeeded in killing two very brave young men at the Massereene Army barracks; and the murder of the very brave police constable two days later in Craigavon. What has been demonstrated very clearly — if there is anything good that can be found out of the terrible tragedy for all the families involved — is the strength of the political process that you have all established here. The criminals who wanted to bring about a shaking of confidence have been shown that not only are the political institutions — of which this is a very important part — stronger, but the roots of the political process are deeper and reach far wider.

1729. Members of the Northern Ireland Policing Board who had the privilege of travelling, as I did, to the United States the week before last, will have discovered that people there looked at what happened in Northern Ireland and saw two things. They saw real shock that those events could have happened, but they also saw the people of Northern Ireland unite. They saw all the political parties and their leaders come out together to condemn the attacks and send a very clear signal to the world that the small group of criminals who may be capable of launching and carrying out those cowardly attacks cannot succeed in disrupting the extraordinary political progress here because it is so deeply rooted.

1730. I observe that because one of the things I feel even more strongly than I did the last time I came before this Committee is that, rightly based on the principle of establishing confidence and carrying out confidence-building measures in the communities of Northern Ireland, the real answer to the criminals who tested the political institutions and the people of Northern Ireland the week before last — and tried again yesterday with 37 hoax incidents — is to continue the political progress and the work on devolution. It is, of course, precisely because this work is succeeding that these criminals carry out such acts. They fear the consequences of devolution being completed, of the politicians here sharing power of all Government Departments and policing and justice being transferred from me, as Secretary of State.

1731. Politicians here have rightly responded in stating their commitment to continue with the political progress that is being made. It will be built on confidence and clear principles, and I hope that, by answering your questions this afternoon, I can help with that. I firmly believe — as does the Prime Minister, the Taoiseach, and the President of the United States — that the completion of devolution is the best answer of all to the threat that is posed by those criminals, albeit a small number, who refuse to move out of the grip of the past, and who masquerade with some political project that clearly has no place in Northern Ireland today, as was demonstrated so firmly in the very courageous words of the deputy First Minister and others, and in the very strong words of the First Minister.

1732. The best answer that we can all give is the completion of devolution. Having said that, the work that this Committee has done has been extremely important in helping that process achieve the level of confidence that is required in communities.

1733. I know that the Committee wanted to raise a number of issues and one of those concerns protocols and concordats. We are still in process of finalising those, but we are very close to completing them. There are two protocols: one is on policing architecture; the other is on national security. There are two concordats: one each on judicial and prosecutorial independence. Within weeks, I will be able to share them with this Committee and I will be happy to do so. You will find no surprises in them, but it is important that we get them right and, as we are in the process of finalising them, I should just say to you that I will bring them to you as soon as they are ready. There is nothing mysterious about their not being ready: we just need a few more weeks.

1734. I know that you are keen to test me on the area of resources for the Department of justice. The Assembly has yet to decide whether to set it up, what model it wants and when it will choose to request the transfer of power.

1735. I have four things to say about resources. The first is that I stand by the statement that the settlement achieved in the comprehensive spending review was a fair, reasonable and good settlement for policing and justice in Northern Ireland. It is worth saying two things in relation to that.

1736. The first is that you would not find a police service or a chief constable anywhere in the United Kingdom who got as much as they wanted in the settlement. You would find several who would point to Northern Ireland as having got a settlement that was, in their eyes, particularly generous. That does not mean that I do not understand why every single member of this Committee, and every single member of the Policing Board who sits on this Committee, would like to have had more. However, that is something that everyone here would have in common with every police service and force throughout the UK. I believe that it was a good settlement.

1737. The second issue is about some pressures that are genuinely additional to those forecast in the CSR settlement. The Chief Constable and others have identified a pressure in relation to claims for hearing loss. That involves a substantial level of claims: a number of been made and more are expected. It is not clear how many will be made. However, to give you some sense of quantum, in the police service in the constituency that I represent, St Helens South in Merseyside, at any one time there might be up to 100 officers armed. However, in Northern Ireland, those numbers go into several thousand.

1738. Northern Ireland has had to deal with a very different kind of problem, and I recognise that. That is one reason why I wanted to set up the Heywood committee, which is looking at a whole series of issues. I must tell you that I would not recognise some of them as additional pressures: they are pressures which must be managed within resources, just as for any other police force in the UK. However, there are some that go beyond that, such as the hearing loss issue. The issue of inquiries has understandably preoccupied people and the Heywood committee will look at that.

1739. I know that you want to raise some issues with me about the future of the Northern Ireland Office, and Hilary Jackson might be particularly well-qualified to deal with that, as we have worked on a number of those issues together. There are the issues that I would not regard as business as usual in respect of the reallocation of priorities, which have arisen as a consequence of the problems that we have seen in the last few weeks in relation to the activities of a small number of criminals who, nonetheless, have the capacity to cause massive traffic disruption on our streets.

1740. The activities of those criminals must be seen in the context that there is no substantial, and almost not any, community support for them. Nonetheless, those activities make a demand on the Police Service. To ensure that we continue with a normal Police Service, the Chief Constable wishes to make some additional demands, about which I am currently in discussion with the Treasury and the Prime Minister.

1741. It is very important that the situation is seen in context. It is not about going back to the past; it is about dealing with a very real and very dangerous threat. That threat is from a small number of dangerous criminals who have little or no community support. It is important that they get a clear political response to the problems that they wish to pose to security issues here. That political response is the united response by the party leaders and the politicians in the Assembly, and it is important that the police have the resources that they need to continue with normal, neighbourhood and good community policing in the face of that type of challenge. I am determined to help the Chief Constable and the Policing Board in seeking to meet those aims.

1742. That is a brief outline of where we are. Good progress is being made on the legislation. Westminster provided for the additional eighth model for the devolution of justice and policing, which deals with a number of technical issues. The Assembly, through the work of your Committee, asked us to do that, and that is now back with the Committee. If it chooses, the Assembly will shortly begin to discuss the work of which model it would wish to choose for a Department of justice.

1743. Assuming that confidence continues to build in the coming weeks and months, the Assembly will be in a position to vote on whether it wants those transferred powers to be effected. I believe most sincerely that the best answer to all of the problems that are posed in Northern Ireland is the completion of devolution stage 2 sooner rather than later. If I can help you today or in the coming weeks, I am happy to be at the disposal of the Committee.

1744. The Chairperson: Last week, we heard from the Chief Constable and the chairperson of the Policing Board about the very real pressures that they are under. Secretary of State, you also mentioned that, particularly in respect of the hearing loss claim. That claim has substantially increased and continues to do so monthly. The figure of £90 million for that has risen to around £130 million. There is also considerable concern about historical enquiries and other legacy issues, and the equal pay claims in respect of the Civil Service.

1745. An additional pressure, relating to the commutation of police pensions, has emerged in the past two or three weeks. We understand that, as a result of a court hearing, the Home Secretary will announce that an additional period of pensions will be paid across the United Kingdom. We understand that that will result in an additional pressure of £22 million over a two-year period. Pensions are treated differently in other parts of the United Kingdom than they are in Northern Ireland, and we want you to consider that issue sympathetically.

1746. I appreciate that you provided some insight into that. At what stage are the discussions with the Treasury on the pressures that are on the PSNI, and is there likely to be an announcement on that? As the issue rumbles on, it creates unease and difficulties for the Committee and for the Assembly. We need some reassurance on that.

1747. The Secretary of State for Northern Ireland: Let me be very clear with the Committee. In the event that the Assembly asks for the powers of policing and justice to be transferred to those who are elected here, it is not the intention of the Government to pass over an underfunded and under-resourced Police Service of Northern Ireland.

1748. However much people may have wished for more, my strong view is that the CSR settlement, set in the context of a policing settlement in any other part of the United Kingdom, is good. The Heywood committee is not yet halfway through its work on the additional pressures. At least two more meetings will take place: one in the coming weeks and one at the beginning of May. The aim is to have achieved a resolution to those issues by 6 May 2009.

1749. The Heywood committee will deal with some issues. Realistically, others will take longer than the committee timetable allows, and those could be used by some as a reason to delay stage 2 of devolution. One such issue that comes to mind is pensions. Debates on several issues could continue indefinitely: whether they are included in the departmental expenditure limit or annually managed expenditure (AME); how much would be included in AME; or how they compare with other parts of the UK. However, if that issue were precipitated more quickly, it might not be in the long-term interest of the stability for which the Chief Constable is arguing in wanting to transfer pensions from the departmental expenditure limit to AME.

1750. One would want some issues to be resolved on principle, and as a matter of urgency, in the context of the Heywood committee: for example, points were raised about understanding historical enquiry issues and an understanding about issues of hearing loss. Although some issues may persist beyond that time, that should not in any way be confused with any lack of good intent by the Government. They want to do what is right for the people of Northern Ireland within the broad parameters of a settlement that can be UK-funded. The Government want a settlement that is not based on people simply trying to re-present arguments from the run-up to the last comprehensive spending review and making another pitch to gain a higher figure than the one for which they settled at that time.

1751. There are difficult issues, but much good progress has been made by Jeremy Heywood’s committee, and the Prime Minister and I are keeping a close eye on the process. On 6 May 2009, or shortly thereafter, we hope to have concluded the discussions on financial issues, specifically those relating to pensions and commutation.

1752. Mr Anthony Harbinson (Northern Ireland Office): The point is that all pension costs throughout the rest of the CSR period are fully funded. Money set aside with the Treasury has funded commutation issues. For the period of the CSR, therefore, I do not see that there is a pension problem. If we move from a departmental expenditure limit to a completely AME-based pension, that might raise some issues, but those are being dealt with, as the Secretary of State mentioned, as part of the Heywood discussions.

1753. Mr Paisley Jnr: Secretary of State, thank you for your opening remarks; I know that they were made sincerely.

1754. Let me cut to the chase: there is no doubt that politicians here want the devolution of policing and justice, and it is taken as read that we are on that page. However, that statement has consequences, and your seriousness in wanting us to take on policing and justice will be measured by the financial package and what that delivers, and you said as much. We should recognise how serious you are about that, and perhaps you will tell us.

1755. Our investigations over the past six weeks show a shortfall, or serious pressures, on policing and justice that amount to approximately £660 million over the period of the CSR. That is about one third of the amount that we currently receive. Have you gone to the Cabinet and said that that is a ballpark figure for the settlement to enable you to deliver your commitment on the devolution of policing and justice? You may say that you will hand over to us a fully funded service, but “fully funded" may not cover that shortfall of £660 million.

1756. The Secretary of State for Northern Ireland: Let me take you back a stage. Perhaps I should bank those compliments now, because I suspect that my next comments will not earn any plaudits. One should not judge the settlement as a virility test whereby more money demonstrates greater commitment.

1757. To be frank, the commitment that we all, including the Prime Minister, showed in support of the way that the political parties responded to the events of the past few weeks is arguably the greatest measure of all. I do not want to confuse a simple weighing of cash against genuine commitment to the Police Service of Northern Ireland and to the people of Northern Ireland. Particularly in the current economic climate, that will be —

1758. Mr Paisley Jnr: That commitment and rhetoric will not pay the bills. It will not build the prisons, it will not fund the lawyers and it will not finance the Police Service.

1759. The Secretary of State for Northern Ireland: With huge respect to the lawyers, it may be that they need to earn slightly less.

1760. Mr Paisley Jnr: I have no difficulty with that.

1761. The Secretary of State for Northern Ireland: I am glad that we can at least agree on that. I caution you, because we will do our best for the people in Northern Ireland, and we will do our best for the Police Service of Northern Ireland. However, it would be extremely foolish to imagine that any supplement can be made regardless of the fact that we face arguably the biggest global recession that any of us have faced in our lifetime or which has been faced at any other time. Therefore, not only a financial commitment must be made, but to the institutions and to the other kinds of commitment that the British Government are prepared to make as part of your virility test of our commitment to the process.

1762. However, I have made it clear that the CSR settlement should not be dismissed as a zero-sum game whereby the achievement of arguably one of the strongest settlements for any police force in the United Kingdom now does not matter. It does matter, because it is an important baseline.

1763. That baseline, however, has met some additional challenges, which is precisely why I set up the Heywood committee and precisely why it is not helpful to provide a running commentary on the discussions and negotiations that are taking place. As you know, civil servants from Northern Ireland are represented on that as well as the Treasury, Number 10 and other senior civil servants, with a view to honouring the Prime Minister’s commitment to do the best that we can should the Assembly request the transfer of powers. It is important to allow that committee to do its work. The issue should not be judged only by the number that is produced at the end.

1764. When stage 1 and stage 2 were conceived at St Andrews, the Prime Minister felt that it would have been possible to produce a substantial amount of additional financial help for the Executive and the Assembly at the end of 2008. The financial circumstances were very difficult, and that additional financial help was not requested at the time of St Andrews. Nonetheless, the Prime Minister felt that he would be able to provide that help. I ask that the situation be seen in context and in the round, and not by pitting one area against another and measuring success by whether one part achieves a greater sum than another.

1765. Mr Paisley Jnr: Have you put the Cabinet on notice —

1766. The Chairperson: You are stretching your time, Mr Paisley.

1767. Mr Paisley Jnr: I appreciate that, and I do not want to stretch your patience any further.

1768. Have you put the Cabinet on notice that the settlement package could result in a significant requirement for additional funding? You do not want that to come as a shock to the Cabinet. It is not about virility; it is about commitment. Commitment will be measured by our ability to deliver on this. Do not underestimate our desire to deliver, but if we are short-changed, we will not be able to do so. That is the issue, Secretary of State.

1769. The Chairperson: Mr Paisley, I will not allow you to come back on that point, because I have to be fair to all members.

1770. The Secretary of State for Northern Ireland: With huge respect to the question, I do not put the Cabinet on notice, because that is simply not how Cabinet works. It does not work by putting the Cabinet on notice. One creates a sensible process in which people can sensibly discuss the issue, negotiate the numbers and identify the real pressures from those that are expected to be absorbed from the CSR settlement.

1771. Mr Paisley Jnr: Have you done that?

1772. The Secretary of State for Northern Ireland: I have done that by establishing the Heywood committee, which senior civil servants attend, including those from Northern Ireland. I am sorry if you had not noticed that we had done that, but we have done it. What matters is that the committee rationally discusses the issues and achieves, if possible, a settlement that recognises, and can distinguish between, legitimate additional pressures and those that are expected to be reordered priorities within an existing CSR settlement — which is exactly what you would expect from any other police force. It is important for Northern Ireland to live in that space: it is the same space that everybody else occupies, and it is a good space to live in. However, that does not mean to say that I do not recognise additional pressures, and that is why I set up the committee.

1773. Mr A Maskey: I thank the Secretary of State for his presentation and I thank for his colleagues for joining him.

1774. It is unfortunate that people are bandying around figures, because the Committee has not agreed any figure. It is still in the midst of the important task of reviewing the overall financial position it expects to be in. Following on from Ian Og, obviously we are concerned that we get an appropriate budget for the forthcoming Department. I welcome the Secretary of State’s assertion, and I accept that the Government will want to ensure that there is a proper budget in place for when the new Department is set up.

1775. It is a bit premature to be having this discussion, in that the Committee is still in the midst of an inquiry and is carrying out its assessment on the finances. Another important factor is that the Heywood committee is currently carrying out its work. There is still a lot of work to be done and agreements to be reached. Hopefully, it will be on the better side of the budget requirements, whether they are pressures or inescapables. It is unfortunate that figures are being bandied about.

1776. I want to put on the record that the Committee does not have a position on what the shortfall might be at this moment. Suffice it to say that we are anxious that we get an appropriate budget. We are clear in our own minds that there is a need to deal with what are inescapable pressures and budget requirements, as opposed to what we would want to see. Obviously, all of the parties that represent the wider community want to have the maximum budget at their disposal to ensure that they can deliver the best, most efficient and effective criminal justice system when they are duly charged with that responsibility.

1777. Will the Heywood committee consider the ongoing questions around efficiency savings as a factor that might impact on a future Department? Efficiency savings are necessary, and it is important that we continue to do that. However, sometimes efficiency savings become further cuts. Will the Heywood committee look formally at what the consequences may be as regards expectations around efficiency savings?

1778. The Secretary of State for Northern Ireland: Thank you for your comments about numbers. It may be helpful to lay before the Committee an example of why I think it is important to be flexible about the issue. The original assessment by the PSNI on hearing-loss claims was £68 million. However, in a short space of time that became £98 million, and, to quote the figure that Mr Paisley used, it is now £130 million. So far, the PSNI has received around 2,900 potential claims. For obvious reasons, it is not entirely clear what the final number will be. Indeed, it is not entirely clear whether some of those who could make a claim in the future might have a hearing-loss problem for a different reason.

1779. Again, it is important to look at the matter on a case-by-case basis. We must recognise that there will be such pressures and the situation might change, which is one of the reasons why we should not produce a number too quickly — and, in some cases, a formula might be better than a number. The Heywood committee may be establishing points of principle, rather than numbers. However, I say that, not because I know where the Heywood committee will be on 6 May, but because I have approached Heywood with an open mind: we have a set of issues to resolve, and the best place to resolve them is in a process that brings together people who can genuinely bring their best intentions to the table with the objective of doing their best for people in Northern Ireland.

1780. In relation to that, the questions that must be asked are: will Northern Ireland have a budget for the policing service that will maintain the levels of confidence that are — and I remind the Committee of this — the highest of any police service, anywhere in the UK; will it have the money to fund its 7,500 officers; and will it be able to meet the challenges that it faces on the streets — such as those encountered in the last few weeks? I am confident that the process will produce an answer to all three of those questions.

1781. Efficiency savings are being examined in every area of public services in the UK, and we must remind ourselves of the purpose of those efficiency savings. They are not implemented to make cuts, but to realise whether we can be more efficient about what we do. If it is possible to be more efficient, more money will be available to redistribute back into public services.

1782. A very good example of that is the money that the Prime Minister delivered for Northern Ireland last year, which the Executive used to assist with those in the greatest difficulty — for example, in relation to water. That money would not have been available to people here had the Government not been consistent in its drive for efficiency savings. However, I repeat that efficiency savings and value for money should not be confused with making cuts; instead, they are concerned with whether we can be more efficient about what we do. For those of us who depend on the money that we take from taxpayers for our livelihoods, it is good that we are always seen to be mindful of looking for value for money and efficiency, but not at the expense of services.

1783. Mrs Hanna: Good afternoon, Mr Woodward; you are very welcome. The financial climate has certainly changed; there is no doubt about that. That makes it all the more worrying that some of the identified pressures, particularly those around hearing loss and pensions, are so far out.

1784. I want to ask you about the Legal Services Commission, because I cannot get my head around the figures, particularly with respect to the legal-aid bill. That bill, as we know, is more than twice as high here than in other parts of the UK. That is despite the fact that there is a higher number of legal representations there. Has the Northern Ireland Office examined those figures in detail?

1785. The Secretary of State for Northern Ireland: We have indeed examined those figures. The Lord Chancellor is responsible for a number of dimensions within the legal service here, and he is as concerned as I am about those issues. That is why he is examining them in the round.

1786. As the Committee will be aware, we have managed to meet the shortfall in legal-aid pressures for 2009, but clearly there is a problem for the coming years that remain inside the CSR. I am very mindful of that, which is why if I had to say that hearing loss was the first issue, I would put it before the Heywood committee. Furthermore, we must address the current problem of legal aid here and the long-term issues behind that.

1787. There are issues around efficiency and legal costs that concern the public. For example, the legal fees involved in the Saville Inquiry have fuelled concern in Great Britain. I make no apology for that inquiry because I believe that it was absolutely the right thing to do, and it was absolutely right that it should be independent. Indeed, one could never place a value on that inquiry, because of the confidence that it built, and the fact that it demonstrated that the British Government were prepared to hold the mirror up to everybody, including itself. However, when more than £100 million of what may end up being a total spend of £190 million was spent on legal expenses, and when newspapers such as ‘The Daily Mail’ list many lawyers who have now been remunerated to the tune of seven figures, it undoubtedly throws up the question of legal fees in Great Britain.

1788. You might ask what the price of justice and the best legal representation is, and that is a perfectly legitimate question to ask. Again, I would counsel against simply saying that the alternative must be to set a price for counsel at the lowest possible figure. I am not suggesting that those views would apply to any member of this Committee, but I would counsel against that because it may not always be in the interest of attaining the degree of justice that we want.

1789. There should be some caution about how it is approached, but the Committee should be reassured that we recognise the problem now. We have had to fix it out of spending reserves, for this year. That situation cannot continue indefinitely, and I am mindful of that, as is the Lord Chancellor. That is why it is one of the issues that the Heywood committee is looking at, not only in the short term, but the long term.

1790. Mrs Hanna: Thank you for that. I was not thinking of the lost fees for the lawyer, but a cap on the fees. It is taxpayers’ money, and, as you said, Secretary of State, we are in a different financial climate now; the money is not there.

1791. The Secretary of State for Northern Ireland: I think that you would find a lot of public support for that.

1792. Mr McFarland: Thank you, Secretary of State, for appearing before the Committee. I want to talk about the legacy issues. The Chief Constable said that a substantial part of his budget that he might reasonably expect to spend on current policing is, in fact, spent on dealing with the past — as has been the case for some time. You will be familiar with the Eames/Bradley Consultative Group on the Past and its recommendation that we should parcel up a lot of those legacy issues and, perhaps, leave that with you so that policing and justice transfer might continue with money spent on live, current policing rather than on continually dealing with the past. What is your thinking on that?

1793. The Secretary of State for Northern Ireland: I accept the problems that dealing with a particular burden of the past poses for the PSNI. The way in which the PSNI has to deal with Northern Ireland’s past is different from the way in which other police services elsewhere may have to deal with their pasts. The work of the Historical Enquiries Team is one example. It has 3,000 cases to work through and, as we know, it has begun work on barely more than half of those. That demonstrates the scale of the problem in Northern Ireland, which is why, I think, everyone appreciates that it is different. I appreciate what the Chief Constable says and the amount of time that his officers spend dealing with the past.

1794. I do not want to confuse what I may say about the need to deal with the past with any sense of wanting to draw a line, and not deal with the past. In the future, part of the success of Northern Ireland will be judged on how it gets out of the grip of the past, but is able to live with it in a way that helps people reconcile themselves with it. The future should not only be built on aspiration and hope, but on a system and a body of law that is fair and just. Therefore, that has to be part of the way forward.

1795. I am aware that those costs pose a problem for the PSNI. However, the priorities for how the police deal with its budgets are a matter for the Chief Constable and the Policing Board. I think that the Eames/Bradley group has begun to offer some interesting thoughts about how we might move forward. I made clear my position on the idea of recognition payments. It was right to remove that proposal from the table so that the other 30 recommendations could be looked at more carefully.

1796. There is no question that when the current funding for the Historical Enquiries Team runs out in two years’ time, the work will not be done. It is almost certain that the team will not have opened half the cases, and it will not have been able to conclude even a fraction of those. That work has to go on, and one must ask whether there is a better way of continuing that work. It may be done in exactly the same way, but inside a different body. In the coming weeks, I will try to begin to lay out a way in which it may be possible to move forward on some of those issues, which, perhaps, would include some of the work in respect of the Police Ombudsman.

1797. Equally, I want to enter a note of caution. That work can only be done by consensus. This is not about the British Government laying down a system for Northern Ireland — I wish to underline that. Most people in this room will know that I will work on those issues only if there is consensus. If we can find consensus on some of the issues — not only with regard to the policing budget, which will be important, but for the benefit of everybody in Northern Ireland — it will be important to begin to find mechanisms that may help us deal with some of the issues of the past. There may be better ways of doing that than the way in which we are doing it currently, as Eames and Bradley have shown on a number of fronts.

1798. It may be a good idea to try to try to bring some of those things together to be looked at by some type of commission. However, those are infant ideas at present; they are not fully developed. It would be inappropriate for me to go further than that this afternoon, except to say that I would like to pay tribute to what Eames and Bradley did. As well as potentially helping to relieve the police of some of the burden they currently shoulder, there may also be proposals in their report that will help communities to find it easier to become reconciled in what have been extremely difficult circumstances.

1799. Mr Hamilton: I want to underscore the fact that there is a desire to have policing and justice powers devolved. Many reasons for that have evolved during the course of our Committee work over the last number of weeks on financial issues and systemic problems. It would be nice if local politicians could have a stab at doing a better job than you and your predecessors have done.

1800. I must also emphasise that, if you want the devolution of policing and justice and the whole devolution project itself to be a success, there is a price to pay. As a Committee, we would be foolish not to attempt to extract that price from you and the Government, on behalf of the people of Northern Ireland. I do not want to put an exact figure on that because the Committee has not taken a view on the validity of the bids; but a large number of them seem to be valid and worthy, on the face of it.

1801. You have said that you do not want to hand over an underfunded and under-resourced policing service, but you have also said that you consider the CSR settlement for the police to be good, and to be viewed as such by other police forces in the United Kingdom. Those other police forces do not deal with the history that our police force has to deal with; they do not deal with the consequences of that history and its impact on, for example, the Historical Enquiries Team, the hearing loss claim and the ongoing dissident republican terrorist threat in our midst.

1802. Having said that, am I correct in sensing a more positive attitude from you and the Government to dealing appropriately and satisfactorily with those legacy issues? I refer to the hearing loss claim, which will be inherited by this Administration — and which is very substantial, as the Chairman has pointed out — and issues connected with the policing of the past. If devolution is to be successful when it happens, those issues have the potential through their cost to drive us into a position where it is very difficult to make a success of it.

1803. The Secretary of State for Northern Ireland: Let me start by saying that it is not about your detecting a more positive attitude. If I look at the work of my predecessors in achieving the comprehensive spending review settlement, I conclude that everyone has always been very positive and has always wanted to do their best. That is why the settlement for the policing service in Northern Ireland was as it was. It is not strictly comparable with other police services elsewhere. You are right, that is a genuine recognition — not a bonus — of the extra levels of work that are required in Northern Ireland as a consequence of the difficulties that have been faced.

1804. It is not that I am more positive this afternoon about recognising the hearing-loss claim than I was a year ago. A year ago, the estimates on hearing loss were exactly half of what they are currently. Therefore, I point out that I am doing precisely what I always would have done. Genuine new pressures emerge and have to be distinguished from those that may be genuine but are not new, and there may be a case to look at things again. That is why, as a part of the Heywood process, I have done that.

1805. The other thing that it is important to say is that, if we are not careful, there is a danger that we could do two pieces of damage. The first is to suggest that the Police Service of Northern Ireland is underfunded, when it is not. The Police Service of Northern Ireland is well funded. Could it use more? Yes. But can more be obtained? That is difficult, but we are trying. It is important to recognise the context, as I discussed with Mr Paisley, of a global financial situation in which many millions of people are losing their jobs, many businesses are going bust and many people are having difficulties paying a mortgage and keeping their homes.

1806. In all that, we have to keep a sense of proportion. That does not mean that we will not do what is right for people in Northern Ireland — of course we will. However, that cannot simply be done despite what is happening in London and despite what is happening in Dublin. Within the island of Ireland, look at the Republic and see what is happening, and then understand the difficulty of simply wishing to meet a set of needs by saying that we can give you the money and that that proves how committed we are to you. That money has to come from somewhere. It has to come from taxpayers. There are now a million fewer people paying tax than a short time ago, for reasons that are perfectly obvious.

1807. That leads me to my second point. I remind you that I will make the best possible case that I can. However, there is a very important — I would argue even more important — issue at stake, and one that has not been talked about much this afternoon. You mentioned devolution in the context of a price. Devolution, I think, needs to be understood for what it is. It seems to me that devolution in Northern Ireland is not about getting, or not getting, more money. Rather, it is about power being in the hands of people who are elected in Northern Ireland.

1808. There is a danger if the discussion is only about money. Of course money is important. However, it becomes fetishised to the extent that one loses the point, which is — if the Assembly asks for it — the powers that I currently hold. I believe that devolution should not be seen only in the context of getting more cash. It is about asking the question: do we want power to be in the hands of people from political parties that share power in Northern Ireland, are elected in Northern Ireland, and, therefore, are seen to be fair to every community in Northern Ireland? That is a really important issue, and one on which everyone here has worked very hard.

1809. As we move toward what might be the final hurdle, I think that it is important not to lose sight of that. It is precisely the strength of that commitment, trust and representation which is allowing this to work. It is not working simply because we are able to dangle large bags of gold in front of people’s eyes. The people who came out onto the streets of Antrim that Sunday morning after two soldiers were murdered came out because they wanted to show people the value that they placed on a peace process, which is a political process.

1810. In understanding the questions that the Committee is asking me, one must not lose sight of the value that we all still attach to devolution. It is not just about bringing in more cash, but about truly bringing power back to the people. It about those elected in Northern Ireland being accountable to the people of Northern Ireland. That, above all, seems to me to be the greater benefit of devolution — greater than the amount of cash involved. However, I do not underestimate how important that cash is to everyone in the room.

1811. Mr McCartney: Thank you for your presentation. My questions are about the Heywood committee’s findings and how those findings will be framed. Will those findings be about the cost and the realistic projections that some of those issues are going to mean; or will they make recommendations as to who should be responsible for carrying things forward, particularly in respect of the legacy issues? Some of the other justice agencies have given presentations to the Assembly and Executive Review Committee, and have talked about their views on underfunding. Are the committee’s findings just about costing or will recommendations be made as to who should carry forward the resource work?

1812. The Secretary of State for Northern Ireland: Ultimately, the Heywood committee will reach its deliberations and a report will be submitted to the Treasury. That report will be seen by me and by the Prime Minister. It is a safe bet that the Prime Minister will not be short of representations, which will continue to be made when the Heywood committee concludes its work. However, I think that you have identified a number of areas that the Heywood committee is likely to look at and report on. You are right to ask those questions because I believe that the report is likely to move in a number of ways, rather than in one single way. It may not be possible, on some of those issues, to reach a conclusion, because a formula may be more sensible. For example, the issue around pensions may be not decided yet.

1813. Again, it may be that a formula will be more appropriate than a number in dealing with the issue of inquiries for one good reason. I write to Lord Saville on a regular basis to ask him when he will be finished, and he cannot tell me. That is the value of an independent judicial inquiry. Everybody in this room must also feel that frustration. There is some common sense that it might not be sensible to simply tie this up with numbers or formulas as an alternative.

1814. I expect that the Heywood committee will be quite tough on some issues, and it is right that all those issues are looked at. For example, this Committee has taken evidence from the Probation Service, which is an excellent body that has delivered an excellent service, and it has had its largest ever increase. However, it said that it wants £18 million more. That is quite hard to grapple with in these financial circumstances.

1815. Again, I have no doubt that that issue will have found its way on to the table. That is exactly the type of issue that we realistically expect to be dealt with in a comprehensive spending review settlement that has already been made. As I said, I am not running the Heywood committee; rather, I am waiting for its report. Therefore, this is not a conclusion; it is just my judgement.

1816. However, I do think that issues such as hearing loss claims are in a completely different league. Clearly, if there were no capacity to find additional help and resource for issues such as hearing-loss claims — regardless of what is said about the value of devolution as regards the transfer of powers to the people here — it would be extremely difficult for the police service to deliver normal policing. That is a view that is shared in London. It is not a view that is to be sold in London; it is one that is shared in London. The Heywood committee is looking at how to deal with that. Therefore, I am not saying that this is an open-and-shut case, and I am not saying that it has been dealt with — it has not.

1817. We are genuinely trying to reconcile those issues within a difficult economic envelope; however, you should never, for one moment, doubt the Prime Minister’s commitment and mind to doing the best possible deal that we can for the people of Northern Ireland, because we want this to work and we will do everything that we can to help.

1818. The Chairperson: Will the findings or the recommendations of the report be referred to Northern Ireland at some stage, or is it an internal Cabinet report?

1819. The Secretary of State for Northern Ireland: At this stage, the report is an internal document for the benefit of the Treasury and for us to try to achieve a resolution to the financial issues, with a view to genuinely trying to separate out the additional financial pressures from what might be described as the slightly regurgitated pre-CSR pressures. The report also attempts to deal with some of the other issues that have come on to the table in the meantime. I doubt that we will bring together the issues raised around the additional burdens placed on police by the work of criminals over the past few weeks in the Heywood report; however I am not ruling that out, because it may become sensible to do so.

1820. This is really an attempt to get a grip on the precise numbers in order to identify new needs from old needs, as those might be distinguished. I cannot say that we will publish the Heywood committee report because it may amount to only a couple of pages. Could those couple of pages be published? I am not Jeremy Heywood, so I cannot answer that. He has done the work for me, so that we are able to achieve this. Those numbers are being shared with members of the Heywood committee with whom everyone here has contact.

1821. However, in so far as I can give you an undertaking, I am happy to discuss with Mr Heywood whether some, if any, of what he may produce can be shared with the Committee at a later stage. I would not hold my breath in expecting that to happen, because, in the end, the report may be a private memorandum between Jeremy Heywood and the Treasury. However, I am happy to raise that question with him to see whether the report can be shared in some form.

1822. The Chairperson: We are out of time; I know that you must be away in one hour. However, a number of other questions have not been answered.

1823. The Secretary of State for Northern Ireland: I am happy to write to the Committee in response to those questions.

1824. The Chairperson: We were going to ask you do that. The Committee has received a lot of evidence on figures. We have not come to any conclusions about those at this point in time, and there have no discussions about them. Obviously, some of the figures that have been raised are aspirational, and we intend to look at those before we commit to a final report.

1825. Thank you very much for coming along today. We appreciate your time, and we appreciate the answers that you have given. Perhaps not everyone appreciates the answers but, at the end of the day, I am sure that we will have further discussions on this issue before we have the final report. I understand that you do not rule out the possibility of coming along to this Committee at some stage before the final report is due.

1826. The Secretary of State for Northern Ireland: I am happy to come along again.

1827. The Chairperson: Thank you very much.

21 April 2009

Members present for all or part of the proceedings:

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

1828. The Deputy Chairperson (Mr McCartney): The Committee will now discuss matters relating to the devolution of policing and justice powers. We shall work through the category-2 list of issues. Will Committee members please declare any relevant interests?

1829. Mr McCausland: I am a member of the Belfast District Policing Partnership (DPP).

1830. Mr A Maskey: I am a member of the Policing Board.

1831. The Deputy Chairperson: In Ian Paisley Jnr’s absence, I declare that he is also a member of the Policing Board.

1832. Issue A was resolved on 27 January 2009, so we shall begin with issue B. I shall ask each party to comment in turn. I shall then take further comments, before we move on to issue C. Issue B asks:

“Who might be responsible for appointments to the judiciary?"

1833. I invite the DUP to make its position known.

1834. Mr Hamilton: In order to be consistent with the principle of keeping the judiciary free from political interference, the DUP believes that the issue has been dealt with satisfactorily in legislation.

1835. Mr A Maskey: Sinn Féin also believes that issue B has been dealt with in legislation.

1836. Mr McFarland: For the record, may we remind ourselves of what that is again? If someone is reading Hansard, it may be useful to know exactly what —

1837. The Deputy Chairperson: Issue B asks:

“Who might be responsible for appointments to the judiciary?"

1838. Mr McFarland: No. What does the legislation state exactly?

1839. The Deputy Chairperson: I am sorry. My apologies.

1840. Mr Paisley Jnr: I do not have a copy of the legislation on me, Alan.

1841. Mr McFarland: If someone reads the Hansard report of this meeting in three to four years’ time, and a Committee member has stated that issue B is covered by the legislation, it may be useful were the report to show exactly what the legislation states.

1842. Mr Paisley Jnr: We should agree to attach an annex to the Hansard report that details what the legislation is. That would save us from having to read it into the record now.

1843. The Deputy Chairperson: If anyone is reading the Hansard Report of this meeting in three or four years’ time, questions may be asked as to why.

1844. Mr McFarland: Out of interest, is a copy of the legislation available?

1845. The Committee Clerk: I do not have a copy of the legislation with me, but I can supply copies to members later today, if that helps.

1846. Mr McFarland: Can the Committee be refreshed on the legislation by someone who is familiar with it? Are appointments to the judiciary currently the responsibility of the Northern Ireland Judicial Appointments Commission (NIJAC)?

1847. Mr Hamilton: Yes, in part.

1848. Mr McFarland: Who is responsible for the rest of the appointments?

1849. Mr Attwood: The Judicial Appointments Commission will make all judicial appointments in the North, save for the position of Lord Chief Justice, whom the Queen will appoint, on the Prime Minister’s recommendation.

1850. Mr Hamilton: I was about to say that. [Laughter.]

1851. Mr Attwood: I was simply trying to help the words out of your mouth.

1852. The Deputy Chairperson: What is the position of the Ulster Unionist Party?

1853. Mr McFarland: We are happy with that.

1854. The Deputy Chairperson: What is the SDLP’s position?

1855. Mr Attwood: I refer the Committee to the SDLP’s previous position.

1856. Mr McFarland: Which was what?

1857. Mr Paisley Jnr: Happy with nothing. [Laughter.]

1858. The Deputy Chairperson: OK. We shall move on to issue C, which asks:

“What should be the relationship between SOCA and the Security Services and the Minister/Department/Assembly?"

1859. That issue is linked to issue N in the category-1 list. Issue N asks:

“What needs to be done to ensure that attention is given to having appropriate measures in place to address issues such as the role of the security services?"

1860. Mr Hamilton: This is a matter on which we await Government indication, as well as memorandums of understanding, and so forth, that the Secretary of State made a commitment to share with the Committee in due course. Therefore, in many ways, we cannot take a firm view on issue C until we have received all that information.

1861. Mr A Maskey: Sinn Féin adopts a general position on the likes of SOCA, in that those matters should be dealt with by a democratic and accountable policing service. Therefore, the work of SOCA should be mainstreamed.

1862. Mr McFarland: The UUP presumes that the system for the new Department will mirror the system that was introduced among SOCA, the security services and the policing system. That system has memorandums of understanding and protocols in place.

1863. Mr Attwood: What is the current position with the memorandums of understanding? Are they still being hidden from the Committee?

1864. The Committee Clerk: When the Secretary of State gave evidence to the Committee before the Easter recess, he indicated that the various memorandums of understanding were still being worked on, but that those would be supplied to the Committee. The Committee took the Secretary of State at his word at that stage, and I have not had any further correspondence to indicate that the memorandums of understanding have now been finalised.

1865. Mr Attwood: Have they been supplied to the Office of the First Minister and deputy First Minister (OFMDFM)?

1866. The Committee Clerk: I am not aware of that.

1867. Mr Attwood: Can we enquire as to whether OFMDFM has had sight of the memorandums of understanding?

1868. The Committee Clerk: The Secretary of State originally indicated that he wanted to share them with the First Minister and the deputy First Minister before sharing them with the Committee. However, the Committee wrote back and said robustly that it wanted them to be shared simultaneously. That is the formal position.

1869. Mr Attwood: That is our formal position, but is it his?

1870. The Committee Clerk: I cannot answer for the Secretary of State.

1871. Mr Attwood: That is why we should ask OFMDFM whether it has had sight of the memorandums of understanding. The memorandums of understanding have long been available, and they have been long refused to us. I am curious to know, and it would be interesting to know, whether OFMDFM has them. If it has, it would create leverage for us to be able to say to the Secretary of State that we want them. That would put the Committee in a very strong position.

1872. Mr Paisley Jnr: We had a very helpful debate on that before. Roles, and the standings of people in each role, were recognised. I realise that Alex is anorakish on the issue of memorandums of understanding, and he is entitled to be so. However, a reasonably good understanding of where the issue lies came out of previous meetings.

1873. Mr Attwood: We should still ask, in order to find out whether we are being kept somewhat in the dark while a bit of light is being shone elsewhere. If we do so, we can see what the consequences are. It is only when we see what the memorandums of understanding say or do not say that we can judge whether the relationship in issue C is, as the SDLP views it, structured appropriately.

1874. The Committee Clerk: Do you want the Chairperson’s letter to be sent only to the First Minister and the deputy First Minister, or do you want a follow-up letter to be sent to the Secretary of State, given that he indicated in his oral evidence that the Committee would be furnished with the memorandums of understanding?

1875. Mr Attwood: I want a letter to be sent to the First Minister and the deputy First Minister and to the Secretary of State.

1876. The Deputy Chairperson: We shall move on to new issue D, which combines original issues D and E. New issue D asks:

“What needs to be done to ensure the maintenance of existing North/South policing and justice agreements, and is there a requirement for a Justice Sector of the North/South Ministerial Council?"

1877. Mr Hamilton: Obviously, there are existing North/South relationships. Did not we ask to get more detail on what those relationships are? If we have not asked already, I suggest that we do so, in order that the Committee might have a better understanding of what those agreements are, and how they currently operate. The DUP is not convinced of the need for the issue to be dealt with through the North/South Ministerial Council (NSMC).

1878. Mr A Maskey: Sinn Féin believes that the existing arrangements should be maintained and continued under a new Minister and a new Department, and that a justice sector of the North/South Ministerial Council is required.

1879. Mr McFarland: The Ulster Unionist Party is comfortable for the existing arrangements to continue. It would be useful to know in some detail exactly what those arrangements are, and we asked for that information some time ago. We, too, are not convinced of the need for a justice sector of the North/South Ministerial Council.

1880. The Committee Clerk: As has been agreed, a letter is to go to the Secretary of State about the memorandums of understanding. As I understand it, the justice agreements are protocols, and the Secretary of State also promised to provide the Committee with those protocols. Therefore, both issues can be addressed in the letter that the Committee will write to the Secretary of State.

1881. Mr Attwood: The SDLP believes that there should be a North/South justice sector. A mechanism now exists for that matter to be opened up for discussion through the second phase of the review of North/South arrangements, which OFMDFM has said is scheduled to report by the end of 2009. I am highly dubious about whether it will report by then; nonetheless, it represents another mechanism by which such a proposal can be advanced. The SDLP has written to the relevant people to say that a North/South justice sector is one of the outcomes that we will look for from the second phase of the North/South review.

1882. The Committee should try to push the boat out a bit, because the North/South element of the British-Irish justice agreement will fall once justice powers are devolved — that is what will happen. If no new North/South justice agreement is in place for elements that are North/South as opposed to British-Irish, on the day of devolution of justice powers, gaps will exist in the justice arrangements and protections on the island of Ireland. Those gaps may extend to understandings between justice structures in the North and the South over, for example, protection of children or vulnerable adults. I do not think that anyone will have an issue with ensuring that arrangements for the protection of vulnerable adults or children are in place, but, at present, the North/South parts of the current justice arrangements will fall on devolution day.

1883. The Deputy Chairperson: To inform us on that issue, we need to see the protocols.

1884. Mr Attwood: Those papers have been before the Committee on a number of occasions. Simon Hamilton’s request is nothing new. We have received that information on numerous occasions, and we have questioned officials on the protocols on a number of occasions. The fact is that part of the North/South justice arrangements will no longer exist on devolution day, because they are in the gift of the Northern Ireland Assembly. On that day, on the island of Ireland, people will be less protected as a consequence. If we are serious about our business, we should state that we cannot have a situation whereby, on the day of devolution policing and justice powers, people, North and South, are less protected than they were on the day before devolution.

1885. Devolution of justice powers may be four, five or six months away, so we need to be satisfied that arrangements for that day will be in place. On that day, it will require the agreement of a justice Minister, a justice Department, or the Executive to have the arrangements in place; otherwise, we will let down the citizens of the North and the South.

1886. These are common-sense observations, not highly political ones. Therefore, we should ask the British and Irish Governments, and the Executive, at what stage they are at in having in place North/South justice arrangements that take into account matters that will fall on devolution. That is just common sense. Therefore, we should write to all three Executives — Dublin, London and Belfast — to ask whether the arrangements will be in place on that day and whether the protections under the current justice arrangements will continue to be in place on that day; otherwise, a message will be sent out to the people that they will be more vulnerable as a consequence. We cannot send out that message.

1887. Mr Paisley Jnr: We must be careful not to invent a bogeyman. I understand what Alex is getting at, but the arrangements are less bureaucratic and more practical. There is now practical co-operation between the Police Service and the guards. Information is shared daily without there being the need for legislation.

1888. We need to set a safe parameter for some of Alex’s concerns, as they may not be as real in practice as they are in theory. Nevertheless, we should keep a cautious eye on the issue, but, at the same time, we should not allow ourselves to get into a whole flap or create a concern that, suddenly, paedophiles will be rampant on the day of devolution of policing and justice powers. There are issues that should always warrant watchful concern.

1889. Mr Attwood: Ian is talking about the arrangement between the police, North and South, but that is a separate issue. The North/South policing agreement will not fall on devolution day, because that is an arrangement between the PSNI and the gardaí. However, what do fall are the elements of the justice agreement that was signed off between the British and Irish Governments. On devolution day, elements that are relevant to the British and Irish Governments will continue to be in place, but elements on the justice side that are relevant between the North and South will fall. Therefore, the policing side is already taken care of. As such, it is none of our business, because it is the responsibility of the Garda Síochána Commissioner and the Chief Constable.

1890. However, arrangements on the justice side will fall. We should consider whether we are satisfied that the necessary arrangements are in place for the day on which justice powers will be devolved. I understand that that is not the case. However, as an NIO official told the Committee, it will not be difficult to put the necessary arrangements in place. Therefore, we must ensure that the arrangements are in place. We can send some letters, which can be gently written, to ask what is being done about those elements that may fall. By doing so, we will ensure that the necessary arrangements are in place on the relevant day.

1891. Mr A Maskey: I do not see that being a problem, but I do not object to our writing a letter.

1892. The Deputy Chairperson: New issue E will be dealt with at next week’s meeting, at which the specialist adviser will present a paper based on a previous evidence session.

1893. We now move on to new issue F, which asks:

“What, if any, consideration should there be of the Ashdown Report on Parading, and is there a need for further clarities of the powers to be devolved, and, if so, should they include matters relating to the Public Processions (Northern Ireland) Act 1998, flags and symbols and recruitment to the PSNI?"

1894. Mr Hamilton: The Ashdown Report is important for policing in general. If we are to devolve policing and justice powers, the sore that is parading must be dealt with. We need to assess the consequences in the context of the new issue E, which concerns financial provisions. It is important that we clarify the current status of the Ashdown Report, because I do not know whether any attempts have been made to do that. However, the report will have a bearing on our conclusions, so we should chase that matter up.

1895. Mr A Maskey: How does Simon suggest that we chase that up?

1896. Mr Hamilton: The Chairperson or the Committee Clerk should contact the Ashdown review body and the Parades Commission to clarify when a report is expected. The Committee should then consider the report’s ramifications, because it will have a bearing on future policing: the role of the police; the impact on resources; and so on.

1897. Mr A Maskey: I consider that to be a category-3 issue, but I have no problem with our making a call or writing a letter.

1898. Mr Hamilton: The matter can be dealt with. The ball is not really at our foot.

1899. Mr McFarland: The parading issue must be sorted out. We cannot devolve policing and justice powers yet leave the parading issue twisting in the wind. I understand that the Parades Commission will exist until December 2009. We need to discuss the Ashdown Report and how to deal with parading. Agreement on flags and symbols was reached in 1998 and should be left alone, and the current system of PSNI recruitment ceases in 2010, when the Patten arrangements finish. At that stage, I presume that a normal recruitment pattern will be followed.

1900. Mr Attwood: Four or five weeks ago, somebody said that the Ashdown Report would be published this month, and I disagreed. In fact, the Ashdown Report should not be published ever.

1901. The Deputy Chairperson: We recall your wisdom.

1902. Mr Attwood: I hope that that will transpire. However, I am sure that people will eventually feel an obligation to Lord Ashdown to publish the report. I felt that it would be published at this stage, because it would simply become another feature in the forthcoming election.

1903. I agree with Alan that we need to bore into the matter. Simon is right when he says that we need to contact Lord Ashdown, or somebody, to determine the report’s current status and the time frame in which it may or may not be published. We should consider new issue F further in the near future.

1904. The Committee Clerk: There is a handling issue to consider as to whether the Committee can engage directly with Lord Ashdown, because the Government commissioned Lord Ashdown to produce a report. The Committee might be better to write to ask the Secretary of State what his understanding is of the report’s status and when he expects to receive it. Any letter should reflect the fact that there is potential implication for the financial aspects of devolving policing powers, and the Committee has always appeared to recognise that. Obviously, depending on the report’s recommendations, those implications could be greater or lesser. Given that the Committee wishes to write to the Secretary of State on a number of other issues, all could be captured in one letter to the Secretary of State, rather than its trying to engage with Lord Ashdown.

1905. It is fair to say that the Chairperson had a brief telephone conversation a couple of months ago with Lord Ashdown that did not reveal a great deal. I imagine that there may be more prospect of getting something from the Secretary of State.

1906. The Deputy Chairperson: It will be a long letter.

1907. We now move on to new issue G, which asks:

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

1908. Mr Hamilton: The use of the word “attached" is somewhat misleading. It is not really “attached" but independent and separate. However, there is obviously a budgetary issue to consider, and the DUP’s position has been stated before. We believe that the Department of Finance and Personnel (DFP) would be a possible place to put the Public Prosecution Service (PPS). There have been suggestions about putting it into the justice Department, but the DUP’s position is that it suggests DFP as the place to put the PPS.

1909. Mr A Maskey: Sinn Féin’s view is that it would be better placed in OFMDFM, because that would provide some symmetry with the position of the Attorney General.

1910. Mr McFarland: There must be a perception of some sort of independence, and it would be useful if a non-involved organisation were to administer it. It is just a matter of budgeting and looking after the PPS, but one would not want people to chop budgets, or be perceived to be chopping budgets, or to interfere with the PPS. The Ulster Unionist Party is probably also comfortable with putting it in DFP.

1911. Mr Attwood: The SDLP prefers for it to go into the Department of justice, as that is the natural place for it to reside. The evidence of the director of the PPS does not stack up. He said — as far as I recall and subject to the Hansard report — that if it went to the justice Department it might, interfere with the PPS’s independence. I do not understand that argument, given that the Committee agreed for a huge range of justice agencies to be attached to the justice Department, yet nobody from any of the other organisations said that that would give rise to any interference with its independence, or to its freedom to act as it deems appropriate. That was a curious argument from the director of the PPS.

1912. It is equally curious that people want the PPS to go to DFP, because that is not a natural place for it to reside. Nobody has made the argument that other justice agencies should go to DFP. When Simon Hamilton mentioned DFP as a possibility in a previous Committee meeting, it struck me as being a curious proposal, and I wonder who knew about it in advance. The SDLP’s preferred option is for the PPS to be attached to the justice Department, but definitely not to DFP.

1913. The Deputy Chairperson: We move on to new issue H, which asks:

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

1914. Mr Hamilton: It may be worth giving some consideration to that matter, although I am not sure about the practicalities of doing so. Perhaps we should commission some research in order to arrive at options. Has any such research been done?

1915. The Committee Clerk: Substantial amounts of research were commissioned previously by the Committee. Those pieces of research, which have been distributed to the Committee from time to time, particularly at Mr McFarland’s request, deal with the relationship between the Public Prosecution Service and the Assembly. For example, they include some comparisons with other legislatures. The distinguishing feature in this case is that the Attorney General, who would be responsible for reporting to the Assembly, is not an elected member of this legislature. There are some differences, and the comparative analysis does not provide much help in this instance. However, the matter of the independence of the PPS is rehearsed in those research papers. I am happy to redistribute those materials to members if they wish, but I know that they were given out at least once before.

1916. Mr Hamilton: I will reflect on those papers.

1917. Mr A Maskey: I am not sure what else can be done about that matter. There is a lot of information available, and when we resolve the accountability issue, the matter will have been dealt with, in my opinion.

1918. Mr McFarland: This is a key issue, along with the relationships with the judiciary. It is absolutely correct that politicians should not try to second-guess individual court cases. However, there are some in the judicial system who do not want any oversight in respect of their policies and how they carry them out. In due course, the Assembly will wish to talk to key players in the PPS and the judiciary about why — in broad terms, rather than in respect of individual cases — they follow particular policies.

1919. I appreciate that that is a very sensitive area. Other legislatures have sentencing advice committees that steer the judiciary. However, it is early days for us, and we are likely to end up with an agreed system whereby the Attorney General reports to the Assembly. However, we should put down a marker that, as the situation evolves, we are likely to want to have robust discussion with key players about major issues of concern to the electorate. That might include the Director of Public Prosecutions talking to Committees.

1920. The Deputy Chairperson: How that will evolve after devolution is a separate matter. In this instance, we are talking about the situation pre-devolution.

1921. Mr McFarland: At the moment, I understand that the Attorney General answers for the DPP on the Floor of the House. I am just putting a marker down. My guess is that the political parties will want to hold discussions with the Director of Public Prosecutions, perhaps in some other format.

1922. Mr Attwood: Given what Simon and Alan have said about research and the importance of this matter, we should schedule an early meeting for a discussion on it, so that each party can scope out the relevant issues, as they see them, in respect of the future of the PPS. It is impossible to do that in any detail by going through the list of issues that is before us, but perhaps we could take some time to scope out, as parties, what we believe the issues to be.

1923. It may be that we could agree that that there are two, three or four issues on which we could do some early work. We should do that work because, over the past 10 years, although attention has been on the Police Service, no similar attention — despite various people’s efforts — has been given to the Crown Prosecution Service or the Public Prosecution Service.

1924. Devolution could allow us to do much in the short term to improve the speed and the administration of justice, and public confidence in the Public Prosecution Service and the administration of justice. We have a lead-in time of a number of months, or longer, before devolution, allied with the oversight of SOCA and the security services, North and South. Therefore, that is one of the key areas on which we could do some useful work.

1925. We have done some useful work on the financial side, about which we will hear in the near future. This is a priority area, and, in order to grapple with it, we should schedule a Committee meeting during which parties could scope out what they regard as the relevant issues and assess whether a programme could be worked up.

1926. Mr A Maskey: I have no difficulty with that sentiment, but we need to be careful, because it is not our job to overhaul the PPS. We are considering lines of accountability, and so on. I would not stop anyone from having a 45-minute conversation today, but I have no difficulty with coming back to that issue in more detail. In any of these discussions, it is my understanding that we should take as long as we need. I caution that we are not here to overhaul the PPS — much as I or anyone else may want to do that, or may have to do it at some point.

1927. Mr McFarland: That is a useful idea. It would pay us to do a bit of homework and return to a discussion about that issue with more time allocated.

1928. The Deputy Chairperson: We will return to that issue. We could also discuss the format of such a discussion.

1929. Mr Attwood: The Committee Clerk could schedule an agenda within two or three weeks that is dedicated to —

1930. Mr A Maskey: Why not just deal with it in the same running order as it is appears today? I am not stopping anyone from having a 45-minute conversation today.

1931. Mr Attwood: I am certainly prepared to have that discussion now, or any day. I am just being courteous to the other parties that may not have done preparation on that specific issue before today’s meeting.

1932. The Deputy Chairperson: We will return to that issue. As outstanding matters condense, we will have more time to discuss it.

1933. We turn to new issue I, which is:

“In relation to Recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?"

1934. Mr Hamilton: I reiterate our previously stated position: given the sensitivity and the need for independence in respect of that post, the advisory role should be taken on by the Secretary of State and the NIO.

1935. Mr A Maskey: We believe that it is appropriate that OFMDFM undertake that role.

1936. Mr McFarland: Much depends on the outcome of the Eames/Bradley process. If the Police Ombudsman performs the original role of the office — which is to examine serving police officers and investigate the past if they are accused of something — that would probably fit with OFMDFM. If a role of rooting around in the past in a one-sided truth commission remains with the Ombudsman, the Secretary of State needs to have some control over that.

1937. Mr Attwood: We also believe that OFMDFM should have input. We are unaware of another model within the devolved arrangements that could take care of that issue. The matter must be taken care of within the devolved arrangements; it cannot be an issue that is left to the residue of the NIO.

1938. Mr Paisley Jnr: It may be helpful to expand on the reasons for that role to be left to the Secretary of State — it is not out of any love for the Secretary of State, or to give him something to do.

1939. Members should reflect on the fact that the Police Ombudsman is a parliamentary office. If it is decided that that office should be appointed, overseen, scrutinised, or run by the Northern Ireland Assembly — by the Office of the First Minister and deputy First Minister — it must be recognised that that would diminish the role of the Ombudsman. If people wish to diminish that role, and remove provisions concerning independence, etc, that is an issue for the Committee.

1940. Our reason for wanting to maintain a role for the Secretary of State, and Parliament, is to allow the office to be independent. The intention is not to diminish the office. Those are issues that members should reflect on. I am not saying that to create a debate, but perhaps members could come to our next meeting with a view on those points.

1941. Mr Attwood: Can we just check if Ian’s point is right? As I understand it, following devolution, the Police Ombudsman will table her report to the Northern Ireland Assembly.

1942. Mr Paisley Jnr: His report.

1943. Mr Attwood: His report; sorry.

1944. Mr Paisley Jnr: Those were the halcyon days, Alex. [Laughter.]

1945. Mr Attwood: The Police Ombudsman’s annual report will be tabled to the Assembly, and that is provided for under legislation. As far as I am aware, so far, no one has said that that legislation should be revisited. Therefore, if Ian’s point is that we are diminishing the role of the Police Ombudsman, on the basis of his argument — if I understand it correctly — that role is being diminished under law, because the Police Ombudsman would report here and not over there.

1946. The Deputy Chairperson: The issue is the advisory role.

1947. Mr McFarland: That is directly related to the sensitivity of the post. My understanding is that the Assembly Ombudsman, Mr Tom Frawley — who is responsible for the Departments — reports to the Assembly. Logically, if policing and justice powers are to be devolved, and the Police Ombudsman will be fulfilling a similar, non-controversial role, examining current police officers and whether they are behaving themselves, it does not seem unreasonable that the Police Ombudsman should report here too. If we are left with an Ombudsman that carries out a role of dealing with the past, which is a very sensitive matter, that should be left to the Secretary of State.

1948. The Deputy Chairperson: New issue J was resolved on 3 February. Therefore, we will move on to new issue K:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?"

1949. Mr Hamilton: That issue requires some further work.

1950. Mr Maskey: We are happy to come back to that another day.

1951. Mr McFarland: It is our belief that the justice Minister should be a normal Minister, and have a normal relationship with the Assembly and the relevant Committee.

1952. Mr Attwood: Our view is that the Minister should have full status and equality with all other Ministers, and the full responsibilities that arise thereunder.

1953. Mr Maskey: That is not different from our position, but we are happy to come back to it another day.

28 April 2009

Members present for all or part of the proceedings:

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


Mr Victor Hewitt

Specialist adviser

1954. The Chairperson: The Committee welcomes back Victor Hewitt.

1955. Mr Victor Hewitt (Specialist Adviser): Thank you, Mr Chairman. By the conclusion of the Committee’s last evidence-gathering session, we had trawled through a great deal of information through oral presentations and written submissions. The purpose of the paper that I present to the Committee today is to try to trawl through and impose some order on that, particularly in classifying “unavoidable pressures" and “other pressures".

1956. If a Department is asked how important a particular pressure is to it, it will say that it is very important indeed. Therefore, there needs to be some criteria by which one can effectively say: “That is a totally unavoidable pressure." The normal criteria that finance officers would use to do that is that it constitutes a legal or contractual commitment. That is the starting point. All other pressures have to be judged on other criteria, be they political or otherwise.

1957. Therefore, the bulk of this paper is about trying to classify “unavoidable pressures" on that definition, and “other pressures", about whose priority the Committee will no doubt wish to debate in due course.

1958. The summary of pressures is in the form of a table in order to keep it compact, because there is a great deal of information floating around. This is still a moveable feast: the information keeps coming out, even since our last session. For example, another £20 million has come on the table as a backdated PSNI pension commutated cost for 2008-09. That figure was not brought out at any of the evidence sessions.

1959. Another factor that is also a moveable feast is the low-pay claims for the Civil Service as a whole, whereby those numbers have essentially quadrupled. I do not think that people are quite aware of the size of those claims, which are now very large. Again, that is something that could continue to grow in the context of this document.

1960. Using the “unavoidable" classification, the really big pressures are the hearing-loss claims; the equal pay claims; the cost of public inquiries, to which I will return; and legal aid. Other issues, such as the PSNI pensions, are being looked at with regard to switching them from being a pressure on the departmental expenditure limit to being covered under the annually managed expenditure heading, as would be the case in the rest of the UK. There would be some cost in making the switch, but that is not a cost that could be unsupportable.

1961. I will just run down the list of “key unavoidables". The PSNI hearing-loss claims are growing almost every time that we take further evidence on them, and their size increases. There is £131.3 million of claims, and that figure may well increase.

1962. We have an estimate of £50 million over two years for the equal pay claims, which will be unavoidable. I have just referred to the overall bill for the Civil Service, which is growing rapidly, although the figures have not bottomed out yet.

1963. There was also a claim from the NIO that its junior staff would not be affected by equal pay claims. That may or may not be so. The trade unions will certainly be pushing for junior staff in the NIO to come within the same remit as regards back pay, and I have no figures for that at the moment.

1964. The other matters relate to public inquiries, which could be any amount of money, depending on the number of inquiries, and legal aid, which has been running at £30 million a year light on its budget year after year, and it has had to go back and fight for money from the Treasury. The public inquiries money has been funded by using up the end-year flexibility that the NIO had built up — unspent money that it has been carrying forward. It has, effectively, exhausted that as a source of money for public inquiries. That was a contingency, and unless that is rebuilt, the NIO will be unable to meet any of those other claims that are on the table. The inquiries are a key element of the package.

1965. We ran across claims from the Probation Board — about £18 million — which is a good example of where we need to be careful about comparing like with like. The operations of the Probation Board in England are rather different from the Probation Board here, in that some of the things that are covered within the Probation Board spending in England are covered within the Department of Health, Social Security and Public Safety spending in Northern Ireland. We are not exactly comparing like with like, thus that £18 million is a little suspect on those grounds.

1966. I do not want to go through all of the figures in detail, although I will pick up any questions members may have. The additional money for the dissident activity will be an unavoidable cost, but we expect that to be picked up as in-year costs by bids on the Treasury in the year in which they arise, rather than as an addition to the PSNI baseline going forward indefinitely. They are unavoidable: they are not of the same character; they are not a baseline issue, as opposed to an in-year pressure.

1967. I will leave it there, Chairman, and take any questions members may have.

1968. The Chairperson: Mr Hewitt, can you clarify the pension commutation costs — the £20 million you referred to? My understanding was that the money came out in the evidence. I questioned the NIO on pensions, and those costs were fully funded. The commutation figure is £22 million: £11 million each year additional. That came out during the evidence and during the Policing Board’s presentations at some point. The ready reckoner shows a figure of £924 million, and often the figure talked about for the police budget is £1·2 million. However, I understand that the difference between the £924 million and the £1·2 million is that the difference — whatever the figure is — comes under annually managed expenditure (AME), which relates solely to pension costs.

1969. We need to establish whether that £22 million of additional money, which was the result of an announcement made by the Home Secretary that affected the police service throughout the whole of the United Kingdom, comes under AME. I understand that the Government pick up any additional costs that would be involved. Is that your understanding?

1970. Mr Hewitt: Not from the evidence that was given. Members will recall that the Chief Constable expressed concern that his budget was being hit by those pension costs, which suggests to me that they are not currently covered by AME. I will go back and check that, because it is an important issue. According to the available evidence, the £22 million pension commutation was for the next two years. The additional £20 million that I mentioned was for the past year and was backdated.

1971. The Chairperson: That is what I wanted to find out.

1972. Mr Hewitt: That looks like an additional pressure. That will be covered in-year, so only the £22 million will have an effect on the budgets. Negotiations are taking place with the Treasury about attempting to switch those pressures from the departmental expenditure limit (DEL) process to the AME process. I expect that to happen, but I do not have any further information about that at present. I will go back to NIO and check that.

1973. The Chairperson: Those figures will have to be clarified so that they are crystal clear.

1974. Mr Paisley Jnr: Thank you for your draft report, Mr Hewitt. I have a three-point question. First, can you extrapolate figures that show the consequences of applying the Barnett formula on the figures that you have? Quite rightly, you said that there would be a widening of the gap between the need and resources and that those factors should be recognised. What does that look like in real terms, given the figures that you have?

1975. Secondly, you do not appear to have mentioned the issue of the ability to reclaim VAT on the relevant services. Perhaps you have covered that elsewhere. If that were to happen, based on the figures that I saw, we would save somewhere between £150 million and £200 million. Can that be worked into the report? Have you looked at that possibility?

1976. Last week, after the Budget, Shaun Woodward said that he had got some additional money for policing, and that it was a wonderful thing. I took that with a pinch of salt, because I was not entirely sure exactly how much money we got for policing, or into which cavity it was going. Have you been able to analyse his comments following the Budget statement?

1977. Mr Hewitt: I will answer those points one at a time. Under the Barnett formula, we receive what is known as a consequential — a population share of any comparable expenditure in GB. For our purposes, comparable expenditure would be spread between policing and local authorities that hold policing budgets. We have to sort out like for like when it comes to the underlying subprogrammes.

1978. If we do not know what is going into those budgets in future years, we cannot calculate a consequential. However, we could calculate a consequential on the assumption that, within the most recent comprehensive spending review (CSR) period, we had been in a Barnett regime, and would therefore know what had gone into those particular categories in England. We could compare that consequential with the actual amounts of money that went into NIO at that time. The historical amount for the most recent CSR would give us an idea of the discrepancies between the two amounts.

1979. Mr Paisley Jnr: It would be useful to see those figures.

1980. Mr Hewitt: Yes, it would. We will have a go at calculating that consequential. I have the subprogrammes that are used for that purpose. It should not be difficult.

1981. We did not address the VAT issue in the report because we expect that issue to be resolved. If a Northern Ireland Department takes on that responsibility, it will be able to reclaim VAT just like any other Department. It will not be a significant issue.

1982. Mr Paisley Jnr: If we are blowing our own trumpet should we not claim that responsibility and take ownership of it? It was this Committee that put that issue on the agenda.

1983. Mr Hewitt: If you are suggesting that where we pay VAT currently, we would simply retain that VAT payment and not have to make it, the Treasury would probably take the view that the Departments were funded because they needed to pay VAT, and if they do not need to pay VAT they are not funded for that.

1984. That is how they currently treat the Northern Ireland block. In the funding rules there is a discount for VAT. That is certainly a debating point; however, I am not sure that it will carry the day. I have not gone over the Budget with Sean Woodward. Unfortunately, I was out of the country last week. However, I will certainly go back and look at that to see in detail exactly what they got. Budget figures are often sleights of hand, so we need to look at that carefully.

1985. When considering what proposals you would like to make, the general issue of the Barnett formula, as I have said before, is that we are running an operation that is roughly twice as expensive, on a per capita basis, as in England. Therefore, whatever money you get through Barnett, over time, it is not going to be able to sustain that sort of lead. One of the ideas that you might want to explore, for at least a CSR period, is whether to look for a “Barnett plus" settlement. That would allow you to phase in whatever changes are going to be necessary to accommodate this — I would not describe it as a cuckoo, but it will become one — cuckoo in the nest, which will consume other resources very rapidly indeed.

1986. Mr McCartney: Thank you very much for the paper; it was a useful summary of the evidence to date. Our party is now considering it, and it is something that we will come back to in the future. The paper will be better informed when we address who is going to be responsible for the legacy issues. Therefore, we await the outcome of the ongoing discussion between the First Minister and deputy First Minister and the British Treasury. Is there an estimate of what the back pay will affect?

1987. Mr Hewitt: Which back pay claim is that?

1988. Mr Hewitt: The Civil Service back pay.

1989. Mr McCartney: The people affected are those who were, essentially, recruited into the policing bodies through Northern Ireland Civil Service recruitment procedures. As I mentioned, that is a claim which is growing very rapidly. I do not know what figure you have, but the figure that I have for a potential back pay claim is something in the order of £480 million.

1990. Mr McCartney: Is that across the Civil Service or specific to this?

1991. Mr Hewitt: It is across the Civil Service.

1992. Mr McCartney: Is there an estimate specific to this?

1993. Mr Hewitt: There is an estimate of around £50 million.

1994. The Chairperson: That figure could increase. Did you say that there is a possibility that the NIO could come under that claim?

1995. Mr Hewitt: The trade unions in particular will want to try to bring people in the NIO within the remit of any back pay claim. Whether that works or not will depend on the terms under which those people were recruited.

1996. The Chairperson: That could have a knock-on effect if it is not sorted out prior to devolution.

1997. Mr Hewitt: Yes, of course it could.

1998. Mr McCausland: On page 3, “historic" issues are mentioned, including the equal pay claims. You spoke about a figure over a two-year period. That money, I presume, is to pay money that is due to people because of issues from the past. Will all those issues be addressed over the course of two years?

1999. Mr Hewitt: There will be two elements to that. First, obviously, is a lump sum to compensate for earnings which they should have been getting and were not. Secondly, following that, the earnings level will have risen, and that will be an ongoing pressure into the future. At the moment, the really big money is in the lump sums.

2000. Mr McCausland: Will the lump sum issue be addressed inside the next two years?

2001. Mr Hewitt: It should be.

2002. Mr McCausland: On page 3, the other issue is that: “Similarly the extra costs of dissident activity are too uncertain to estimate fully but are unavoidable".

2003. Later, however, the figure of £76 million is given to cover dissident terrorist activity over the next two years of the CSR. On the one hand the paper states that it is too early to estimate that cost, and on the other, there is a figure of £76 million given. Is that the Chief Constable’s estimate?

2004. Mr Hewitt: That is the Chief Constable’s estimate from his evidence of 24 March 2009. We view those pressures as being dealt with in-year, as is done with the monitoring rounds in our system. An additional £31 million a year will not be built into the baseline and carried forward for ever and a day thereafter, but depends on the level of the activity with which the PSNI will have to deal. When the Chief Constable appeared before the Committee, his best estimate was £76 million over the next two years of the current CSR period.

2005. Mr McFarland: I understand that a major review of the Barnett formula is taking place at Westminster. Is there any indication about where that might lead? If the basis of all our funding is likely to change, that is likely to have an effect on how we view the policing element of budgetary pressures.

2006. Mr Hewitt: An ad hoc committee of the House of Lords is considering the Barnett formula. It does not have a Government imprimatur behind it; it is not an official committee as such. The committee was across earlier in April 2009, and I gave some evidence to it. A paper containing our analysis of the Barnett formula is available on our website.

2007. My experience of talking to that committee is that its chairman was keen on a procedure that is used in Australia called the Commonwealth Grants Commission. Australia has a federal system, and that body sits each year and allocates money to the states. I would not be surprised if the House of Lords committee recommended a move away from a formula-based system, which is adjusted at the margins, to a needs-based system, which is more akin to the Australian system.

2008. My view is that the two systems are entirely different. Australia has a federal system in which tax availability to the states is equalised. Our system is not a federal one; it is concerned with putting devolved Administrations on a footing at which they can supply the same level of services, taking some account of the need level through the size of the population.

2009. I do not expect the Barnett formula to be changed or abandoned in the short term. There is too much of an investment in that system, and not only in the formula, which is a simple one. It is embedded in a whole set of rules called the funding rules, which are available from the Treasury. One needs to see the workings of the formula in relation to the underlying rules.

2010. For example, Northern Ireland lost £123 million in last week’s Budget because there were cuts in comparable programmes in the UK. That was done through the Barnett formula, but the funding rules would have allowed that to have been done as a straight, across-the-board cut. In the past, we have had interesting experiences in which a straight, across-the-board cut was made to programmes that were then selectively restored in England. The Treasury attempted to return the money to Northern Ireland through the Barnett formula, but, given that the across-the-board cut was much more than what Northern Ireland would get back through the Barnett formula, one must look at the entire range of the funding rules and how they operate. That is a rather long answer.

2011. Mr McFarland: It is worth keeping an eye on that issue. In 1999, OFMDFM did a study because there was a received wisdom that Northern Ireland would be better off moving to a needs-based system. When the number crunching was done, it was so frightening that it was decided that we should hold on to the Barnett formula if possible.

2012. Mr Attwood: Thank you, Victor, for your report. I am sure that your assessment that £400 million of budget pressures is unavoidable in the next two years of the current CSR period is hard to swallow and very stark. My questions may go beyond your responsibility.

2013. You identify an additional pressure on the Legal Services Commission of £50 million in the next CSR period.

2014. On the basis of the evidence, and independent of any other budgetary issues that might arise, did any other justice agency anticipate budgetary pressures in the next CSR period, similar to that identified by the Legal Services Commission and outlined in your report?

2015. Mr Hewitt: All bodies will face pressures in the next CSR period.

2016. Mr Attwood: As you say, it is unavoidable

2017. Mr Hewitt: The reason why we highlighted the Legal Services Commission pressure was because it has a systemic problem. It has been consistently underfunded, in relation to its base line for the costs of legal aid.

2018. The Chairperson: That is an issue that needs to be explored. By comparison to other parts of the United Kingdom, the costs of legal aid are much higher in Northern Ireland. It was explained to us that, for Northern Ireland, one has to multiply costs by a factor of three. Whereas in Scotland and England, one is represented by a single individual, in Northern Ireland, one is represented by three: solicitor, junior counsel and senior counsel. The system needs fixed.

2019. Mr Hewitt: Absolutely. Too many cooks spoil the broth. One of the driving forces here is the certificate issued by the judge. It authorises representation at some level: one counsel, two counsels or more. Once that is issued, there is nothing that the Legal Services Commission can do: it must live with the consequences of that. In this respect, autonomous bodies operate in this area, creating repercussions for one another. Primary legislation is required to clarify who decides what the level of representation should be and how it will be funded.

2020. Mr Attwood: The Legal Services Commission and the Court Service indicated that they were trying to reconfigure all of that. However, it will be 2014 or 2015 before a new arrangement will be in place. There will be many hangover cases from the current CSR period that will have to be funded under current mechanisms.

2021. There are one or two areas of your draft report where there are potentially other unavoidable pressures. I will not go into detail, except to say, that the Public Prosecution Service should be restructured and its conduct reviewed. We heard evidence that, on recruitment of staff, it is approaching a critical-mass situation. Given that the administration of justice — how cases are progressed, how quickly they are progressed and managed — is such a big issue, politically and publicly, the Public Prosecution Service needs to recruit the staff that it has not recruited until now. Its representatives said that close to 8% or 9% of its staff complement has not been recruited: that is close to critical mass. There are one or two areas where there may be additional unavoidable pressures to be faced sooner, rather than later.

2022. What you said about the regional rate is useful, but however we used that power — if we ever got round to using it — it will not fix the problem. It will deal with the margins of it, but not the big issues.

2023. Your remarks about the Historical Enquiries Team and the Police Ombudsman for Northern Ireland are interesting. The time will come, over the next couple of years — before the British Government does or does not respond to the Eames/Bradley Consultative Group on the Past — when the Historical Enquiries Team and the Police Ombudsman for Northern Ireland will have to get additional funding or they will be in breach of their obligations under European law with respect to taking cases forward. There could be a further pressure there, independent of what may or may not happen to the Eames-Bradley Consultative Group on the Past .

2024. Finally, is it not the case that the additional constraints that last week’s Budget has placed on the Northern Ireland budget in the next CSR period have cast a huge shadow over this paper? We have anticipated what additional savings will be required in Northern Ireland in the next CSR period. Those calculations are based on the current budget and do not account for a justice and policing budget. I will not provide the figures, because they will alarm people. Whatever the unavoidable pressures are in the next two years, is it not the case that the pressures in the next CSR period will make some of this stuff look minor?

2025. Mr Hewitt: I will begin by answering your last question. The Budget estimates that I have seen look totally unrealistic, because they are predicated on rates of growth beyond next year, which no commentator will accept. If those rates of growth do not manifest themselves, the hole in the UK Budget will grow even larger, and, inevitably, the Government will have to look at their spending programmes. So far, they have avoided making major spending cuts; they have made changes to the taxation side. However, delivery on the changes to taxation requires a buoyancy in the economy, and that does not exist now.

2026. If the Government are to keep the borrowing requirements, which are probably beyond bearable at the moment, within bearable limits, they would, almost certainly, have to cut major spending programmes. That would have major repercussions for us if those spending programmes had comparable components here. For instance, we would suffer if the Health Service was no longer going to be protected and had to make major savings. We are in the hands of the gods for the next few years.

2027. Even on present plans, the overall public expenditure levels will grow by only about 0·7%. If we get everything comparable through the Barnett formula, we can sustain growth of about three quarters of that percentage. For every 1% growth in England, we can sustain about three quarters of a per cent, and that is not sufficient to sustain our existing programmes. Costs related to the inflation rate and such areas as health are massively beyond that. I know that everyone quotes the retail prices index (RPI) and so on, but the real rate of inflation in such areas as healthcare is massively above that. Therefore there will be enormous pressures on programmes here in the future.

2028. I apologise if that sounds pessimistic, but that is the reality of the situation.

2029. Mr Attwood: I agree with your assessment.

2030. Mr Hewitt: My experience of the Treasury is that it will settle with us on what it can identify as being genuine and unavoidable pressures. The other issues, which they will see as day-to-day housekeeping, will have to be operated by ourselves, and we will have to decide what areas need a little bit more money and what areas can make do with less.

2031. The Treasury will not give you an open-ended commitment to keep coming back again and again on those issues.

2032. We devised a useful formula during the CSR period at the time when the Prison Service was being shaped. That formula stated that we would cover all foreseeable pressures and get that into the agreement as a statement of principle. That left the door open for claims to be made on foreseen pressures, in principle. However, the Treasury will not give you a blank cheque ongoing.

2033. The Chairperson: Does any other member have a question on the paper?

2034. There is a number of questions to which we will require answers. There needs to be some discussion about the paper and about where we go from here, because work needs to be done. I know that Victor is going to raise some of the issues, but there are some questions that we need to ask.

2035. Your paper refers to the “key unavoidables". I would be reluctant in any final paper to have, as your paper states:

“Legal Aid [unlikely that HMT will fund?]"

We need to go down the route of saying that that is money that is required and it will be for others, particularly the First Minister and deputy First Minister and the Minister of Finance and Personnel, to go to the Treasury or wherever to seek funding. We need to have a discussion about whether, at the stage at which we now are or when we get more answers, we need to have the First Minister, the deputy First Minister and the Minister of Finance and Personnel around the table specifically to discuss the Committee’s findings and, perhaps, to present them with a final paper to allow them to comment .

2036. There is also the Heywood Committee, from which the Secretary of State indicated that he is expecting a report to himself and the Prime Minister around the end of the first week in May. There is a question of when the information from that will be shared. There is also the Ashdown Report, about which the Committee has just written to inquire about its financial implications. That report might make recommendations for policing and justice that have financial implications. There has been speculation about that, but we do not yet know. The report might well ease pressures on policing, but there is, obviously, always pressure on the policing budget from contentious marches and suchlike. The Committee needs to see the recommendations of the Ashdown Report in order to know that there are no possible major financial implications for the devolution of policing and justice.

2037. There is no inkling of that report being published. The last time I inquired, I was told that it would be out in three or four weeks’ time, but it has still not appeared. As a result of a discussion at last week’s Committee meeting, a letter has been sent inquiring about its progress, and a copy of that letter is in members’ information packs. There are, therefore, a number of matters that the Committee needs to flesh out. Perhaps members might like to suggest what the Committee’s next move should be.

2038. Mr McFarland: Two areas could do with being refined. The first is to have rough agreement on the areas that the Committee would see as being historical, and, therefore, being reasonably left to the NIO, and how the situation would look if they were removed. The second is whether it is possible to change the legal system with regard to support for legal aid sooner than 2015. Members spoke about making changes in a number of areas that would improve things. It would be useful to refine some of those areas so that we know what can be achieved and in what timeframe. That might help us in our decision-making.

2039. The Chairperson: Is that possible, Victor? I know that you have been reluctant to do that so far in your paper, but is there enough information from what the police and others have provided about historical matters? The Secretary of State recognised that there were historical factors, and he indicated that he wanted an equitable policing and justice budget to reflect those. I suspect that it would do no harm to have that aspect separated, and a line or paragraph in the final report suggesting that there are historical areas that need to be taken out of the budget equation.

2040. The Chief Constable always makes that argument. He talks about policing the here and now as opposed to policing the past. Given the resources and amounts involved, that has a fairly big effect on the police budget. It might be helpful to take that issue away from the main in some sort of silo.

2041. Mr Hewitt: It can be done. On paper, it could be moved to another category.

2042. The issue should be left with the NIO to fight with the Treasury about the figure. It would no longer be a concern of the devolved Administration. I reiterate the practicalities of dealing with the Treasury: it dislikes intensely making open-ended commitments and much prefers to pay people off with a lump sum. However, we can put those legacy issues to one side, and say that the NIO, not the devolved Administrations, will deal with those matters in the future. Of course, there will need to be a mechanism for that. Some sort of board could be set up in the NIO to deal with claims against the police, which, at that time, will be devolved. It could cause some complication.

2043. The Chairperson: That point may be for others to argue. It is not our job.

2044. Mr McFarland: As the Eames/Bradley group recommended, it is time to establish a principle to deal with live policing from now on and leave the past in the past. I understand that the House of Commons Committee will report in early September and expects the Government to produce a statement on the Eames/Bradley report in September. That might provide more direction as to whether they accept that those matters should be packaged and separated. As the Chief Constable and the policing board have said, if we continue to be dogged with historical issues, the situation will be open-ended and could bankrupt the police in two or three years.

2045. Mr Attwood: Alan’s point about trying to differentiate between historical and current issues is useful. Putting all unavoidable issues into the historical section would be even more desirable. As the Chairperson said, in order to manage the paper, we need to have a conservation with either the Department of Finance and Personnel or the First Minister and the deputy First Minster soon. We have drawn up a paper, but half those matters — or, perhaps, none — may have been addressed in ongoing conversations outside the Committee. We do not know.

2046. Therefore, given that OFMDFM said that it hoped to conclude budgetary issues by the beginning of April — presumably that has not happened — there is a risk that our paper could interfere negatively with ongoing conversations elsewhere if it is known that an Assembly Committee thinks that there will be £631 million of budgetary pressures in the next two years on justice and policing alone. That might scare some horses or jeopardise current negotiations. Therefore, given that we our draft report can be adjusted, we need to have that conversation as soon as possible.

2047. It is six months since the First Minister and the deputy First Minister met the Committee. Therefore, their attendance would be timely. However, if they do not meet the Committee immediately, we might, potentially, go down some dead ends, make some mistakes, or be so unsighted about relevant conversations that we cause damage. All those scenarios have political consequences. Moreover, our parties, at some level, need to consider the draft report, because some of the issues are graphic. The report is detailed, and Committee members’ eyes are wide open about some matters.

2048. Therefore, as regards general management, I believe that it would be useful to have a conversation with our own parties; certainly, with our party leaderships.

2049. Mr Paisley Jnr: There is a great deal of merit in that suggestion, not only because it would broaden discussion; it would create a stalling point at which we could ensure that we are absolutely clear on the competences of what we are engaged in and on what the thing should actually look like.

2050. It would also be interesting to get a quick update or indication, whether it is from the First Minister and the deputy First Minister or from the Secretary of State, on where his Haywood Committee is at present, because, you are right; that argument could promote and accelerate the devolution of policing and justice: equally, it could stop it for ever. We need to realise exactly what the consequences are; to address those issues; and to ensure that all parties are content politically. Everyone knows where we want to be. Now, we need to ensure that we can get there.

2051. The Chairperson: Do members agree, therefore, that we suggest a round-table discussion with the specialist adviser? Clearly, there is more work to be done and questions that have already been discussed to be answered. Obviously, given the work that is ongoing, the meeting with the First Minister, the deputy First Minister and, say, the Finance Minister would be held in closed session.

2052. I agree with Alex that there also needs to be discussion within parties. However, more work must be done beforehand. We are working from a draft document. Some issues need to be clarified. I have no doubt that parties will have their own discussions.

2053. Mr McFarland: Certain members who are present are also members of the Policing Board. My party’s two Policing Board members are not Committee members. It will be quite useful to have a discussion with them because they, like the Policing Board members who are present, will have a more in-depth knowledge of policing than, perhaps, the rest of us do.

2054. The Chairperson: I do not see a need to widen the discussion beyond Committee members. I am reluctant to bring in other MLAs.

2055. Mr McFarland: I am just saying that if we agree to talk to our party leaders, which we just have done, those parties who have Policing Board members on the Committee have a distinct advantage over me and Danny, as neither of us sits on the Policing Board. Our party’s Policing Board members are unsighted on all of that because they have not been included in discussion thus far. If other parties’ Policing Board members are included —

2056. Mr Paisley Jnr: Please do not bring Basil into the discussion.

2057. Mr McFarland: I do not mean that I will bring him to a meeting. I mean that I will talk to him, rather than bring him to the Committee.

2058. Mr Hamilton: He will bring the whole thing down. All progress will be reversed.

2059. The Chairperson: I am not getting embroiled in that particular discussion —

2060. Mr Paisley Jnr: Please, we beg you, do not bring Basil — for your own sake.

2061. We should take it step by step. The first step should be discussion between Committee members and their party leaderships, after which we will come back to the Committee and start the process. We will not rule anything out.

2062. The Chairperson: Are we happy to go down that route? Do you want us to start the process and suggest that that might happen, subject to the diaries of the First Minister, the deputy First Minister, and the Minister of Finance and Personnel? Members can go off and have discussion —

2063. Mr Paisley Jnr: Should we not have the discussion first and come back to the Committee afterwards?

2064. The Chairperson: I am happy to do it whatever way the Committee wants.

2065. Mr Paisley Jnr: Ultimately, the two parties that will have those discussions with their party leaders are those that will fill those roles anyway.

2066. The Chairperson: OK. Let us do that and come back. Victor, is there any other information that we might be able to assist in getting or are you relatively happy?

2067. Mr Hewitt: I am happy as long as the Committee is happy that I have discussion on an official level with DFP and NIO in order to keep on top of figure work, because, obviously, it moves around. That figure is roughly 10 days old, and may well have moved on in the meantime. Therefore, as long as the Committee is happy enough that I do that, I will proceed.

2068. The Chairperson: Do we put historical stuff into a silo on its own?

2069. Mr Hewitt: Yes. We will redraft it and I will have a go at the Barnett estimations, and so on.

2070. Mr O’Dowd: We should be conscious that although there are major financial obstacles ahead with policing, if we take the view that we should not deal with policing because of finance, we would not have devolved health or education either. By the end of budgetary period, we will wish to ourselves that we had not devolved any of those matters. We will all be up the Suwannee without a paddle because finances will be tight. Therefore, although financial considerations are important, they are not —

2071. Mr Paisley Jnr: They are not the be all and end all.

2072. Mr O’Dowd: That is correct.

2073. The Chairperson: We have been able to tease out some points that, perhaps, were not in the public domain at the start of the meeting. That is a scary figure. I appreciate what you have said, John. Certainly, it is not be all and end all.

2074. Thank you, Victor, for your helpful presentation. I understand that you have to get your head around quite a lot of figures. We appreciate the work that you have done thus far. We will, undoubtedly, have further discussions in coming weeks. Thank you very much indeed.

28 April 2009

Members present for all or part of the proceedings:

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

2075. The Chairperson (Mr Spratt): We will now discuss the devolution of policing and justice. I declare that I am a member of the Northern Ireland Policing Board.

2076. Mr McCausland: I am a member of the Belfast District Policing Partnership.

2077. The Chairperson: Ian Paisley Jnr has left the room.

2078. We will now discuss the category 2 list of issues. The original issue C relates to the Serious Organised Crime Agency (SOCA) and the security services. I remind members that a letter was sent to the Secretary of State on that issue, and we are awaiting his response. Are members happy to park that issue?

Members indicated assent.

2079. The Chairperson: The position is similar with regard to new issue D, which deals with the North/South policing and justice agreements, and the question of a justice sector of the North/South Ministerial Council. A letter was sent to the Secretary of State in relation to that on 22 April, as was the letter in relation to the previous matter. Are members content to park that issue?

Members indicated assent.

2080. The Chairperson: New issue E questions the extent of financial provisions for a Department that would exercise the range of policing and justice functions, how, when and by whom the financial negotiations with the NIO should be conducted, and whether a budget should be ring-fenced. A number of those issues are currently being dealt with.

2081. Bearing in mind the discussion that we had during the closed session of the meeting, the specialist adviser will carry out some additional work on a lot of those issues. It may be putting party representatives on the spot to ask for views now, given that we are awaiting some answers on those matters. Are members content to park that issue?

Members indicated assent.

2082. The Chairperson: New issue F asks what, if any, consideration there should be of the Ashdown report on parading, whether there is a need for further clarity on the powers to be devolved, and, if so, whether they should include matters relating to the Public Processions (Northern Ireland) Act 1989, flags and symbols, or recruitment to the PSNI. Again, that issue has been raised with the Secretary of State in the letter of 22 April, and we await a reply on that. Are members agreed to park that issue?

Members indicated assent.

2083. The Chairperson: We will move on to discuss new issue G. In the context of recommendation 26 of the Committee’s original report, to which Department should the Public Prosecution Service (PPS) be attached?

2084. Mr Hamilton: My party’s position on that issue has not changed from that stated last week. It is a non-ministerial body, so the only issues are budgetary ones. I reiterate our suggestion that the PPS should be attached to the Department of Finance and Personnel (DFP).

2085. Mr McCartney: Our position remains that it should be attached to the Office of the First Minister and deputy First Minister (OFMDFM).

2086. Mr McFarland: Our party’s position is that it should be attached to DFP. However, we were hoping to receive some further guidance from the Republic of Ireland and Scotland after visits to ascertain how it was done there. Subject to any dramatic changes, our position remains the same.

2087. Mr Attwood: I would like to ask Simon Hamilton why the PPS should be attached to DFP. Why is the PPS such a different creature from all the other justice agencies that will be the responsibility of the justice Department? Why is the prosecution service unique, and why must it be attached to DFP as opposed to another Department, such as the justice Department? The Probation Board, the Policing Board, nor the PSNI have raised any problems with being attached to the justice Department. Given the range of responsibilities, and the sensitivities around those issues, why must the PPS be attached to DFP, whereas the police and the Policing Board need not be?

2088. Mr Hamilton: I understand the points raised that Alex raised, and I am happy to further explore those issues.

2089. I recall from some of the evidence, and some of the suggestions in the PPS submissions, that concern has been expressed in the past about potential conflicts of interest. Our argument for the PPS being in DFP is that if, in the future, it is a non-ministerial body, and there is an argument over budgetary matters, the persuasion of its own parent Department, for want of a better phrase, would be easier than taking the more convoluted route of going through another Department or office.

2090. We are happy to seek the experience of others on how that has worked in practice, as Alan mentioned, but we are not hung up on how it is done. Placing the PPS in DFP is a neutral suggestion. That would solidify the aspect of its being non-ministerial, and get away from any confusion that there might be over any conflict of interest.

2091. The persuasion of its own parent Department on budgetary matters may be more straightforward than might otherwise be the case. I am happy to examine and explore the idea further, and look at it in the context of experiences elsewhere.

2092. Mr Attwood: It might be useful to spend 10 or 15 minutes doing that some time, because the Chief Constable has not made any point of that nature in respect of his responsibilities — for instance, that the funding Department of the PPS being the justice Department represents a conflict of interest, interferes with his responsibilities or compromises him in some way. The Chief Constable does not make that point at all; it does not even register on his radar.

2093. No one has raised any issue so far about where policing should be placed in terms of its funding authority. I find it unusual that the PPS should be treated differently and separately. I understand that there may be some issues among one or two parties that the PPS funding authority would be OFMDFM.

2094. We had that problem before when one party raised an issue about the appointment of judges, and a residual power that fell to OFMDFM. I could understand if that was the point that was being made, but that point has not been made. That is why I am even more curious why the PPS, of all bodies, should go to DFP. There is no precedent for that. There is no compelling organisational or management argument for it. It seems to me that if we explore that matter a bit more, we could possibly convince people that if there are objections in respect of the PPS going to OFMDFM, it should go to the justice Department.

2095. Mr Hamilton: We are happy to discuss that at a later point if some issues are clarified. I certainly would not close my ears to that discussion.

2096. The Chairperson: Are we happy, then, to have that discussion at a later stage?

2097. Mr McFarland: Part of the reason that this issue has arisen is that there is sensitivity over it. As I recall, Alex has been very sensitive in the past about whether people were being prosecuted, and whether there was interference and public statements being issued. The Director of Public Prosecutions (DPP) expressed fairly strong reservations when he appeared before the Committee — not the last time, but on the previous occasion — about the need for the absolute independence of that body; to have a home where there was no chance of anyone interfering with its budget or influencing matters by cutting back on its administrative support. That was one of the points that were made, and I am sure that that is included in the report of the meeting.

2098. Given that sensitivity, there is an issue about whether it might be possible to influence where the PPS is placed. We think that it should initially be put somewhere where no one would have a reason to interfere with it, which they would not if it were an administrative area within DFP. It is possible that our visit to Scotland and Dublin may show us a better place to put it. Possibly, with a bit of experience, it might go somewhere else. To ensure its independence, as the DPP himself initially said, it seems sensible to put it in DFP to remove all accusations of influence or interference with it.

2099. Mr Attwood: But the DPP is in a minority of one. None of the other heads of justice agencies in the North raised any issues about their responsibilities or about the funding responsibilities falling to the Department of justice. The Director of Public Prosecutions seemed to make the point that he was unique among the chief executives of the justice agencies in the North. Therefore, I would draw conclusions about what everyone else seems to be content with rather than what the Director of Public Prosecutions is content with.

2100. In any case, going to DFP does not solve the problem. Why, if there was going to be an attempt to interfere with the PPS, would it be more or less likely to come from DFP than from the justice Minister? The point that was made in respect of concerns about interference in the prosecution of cases is a fair one, except, obviously, that responsibility for those cases of concern is not going to be devolved to a Northern Ireland justice Minister or the Executive anyway. Responsibility for all the terror cases is going to be retained by London. The PPS responsibility for such cases will be to London through the Advocate General, not to us through the Attorney General.

2101. The Chairperson: OK. Perhaps parties can hold some discussions and come back to explore the issue further. Are members content with that?

Members indicated assent.

2102. The Chairperson: We will now move to issue I: in relation to recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?

2103. Mr Hamilton: I restate the DUP position as outlined last week, which is that there is a need for sensitivity and independence, and that the role should be retained by the Northern Ireland Office and the Secretary of State.

2104. Mr McCartney: My party’s position is the same as it was last time — that the responsibility should lie with the Office of the First Minister and deputy First Minister.

2105. Mr McFarland: It depends on where the Eames/Bradley process ends up. If the role of rooting around in the past is removed from the Police Ombudsman, it can sit with OFMDFM. If that role is retained — the idea of a one-sided truth commission — the responsibility to decide who should give advice and who should get it must lie with the Secretary of State.

2106. Mr Attwood: That function should not be retained by the NIO. It should fall to the devolved institutions in the form of OFMDFM. However, we are prepared to be convinced as to whether it should pass to the Department of justice or not.

2107. The Chairperson: According to my adding up, there is no consensus. Are members agreed that there is no consensus and that we should return to that issue?

Members indicated assent.

2108. The Chairperson: We will now move to issue J: what procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?

2109. This was an additional question, which was introduced to the category 2 list following a decision on 25 November 2008 to relocate it from the category 1 list as issue O.

2110. Mr Hamilton: We provisionally agreed a position on that matter, did we not? This is issue J, which concerns Committee relationships. I believe that we agreed that the relationships would be of the regular order.

2111. Mr McCartney: That is agreed.

2112. Mr Attwood: It is provisionally agreed.

2113. Mr Attwood: May I ask Mr Hamilton another question? Why does the DUP believe that the Minister should have exactly the same relationship with the Assembly and the Committee as every other Minister, when it has been arguing that the Minister would not be a fully-fledged Minister on a par with every other Minister at the Executive table? To treat a Minister in the same way as other Ministers for one purpose, but treat him or her differently for another purpose, would create a lot of tension.

2114. Mr Hamilton: I am not sure that Alex’s characterisation of my party’s position is accurate. I do not see any reason why a justice Minister’s relationship with a Committee would be any different in an operational sense from that of any other Minister. His comments about the Executive are not an entirely accurate reflection of the position that my party has put forward on that matter.

2115. The Chairperson: That issue has largely been sorted, but there has not been a final stamp of approval.

2116. Mr McFarland: Presumably, the reason that there has not been a final stamp of approval is that, as Alex has said, it depends on the outcome of issue K. It could be argued that how the Minister will operate within the Executive has a direct relationship with how the Minister will operate with the Assembly and other agencies. I presume that the issue has been provisionally parked due to the fact that it is logical to deal with it and issue K together. That can happen when we receive clarity on parties’ position on issue K.

2117. The Chairperson: Could we return to and agree that issue after our visits to the various legislatures?

Members indicated assent.

2118. The Chairperson: We now move to issue K: what would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?

2119. Mr Hamilton: If the Committee agrees, I am happy to take more time to resolve issue K.

2120. Mr McCartney: The Minister’s position in, and relationship with, the Executive should be the same as those of all other Ministers. However, we are willing to return to this matter.

2121. Mr McFarland: Our party’s view is that the Minister should operate in the same way as every other Minister.

2122. Mr Attwood: I refer to the position that our party has outlined previously, which is that the Minister should be a fully fledged Minister with all the entitlements that that brings. I wish to ask Simon another question: why have we not —

2123. The Chairperson: This session is not a cross-examination. Each party should state its position on each issue. I am not going to allow any more such questions. I ask you to state your party’s position on issue K.

2124. Mr Attwood: The Committee will run out of credibility if, week after week, we rehearse exactly the same positions on exactly the same issues. We get no further insight from the main parties, the DUP and Sinn Féin, on the outstanding matters of the deal on the devolution of policing and justice. Frankly, it is no longer good enough that we spend week after week rehearsing well-worn positions without being given any clarity from other parties on when those matters may be resolved.

2125. It is disrespectful to the authority of an Assembly Committee that, week after week, we have to listen to people saying that they wish to revisit certain issues. That is not a credible position for us to be in six months after the DUP and Sinn Féin worked out a deal on the devolution of policing and justice. That may well be the position that the DUP and Sinn Féin want to be in, and those parties will have to answer for that. However, I do not see why other Committee members should have to sit here, waiting until the cows come home, because no cow ever comes home.

2126. With all due respect to you, Chairman, it is absolutely right that I, on behalf of the SDLP and the people that we democratically represent, ask other parties questions to which we have not yet received any answers. Equally, it is your duty as the Chairperson to bring that to the attention of other parties. It is not good enough that, after six months, we are revisiting the same issues without having been given any clarity or answers. It is not a proper way for business to be conducted.

2127. Mr Hamilton: I am happy —

2128. The Chairperson: Let me answer first, Simon; I am happy to let you in after that.

2129. A great amount of progress has been made, and it is wrong for Mr Attwood to sit there and portray that that is not the case. There was a fair degree of movement even in the financial discussions that we had in closed session today. Some of the issues now hinge on replies that we are waiting to receive. We have sent the relevant letters, and it may be easier to resolve some of the issues when the replies to those letters arrive. I do not accept that there has been no progress. There has always been a process by which each party is invited to state its position on each issue until those are cleared from the agenda. I have done that systematically. It is also my job to keep issues on the agenda that need to be kept on the agenda, and it is for parties to indicate their positions, and they have done so.

2130. Mr Hamilton: I agree that progress has been made. That is a well-recognised aspect of our discussions on the devolution of policing and justice. There are inherent difficulties, but progress has been made. The issue may not be progressing at a pace that everybody likes, but many of the gaps have been bridged, and a lot of progress has been made on areas where many “wise folk" might have thought that it would have been impossible.

2131. Alex may not agree with that analysis, but my party shares the view that there are great sensitivities around many of these issues, including this particular point. He may not agree with that, but that is the position that we take, and it is the position to which we hold, and, if it takes some time to resolve those issues to our satisfaction, we will take that time. That may not be to Alex’s satisfaction, and it may not happen at the pace that he wants it to, but it is much better for the Assembly that the issues are resolved to our satisfaction, rather than rushing them and getting them wrong. That is our party’s position. Work is ongoing, and, as I said at the start, there are issues of great difficulty inherent in the whole exercise. That is why some issues will take longer to resolve than others. We will take that time, and we will get it right, rather than rushing it and getting it wrong.

2132. Mr McFarland: Progress has been made, albeit slow, so I sympathise with Alex. However, there is an issue around how fast the issue can progress. It is slightly confusing, but it is clear that there is negotiation going on outside the Committee involving Sinn Féin, which wants a non-DUP Minister — it does not want a “half Minister" under control — and “Lord Ford" and the Alliance Party over whether it will take the post and how it is all going to work. The Committee is not part of that, and, presumably, we are obliged to wait until those discussions have taken place and the white smoke appears.

2133. The Chairperson: Nelson McFarland — sorry; Nelson McCausland.

2134. Mr McCausland: Can I sue you for that? [Laughter.] I am also interested in the fact that Mr Ford has now been elevated.

2135. The Chairperson: I saw white smoke outside and was wondering whether that announcement has been made. [Laughter.]

2136. Mr McCausland: I am interested in the fact that Alan McFarland has elevated Mr Ford and given him a peerage. He rejected David Trimble’s peerage, but nevertheless. The point was well made that there is huge sensitivity around the issue, and nobody is more aware of it, or should be more aware of it, than Alex Attwood. The issues are also complex. We received a financial statement and other information this morning, and it is clear that the scope and scale of the problems that we face are only too apparent. Therefore, I take the view that we are making progress, albeit slow, but we should just keep at it, rather than getting irritable about these things.

2137. Mr McCartney: Every week, we come to the Committee and put our position on the table, and we will continue to do so.

2138. Mr Attwood: There are six or seven issues under the category 2 list of issues in appendix 1 on which, for more than four months, we have made no progress at all.

2139. The Chairperson: I do not accept that. Progress has been made, because the relevant letters have been sent, and we have agreed to examine the financial issues and other matters. I have already clarified that. I hear what you are saying, and I have heard you saying it before.

2140. Mr Attwood: I will conclude my point, so that you can fully understand what I am saying. There are six or seven issues in the category two list of issues in appendix 1. Since 27 January, we have not got to the green-ink-handwriting point of resolving those issues. One of those matters touches on the financial issues. We have a lot more information, which Nelson referred to, and it will be very interesting how that information now gets handled.

2141. However, five or six other non-financial issues — involving decisions about where authority resides, the Minister’s powers, relationships with the Committee, and so on — have not been resolved in the past four months. I do not believe that they will be resolved in the next four weeks. Given the current financial figures and wider economic environment, it would not surprise me if that becomes an even bigger hurdle to the devolution of justice and policing.

2142. Why can there not be some clarity and closure on even one or two of those five or six matters? What is the big impediment? Why is that so difficult? The Committee knows that it is a sensitive area. For 153 days, the Government was suspended because of that sensitivity, and other issues. Why are we now, almost 153 days later, apparently no nearer closure on those matters? That is not credible.

2143. The Chairperson: It has already been stated, with the support of members of the Committee, that matters have moved forward, and continue to do so. Mr Attwood says that he keeps hearing the same things, but I keep hearing the same thing from his end of the table.

2144. There is certainly no consensus on the matter of issue K. Therefore, does the Committee agree to park issue K and return to it later?

Members indicated assent.

5 May 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Alex Maskey
Mr Nelson McCausland
Mr Alan McFarland

2145. The Chairperson (Mr Spratt): We move to policing and justice matters. I declare an interest as a member of the Northern Ireland Policing Board.

2146. Mr McCausland: I am a member of Belfast District Policing Partnership.

2147. The Chairperson: Alex Maskey has left the room for the moment, but he is a member of the Northern Ireland Policing Board. He will rejoin the meeting shortly.

2148. We move back to the category 2 list of issues. I will not go through the procedures because members know what they are. I will read out each issue, after which parties may state their position. We move to the original issue C:

“What should be the relationship between SOCA and the Security Services, and the Minister/Department/Assembly?"

2149. Mr Hamilton: I do not think that anything has changed since last week — which may be a recurring theme throughout the session. We are still awaiting protocols and memoranda of understanding. When we receive those, we can advance the issue further.

2150. Mr McCartney: Our position has not changed.

2151. Mr McFarland: Our position has not changed.

2152. Mr Attwood: Our position is as before.

2153. The Chairperson: We move to issue D: “What needs to be done to ensure the maintenance of existing North/South policing and justice agreements, and is there a requirement for a Justice Sector of the North South Ministerial Council?"

2154. Mr Hamilton: We are still waiting for the response from the Secretary of State. We remain to be convinced of the merits of a justice sector of the North/South Ministerial Council (NSMC).

2155. Mr McCartney: Our position is the same as it was last week. We argue that there should be a justice sector.

2156. Mr McFarland: We are awaiting the response from the Secretary of State. We do not see any reason to have a North/South justice sector.

2157. Mr Attwood: There is a need for a new North/South justice agreement and a sector of the NSMC for justice matters.

2158. The Chairperson: OK. We will park that issue.

2159. Issue E asks:

“What is the extent of the financial provisions for a justice department which would exercise the range of policing and justice functions?"

2160. That has been parked. The Committee will be receiving papers and information from the specialist advisers. Work is ongoing on that issue. We are certainly not at the end of that. There is no point in gauging the opinion of parties until we have fuller information. Some of the questions that we would pose to the specialist adviser on that work will be done in closed session.

2161. Issue F asks:

“What, if any, consideration should there be of the Ashdown Report on Parading, and is there a need for further clarity of the powers to be devolved, and, if so, should they include matters relating to the Public Processions (Northern Ireland) Act 1989, flags and symbols and recruitment to the PSNI?"

2162. Members are aware that a letter was forwarded to the Secretary of State on 27 April. There has been no reply to that letter, and the issue has been parked on that basis. I do not consider that there is any point in discussing that issue until we receive some substantive replies. Are members agreed?

Members indicated assent.

2163. The Chairperson: We move to issue G: “In the context of Recommendation 26 of the Committee’s original report, to which Department should the Public Prosecution Service be attached?"

2164. Mr Hamilton: To restate our position, for the reasons previously stated, we believe that it should be attached to the Department of Finance and Personnel.

2165. Mr A Maskey: Our position is the same as it was previously.

2166. Mr McFarland: There is no change in our position either; we believe that it should be attached to DFP initially, with the possibility of looking at another Department later.

2167. Mr Attwood: We believe that it should go the justice Department along with all of the other justice organisations.

2168. The Chairperson: OK. There is no consensus on that issue, so we will park it for now.

2169. We will move to issue H:

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

2170. The Committee Clerk: The Committee has examined issues G and H from time to time, and they have been intermingled during those conversations. Members have previously asked for various research papers on issue H and have reflected on evidence that was presented during the Committee’s original inquiry into the devolution of policing and justice matters.

2171. Following last week’s discussions, I reviewed all those papers and I have picked out an extract from the report of Sir Alastair Fraser’s oral presentation of 16 October 2007 on the prospective roles and relationships of the Attorney General and the Public Prosecution Service. One of the subsequent research papers — which is contained in the pack that has been provided to members for the work that they are doing now — restates that the responsibility for the funding of the PPS should lie with the Office of the First Minister and deputy First Minister, because it was Sir Alastair Fraser’s understanding at that time that OFMDFM would be responsible for appointing the Attorney General. Those specific extracts have been selected to save members trawling through all the documents that they have, and might inform consideration of the issue at a future meeting.

2172. Mr Hamilton: If we are to revisit issue H at some length in future, I will reserve comment until then.

2173. Mr A Maskey: We are happy to leave our position on the record.

2174. Mr McFarland: Issue H should be properly discussed at some stage, but our visits to other jurisdictions will be useful. We will be able to see how other people do things.

2175. Mr Attwood: It is my understanding that we agreed to put an opportunity to look into those matters on the agenda for a future meeting. It would be better to do that before we visit other jurisdictions, because we could scope out where our conversation might go. That might help us to probe the other jurisdictions about the structures that they have established around their prosecution services. We need to have a conversation some time between now and the end of May about the issues that are outlined in the research excerpts so that we can, at least, ask some of the hard and immediate questions.

2176. The Chairperson: Alan has suggested that we discuss those issues after our visits to the various jurisdictions.

2177. Mr McFarland: I do not mind having that discussion before we embark on our visits. We just need some time to argue out all of the issues, because several of them will be key elements in the success of this process once devolution takes place. We may as well get it right.

2178. The Chairperson: Shall we schedule that issue for discussion at a future meeting?

Members indicated assent.

2179. Mr Attwood: Before the end of May?

2180. The Chairperson: Yes.

2181. We will move on to issue I:

“In relation to Recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?"

2182. Mr Hamilton: As I have previously stated, given the sensitivity of the position and the need for independence, that role should be retained by the NIO.

2183. Mr A Maskey: We have already indicated our preference for the advisory role to be undertaken by OFMDFM.

2184. Mr McFarland: As I said before, it depends on the Eames/Bradley recommendations. If the role of the Police Ombudsman to wander around in the past as a one-sided truth commission is retained, that role should stay with the Secretary of State. If that goes off with the NIO, as has been recommended by Eames/Bradley, then we do not have a problem with OFMDFM.

2185. Mr Attwood: Our position is as stated before.

2186. The Chairperson: There is no consensus on that issue. Do members agree that the issue should be parked?

Members indicated assent.

2187. The Chairperson: We move on to new issue J: “What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and its associated agencies?"

2188. Some of that came up in conversation during our closed session this morning. Again, we need to have a look at the replies from the Secretary of State. Do members want to state party positions or are you happy to park the issue until we receive the relevant information?

2189. Mr Hamilton: Mr Chairman, there are issues that need to be resolved, and that will take some time. I do not want to go into those now, but we need to take more time on some of those specific matters at a later juncture.

2190. The Chairperson: I am reluctant to get into a conversation that could lead to the discussion that we had in closed session. Those points were well made in the session that has just ended.

2191. Mr Attwood: Who prompts or takes ownership of those issues? I said that those “rubbing" issues would arise sooner or later. We should anticipate them and work out how they might be managed — if we can. Who will be responsible for identifying and working out the Committee’s authority and rights of access to information? Who will do that work? It was clear from the director that he felt that he could not go any further.

2192. The Chairperson: I want you to be careful what you say. I do not want to breach a private conversation. I suggest that I might write a confidential note to the director, highlighting the points that were raised with him. I might also write to the Secretary of State in relation to some of the issues that were raised.

2193. Mr McFarland: Regarding the issue about rubbing points between the NIO, as there will be, and any potential Committee in relation to national security — which is what Alex was talking about — we will receive memoranda of understanding from the Secretary of State, which will tell us how the NIO proposes to deal with a Committee. That is not a matter for much discussion. The issue is how this Committee will relate to the Department of justice and the Policing Board. My guess is that it will fall to us to take the lead on that further down the line.

2194. The Chairperson: It is important for the Committee to see the memoranda. Shall we park the issue until we receive the memoranda?

2195. Mr Attwood: It might be useful to write to the Secretary of State to say that the issue of what a justice Committee has access to has been identified, and that we await the memoranda of understanding, which we presume will address that matter.

2196. The Committee Clerk: To answer the strategic question about who should take the lead or who has the responsibility, effectively this Committee was charged by the Assembly to give consideration to any matters relating to the devolution of policing and justice and has identified that particular issue as one of the category 2 issues for such consideration. To all intents and purposes, this Committee has all the authority that it needs to delve into that matter to the extent to which it wishes to delve into it.

2197. The Chairperson: We intend to do that. There is no suggestion that we are not going to do that.

2198. The Committee Clerk: The Committee could also explore that matter in respect of the visits to other legislatures. However, members may wish to write to the Secretary of State in the meantime.

2199. The Chairperson: I believe that the pertinent issues have been raised. Does the Committee agree to proceed by writing those letters?

Members indicated assent.

2200. The Chairperson: Hopefully, the memoranda will arrive in the not-too-distant future. That deals with issue J.

2201. Issue K asks:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?"

2202. Mr Hamilton: I would like the Committee to revisit issue K at a later point.

2203. Mr A Maskey: We are happy to come back to that.

2204. Mr McFarland: We believe that the relationship should be normal and akin to any other Minister’s. However, we can revisit that.

2205. Mr Attwood: Our position is as stated before.

2206. The Chairperson: The consensus is that the Committee park issue K. That concludes our discussion on policing and justice matters.

12 May 2009

Members present for all or part of the proceedings:

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

2207. The Deputy Chairperson (Mr McCartney): We will now discuss matters that relate to devolution of policing and justice. I ask members to declare their particular interests.

2208. Mr McCausland: I am a member of Belfast District Policing Partnership.

2209. Mr A Maskey: I am a member of the Policing Board.

2210. The Deputy Chairperson: We shall follow the same procedures as previously. If anything has changed, members can make the Committee aware of it. I refer members to the original issue C: “What should be the relationship between SOCA and the Security Services and the Minister/Department/Assembly?"

2211. Mr McCausland: My party will revisit that matter when it gets an update.

2212. Mr A Maskey: My party’s position remains the same.

2213. Mr McFarland: So, too, does my party’s position.

2214. Mr Attwood: My party’s position also remains the same.

2215. The Deputy Chairperson: I refer members to new issue D: “What needs to be done to ensure the maintenance of existing North/South policing and justice agreements, and is there a requirement for a Justice Sector of the North South Ministerial Council?"

2216. I refer members to the British Secretary of State’s recent letter, which is dated 8 May 2009.

2217. Mr McCausland: People want time to digest the letter’s contents and to receive supplementary information. My party’s position has not changed.

2218. Mr A Maskey: My party’s position remains the same.

2219. Mr McFarland: As I understand from the latest letter, the policing part will continue unaffected and the justice part will be subject to an exchange of letters that will set up a relationship between the Northern Ireland Executive and the Irish Government, which, theoretically, solves the first part. My party’s view is that there is no requirement for a justice sector.

2220. Mr Attwood: I refer to questions that were asked earlier in the meeting about what the Secretary of State’s letter means.

2221. The Deputy Chairperson: I now turn to new issue F: “What, if any, consideration should there be of the Ashdown Report on parading, and is there a need for further clarity of the powers to be devolved, and, if so, should they include matters relating to the Public Processions (Northern Ireland) Act 1998, flags and symbols and recruitment to the PSNI?"

2222. I again refer members to the letter that is dated 8 May 2009.

2223. Mr McCausland: Again, until we see what Ashdown produces, it is difficult to come to a position on that matter.

2224. Mr A Maskey: I have nothing further to add to my party’s previous position.

2225. Mr McFarland: My party’s position has not changed since last week. Have we skipped new issue E, which deals with finance?

2226. The Deputy Chairperson: Sorry. That is my mistake. We will return to it.

2227. Mr Attwood: I refer to what we said previously, but I am surprised that the Secretary of State has given a shot in the arm to Ashdown. Ashdown was quietly going to sleep — not Ashdown himself, but the impetus behind his strategic review of parading. In his letter to the Committee that is dated 8 May 2009, Mr Woodward said: “I am however confident that when the Report is published it will offer a sustainable long term solution to the issues surrounding parading in Northern Ireland."

2228. I see that as the British Government giving a shot in the arm to the Ashdown review to get the DUP lined up for future developments. The Ashdown review should have been history by now, but the British Government are lining that up to accommodate DUP interests in the near future.

2229. The Deputy Chairperson: OK. I will return to new issue E: “What is the extent of the financial provisions for a department which would exercise the range of policing and justice functions?"

2230. Mr McCausland: Is that about whether the budget should be ring-fenced? I have nothing further to add to that today.

2231. Mr A Maskey: We have nothing to add.

2232. Mr McFarland: We have nothing to add.

2233. Mr Attwood: We have nothing further to add.

2234. The Deputy Chairperson: We will move on to new issue G: “In the context of Recommendation 26 of the Committee’s original report, to which Department should the Public Prosecution Service be attached?"

2235. I remind members that we will visit other legislatures to inform our decision on new issue G.

2236. Mr McCausland: We are waiting until the visits are out of the way.

2237. Mr A Maskey: We have nothing further to add.

2238. Mr McFarland: We have nothing further to add.

2239. Mr Attwood: We have nothing further to add.

2240. The Deputy Chairperson: New issue H: “In the context of Recommendation 27 of the Committee’s original report, about examining the independence and accountability of the Public Prosecution Service, before, and following devolution, what consideration should be given to this matter, pre-devolution?"

2241. Mr McCausland: We have nothing further to add. Although, at some point, if possible, we would like to listen to the views of the prospective Attorney General.

2242. Mr A Maskey: We have nothing further to add.

2243. Mr McFarland: We have nothing further to add.

2244. Mr Attwood: We have nothing further to add.

2245. The Deputy Chairperson: Are we going to set a time to have a discussion on that issue? Perhaps the Committee Clerk could slot it in over the next couple of weeks.

2246. Mr McFarland: That should happen after we have received the updated report that we have just asked for, and after the visits. The idea is that we should sit down with all the available information on how the system works in other places. Only then can we have a proper discussion and, presumably, take decisions.

2247. Mr Attwood: I do not agree with that. There will be a lot more conversation after the visits, because whatever we pick up on will concentrate minds. We need to have a stocktaking session on the issue of the Public Prosecution Service (PPS). Much of what we learn from the other jurisdictions will be of a structural and operational nature, which is a good thing, but we also need to bore into some of the fundamental issues about the management and practices of the PPS.

2248. Mr McFarland: I stand corrected, and I apologise. We had agreed to do that before the end of May.

2249. The Committee Clerk: Do members have a preference as to whether that discussion should take place next week or on 26 May 2009? I remind members that 26 May is the notional date on which the special adviser will come back to the Committee to present a paper in closed session. I am not saying that we cannot deal with both issues on the same day, but the special adviser is scheduled to be here on that date. It is a matter of whether members wish to discuss the matter next week or defer it until 26 May, bearing in mind that it was decided that it should be discussed before the end of May. I suspect that it will not be the final discussion on the matter and that we will be better informed after next week.

2250. The Deputy Chairperson: Are members content to schedule that discussion for next week?

Members indicated assent.

2251. The Deputy Chairperson: New issue I: “In relation to Recommendation 30 of the Committee’s original report, who should undertake the advisory role in relation to the appointment of the Police Ombudsman?"

2252. Mr McCausland: We have nothing further to add.

2253. Mr A Maskey: We have nothing further to add.

2254. Mr McFarland: We have nothing further to add.

2255. Mr Attwood: We have nothing further to add.

2256. The Deputy Chairperson: New issue J: “What procedures and protocols will there need to be between the Minister, an Assembly Committee and any newly established department and it associated agencies?"

2257. Mr McCausland: We will revisit that matter after the visits, and so on. We have nothing further to add at this stage.

2258. Mr A Maskey: We have nothing further to add.

2259. Mr McFarland: We have nothing further to add.

2260. Mr Attwood: We have nothing further to add.

2261. The Deputy Chairperson: New issue K: “What would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee?"

2262. Mr McCausland: We are still considering that matter.

2263. Mr A Maskey: We have nothing further to add.

2264. Mr McFarland: We have nothing further to add.

2265. Mr Attwood: We have nothing further to add.

2266. The Deputy Chairperson: OK. That ends the session.

19 May 2009

Members present for all or part of the proceedings:

Mr Raymond McCartney (Deputy Chairperson)
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Alan McFarland
Mr Alex Maskey
Mr Ian Paisley Jnr

2267. The Deputy Chairperson (Mr McCartney): We will now discuss issues about the devolution of policing and justice. Rather than read through the list of category two issues, if no one has anything to add, we will proceed to the discussion about the independence and accountability of the Public Prosecution Service (PPS). Are members content to do that?

Members indicated assent.

2268. The Deputy Chairperson: As this session is being recorded by Hansard, members should declare any relevant interests.

2269. Mr Paisley Jnr: I am a member of the Policing Board.

2270. Mr McCausland: I am a member of Belfast District Policing Partnership.

2271. Mr A Maskey: I am a member of the Policing Board.

2272. The Deputy Chairperson: Members may remember that on 12 May 2009, Alex Attwood requested that the Committee should spend some time discussing this matter. As per the agreed format, I will ask a representative of each party whether they have anything to say about the issue, after which we can have a discussion if required.

2273. Mr Paisley Jnr: I am happy to hear Alex’s views on the matter.

2274. Mr McFarland: The discussion about this issue was instigated by Alex on the grounds that he had a great deal to say about it. Perhaps he has managed to pass all the details to Carmel. However, given that we were to mine into the issue, it is slightly strange that the person who wanted to do the mining is not here.

2275. Mrs Hanna: His neighbour died two days ago, and he had to go to the funeral this morning. He did pass his concerns on to me, so we can discuss the issue if members want. Alternatively, I am happy to defer the discussion.

2276. Mr McFarland: I was not having a go at him. I was simply saying that he was adamant that he wanted to get down into the issue.

2277. Mrs Hanna: I think that he does.

2278. Mr McFarland: My point is about whether it is worth holding off on the discussion until Alex is present.

2279. Mr Paisley Jnr: I am happy to go ahead with it.

2280. The Deputy Chairperson: Carmel, what do you think?

2281. Mrs Hanna: I do not mind either way. It is up to members of the Committee.

2282. Mr A Maskey: I am happy either way. However, as I said last week, I am also mindful that we have a number of site visits arranged over the next couple of weeks. I have nothing further to add on behalf of our party. I am content to let the matter sit. If Carmel wants to raise the issue from her party’s point of view or from Alex Attwood’s point of view, I am happy to listen to it.

2283. Mrs Hanna: If it is going to be dealt with on another day, that is fine. However, if it is not, I want to raise the issues today.

2284. The Deputy Chairperson: Are members content to defer the discussion until next Tuesday?

2285. The Committee Clerk: The special adviser will be present next Tuesday. However, that meeting can go on for as long as it takes. If necessary, I can organise lunch. Alex Maskey made a point about the planned visits, and there is an issue about whether those visits will better inform the Committee’s discussion. There may be a question about whether it should be rescheduled for discussion next week or for after the visits. I want to be clear about that to enable us to put it on the agenda at the most appropriate time.

2286. The Deputy Chairperson: Does anyone have any comments about whether we should have a brief discussion next week or defer it until after the visits?

2287. Mrs Hanna: I am content as long as it goes back on the agenda.

2288. Mr A Maskey: It will have to be on the agenda anyway, because it has to be discussed.

2289. Mrs Hanna: Yes; it does need to be discussed.

2290. The Deputy Chairperson: OK.

26 May 2009

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


Mr Victor Hewitt

Specialist Advisor

2291. The Chairperson (Mr Spratt): We will now receive a presentation from the specialist adviser, Victor Hewitt. Members have been provided with a pack that contains the replies from the various organisations that we gave a final chance to in order to provide information on any additional expenditure.

2292. Victor, you are very welcome. I assume that you will brief the Committee on your paper. Thank you for the additional work that you have done. I know that it was done from afar, but it has worked out very well. We appreciate you doing that work during your break, and we hope that it did not interrupt your holiday too much. Without any further ado, I invite you to proceed with the presentation, after which I assume you will be happy to take questions.

2293. Mr Victor Hewitt (Specialist Adviser): Thank you, Chairman. I trust that a copy of the paper has been circulated to all members. We are trying to get an update on the information that was previously given to the Committee. Although we had a lot of information about the remaining two years of the 2007 comprehensive spending review (CSR) period, namely this year and next year, I was concerned that we had comparatively little information about forward pressures into the next CSR period. The paper refers to post-CSR 2007, which is the period up to 2014. It is useful that many of the returns hinted at expenditures in those forward years.

2294. All the figures in the paper were taken from the returns, with a couple of exceptions. Obviously, some pressures will carry over from the current CSR period into the next CSR period. One example of those pressures is the hearing-loss claims, which will not be cleared within the next two years. Another example is the pressures on the Compensation Agency, which has previously indicated that it is running approximately £30 million light every year. I have indicated where I thought it prudent to put in an estimate for the forward years when it had not been given to us formally by the bodies involved. I am happy to take members’ questions about that process.

2295. A degree of re-phasing of expenditure has taken place since the last time, especially in respect of capital spend. Some of that capital-spend money has been pushed out of the 2007 CSR period, which runs until 2011, and into the next CSR period. A good example of that can be seen in the £100 million that was allocated for the refurbishment of the Court Service estate. Some £15 million of that £100 million is now thought to fall within the 2007 CSR period, with the remaining £85 million pushed into the future. Capital spend is always liable to be pushed forward, particularly if other pressures are to be met.

2296. The other assumption that is being made from the returns is that relatively small new pressures will effectively be absorbed in the CSR 2007 period. A number of new pressures will appear over the next two years, but the assumption is that the bodies that will be affected by that will live within their existing budgets. They are not being registered as inescapable new pressures to be met. If that assumption were to be violated, the figures would, to some degree, change again. I can deal with the individual figures in response to questions that members may have.

2297. The bottom line is that the totals are reasonably substantial. From the 2007 revised period, there is £571 million, which, because of the re-phasing, is down from the previous figure of £631 million. There is a substantial indication for the post-2007 period of £463 million, which is probably something of an underestimate. That £463 million does not cover the cost of new prison facilities. Those were mentioned when we took evidence from the Prison Service and in its further return. The Prison Service merely said that it was constructing a business case, and it has not put a figure on that.

2298. The figure of £250 million for a new prison and new women’s facilities is also an estimate. It is probably not an unreasonable estimate, but I have not included it the main body of the calculations. It is there as an additional factor to be taken into account. With that as background, I am happy to take questions.

2299. The Chairperson: Thank you very much, Victor. You said that the police hearing-loss claim will go beyond the CSR period. Do you have an indication of what that figure might be?

2300. Mr Hewitt: When the Chief Constable gave evidence, he said that the pressure from hearing-loss claims was estimated at £69·5 million for 2009 and £61·8 million for 2010-11. That was based on there being 200 new cases each month. That has now been revised to 275 cases emerging each month, and, as a result, the estimated cost for hearing loss claims has risen to £93·9 million for 2009 and to £84·2 million for 2010-11. Those costs will all be included in the current CSR period.

2301. Potentially, approximately 20,000 people may or may not have a claim for hearing loss. That is running between 200 and 300 a year, so it could run for a considerable period. I asserted an additional pressure of approximately £80 million a year on the police on the basis of between 200 and 250 cases a month.

2302. Mr Kennedy: Thank you for your presentation. Were the post-CSR figures that you presented estimates or guesstimates?

2303. Mr Hewitt: They are based on extrapolating trends. For example, we knew that the Compensation Agency had been running £30 million light per annum for a considerable period. At the beginning of each year, it knew that it did not have enough money and it had to go back to the Treasury. In that case, we took the figure of £30 million and extrapolated it over three years, so a figure of £90 million appears against the Compensation Agency.

2304. The costs for the prison have not been included in the main calculations, because, to some degree, that is a guesstimate of what a new prison and prison facilities would typically cost. I do not have the firm business case from the Prison Service, so I have not put that into the main figure work. I have merely noted it as a potential additional pressure.

2305. I have also put a couple of question marks in one of the columns. A figure of £27 million was mentioned for a new laboratory for the Forensic Science Service. However, having experience of capital projects, I feel that that figure seems to be light for the type of facility that is being talked about. Laboratories are specialist facilities, and they tend to be relatively expensive. I have not altered the figure, but I have put a question mark against it. No figure was supplied in the further update, but a figure of £27 million was given in the original estimates.

2306. The Chairperson: I remind people who have just arrived that this is a closed session, and the figures that are being discussed are confidential.

2307. Mr McFarland: A number of non-governmental organisations (NGOs) receive funding for criminal justice matters and policing work. Where do they fit into these figures? Are they included in the NIO’s budget?

2308. Mr Hewitt: No; they should have their own budgets. There are approximately 30 bodies within that family, and they are grant-aided by the NIO. The bodies were contacted individually, and they made individual returns.

2309. Mr McFarland: Where do they fit into this document?

2310. Mr Hewitt: The bodies that made submissions about new pressures appear in this document. Other bodies said that they had no trouble with their existing budgets. What we are looking at here is additional pressures.

2311. Mr McFarland: I understand that, but a plethora of NGOs get funding for criminal justice work, and some of them get it from the NIO. Presumably, when policing and justice is devolved, that funding will go to the Department of justice, and it will issue all the grants. Is that what is likely to happen?

2312. Mr Hewitt: Yes. The NGOs will have a baseline within the existing funding from the NIO, and that baseline will transfer to the new devolved Administration. We understood that the Committee was interested in whether that baseline would be adequate for existing and future pressures. That is why we focused on whether there was anything new coming along that the existing baseline would not be able to meet. That is where the evidence has fallen. I could find no mention in any previous or current returns of the expense of setting up a Department of justice. However, clearly, it will be an expense. The NIO carries that at the moment, but there is no estimate of what a Department of justice will actually cost. It will need the usual finance for staffing, private offices, and so on.

2313. Mr McFarland: From reading Secretary of State’s letter, there appear to be some unresolved issues. He said that the Heywood committee is dealing with a number of those issues. We have no idea what that committee will recommend about the setting up of the new Department and all the other issues. Therefore, we are still not clear on a key area, which is whether some of it will be taken off us and will remain with the NIO and the Government.

2314. The Chairperson: That is a fair comment.

2315. Mr McFarland: Is there no indication of when we may hear about that?

2316. The Chairperson: No; there is still no indication of when we might hear about that. There are no replies that I am aware of, and I certainly have not received any replies on that matter. We were told that the Heywood report would be published soon. A number of meetings have taken place, and the Secretary of State said that he expected to receive a paper, but he indicated that it would go to him and to the Prime Minister. At the meeting, we asked about sharing that paper, and he said that it would be a matter for the Treasury and the Prime Minister. He made clear at that meeting that the Department of Finance and Personnel (DFP) and others were involved in that process. I hope that we will get some indication when that becomes clear, but there is no indication that that has happened yet, and I have not heard anything to that effect.

2317. Do you have any indication as to what is unavoidable, and what would be desirable or aspirational in the figure of £571 million from the 2007 revised period and particularly the £464 million beyond that period? Obviously, some capital work may well spin out over a number of years. There are aspirations to build and, for some of those projects, it may be some time before that will be granted.

2318. Mr Hewitt: In a previous paper, we tried to use a classification based on the rather strict definition of inescapability, which was legally or contractually bound. Taking that as a starting point, anything to do with the hearing-loss claims would be inescapable; whatever the figure may turn out to be.

2319. Anything to do with the Legal Services Commission’s legal aid figure will be inescapable once the judge has issued the certificate for legal aid. It may be manageable in the longer term, and there are indications of developments in the longer term, but for the moment, that is not in the control of the Legal Services Commission. It simply has to take what comes.

2320. Other inescapable expenses could result from low-pay claims, which would affect the PSNI and any other bodies that recruited through the Civil Service recruitment service. There may also be knock-on effects on their budgets from those claims. The low-pay claim would take the form of a lump sum to pay back what people should have been paid in the past, but it will also raise their forward pay. That would be an inescapable commitment in the future.

2321. You are quite right about the capital; that is always somewhat moveable, and facilities can be maintained over time at a cost, rather than be replaced. Facilities such as the forensic science lab could consistently be pushed forward, as could any newbuilds such as prisons, but there would be a growing cost to maintain the system.

2322. The Chairperson: You mentioned legal aid. One indication was that the system would probably need to be changed to help to reduce that. Amazingly, they were saying that it would take until 2015 to sort that out. I would have thought that if a Department was set up, that could be done a lot sooner than 2015. Do you have any views on that?

2323. Mr Hewitt: I know that anything coming from m’ learned friends tends to go slowly at times. One of the problems is that there would probably be cases in the pipeline, which might run on for some years.

2324. I am certainly no expert on the structural changes that would be necessary for the legal aid system, but that would involve negotiations with the judiciary. The judiciary has the independence to say how many counsels a particular defendant is entitled to depending on the nature of the case. I would not be at all surprised if 2015 is the target date.

2325. Mr Attwood: Thank you, I apologise that I missed the earlier part of your presentation. I have some questions that are probably simple to answer. The only organisation that you have commented on about equal-pay costs is the Policing Board. Does that mean that the equal-pay costs are covered from within other Civil Service budget lines for all the other organisations and do not have to be found as a separate funding stream?

2326. Mr Hewitt: The information that we have is that people who were recruited through the Northern Ireland Civil Service recruitment procedures fall within the low-pay claim bracket. Some people who work for the Policing Board and the PSNI as civilians were recruited in that fashion. The NIO has said that its recruitment procedures are outside that system, and therefore the low-pay claim does not apply to it. However, trade unions will press the point that the low-pay issue should be extended to anyone employed in Northern Ireland, be that by the NIO or anyone else.

2327. However, that is the basis on which the low-pay claim is currently restricted to a limited number of bodies within the competence.

2328. Mr Attwood: Will it be difficult to determine whether people will fall inside or outside the equal-pay claim award, if and when it comes? It could be that 20 other organisations that are involved with justice in the North will have equal-pay responsibilities to their staff. That is still a possibility.

2329. Mr Hewitt: It is a possibility. The current advice is that equal-pay legislation affects people who were recruited through the Civil Service’s recruitment process. If the trade unions are able to press the matter beyond those people, the number of people that will be affected will, obviously, grow. The underlying amount of money associated with Civil Service and public service equal-pay claims is becoming very large; it is approaching £500 million. Originally, it involved £100 million; however, that figure is now approximately £470 million.

2330. The Chairperson: Most of the people who are employed by the police are civil servants who simply transferred. At an earlier stage, some of them may have been specifically recruited, but it was only in the latter part of last year that staff members were given the option of either staying with the Civil Service or fully transferring to the Policing Board. Although those people work for the police, they are still civil servants and have always had the option of going back to other parts of the Civil Service. The situation was only finally sorted out this year.

2331. Mr Attwood: The point that I was making is slightly different.

2332. The Chairperson: You are probably right; there are probably people in other parts of the justice family who fall into the same category, so I imagine that an equal-pay claim will be made on their behalf.

2333. Mr Attwood: I have not seen the papers, but the NIO might be stretching the point by saying that because the people who are employed in all those other organisations went through a different recruitment process, they have somehow ended up not being entitled to equal pay. I presume that equal-pay provisions apply to everyone in the public sector. One cannot differentiate between people based on the interview procedure that they underwent. My sense is that the unions might be right when they say that equal-pay provisions apply to everyone in the public sector and one cannot differentiate or pick and choose between various categories.

2334. As a result of Alistair Darling’s emergency Budget, Northern Ireland Departments must find £123 million of cuts or savings. What is the NIO’s share of those cuts or savings? You said that the NIO has identified new efficiency savings, but what are they?

2335. Mr Hewitt: £17 million.

2336. Mr Attwood: Is that all? Did it say that it will achieve those savings within NIO HQ, or will it spread them between all the other organisations?

2337. Mr Hewitt: It has not given any indication of where the savings will be found. However, making £17 million of savings would place considerable pressure on HQ. I imagine, therefore, that it will probably try to spread the savings out.

2338. Mr Attwood: So, that £17 million is an added pressure, over and above everything else?

2339. Mr Hewitt: Yes, it has come about as a result of the Budget.

2340. Mr Attwood: Figures are being bandied about regarding savings to be found by Northern Ireland Departments, which amount to millions of pounds a year for four or five years. Do the figures that organisations have identified as post-07 CSR pressures take account of those additional and significant savings to be made by Departments, or do they refer only to post-2011 pressures that were already anticipated?

2341. Mr Hewitt: The latter; they are merely indications of things about which they know. Other factors will depend on the Budget at the time.

2342. Mr Attwood: Do you have a view, or even a broad indication, of the justice pressures that will arise in 2011 and annually thereafter as a result of wider Budget considerations in London?

2343. Mr Hewitt: That very much depends on the operation of the Barnett formula at that particular time. We are used to the Barnett formula increasing the Budget here when there are increases in comparable spending areas in the rest of the UK. However, if there cannot be reductions in the baseline spending in those comparable areas in the next CSR, we would take the consequential, which would be a negative. The £123 million calculated this time was calculated as a negative consequential through the Barnett formula.

2344. Mr Attwood: Are you saying that you have no idea what it might be but you feel that it will be very large?

2345. Mr Hewitt: It could be substantial. We will not know until we see what the reductions are across the water.

2346. Mr Attwood: Last week, someone — I cannot remember who it was — flagged up to me the fact that they felt that the cost of a new justice Department would be significant, because there is no culture or experience here of how to run such a Department.

2347. I am surprised that the Police Ombudsman has written back stating that the pressures are currently non-identified. That is based on the Police Ombudsman doing nothing further with respect to examining the past. However, there is uncertainty as to what is going to happen as a result of the Eames/Bradley report. If anything does happen — which I hope is not the case — it may not be for two or three years. However, the Police Ombudsman has an obligation to investigate certain matters from the past, and it does not have the budget to do so over the next two years, never mind thereafter. Therefore, I am a bit surprised that the Police Ombudsman has not flagged up the fact that he will require funding to fulfil his statutory responsibilities over the next two years, independent of what may or may not happen as a result of the Eames/Bradley report.

2348. The letter — which is from Al Hutchinson, the Police Ombudsman, not the chief executive of that organisation — says nothing about that. That surprises me because the legal requirement to investigate certain matters must be met one way or the other, and that could be a somewhat additional pressure, over and above the other pressures that we have identified.

2349. Mr Hewitt: I am constrained to work with the material that I have received from the different bodies. I have not included in my report any information that I have may have garnered from other sources, because it has no official provenance. Some of the responses are surprising in that they have not flagged up issues that might occur, but it is outside my remit to include any other information.

2350. The Chairperson: That is exactly the way that it should be; it is not for any of us to make speculations. If the Police Ombudsman says that he does not have additional pressures, we must accept that. Thank you very much for your presentation, Victor.

2351. Mr Hewitt: At a previous meeting, Mr Paisley Jnr asked us to perform some calculations that would demonstrate what would have happened if the NIO had been funded through the Barnett formula in the last CSR. We have completed those calculations, and I will send a short paper through to the Committee for information purposes. The results are actually quite interesting.

2352. The Chairperson: OK. Thank you for that, Victor.

2353. We have received the additional information and the figures that were required. The Committee is due to meet again on 9 June 2009, when Victor will be making a presentation, but we still have no indication of whether the First and deputy First Ministers are available to attend. However, the Finance Minister has indicated that he would be happy to attend that meeting, if his diary permits.

2354. If the First and deputy First Minister can attend the meeting on 9 June 2009, it will include that presentation; if not, it will be a normal meeting. The Committee has no meeting next week; therefore, do members agree to the Committee sending a short reminder to the First and deputy First Ministers to ascertain whether they will be available?

2355. Mr Attwood: I am sure that we will get a reply after the 4th.

2356. Mr Hamilton: Of July?

2357. The Chairperson: I am sure that we will, but I am not going to get into that debate. [Laughter.]

2358. Mr McFarland: Will we share the paper with the Finance Minister and OFMDFM before they come before the Committee, or will we keep it as a surprise?

2359. The Chairperson: Are members agreed to the Committee sharing the paper? It would probably be in our interest to do so. It would also allow them then to feed into the Heywood committee and what might be happening there. The Committee can question them on the day about whether they know where the Heywood committee stands and whether a report has been made. Would members be happy that the Committee shares that paper with them prior to the meeting? Ministers need to be briefed beforehand.

2360. Mr McFarland: It might be quite fun to see their surprise, but that is not a terribly constructive approach to getting results.

2361. Mr Attwood: I am concerned about the principle of a Committee sharing with other people confidential information that it has not shared with the Assembly, which gives us our authority.

2362. The Chairperson: We will be sharing the information with the Assembly when we make our report.

2363. Mr Attwood: It seems to me that, on principle, it is to the Assembly that the Committee answers and with which we share intelligence and information. Can the Committee Clerk inform us whether this is a new precedent of sharing confidential information from a Committee inquiry with Ministers in advance of the Committee agreeing a report, or a report going to the Assembly Floor?

2364. The Committee Clerk: I think that there is a precedent, although it is unusual.

2365. Mr McFarland: The problem is that OFMDFM has, I believe, asked the Committee to look at this matter. The Office of the First Minister and the Deputy First Minister and the Finance Minister were supposed to be having discussions with the Treasury and the Prime Minister on the issue. They will have all the information that we have, because it has come from them. Therefore, there should be absolutely nothing new, other than whatever good work Victor has done in the margins in uncovering other areas that their Departments might not have volunteered to them, or making sense of it in a way that their Departments might not have suggested.

2366. Logically, therefore, there is nothing here that they will not already have, if they have done their job. However, there might be angles that Victor has come across that they might not have spotted and that might make our discussions with them more useful, if they were to have a heads up on what the Committee will be asking them. On the other hand, they might have done none of this or, judging from our history with some of those Departments, they might not have quite got around to it yet. Therefore, that information might be very useful to them and might facilitate productive discussions.

2367. I appreciate the point made by Alex, and there is an issue here about whether we share confidential information. However, we are trying to find some common ground, whereby the Committee and those Ministers pressure the Treasury and the Prime Minister to provide a solution to the problems that we have identified. We cannot go to the Assembly until we have constructive suggestions on the matter, and we cannot have constructive suggestions until we know what is happening with the Heywood committee, the Ashdown report, OFMDFM and the Finance Minister — if that all makes sense.

2368. The Chairperson: Almost.

2369. Mr McFarland: Therefore, it would be more productive for us if we were to have a discussion with OFMDFM that is based on a common starting point, and Victor’s paper could be that starting point, if we were to share it with them.

2370. Mr Attwood: There are two issues. The first is to establish what is the right convention. I am prepared to be guided by precedent. I would like to share as much as we can as long as it is appropriate to do so, because we can then have a better conversation.

2371. The Chairperson: The First and deputy First Ministers have indicated that they have had discussions with some of the groups. The Heywood committee is ongoing. It has already been indicated that DFP is involved. Therefore, my guess is they are aware of 80% or 90% of the information in the paper; one or two matters might have been picked up on as a result of the Committee’s probing. It is in all our interests that all the financial issues are out in the open so that others can argue for the deal that is needed to bring about the devolution of policing and justice.

2372. Mr Attwood: I am not opposed to the principle of sharing material, provided that doing so is appropriate and is covered by a convention. However, there may be wider political points, as Alan McFarland hinted.

2373. The NIO and the Secretary of State tried to stop the Committee doing this work. Already, NIO types are trying to give briefings to the effect that these figures are not as credible as the Committee believes them to be. There is a lot of politics at play. The Office of the First Minister and the Deputy First Minister may have had the conversations, but it has not taken evidence in the same way that the Committee has done. It may be that the qualitative nature of the Committee’s work is different from that done by OFMDFM. I do not know whether that is the case, because the Committee has not had sight of what OFMDFM has done, and none of its representatives has come to the Committee to inform us about it.

2374. There are a lot of issues around this inquiry; the NIO does not like it and OFMDFM may have held conversations that were intense but not as extensive as the Committee’s. Therefore, I am anxious for the Committee to protect the integrity of its work, because some people will want to say that it does not present the true picture or that it has been talked up, or whatever.

2375. The Committee Clerk: The Committee is in an unusual situation, one aspect of which was flagged up by Mr McFarland. When the First Minister and the deputy First Minister gave evidence in closed session last autumn, they talked about a parallel process and stated that the Committee’s work would complement work being done elsewhere. On that basis, the Committee pressed on and challenged the Secretary of State’s assertion that the Committee should not be involved in the process.

2376. It is also fair to say that, once the transcripts were cleared, the oral evidence sessions with witnesses have been published. Therefore, that information is in the public domain and is accessible to everyone. That brings us to the position posed by the confidential paper that Victor Hewitt presented this morning. As far as I am concerned, as the Committee Clerk, and in respect of the Committee’s responsibility to the Assembly, it appears difficult for the Committee to do anything other than try to participate in the parallel process and to share that information.

2377. At some point the Committee must present all its investigations and findings in the form of a report. However, that report is to address all the category 2 issues and given that a number of those has yet to be resolved, the Committee might want to consider publishing an interim report on financial matters. If the report on all the category 2 issues is to be the means by which the Assembly will indicate that devolution should proceed, it seems to me that the report will be published too late to inform the negotiations on the required financial settlement.

2378. That is an unprecedented dilemma. Ordinarily, a Committee report is brought to the Chamber for debate, is adopted and is then referred for ministerial action; however, because we are dealing with reserved matters, that course cannot be followed. In some respects, the approach has been different because new ground is being broken as part of a parallel process in which the Committee decided to engage.

2379. Mr McFarland: We are missing key pieces of the jigsaw. We do not yet know the outcome of the Eames/Bradley report, we are missing the conclusion of the Heywood committee, and one could also argue that we are missing the Ashdown report. Until those pieces of the jigsaw are fitted in, we will not know what our report will say. The difficulty is that those areas are outwith our control. We will not know what the final policing and justice Bill will include until those pieces of the jigsaw are available and are slotted into the appropriate places. It could be that if a chunk of this is taken back and kept with the NIO, the drop will be fairly dramatic. On the other hand, if it is being left with us, it could be even worse than we currently think that it is. Until we find out the missing information, it is difficult for us to do anything.

2380. The Chairperson: Due to the time frame for the Eames/Bradley report,it will not be included in our report; it falls outside our time frame.

2381. Mr McFarland: The Secretary of State said that the Government are due to take a view on the Eames/Bradley report by the end of June. That will not give us an indication of when things will happen, but it will inform us of whether something will happen in this CSR period, the next one or the one after that. If the Government are categorical about not revisiting any of the historical issues, we are, at least, a stage further on. We will know not to expect any change in respect of the costs for the Historical Enquiries Team and the Police Ombudsman, for instance.

2382. Mr O’Dowd: We are getting into the realms of that famous speech about things that we know that we do not know and things that we do not know that we do not know. In all forward-looking political or financial programmes, things will arise for which one cannot plan. At this stage of the process, we have tasked ourselves with completing the report and presenting it to the Assembly.

2383. The original question was about whether we could divulge certain information to the Departments. If the Committee Clerk says that there is a precedent for doing so, we have no difficulty with doing that. We will go ahead: we will share that information with the Departments; we will invite the Ministers before us next week; and we will proceed from that point.

2384. The Chairperson: It is not next week; it is the following week — 9 June. They have got the invitation, and we are awaiting confirmation.

2385. As the Committee Clerk has indicated, most of the information in the report came out in the evidence sessions, which were held in public session. Furthermore, most of the additional information that has come in — such as that relating to the capital projects — is also in the public domain already. Are members happy that the information is shared, to enable us to have some sort of constructive discussion with the three Ministers, after Mr Hewitt makes his presentation?

2386. The Committee Clerk: In case there is any doubt, I do not believe that there is a precedent for sharing this type of information. We are in an unusual situation. I do not know whether the Assembly would be offended if a Committee were to share information with the First Minister, deputy First Minister and the Finance Minister before presenting that information to the Assembly. However, I return to what I said before — the Committee engaged in a parallel process, and implicit in that was the knowledge that the time would come when the Committee would share information with the First Minister, deputy First Minister and the Finance Minister.

2387. If it would help the Committee, I will check whether there is a precedent, but that will require me to report back to the Committee, so we will need a special meeting before the 9 June meeting and before the release of any information that is included in Mr Hewitt’s report. It is up to the Committee to decide what to do, because I do not think that there is a precedent in the Assembly for the circumstances in which the Committee finds itself. If you want me to try to get advice, I will do so.

2388. Mr Attwood: The Committee Clerk anticipated my question: where was the precedent? There appears not to have been a precedent. Therefore, I do not know how the Assembly will react.

2389. Secondly, there has been a parallel process, but those are merely words; there has not been any sense of sharing between OFMDFM and the Committee. At best, it has been minimal; at worst, it has been non-existent. So, yes, we have a parallel process, and the processes may eventually converge at some point. For that process to be credible, we must build in some requirements. Despite all our correspondence with OFMDFM, it has never told us anything about its negotiations with NIO in London other than that it “hoped" that those negotiations would be concluded by the end of the last financial year. Since then, we have heard nothing from OFMDFM about what has happened over the last two months in its part of the parallel process.

2390. Will OFMDFM share with us information on where it is? If there is a parallel process to the point of sharing, and this Committee is to decide to share information with other Departments prior to sharing it with the Assembly, is OFMDFM similarly obliged to share with us what it knows? If it is, will it do that before we meet on 9 June? If OFMDFM is going to have sight of what we know, we should have sight of what it knows, so that we can have a proper conversation. That would be a fair outcome. The parallel process is meant to stack up; there is meant to be sharing to facilitate a better understanding of where things are. That is the basis on which we should share information with OFMDFM.

2391. Having said all that, I do not know that we should share at all. If there were an inquiry by another Committee, would that Committee share some of its draft report with a Minister if that Minister was to be called to give evidence to that inquiry? I think not. The Committee might indicate the terms of reference or provide a list of questions that the Minister might be asked, but it would not share with a Minister a working draft of an inquiry report into an issue that especially concerned that Minister. We are in an area where there is no precedent; therefore, we need to be mindful and be sure that we set a correct precedent. If this sets a precedent, and this is a parallel process, we will share only if they share. We want to share: are they prepared to do the same?

2392. Mr O’Dowd: I do not know where to start. There is a difference between having negotiations and preparing a report. The Office of the First Minister and the Deputy First Minister (OFMDFM) is involved in negotiations with the Treasury and others to secure a financial package for the establishment of a Department of policing and justice. We are involved in preparing a report that will reflect the financial pressures created by any new justice system. There is a difference between sharing those two types of information.

2393. I am easy, one way or the other. If the Committee is minded not to share the evidence, so be it. It will not make a whole lot of difference to the debate. One way around it, as Raymond has said, is to share the Hansard report of the evidence sessions with OFMDFM. Those hearings were held in public; if OFMDFM wants to, it can find out what was said by referring to ‘The Irish Times’, the ‘Newsletter’, or ‘The Irish News’. It is not highly classified information. If that is a way around Alex’s concerns, we can do that. However, a bartering session with OFMDFM would not be a useful way of spending the Committee’s time. If nothing else, taking the attitude of “you show us, and we will show you" is immature politics. There are a number of ways to move the debate on. The important thing is to get OFMDFM and the Finance Minister before the Committee to discuss the issue of finance.

2394. Mr McFarland: I am a great defender of Committees and their rights, but I think that Alex is not quite on the ball on this issue. The idea that Committee members from Sinn Féin, the DUP, or any party will not share the Committee’s findings with their Ministers, albeit illegally, before those findings are presented on the Floor of the House, is not realistic.

2395. We are in a unique position: the devolution of policing and justice is the last brick in the wall of the Belfast Agreement. This is a unique Committee; it is not a departmental Committee.

2396. However, Alex does have a point: if we are going to share — and I believe that we should — it is not unreasonable to ask them to give us a heads-up as to where they are in their discussion so that we can have a better conversation with them when they appear here.

2397. I am aware that there is no precedent for doing so and that they have been obstructive all along. However, if we are going to share, and in order to have a proper conversation, it would be sensible to find out what discussions the Finance Minister and OFMDFM have had.

2398. My understanding from another meeting that party leaders had is that there has been little agreement with the Treasury. It will almost certainly come down to a negotiation with the Prime Minister. Therefore, we will probably not get a great deal of information from them. However, they must have discussed that issue, and it would be useful if they could share those details with us at the same time that we are sharing with them.

2399. The Chairperson: I am happy either way. What is the Committee’s view?

2400. Mr Attwood: I do not want to be unhelpful. However, I will be difficult.

2401. The Chairperson: We have had a fair discussion on the matter.

2402. Mr Attwood: If we share the Hansard report and the Committee Clerk speaks to the relevant official in OFMDFM about Victor’s paper, I hope that they extend the same courtesy to us by way of sharing information so that we have some prior notice about where they believe the situation to be. I am relaxed about whether the information is shared through the Committee Clerk or, indeed, through the Chairperson and Deputy Chairperson.

2403. The Chairperson: There is no meeting next week anyway. We have still not received an indication from the First Minister and the deputy First Minister. We have received one only from the Finance Minister. We agreed earlier that we would check their availability for 9 June 2009.

2404. Are members happy enough that the Deputy Chairperson and I share some of that information and indicate to them that it would be helpful if they could advise us as to the position of their discussions with the Treasury? Perhaps the Finance Minister could give us some indication as to what is happening with Heywood. It was made clear to us at an earlier stage that DFP was involved in that discussion.

2405. Mr McFarland: That would be useful, Chairperson.

2406. The Chairperson: Given Alan’s indication of the party leaders’ meeting and that discussions with the Treasury were difficult, are members happy enough that we receive some verbal indication as to the position of those discussions?

Members indicated assent.

2407. The Chairperson: Thank you very much, Victor. I am sorry that you had to sit through all that discussion.

We will now review the outstanding issues on the devolution of policing and justice. I declare that I am a member of the Northern Ireland Policing Board. If no other members have any interests to declare, we will move on to the category two list of issues. Rather than my reading out the issues, members should indicate whether their parties have any updates on the previous proceedings.

2408. Mr Hamilton: I have nothing further to add.

2409. Mr McCartney: I have nothing further to add.

2410. The Chairperson: Mr Attwood, perhaps when your private meeting with Mrs Hanna is finished, you could let us know your party’s position.

2411. Mr Attwood: What was the issue?

2412. The Chairperson: Does your party have any updates on the category two list of issues regarding the devolution of policing and justice? While you were having your private meeting, the representatives of the other parties said that they had nothing further to add.

2413. Mr Attwood: We were discussing whether we wanted to share any update with you, but we have decided not to.

2414. The Chairperson: Thank you. As there are no updates, are members content to park those matters?

Members indicated assent.

9 June 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Alex Maskey
Mr Alan McFarland
Mr John O’Dowd

2415. The Chairperson (Mr Spratt): Moving to the devolution of policing and justice matters, I declare an interest as a member of the Northern Ireland Policing Board. Do any other members wish to declare any interests?

2416. Mr A Maskey: I am also a member of the Policing Board.

2417. The Chairperson: A number of issues in the category 2 list remain to be clarified. Therefore, before I go through them one by one, I will ask the parties to indicate whether there are any changes from their previous positions.

2418. Mr Hamilton: No.

2419. Mr A Maskey: No change.

2420. Mr McFarland: No.

2421. Mr Attwood: No.

2422. The Chairperson: Given that there is no change, I do not propose to go through the issues for the sake of having a discussion. We discussed issue K, but members will be happy to learn that that was not recorded for the Hansard report.

2423. However, I stress that we need to return to the category 2 issues in the not too distant future, once the Committee has visited other legislatures.

23 June 2009

Members present for all or part of the proceedings:

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

2424. The Chairperson (Mr Spratt): On Tuesday 16 June, the Committee travelled to London and had a meeting with the Lord Chancellor and Secretary of State for Justice, Jack Straw. The meeting lasted much longer than had been anticipated, and it was a very good and frank meeting. A fair amount of information came out of it, which will, eventually, make its way back to the report.

2425. We discussed rubbing points in relation to the listing of cases. The Lord Chancellor explained that cases are to go to court and are then taken off the list at short notice, and he talked about the problems that this creates in the system. It is a problem that exists in all the jurisdictions. We discussed that problem and the working relationships that are required between the Attorney General, the Home Secretary and the Justice Committee. We had a frank discussion about that, and the Lord Chancellor offered various pieces of advice.

2426. The Lord Chancellor talked about his workload when something goes wrong in the system. He made it clear that if that happens, it is important that he takes responsibility for it. He indicated that that is the way that anyone in charge of justice should approach the job. He was very frank about that. There was also a discussion about high-cost cases, which have implications for the financing of the justice system. The cost of the legal aid system in Northern Ireland, which is higher than in any other part of the United Kingdom, was also discussed. The Lord Chancellor listened to the points that we made about that. He also made it clear that the Ministry of Justice was ready to facilitate the transfer of justice-related functions at any time.

2427. We appreciate the work that was put into arranging the meeting, and I thank the Committee Clerk and his staff who facilitated the meetings in both London and Edinburgh. Committee members appreciate the work that went into that; those meetings were not easy to arrange, and quite a few changes had to be made along the way. That covers the points that were raised with the Lord Chancellor. Do members have any observations to make?

2428. Mr Paisley Jnr: I also thank the officials and the Committee Clerk in particular. I was only there for the London meeting, but it was beneficial because of Jack Straw’s complete candour and the fact that he was so open with Committee members. I am sure that the notes that the Committee Clerk and his staff took on the relationship and balance that has to be struck between the Executive and the judiciary, and how to get that balance right, will give us an incredible insight into how the job is done and how the Department is run. The issue of fees was set out in an accurate, yet colourful, way. The meeting that we had with the Justice Committee later in the day was also beneficial, because it gave us a useful insight into how the Committee can stay on course with its own issues instead of getting waylaid and sidetracked by irrelevant issues. Perhaps that is a lesson for our Committees. It was a worthwhile effort.

2429. Mr Kennedy: I thought that the meeting with Jack Straw was insightful and useful. He talked about getting involved in individual cases, and about how it was necessary to have separation. Jack Straw is clearly in control of his brief; therefore, it was important to take the opportunity to meet him. I thank the Committee Clerk and his staff for arranging those meetings.

2430. The Chairperson: As Ian said, we had a meeting with the Justice Committee, which was chaired by Sir Alan Beith. He and the Committee members highlighted the sensitivities that exist between Parliament, the Attorney General and the prosecution service with regard to independence and the Attorney General’s accountability for the prosecution service. There was a frank discussion around that area, and they were very willing to offer advice. They had quite a number of papers, which the secretariat now has. I assume that some of those will be part and parcel of the report. The Committee also answered questions, which we found to be very helpful.

2431. We travelled to Edinburgh on Wednesday morning —

2432. Mr Paisley Jnr: Sorry to interrupt, Chair, but I think that an interesting point had been lost, in that the Westminster Committee has responsibility for justice issues in Northern Ireland, yet it has not explored many of the interesting things that have arisen recently. For example, even since we have been sitting, the Ombudsman’s report into deaths in prison custody has taken place, yet such investigation would normally be right up street of that Committee. The Committee members recognise that there has perhaps been a bit of a gap in the work that they could have been doing.

2433. The Chairperson: The Committees in London and Edinburgh were at pains to point out the volume of legislation that has to go through a justice Committee. That debars them from doing essential work that they might want to do with the police service and within the justice system. Some of the other work that they feel they should be doing, scrutinising various issues within the justice system and the police service, actually falls by the way, although the Home Secretary in London deals with all of the policing issues. It was a good meeting.

2434. We then met the Justice Committee in Edinburgh, and discussed issues around legislation and new laws that were going through. There was so much work in the beginning that two Committees were formed in Scotland to deal with that volume, because it was impossible to be proactive given the amount of work that they needed to get through.

2435. The Committee made a very helpful slide presentation that explained the whole justice system. We picked up on that at a very early stage, and the Committee Clerk has been tasked with doing the same thing here. Sometimes, there are so many strands within the justice system that it is difficult to understand where you are with various bits and pieces in the Northern Ireland system. That presentation is being prepared and will be shared with members as soon as it is sorted out.

2436. We had two sessions with the Justice Committee, one in the afternoon and one in the evening. Those sessions were very worthwhile, and a lot of questions and issues were discussed that were of mutual benefit. The following morning, we had a discussion with the Solicitor General for Scotland, Frank Mulholland. He took time out of his busy schedule, and gave us considerably more time that had been allocated. He is in the Lord Advocate’s Office, which is separate from the Parliament, although they sit on the Executive.

2437. The Committee Clerk: They are Ministers, but they do not take their place in the Cabinet under the Government arrangements this time around.

2438. The Chairperson: They answer questions from the Government Front Bench in relation to some justice issues and can make ministerial statements to the Scottish Parliament. That is done infrequently; it is not a regular exercise that is conducted, particularly making statements. Those would be on serious issues of major importance to Scotland. They can also open debates on legislation in the Scottish Parliament. Therefore, the Solicitor General may well open the debate on a piece of legislation, dealing with the professional elements from a totally legal stance. They also provide the Government with confidential legal advice that is not published.

2439. We had an interesting, frank and free meeting with the Minister for Justice, Kenny MacAskill. He told us that it was important to get the structures right. They take a pragmatic approach with the police and the authorities. The Scottish Parliament are more in favour of giving advice and warnings to prisoners, as opposed to making arrests, etc. They acknowledge that Scotland is a small place and that it is inevitable that, as with Northern Ireland, people will know one other. However, Mr MacAskill was at pains to point out that, from a Minister’s, the Lord Advocate’s and an MSP’s point of view, it was important that they respected one other’s roles and that there should not be any lobbying or questioning on specific issues. They meet socially on occasions, but that is part and parcel of everyday life, given the nature of Scotland being a much smaller place. However, they were able to work that professionally without it impinging on anyone’s professionalism.

2440. Mr MacAskill was at pains to point out that it is absolutely necessary to have, and make use of, efficient resources as regards budgets and everything else within the systems, and one needs to do that continually, along with the systems in the police service. There are eight chief constables in Scotland, and the Minister for Justice meets regularly with the chief constables of the various forces.

2441. Mr MacAskill was adamant that the prison service should be staffed by public-sector employees and that there should be no privatisation of the staffing of prisons within the Scottish system. He was open to receiving questions and it was a worthwhile meeting.

2442. Mr Kennedy: The meeting with the Scottish Justice Committee was particularly useful, as it has a very good approach to issues. We could learn much from them, and regular contact would be useful.

2443. The Chairperson: Do members have any questions? We proceed to the devolution of policing and justice. I declare an interest as a member of the Northern Ireland Policing Board.

2444. Mr Paisley Jnr: I am a member of the Policing Board.

2445. The Chairperson: We move to the category 2 list of issues. Before I go through the issues, has there been movement on any of them?

2446. Mr Hamilton: No.

2447. Mr O’Dowd: No.

2448. Mr Paisley Jnr: Considering that we are meeting the First Minister and deputy First Minister on 29 June, it might be useful to inform them, by letter or by head, that there are a couple of areas in which we have not made significant progress, and ask them to comment on those issues.

2449. The Chairperson: I will come to that. Does anyone else want to declare an interest?

2450. Mr A Maskey: I am a member of the Policing Board.

2451. The Chairperson: We have received the DUP and Sinn Féin positions. What about the Ulster Unionists and the SDLP?

2452. Mr McFarland: There have not been any changes since our previous discussions.

2453. Mr Attwood: We have no further comments.

2454. The Chairperson: I am keen that we have a discussion prior to the next meeting, as has been suggested. It is important that we go through the list. I intend to go through the entire list during the public session of the next meeting; I do not intend to do it today. I want colleagues to provide updates on the outstanding issues.

2455. Item 6 on the agenda relates to the financial implications of the devolution of policing and justice matters. In keeping with arrangements for a similar meeting last autumn, for which the Committee agreed that Hansard would not be required, the meeting will be held in closed session. Are members content?

Members indicated assent.

2456. The Chairperson: I confirm that the meeting will begin at 11.00 am and that the specialist adviser will be available for a brief discussion with the Committee before the First Minister and deputy First Minister arrive. We understand that the Finance Minister will join us at 11.30 am. We do not yet know how long the Ministers will be able to stay with us, but we will remain in closed session for as long as they are able to be with us. We will try to confirm the times to facilitate anyone who wishes to be in the public gallery for the public session.

2457. Ministerial officials will attend with the respective Ministers, as is normal practice. Are members content?

Members indicated assent.

2458. Mr Attwood: I return to the issue of whether the meeting should be held in public or private session. I recall the discussion on the previous occasion.

2459. It seems to me that part of the meeting should be in public. I appreciate that we should be in private session when the Finance Minister attends for the financial part of the meeting. It is very welcome that he is attending, because it will give us a much better idea about the comparison between the Committee’s financial assessments and those of the Executive. However, the First Minister and the deputy First Minister appeared before the Committee in November 2008, and there was a fanfare about their proposals, but it is now seven months later. In November, they outlined a 37-step process in their proposals, and the wider community, as well as the Committee, will be interested in hearing some of that. Therefore, certain sections of what we discuss can be differentiated from other elements, and those elements can be heard in public.

2460. The Chairperson: My understanding is that the Committee agreed with the Ministers that the meeting will be in closed session. The main issues for discussion are financial issues. However, if there are other issues and there were agreement, the public could be facilitated. However, the financial issues are the main issues for discussion with the First Minister, the deputy First Minister and the Finance Minister.

2461. Mr Attwood: — [Interruption.]

2462. The Chairperson: Let me finish. I will be happy to have a discussion on the matter at the end, rather than doing it piecemeal. It might be easier to do it that way, because we might cover some of the points that you want to raise.

2463. The First Minister and the deputy First Minister were invited to supply a paper on their involvement in discussions on the devolution of policing and justice by 25 June 2009, in time for inclusion in the pack, which will be issued to members on 29 June 2009. That is still the position, and we expect to get a paper. The Secretary of State was also invited to comment on the emerging findings of the special adviser by 25 June 2009. Again, that paper is due for inclusion in the pack for the meeting on 29 June 2009. I anticipate that after the special adviser’s presentation, there will be scope for discussions and questions with the First Minister and the deputy First Minister in relation to the paper. The paper had gone to members, and I must say that I am most disappointed that a confidential paper has been leaked to the press at some point. Yesterday evening, a journalist held up a copy of the paper, which is a working paper: I did not see it but I understand it to be the case. In fact, information in the paper has now been clarified, and figures in it have now changed. Therefore, it is most unhelpful that such papers are leaked to the press. There will be an updated paper, which changes figures, and that will be available to members prior to next week’s meeting.

2464. I am sure that we can ask the First Minister and the deputy First Minister about the other issues. However, first, we have to find out about timings and about their availability. They indicated, at the meeting that the Deputy Chairperson and I had with them, that they will be prepared to answer questions on some of the other issues. Therefore, we will raise the issues that you highlighted, Mr Attwood, when we are clarifying the timings with them. Is that OK?

2465. Mr Attwood: That is useful clarification. However, going back to the core point, if the financial issues are to be discussed in private, but the Ministers have agreed that they will answer questions on other matters, will those other matters be held in public session?

2466. The Chairperson: We need to clarify that with them. As I said, we will have a discussion with the Office of the First Minister and deputy First Minister. I am sure that we can have that discussion because we will be looking for their paper and we will then clarify all those issues, including the timing. We clearly want to have a discussion primarily on financial issues to see what parallel processes have been going on between the Northern Ireland Office, the First Minister and deputy First Minister and the Heywood committee and to see what various strands of discussions there have been.

2467. I suspect that we could talk about that all day, but we do not know exactly what the timing will be. Certainly, some of the issues raised in the correspondence in members’ information packs have already been raised with the First Minister and deputy First Minister and with the Secretary of State.

2468. Mr Attwood: I agree with all that. However, the meeting cannot be about financial issues only. The Committee has, to some degree, been treading water for a number of months on category 2 issues. I sense — I hope not inaccurately — a bit of frustration on the Chairperson’s part about that, particularly as he indicated that we need to return to those issues and discuss them further, presumably next week. However, given that we have been treading water on a number of important matters and part of the reason for that — which Alan articulates better than me — has been that other people might have greater influence than the Committee in determining those matters, it seems appropriate to ask OFMDFM questions about the particular matters that have been lying unresolved on the table for months.

2469. The Committee Clerk: It might be helpful if members refer to the letter that the Committee sent to the First Minister and deputy First Minister on 12 June. That letter identifies that the financial implications will be part of the agenda and it refers to the request for a short paper and general discussion on, to all intents and purposes, the category 2 list of issues. It also specifically requests their views on the role and functions of the Attorney General and how they envisage that person reporting and relating to the Assembly.

2470. The content of the letter was based on the decision taken by the Committee to hold that meeting in closed session. The letter clearly indicates that the session will be closed in its entirety. Therefore, if the Committee wants part of the meeting to be held in open session, the First Minister and deputy First Minister would need to be notified of that. That would overturn an earlier decision to have the meeting in closed session. Furthermore, the Chairperson has indicated his intention to have more focused discussion on the category 2 list of issues in open session after the meeting with the First Minister and deputy First Minister.

2471. The Chairperson: That is the point that I was making earlier; the decision had been made that the meeting would be held in closed session. That is the information that the Deputy Chairperson and I conveyed at our meeting with the First Minister and deputy First Minister, as that was our understanding of the Committee’s position. I would not be comfortable with a decision that the Committee has made being overturned.

2472. Mr McFarland: The Committee did agree on the meeting being held in closed session. It is important that we have a proper discussion on financial issues, and we can do that only in closed session. The category 2 issues will be resolved when the two parties involved in making the decision sit down and make the decision. The Committee will then be told about it. That is what happened last November on the initial agreement and what has happened on everything since. Either the two parties have got round to doing that, in which case they will undoubtedly tell us, or they have not, which I suspect is the case. Until that discussion happens, whether in public or in private, and there is agreement between the DUP and Sinn Féin on how this matter will progress, we will not make any progress in camera or in open session.

2473. The Chairperson: I assume that the Committee is happy with the decision that has already been made and that we should proceed on the basis of the letter that has been issued. Is the majority of the Committee happy that we continue on that route, let the meeting take place and see what comes out of it?

2474. Mr Attwood: I am content with that, unless OFMDFM consents to some of the meeting being held in public.

2475. The Chairperson: It seems that we are going back on a letter that has already been sent. Is the Committee content to let the meeting take place in the context that had been agreed to?

Members indicated assent.

29 June 2009

Members present for all or part of the proceedings:

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

2476. The Chairperson (Mr Spratt): The first item on the agenda under matters arising is the Committee’s visit to Dublin last week. Raymond McCartney was going to present the report of that visit, but he has had to go to the Chamber. I will ask the Committee Clerk to present it. If any members who were there have any points to make, they can chip in.

2477. The Committee Clerk: Thank you, Chairperson. There were four meetings, and some of the points that were covered were covered in more than one meeting. In chronological order, the Committee delegation, on which all four parties were represented, met with the deputy to the Attorney General first of all.

2478. The headlines of that meeting were as follows. The Attorney General is appointed by the Taoiseach. He attends Cabinet meetings, but he is not a member of the Government. He provides support and represents the Government in court cases and provides legal advice and legislative drafting expertise to Departments. Most of the advice given by the Attorney General’s office deals with constitutional matters, especially attacks on laws that conflict with the Constitution or the European Convention on Human Rights. The Attorney General expressly does not deal with criminal prosecutions; those are a matter for the director of public prosecutions. In connection with that, the director of public prosecutions is independent by statute and is not answerable to the Attorney General or to any Minister in Dáil Éireann.

2479. Legislation does, however, provide for statutory consultation between the Attorney General and the Director of Public Prosecutions (DPP). For reporting purposes, the Taoiseach answers for the Attorney General in Dáil Éireann. However, there is no relationship with the Justice, Equality and Law Reform Committee. The director general, who is the most senior civil servant in the Attorney General’s office, is responsible for publishing an annual report on matters relating to administration and finance, and would routinely expect to appear before the Committee of Public Accounts in relation to that office’s spending.

2480. The second meeting was with the Minister of Foreign Affairs and was held at his express request. The ground covered in that session took the form of a situation report on the work of the Assembly and Executive Review Committee on the devolution of policing and justice matters. There was some discussion about parading, the dissident threat and areas of possible cross-border co-operation. The meeting then branched out into discussion about the Irish economy, which was not necessarily the remit of the Assembly and Executive Review Committee.

2481. The Committee then met the Committee on Justice, Equality, Defence and Women’s Rights. The important message from that meeting was the re-emphasis on the independence of the justice system and that most of the Committee’s work was dedicated to the scrutiny of legislation.

2482. The delegation met with the Justice Minister, Dermot Ahern, and the Garda Commissioner, Fachtna Murphy. That was a joint meeting, and the Minister made it very clear that he was responsible for policy and legislation. He acknowledged, and the Commissioner concurred, that the Commissioner was responsible for operational policing, including national security matters; that the Commissioner appears before the Committee of Public Accounts on the spending of his office and his organisation; and that the Minister and the Commissioner both have occasion to appear before the Committee on Justice, Equality, Defence and Women’s Rights However, it was pointed out that national security matters are not scrutinised by that Committee, but that there is a National Security Committee, the composition of which does not include political representatives.

2483. The Justice Minister was keen to stress the independence of the DPP, and that was a recurring theme throughout all meetings. The Taoiseach’s office provides the line of funding for the DPP’s office. Finally, the Justice Minister identified the alignment of legislation between the two jurisdictions on the island as a significant matter and one that he imagined would come up, particularly if there was to be devolution of policing and justice powers.

2484. The Chairperson: Does anyone have anything to add to the report?

2485. Mr McCausland: What is meant by the “alignment of legislation"?

2486. The Committee Clerk: The Justice Minister did not elaborate on that. I think that he was pointing to the fact that there may be a need — in his view — for some alignment. That returns to a point raised, on which Mr Attwood may wish to comment, on the issue of the memorandum of understanding and the protocols relating to sex offenders and so on; matching them up to ensure continuity. Mr Ahern mentioned it in passing; I do not know whether Mr Attwood wants to elaborate on it.

2487. The Chairperson: Some issues have already been identified; particularly that of sex offenders. That is a very good example of where there needs to be co-operation on how sex offenders should be monitored, not only North/South, but in Europe and elsewhere. I thank the Committee Clerk for that report.

2488. We move to discussion on the devolution of policing and justice. I declare an interest as a member of the Northern Ireland Policing Board.

2489. Mr McCausland: I declare an interest as a member of Belfast District Policing Partnership.

2490. Mr A Maskey: I am a member of the Policing Board.

2491. The Chairperson: Before we go through the entire list of category 2 issues, has there been movement on any particular issue? I ask parties to indicate whether they want to raise any issue before we proceed?

2492. Mr Hamilton: My party does not have anything new or different to add.

2493. Mr A Maskey: My party does not wish to raise any new issue.

2494. Mr Attwood: We have nothing further.

2495. The Chairperson: OK. Well, that deals with that issue.

2496. We are now moving into the summer recess, which runs from 4 July to 6 September 2009. The Business Committee is due to meet on 8 September to schedule business for the first plenary sitting after the recess, which will be on Monday 14 September. Unless there is movement on outstanding issues in category 2, I do not anticipate that we will meet before that. Earlier, I had a short discussion with the Deputy Chairperson on that matter. It is not normal that we would meet during the summer period. It is difficult to achieve a quorum because people are off on holiday, etc, at various times. Can we agree, however, that if there is urgent business, the Deputy Chairperson and I will liaise with the Committee Clerk’s office and will attempt to schedule a meeting at short notice at a time that suits members? Is that agreed?

2497. Mr Attwood: Now that we are in public session, I am not sure how much I can say. The First Minister and the deputy First Minister indicated where they are in their process, and that there might be developments on one matter that would enable them to move to another.

2498. The Chairperson: Any further meeting would be held on that basis. Just be aware that that part of the meeting was confidential. Be careful what you say about the discussion that we had with the First Minister and the deputy First Minister. It is on that basis that the Deputy Chairperson and I — obviously, with the assistance of the Committee Clerk’s office — will contact members if there are developments during the summer recess. That is one issue on which I would wish to bring the Committee together at the earliest available opportunity.

2499. Mr Attwood: That is fine. My point is that there is a range of issues that the Committee has not resolved. Those are issues that could contribute to the successful outcome of any process. However, the Assembly cannot decide on them. Therefore, in the absence of decisions being made by either the Committee or the Assembly, it seems that even OFMDFM’s best intentions might come up short. Action cannot be taken because the Assembly has not agreed on what those matters might be.

2500. The Chairperson: I assume that their intention would be to bring those matters before the Assembly. I assume that the Committee would have discussions and an input into that.

2501. Mr McFarland: As we said last week, if the First Minister and the deputy First Minister agree on an issue, their parties have the ability to push it through the Assembly. Short of rebellion by the two big parties involved, if they agree, the Assembly will agree because that is the way that things are at present. Agreement is not needed from parties other than the two big parties. They indicated that they might have consultation with the rest of us. Hopefully, that will take place. However, my guess is that nothing will progress until those two parties have made a decision.

2502. The Chairperson: Let us get back to the subject of discussion. If such matters are brought to the Deputy Chairperson’s attention and mine, we will call a meeting. I am seeking agreement on that. Is that agreed?

Members indicated assent.

15 September 2009

Members present for all or part of the proceedings:

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

2503. The Chairperson (Mr Spratt): In incoming correspondence to the Committee, there is an enclosure from Adrian Donaldson, the Chief Executive of the Northern Ireland Policing Board, regarding a requirement to find £17 million of efficiency savings in the policing budget.

2504. Members are reminded that policing remains a reserved matter, and as such, they must be careful about any remarks that they make. However, I will allow some latitude on comments because of the obvious connection to the Committee’s work on the financial implications of the devolution of policing, and the implications of the letter.

2505. Mr Paisley Jnr: I am concerned about the letter from Peter May of the NIO. The Committee is trying to get an accurate handle on the costs that will be involved in the devolution of policing, and that letter represents a provocative interference from the NIO, and an attempt to impact on the budget for policing. That should be noted for the record. That interference jaundices some of the work that the Committee is undertaking, and it is very unhelpful.

2506. Whatever the issues are for the Police Service of Northern Ireland — and those of us who sit on the Policing Board have obviously already held discussions on that point — the issue for the Committee is to get an overview on what is happening with the policing budget. The Peter May letter demonstrates an attempt from the NIO to perhaps tip the pitch a little, and to try to tell the Committee that the policing budget is really not so bad. There are serious and significant financial needs for policing, and the NIO should not be allowed to try to alter the situation by the back door, as it has tried to do with that letter.

2507. The Chairperson: Thank you, Ian. At this point, Ian and myself should declare that we are members of the Policing Board for the purposes of the Hansard report of this meeting. Are there any other comments from members?

2508. Mr Attwood: I am also a member of the Policing Board.

2509. The Chairperson: Yes. Alex Attwood is also a member of the Policing Board.

2510. Mr Paisley Jnr: Are you back on the board? It was not the same without you Alex — it was better.

2511. The Chairperson: Are there any other comments in relation to the correspondence?

2512. Mr Attwood: Will the Committee be copying the NIO’s letter to Victor Hewitt? Clearly, that letter has some marginal relevance, and perhaps more, to the work that he is undertaking.

2513. This is the Committee’s first meeting following the summer recess, and because of the content of the correspondence and the other things that have happened since our last meeting, the First Minister and the deputy First Minister have an obligation to inform the Committee about where things now reside with respect to their discussions with the Exchequer. It has been two months since we last met, and the receipt of a stocktaking letter from them would be helpful.

2514. The Chairperson: The Committee will discuss the financial matters as it proceeds through its agenda.

2515. Mr Attwood: OK. I will defer any further comment until then.

2516. The Chairperson: Are there any other comments on that letter from the NIO? Is the Committee happy to copy that letter to Victor Hewitt and make him aware of its contents?

Members indicated assent.

2517. The Chairperson: Thank you. We now move to item 7 on our agenda: the Department of Justice Bill. I refer members to tab 5 of their packs, which includes a copy of that Bill and related explanatory notes; a covering letter from the First Minister and the deputy First Minister to the Chairperson of the OFMDFM Committee; a copy of the Northern Ireland Act 2009 and related explanatory notes; and a briefing note from the Committee Clerk.

2518. Members should note the timetabling of the Bill and the fact that its Second Stage is due to take place next Tuesday, 22 September 2009, possibly during the time when the Committee is due to meet. I assume that some Members will want to speak during that debate, including members of the OFMDFM Committee and this Committee.

2519. The problem that the Committee has with the Bill is that it is unaware whether any ministerial statements will be made next week. I require some direction from the Committee with respect to its meeting next week, and whether we should find an alternative time or date to meet, or indeed cancel the meeting. I am quite happy to do either, but I have asked the Clerk to examine members’ availability.

2520. Monday is a possibility. On Tuesday, Ian Paisley and the Agriculture Committee have a meeting at 12.30 pm and Raymond McCartney has a meeting with the Procedures Committee at 2.00 pm. On Wednesday, a number of members are tied up in meetings, with John O’Dowd attending the Education Committee; Ian Paisley attending the Finance Committee; Danny Kennedy, Alex Attwood and I attending the OFMDFM Committee at 2.00 pm, and Raymond McCartney attending the Regional Development Committee at 10.30 am. Some of us, myself included, have other outside plans. Thursday is also something of a mishmash, with members involved in various Committees most of the day; and we are not very happy about meeting on Friday, which is traditionally Members’ constituency day.

2521. Mr McFarland: I suggest that we try to stick to Tuesday. We will know by Thursday whether there is extra business and, if there is, we might try to hold the meeting at 2.00 pm, with Raymond getting some sort of exemption from the Procedures Committee. If not, we could meet in the morning.

2522. Mr Paisley Jnr: I partially agree with Alan. I think that we should stick to Tuesday. However, why not meet at 10.00 am and get that extra hour in the morning?

2523. The Chairperson: How does that sound to members?

Members indicated assent.

2524. The Chairperson: We will play it by ear, and if we need to adjourn for the debate, we will. Members who speak in the debate on the Second Stage of the Bill should declare that they are members of this Committee. Danny, you are the Chairperson of the OFMDFM Committee. Have you any comments on the Bill?

2525. Mr Kennedy: The Bill was reviewed by members of the OFMDFM Committee last Wednesday. There was an initial discussion and an initial vote was taken on a motion that requested the Executive and the Department not proceed with the Bill, and that vote was lost. I expect members of the OFMDFM Committee to contribute to the debate. There will probably be a short statement from me at the outset as Chairman of the Committee, giving the factual position of the Committee’s view, but it is likely to be short, given that there may not be unanimity around the table. Nevertheless, the debate will provide an opportunity for the various political parties to set out their stalls.

2526. The Chairperson: If there are no other comments, are members happy to note and to deal with that matter from our own perspectives?

Members indicated assent.

2527. The Chairperson: The next item on the agenda is Chairperson’s business. Can we defer that discussion until we have discussed the devolution of policing and justice matters?

Members indicated assent.

2528. The Chairperson: Alex, do you wish to declare your interest as a member of the Northern Ireland Policing Board?

2529. Mr Attwood: Yes.

2530. The Chairperson: We move to agenda item 9: the devolution of policing and justice matters. In respect of the financial implications of devolving policing and justice, the specialist adviser has just submitted a further revised version of his paper on additional financial pressures. We asked Victor Hewitt to hold discussions with DFP officials on our behalf.

2531. I seek members’ permission to call the specialist adviser, who was not available for today’s meeting, and is not available next week either, to the meeting on 29 September, which is the first available date. Are members agreed that Victor should come before the Committee to make a presentation of that paper in closed session, as is normal procedure?

Members indicated assent.

2532. The Chairperson: I suggest that it would be useful if we wrote to the Secretary of State to ask him to update the Committee on the Heywood report; to ask him to indicate how much of the NIO’s existing budget would transfer, should the transfer of policing and justice be requested; and what portion of that would remain to deal with the part of the Northern Ireland Office that will still be intact. Do members agree that a letter along those lines be sent to the Secretary of State?

Members indicated assent.

2533. The Chairperson: Alex, we will pick your point up in the letter as well. Will you reiterate that?

2534. Mr Attwood: I would like to have some formal correspondence from the First Minister and deputy First Minister about the point at which they now assess the financial discussions to be.

2535. The Chairperson: Do members want to raise any other points in that letter? Some issues may come up, for instance the Ashdown report, which I think should be included in a letter to the Secretary of State about the category 2 list of issues. We do not know what the financial implications are of that report, or whether it may have an effect on local government in the future. We need to clarify issues around that.

2536. There is also the memorandum of understanding, which the Secretary of State said that he would share with us whenever it became available. We will discuss that, but those two issues may need to be included in that letter, and I ask members to bear that in mind. Is there agreement that a letter should go to OFMDFM in relation to Alex’s proposal?

2537. Mr Paisley Jnr: What was Alex’s proposal?

2538. The Chairperson: It was to seek an update on what point the financial discussions have reached.

Members indicated assent.

2539. Mr McFarland: I think that 7 October is the closure date for the Secretary of State’s consultation on the Eames/Bradley process, which will affect whether that role will be left with the NIO or will be transferred to us. That would have fairly enormous financial implications. Hopefully, we will get some clarity on that issue some time in October.

2540. The Chairperson: Do members want that issue to be included in the letter?

2541. Mr Hamilton: We need to be aware of it.

2542. The Chairperson: I imagine that there will be questions to ask when the result of the consultation is known. I appreciate that that may well have an impact on the work that we are doing.

2543. Mr McFarland: Our view was that that role should not be transferred with policing and justice, because it will entail enormous cost, and will trouble us greatly for the next 50 years if it were to transfer here. We were talking about leaving it with the NIO to finance and sort out. The understanding was that the NIO was going to keep the enquiries, but that the rest of the role would transfer.

2544. In my view, that is a really dodgy issue that needs to be sorted out quite clearly before we accept policing and justice. It is on the list of matters on which we need some clarity before we accept.

2545. The Chairperson: The Secretary of State indicated in his evidence that he recognised that some historical issues would remain in the NIO. If my memory serves me, he included in that group issues around the loss-of-hearing claim cases, for instance.

2546. Mr McFarland: I think that he is proposing to transfer the Historical Enquiries Team and Eames/Bradley group issues, both of which are fairly toxic.

2547. The Chairperson: I will now move through tab 7 of members’ packs and allow the parties to present their up-to-date positions on the category 2 list of issues. For the purpose of the record, it is necessary to read out the issue. Original issue C reads:

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

2548. Mr Hamilton: The DUP position remains the same. We are riding blind on this, and we still have not received communication from the Secretary of State in respect of the detail of these memoranda and protocols. We will await receipt of those.

2549. Mr McFarland: There is no change from the Ulster Unionist Party. We are awaiting the memoranda of understanding and the protocols, and we will have a better idea of what the Secretary of State is proposing once we receive those.

2550. Mr Attwood: Those memoranda of understanding have been long prepared and long signed off on, and, probably, have had test runs in some sort of fictional world. We should be getting those to let us see what the letter reveals. When we get the memoranda of understanding, what input will we have into adjusting and refining them?

2551. The Chairperson: It does not matter. We are going round the table. Perhaps I am mixing up everyone.

2552. Mr A Maskey: You have had too long a holiday.

2553. The Chairperson: I will get back into the sequence when we go to the next issue, if members are not too cross about being called out of sequence on this one.

2554. Mr A Maskey: Sinn Féin has nothing further to add. In fact, I will go further and say that we have nothing further to add on any of the outstanding matters. I am happy to deal with it on that uniform basis for today, rather than going through every outstanding item.

2555. Mr Hamilton: Our position remains unchanged. I will be merely repeating the previously stated position.

2556. The Chairperson: Are we happy to include of the issues? I was going through them to try to clarify the issues in relation to the letter that will be going to the Secretary of State. Do members accept that the memoranda should be raised?

2557. Mr Hamilton: They should be raised.

2558. The Chairperson: Are members content that financial issues and issues around the Ashdown report be raised with the Secretary of State in the letter? I am happy so long as the Committee is clear that all of those issues are raised.

2559. Mr Paisley Jnr: There is one slight caveat to that, and that is the new item G in the context of recommendation 26 on page 7. The Committee’s original report asked: “To which Department should the PPS be attached?"

2560. We could wait for the Secretary of State, but would it also be useful to write to the current Public Prosecution Service to ask what it believes is a good form of governance for it? That might give us a steer as to where it rests. It would help to inform us.

2561. Mr McFarland: I thought that we had already asked everyone.

2562. Mr Paisley Jnr: We did not get a view on that point.

2563. Mr McFarland: From whom?

2564. Mr Paisley Jnr: We did not get a view from the PPS.

2565. The Chairperson: Ian is suggesting that we write to the Director of the PPS about new issue G on page 7 of tab 7 to get a steer and to find out what ideas he might have about where the Department should lie. That would be for information purposes.

2566. Mr Paisley Jnr: Yes.

2567. The Chairperson: Given that we are writing to the Secretary of State and to the deputy First Minister and First Minister, we could also seek a response from the PPS. Does anyone have any strong objections to that? Are members happy enough that we do that?

Members indicated assent.

2568. Mr Attwood: We could usefully probe further on a number of matters in the various categories. In appendix 1, for example, we previously referred to the fact that the role of the Attorney General should be full time, and we are not revisiting that.

2569. Last week, however, Danny’s Committee received information that the person identified as the candidate for Attorney General had been asked to produce a scoping paper on his office, and that information was to be contained in a financial report. I was slightly surprised because I presumed that, after we had given our view about the Attorney General, some information would come back to us about what form that office would take. However, we have not received that information. It would be useful, therefore, for us to be copied in on that scoping paper when it is completed. I have no doubt that it will deal not only with financial matters but administrative matters connected to his office and, perhaps, the relationships between his office, the Minister, the Assembly and the justice Committee. That would not surprise me.

2570. The Chairperson: Will you clarify what you mean? I am not with you. I will ask the Committee Clerk about the scoping paper. I am not aware of any such paper. The person named as the designated Attorney General has not appeared before this Committee.

2571. Mr Attwood: I note that point, but he has been asked to produce a paper.

2572. The Chairperson: Will you clarify who asked him to do so?

2573. Mr Attwood: I presume that OFMDFM made the request because it stated that it wanted that person to be the Attorney General.

2574. Mr Paisley Jnr: Are you suggesting that he is writing his own terms of reference?

2575. Mr Attwood: I am not suggesting anything, but I would like to know what he is writing. As I understand it, Danny, he has been asked to produce a scoping paper on the cost of his office.

2576. The Chairperson: I am not aware that the individual has been asked to produce such a paper.

2577. Mr Attwood: He has been asked to do so.

2578. The Chairperson: Is any other member aware of such a request?

2579. Mr Kennedy: I can confirm that something has been requested, but I am not sure who made that request and whether it was, as Alex said, OFMDFM. I am happy to explore the matter and keep the Chairperson of this Committee informed.

2580. The Chairperson: Is anyone else aware of the paper?

2581. Mr Paisley Jnr: No. It would be peculiar for an individual to write his or her own terms of reference.

2582. Mr Attwood: I was not stressing that point. The report came before the Committee for the Office of the First Minister and deputy First Minister under a financial heading, and it stated that the individual was preparing a paper on the financial requirements of his future office. However, in working out those financial requirements, he would have to work out the structure, requirements and demands that might be placed on his time and that of his staff. Presumably, that would include the relationship with the justice Minister, the justice Committee, the Assembly, and so forth.

2583. It could, therefore, cross from being a purely financial paper into a paper on more material matters on which he should have a view, but for which he could not have responsibility. I am worried that defining those matters will be done in the absence of an input from this Committee and the Assembly. That is not appropriate. This Committee and the Assembly should have such an input. That is why we should be asking OFMDFM precisely what it has asked of the Attorney General designate, and for a copy of his report. Should we now be making our views known on any of those matters if any are relevant?

2584. The Chairperson: Is the Member suggesting, therefore, that the Committee asks OFMDFM in the letter whether a paper has been commissioned and whether there have been discussions? Are members happy enough that we go down that route, given that we are asking other questions about financial implications and suchlike?

Members indicated assent.

2585. Mr Attwood: This matter was, I believe, referred to previously on page 8. The PPS had clearly decided to have a discussion on matters relevant to it. That was scheduled for a meeting, which I was unable to attend because I had to attend funerals. I prepared a briefing note for Carmel, but the Committee decided that it was better to have the conversation when there was a fuller representation. However, we never had that conversation. We now need to have that conversation as a matter of urgency.

2586. The Chairperson: We never had the conversation because members said that their positions on the category 2 list were unchanged.

2587. Mr Attwood: We agreed, though, that we would have a dedicated conversation. I suggested an hour to scope out various parties’ views on the issues regarding the PPS. The need to have that conversation, as agreed, is now more acute.

2588. Mr McFarland: As I recall, we were waiting for the visits to conclude. We then tried to have a discussion, but Alex was not able to attend. Given that it was his key subject, so to speak, we did not manage it before the summer break. Maybe it is now sensible to have that discussion.

2589. Mrs Hanna: It is my recollection that we agreed to defer it.

2590. The Chairperson: OK, it has been deferred. The Committee Clerk suggests that there was a conversation on that matter. I am quite happy to have that discussion.

2591. Mr Hamilton: Can we schedule it in?

2592. The Chairperson: For the next meeting?

2593. Mr Hamilton: Yes, and copy any papers into members’ packs. We have an infamous folder, do we not?

2594. Mr A Maskey: We decided to wait until after we completed our meetings and visits to other legislatures before having that discussion. Obviously, in deference that day to Alex Attwood not being able to attend, it was deferred. It was also deferred on the basis that parties, my own included, were not prepared for a discussion in that we had not fully developed our own position that we wanted to expound on. We could have that discussion now, but Sinn Féin would not be adding anything to it.

2595. The Chairperson made the point a moment ago that part of the reason why it was deferred was because parties were not prepared to elaborate on their earlier positions. I am still in that position on Sinn Féin’s behalf. We will have that discussion, but I would argue that we have it as part of the ongoing discussion about the remaining category 2 issues. I would wish to have a fulsome debate on all these issues and to have it completed by now, but that is not the case. Sinn Féin is easy about when we schedule such a discussion, but that will be dependent on parties having altered their views on the matter.

2596. Mr McFarland: There is no point in having a discussion if we are not at a stage when parties can discuss the matter. When the two large parties agree, this, like most other issues before the Committee, will go through. Have we any idea when they might get round to having a talk and agreeing some of this so that we can put clarity on it?

2597. The Chairperson: I am wearing my chairman’s hat. Are there any comments on that?

2598. Mr Paisley Jnr: No comment.

2599. Mr Hamilton: No.

2600. The Chairperson: No answer?

2601. Mr McFarland: There is no point in having a discussion with Alex if the two largest parties, which will decide this thing in the end, have nothing to add. Alex can chat away; we can all chat away, but nothing is decided until the DUP and Sinn Féin get together and decide what they are doing.

2602. Mr Attwood: That discussion should be about the independence and the accountability of the PPS; not about structural issues such as where the PPS should be located. We should have a much broader conversation about whether issues around the PPS could be identified now on which cross-party agreement could be found that might inform a further phase of reforms. The discussion should go beyond the immediate hard politics about some of the issues to do with the PPS, over which the DUP and Sinn Féin have a particular influence. We should have that broader conversation.

2603. The Chairperson: A few minutes ago, we agreed that that could be scheduled into a future programme. It would then be up to members to decide whether they want to have that conversation; I cannot force anyone to discuss something that they do not have a party position on. I will be guided by a majority of the Committee.

2604. Mr McFarland: It is fair to say that all of the parties felt the need to discuss this topic further. That is why we decided to have the discussion.

2605. The Chairperson: There is no argument about having the discussion. I am quite happy that that has been clarified.

2606. Mr McFarland: Implicit in that was a suggestion that there might be room for some discussion. If more than one party has said that it does not yet have a view on it, it is difficult to have a discussion that might lead to agreement.

2607. The Chairperson: We shall put it on a future agenda, and it will be up to each party to clarify its position.

2608. Mr McFarland: May we get sight of Alex Attwood’s paper? Is it for general distribution beforehand as a discussion document?

2609. Mr Attwood: Yes, I will share something with the Committee.

2610. The Chairperson: If you let the Committee Clerk have it, that paper will be distributed in future members’ packs.

2611. I understand that the position on all of the other category 2 issues is unchanged and that members wish to discuss them en bloc. Alex, do you have another issue?

2612. Mr Attwood: I do not wish to raise it at this meeting. I can understand why people say that other conversations are taking place among people who, potentially, have more authority than the Committee. I am getting to the point of making formal proposals on some of the outstanding issues to try to define the issues and get some outcomes. It is not credible for us to defer a whole range of matters; we have to get to the point of either agreeing some of those matters or not. I am getting to the point at which we will make hard proposals to try to concentrate minds, rather than continuing to defer to other people.

2613. The Chairperson: I shall take a decision based on the view of the majority of the Committee. As Chairperson of the Committee, I have tried to steer it in that direction. I thought that we had progressed some of the issues, and a number of letters are being sent to seek clarification. In previous correspondence with the Committee, the Secretary of State said that he would share the memoranda and the protocols with us. He did not see a problem in sharing those, and I do not know whether OFMDFM has seen those yet.

2614. As Chairperson, I contacted Lord Ashdown to ask for material in connection with his review, so there is a whole history and a paper trail on that. It may well have financial implications that the Committee would be interested in looking at.

2615. Letters will be sent to OFMDFM and the Secretary of State’s office today or tomorrow. I know that it sometimes takes longer for replies to come back, but I cannot change that. Are members happy that there are no other issues on category 2?

Members indicated assent.

22 September 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mr Alex Maskey
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr

2616. The Chairperson (Mr Spratt): We move to the discussion of the devolution of policing and justice matters. I remind members that this part of our meeting is being reported by Hansard. The usual procedure is to move around the table to seek the position of the various parties. However, bearing in mind the discussions that we have held during the past number of weeks, perhaps members could indicate whether there has been any progress on any of the category 2 issues.

2617. Mr Hamilton: I am happy for us to go through the issues, but I would not have anything different to add to the position as previously stated.

2618. Mr A Maskey: I have nothing further to add, Mr Chairman.

2619. Mr McFarland: Nothing further, Chairman. I understand that there seems to have been some progress on the financial situation, according to newspaper reports. Presumably, we will hear more about that in due course.

2620. The Chairperson: I have not been invited to tomorrow’s trip to America. Any other members who have packed their cases should unpack them.

2621. Mr Hamilton: There is a disconsolate look on your face, Chairman.

2622. Mr Attwood: I have nothing further to add, Chairman.

2623. The Chairperson: OK. We shall leave those issues until our next meeting.

29 September 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Nigel Dodds
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Alan McFarland
Mr Alex Maskey
Mr John O’Dowd

2624. The Chairperson (Mr Spratt): I ask Committee members to declare any interests. I am a member of the Policing Board.

2625. Mr A Maskey: I am a member of the Policing Board.

2626. The Chairperson: There are no other declarations of interest.

2627. I do not intend to go through the category 2 list of issues one by one unless it is indicated around the table that that is what members want me to do. Therefore, I am happy for a party to lead the discussion. Has there been any change in the parties’ positions?

2628. Mr A Maskey: There has been no change, Chairman.

2629. Mr Hamilton: No.

2630. The Chairperson: That completes today’s business on the devolution of policing and justice matters.

20 October 2009

Members present for all or part of the proceedings:

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

2631. The Chairperson (Mr Spratt): At last week’s meeting, members agreed to write to the First Minister and deputy First Minister. Can we note that letter?

Members indicated assent.

2632. The Chairperson: We have dealt with our reply to the letter from the Policing Board in closed session. There is a letter from the Bar Council on behalf of its chairman, John O’Hara, and its vice chairman requesting a meeting in relation to proposals for the future of criminal and civil legal aid in Northern Ireland. The letter states:

“As a matter of courtesy I am also writing to the other political parties asking for similar meetings."

2633. Members may recall that we have already received and discussed a letter from the Prisoner Ombudsman. As most of those issues are outside the remit of the Committee, I am not sure that it is entirely appropriate for us to deal with the Bar Council. I suggest that we note the letter and reply to the Bar Council to that effect, to keep the continuity of what we have been doing.

2634. Mr McFarland: Chairman, the tone of the letter and the way that it has been addressed suggest that it was written to you in your capacity as a party member. Although it addresses you as Chairman of the Committee, it looks as if the Bar Council is writing to each party.

2635. The Chairperson: I have to circulate any correspondence that is sent to me as Chairperson. The letter did come to the Committee Clerk’s office, rather than coming directly to me. Can we note that letter and reply to it? Individual parties can have whatever discussions they feel are necessary. Are members content that the Committee send an appropriate letter?

Members indicated assent.

2636. The Chairperson: The Committee received a letter from the Northern Ireland Office. We have been waiting for that reply, and it covers a number of issues, including the Heywood process.

2637. Mr Attwood: For completeness, the Committee should copy that letter to the Office of the First Minister and deputy First Minister (OFMDFM). I am not sure what the contents of the letter of 17 September were, but we still have not received any information about the memorandum and protocols in respect of the sharing of information. It is inconceivable that those are not complete, yet we have not had sight of any documentation in that regard, despite repeated requests and fairly consistent pressure from the Committee.

2638. The Chairperson: We got a reply to some of that before the summer.

2639. Mr Attwood: Yes, but nothing has been shared with us.

2640. The Chairperson: My recollection is that we got a reply. I do not have the letter with me.

2641. The Committee Clerk: Towards the end of June, the Committee looked at a specific reply on the treatment of sex offenders. That memorandum was fairly explicit. The last paragraph of this letter from the Secretary of State refers to:

“finalising the necessary amendments with the Irish Government."

2642. Mr Attwood: That is not the point that I raised. The point that I raised was about sharing the protocols and memoranda of understanding around the security services. There have been discussions with OFMDFM on that, and there was some understanding that we would have sight of those prior to devolution. That is not referred to in the letter.

2643. The Committee Clerk: That is accurate. The summary of the category 2 list of issues states that a reply from the Secretary of State is awaited on issue C about the relationship between the Serious Organised Crime Agency (SOCA) and the security services, the Minister, the Department and the Assembly.

2644. The Chairperson: Again, we can highlight that again. We know what the issues are.

2645. Mr Attwood: It is more than highlighting; there has been a chain of correspondence between the Committee and the Secretary of State’s office, and there have been various vague undertakings or obligations to share with us. If we are in the run down to the devolution of justice, which I trust that we are, then we need to see that information. We should be saying that as time is running on, we expect a sharing of information in the very near future. Those documents were completed a long time ago, whatever some people might say. They were ready for consideration some time ago and should now be in a position to be shared.

2646. Mr Paisley Jnr: It would be helpful if Alex spelt out in detail the documents that he thinks are not available to him. We have vague notions of documents and papers that Alex says are complete; let us spell them out very clearly. This may not be the place; perhaps he needs to write a list and say that these are the precise documents that he thinks he is entitled to see. Some of the material that he is talking about may not be complete or may be available through other channels, such as the Policing Board. I am a bit lost in the vagueness of some of the stuff that Alex is asking for.

2647. Mr Attwood: I am surprised that anyone has any issue about vagueness. We have written letters that specifically refer —

2648. Mr Paisley Jnr: The fact that the replies are vague might indicate that we are being vague in what we are asking for. Maybe we need to spell it out a bit more clearly, Alex.

2649. Mr Attwood: No, I am referring to the correspondence to and from the Secretary of State. The Secretary of State acknowledges that there are memoranda and protocols that are being drafted about sharing information with the devolved institutions. That is what he says, not what I say. Whatever those memoranda and protocols are, he said they would be shared with the Committee prior to devolution. He says that they have issued memoranda and protocols: let us see any and all of them.

2650. The Chairperson: In fairness, you are suggesting that these protocols are complete.

2651. Mr Attwood: I am sure that they are.

2652. The Chairperson: Let us read what the Secretary of State says. We can only go by that:

“Discussions have been ongoing with the Irish Government on what amendments are required to the Intergovernmental Agreement on Cooperation on Criminal Justice".

2653. That says to me that there are ongoing discussions on the memoranda, and that they are probably not complete at this moment in time. That is how I view it.

2654. Mr Attwood: I am not referring to that paragraph; I am referring to the correspondence about national security memoranda and protocols. The letter dated 17 September is silent on that point. I think that we should remind them about that issue.

2655. The Chairperson: I am quite happy to send another letter highlighting that. In fairness to the Secretary of State, he indicated that as soon as those documents were available, they would be shared. I am happy to send yet another letter.

2656. Two letters have been tabled for members to note: one, from Lord Morrow, is in relation to procedures, and the other is from the Prisoner Ombudsman.

2657. Mr Paisley Jnr: I propose that we note the letters.

2658. The Chairperson: OK. Is the Committee happy to note those letters?

Members indicated assent.

2659. The Chairperson: The Committee will now move on to consider the category 2 list of issues in relation to policing and justice. Ian, do you wish to declare your interest?

2660. Mr Paisley Jnr: I am a member of the Northern Ireland Policing Board.

2661. The Chairperson: Both Alex Attwood and I already declared our interest in closed session.

2662. Before the Committee moves into the full detail of the category 2 issues, it is customary for me to check if there has been any movement on those matters.

2663. Mr Hamilton: I am going to send you a message telepathically, Chairperson.

2664. The Chairperson: OK. I think that I have got that message.

2665. Mr Hamilton: No.

2666. Mr McFarland: No.

2667. Mr McCartney: No.

2668. Mr Attwood: I will make some proposals with respect to the outstanding matters.

2669. The Chairperson: Someone has their mobile phone switched on, and it is affecting the recording of the meeting. Can all Committee members, and those in the Public Gallery, please ensure that their phones are switched off?

2670. Mr Attwood: New issue K deals with the status of the new justice Minister and his or her Executive authority. The issues have been usefully outlined by the Committee staff, who have collapsed all of the issues onto two pages.

2671. There are two issues: the status of the Minister, and whether that Minister is required to bring significant and controversial matters to the Executive. The Committee should at least be able to deal with the first issue:

“the Minister’s position in, and relationship with, the Executive Committee".

2672. The Committee should be able to deal with that because sections 20 and 21 of the Northern Ireland Act 1998 govern the authority and status of Ministers and describe how Ministers are appointed and states that those Ministers will be members of an Executive Committee, et cetera. That authority and status governs any and all Executive Ministers.

2673. There has been no proposal to amend the 1998 Act in that respect, and any change in relation to the status of any Minister, including a future justice Minister, would require Westminster legislation to be enacted. The political realities suggest that that is not likely to arise. Therefore, in order to create certainty on the future justice Minister’s status, and given that those provisions are governed by law, which would need to be changed before the status could be changed, I propose that the Committee agree that the new justice Minister’s status shall be as under the provisions of the Northern Ireland Act 1998. That would bring the matter to a conclusion, with any other option requiring Westminster legislation.

2674. The Chairperson: OK. That is a proposal. Are there any other comments from members?

2675. Mr Paisley: The Committee should note it as a proposal and consider it.

2676. Mr Attwood: I formally propose it.

2677. The Chairperson: I have accepted your proposal. You only need to propose it; it does not need to be seconded.

2678. Mr O’Dowd: I understand the frustration at the slow progress in resolving a lot of the issues. Coming here week after week and reporting no progress is frustrating to us all. However, we have to be mindful that, in other places, discussions are going on to bring the matter to a conclusion, to resolve it, and to ensure that we move forward towards the position that we all want to reach: the devolution of policing and justice.

2679. I listened carefully to what Alex said, and I note his comments about the 1998 Act. It is in the legislation, and there is no proposal, as yet, to change that legislation. For the sake of a few weeks, we would be safer to report, as usual, that there has been no progress, and to allow others a fair wind to bring the discussions to a conclusion.

2680. The Chairperson: Mr Attwood, will you give us the wording of your proposal again?

2681. Mr Attwood: That the Committee agrees that the status of the Minister should be as under the relevant sections of the Northern Ireland Act 1998.

2682. Mr McFarland: From the start, our position has been that the status of the justice Minister should be that of a normal Minister. However, in the end, the two largest parties will decide in secret the status of that Minister, and, eventually, tell us all.

2683. The Chairperson: Does everybody understand what they are voting on?

2684. Mr Hamilton: Is there any need to have a vote?

2685. Mr Paisley Jnr: The proposal is not something around which there is hostility; it is worth considering and factoring in. We will certainly consider the proposal, and we would not want to rule it out at this stage. The point has been made.

2686. Mr Hamilton: We are not going to endorse the proposal at this stage, but that does not mean that it should be ruled out. I would rather not have to say no and have that be misinterpreted.

2687. The Chairperson: You understand my position as Chairperson. Are you happy with that suggestion, Mr Attwood?

2688. Mr Attwood: No, Chairperson. The Committee minutes confirm that, on seven occasions since 26 May, there has been nothing further to report on this and other matters. Although I hear what Ian Paisley Jnr says, there has already been more than enough time to consider and factor in the matter. Therefore, I wish my proposal to stand.

2689. The Chairperson: I put the proposal to the Committee.

The Committee divided:
Ayes 3; Noes 3; Abstentions 2.


Mr Attwood, Mr Kennedy, Mr McFarland.


Mr Hamilton, Mr Paisley Jnr, Mr Spratt.


Mr McCartney, Mr O’Dowd.

Proposal accordingly negatived.

2690. Mr Attwood: The second proposal is the second part of new issue K:

“would the Minister be required to bring significant, or controversial, matters to the Executive Committee?"

2691. Although I do not like some of the changes that have been made further to the St Andrews Agreement, new mechanisms were created in that agreement, and put into law, whereby all Ministers had less independence and freedom that theretofore had been the case. Therefore, built into how the Executive now conduct their business, are all sorts of mechanisms around what a Minister does or does not have to bring before the Executive Committee. I am sure that that will be as valid, if not more so, for the proposed justice Minister.

2692. Those mechanisms include the provision that any matter, on the wish of three members of the Executive Committee, can be brought before the Committee. Three is not a very high threshold, given that there will be 13 Ministers around the table. I do not agree with that provision; however, that is the law. Given the powers that are already in law through the St Andrews Agreement, talking further about whether anything else needs to be done to require a Minister of justice to bring significant or controversial matters to the Executive seems, to me, to be a pretty pointless exercise.

2693. In any case, given the nature of the office — for example, how nominations will arise, and how people will be subject to a cross-community vote — it seems that there will be all sorts of inevitable political constraints upon the justice Minister. That is the real political world that he or she will face. Consequently, I propose that the Committee not identify any further requirement for a future justice Minister to bring significant and controversial matters to the Executive Committee beyond that which is already established in law.

2694. Mr O’Dowd: Again, I do not disagree with Alex. My thoughts on the matter are bound by the fact that we are in a delicate place at the moment. Our objective is to achieve the devolution of policing and justice. Although I recognise the frustration of people around the table, people need a wee bit of space. While the Committee clearly has a role within the Assembly structures and wants to be in a position to publish a report, we have to be sensible. I want to put on record again that, had Alex’s party got its way in the Assembly a number of weeks ago, the devolution of policing and justice would have been scrapped. If the enabling powers that were before the Assembly a number of weeks ago had been voted down, the process would be all over. It would be a done deal; it would be finished. I am asking for a wee bit of common sense, political leadership and patience. Perhaps patience is the wrong word, because people’s patience has been stretched. However, we need more time to resolve the issues.

2695. Mr Paisley Jnr: I propose that we note the proposal for further consideration at a later date.

2696. The Chairperson: OK, there are two proposals, one of which is to note the proposal as an amendment. I can put the question on either proposal first. Given John O’Dowd’s comments, do you have anything else to say, Alex?

2697. Mr Attwood: There is a lot of shared frustration around the table. For the record, as John knows, the SDLP opposed a piece of legislation that interferes with the democratic inclusion mechanisms of the Good Friday Agreement and creates an exclusion mechanism for nationalism. That is the only thing that the SDLP opposed, unlike Sinn Féin. The Good Friday Agreement said that the devolution of policing and justice would happen in the context of the implementation of policing and justice change. Between 2002 and 2007, the republican movement did anything but interfere with that outcome through some of its activities, whereas the SDLP, through the Policing Board and its drive to make justice changes in other ways, complied with the wishes of the people of Ireland and their endorsement of the Good Friday Agreement. The proposal on the table stands and has to be voted on first.

2698. The Chairperson: I am happy to put your proposal first. What is your proposal again, Alex?

2699. Mr Attwood: I propose that the Assembly and Executive Review Committee agrees that there should be no further or additional requirements on the justice Minister to bring significant or controversial matters to the Executive Committee.

2700. Mr Paisley Jnr: Why has my amendment not been taken first?

2701. The Chairperson: I was advised that I could do it either way, and I made the call to take the proposal first. However, I am easy.

2702. Mr Paisley Jnr: I urge you and the Clerk to consider whether it would be more streamlined to take the amendment first. If the amendment goes through, the actual thrust of the motion can travel without being ruled out.

2703. Mr McFarland: It is a question of whether it is a contrary motion or an amendment. It looks like a contrary motion, in which case a vote on the first proposal will achieve the same answer anyway. I presume that that is why the advice was given.

2704. The Committee Clerk: Equally, there is nothing to prevent the Committee, having taken a vote on Mr Attwood’s proposal, taking a further vote on Mr Paisley’s proposal.

2705. The Chairperson: That is the advice that I received, and that is what I am running with. I will take the amendment first.

2706. Mr McFarland: Is Alex saying, in his roundabout way, that the current procedure for the Executive, which is that Ministers bring significant and controversial matters to the Executive, should remain? Is he saying that the system that is followed by Ministers should remain?

2707. Mr Attwood: I am saying that the obligations upon the justice Minister should be no more and no less than upon any other Minister in the Executive.

2708. Mr McFarland: It should be the current system.

2709. Mr Attwood: I do not like the current system, but I acknowledge that that is the law. The essence of my proposal is that there should be no further burden on the justice Minister to do anything more or anything less than any of his colleagues.

2710. The Chairperson: I will put the proposal to the Floor. Following that, I will put the question on the amendment.

2711. Who is in favour of the proposal?

The Committee divided:
Ayes 3; Noes 3; Abstentions 2.


Mr Attwood, Mr Kennedy, Mr McFarland.


Mr Hamilton, Mr Paisley Jnr, Mr Spratt.


Mr McCartney, Mr O’Dowd.

Proposal accordingly negatived.

2712. Mr Paisley Jnr: I withdraw my proposal.

2713. The Chairperson: Mr Attwood, do you have any other issues?

2714. Mr Attwood: Other matters will be proposed, further to amendments to the Department of Justice Bill. One other issue has arisen from the paper in respect of which Department the Public Prosecution Service (PPS) will be attached to. I will delay that proposal until we discuss the paper.

2715. The Chairperson: Once we move from the category 2 list of issues, we will be on the PPS paper. Have you more issues on the category 2 list?

2716. Mr Attwood: I have no other issues, apart from the one that I will raise on the paper in respect of where the PPS is located.

2717. The Chairperson: We move to the consideration of the SDLP paper on the Public Prosecution Service. Members will remember that, last week, Mr Attwood at some length presented that paper. The Committee decided that parties would look at the paper on their own.

2718. Mr Attwood: The paper is as it was, and the Clerk has tried to filter its contents. That is useful. I had a conversation with the Clerk in relation to the matter, as I said I would following last week’s meeting. As a starting point, I am prepared to accept the paper from the Clerk. We should do all that we can on this critical matter on all the issues that are outlined in the paper. The list of issues is not exhaustive, but, as a starting point, the Committee Clerk’s treatment of the category 3 and category 2 issues in the SDLP paper is useful.

2719. In summary, we have to decide what the funding relationship between the Assembly and the PPS will be. Which Department will have responsibility for the PPS? We must also establish what the appropriate management structure around the PPS will be. They are category 3 issues. There is some crossover in the category 2 issues. One of the issues is the future staffing of the Department of justice and how the recommendations of the Criminal Justice Inspectorate will be pursued in order to ensure full implementation of its recommendations. I think that the Committee could take some actions and decisions that could help to inform all of that.

2720. The experience of victims must always be in the forefront, because that is what this is all about; it is about getting the proper governance management and credibility around the PPS so that the experience of victims and witnesses, and all those who go through the public prosecution system, is as it should be. As our paper indicates, there is good evidence from a number of victims that the experience is not all that it should be. That fact should always be in the forefront of our minds when it comes to understanding the proper relationships between the political institutions and the PPS and how the PPS will conduct its affairs.

2721. The Chairperson: Are there any comments?

2722. Mr McFarland: As I understand it, the key part of the Committee Clerk’s paper is where it states:

“The issues detailed in Paras 26 onwards"

2723. Those are the only ones that are remotely relevant to the Committee at this time; is that correct?

2724. The Chairperson: Yes.

2725. Mr McFarland: OK. So, if we start with paragraph 26 and move forward, we have a couple of pages. Paragraph 27 of the SDLP’s paper states:

“Developing new governance arrangements within the PPS…would require new legislation and a period of some delay".

2726. Clearly, therefore, that is not something that we can do now either. It is a question of weeding out from paragraph 26 onwards those bits that we can do something about now, and those bits that are likely to need further thought down the line. Is that where we are?

2727. The Chairperson: Yes. I think that the Committee should also bear in mind the last paragraph of the Clerk’s paper, where it refers to:

“inevitable consequences for the Forward Work Programme of the Committee in terms of any decision taken and Members may wish to keep in mind paragraph 49 of the First Report on the Arrangements for the Devolution of Policing and Justice Matters".

2728. The Clerk has, very helpfully, included the paragraph relating to the second report. Of course, those are issues for the Committee to decide, but it would have an effect, given that we have to make a report to the Assembly in 2009, obviously before the end of December. We have already had a discussion about that as regards the forward work programme.

2729. The Committee is open to comments. Mr Attwood, you want to speak again.

2730. Mr Attwood: The Committee Clerk’s view, which I am not going to challenge, is that paragraph 26 and those thereafter lend themselves to the work of the Committee, and that we should deal with the various recommendations or discuss the recommendations in the SDLP’s document. That would be a good starting point and a substantial starting point, as it deals with substantial matters. In order to try to move the situation on, I would like to hear what people have to say about dealing with the issues identified from paragraph 26 onward. Are there any actions that the Committee can take that will help to move the Public Prosecution Service on?

2731. The Chairperson: Are there any comments?

2732. Mr Paisley Jnr: I would like the Committee to note the paper. There is stuff in it that is akin to an anti-Civil Service rant. Fair enough, one is entitled to that view if one has that view on the Civil Service currently operating in the Northern Ireland Office. Part of the paper outlines the SDLP’s hopes and aspirations, which it is entitled to have; and whether we, as a Committee, agree or disagree is neither here nor there. There are issues that may be of some interest to us regarding management structure, although I imagine that we would have to get to the point of resolving other issues before we can get into the depths of some of the management structures, and that might end up being a matter for the new Minister, if and when he or she is appointed, and the new Department. Therefore, the report lends itself to nothing more at this stage other than the Committee noting its last three pages.

2733. Mr McFarland: There are issues, such as the setting up of oversight boards. Such boards come with enormous bills for manpower, financial support and secretariat services. In the initial stages, the new justice Minister would, I presume, wish to take a view on where the money will come from to do all that. Those are real issues which need to be discussed. However, it is debatable whether the Committee has the knowledge at present about how a future justice Minister will think about these things. Perhaps the parties who have had discussions with potential justice Ministers know where their minds lie, but the Committee probably does not.

2734. Mr McCartney: The paper is being considered by Sinn Féin. Alex Maskey made the point last week that although a lot of issues in the paper are worthy of discussion, it is our belief, on first read, and from even the three main themes outlined, that it is not the focus of the Committee’s work. Sinn Féin feels that the Committee should be focusing on what is holding up the transfer of policing and justice powers. The other issues can be discussed at a later date, much as the Committee has done with matters such as the Court Service and other models.

2735. Mr Attwood: I am grateful for what members have said, although it does not stretch us by any means. Recommendation 27 of the Committee’s original report, which was endorsed by the Assembly, states:

“The Committee recommends that the independence of the PPS and its accountability to the Assembly should be examined before, and following, the devolution of policing and justice matters to produce recommendations which would, in turn, be considered by the Assembly."

2736. I recall, and I believe that it will be confirmed by the Hansard report, that it was my proposal to insert “before, and following" or at least “before", because at that stage I was anticipating that there was work for the Committee to do before the devolution of policing and justice. Therefore, whether that recommendation is interpreted broadly or narrowly, it is clearly the Committee’s responsibility, as well as the mandate from the Assembly, to look at issues surrounding the independence and accountability of the PPS before the devolution of policing and justice.

2737. I make a number of proposals arising from that, none of which should put anyone on the back foot. Rather, they will put the Committee on the front foot. For example, the Committee Clerk, in his paper, says that paragraph 27 of the SDLP document, entitled “Reform of the Public Prosecution Service", falls within the remit of the Committee. The Committee Clerk says:

“Toward the end of the paper there are issues which sit more easily within the remit of the Committee’s work both as conducted to date and as outlined in its remit."

He then says:

“At paragraph 27 the SDLP note that their call for changes could slow progress and to prevent this they call for a “Patten" like panel of specialists to ensure changes after devolution."

2738. In order to try to shape that up, it would be useful if the Committee invited the Criminal Justice Inspector to appear before it, because, as the SDLP report outlines, the CJI made a wide range of recommendations about the PPS and agencies that have a relationship with the PPS. The 2007 baseline review in particular, which was updated in June 2009, made some stark reading. In order for the Committee to get a sense of the scale or otherwise of the issues surrounding the PPS, we should listen to one of the best experts and one of the people best qualified to advise us.

2739. If the Committee hears what the CJI has to say — and I have read some of the reports and have met him recently — that would help us take forward a piece of work that is essential and cannot wait. John explained the frustrations surrounding the devolution of justice. Those frustrations may evaporate in the near future, and I hope that they will.

2740. We need to get our heads round this work, because it is the most critical piece of work in respect of the North’s criminal justice institutions. It would be worth hearing the views of the CJI on some of these matters, because his perspective is not speculation or a rant. It is informed by the report, and the CJI has made hard, evidence-based, recommendations. In the event of the devolution of policing and justice, the new Department and new Minister will have obligations concerning the CJI’s recommendations. I also think that those recommendations alone will not bring about the required level of change to the PPS.

2741. It would be helpful to borrow people from Patten and other panels of experts. It would be great if the PPS could do all the work itself, but that would probably require changes to its governance and management. As was indicated in the SDLP report, that will take a period of time, because new legislation would also be required. However, a lot of good work could be done in the meantime, and we should listen to people to determine what the Committee can do in the context of its mandate. If the CJI were to appear before the Committee, it would be right and proper to invite the PPS also, in order to give us a sense of the nature of the reports, and I will make that proposal in a moment.

2742. While we are waiting for the First Minister and deputy First Minister to come back to us regarding various matters, we should invite the head of Civil Service to appear before the Committee. We could ask him about his understanding about the staffing arrangements in a devolved justice Department. We have had all sorts of discussions on the matter, and the Committee Clerk’s report states that staffing arrangements are germane to the Committee’s work. Indeed, the First Minister commented on that matter on the Floor of the Assembly in his response to the debate on the Department of Justice Bill.

2743. I have said before that senior posts should be open to public competition. It should not be presumed that those who hold senior posts in the NIO will become senior people in the Department of justice. Such people should be able to apply for the posts, but it would not be a good way to do business for them to become senior staff as a matter of course. I do not know whether that is the intention, so I would like to hear from the head of the Northern Ireland Civil Service on the matter.

2744. There are other people whose views we should listen to, but I will start with those proposals for the purposes of the meeting and in order to take the work forward. Subject to what the Committee Clerk says, and consistent with his comments on this, I make two proposals. The first is that we invite the CJI’s chief inspector and the PPS to speak to the Committee about how the various evidence-based recommendations should be taken forward. The second is that we invite the head of the Civil Service to give his views on the relevant issues while we wait for the First Minister and the deputy First Minister to come forward.

2745. The Chairperson: I must clarify that the letter from the Secretary of State to the Committee, which we noted earlier, clearly sets out the transfer of assets, staff and accommodation.

2746. Mr Paisley Jnr: Valid as Alex Attwood’s position is, and he is entitled to have that position as a member of the SDLP, I do not know whether pursuing these lines of enquiry is relevant for the Committee. Some of what he said sounds like a major fishing expedition, or justifying positions, or attacking the PPS or Civil Service personnel whom he does not particularly like. That is not what the Assembly and Executive Review Committee is about; we have to focus on what we should do.

2747. All sides have mentioned their frustration in settling some of the issues, but there is a negotiating process ongoing and it is very well documented. Part of that process is being played out in public, and we can see what is going on at Downing Street; but to create a platform where the head of the Civil Service can be brought here and disabused of some of his views is not what this Committee is supposed to be about. Alex is entitled to his views, and some of them are valid for him and his party, but he had an opportunity to debate the issues in the House, and he lost that argument.

2748. We are happy with only one of the four recommendations outlined in the Committee Clerk’s paper. Alex is not going to find consensus on the rest, and he knows that. He wants to establish another Patten-like panel of specialists, but in the current climate, do we have the resources to do that? He wants to carry out a staffing search of the PPS and the Civil Service, and he wants to examine other models of operation for the PPS that are similar to the Policing Board. It is fine for Alex and his party to navel-gaze on those issues and talk to other parties behind the scenes, but this Committee should not be the cockpit for such discussions or one-party issues.

2749. I propose that we note Alex’s paper and thank him for taking the time to present it to the Committee. There are relevant issues that will come back for discussion, but he is proposing to take the Committee on a huge fishing expedition elsewhere that we do not need.

2750. Mr O’Dowd: In principle, I have no difficulty with Alex’s proposals. The difficulty is that the Committee is working to a time frame and we must produce a report before the end of the 2009 session. That must be our focus now. None of the issues that Alex has raised are an impediment to the transfer of policing and justice powers. There are issues that require further analysis, investigation and scrutiny by a justice Committee. Alex’s proposal to set up a panel of specialists is worthy of further consideration, although I note that every time the SDLP runs into difficulty now it wants to set up a panel of specialists. Specialists will be very busy in the coming months if the SDLP has its way. Nevertheless, we would not rule out that proposal.

2751. My party’s focus is on completing the transfer of policing and justice. There is a danger that Alex’s proposals will open new chapters of negotiation that could further delay the transfer of policing and justice, and could be used by those who are resisting it — [Interruption.]

2752. I am sorry, did I say 2010?

2753. Mr McCartney: You said that the report must be completed before the end of the session. It must be completed before the end of 2009.

2754. Mr O’Dowd: I apologise.

2755. It is possible that the people who wish to use those issues to resist the transfer of policing and justice powers could lengthen the negotiations. We are trying to close chapters, not open new ones. Although I support Alex’s proposals in principle, this Committee is not the place to discuss them. Let us complete our report and get policing and justice transferred so that a justice Committee can examine the issues that Alex has raised.

2756. Mr McFarland: There has been some useful analysis, but I worry that we are getting ahead of ourselves. It is worth reminding ourselves what it is that we are supposed to be doing. Issue G is the question as to which Department the PPS should be attached`. Although Alex seems to suggest that we go into details, recommendation 27 of the Committee’s report is about deciding what consideration should be given to the independence and accountability of the PPS pre-devolution? It does not mean that we should examine it pre-devolution: that is not what recommendation 27 says. It says that we are to examine what level of consideration should be given to the matter pre-devolution. We are way ahead of ourselves, even though the SDLP paper is a worthy one.

2757. Mr Attwood: I tabled a proposal, and I will push it. However one might wish to interpret it, the Committee decided what it decided in its first report. How to take on board the report’s findings was not decided unilaterally by me; it was decided unanimously. However, as we know, a number of matters in the first report were not decided —

2758. The Chairperson: Alex, we are not discussing the first report. Let us get to the nub of the matter. There are three recommendations on the table. I do not want to go through the whole thing again. You have already explained your position on most of those.

2759. Mr Attwood: And if I am allowed to do so, I will explain and answer the various points that members raised, which, I think, is the minimum to which a Committee member is entitled. Secondly, I did not impose this paper on the Committee. I was asked to look into it by the Committee. It was not my decision. As soon as the Chairperson proposed that I should do so —

2760. Mr McFarland: To be fair, Alex said that he had a paper, and we asked him to go away and study it.

2761. The Chairperson: That is more to the point.

2762. Mr McCartney: We did not want to say no.

2763. Mr Attwood: You should have said that you did not want to see the paper.

2764. Mr McFarland: We did not want to be rude.

2765. Mr Attwood: You cannot complain about discussing a paper if, one way or another, you asked to see it.

2766. Mr McCartney: You suggested that we asked you to do it.

2767. The Chairperson: OK folks; please make your comments through the Chair.

2768. Mr Attwood: I remember the conversation very clearly. The Chairperson said that if I had something I should share it with everyone. Check the Hansard report; but, because I think that I had some further work to do on it and had only given a briefing note to Carmel Hanna. Either way, no one said that they did not want to see it.

2769. Mr McCartney: We are very polite.

2770. Mr Paisley Jnr: Now that we have seen it, it has not been worth coming to see it.

2771. Mr Attwood: Thirdly, in an attempt to get consensus in the Committee, I made narrow proposals today about how to move the matter forward. I could have been, and was inclined to be, a lot more extravagant. However, given my sense of the Committee’s position, I made very narrow proposals to hear from three people on matters that the Committee Clerk indicated are consistent with its mandate. My proposals are based not just on what I consider to be appropriate but on what appears to be appropriate to the Clerk.

2772. Mr Paisley Jnr: Your comments in previous Committee meetings and in the debate let the cat out of the bag about your real agenda with respect to the head of the Civil Service, but we are not here to have a go at him. If you do not like the head of the Civil Service, or his staff, that is an issue for you, but you should not drag the Committee formally into the little invective world that you sometimes inhabit when it comes to civil servants. It is wrong and it is unfair to the Civil Service.

2773. Mr Attwood: It has nothing to do with —

2774. The Chairperson: I propose that —

2775. Mr Attwood: I have a right to reply.

2776. The Chairperson: One minute, please. I am going to put a number of proposals to the Committee, because we are being drawn further into an argument and into something that is not in the Committee’s remit.

2777. Mr Attwood: That is not what the Committee Clerk said.

2778. The Chairperson: I do not care what the Clerk said. I am speaking at this second in time, OK.

2779. Mr Attwood: I am glad that you put that on the record.

2780. The Chairperson: OK, it is on the record now.

2781. Mr Attwood: That will impress all the Committee Clerks.

2782. The Chairperson: Well, it is on the record.

2783. Mr Attwood: It is, and you cannot withdraw it.

2784. The Chairperson: Please: are you going to continue?

2785. Mr Attwood: I would like to continue —

2786. The Chairperson: I am going to allow you to quickly draw your remarks to a close. Comments from anyone else should be made through the Chair.

2787. Mr Attwood: This has nothing to do with who is the head of any organisation; it is a matter of attempting to build confidence in the justice Department’s staffing complement, particularly its senior staff. The SDLP thinks that there is a way to do that bit of business so that anybody who has an interest can apply, be interviewed and, perhaps, be appointed. This has nothing to do with invective against anybody. It is about trying to judge the best way to structure the justice Department and living with the outcome of a proper public consultation process.

2788. Regarding a report in 2009, the Committee produced a report previously in which a number of matters were not resolved and to which we said that we would come back. By the end of the year, we will be in a position to produce a report on all the matters that we can conclude, and I hope that we can do so. Today, I made a proposal to try and conclude some of those matters in order to get a report to the Assembly before Christmas.

2789. If there is no agreement on those matters, which may well be the case, they can go into a future report, if that is what the Committee decides. There is absolutely nothing prejudicial about doing this bit of work now that would impede any report going to the Assembly before Christmas. If such an argument is being made, it is completely inconsistent with the fact that we previously adopted a report that went to the Floor of the Assembly and was adopted by a majority vote.

2790. These are pretty basic recommendations about how to deal with some important issues. I made minimum recommendations. If I am able to get these over the line, I assure members that I will make bigger ones next week. However, in any case, I propose that we invite the head of the Criminal Justice Inspection (CJI) to give evidence in respect of his reports on the PPS, invite the PPS to give its perspective on those reports, and, separately, to invite the head of the Civil Service to discuss staffing arrangements in respect of a proposed Department of justice once it is set up.

2791. The Chairperson: To clarify, the Clerk said that the essential question for the Committee was the extent to which the Committee should examine the independence and accountability of the PPS before and following devolution. He made that point very clearly in the paper, but that has been ignored.

2792. Mr McFarland: The next time Alex volunteers a paper, my sense is that the Committee may not be minded to receive it.

2793. The Chairperson: I could not possibly comment.

2794. As I understand it, there are three proposals on the table; two from Alex Attwood and one from Ian Paisley Jnr. The first one is that the Committee should call the chief inspector —

2795. Mr McCartney: We will also make a proposal.

2796. The Chairperson: That will be the fourth proposal.

2797. Mr McCartney: In relation to Alex’s proposal, we want to include it at the conclusion of the Committee’s second report.

2798. The Chairperson: Is that on both proposals?

2799. Mr McCartney: Yes.

2800. The Chairperson: The first proposal is that we call the chief inspector of Criminal Justice Inspection Northern Ireland and the PPS to the Committee.

2801. Mr Paisley Jnr: It is that HOCS, PPS and CJI should be brought to the Committee. It is really an amendment to say that we will wait until the conclusion of the report.

2802. The Chairperson: We will take the proposal first on both of the issues. I assume that that proposal is also in relation to the head of the Civil Service. We will then take a vote on the amendment. Alex, are you happy if we include the Civil Service in one, rather than having two separate proposals?

2803. Mr Attwood: If people are inclined to go down that road, and given that the structure of the Department is one of the most germane issues, I suggest to people that they may want to split that issue. The head of the Civil Service should come sooner, even if members want the others to come later.

2804. The Chairperson: OK. We will vote on them separately. It was just for clarification.

2805. Are members content with the first proposal about the CJI and the PPS?

The Committee divided: Ayes 1; Noes 7.


Mr Alex Attwood.


Mr Hamilton, Mr Kennedy, Mr McCartney, Mr McFarland, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt.

Proposal accordingly negatived.

2806. The Chairperson: OK. Are members content with the second proposal, which is to call the head of the Northern Ireland Civil Service to the Committee?

The Committee divided: Ayes 1; Noes 7.


Mr Alex Attwood.


Mr Hamilton, Mr Kennedy, Mr McCartney, Mr McFarland, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt.

Proposal accordingly negatived.

2807. The Chairperson: We then have the amendment to both of those proposals.

2808. Mr McCartney: We are going to withdraw the second one, which is in relation to the head of the Civil Service.

2809. The Chairperson: So it is just the first amendment, in relation to the chief inspector of CJI and the PPS?

2810. Mr McCartney: Yes.

2811. Mr McFarland: Can I clarify that that will be after the conclusion of the second report?

2812. The Chairperson: Yes.

2813. Mr Attwood: Will it be immediately after the conclusion of the second report?

2814. The Chairperson: Let us not get into those semantics.

2815. Mr O’Dowd: He thrives on it.

2816. The Chairperson: I imagine that another Committee will be formed then. Are members in favour of the amendment?

The Committee divided: Ayes 3; Noes 3.


Mr Attwood, Mr McCartney, Mr O’Dowd.


Mr Hamilton, Mr Paisley Jnr, Mr Spratt.


Mr Kennedy, Mr McFarland.

Proposal accordingly negatived.

2817. The Chairperson: There is another proposal for the Committee to note the recommendations in the SDLP paper.

2818. Mr Paisley Jnr: I withdraw that.

2819. The Chairperson: Therefore, there is no such proposal. Are there any other issues regarding that paper?

Members indicated dissent.

3 November 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nigel Dodds
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Alan McFarland
Mr A Maskey
Mr John O’Dowd

2820. The Chairperson (Mr Spratt): The first item on the agenda is correspondence. We are now in possession of a letter from the First Minister and deputy First Minister. We also have a paper from the specialist adviser, which analyses the Prime Minister’s letter. There is also an acknowledgement to Lord Morrow; a reply to the Bar Council of Northern Ireland that we discussed at the previous meeting; a letter to the First Minister and deputy First Minister sharing information that was provided by the Policing Board; a letter from the First Minister and deputy First Minister asking for a further update on the efficiency review panel; a letter to the First Minister and deputy First Minister sharing information that was provided by the Secretary of State; a letter of thanks from the Northern Ireland Policing Board; and a letter to the specialist adviser sharing information from the Northern Ireland Policing Board, as agreed at the previous meeting. I ask members to note those letters.

2821. Mr Attwood: Are we going to discuss —

2822. The Chairperson: Those are just the outgoing letters.

2823. Members have a copy of a letter from the Prime Minister, which has pretty much been in the public domain. There is also a letter from the Secretary of State in reply to the Committee’s letter of 7 October 2009 about the costs of the training college and the destruction of DNA records. We also have a letter from the Policing Board to the First Minister and deputy First Minister about issues that arose during a special meeting of the board on 23 October 2009. The board agreed to copy that letter to the Committee. There is also a paper from the specialist adviser that contains an analysis of the Prime Minister’s letter of 21 October 2009 in response to the decision taken on behalf of the Committee just before the Halloween recess to invite him to provide comment. A letter from the First Minister and deputy First Minister arrived late yesterday afternoon, and that is now being tabled. I understand that that has also been copied to Danny Kennedy, in his role as Chairperson of the Committee for the Office of the First Minister and deputy First Minister. I saw an e-mail last night with that letter attached, which is about our request for a meeting with the First Minister and deputy First Minister. I will give members a few moments to read that letter. The Prime Minister’s letter, which everyone has already seen, is attached.

2824. Mr McFarland: Is the specialist adviser going to come before the Committee?

2825. The Chairperson: No. His response has been provided, and is included in members’ packs.

2826. Mr McFarland: Is he going to come before us to discuss that?

2827. The Chairperson: No, he is not coming.

2828. Mr Kennedy: Why is that? Is he not available?

2829. The Chairperson: The Committee had not decided to invite him at this point, although I am quite happy to call him if members want him to attend a subsequent meeting.

2830. Mr Kennedy: We should discuss that.

2831. The Chairperson: Everyone has had a chance to read letter, so it is now open for discussion.

2832. Mr McFarland: Although some bits of the Prime Minister’s letter are clear, other bits are not quite so clear in what is being referred to or what is behind it. Many of us have been involved in such issues for 10 years now, and we know that behind every letter, there is a lot of detail that is not always clear. Hopefully, when the First Minister and deputy First Minister come before us, they will be willing to explain what it all means.

2833. It would be useful if we get our specialist adviser to talk us through the implications, as Danny suggested. There has been talk in the press of this being a £2 billion package, but the letter identifies approximately £700 million. There appears to be a disparity between what has been spun in the press and what has been identified in the letter.

2834. Mr Attwood: I agree with Alan. To understand the letter, we need to get in our own adviser and an official, because if we were to merge the questions that were raised by Mr Hewitt and those that were raised in the letter from Barry Gilligan, a substantial piece of work would be required to work out the possible consequences. Therefore, although I agree with bringing in Victor Hewitt, to more fully understand the letter, we also need to bring in officials from the Department of Finance and Personnel (DFP) and the NIO. Furthermore, Victor Hewitt should have access to those officials so that he can understand the letter more fully and give us best advice.

2835. I welcome the fact that the letter from the First Minister and deputy First Minister got back to us, but I do not see why they are arguing that any session should be held in private.

2836. The Chairperson: We have always discussed financial issues in private, as we did with discussions about the Policing Board.

2837. Mr Attwood: Precisely, but the difference now is that the Prime Minister has published a letter, so he has decided that some of those matters can be discussed in public. Whatever the requirements for privacy heretofore, the Prime Minister has decided that those matters can be probed and discussed in public, and other people have not dissented from that. Therefore, given how important financial issues have been for the devolution of policing and justice and that the privacy principle has been breached, which I welcome, it is appropriate to discuss the matters in public session. Of course, there is another reason: no report about any of the financial discussions to date has been brought to the Assembly. I was minded to raise a point of order with the Speaker about that. Given that privacy is no longer an issue, our discussions are all but concluded and those matters are in the public interest, there should be a public conversation, which should happen next week. In addition, we should determine from the First Minister and the deputy First Minister how early they can attend the meeting.

2838. The Chairperson: They said 10.30 am.

2839. Mr Attwood: They should come earlier because, on that basis, they could give us up to an hour and a half. However, depending on business in the House, it could end up being only half and hour, and, given that they will have met us only twice in the course of a year, we will need a minimum of half an hour and a maximum of an hour and a half. Therefore, to ensure that we do not run out of time, we should ask them how early they can come. We need an hour and a half with them.

2840. The Chairperson: We can check that out, but I imagine that it should not be a problem.

2841. Mr Kennedy: On a practical basis, if we need to hear from Victor Hewitt and/or officials — and it would be helpful to do so — it would be important to have that briefing before we meet the First Minister and deputy First Minister. That might lead us into logistical problems. It might be necessary to meet Victor Hewitt and the officials on Monday, which is not ideal because it is a sitting day, but we will need time to digest the responses from the special adviser.

2842. Mr McFarland: Logically, given that the First Minister and deputy First Minister will probably have only a short time when they get here, having and understanding Victor’s take on what it all means would probably lead to a more productive discussion with them.

2843. The Chairperson: Obviously, we will have to check whether the specialist adviser will be available, and that can be done reasonably quickly. Do you know of his availability?

2844. The Committee Clerk: No; but, if it helps, we can make that call now. One option is an earlier start on Tuesday morning, and the other is a separate meeting on Monday. It would be helpful to know what option the Committee prefers so that that can be conveyed to the specialist adviser, and, while the Committee continues with its discussions, we could probably even call officials in the NIO and DFP and alert them to the Committee’s preference.

2845. The Chairperson: First and foremost, we need to know how members are fixed with Committee meetings or whatever else they are involved in on Monday.

2846. Mr A Maskey: We are not opposed to that idea. However, first, I would have thought that we need hear from the First Minister and deputy First Minister and then take it from there. If people want to meet on Monday, and if it is feasible, I will not object, but I am not sure whether I will get much more out of it. Victor’s letter is Victor’s letter, and his analysis is in front of us. People around the table have had opportunities to discuss the matter at length, including with the Chief Constable. I am not sure what additional light it will shed. It might help if Victor were to give us a bit of a critique after we hear from the First Minister and deputy First Minister.

2847. The Chairperson: If people are not objecting to a Monday meeting, we can set it up. We will have to make a telephone call now. I imagine that we will be able to get a room as Monday is not the busiest day for Committee meetings.

2848. Mr Kennedy: I do not think that there is a lot of business scheduled for Monday. Perhaps we could meet immediately after Question Time?

2849. The Chairperson: I can make myself available at whatever time suits. I do not have any objections, and I am happy to do that. Do members agree that we should try to slot a meeting in for Monday and to bear with the Committee Clerk in making the best arrangements for the time of the meeting? Obviously, that will have to tie in with when Victor is available.

Members indicated assent.

2850. The Committee Clerk: We need to clarify whether that meeting will be in public or in private session.

2851. The Chairperson: We will clarify whether both meetings are in public or private session. Alex Attwood raised an issue about meeting in private or public session. The First Minister and deputy First Minister have requested a closed session. Until now, we have dealt with all such issues in closed session. What are the Committee’s views?

2852. Mr Hamilton: I understand the point that Alex Attwood made about the letter being in the public domain. Given the previous practice of holding meetings in closed session and the freedom that that has given everyone — Committee members and witnesses — it would be right and proper that we continue in that vein.

2853. Mr McFarland: We are happy with that. In my experience, a lot more information can be gleaned during meetings that are held in closed session, as opposed to everyone being guarded if they are held in open session. We need to know what some of the content means. Clearly, a lot of understandings have been given throughout this process at the meetings in Downing Street, and it would be useful if we had some idea of what those understandings were. At the moment, lots of questions are left begging. It would be useful to know what other discussions have taken place, what they mean and where it is all going. We are more likely to get answers to those questions in a private session than a public session.

2854. The Chairperson: The consensus seems to be —

2855. Mr Attwood: I want to put the matter to a vote, simply because there is no evidence from our previous conversations with the First Minister and deputy First Minister that having the meeting in private would add much enlightenment. The evidence base is not there to say that things will necessarily be better in private session.

2856. Mr Hamilton: Maybe the questions were not probing.

2857. Mr Attwood: We had the chance to ask only two questions, and even that was a stretch.

2858. The Chairperson: I will come to the questions in a moment. I want to be fair to all Committee members.

2859. Mr Attwood: The Committee has an obligation to the wider public. There has been a great deal of toing and froing over the devolution of policing and justice powers. We are where we are now, but we have an obligation to fulfil our responsibilities to the people by holding further discussions in public.

2860. Such discussions would confirm the good parts to the offer and parts where ambiguity endures, even though we may never get any further clarification to such ambiguity. Therefore, I propose that our meeting with the First Minister and deputy First Minister should be held in public.

2861. Mr A Maskey: The Office of the First Minister and deputy First Minister (OFMDFM) asked for the meeting to be held in closed session, so it might be useful for the Committee to ask that Department why that is the case. As Alan McFarland suggested, OFMDFM may come back and say that the First Minister and deputy First Minister do not want to appear in front of the Committee in a public session. I do not know whether that is the case, but I am happy for OFMDFM to be consulted.

2862. The Chairperson: The Committee Clerk has held discussions with departmental officials in OFMDFM; perhaps he can give the Committee his view?

2863. The Committee Clerk: Departmental officials from OFMDFM have discussed not whether the session should be closed but whether there should be a transcript of the proceedings of a closed session. Those officials indicated that that transcript could be used as part of the Committee’s report and, as such, could constrain the conversation between the First Minister and deputy First Minister and the Committee.

2864. As a precedent, the officials cited the previous appearance of the two Ministers before the Committee when the meeting was held in closed session and there was no transcript. The officials suggested that the same arrangement should apply in the future.

2865. The Chairperson: That concurs with what Mr McFarland said a few moments ago.

2866. Mr Attwood: That is a useful suggestion, but Alex Maskey’s suggestion that the Committee should check whether OFMDFM will agree to the session being held in public is a better one.

2867. What I do not understand is that the letter before the Committee is a joint letter, which refers to continued sensitivity in the discussions between OFMDFM and the Prime Minister and Treasury. I understood from at least one of the authors of the letter that those discussions had concluded. Therefore, in those circumstances, there should not be any continued sensitivity. However, I am prepared to suspend my proposal on the basis that the Committee consults OFMDFM, as Alex Maskey said.

2868. The Chairperson: Before I put the proposals to the Committee, a telephone call must be made to OFMDFM. Hopefully the Committee will get an answer, although it is not the easiest thing to get from OFMDFM. The Committee Clerk has had to make a number of telephone calls in the past, and Committee members will know how many letters the Committee has written to the Department.

2869. However, with the Committee’s agreement, I will suspend the meeting for five to 10 minutes to allow us to try to get an answer to the suggestion. A definitive answer from the Department would probably prevent us from needing to have a great deal of chat about the issue.

Committee suspended.

3 November 2009

Members present for all or part of the proceedings:

Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nigel Dodds
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Alex Maskey
Mr Alan McFarland
Mr John O’Dowd

2870. The Chairperson (Mr Spratt): I declare an interest as a member of the Northern Ireland Policing Board.

2871. Mr A Maskey: I am a member of the Policing Board.

2872. Mr Attwood: I am a member of the Policing Board.

2873. The Chairperson: The Committee will now consider the remaining issues on the category 2 list, as detailed in members’ papers. Rather than proceed with each issue in turn, I invite members to state whether there have been developments on any of those matters.

2874. Mr Hamilton: No, Chairperson.

2875. Mr A Maskey: Nothing additional.

2876. Mr McFarland: I have nothing new to report.

2877. Mr Attwood: As with our previous meeting, I have several proposals to make in respect of the category 2 list of issues. We are six weeks away from the Christmas recess, which means that the Committee must have a report signed off within four weeks so that it can be discussed by the Assembly before the recess. Given the tight time frame within which we are working, in order to honour our Assembly mandate, and with so many issues still unresolved, we must create certainty around some of those matters.

2878. If the Committee were self-serving, there could be a risk that, sooner or later, somebody may claim that the devolution of justice cannot happen because the Assembly and Executive Review Committee has not concluded its business. I would not be surprised if somebody points a finger at the Committee over the coming weeks for not concluding some matters. Whatever the truth of that might be, and wherever else the responsibility might lie, I do not think that the Committee should be exposed to any allegations that we are not trying to conclude our business in a manner that is consistent with our mandate.

2879. Given the direction in which policing issues are now moving, we need to bring clarity to some matters. Therefore, I have some proposals for the Committee. I will begin by addressing issue A.

2880. Although we have decided that the role of the attorney general should be full-time, we still have not received from OFMDFM the report that the attorney general designate was asked to produce in respect of that office. We do not even know whether that report, which was commissioned by OFMDFM, has been produced, although I would be surprised if it has not. Given that we do not know whether the report has been produced, and, if it has, we do not know what is in it, we should ask the attorney general designate to appear before the Committee.

2881. The role of the attorney general designate will be very important in the context of the devolution of policing and justice, and he has been asked to spend some time considering what that role might be. However, there is a potential conflict of interest when a person designated for a role prepares a document about that person’s office. For all those reasons, I think that it would be very useful if the attorney general designate attended a Committee meeting to advise members on how he sees matters in respect of his future office and any other matters he has identified that he thinks should be reported to the Assembly, just as he is reporting to OFMDFM.

2882. I propose that we schedule a meeting over the next four weeks with the attorney general designate so that we can examine those matters.

2883. The Chairperson: Perhaps the Committee Clerk can provide some clarification on some of those points.

2884. The Committee Clerk: In his opening remarks, Mr Attwood referred to the timing of the Committee’s report. To make it clear to members, in the Committee’s first report on the arrangements for the devolution of policing and justice matters, paragraph 49 indicates that: “The Committee proposes to make a second report on the arrangements for the devolution of policing and justice matters to the Assembly in 2009".

2885. Paragraph 49 goes on to state:

“that report will address residual issues from the Category One List, as well as those issues on the Category Two List."

The first report is no more specific than that about the particular date or time by which the second report should be produced.

2886. In relation to what Mr Attwood said about the attorney general designate, the First Minister and deputy First Minister did indicate in correspondence to the Committee that they had received a paper from the attorney general designate, which they are considering, and, in due course, that they will be in touch with the Committee in relation to that. In its letter of 7 October, inviting the First Minister and deputy First Minister to appear again before the Committee — on a range of issues, including the role of the attorney general — the Committee expressly stated that it requires more information about the role of the attorney general.

2887. We can conclude from that that the First Minister and deputy First Minister have received a paper and have been considering it. That is the state of play.

2888. Mr Attwood: Although I was on holiday when the letter was received about OFMDFM having received a paper, I welcome that. However, given that that paper has not been forwarded to the Committee, and given the importance of the role of the attorney general, it seems to me to be entirely consistent for the Committee to ask for a conversation with the attorney general designate around what we consider to be relevant matters arising from his future position.

2889. We do not know when the First Minister and deputy First Minister may, or may not, share that paper with us. The Clerk will also confirm that if we are to comply with the original requirement to report to the Assembly by the end of 2009, we will have to table a document within four weeks.

2890. The Committee Clerk: The timing will be extremely tight.

2891. Mr Attwood: It may not even be four weeks, so we have to shift gears very quickly. It would be bizarre if we were to say to the general population that there will be an attorney general in Northern Ireland whom we have never met or had a conversation with about how he sees his office operating. Given the very important relationship that he will have with the PPS and how that will reflect back on the Assembly, it is self-evident that we should invite him to this Committee. Time is of the essence.

2892. The Chairperson: To clarify the situation in respect of the letter, everyone gets a meeting pack, whether or not they are on holiday. The Clerk’s office sends them out to everybody.

2893. Mr Attwood: I appreciate that, Chairperson.

2894. The Chairperson: Are there any other comments on Mr Attwood’s proposal?

2895. Mr McFarland: I am amazed that Alex is still surprised, even at this stage.

2896. Mr Attwood: The outstanding matters —

2897. Mr McFarland: Those will be decided by the First Minister and the deputy First Minister, and the DUP and Sinn Féin. They can do it in two minutes next week, the week after, tomorrow — or whenever. They will come to this Committee and push them through. The timescale is not an issue because their approach to the SDLP and my party, throughout this process, has been to bulldoze matters through. There is no doubt that that will happen in the case of the rest of the issues.

2898. Alex has a point: it would be quite useful for us to meet the attorney general designate to hear his ideas. It would not do any harm for this Committee to get some sort of heads-up on where he thinks that role is going, if and when he takes it over.

2899. Mr Kennedy: On a point of clarification in relation to the date on which the second report is due from this Committee, what sanctions are available if we do not meet those deadlines and if there is no report by the end of 2009? Is there a sanction in place that the Assembly or Speaker could impose?

2900. Mr McFarland: The document uses the word “intends".

2901. The Committee Clerk: It states that: “The Committee proposes to make a —"

2902. Mr Kennedy: So it is an intention.

2903. Mr A Maskey: I do not necessarily support the idea of setting a timeframe within which we want the attorney general designate to appear before this Committee. That is the responsibility of OFMDFM, and we are content for that to continue.

2904. The Chairperson: Are there any other comments? We have a proposal. Please clarify the wording, Mr Attwood.

2905. Mr Attwood: I propose that, at a suitable date within the next four weeks, the attorney general designate be invited to attend a meeting of the Committee in order to discuss issues in respect of his future office.

The Committee divided: Ayes 4; Noes 3.


Mr Attwood, Mrs Hanna, Mr Kennedy, Mr McFarland.


Mr Maskey, Mr O’Dowd, Mr Spratt.

2906. The Chairperson: Mr Hamilton and Mr Dodds have abstained. The proposal is passed.

2907. Mr Attwood: The next issue is the Ashdown report on parading. The category 2 list asks:

“What, if any, consideration should there be of the Ashdown report on parading?"

In recent days, there has been various commentary about the Ashdown review of parading and the Parades Commission. The Secretary of State, in his letter to the Committee two weeks ago, said that even in the absence of the publication of the Ashdown report, which he thought would happen shortly, the British Government would endorse its recommendations, were prepared to pay for its recommendations, and were prepared to claim that it would be a sustainable way forward. Those are the Secretary of State’s words, not mine.

2908. We should request that Lord Ashdown attend the Committee, because his report — even though we have not seen its final conclusions — has already been endorsed by the Government, and that seems to be a back-to-front way of doing business. Also, given the political profile that this issue has now achieved, we must cut to the chase, and that requires Lord Ashdown helping the Committee by explaining his proposals and how those may or may not develop thereafter. To create a degree of certainty about the parades issue, I propose that we invite Lord Ashdown to give evidence to the Committee.

2909. The Chairperson: Mr Attwood is proposing that the Committee invites Lord Ashdown to give evidence.

2910. Mr McFarland: My understanding is that not all people on Lord Ashdown’s committee agreed the report. From recent discussions in the press, it appears that two key players on that committee who represent substantial organisations did not agree it. Is that correct?

2911. The Chairperson: I remember that last time that the Committee asked me to speak to Lord Ashdown — the conversation lasted all of eleven and a half seconds.

2912. Mr Kennedy: Oh aye, there was a famous phone call.

2913. The Chairperson: Yes, and it lasted eleven and a half seconds. He told me that the Secretary of State was still considering the report. I do not know what the response to your letter will be, Mr Attwood, but I will be interested to learn the outcome.

2914. Mr McFarland: It will be useful to get some clarity on where we are with this issue. My understanding is that the draft report was not agreed by Lord Ashdown’s committee. Is that correct?

2915. Mr O’Dowd: There was a draft report and they are waiting for a substantive one.

2916. Mr Dodds: It was an interim report.

2917. Mr McFarland: From our discussions the other day, my understanding was that Mr Murray and another person did not even support the draft report; rather, they supported only bits of it. I think that Mr O’Dowd was one of the people who told me that. So, I am not clear about what the status —

2918. The Chairperson: Do not look to me for answers. [Laughter.]

2919. Mr Kennedy: You have his number. [Laughter.]

2920. Mr A Maskey: There is not much point in getting one person to tell us what he thinks, when others appear to have other points of view. Therefore, I object to the proposal.

2921. Mr Dodds: I have no objections to Lord Ashdown coming to the Committee. I do not know whether he will attend in light of the report’s current status. However, I have no difficulties with him coming along to discuss the issue, because it is very important.

2922. The Chairperson: We will put the matter to a vote. The proposal is that we invite Lord Ashdown to discuss his report with the Committee.

The Committee divided: Ayes 7; Noes 2.


Mr Attwood, Mr Dodds, Mr Hamilton, Mrs Hanna, Mr Kennedy, Mr McFarland, Mr Spratt.


Mr A Maskey, Mr O’Dowd.

2923. The Chairperson: The proposal is carried.

2924. Mr Attwood: The second issue that arises from the letter that the Secretary of State’s that was sent to the Committee two weeks ago —

2925. Mr Kennedy: You are aiming for a hat-trick. It is astonishing.

2926. Mr Attwood: The Committee should send a letter to the Secretary of State. Lord Ashdown has not published his report, but the British Government endorsed it. They said that they will fund it and that they believe that it is a sustainable way forward.

2927. At long last, the Secretary of State has written to the Committee, and I welcome that. However, the Secretary of State and the British Government must explain how they can endorse recommendations, which, according to other people, have not yet been concluded.

2928. Given the issues that have been raised about who did or did not sign off on the interim Ashdown report, we must find out whether Ashdown has finished his report and has handed it to the British Government. Is that the basis on which the British Government have said that they agree with his recommendations and will fund them, or is it the case that Ashdown has not finished his report and that the members of the Ashdown group have not endorsed any report? If that is the case, how can the British Government say that they endorse its recommendations, never mind that they will fund them or that they are a sustainable way forward? There may be an explanation, and I want to hear it. It does not seem to be consistent for the British Government to endorse a document that has not been agreed, published or forwarded to them. We must find out from them the basis on which the Secretary of State has made those commitments. It does not seem to be backed up by evidence about what stage the report is at.

2929. Mr Dodds: Alex has set out his position. I have no difficulty with the Committee writing to the Secretary of State. However, if Alex reads the Hansard report from last week, he will know, as I know, the Secretary of State’s exact view, as outlined by Mark Durkan. He will also know Paul Goggins’s view. Therefore, we can read what will be said; it is already on record. It is not as if a letter will elicit anything new from Sean Woodward.

2930. Mr Attwood: We will not be asking him to come here, Nigel. We will be asking him how he came to his assertions that are outlined in the penultimate paragraph of his letter of two weeks ago. How could he make those assertions if Ashdown has not yet reported?

2931. The Chairperson: OK. Will you clarify the wording?

2932. Mr Attwood: The Committee should write a letter to the Secretary of State to ask him, further to his most recent letter to us, to confirm whether he has received a copy of Ashdown’s final report, and if he has not received that report, and it has not been published, how could the British Government commit to its conclusions and recommendations and agree to fund them?

2933. Mr O’Dowd: Do you mean if an agreed document has not been published?

2934. Mr Attwood: Any document, whether it is agreed or not.

2935. Mr Dodds: If we send a letter to ask how the British Government could commit to those recommendations, he will assert that that is not his position.

2936. Mr Attwood: It is stated in writing, Nigel. It is in the letter that we received from the Secretary of State.

2937. Mr Dodds: I do not mind.

2938. Mr Kennedy: Perhaps, it would be easier to ask the Secretary of State to clarify the up-to-date position.

2939. Mr Attwood: That is fine. I am sure that Hansard report will inform us.

2940. Mr Chairperson: Are you happy with the proposal that we get clarity on the up-to-date position of the Ashdown report, Alex?

2941. Mr Attwood: Yes.

2942. The Chairperson: Does everyone agree?

Members indicated assent.

2943. Mr Attwood: I want to discuss two other matters that I held back on because I do not think that they will win approval.

2944. The Chairperson: There were three matters. Now, you are telling me that there are five.

2945. Mr Attwood: The next one is from the category two list of issues. We have a situation in which the British Government confirm that the existing North/South justice agreement is being reworked so that on the day that policing and justice powers are devolved, the elements in the current agreement that fall to the Dáil and the Assembly will go live. That is the proper way to proceed, but our argument is that there should be a justice sector of the North/South Ministerial Council. My proposal is that the Committee endorses that sector to ensure that the matters that fall to the Oireachtas and to the Assembly on the day of the devolution of policing and justice powers are all managed through that sector.

2946. We are running out of time on this issue. There will be tension around a new North/South justice agreement between the Oireachtas and the Assembly and not having a parallel mechanism to bring those matters forward through a justice sector of the North/South Ministerial Council. Therefore, to have convergence on a date for devolution of those powers, there should be a requirement to have that sector in place. That is independent of the good grounds for having a justice sector in the North/South Ministerial Council. As a matter of good practice and process, we should aim to have convergence on the day that the devolution of those powers takes place by having the agreement and the sector in place.

2947. Mr McFarland: We have had this discussion for several years now. We are more than happy to continue with the existing arrangements that were set up some time ago to deal with this issue. There is no reason to increase cross-border activity at the moment. The current system works well, and we are against the proposal.

2948. Mr Hamilton: Ditto from me in respect of what Alan said. As a party, we are supportive of cross-border co-operation where it is of mutual benefit. There is existing cross-border co-operation on a justice sphere, and it is helpful and useful. Our trip to Dublin was cited as such by the head of the gardaí and by the Minister for Justice, Equality and Law Reform, but we see no argument for or ideological commitment to the North/South Ministerial Council per se, never mind expanding it.

2949. We oppose any extension to include a justice sector, because there is no need for it, and the current arrangements seem to be operating pretty well. It is just a matter of ensuring that those arrangements are kept in place.

2950. Mr A Maskey: We previously argued for the proposal that Alex Attwood outlined.

2951. The Chairperson: We will put it to a vote. The proposal is that the Committee endorses a justice sector of the North/South Ministerial Council.

The Committee divided: Ayes 4; Noes 4.


Mr Attwood, Mrs Hanna, Mr A Maskey, Mr O’Dowd.


Mr Hamilton, Mr McFarland, Mr Kennedy, Mr Spratt.

2952. The Chairperson: The proposal falls.

2953. Mr Attwood: My final issue is about the relationship between the Serious Organised Crime Agency (SOCA) the security services and the new Department, and the fact that we are still awaiting a reply from the Secretary of State about that issue. I propose that the Committee expresses its concern that the relevant memoranda and protocols have still not been shared with the Committee, and that the issue should be rectified by the Secretary of State without delay. If passed, that proposal should go to the Secretary of State.

2954. It is self-evident that those memoranda and protocols are in place. I have no doubt whatsoever that the British Government is already sharing security briefings with people in the North on a private basis. However, the British Government have not shared the information that we requested, which is relevant to the authority of the Assembly. We repeatedly requested sight of the memoranda and the protocols. Consequently, we will be on the back foot if policing and justice powers are devolved quickly, because we will have received documentation very late in the process. The Committee and the Assembly deserve more respect from the British Government. More importantly, we must get sight of the documentation that we requested so that we can critically assess the make-up of future relationships, what will be shared and how it will be shared. To do that, we need to see the memoranda and the protocols. I ask Committee members to think about that issue.

2955. Members of the Policing Board know the importance of handling properly the sharing of information. In spite of my better self, I am not suggesting that we get involved in issues that we are not meant to. However, information to which the Assembly or this Committee is entitled to should be forthcoming. We should have received that information long before now.

2956. By not giving us that documentation, the British Government are not taking us seriously; it was prepared long ago, and should have been shared with the Committee then. Therefore, I propose a motion that expresses the Committee’s concern that the British Government are yet to share that information with the Committee, and urges them to do so forthwith.

2957. The Chairperson: Before I put the proposal, I draw members’ attention to a document that was helpfully prepared by the Committee Clerk. It summarises the position on the information that was sought on memorandums of understanding and protocols. The issue was discussed on 20 October 2009, and the Committee Clerk prepared the document in response to that discussion. I will give members a couple of minutes to read the document, after which, I will invite comments.

2958. Mr McFarland: In January 2009, we were told that the information would be available in the next few weeks, and in May 2009, we were told that it would be available soon. If the information was ready at that stage, there is an issue as to why the Committee has yet to receive it. I think that it was agreed that we would receive it at the same time as OFMDFM. Therefore, the question is whether the First Minister and the deputy First Minister have got the information, and we have not.

2959. The Chairperson: I cannot answer that question.

2960. Mr Hamilton: I never thought that this would ultimately end up as an issue in the Executive, although, maybe Alex wanted it to. Nevertheless, the Committee has shown an interest in the subject, has requested material and has been given some level of assurance that it will receive the material. Considering the chronology, it is poor that we have been led a bit of a merry dance. However, that is not to say where the issue may end up. We have requested sight of the information and we have been assured that we will receive sight of it, and it is only right and proper that we see that the lines that have been suggested.

2961. The Chairperson: The proposal is that the Assembly calls on the Secretary of State for Northern Ireland to provide to the Northern Ireland Assembly forthwith all the memorandums of understanding and protocols that will apply at the point of the devolution of policing and justice matters.

2962. Mr Attwood: It may be better to say “protocols and concordats" because that is the words that they use.

2963. The Chairperson: Do members agree to the proposal with that slight change?

Members indicated assent.

2964. The Chairperson: If no other member has anything to raise about the category two list of issues, that concludes that part of the meeting.

17 November 2009

Members present for all or part of the proceedings:

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

2965. The Chairperson (Mr Spratt): We move to matters arising. I refer members to item 3 and item 6 of the minutes of proceedings of our meeting on Monday 9 November, and to item 4 of the minutes of proceedings of our meeting on Tuesday 10 November. I also refer members to the memo from the Clerk at tab 2 of their meeting packs. Those papers relate to the Committee motion. I ask the Clerk to talk members through his paper.

2966. The Committee Clerk: The paper reflects on the decision that was taken by the Committee on 3 November, and the subsequent deferrals of any further progress on submitting the Committee motion to the Business Office, or on rescinding that decision. The paper reflects conversations and discussions during last week’s meetings. If the Committee wishes to rescind the decision on the motion, it will have to follow the arrangements set out at annex B. However, the Committee is at liberty to take other decisions, and some of those options are discussed on the second page of my paper. I remind members that there is a formal arrangement for rescinding a Committee decision.

2967. The Chairperson: There are three options that are open to the Committee.

2968. Mr McFarland: Did the Secretary of State agree to our request to receive the memoranda of understanding at the same time as the First Minister and deputy First Minister?

2969. The Committee Clerk: I will table a letter dated 31 May that the Secretary of State sent to the Committee, in which he indicates that it was his intention to share the memoranda of understanding and protocols with the Committee at the same time as they were cleared for the First Minister and deputy First Minister. That letter was the result of pressure that has previously been applied by the Committee to request sight of those papers. That letter is being distributed to members.

2970. Mr McFarland: It would be useful to know why that did not happen, whether First Minister and deputy First Minister were unhappy that the Committee would have those papers at the same time as them, or whether the Secretary of State forgot about it. Why is it that, having agreed to provide the papers to us at the same time, the First Minister and deputy First Minister have had their copies for some time?

2971. The Chairperson: Perhaps option 3 might be the way forward. That is to rescind the Committee’s decision on the motion and to write to the Secretary of State to say that the Committee has been informed by the First Minister and deputy First Minister that they have received the papers.

2972. Mr Attwood: I will continue to press my motion for the reasons that have emerged on the day of our meeting with the First Minister and deputy First Minister. First, there are four memoranda, one of which refers to the work of the Serious Organised Crime Agency (SOCA) in the North. Last Tuesday, SOCA commenced an exercise involving a person in the North, which gave rise to various political views and public debate. Without prejudice to what anybody said at that stage, the fact is that there was that intervention by SOCA, and the consequences of that only justify to me why we need to see the memoranda. If there was ever an example that proved why this Committee should see papers relating to the work of SOCA, that is it, and it is a good reason why we should press on with our motion.

2973. Secondly, the First Minister and deputy First Minister confirmed that they have had those documents since the summer. We do not have a Hansard report, and they did not indicate exactly when they received the papers, but it was during the summer. That means that they received the documents up to three months ago. We have been chasing the Secretary of State for the same documents, and three months after OFMDFM got them, we have not received sight of them. That is not a good way of doing business on sensitive and important matters.

2974. Thirdly, and I will come back to this under “Matters Arising", there are four Committee meetings scheduled before the Christmas recess. When we finish here in an hour, we will have just three more meetings. We are not doing our job if we do not probe into those memoranda and protocols. Regardless of proposals to have a debate before Christmas, which I want to talk about under “Matters arising", we are not being real about dealing with this work if we do not get those documents. The Secretary of State knows that we have had this conversation over the past couple of weeks, but have we received anything? Are there any officials in the room today? I do not know. We all know that the Northern Ireland Office knows that we have had this conversation, and nothing has been forthcoming. Therefore, I want to press ahead with the motion.

2975. Mr O’Dowd: If the objective is to get our hands on the memorandums and concordats, option 3 progresses that, and if the objective is to stand in the Chamber and make lofty speeches, then proceeding with the motion is the way forward. Our objective is to get our hands on the memorandums of understanding and to study them. Option 3 is a fair enough way forward, and it allows us to return to the question of a motion at a future date, if we so wish.

2976. Mr McFarland: Am I correct in recalling that, on at least two occasions since this letter, we have asked the Secretary of State for the memoranda of understanding and that he has written to us to state that they were still under consideration? I understood that we could not have them because they were still being looked at. That is why it is disconcerting to discover that OFMDFM has had them since the summer.

2977. The Chairperson: I do not know whether the Secretary of State has written back in the terms that you have described.

2978. Mr McFarland: Since the summer, we have asked for the memoranda of understanding twice, and we have been told that they were not ready and that they would be forwarded to us in due course. I seem to recall a recent letter in which we were told that the memoranda of understanding were still being considered and that we would get them as soon as they were ready. If OFMDFM has had them since the summer, I do not think —

2979. The Chairperson: The intention has always been to share them with the Committee in parallel with the First Minister and deputy First Minister.

2980. Mr McFarland: I think that we have written to the Secretary of State on a couple of occasions since the summer and told him that we are getting agitated about these matters. We have been told on several occasions that they were not ready, that we would get them in due course, and that is why we have ended up with Alex’s motion. If we were told in May that we would get them in parallel with OFMDFM, and it has had them since the summer, we have been deliberately denied them at someone’s request, and it is not clear whether it was at the request of OFMDFM or the NIO.

2981. The Chairperson: They were never requested of OFMDFM.

2982. Mr McFarland: They were not, but someone has made the decision not to send them to us and OFMDFM, in parallel. That has been a conscious decision by someone.

2983. The Chairperson: I would not say “in parallel". There might be a debate around what that means.

2984. Mr McCartney: I do not like straying into what, last week, was agreed would be a private and confidential meeting.

2985. The Chairperson: Yes. I am getting concerned about the thrust of the conversation.

2986. Mr McCartney: My recollection is that, in response to a question from Alex, OFMDFM said that it was considering the memoranda of understanding. In fairness, there was a position which was not explored: they may not yet be agreed.

2987. The Chairperson: If we are going to stray into any further discussion in relation to what was agreed at a private meeting, I will clear the room.

2988. Mr McFarland: We do not need to discuss last week’s discussion.

2989. The Chairperson: Can I have that assurance from all Committee members?

2990. Mr McFarland: You have that assurance from me. Most people will believe that “in parallel" means “at the same time as". We asked to receive the memoranda of understanding at the same time as OFMDFM, and the Secretary of State wrote back to tell us that we would receive them at the same time. On at least two occasions since then, we have asked for them, and that is why Alex has got so fed up.

2991. Leaving aside the fact that we discovered last week that they have been with OFMDFM since the summer — and that is as much as I am going to go into that discussion — there is something very strange going on, because we were assured that we would get them at the same time as OFMDFM. They got them in the summer and, on two occasions since then, NIO officials, who said that they would release them at the same time, told us that we could not have them, because they had not finished with them. There is something odd about that.

2992. Mr McCartney: I am not 100% certain that they said last week that the protocols had been finally agreed.

2993. Mr McFarland: They do not have to be agreed. We asked to see them at the same time.

2994. The Chairperson: Please address your remarks through the Chair.

2995. Mr Hamilton: I do not think that we have ever had a difficulty with pursuing sight of the documents, where it is appropriate for the Assembly to be involved in seeing them. We have always made it clear, particularly on issues relating to national security, that there was scope for the Committee or the Assembly to interfere, and we are very defensive of that position. Even though we have supported the pursuit of sight of the documents, I do not think that we have shared the position of other Committee members in respect of what the end result would be of having had sight of them.

2996. If I have understood Alex’s comments correctly, and his remarks about SOCA confirm some of my worries, and our position may alter somewhat. I have said before that I have no issue with having sight of the memoranda. Our collective understanding from previous correspondence from the Secretary of State was that we would receive the memoranda of understanding at the same time, but having gone back and looked at his letter, we see that the words “in parallel" were used, and, of course, things can be parallel, but behind. Different parallel points can be on the same line.

2997. I do not wish to get into a semantic word game, but I think that the Committee had the distinct impression that we would get the memoranda of understanding at the same time as OFMDFM. I am still content that we pursue sight of them, but I am not convinced that, at this stage, a motion in the Assembly is the way to achieve that aim. In fact, it may make it more difficult. The motion can be held in the arsenal and used at some stage, but before we get to that stage, it might be useful to go back to the Secretary of State to tell him that our understanding was that we would get the memoranda of understanding at the same time as OFMDFM. That has not happened, and we know that the Office of the First Minister and deputy First Minister have had them for some time. Could we ask why have we not got them, and whether we can expect to have sight of them soon? I would include the caveat that although our party is happy to have sight of them, if people want to try to negotiate them or to force an opinion on what they include, that is a no-go area for us. In short, there is an option to rescind the decision on the motion and write a letter. Perhaps we could write a letter along the terms that have been described and see what response comes back. The option of the motion will still be there if the Committee believes that it is required at that point.

2998. The Chairperson: I have been told that further pursuit of the Committee motion could be deferred in the meantime.

2999. The Committee Clerk: However, the Committee will still be obliged to address the issue of what it should do with the Committee motion that was, effectively, agreed at Committee on 3 November.

3000. Mr Attwood: Following Simon’s point about where parties may want to go with the issue, the SDLP would like all of it to be revisited — we do not deny that. We know that, because what has been agreed include transferred, reserved and excepted matters, there are some areas that we will not be able to pursue, despite our ambitions and intentions. In any case, there would not be much agreement around the table on that. Although the SDLP might wish to go in certain directions, we are not naive, and we realise that it is not possible to go in those directions.

3001. The Assembly can act consistently with its transfer function and with the letter of 31 May 2009 from the Secretary of State. In that letter, the Secretary of State confirmed what he will and will not share with this Committee, and he outlined what might ultimately be shared with a future justice Committee. In two subsequent paragraphs, he outlined, as one would expect, the parameters of national security and accountability. His letter then indicates what could be shared, not with a justice Minister, OFMDFM, the Policing Board or the Chief Constable, but with a justice Committee of the Assembly.

3002. Given that, to some degree, this Committee has the responsibility of working out that issue and relationship, we should have sight of those documents to see how far we can go. I am not suggesting that we go ultra vires, but we should see how far we can go.

3003. I wish to reassure Simon of the reason why I raised the example of what arose with SOCA last week. I do not wish to go into the details, but without prejudice to anyone’s views on the matter, it demonstrates a potential rubbing point in the future, post-devolution. In the view of some people, it has been a rubbing point pre-devolution. Given that experience and the fact that other similar experiences could emerge, it seems sensible to plot our way through that by looking at the various protocols on national security, SOCA, the independence of the Public Prosecution Service, and so on. That is the height of what we are discussing; it is not about bringing something to the Floor of the Chamber to make a lofty speech. I have given enough evidence to suggest that the matter is certainly relevant to the authority of the Assembly and how it will function in the future, and on where issues, perhaps acute ones, could arise.

3004. The Secretary of State, through one of his officials, told us that everything could be devolved by May 2008. Therefore, one can only work on the assumption that those protocols were in a fit state at that time. Eighteen months later, we are still chasing our tail trying to get them. The Secretary of State cannot explain how devolution of justice, which would have involved all those protocols and concordats, could have taken place 18 months ago, but we cannot have the memoranda of understanding yet.

3005. We can go off and plead, but, two weeks after the motion first arose and has, presumably, been reported somewhere, we have not received anything. If members think that the Secretary of State will respond to a letter, they should learn from the past two weeks, when the NIO has not responded to our conversation. It does not need a letter; it ignored our conversation in a situation in which we are trying to get the devolution of justice over the line in a short space of time. That is why I am pressing on with the motion, and I so propose it.

3006. The Chairperson: That is, of course, a matter for the Committee, and we will test that shortly.

3007. Mr Attwood: I am proposing a motion.

3008. The Chairperson: Just hold on. Other members wish to speak. You made it clear at the start of the meeting that you wished to propose the motion.

3009. Mr Paisley Jnr: Last night, a debate took place in the Assembly on fishing, and I think that that is continuing now — the motion is just a fishing exercise, and if the Committee were to pursue it, it would end up looking ridiculous.

3010. The wording of the motion will only be relevant to whoever decides that it is relevant. It will not be relevant to us. The intergovernmental agreement on North/South justice matters is available for everyone to see. We have been given information about the project advisory groups, and it appears to me, from reading the letter, that work is ongoing, especially on forensics, drawing up better management sequences, and handling exhibits. There appears to be ongoing work between the PSNI and the guards on public-notice activities and the Youth Justice Agency. A lot of that work appears to be at a developmental stage. The Committee will look pretty ridiculous if it fishes for documents without knowing what it is after.

3011. Alex has been on a crusade for a number of years to gain access to information that is, frankly, information that John le Carré knows but no one in the Northern Ireland Office knows. Moreover, it is information that — it is spelt out loudly and clearly in three paragraphs of the Secretary of State’s letter — we cannot see for national security reasons. If we see that information, we will damage national security and, more importantly, probably let crooks off the hook. We must get real on these matters. Alex is on a crusade to get sight of information; sometimes we have to accept that we cannot see certain information. Some realism must be injected into the discussion. The motion would make the Committee look completely ridiculous.

3012. The Chairperson: We have three suggestions in front of us.

3013. Mr McFarland: We were told that we could see the memoranda of understanding, and it is vital to know how the process will operate. We were told that they were ready and that we could see them in parallel with OFMDFM. Normally, I am more than happy to indulge Alex’s enjoyment of the Chamber. He spent an hour and a half on his feet in the Chamber last week. However, in this case, I am content that his suggestion would not solve anything.

3014. The Committee needs to find out why, having been promised sight of the documents, it has since been told that they were not available, even though they have been available for several months. Why has the Committee been left out of the loop? We need to see those papers; they will be non-contentious and will not be full of secrets. However, they will outline how functions will operate after devolution, and it is perfectly valid for the Committee to see that information.

3015. The Chairperson: I understand that there are three proposals in front of us; someone can correct me if they are not proposals. First, Alex Attwood has proposed to press ahead with the motion as laid out. Secondly, John O’Dowd suggested that we run with option 3, through which the motion would be rescinded. I remind members that, in order to comply with conventions, the Committee would have to deal with that issue next week. Therefore, we cannot rescind it today. Moreover, he suggested that we write a letter to the Secretary of State. Is that a fair reflection of your suggestion, John?

3016. Mr O’Dowd: Yes. Raymond has pointed out that we should perhaps check matters with OFMDFM because we are, in a sense, reporting the conversation on option 3 that we had with officials last week.

3017. The Chairperson: The third suggestion came from Simon Hamilton.

3018. Mr Hamilton: I did not make a suggestion or a proposal; I am happy to go with option 3.

3019. Mr McFarland: I think that Simon’s suggestion is good, because it parks the motion until we find out what has gone wrong with the memoranda of understanding. That seems like a good idea. If we decide to rescind the motion, we will have to return next week to do so. However, if we agree to park it, it will remain on the shelf somewhere. We should try to find out what has happened to the memoranda of understanding and, if possible, look at them. That would solve the problem.

3020. Mr Hamilton: I did not propose anything; I simply asked whether the Committee could do that.

3021. The Chairperson: The advice is that we could. Therefore, we have two proposals in front of us.

3022. Mr McFarland: What Simon enquired about would be quite a good idea, because it would save a whole hoo-ha —

3023. The Chairperson: It was not a proposal but a suggestion of a way around —

3024. Mr McFarland: If he were to make it a proposal, it would be sensible.

3025. The Chairperson: I think that he has made it clear that he is not going to do that.

3026. I will put the proposal on option 1 for dealing with the Committee motion.

Question put, That the Committee agree and sign the motion, and forward it, with recommendations on the scheduling and duration of the debate, to the Business Committee.

The Committee divided: Ayes 2; Noes 6.


Mr Attwood, Mrs Hanna.


Mr Hamilton, Mr McCartney, Mr McFarland, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt.

Question accordingly negatived.

3027. The Chairperson: We now move to the next suggestion, which is option 2. Members should bear in mind that the decision on the motion cannot be rescinded today but must be returned to in Committee next week. If it is rescinded, we will then write to the Secretary of State to say that we were informed by the First Minister and the deputy First Minister that they had received the memorandums of understanding, protocols and concordats, and ask why they had not been provided to us in line with the Secretary of State’s letter to the Committee of 31 May 2009. Do members agree?

Members indicated assent.

3028. Mr O’Dowd: To clarify, are the First Minister and the deputy First Minister happy for us to report that conversation?

3029. The Chairperson: Yes.

3030. Mr McFarland: The First Minister and the deputy First Minister were aware of the Secretary of State’s letter, so we could ask why they did not think to pass it to us. Unless they were told not to.

3031. Mr Hamilton: They cannot pass the letter to us; it is not theirs to do so.

3032. The Chairperson: Let us not get into another debate. There is a proposal before the Committee. Members should bear in mind that the proposal has to come back before the Committee next week.

Question put, That the Committee should agree to bring a proposal to the Committee seeking to rescind the motion to the Assembly and write to the Secretary of State to say that the Committee had been informed by the First Minister and deputy First Minister that they had received the memoranda of understanding, protocols and concordats and to ask why they had not been provided to the Committee in line with the Secretary of State’s letter to the Committee of 31 May 2009.

The Committee divided: Ayes 6; Noes 0.


Mr Hamilton, Mr McCartney, Mr McFarland, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt.

Question accordingly agreed to.

3033. The Chairperson: No abstentions have been recorded.

3034. The Committee Clerk: I need some clarity on the suggestion that we seek clarity from OFMDFM. Is that clarity to be sought today, in time for the formal consideration of rescinding the decision, and in time to draft and send a letter to the Secretary of State after the Committee has that discussion next week?

3035. Mr O’Dowd: We had a private meeting with the First Minister and deputy First Minister, and we agreed that they would not be recorded and the conversation would not be repeated. This is a minor issue, but we are repeating some of that conversation here, and we are proposing to repeat it to the Secretary of State, so only a courtesy call to OFMDFM is needed, on order to ensure that we are not breaching that agreement.

3036. The Chairperson: To clarify, I pointed that out to members who raised the matter. If we have future conversations about the meeting with the First Minister and the deputy First Minister, which was confidential, they will be in private session. I will stop any conversations that members are having and clear the room. We will have that conversation in private because, everybody around the table made a commitment that the meeting with the First Minister and the deputy First Minister was to remain confidential.

3037. Mr McFarland: It is fair to say that that commitment was to do with our private discussions rather than anything that we take to the specialist adviser. What is to stop us from writing to the Secretary of State now, ahead of the decision? Surely we want to know anyway, whether or not the decision is rescinded next week. We would still like to know what has gone wrong. Why can we not write to the Secretary of State pending next week’s decision?

3038. The Chairperson: Do members have any problems with that suggestion?

3039. Mr Paisley Jnr: Alan is arguing from a position that something has gone wrong. There is a very explicit intention to share information with the Committee in parallel with the First Minister and the deputy First Minister. Nothing has changed in that regard. There are clearly matters that will be shared with us. The issue is whether we get up-front sight of certain material, and it is pretty clear that we do not. We have to wait for other things to happen before information is shared with us. I know that the Committee has been an example of patience, but we have to be a little more patient about getting access to some of the material.

3040. What has gone wrong for some parties is that they did not get their way. That is not a matter on which the Committee can make a point. Alan suggests writing to the Secretary of State, asking him to amplify what he means in the first paragraph of his letter. I am happy for us to do that. However, we are getting to the point at which we are looking to be nursemaided through this stuff.

3041. Mr McFarland: It is fair to say that we have had several —

3042. The Chairperson: A couple of other members wish to speak, Alan.

3043. Mr McFarland: It is just on that particular point.

3044. The Chairperson: I am sure that they are looking to speak on to the same point.

3045. Mr O’Dowd: I wish to draw the Committee’s attention to a procedural matter. We are in limbo at present. We have decided to propose a rescinding motion at our next meeting, so the status quo remains until the Committee rescinds its intention to bring the motion to the Assembly. To all intents and purposes, the Committee still intends to bring a motion to the Assembly. Alan McFarland’s suggestion precedes doing that. I have no difficulty with our writing to the Secretary of State but, procedurally, we must rescind our motion and then write to the Secretary of State. That will keep us correct.

3046. Mr Attwood: I refer Ian Paisley Jnr to the comments that his colleague made on Monday 9 November on how we have been treated by the Secretary of State. Simon Hamilton referred to the paper and described the Secretary of State as “weak". That was the term used.

3047. Mr McFarland: One would think that this has come out of the blue. We have now spent two months agitating with the Secretary of State to have sight of the memoranda of understanding, and we have had two replies from NIO. We were promised back in May that we would see them. We did not reach Alex Attwood’s point of bringing something to the Assembly quickly. It came at the end of a very long road, and we had been assured that the memoranda of understanding were not ready. It is in order for the Committee to wonder why, if the memoranda of understanding are not ready, why OFMDFM had them in the summer. The Secretary of State said that he would share them with us and OFMDFM at the same time.

3048. It was not just the letter. We had him in front of us and he said, at that stage, that he was happy enough to let us have them. I am just confused. This is a separate issue from Alex Attwood’s agitation for a debate in the Chamber. The Committee was outraged three weeks ago when Simon made his comments at being treated like this. I do not see how the Committee can not be any less concerned with the latest information, which we discovered last week. It is in order for us to try to find out why we are not being treated properly.

3049. Mr O’Dowd: I am not arguing with any of the points that Alan McFarland has made. All that I am saying is that the Committee has just made a decision to set in course a procedure. We need to follow that procedure, and then what Alan is arguing may be enacted.

3050. The Chairperson: There seems to be a difference of opinion on the letter, and so on. I detect that the Committee is split down the middle on that. Members do not object to the letter, and it will go after next week’s meeting.

3051. Can we leave option 3 and return to it next week? Then the letter can go off to the Secretary of State. Is that agreed?

Members indicated assent.

3052. The Chairperson (Mr Spratt): We will move to our consideration of the devolution of policing and justice powers. The meeting is being recorded by Hansard. I declare an interest as a member of the Northern Ireland Policing Board.

3053. Mr Paisley Jnr: I am a member of the Policing Board.

3054. Mr Attwood: I am also a member of the Policing Board.

3055. The Chairperson: I suppose that I should ask the question that I normally ask. Before I ask it, however, I refer members to new issue E. Do members feel that there is further work to do on that issue? Several issues under new issue E involve the specialist adviser. The Committee Clerk will have to put some suggestions to us about that in the not too distant future. We have retained the specialist adviser beyond the period for which he was appointed, although he has done some additional work for us. It would be wrong of me to talk about figures, but we will have to have a discussion on the subject in closed session to allow the Committee Clerk to obtain the necessary finance for the additional work that the specialist adviser has had to do.

3056. Do members envisage the need for the specialist adviser to do any other work, particularly on finance matters?

3057. Mr Hamilton: It is not obvious at this stage.

3058. Mr McFarland: Some areas are still not fully clear, but there is none on which work can be done immediately. There may be more decisions to make on parading or on the Eames/Bradley group.

3059. The Chairperson: I will probably call him back at that stage. Does anyone else have any comments to make?

3060. Mr O’Dowd: We are happy enough to conclude.

3061. The Chairperson: Can we agree that, from our point of view, the work that has been done on new issue E has been concluded?

3062. Mr Hamilton: The broad swathe of the Committee’s work on the issue has been done. Much of it was about informing others about the issues that existed, and we have identified those. There is no overall agreement on the issue of finance at this point. As a result of that, we can say that we have done most of our work. However, I can envisage a time when we will have to get involved in finance issues. I would not put a lid on new issue E at this stage. The specialist adviser could seek advice and opinions when finance becomes an issue, or if there are developments on certain aspects of the financial package.

3063. The Chairperson: Will we suggest that most of the work has been done on new issue E? We may need to revisit some matters in the run-up to a report’s being produced. However, if I am accurately reflecting what has been said, we do not envisage asking the specialist adviser for further support. We should park the issue to allow the Committee Clerk to come back with a paper on financial issues to be agreed by the Committee.

3064. Mr McFarland: We should thank the specialist adviser for the work that he has done.

3065. The Chairperson: We will do that.

3066. Mr O’Dowd: Send him a Christmas card.

3067. The Chairperson: I am happy to do that, Mr O’Dowd.

3068. Mr Attwood: How will that be recorded in the minutes of the meeting? I agree with Sinn Féin that the work has been concluded. I do not envisage that there will be a requirement to invite Mr Hewitt back to the Committee.

3069. The Chairperson: Alan said that we may need assistance if there is movement on the financial issues to do with parading. Like Simon, I do not envisage his having to be brought back unless something new emerges.

3070. Mr Hamilton: A distinction must be drawn between “our work" and “the work".

3071. The Committee Clerk: The Committee effectively asked the specialist adviser to do additional work. The number of days that was originally designated in his contract has increased, and I will have to get the Committee’s permission to pay him for those additional days’ work. There is one remaining element of his contact, which is that he assists in drafting a section of the Committee’s report based on his papers. There is scope for that work to be done separate to the additional work that he did over additional days. The specialist adviser’s work is essentially done, but, if necessary, he could assist the Committee in drafting the report and on clarifying issues.

3072. The Chairperson: Are Members in agreement on that?

Members indicated assent.

3073. The Chairperson: Has any further progress been made on the category two list of issues?

3074. Mr Hamilton: No; there is none to report.

3075. Mr O’Dowd: Unfortunately, there has not been any further progress.

3076. Mr Attwood: I have a number of proposals and will deal first with issue A on the category two list of issues. Mindful of our previous conversation, we should write to OFMDFM to ask whether it has received a copy of the report from the Attorney General designate and whether it is in a position to share that report with us. I understand that the Attorney General designate has not yet responded to our request for him to attend the Committee.

3077. The Chairperson: I will now put Mr Attwood’s proposal to a vote.

Question put, That the Committee write to OFMDFM to request that they share the Attorney General’s report with the Committee.

3078. The Chairperson: I count four members in favour.

3079. Mr McFarland: What are we voting on?

3080. The Chairperson: The vote is on whether we should send a letter to OFMDFM to ask about the Attorney General designate’s report.

3081. Mr McFarland: Did we not enquire about that last week or the week before?

3082. The Committee Clerk: Yes. The Committee did ask, and the First Minister and the deputy First Minister declared that they had received a report and were considering it.

3083. Mr McCartney: Are we going to rerun that meeting?

3084. The Committee Clerk: Before last week’s discussion in closed session, there was a formal indication that the First Minister and the deputy First Minister had received a paper, that they were considering that paper, and that they would be in touch with the Committee in due course. I am not breaching confidentiality in referring to the remarks that they made at the end of the meeting in response to a question. They indicated that they were willing to come back to the Committee to discuss the category two list of issues and the role of the Attorney General.

3085. Mr McFarland: Do we need to do it again?

3086. Mr Hamilton: We do not need to do it. It is superfluous.

3087. Mr Attwood: It is asking for the First Minister and the deputy First Minister to share that report with us.

3088. Mr McFarland: I thought that we did.

3089. The Chairperson: We have voted on it. Four members —

3090. Mr Hamilton: I think that it is totally against the —

3091. Mr McCartney: The proposal is to write a letter asking whether the First Minister and the deputy First Minister have the report and, if so, whether they will share it with us.

3092. Mr Hamilton: We have already asked that.

3093. The Chairperson: We are repeating ourselves, but that is nothing unusual.

3094. Mr Attwood: We are asking whether OFMDFM is in a position to share it with us. That is different from asking whether OFMDFM has received anything.

3095. Mr Hamilton: The indication was that it is not.

3096. Mr Hamilton: I wish to be registered as voting against that proposal.

3097. Mr McFarland: I am for it.

3098. Mr Hamilton: It is absolutely pointless.

Question put, That the Committee write to OFMDFM to request that they share the Attorney General’s report with the Committee.

The Committee divided: Ayes 5; Noes 1.


Mr Attwood, Mrs Hanna, Mr McCartney, Mr McFarland, Mr O’Dowd.


Simon Hamilton.

3099. The Chairperson: I abstained from that vote. What is your next proposal, Mr Attwood?

3100. Mr Attwood: My next proposal is on new issue D. Given that the Secretary of State has indicated that the new North/South justice agreement that would be in place on the devolution of justice powers is being finalised with the Government in Dublin, we should write to him asking whether he is in a position to share the details of that. It is not a new North/South justice agreement, but an amended version of the existing British-Irish justice agreement, dealing with what falls to Dublin and what falls to Belfast on devolution. I understand that there is no difference of opinion, so are they willing to share that amended document with us?

3101. The Chairperson: You are proposing a letter to the Secretary of State?

3102. Mr McFarland: Go for it.

3103. The Chairperson: Is everybody agreed to that?

3104. Mr Hamilton: Have we requested that in the past?

3105. The Chairperson: No; we have not. It is a new one.

Question put, That the Committee write to the Secretary of State to ask, given that he has indicated that the amended British Irish justice agreement is being finalised with the Government in Dublin, whether he is in a position to share the amended document with us.

3106. The Chairperson: What is the next proposal?

3107. Mr Attwood: On new issue F, Paddy Ashdown wrote a highly helpful letter in which — one has to give it to him — he cut through many of the issues around his report.

3108. The Chairperson: In your view.

3109. Mr Attwood: Yes, in my view. Given that we previously had a seven-second conversation with him, he clearly took some time to put matters on the record accurately from his point of view, whether you think it clears issues up or not. It is clearly a very helpful letter. However, there seems to be a tension between what Lord Ashdown is saying in that letter and what the Secretary of State said in a letter to this Committee, when he indicated that he was content with the Ashdown proposals, believed they were a sustainable way forward and would fund them. However, the letter from Lord Ashdown indicates that he could not appear before the Committee — he is right to make this point — because there is no final report and there are matters about which he is still in conversation with his colleagues. We should send a copy of the letter from Lord Ashdown to the Secretary of State for his information.

3110. The Chairperson: The Committee did write to the Secretary of State to clarify his comments about the Ashdown report in a previous letter.

3111. Mr McCartney: He has it already.

3112. The Chairperson: We have not yet received a reply to that.

3113. Mr Attwood: Mindful of that, we should pass a copy of Lord Ashdown’s letter to the Secretary of State for information, in order to keep us right as a Committee, although no doubt it has been copied to him anyway.

3114. The Chairperson: Are we agreed on sending that letter?

3115. Mr O’Dowd: What has happened thus far?

3116. The Chairperson: A letter has been sent to the Secretary of State from the Committee asking for clarification about his comments on the Ashdown report. We have not received a reply to that yet.

3117. Mr O’Dowd: OK.

3118. The Chairperson: Are we happy to send another letter, which is basically a —

3119. Mr McFarland: We will just copy the Ashdown letter, as has been suggested.

Members indicated assent.

24 November 2009

Members present for all or part of the proceedings:

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

3120. The Chairperson (Mr Spratt): We move to discussion of the Committee motion. I ask members to make any declarations of interest. I declare that I am a member of the Northern Ireland Policing Board.

3121. Mr A Maskey: I am a member of the Policing Board.

3122. Mr Attwood: I am a member of the Policing Board.

3123. The Chairperson: I remind members that the rest of the Committee proceedings are being reported by Hansard. It was necessary to return to the matter of the Committee motion at today’s meeting. Members have the relevant papers.

3124. The Committee Clerk: When the Committee discussed this matter last week, it agreed to consider a proposal today to rescind its decision of 3 November to proceed with a Committee motion, and instead to write to the Secretary of State to ask why he had not provided the memoranda of understanding, concordats and protocols as he had indicated previously, particularly in his letter of 31 May, that he would. During the Committee’s discussions last week, some other opinions were expressed about holding the motion “in the arsenal", to quote the Hansard report, and parking the Committee motion. However, neither of those suggestions was formally proposed.

3125. The Committee then agreed that, in the first instance, a letter should be sent to the First Minister and deputy First Minister to seek clarity around the fact that the Committee had discovered during a closed session with the First Minister and deputy First Minister that they had in their possession memoranda of understanding, concordats and protocols. The Committee noted that correspondence, which was issued last Tuesday, just a few moments ago. The letter called for a reply from the First Minister and deputy First Minister in time for the Committee’s consideration today. There has been no reply, and although my staff have been in touch with OFMDFM, there has been no indication that a letter is forthcoming. Before the Committee decides on any further action on rescinding its earlier decision, it may wish to take into account what the First Minister said yesterday evening in the course of the Further Consideration Stage of the Department of Justice Bill. A note of those comments is being distributed to members.

3126. In essence, the First Minister indicated that he saw no reason why the Committee should not see drafts of those various documents, and that he would do what he could to encourage that to happen. Therefore, in some respects, that represents an answer to the letter that was sent to the First Minister and deputy First Minister last week. That is the background, but I wish to offer procedural advice to the Committee if it wishes to rescind its earlier decision. If that is the Committee’s wish, it must be done formally. The wording of the motion to rescind the earlier decision should be along the following lines:

“That the Committee rescinds the decision taken on 3 November 2009 to proceed with the following Committee motion:"

The wording of that motion was:

“That this Assembly calls on the Secretary of State for Northern Ireland to provide, to the Northern Ireland Assembly, all the Memoranda of Understanding, Protocols and Concordats which will apply, at the point of devolution of policing and justice matters, forthwith."

3127. The proposal to rescind the motion must be made formally by a member, and the Committee must agree.

3128. The Chairperson: Members have heard the Clerk’s advice on the procedure for rescinding the motion, if that is the Committee’s wish. Do members wish to make any comments?

3129. Mr Attwood: There is always more than one way to skin a cat, and those have been explored over the past two or three weeks. These matters were discussed, in one way or another, during yesterday’s plenary debate, and at two meetings of the Assembly and Executive Review Committee. I presume that some sense of what was said during yesterday’s debate and in Committee has been conveyed to the NIO. The words that were used by the First Minister yesterday also move matters on, because he did not see any reason why the protocols in their current form could not be shared. I am content for the matter to rest. The cat has been well and truly skinned, and I have no difficulty in assenting to the motion to rescind, because the purpose of the prospective plenary debate has been fulfilled.

3130. The Chairperson: Are you proposing that the motion be rescinded?

3131. Mr Attwood: Yes.

3132. The Chairperson: There being no further comments, are members content that the motion be rescinded?

Members indicated assent.

3133. The Chairperson: We move to the remaining issues on the category 2 list. As usual, before going through the list issue by issue, I ask members whether there has been any movement. I ask parties to indicate whether they wish to discuss the full list.

3134. Mr Hamilton: I have nothing additional to report at this stage, Chairman.

3135. Mr A Maskey: Nothing additional, Chairman.

3136. Mr McFarland: Nothing additional, Chairman.

3137. Mr Attwood: I have no proposals this week, Chairman, you will be glad to hear. However, I have a number of questions. Has there been an acknowledgement from the attorney general designate to the letter inviting him to come before the Committee to discuss his role?

3138. The Committee Clerk: We have not received an acknowledgement. That letter was issued as a result of a decision of the Committee on 3 November, and it expressly indicated the Committee’s wish that he appear before the Committee within four weeks. That four weeks will be up next week, and I have a note in my diary to remind the Committee that there has not been a response, save to say that the First Minister and the deputy First Minister, towards the end of the session that was conducted in private, indicated a willingness to come back to the Committee to discuss the role of the attorney general, as well as the category 2 list of issues.

3139. Mr Attwood: Lord Ashdown went out of his way to respond quickly to the Committee’s invitation to appear, and he did so in quite elaborate terms — certainly not in the terms of his previous conversation with you, Chairman. That represented a significant and welcome change of approach. Subject to the caveat that he has received the letter, it is not the best state of affairs that a person suggested to be attorney general designate has not acknowledged or indicated whether he feels it appropriate to come before the Committee within the time frame that was suggested. Matters could be handled a bit better.

3140. Mr McFarland: The word “designate" is one that Alex has applied. My recollection is that the official line was that the First and deputy First Minister — you or Simon may be able to confirm this, Chairperson — were “minded" to appoint a person. That has been taken to mean that the person involved is likely to be, will be or could be termed the attorney general designate. If the situation has got only as far as being that the First Minister and the deputy First Minister are minded to appoint an individual to the post, a stranger has received a letter from a Committee that has nothing to do with him asking him to do things. If the First Minister and the deputy First Minister are just minded to appoint that individual, and he has not received a letter or something that confirms that he is attorney general designate, it is perhaps not surprising that he has decided to treat the letter as if he officially has nothing to do with us yet, because he remains a normal barrister presumably. Therefore, it would be interesting to clarify the official position.

3141. Mr Attwood: An utterly reasonable explanation could exist for our not having received a response. The reason that Alan suggests may not be an utterly reasonable explanation, because an individual minded to be appointed by the First Minister and the deputy First Minister has, it appears, responded to correspondence from them on the proposed office of attorney general. Furthermore, the First Minister and the deputy First Minister have confirmed that they have received a reply and