Session 2009/2010

First Report

COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER
AND DEPUTY FIRST MINISTER

Report on the
Department of Justice Bill
(NIA 1/09)

TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT, WRITTEN SUBMISSIONS, MEMORANDA
AND THE MINUTES OF EVIDENCE

Ordered by The Committee for the Office of the First Minister and deputy First Minister
to be printed 21 October 2009
Report: NIA 18/09/10R
(The Committee for the Office of the First Minister and deputy First Minister)

This document is available in a range of alternative formats.
For more information please contact the
Northern Ireland Assembly, Printed Paper Office,
Parliament Buildings, Stormont, Belfast, BT4 3XX
Tel: 028 9052 1078

Membership and Powers

Powers

The Committee for the Office of the First Minister and deputy First Minister is a Statutory Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the Northern Ireland Act 1998 and under Assembly Standing Order 48. The Committee has a scrutiny, policy development and consultation role with respect to the Office of the First Minister and deputy First Minister and has a role in the initiation of legislation.

The Committee has the power to;

consider and advise on Departmental Budgets and Annual Plans in the context of the overall budget allocation;
approve relevant secondary legislation and take the Committee stage of primary legislation;
call for persons and papers;
initiate inquiries and make reports; and
consider and advise on matters brought to the Committee by the First Minister and deputy First Minister.

Membership

The Committee has eleven members, including a Chairperson and Deputy Chairperson, and a quorum of five members.

The membership of the Committee since its establishment on 9 May 2007 has been as follows:

Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)

Ms Martina Anderson Mr Alex Atwood2
Mr Tom Elliott Mr Barry McElduff
Mr Francie Molloy Mr Stephen Moutray
Mr George Robinson1/3 Mr Jim Shannon
Mr Jimmy Spratt

2 With effect from 29 June 2009 Mr Alex Attwod replaced Mrs Dolores Kelly

1 With effect from 15 September 2008 Mr Ian McCrea replaced Mr Jim Wells

3 With effect from 14 September 2009 Mr George Robinson replaced Mr Ian McCrea

List of Abbreviations Used in the Report

List of Abbreviations

AERC Assembly and Executive Review Committee

TUV Traditional Unionist Voice

Introduction

1. On 20 January 2009, the Assembly carried a motion approving a report of the Assembly and Executive Review Committee (AERC) on the arrangements for the devolution of policing and justice matters. Recommendations 1 and 2 of the report relate to the establishment of a department to exercise powers in relation to policing and justice matters; recommendations 9 to 12 relate to the arrangements for appointing, removing and replacing a Minister of Justice. All these recommendations are relevant to this Bill. The Bill does not give effect to the devolution of Policing and Justice but makes essential preparation for the future transfer of powers.

2. On 30 July 2009 the Executive considered the Bill and was content. The Bill was introduced to the Assembly on 14 September 2009.

3. The Department of Justice Bill (NIA01/09) (the Bill) was referred to the Committee for consideration in accordance with Standing Order 33(1) on completion of the second stage of the Bill on 22 September 2009.

4. The Ministers for the Office of the First Minister and deputy First Minister have made the following statement under section 9 of the Northern Ireland Act 1998:

“In our view the Department of Justice Bill would be within the legislative competence of the Northern Ireland Assembly".

5. The stated purpose of the Bill is to “Provide for the establishment of the Department of Justice and for the appointment of the Minister to be in charge of that department".

6. The Committee was briefed on the proposed draft Bill at its meeting of 9 September 2009. The Committee agreed a time table for its consideration of the Bill and to issue a public notice. A public notice was placed in the Belfast Telegraph, Irish News and Newsletter on 18 September 2009, seeking written evidence in the provisions of the Bill.

7. The Committee wrote to the AERC on 17 September 2009 to seek its views on the Department of Justice Bill.

8. The Committee considered the Bill and related issues at 3 meetings, on 07 October, 14 October and 21 October 2009. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1 and Minutes of Evidence are included at Appendix 2.

9. The Committee had before it the Department of Justice Bill and the Explanatory and Financial Memorandum that accompanied the Bill.

10. In response to its call for evidence, the Committee received written submissions from the AERC and Jim Allister QC, Traditional Unionist Voice (TUV) leader. A copy of the submissions received by the Committee is included at Appendix 3.

Committee Stage Scrutiny of the
Department of Justice Bill

11. The Committee had before it the Department of Justice Bill (NIA Bill 1/09) and the Explanatory and Financial Memorandum that accompanied the Bill.

12. Two written submissions were received. Copies are included at Appendix 3.

Consideration of the Bill

13. The Committee discussed the Bill and the submission received from the AERC on 7 October 2009. The Minutes of Evidence are included at Appendix 2.

14. The Committee noted the submission received from Jim Allister QC, TUV leader, and decided that due to it having been received late it would not be considered as part of the Committee report on the Department of Justice Bill. The Committee undertook its formal clause-by-clause scrutiny of the Bill on 14 October 2009. The Minutes of Evidence are included at Appendix 2.

The Department of Justice (Clause 1)

15. Clause 1 establishes the Department of Justice as a Northern Ireland department, prescribes its intended functions, and makes consequential amendments to insert the Department’s name in Schedule 1 of the Departments (Northern Ireland) Order 1999 (which lists the Northern Ireland departments) and also in Schedule 2 of the Ombudsman (Northern Ireland) Order 1996 (which lists the bodies subject to investigation).

16. The Committee agreed that it was content with Clause 1 as drafted.

The Department of Justice (Schedule 1)

17. The Committee agreed that it was content with Schedule 1 as drafted.

Minister in charge of Department of Justice (Clause 2)

18. Clause 2 sets out the arrangements for appointing the Minister of Justice.

The Committee considered, but decided not to recommend to the Assembly, a proposed amendment by a Member in the following terms:

Page 1, line 15, leave out clause 2.

19. The Committee agreed that it was content with Clause 2 as drafted.

Short title and commencement (Clause 3)

20. Clause 3 covers the title of the Act and arrangements for its commencement (it will come into operation on such day as the First Minister and deputy First Minister may by order appoint.

21. The Committee considered, but decided not to recommend to the Assembly, a proposed amendment by a Member in the following terms:

Page 2, clause 3, line 6, replace –

“such day or days as the First Minister and deputy First Minister, acting jointly, may by order appoint".

with –

“7 December 2009".

22. The Committee agreed that it was content with Clause 3 as drafted.

Long title

23. The Long Title of the Bill is “A Bill to provide for the establishment of the Department of Justice and for the appointment of the Minister to be in charge of that Department."

24. The Committee agreed that it was content with the Long Title as drafted.

Appendix 1

Minutes of Proceedings

Wednesday 9 September 2009
Room 144, Parliament Buildings

Present: Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Ian McCrea
Mr Barry McElduff
Mr Stephen Moutray
Mr Jim Shannon
Mr Jimmy Spratt

In Attendance: Mrs Cathie White (Assembly Clerk)
Mrs Linda Gregg (Assistant Assembly Clerk)
Mr Keith McBride (Assistant Assembly Clerk)
Mr Stephen Magee (Clerical Supervisor)
Mrs Marion Johnson (Clerical Officer)

The meeting opened at 2.02 p.m. in public session

4. Department of Justice Bill

2.05 p.m. Departmental Officials Mr Tony Canavan and Mr Geoffrey Simpson joined the meeting.

Mr Spratt declared an interest as the Chairperson of the Assembly and Executive Review Committee. Mr Kennedy declared an interest as a Member of the Assembly and Executive Review Committee.

Departmental Officials briefed the Committee on the Department of Justice Bill. This was followed by a question and answer session. Officials undertook to provide further information to the Committee.

2.10 p.m. Mr McElduff joined the meeting.

2.15 p.m. Mr Shannon left the meeting.

2.31 p.m. Mr McCrea left the meeting.

2.40 p.m. Departmental Officials left the meeting.

Mr Elliott proposed that the Bill would not proceed in the Assembly until the next report of the Assembly and Executive Review Committee had been published.

The Committee divided on the proposal: Ayes 2; Noes 6

Ayes: Mr Elliott, Mr Kennedy.

Noes: Ms Anderson, Mr Attwood, Mrs Long, Mr McElduff, Mr Moutray, Mr Spratt.

Mrs Long proposed that the Committee place a public notice in newspapers following the First Stage of the Bill, allowing for a closing date of two weeks later for receipt of submissions. The Committee would then consider submissions received at its meeting on 7 October 2009. The Committee will then consider if it wishes to table a motion to extend the Committee Stage of the Bill.

The Committee divided on the proposal: Ayes 6; Noes 0; Abstentions 2

Ayes: Ms Anderson, Mr Attwood, Mrs Long, Mr McElduff, Mr Moutray, Mr Spratt.

Abstentions: Mr Elliott, Mr Kennedy.

Agreed: The Committee will place a public notice in newspapers following the First Stage of the Bill, allowing for a closing date of two week later for submissions, the Committee would then consider submissions received at its meeting on 7 October 2009. The Committee will then consider if it wishes to table a motion to extend the Committee Stage of the Bill.

Agreed: The Committee agreed the draft public notice.

4.47 p.m. The Chairperson adjourned the meeting.

[EXTRACT]

Wednesday 7 October 2009
Room 144, Parliament Buildings

Present: Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Francie Molloy
Mr Stephen Moutray
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

The meeting opened at 2.03 p.m. in public session

5. Department of Justice Bill

The Committee considered the written submission from the Assembly and Executive Review Committee on the Department of Justice Bill. The Committee discussed the clauses contained in the Department of Justice Bill.

Agreed: The Committee agreed to complete its formal clause-by-clause scrutiny of the Bill at next week’s meeting and to consider a draft report at its meeting of 21 October 2009.

Agreed: The Committee agreed there was no need to seek an extension to the Committee Stage of the Bill.

Agreed: The Committee agreed to write to the First Minister and deputy First Minister to request a briefing, in closed session, on the financial package for policing and justice, when it has been agreed.

3.53 p.m. The Chairperson adjourned the meeting.

[EXTRACT]

Wednesday 14 October 2009
Room 30, Parliament Buildings

Present: Mr Danny Kennedy (Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mt Barry McElduff
Mr Francie Molloy
Mr Stephen Moutray
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

The meeting opened at 2.01 p.m. in closed session

2. Department of Justice Bill

The Bill Clerk briefed the Committee on the Department of Justice Bill and the process for clause-by-clause scrutiny of the Bill.

2.14 p.m. The meeting opened to the Public.

9. Department of Justice Bill

The Committee discussed a late written submission from Mr James Allister QC, on the Department of Justice Bill.

Mr Elliott proposed that the Committee accepts the submission and place the submission in the report, and advise Mr Allister that due to the lateness of the submission it could not be taken into consideration in the Committee’s deliberations.

The Committee divided: Ayes 6; Noes 0; Abstentions 4.

Ayes: Mr Attwood, Mr Elliott, Mr Kennedy, Mr Moutray, Mr Robinson, Mr Shannon.

Noes:

Abstentions: Ms Anderson, Mr McElduff, Mr Molloy, Mr Spratt.

Agreed: The Committee would accept Mr Allister’s written submission and place the submission in the Committee’s Bill Report, and advise that due to the lateness of the submission, it could not be taken into consideration in the Committee’s deliberations.

3.07 p.m. Departmental officials, Mr Tony Canavan and Mr Geoffrey Simpson joined the meeting.

The Committee commenced its formal clause-by-clause scrutiny of the Department of Justice Bill.

Clause 1 – The Department of Justice

Schedule – Amendments

Question: That the Committee is content with the clause as drafted.

Agreed: That the Committee is content with the clause as drafted.

Question: That the Committee is content with the schedule as drafted.

Agreed: That the Committee is content with the schedule as drafted.

Clause 2 – Minister in charge of the Department of Justice

Mr Elliott proposed that the Committee should seek legal advice from the Assembly’s Legal Services on clause 2 and the potential consequences of the sunset clause.

The Committee divided on Mr Elliott’s proposal: Ayes 3; Noes; 7; Abstentions 0.

Ayes: Mr Attwood, Mr Elliott, Mr Kennedy.

Noes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon,
Mr Spratt.

Agreed: That the proposal falls.

Mr Attwood proposed page 1, line 15, leave out clause 2.

The Committee divided on proposed amendment: Ayes 3; Noes 7; Abstentions 0.

Ayes: Mr Attwood, Mr Elliott, Mr Kennedy.

Noes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Agreed: That the proposal falls.

Question: That the Committee is content with the clause as drafted.

The Committee divided: Ayes 7; Noes 3; Abstentions 0.

Ayes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Noes: Mr Attwood, Mr Elliott, Mr Kennedy.

Agreed: That the Committee is content with the clause as drafted.

Clause 3 – Short title and commencement

Mr Attwood proposed an amendment – page 2, clause 3, line 6, replace –

“such day or days as the First Minister and deputy First Minister, acting jointly, may by order appoint."

With –

“7 December 2009".

The Committee divided on the proposed amendment: Ayes 1; Noes 9; Abstentions 0.

Ayes: Mr Attwood.

Noes: Ms Anderson, Mr Elliott, Mr Kennedy, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Agreed: That the proposal falls.

Question: That the Committee is content with the clause as drafted.

The Committee divided: Ayes 7; Noes 2; Abstentions 1.

Ayes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Noes: Mr Attwood, Mr Elliott.

Abstentions: Mr Kennedy.

Agreed: That the Committee is content with the clause as drafted.

Long Title

Question: That the Committee is content with the Long Title as drafted.

The Committee divided: Ayes 7; Noes 2; Abstentions 1.

Ayes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Noes: Mr Attwood, Mr Elliott.

Abstentions: Mr Kennedy.

Agreed: That the Committee is content with the clause as drafted.

3.48 p.m. The Chairperson adjourned the meeting.

[EXTRACT]

Wednesday 21 October 2009
Room 30, Parliament Buildings

Present: Mr Danny Kennedy (Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mt Barry McElduff
Mr Francie Molloy
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

The meeting opened at 2.04 p.m. in public session.

2. Department of Justice Bill

Members considered the draft Report on the Department of Justice Bill.

Agreed: Members read and agreed paragraphs 1 to 10 without objection.

Agreed: Members read and agreed paragraphs 11-12 without objection.

Agreed: Members read and agreed paragraphs 13-18 without objection.

2.14 p.m. Mr Kennedy joined the meeting.

Paragraph 19 was read and the Committee divided: Ayes 6; Noes 1; Abstentions 2.

Ayes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Robinson, Mr Shannon, Mr Spratt.

Noes: Mr Attwood.

Abstentions: Mr Elliott, Mr Kennedy.

Agreed: Paragraph 19 read and agreed.

Agreed: Members read and agreed paragraphs 20-21 without objection.

Paragraph 22 was read and the Committee divided: Ayes 6; Noes 1; Abstentions 2.

Ayes: Ms Anderson, Mr McElduff, Mr Molloy, Mr Robinson, Mr Shannon, Mr Spratt.

Noes: Mr Attwood.

Abstentions: Mr Elliott, Mr Kennedy.

Agreed: Paragraph 19 read and agreed.

Agreed: Members read and agreed paragraphs 23-24 without objection.

2.17 p.m. Mr Kennedy took the Chair.

Agreed: Members agreed to include the appendices in the report:

Agreed: Members agreed to order the report to be printed.

Agreed: Members agreed that an extract from the Minutes of Proceedings of today’s meeting should be included in Appendix 1 of the report and are content that the Chairperson agrees the minutes to allow the extract to be included in the printed report.

5.05 p.m. The Chairperson adjourned the meeting.

[EXTRACT]

Appendix 2

Minutes of Evidence

9 September 2009

Members present for all or part of the proceedings:
Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Ian McCrea
Mr Barry McElduff
Mr Stephen Moutray
Mr Jim Shannon
Mr Jimmy Spratt

Witnesses:

Mr Tony Canavan
Mr Geoffrey Simpson

Office of the First Minister and deputy First Minister

1. The Chairperson (Mr Kennedy): The Committee will now receive a briefing from departmental officials Tony Canavan and Geoffrey Simpson on the forthcoming Department of Justice Bill. Included in members’ papers are the Clerk’s brief and a copy of a letter from the First Minister and deputy First Minister, to which is appended the draft Bill and its explanatory and financial memorandum. Also included in members’ papers are copies of the Northern Ireland Act 2009 and the Northern Ireland Act 1998 (Ministerial Offices) Order 2009.

2. I welcome Tony and Geoffrey. Good afternoon. You are here to give the Committee a presentation on the draft Department of Justice Bill, which will be recorded by Hansard for future reference.

3. I invite you to make an opening statement, and I will then allow members to ask questions. Thank you very much for your attendance.

4. Mr Tony Canavan (Office of the First Minister and deputy First Minister): The devolution of policing and justice powers to Northern Ireland has been a long-standing UK Government policy objective. That is referred to in the Belfast Agreement of 1998, and policing and justice powers were listed as reserved matters in schedule 3 of the Northern Ireland Act 1998, which were not devolved at that time.

5. Subsequently, extensive Westminster legislation has been enacted, but not activated, that envisaged future devolution of policing and justice powers, one of the strongest examples of which is the Justice (Northern Ireland) Act 2002. Furthermore, the 2006 St Andrews Agreement envisaged the Assembly requesting devolution of policing and justice powers by May 2008, and the Northern Ireland (St Andrews Agreement) Act 2006 placed a statutory duty on the Assembly to report on the devolution of policing and justice powers by March 2008. The Assembly and Executive Review Committee (AERC) was tasked with preparing that report, and it found that there was no consensus for proceeding to devolution at that time. However, that Committee did agree on most of the areas that should eventually be devolved, and on many of the associated organisational issues, following extensive consultation with a range of stakeholders.

6. In the autumn of 2008, the Assembly gave the AERC a fresh mandate to review and progress its work and, in November 2008, the First Minister and the deputy First Minister set out a 37-step process to implement devolution without undue delay and — [Inaudible due to mobile phone interference.]

7. In January 2009, the AERC produced its first modalities report, which was debated by the Assembly and was endorsed.

8. The Bill has now been forwarded to the Committee by the First Minister and the deputy First Minister. The key recommendations of the AERC’s January 2009 report that are relevant to the Bill are: recommendations 1 and 2, which advocate that there should be a single Department to be known as the Department of justice, in addition to the other existing Departments in the Executive; recommendation 9, which referred to interim arrangements being entered into only until May 2012; and recommendation 10, which deals with the appointment of the Minister of justice and states that the appointment of the new Minister would:

“require a majority of Assembly Members voting…a majority of designated nationalists and a majority of designated unionists."

9. Earlier this year, Westminster legislation was enacted to facilitate those recommendations. That amended the Northern Ireland Act 1998, and, by an Order, increased the maximum number of permitted Executive Departments to accommodate the future Department of justice. In July 2009, the Executive agreed to introduce a Bill following the summer recess that would lay the groundwork for a future Department of justice. That is the Bill that the Committee now has before it.

10. It is quite a short Bill, and has only three clauses: the first establishes a Department of justice; the second sets out a process for the appointment of the Minister of justice within the context of the Westminster legislation that was enacted earlier this year; and the third clause requires that the operative provisions of the legislation would come into effect only after a commencement Order was made by the First Minister and the deputy First Minister.

11. In addition, and linked to the first clause, one schedule is included in the Bill, which tidies up existing legislative provision to accord with the name of the new Department. That is because there are several pieces of existing legislation, including the Northern Ireland Act 1998, which refer to a future justice Department. When the new Bill is enacted, those references will change to read “Department of Justice".

12. The important point that I wish to emphasise — and the Committee will see this point repeated in the explanatory and financial memorandum of the Bill — is that this Bill, in itself, does not give effect to devolution of policing and justice powers. Rather, it makes some essential statutory preparations in advance of a future decision by the Assembly to request the devolution of policing and justice powers, and an Order by the Secretary of State for Northern Ireland to transfer those powers. The effect of the Bill, and the reason for bringing it before the Assembly now, is that it would make the lead-in process before the transfer as straightforward and as short as possible.

13. The Chairperson: Thank you very much. I am a member of the AERC and I think that it might be sensible to declare an interest.

14. Mr Spratt: I declare an interest as the Chairperson of the AERC.

15. The Chairperson: Is an enabling power being sought?

16. Mr Canavan: It is an enabling power in the sense that the Bill provides for the framework that would create a Department of justice, but it would create it after a commencement Order was made by the First Minister and the deputy First Minister. It is an essential step in the process, which lays the foundation for a future decision to devolve policing and justice powers.

17. The Chairperson: What would be the usual timescale for a measure of that nature?

18. Mr Canavan: With regard to the passage of the Bill?

19. The Chairperson: Yes.

20. Mr Canavan: The point at which it would be brought forward will be a matter for the Assembly and for the Ministers.

21. The Chairperson: How would the process be disrupted if the enabling power were not granted?

22. Mr Canavan: It would disrupt the process in the sense that at the point when the Assembly decided to ask the Secretary of State to devolve policing and justice powers, a period of time would need to be factored in to allow for the passage of the legislation by the Assembly. The legislation must be enacted at some point in the process. The value of enacting it at this stage and bringing it to the Assembly after the recess is that it shortens the eventual timescale between the point at which the Assembly requests the devolution of justice and devolution day.

23. The Chairperson: Therefore, the timescale is a factor. There is an expectation — perhaps no more than that — that at some point in the future a request will be made to devolve policing and justice.

24. Mr Canavan: That was the gist of the AERC’s report and the process paper prepared by the First Minister and the deputy First Minister, which gained the endorsement of the Assembly in January.

25. Mr Shannon: Is the finance necessary already there to ensure that the devolution of power takes place, and is that finance set aside to ensure that the new power — if and when it comes — could be delivered in its totality? We are very much aware of the current financial restrictions — certainly from central Government and the Assembly. I want to make sure that the finance is in place. Are you aware of whether that is the case?

26. Mr Canavan: I am aware that a number of strands of work are proceeding, including work by the Assembly and Executive Review Committee, and finance will be an aspect of its second report, to be prepared later this year. The AERC has been engaged in direct discussions with a number of bodies that have spending responsibilities on the policing and justice side. In addition, there have been contacts between the First Minister and the deputy First Minister, and senior Whitehall Ministers. There have also been a number of contacts and meetings between officials in the Treasury and significant Whitehall Departments. As for the outcome of those meetings, I do not think that they have yet reached the position where the finance has been finalised — and I understand that the First Minister said words to that effect recently. However, that is not something that, in itself, would necessarily delay the clearing of the ground by enacting a Bill that would facilitate the creation of a Department of justice.

27. Mr Shannon: Even if we are only dealing with the concrete foundations, there are financial obligations. I know that you cannot answer the question. However, I am conscious of the fact that there is a financial commitment, and I want to be sure that there is delivery on that.

28. Mr Elliott: Paragraph 3 of the explanatory and financial memorandum refers to the Assembly and Executive Review Committee. Perhaps some of those Committee members may be able to answer my question better than you. However, that paragraph states:

“The report identifies further issues requiring detailed consideration, and these will be addressed in a second report of the Committee later in 2009."

29. What impact will that have on any legislation?

30. Mr Canavan: Committee members can correct me if I am wrong, but the AERC distinguished between a number of issues that it was considering. One of the first was a modalities set, which was reported on in January 2009. The modalities include the organisation of the Department, the appointment of the Minister, and so on. The AERC deliberately separated modalities issues from non-modalities issues, such as finance, which do not have an impact on this type of legislation. Those are being taken forward separately, and non-modalities issues should not affect the content of the Bill.

31. Mr Elliott: Finance may not have a direct effect, but it could have an indirect effect.

32. Mr Canavan: At some point in the process, the Department of Finance and Personnel (DFP) will need to bring forward a budget bill to cover finance in the Assembly. You will have an opportunity to address financial issues at that point.

33. The Chairperson: Some mobile phones have been left on and are interfering with the audio transmission of the Committee proceedings. I advise members that all mobile phones should be switched off rather than merely put on silent mode. Do you have anything further to add, Mr Elliott?

34. Mr Elliott: For clarity, I was trying to make the point that finance has an impact on any issue. That is why I would be slightly concerned about the draft Bill coming forward without the second report being in place.

35. Mr Attwood: I have three questions. I should know the answer to my first question, but I cannot recall the nominating procedure of the draft Bill. Did the Assembly and Executive Review Committee recommend that anyone can nominate anyone?

36. Mr Canavan: Yes.

37. Mr Attwood: I am merely seeking clarification that the procedure is nomination by one or more Members of the Assembly — that was in the review report. I cannot recall that particular matter, so I am prepared to accept your word.

38. The Chairperson: He cannot remember either. [Laughter.]

39. Mr Canavan: Recommendation 9 states that any Member who is elected will require the support of a majority of Assembly Members.

40. Mr Attwood: That is not the nomination process.

41. Mr Canavan: No.

42. Mr Attwood: What has the Assembly and Executive Review Committee said about the nomination process?

43. Mr Canavan: I may have to get back to you on that. That is linked to the Westminster legislation at the turn of the year, which sets that out as one of the options for the appointment of the Minister.

44. Mr Attwood: I cannot recall whether the Assembly and Executive Review Committee actually made a recommendation that nominations should be in the power of one or more Assembly Members. That may have been the case, but I cannot recall. Am I correct that that nominating procedure is different from the nominating procedure for any other Minister that is elected to the Assembly?

45. Mr Canavan: It is different from the d’Hondt procedure of the 1998 Northern Ireland Act.

46. Mr Attwood: The St Andrews legislation amended that for the First Minister and deputy First Minister, but that procedure is different for the nomination of any other Minister.

47. Mr Canavan: Yes; that is correct.

48. Mr Attwood: You can come back to us on whether the Assembly and Executive Review Committee made that recommendation. Why does the legislation not make provision for how a Minister is removed? It makes provision for how a person is approved to become Minister. Why does it not make provision for how somebody should be removed or replaced? Should that not be explicit in the legislation?

49. Mr Canavan: I could come back to you after I have spoken to the draftsman about that.

50. Mr Attwood: The letter from the First Minister and deputy First Minister states that they rely upon the Assembly and Executive Review Committee’s report in respect of procedures for appointing, removing and replacing the justice Minister. However, the legislation reflects only the process for appointment. Is there legal certainty about whether that legislation governs removal or replacement? Given that that is a unique nomination process, surely there should be unique removal and replacing processes. However, the legislation is silent on that. Can you explain that?

51. Mr Canavan: I will come back to you after I have discussed that with the draftsman.

52. Mr Attwood: You are here from the Office of the First Minister and deputy First Minister to explain a piece of legislation that is three clauses long. I have asked you a question about the removal and replacement of Ministers — in respect of which the legislation is silent. Given all of the theatrics and the sensitivity around those issues, surely there is a straightforward answer to my question.

53. The Chairperson: Mr Canavan has indicated that he will seek to respond further after taking advice. That is the situation in which we find ourselves. We are not going to get that answer today. However, upon further advice, Mr Canavan will report back directly to this Committee.

54. Mr Canavan: OK.

55. Mr Attwood: There may well be a simple answer to that question, Chairperson. I do not know.

56. What is the default position after May 2012 arising from British legislation earlier this year and this draft Bill, if it is approved by the Assembly, in respect of a justice Minister?

57. Mr Canavan: The justice Department will be dissolved on 1 May 2012, unless the Assembly has either extended the process that has been set up or has produced a second or new form for the appointment of a justice Minister.

58. Mr Attwood: So your understanding is that, in May 2012, if there is devolution of justice before that date, unless there is agreement about another method going forward, there will be no justice Department?

59. Mr Canavan: The justice Department would be dissolved; yes.

60. Mr Attwood: Is that your understanding?

61. Mr Canavan: Yes. That is in the Westminster legislation.

62. Mr Attwood: So here we are, 18 months or so from that date, and we may only have a justice Department for 18 months, as you understand it?

63. Mr Canavan: It is more than 18 months. It is two and a half years.

64. Mr Attwood: I have a final question. Are you saying that there is no default position in the legislation that was passed by the House of Commons earlier this year in respect of the nomination of a justice Minister at that time?

65. Mr Canavan: The only statement is that the justice Department would be dissolved at that point.

66. Mr Attwood: So where does responsibility for justice go at that point, as you understand it?

67. Mr Canavan: The assumption is that the Assembly will, by that stage, have agreed the process for after 2012.

68. Mr Attwood: Parliamentary draftsmen do not draft legislation on the basis of hoping that something may happen by 2012. They have to draft on the basis of legal certainty. What is the position after 2012 in the event that there is no agreement by then, given that you say that the Department is dissolved at that date? The British Parliament will have devolved powers to the North, but there will not be a Department in existence. Do you think that a Westminster Parliament would legislate in that way?

69. Mr Canavan: The responsibility for legislation would rest with the Assembly.

70. Mr Attwood: What would happen in the absence of the Assembly so legislating?

71. The Chairperson: I am not sure how successful it is to speculate about a situation that has not yet arisen. However, I know the point that you are making. We are being told clearly that there is no — to use your words — “default mechanism".

72. Mr Attwood: I ask OFMDFM to check again whether, in fact, a default position is buried in schedules to the legislation that was passed by Westminster earlier in 2009. I am subject to correction. I believe that if you search, you may find that the legislation contains a default position. Westminster does not legislate for a vacuum. Westminster, or indeed any legislature, must legislate for legal certainty, not for a vacuum. In my view, a default position exists. I will, however, await your answers.

73. Mrs Long: Chairman, in respect of Mr Attwood’s question about the removal of Ministers, and so on, I understand that that was dealt with in Westminster legislation, which is, perhaps, why it is not replicated here. We should be able to get clarity on that. I believe that the removal of Ministers is to be resolved by a vote in the Assembly. That can certainly be checked. That is my understanding.

74. Mr Spratt: On Mr Attwood’s point about the Department and the 2012 deadline, surely, Chairman, you answered that question earlier: if the Department is not set up, it will be because the First Minister and deputy First Minister have not called for it to be set up. Basically, the Bill is simply enabling legislation that mirrors legislation that has already been agreed and passed by another Parliament. It does not, however, mirror each and every aspect of the legislation that has passed through Westminster. Is that not correct?

75. Mr Canavan: It is part of the legislative framework.

76. Mr Spratt: It is part of the framework. The other legislation is much longer, is it not?

77. Mr Canavan: It is longer. The other legislation includes a range of options in respect of the process for appointing a Minister.

78. Mr Spratt: I am just trying to get my head around the 2012 deadline, which would apply if the First Minister and the deputy First Minister had called for the devolution of policing and justice. It is only to enable that to take place; is that not correct?

79. Mr Canavan: Yes. That legislation could come into effect only after there had been a call for the transfer of powers.

80. Mr Spratt: If the transfer were not called for by 2012, the suggestion is almost as though that would create some kind of vacuum. No justice Department would exist. However, the legislation must contain a mechanism to allow Government to take over those responsibilities. A vacuum would not be allowed to happen. Surely, legislation that could create any sort of vacuum would not be allowed to proceed through Westminster.

81. Mr Canavan: That is the point that Mr Attwood was making.

82. Mr Spratt: My understanding was that all of that was covered.

83. The Chairperson: The witnesses will seek clarification on that matter and report back to the Committee.

84. Mr Elliott: How will the Bill proceed?

85. The Chairperson: Its First Stage is expected on Monday 14 September 2009. Its Second Stage is expected on 22 September 2009. I suppose that that now begs the question as to whether the Committee is content for the Bill to proceed, given the lack of clarity on it.

86. Mr Attwood: I am certainly prepared to let it proceed, although I want clarification and answers. I believe that Naomi may have answered one issue. Certainly, the Bill should proceed.

87. The Chairperson: The Business Committee has already scheduled its First Stage for Monday 14 September, with its Second Stage on Tuesday 22 September. Therefore, the Bill’s Committee Stage would commence on Wednesday 23 September. The Committee has 30 working days to take and consider evidence and to report its opinion to the Assembly. That is the framework and timescale under which the Bill seeks to operate.

88. Mr Elliott: OK. I am just considering the practicalities. The consultation period of 30 days during Committee Stage is quite short. There is no pre-consultation.

89. The Chairperson: It is 30 working days. We will discuss how best to proceed with that.

90. Mr Elliott: Am I correct to say that there has been no pre-consultation?

91. The Chairperson: I am not aware of any pre-consultation. Are there any further questions for Mr Simpson and Mr Canavan? Gentlemen, can you come back to us with your reflections as quickly as possible?

92. Mr Canavan: Yes.

93. The Chairperson: Thank you very much indeed for your attendance.

94. The Committee must now consider how we wish to take evidence on the Bill and whether we expect to report back to the Assembly within the 30 working days or wish to table a motion to extend the Committee Stage. Please bear in mind that two Committee visits are planned, and that the Halloween recess falls during that time. Therefore, if we do not extend the Committee Stage, there would be only three meetings in which to deal with the Bill. We have to decide whether or not to extend the Committee Stage.

95. Ms Anderson: Can you remind us what the two Committee visits are?

96. The Chairperson: They are a visit to the holding centre at Dungavel on 4 November and a proposed visit to Washington from 11 to 16 October.

97. Ms Anderson: Has the proposed visit been discussed? Did I miss that?

98. The Committee Clerk: It will be discussed today under any other business.

99. The Chairperson: It was agreed in principle in April, but the bones of it have now to be discussed.

100. Mr Spratt: Is Dungavel the Scottish visit?

101. The Chairperson: Yes — the holding centre.

102. The Committee Clerk: The Committee agreed to go on 4 November.

103. The Chairperson: An extension until 11 December, which is the Christmas recess, would give five routine weekly meetings, without the need for additional ones. How do members wish to proceed?

104. Mr Elliott: In the light of some of the queries, I am not content with what I heard. Mr Attwood further reinforced that. I am not content with the Bill proceeding at all until we see the second report of the Assembly and Executive Review Committee. I propose that we ask OFMDFM to hold the legislation until that second report comes forward.

105. The Committee Clerk: The Business Committee met yesterday with all the Whips, and it agreed that the Bill would have its First Stage next Monday. That has been agreed already, and it will be on the Order Papers that are issued tomorrow.

106. Mr Elliott: Whatever others may have agreed, I want to put my tuppence worth in.

107. Ms Anderson: Did your representative air that view yesterday at the Business Committee?

108. Mr Elliott: I do not know what went on at the Business Committee, but there is nothing to say that there was not agreement —

109. The Chairperson: Order. Please conduct business through the Chair.

110. Mrs Long: In relation to the information that people are seeking, the difficulty is that we are reading this enabling Bill without the background of the detailed legislation from Westminster. We have had this debate before. It happened with the Commissions for Victims and Survivors Bill and some other bits of legislation: if you do not read the two in parallel, you end up with gaps. It might be helpful in that context if members were reissued with the Westminster Bill so that they can read the two together. That may answer the questions without further clarification having to be sought.

111. For example, the Westminster Bill contained a suite of options for the nomination and election procedures for putting somebody into position, but taking somebody out of position was a settled matter in the Westminster legislation. This enabling legislation deals with putting someone into office because that was not clearly defined. The Westminster legislation laid down three or four possible options.

112. I cannot see any difficulty with going to First Stage even if there are questions, because those questions can be answered and addressed during the Committee Stage of the Bill.

113. The Chairperson: There is the issue of whether you wish to extend the Committee Stage because of the business of this Committee. Furthermore, Mr Elliott has indicated that he does not want the draft Bill to progress until the publication of the Assembly and Executive Review Committee’s second report. Do you wish to make a proposal, Mr Elliott?

114. Mr Elliott: I propose that we ask OFMDFM not to proceed with the draft Bill until the publication of the Assembly and Executive Review Committee’s second report.

115. Mr Spratt: The work of the Assembly and Executive Review Committee is ongoing. There will be a report — you sit on that Committee as well, Chairperson. The process is ongoing, but those two matters are unrelated. As Mrs Long said, the legislation has already gone through Westminster, and it is only a mirror piece of legislation that we need to read. If there are any questions about the legislation, they should be answered on the Floor of the House. It is my understanding that the draft Bill has been discussed by the Business Committee, which agreed that it should be presented to the House. It seems a bit crazy, from our perspective, that when our representatives on the Business Committee agreed that the draft Bill should be introduced to the House, we should try to stall it. Anything that needs to be said can be said in the Chamber from next Monday on.

116. Ms Anderson: I concur with Mr Spratt. I would like clarification on why we would consider an extension to the 30-day period so that we can get a sense of the work that we would have to cover in that time frame.

117. The Chairperson: It is part of our remit to consider the draft Bill in detail, to advertise for representations to be made and to take evidence in relation to it. We have to factor that work into our scrutiny of the Bill.

118. The Committee Clerk: Normally, we would issue a public notice in the newspapers. It takes up to a week between agreeing to a public notice and having it published. Once that happens, it is normal to allow a minimum of two weeks for people to respond. The Committee has to consider those responses and decide whether we want to call individual witnesses or representatives of organisations to give oral evidence. That takes time, and it is not possible to do it in 30 days, unless we tighten up the process.

119. We are not supposed to issue a public notice until after the Committee Stage has begun, which is scheduled for 23 September. I have sought advice and gained agreement that we can issue the public notice next week, if need be, once the Bill has been introduced, in order to quicken the process. Another way to speed up the process is to reduce the time allowed for people or organisations to respond. We could give them one week in which to respond, which is a tight time frame, but it is difficult to get any Bill dealt with in 30 days, especially if we have only scheduled three meetings.

120. Mr Attwood: The Assembly and Executive Review Committee’s second report will be important, because it touches on finances and other substantial matters. The sooner that that report is published and presented to the Assembly the better, whether people agree to its contents or not. However, it is a separate matter from the first report, in respect of which the draft legislation gives expression to two matters only: nomination and approval of a Minister. One can differentiate the two matters, and consequently, we should not wait for the Assembly and Executive Review Committee to publish its second report. I am sure that Jimmy Spratt concurs with that view. The Assembly and Executive Review Committee does not necessarily proceed in great haste, although we do so with due diligence.

121. Mr Spratt: In criticising me, Mr Attwood is also criticising himself.

122. Mr Attwood: Indeed. We should proceed with the consultation and our consideration, but we should do it in a tighter time frame. We should publish the public notice within the week and go for the shortest consultation period for responses. It is appropriate to act in that way, given that there is already a high level of public awareness of the issues. It is not as though we are advertising to a political community and a wider community that does not know what is going on. The nature and profile of the issue allow us to have an accelerated consultation. I propose that the Committee adopt the terms that were outlined by the Committee Clerk.

123. The Chairperson: Mr Elliott, you propose that the Committee does not proceed with any consideration until the publication of the second report. Is that right?

124. Mr Elliott: Yes.

125. The Chairperson: I will second that proposal. I put Mr Elliott’s proposal to the Committee.

Question put.

The Committee divided: Ayes 2; Noes 8.

AYES

Mr Elliott, Mr Kennedy.

NOES

Ms Anderson, Mr Attwood, Mrs Long, Mr I McCrea, Mr McElduff, Mr Moutray, Mr Shannon, Mr Spratt.

126. The Chairperson: The proposal falls.

127. Mr Attwood proposed that we proceed with the accelerated consideration of the Bill; to do everything within 30 working days following a public notice next week.

128. Mrs Long: We said that there will only be three Committee sessions during that period. However, we have not agreed the date of the proposed trip to Washington. If that does not go ahead, we could have an extra meeting within the 30-day period. If we want to, is it possible to schedule an extra Committee meeting to take evidence? There is no point in agreeing to a period of 30 days if it is not a realistic prospect to be able to do the job properly. This is a significant piece of legislation and a significant change, albeit one which will not be enabled immediately.

129. Do we need to look at what other options are available to ensure that it can be done properly within the 30 days? I would be uncomfortable in cutting back the time that the public has to respond. This is the public’s first opportunity to have an input, and I think that it is important that they get that chance. Assuming that we allow two weeks for public responses, can we still do it within 30 days? We must bear in mind what was said about putting the advertisement in early and those other issues, and, potentially, we must look again at our schedule for the autumn. I want some guidance on how practical the timetable is.

130. The Committee Clerk: I have agreement that I can issue the public notice early. Normally, that is done at the commencement of Committee Stage; however, I have permission for the Committee to do that next week. I cannot do that until after the Bill is introduced on Monday, and, if I do it then, it will take the press office up to four or five days to get it in the newspapers. Therefore, it might not be in the paper until Friday 18 September. After that, if there are two weeks for public response, the closing date would be 2 October. If the Committee were to deal with that at its next meeting, Wednesday 7 October, it will already have lost one meeting. Of the three meetings that I am talking about, the first is on 30 September. If the Committee goes to America, there will be only two meetings, on 7 October and 21 October. The closing date for the 30 days is 10 November. On 4 November, which is the first meeting after the Halloween recess, we have arranged a visit to Dungavel. That meeting could be cancelled and that would allow an extra meeting.

131. Ms Anderson: I do not intend to go to Washington. If that proposed visit does not go ahead, does that give us enough time to cover it?

132. The Committee Clerk: If both visits were cancelled, that would allow four meetings at which to consider the Bill, after the First Stage and two weeks’ notice for submissions.

133. Mrs Long: That would include the hearing of evidence and the drafting of any report from the Committee.

134. The Committee Clerk: We may have to put in long hours. If the closing date is 2 October, we will have the submissions for Wednesday 7 October. From those submissions, the Committee could then decide who to call for evidence. However, that does not give people much time to give evidence. They either have to come and give oral evidence with only a week’s notice, or they have to come on 4 November, by which stage there is no time to write the report and agree it before the closing date.

135. However, you do not have to agree to extend or not extend at this time. A motion to extend can take place right up until just before 10 November, as long as the Business Committee agrees for that to go on the Order Paper. We would need to decide some time in the middle of the 30-day period. We do not need to decide that today.

136. Mrs Long: We can proceed today on the basis that the advertisement goes out on Monday, to go into the papers on Friday. We can then make our other decisions with regard to what days we have available in Committee. When we receive the responses, we can make a decision as to how much time it will take us to deal with them. That seems to me a better time than now to make that decision. For example, if there are a very small number of responses, it may be a very short Committee Stage.

137. The Chairperson: It is worth pointing out and reflecting on the fact that, in the past, accelerated passage has caused controversy in the Committee — objections were raised. We seem to be imposing accelerated consideration of the Bill on ourselves. The Committee is not being asked to do that; it is being done voluntarily. Are members in favour of that?

138. Mrs Long: I favour the Committee issuing a call for responses and, in light of those responses, making a decision on how quickly it can deal with the Bill. It is difficult to make a decision at this stage because if three or four responses are received, the Committee must review them, have a discussion and reach a decision. If there are 50 or 60 responses, a potentially different timescale is required to gather evidence and properly consider all those responses. Now is probably not the right time to decide on the timescale.

139. Once we have received those public responses we should decide on how quickly we can do the work. I do not favour unreasonably prolonging that work, nor do I support making it a rush job. I want it done properly, with proper consideration. If we can do that quickly, all the better; that is efficient. If we cannot, we must take a bit more time.

140. The Chairperson: Is that a proposal?

141. Mrs Long: Yes.

142. The Chairperson: Will a member second that proposal?

143. Mr Elliott: For clarification, how long will there be between the notice appearing in the newspaper and the deadline for responses? What is that timescale?

144. The Chairperson: Will the Committee allow one week or two?

145. The Committee Clerk: Two weeks. In summary, the Bill will be introduced to the Assembly at First Stage on Monday next: 14 September. The press office should be able to get the notice in the newspapers by Friday 18 September. A closing date for responses two weeks later will mean that the Committee receives them by close of play on 2 October. Members’ packs may have to be sent out later than usual. If the deadline is 5.00 pm, we may send packs out electronically on Monday rather than Friday, having made sure that we had received all the responses. Members would then have all of the submissions for the Committee meeting on 7 October.

146. The Chairperson: What will happen at that point?

147. The Committee Clerk: Members then consider the submissions and reach a decision.

148. The Chairperson: Will there still be the facility to extend the timescale?

149. The Committee Clerk: Yes.

150. Mr Elliott: How long does that facility extend?

151. The Committee Clerk: It runs until the Committee agrees to and signs off on a motion at a Committee meeting. That motion must be signed by the Chairperson, then passed to the Business Committee for inclusion on an Order Paper.

152. Mr Spratt: That can be done quickly enough.

153. The Committee Clerk: I am sure that it can be done in time for the following week.

154. Mr Elliott: Is there no time limit on that?

155. The Committee Clerk: The time limit is 30 days. We have until 10 November, but I advise making any request for extension at least a couple of weeks before that because of the process of getting the motion agreed and signed by the Committee, then passed to the Business Committee.

156. Mr Spratt: I second Mrs Long’s proposal.

157. The Chairperson: Is there some flexibility within that timescale to allow reasonable time to do that, if necessary?

158. The Committee Clerk: Yes, from 7 October there is still some flexibility.

159. Mr Attwood: That more accurately reflects what I was thinking.

160. The Committee Clerk: Therefore, the proposal is that the public notice, provided that the press office can do it, will issue next week and will, hopefully, be in the newspapers by Friday 18 September, with a two-week closing date for the receipt of submissions. Therefore, the submissions have to be received by 5.00 pm on Friday 2 October, and then the Committee will consider those submissions on Wednesday 7 October.

Question put and agreed to.

161. The Chairperson: Does any member wish to indicate an abstention?

162. Mr Elliott: I abstain.

163. The Chairperson: I abstain.

164. The Committee Clerk: Members must now decide whether they agree the draft public notice contained in their papers.

165. The Chairperson: That is the advertisement on behalf of the Committee. The dates will be inserted. Are members content with that?

Members indicated assent.

7 October 2009

Members present for all or part of the proceedings:
Mr Danny Kennedy (Chairperson)
Mrs Naomi Long (Deputy Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Francie Molloy
Mr Stephen Moutray
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

166. The Chairperson (Mr Kennedy): We move to our consideration of the Department of Justice Bill. The meeting is being recorded by Hansard, so do not be tempted to switch on your mobile phones. On 9 September 2009, the Committee agreed to give public notice in newspapers, requesting written submissions on the Department of Justice Bill. The Committee will consider those submissions today. I welcome Eilis Haughey from the Bill Office, who is present to assist us. The only response came from the Assembly and Executive Review Committee, which is chaired by Mr Spratt, who is also a member of this Committee.

167. We shall commence our consideration of the Bill, affording members an opportunity to air concerns and to explore recommendations for amendments, short of taking a formal position on the clauses. Today’s discussion will pave the way for formal clause-by-clause consideration next week, when we will formally record the Committee’s position on each clause, schedule and the long title. The Committee must also consider whether to seek an extension to the Committee Stage of the Bill.

168. The timescale is as follows: next week, the Committee will complete its clause-by-clause consideration, and it will consider submitting its report by 21 October. The closing date for responses is 10 November.

169. Do Committee members have any comments on a possible extension of the Bill’s Committee Stage?

170. Ms Anderson: Does the Committee Clerk think that we need one? From the time frame that you outlined, it does not seem that an extension is required.

171. The Chairperson: During the lengthy debate on the Bill’s Second Stage, the First Minister said that he was willing to attend the Committee with the deputy First Minister to discuss any issues that members have. Committee members may want to include questions on financial issues at that meeting. If that meeting was planned, diary commitments could lead to an extension of the Committee Stage. However, that is a decision for the Committee.

172. There is a crossover between the work of this Committee on the Bill and that of the Assembly and Executive Review Committee. However, we are technically scrutinising the Bill.

173. Mrs Long: Having the First Minister and the deputy First Minister at the Committee to brief us on the finances involved in the devolution of policing and justice is always welcome, and I would have no objection to such a meeting. However, such a meeting is not critical to the discharging of our functions on the Bill.

174. There is a separate issue, because the Bill is preparing the way for a Department of justice but not creating one. We deferred our decision on a request for an extension of the Committee Stage, because if there were many public submissions, we wanted to ensure that we would have time to go through them properly. However, there have been none, which shows how important the Bill is beyond the walls of this place. Therefore we do not need an extension.

175. It would do no harm to schedule a briefing on the finances with the First Minister and the deputy First Minister, but that should not preclude our beginning clause-by-clause consideration. No doubt, the issues will be aired again fully in the Chamber when the Bill reaches its next Stage.

176. Ms Anderson: I concur with the Deputy Chairperson. A possible extension of Committee Stage was based on the expected volume of responses. Since we have not received a large volume of responses, it is not critical to our work that the First Minister and the deputy First Minister come to the Committee. Of course, we will welcome their attendance at some stage, but we should not delay the Bill’s passage.

177. Mr Spratt: I too agree with the Deputy Chairperson. As you will know, the Assembly and Executive Review Committee has already requested the attendance of the First Minister and the deputy First Minister at one of its meetings. You will also be aware that any discussion at that meeting will be in closed session, and I imagine that the discussion of financial matters at this Committee will be no different.

178. All the work on financial matters by the Assembly and Executive Review Committee has been done in closed session with the specialist advisor. I would expect the same to happen in this Committee, as doing otherwise would make nonsense of our work. Any meeting of the Assembly and Executive Review Committee remains open to all the parties. That remains the position on any matter to do with the devolution of policing and justice.

179. Mr Shannon: The Assembly and Executive Review Committee has all-party involvement. We are looking at the skeletal framework of the process rather than at the financial issues.

180. As other members said, there has not been a massive public response, because people are more concerned about the economy and education. You know that and I know that. Therefore, rather than prolong the process, we need to move it along.

181. Mr Attwood: I concur with those views. The First Minister and the deputy First Minister should be invited to attend the Committee. However, you may want to give them notice now, because, as Mr Spratt may or may not confirm, they take a little bit of time to respond to an invitation.

182. Mr Spratt: I could not possibly comment.

183. Mr Attwood: It is relevant that we enquire of the First Minister and the deputy First Minister details of the process leading up to how clause 2 might work out in practice. It is one thing to vote on clause 2, as approved — as I presume it will be — on the Floor of the House when someone is nominated for the position of Minister of justice. It is not about how we get to that point or how any future Minister will be identified as being suitable, for instance. Beyond the financial matters, which should be brought to the attention of the Committee, there are other matters on which OFMDFM’s advice to the Committee would be useful. For instance, it would be useful to know OFMDFM’s thoughts on those issues and details on its process.

184. The Chairperson: Are members content that we do not seek an extension to the Committee Stage of the Bill?

Members indicated assent.

185. The Chairperson: Should we issue an invitation to the First Minister and the deputy First Minister?

186. Mr Spratt: It is a bit premature.

187. Ms Anderson: That should be requested, but it has nothing to do with whether the Bill’s Committee Stage is extended.

188. The Chairperson: It has nothing to do with the extension.

189. Ms Anderson: When we make that request, we should acknowledge that the First Minister and the deputy First Minister have been before the Committee on two or three occasions, which is more often than the First Minister and the deputy First Minister of the previous Executive attended meetings of the former Committee of the Centre. We should acknowledge that our Committee has never experienced undue delay when it made such requests. We would appreciate their attendance within the time frame of the schedule.

190. The Chairperson: I will leave that stone unturned. Are members content that we invite the First Minister and the deputy First Minister, as necessary?

Members indicated assent.

191. The Chairperson: Do members have any comments?

192. Mr Spratt: Any discussion of the financial package should be in closed session.

193. Mr Shannon: The First Minister and the deputy First Minister have said that they are happy to attend when the financial package is in place. Let us leave it until that is done rather than be premature.

194. The Chairperson: Are members content that we invite the First Minister and the deputy First Minister to attend a meeting in closed session if a financial package is agreed?

Members indicated assent.

195. The Chairperson: Next week, the Committee will complete its clause-by-clause scrutiny, and we will consider the Bill report.

196. The Clerk of Bills: This is a good opportunity to consider possible recommendations for amendments.

197. The Chairperson: Do members want to raise issues or suggest amendments?

198. Mr Attwood: I have three or four queries. The Bill has to be read in conjunction with the primary legislation from Westminster. My first query stems from a previous matter and from the letter from the departmental liaison officer to the Committee on 21 September and relates to what will happen if new legislation is not in place by 2012. Our view on what will happen in 2012, in the absence of new legislation, differs from the advice of OFMDFM.

199. I remind members of the OFMDFM letter of 21 September, which states that there is no default position if, prior to 1 May 2012, the Assembly has not provided for the continued operation of the Department of justice. OFMDFM seems to be definitive that the Department of justice would dissolve on that date and that there is no default position in such a circumstance. However, we differ for two reasons. It is not the practice of a legislature, least of all Westminster, to legislate for a vacuum.

200. The Chairperson: I understand that you may have a different view. However, at today’s meeting, we are charged with dealing with specific queries on the Bill, which may lead to amendments; it is a technical rather than a political discussion. The political arguments were well rehearsed in the debate on the Bill’s Second Stage, and, presumably, they will be rehearsed again in its later Stages. Therefore I do not intend to have the political arguments rehearsed today. We can deal with any technical points or potential amendments that you wish to highlight in preparation for next week’s clause-by-clause scrutiny.

201. Mr Attwood: I will have three points in that regard. We have an obligation to create certainty and avoid doubt so that we are aware of the full consequences of the legislation. Given that the legislation has to be read with Westminster legislation, one can only fully know what it means by understanding what would happen in 2012. There is a need to provide technical clarity on the matter, and a subsequent clause that creates certainty about what happens in 2012 may be required.

202. The Chairperson: The Bill will be subject to amendment, but we are concerned with the Bill as it is before us. Do you wish to raise any points of clarification or queries on the Bill as it is rather than as you think it should be?

203. Mr Attwood: You indicated that I should indicate any amendments that we may be minded to table next week.

204. The Chairperson: You do not have to do that.

205. Mr Attwood: I have no difficulty with indicating the amendments that we may be minded to table next week. Those may include an amendment that deals with what happens in 2012, and that is germane to today’s discussion on the Bill.

206. The Chairperson: It may be helpful for such amendments to be submitted in advance so that they can be circulated to allow members to have a wider discussion on them.

207. Mr Attwood: I will comply with that request. I am making the point that the Bill should be amended to clarify what will happen in 2012 so that people are not suddenly hit with a raft of amendments next Wednesday. OFMDFM says one thing, but we have a different interpretation. Let me remind members briefly of that interpretation: it is our view that, when it legislated for a sunset clause, Westminster was not minded to legislate for a vacuum if, on 1 May 2012, the Assembly had not legislated for the Department of justice to continue. Contrary to what OFMDFM says, we believe that Westminster did provide a fallback: section 44(5) of the Justice and Security (Northern Ireland) Act 2007 inserts new section 21A into the Northern Ireland Act 1998. If we have not legislated by 2012, Westminster can impose a model of electing a senior and junior justice Minister by parallel consent. That is our view; it is not the view of OFMDFM.

208. Perhaps that difference of interpretation can be clarified next week. If so, I will be happy to walk away from the issue; however, there is a clear difference of interpretation. That is relevant, because it affects what will or will not happen in 2012. The matter needs to be moved on. An amendment to the Bill may need to be legislated for next week.

209. The Clerk of Bills: I will try to provide the Committee with advice on what amendments can be recommended on that subject. The Committee can recommend that action be taken even if it is beyond the parameters of what the Assembly has the power to legislate on.

210. Mr Spratt: Mr Attwood is expressing his view and those of his party; the rest of us may not share them. It is not for the Clerk of Bills to advise him on possible amendments. We are happy to discuss any amendments that Mr Attwood wants debated in the House; there will be enough Members there to discuss it. We can discuss it for another nine or 10 hours.

211. The Clerk of Bills: Forgive me if I was not clear: I was simply offering to provide options for the Committee.

212. Mr Spratt: I understand that. I am just making a political point because other members made political points.

213. The Chairperson: I said that our duty today is to concentrate on the technicalities of the Bill, not on its political nature. Please avoid straying into political.

214. Mr Attwood: First, I am not straying into its political nature; the issue is both technical and legislative. To conclude the aforementioned matter, I will share my opinion with the Committee, and the Clerk of Bills can share that view with whomever she wants in the Building to see whether the matter can be resolved. I want the issue to be resolved, and I have no doubt that its resolution will be consistent with the SDLP’s interpretation.

215. Secondly, I put the Committee on notice that the SDLP will propose an amendment to clause 2, which gives effect to the election of a justice Minister by cross-community support. That amendment will be circulated to members in due course.

216. The Chairperson: It would be helpful if it could be circulated before next Wednesday.

217. Mr Attwood: It will. I will pass it to the Clerk, and she can attend to it.

218. Thirdly, as Mr Spratt confirmed, some matters remain unresolved by the Assembly and Executive Review Committee. One of those is the status of a future justice Minister and whether that Minister will be a fully fledged member of the Executive with all the authority and powers that fall to an Executive Minister, including attendance at Executive meetings.

219. The Chairperson: The Bill is silent on that.

220. Mr Atwood: It is. However, given that we are talking about the nomination and appointment of a justice Minister, the status and authority of such a Minister needs to be clarified. I put the Committee on notice that if the matter is not resolved through the Assembly and Executive Review Committee and through other discussions, we reserve the option of tabling an amendment on the authority and status of a justice Minister so that it is equal to that of other Executive Ministers. That would conclude the matter and create certainty, for at the moment the issue is up in the air.

221. The Chairperson: You can do that at Committee Stage or later on the Floor of the House.

222. Mr Attwood: I did say that I reserve the right to table such an amendment, either next week or further down the line.

223. I again put the Committee on notice that the SDLP is of the view that the status and authority of the Department of justice is so important that, as of day one, it should be a sector in the North/South Ministerial Council. We will propose an amendment to ensure that on the day that the Department of justice becomes live, a justice matters sector of the North/South Ministerial Council will also go live. That has to happen in order to establish the authority of the Department of justice on justice issues on the island of Ireland.

224. The Chairperson: Will that amendment be submitted at Committee Stage or at a later Stage?

225. Mr Attwood: I will reserve judgement on that. However, it is likely to come before the Committee rather than be tabled on the Floor of the House. There are other matters that I wish to talk about, but I will save those until next week’s meeting.

226. Mr Elliott: To some degree, Mr Attwood has answered my question regarding clarification of the sunset clause. I felt that the letter of 21 September clarified the 2009 Westminster legislation on which we will have, at some stage, to act. However, at least Mr Attwood said that he will inform us of the issues that he feels to be of concern; when he does, we can take it from there.

227. Mrs Long: I want to check the authority of the different pieces of legislation on the sunset clause. Mr Attwood referred to the Justice and Security (Northern Ireland) Act 2007. However, the Northern Ireland Act 2009 was the last legislation to deal with the issues, so it is the relevant one. I assume that if the Northern Ireland Act 2009 put in place an arrangement at Westminster, our legislation can only legislate within the framework that it sets out. We would not be competent to amend or change that.

228. The Chairperson: We are secondary to that legislation.

229. Mrs Long: All we can do is clarify the legislation; we cannot change it. It is not good practice to duplicate legislation. Where in the Bill would such an issue be considered? I am not sure that it can be considered as part of the Bill, although I understand the concern about confusion.

230. The Clerk of Bills: First, the Assembly’s capacity to amend the Northern Ireland Act 2009 is limited. Much of that legislation is excepted, which means that even if the Assembly asked him, the Secretary of State cannot give consent on certain areas of the Bill, including fundamental aspects of Executive authorities. However, not all the Bill is excepted, and, if the Committee wishes, we can explore possible options.

231. Secondly, it is within the Committee’s remit, if it so chooses, to call upon the UK Government to amend legislation if it feels that it is relevant to the legislation under consideration.

232. The Chairperson: Is the Bill Office prepared to give advice on such matters?

233. The Clerk of Bills: I can advise on the scope of the Bill and the Assembly’s capacity to amend it.

234. The Chairperson: That advice is available to all Committee members if necessary.

235. Mr Shannon: Should any member who anticipates proposing an amendment contact you directly to see whether that can be done rather than go through the process knowing that it may not go anywhere?

236. The Chairperson: That is the point that Eilis highlighted.

237. Mr Shannon: I am just suggesting that perhaps members should avail of that opportunity to clarify the matter.

238. The Chairperson: That is making the horse jump the fence before it is saddled.

239. Mr Shannon: We will not have to clarify the matter, but some people might have to.

240. Mr Elliott: It might be worth your while doing that.

241. Ms Anderson: I know that you want us to stick to the legislation, but you have allowed one or two political comments. I find it confusing that the political party that claims that it secured a sunset clause as part of the St Andrews Agreement now argues that a sunset clause should not be inserted into the Bill. If nothing else, that is somewhat hypocritical.

242. However, we are dealing with the 2009 legislation. The Houses of Commons Hansard report for 4 May 2009 shows that Paul Goggins said in Westminster:

“The Bill provides no fall-back position beyond May 2012. Frankly, it is not for us in this place to determine any additional model beyond that period".

He clearly set out the position of Westminster as:

“There is no fall-back position, as I have said, and it is entirely a matter for the Assembly."

He continued:

“It is important to know that central Government do not have a major hand in determining what happens in a model beyond May 2012."

He stated quite clearly:

“That is a matter entirely for the Assembly."

Those were his exact words.

243. The Chairperson: I do not wish to encourage a further political spat. The technical issues are before the Committee. If members or political parties wish to table amendments and circulate them in advance, it would be helpful. We will take advice on possible amendments from the Bill Office; that facility has been made available. I am loath to discuss the politics of the issue. I have been as lenient as I can reasonably be; we shall move on.

244. Mr Elliott: Eilis said that not all the Westminster Bill was excepted. Can she provide details on what is excepted and what is not?

245. The Clerk of Bills: Schedule 2 to the Northern Ireland Act 1998, as amended by the Northern Ireland 2009, shows excepted matters. I can set that out for members.

246. The Chairperson: That would be helpful.

247. Mr Molloy: Will information that the Bill Office provides to any Committee member on the Department of Justice Bill be circulated to all members?

248. The Chairperson: General advice, such as that which has just been raised, could be circulated to all members. However, if an individual member sought specific advice, I am not sure how that could, in fairness, be sent to all Committee members. It will surely emerge before next week anyway. That might put the Bill Office in a difficult position.

249. Mr Elliott: Any information that is asked for in the Committee could be circulated to every member of the Committee, but if a Committee member were to seek advice on their own behalf, it would not be fair for the Bill Office to have to provide that advice to all Committee members.

250. Mrs Long: All Committee members should receive any information that the Committee agrees to request. If we leave the requesting of information to individual members, we should not all receive it.

251. The Chairperson: We will undertake clause-by-clause scrutiny at our next meeting. Thank you very much.

14 October 2009

Members present for all or part of the proceedings:
Mr Danny Kennedy (Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Barry McElduff
Mr Francie Molloy
Mr Stephen Moutray
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

Witnesses:

Mr Tony Canavan
Mr Geoffrey Simpson

Office of the First Minister and deputy First Minister

252. The Chairperson (Mr Kennedy): Following last week’s meeting, the Committee agreed to conduct its clause-by-clause scrutiny of the Bill at this meeting. We have already heard from Eilis Haughey from the Bill Office.

253. Members’ papers contain a copy of a letter from Jim Allister QC, leader of the Traditional Unionist Voice, concerning the Department of Justice Bill. The letter was received into the public e-mail of the Assembly and Executive Review Committee on Thursday 8 October, six days after the closing date for submissions to the Committee.

254. There are a number of options. We can ignore the letter because it was received late; accept and consider it and include it in the Committee report; or accept and consider it and agree not to include it in the Committee Report, but place it in the Library.

255. Mr Spratt: The letter came in after the closing date. No changes can be made for anybody. Everybody was publicly notified of the date by which submissions should be in.

256. The Chairperson: Are you saying that we should ignore it completely?

257. Mr Spratt: Yes.

258. The Chairperson: Are there any other views?

259. Mr Spratt: It was not even sent to the right Committee.

260. Mr Elliott: I do not think that there is any harm in noting it. We can note it as part of the consideration. How do we stand legally? What is the legal point of view?

261. Mr Molloy: If there was a closing date on the submissions, anything received after that date is not valid. Otherwise, we would have to be open to submissions from anybody at any time.

262. Mr Elliott: To be fair, whenever the Planning Service has a 14-day period to accept responses to planning applications, it still accepts representations that come in outside of that period. Maybe we should check the legal standpoint. If that is the situation, so be it.

263. The Chairperson: We would have to respond to the letter anyway to indicate to the person that it had been received late, and therefore would not form part of the inquiry report.

264. Mr Attwood: I have no sympathy with the contents of the letter, but, to stand back, it is a racing certainty that everybody around this table has replied to public consultations out of time at one time or another. We have all done it. We would be rightly annoyed at having gone to the bother of sending a response if we then did not have any recognition that we responded.

265. Yes, the letter is out of time; we have all been in that place. However, it would not pain anyone to include it in the report. Practically, to choose to go down another road is to give people easy ammunition when they should not be given any ammunition. My sense is that we should include it, not get too preoccupied by it, and move on. It will be buried deep in the memory of this Committee’s work.

266. The Chairperson: The suggestion is that we either ignore the letter completely and do not publish it anywhere, or include it in the report, but specify that it was too late for inclusion and consideration.

267. Mr Spratt: If I heard the conversation right earlier, someone asked for legal clarification; however, I have yet to hear that.

268. The Chairperson: We can get a legal view on that for next week.

269. Ms Anderson: Am I right to say that the two options are either to ignore the letter or to include it in the report, or is there a third option of putting it the Library?

270. The Chairperson: Yes. The letter can be put in the Library in all cases, apparently. Whether this is a legal matter, however, is open to debate; it is for us to decide. I am not sure that there are legal points to be debated, because the fact is that the letter was received late.

271. Mr Spratt: Are we now saying, for example, that it is all right for someone to submit a tender for a procurement contract two or three days late and that it will be considered? If there is a date being worked to, there must be some sort of legal process. If that were allowed to happen, it would make a nonsense of the public procurement process.

272. The Chairperson: We are not talking about public procurement.

273. Mr Spratt: That does not matter; I am making a point.

274. The Chairperson: I accept your point. We have had a discussion. Are there any proposals?

275. Mr Elliott: I propose that we accept the letter and put it in the report, as Mr Attwood suggested.

276. The Chairperson: Do other members have any proposals?

277. Mr McElduff: I propose that we ignore the letter. I am not going to propose that we do not ignore it, so I propose that we ignore it.

278. The Chairperson: There are two counter-proposals. I will deal with the first proposal, Mr Elliott’s, first. He proposed that the letter be published with a note clearly confirming that it was received late and that it is, therefore, not to be considered for consultation purposes.

Members indicated assent.

279. The Chairperson: Mr McElduff, do you still wish to pursue your proposal?

280. Mr McElduff: No.

281. The Chairperson: Then the decision is made.

282. The Chairperson: We now move to the clause-by-clause scrutiny of the Department of Justice Bill. With us today are Office of the First Minister and deputy First Minister (OFMDFM) officials Mr Tony Canavan and Mr Geoffrey Simpson. Good afternoon, gentlemen. Thank you for your attendance and patience. I remind members that this session is being recorded by Hansard for inclusion in the Committee’s report.

283. Mr Canavan and Mr Simpson are here simply to assist with any questions or queries that members might have. Members will have the opportunity to raise concerns and suggest amendments. Members should read the relevant clauses and paragraphs in the Bill along with the relevant commentary in the memorandum.

284. The Bill has three clauses and one schedule. Each clause will be considered in turn. The Committee has three options: to agree that it is content with the clause as drafted, to agree to recommend to the Assembly that a clause be amended, or to reject the clause as drafted. Members will have the opportunity to consider any amendments to each clause following the reading of the clause.

Clause 1 (The Department of Justice)

285. The Chairperson: Clause 1 provides for the establishment of the Department of justice as a Northern Ireland Department, describes its intended functions and makes consequential amendments to other Orders. Paragraphs 1-20 of the schedule detail amendments to legislation to change references to: “justice department (within the meaning of the Justice (Northern Ireland) Act 2002)"

to “Department of Justice". Paragraphs 21 and 22 detail amendments to legislation to omit references to:

“the justice department".

286. Are there any recommendations for amendments?

287. Question, That the Committee is content with the clause, put and agreed to.

Clause 1 agreed to.

Schedule agreed to.

Clause 2 (Minister in charge of Department of Justice)

288. The Chairperson: Clause 2 sets out the arrangements for appointing the Minister of justice. Do members have any recommendations for amendments?

289. Mr Attwood: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: Leave out clause 2.

290. This should not detain us too long, because the politics of this have been well rehearsed. My amendment is to delete clause 2, the consequence of which is that the Department of justice will get established, but the provisions for the filling of the post of justice Minister fall to the Northern Ireland Act 1998 and the d’Hondt mechanism for democratic inclusion.

291. Clause 2 is drafted as it is because, in order to go down that particular road of bypassing d’Hondt and the 1998 Act, one has to put into the legislation and the Assembly one of the prior models that are outlined in a number of pieces of Westminster legislation. The relevant Westminster legislation for the purposes of clause 2 is legislation that was passed in 2006, 2007 and 2009, where there were a family of models for the filling of the justice Ministry. The 2006 legislation, as I recall, laid down provisions for the appointment of the Minister by rotation, the appointment of joint Ministers and the appointment of a single Minister on a cross-community vote.

292. The 2007 legislation, which is known as the Hain legislation, contained provision for the appointment of a senior and a junior Minister. The 2009 legislation outlined nine different models for the appointment of the Minister. If clause 2 is deleted, one does not opt in to any of the models that are in the 2006, 2007 or 2009 legislation. In those circumstances, one falls back on the original legislation, namely the Northern Ireland Act 1998, and the provision therein for the appointment of Ministers save OFMDFM, which is the principle of d’Hondt.

293. I propose to delete clause 2, which deletes the cross-community provision that has been recommended by OFMDFM and reinstates the provisions of the Good Friday Agreement — the democratic wishes of the people of Ireland.

294. The Chairperson: Your proposal is, basically, to leave out clause 2 in its entirety. Has anyone any comments or questions for the officials?

295. Mr Elliott: I want to ask Mr Attwood a question in respect of his proposed amendment. Would it mean a total rerun of d’Hondt after the appointment, in the first instance, or a follow-on to the appointments that have already been made?

296. Mr Attwood: That would be a matter of political judgement for the various parties. D’hondt could be rerun, or there could be an arrangement between parties as to what will happen in respect of the eleventh Ministry, which will be the justice Ministry. We are neutral on whether d’Hondt should be rerun. That is a matter for political judgement. If that is what parties decide to do, so be it. If there is another mechanism for the appointment to the justice Ministry by arrangement between political parties, so be it. That is a matter for political judgement after the legislation has been passed. We are saying that the appointment should be made strictly on the basis of d’Hondt and the principle of democratic inclusion.

297. Mr Kennedy: We do not doubt your view. However, I wonder whether Eilis Haughey or any of the officials could guide us. What is your understanding of the consequences of removal of clause 2 for the appointment of a policing and justice Minister?

298. Mr Tony Canavan (Office of the First Minister and deputy First Minister): My understanding is that Mr Attwood is correct: the default mechanism would be d’Hondt. It would require a rerun of d’Hondt.

299. The Chairperson: That is not what Mr Attwood said.

300. Mr Geoffrey Simpson (Office of the First Minister and deputy First Minister): Under section 18 of the Northern Ireland Act 1998, all Northern Ireland Ministers shall cease to hold office in the event of a resolution that causes one or more ministerial offices to become vacant.

301. The Chairperson: And the way to correct that under the current law, the 1998 Act, is by d’Hondt?

302. Mr Simpson: It would require d’Hondt to be run in totality.

303. The Chairperson: Therefore, it is not a matter of adding a ministerial post by d’Hondt: it requires a total rerun of d’Hondt.

304. Mr Canavan: That is our understanding. Another consequence that Mr Attwood did not mention is that the 2012 sunset effect would not apply, because that is conditional on the model, which is contained in this legislation, being used.

305. The Chairperson: And that is part of clause 2? Therefore, the sunset clause would fall as well, effectively. What is your understanding of how the sunset clause works?

306. Mr Canavan: I recall Mr Attwood’s comment at the previous meeting. Subsequently, there was a letter from OFMDFM on that subject. We stand by that letter, which is dated 21 September.

307. At Second Stage, we heard a slightly fuller theory about the application of the sunset clause. After that, we took the opportunity to consult people who were closer to the drafting of the Northern Ireland Act 2009. They stated that it was never the intention that the interpretation that Mr Attwood’s Assembly colleague placed on a particular provision in the 2009 Act would apply to frustrate the operation of the sunset clause. It was not intended that there would be a hidden fallback mechanism.

308. The Chairperson: Is that the law of unintended consequences?

309. Mr Canavan: It would be a matter for the courts to decide on the appropriate interpretation. We have an interpretation of the legislation as it stands. Other people may have a different interpretation. Ultimately, the interpretation would be decided by the courts. We find it hard to see how the clause that relates to the application of the imposed model, which was put into the Northern Ireland Act 1998 in 2007, could apply in the circumstances that have been suggested — to frustrate the sunset clause — because of the condition that is attached to that in the 2007 amendment to the Northern Ireland Act 1998.

310. The Chairperson: Is there any way that we can seek certainty on the issue? Should we do so? Can anyone provide certainty on the issue, let alone a judge?

311. Mr Canavan: Ultimately, certainty can only be provided by a court, but there may be a range of legal interpretations. We would point to the fact that there is a condition attached to the application of the imposed mechanism — the Minister and junior Minister approach — which Mr Attwood suggests would be imposed by the Northern Ireland Office in advance of the sunset clause’s applying. That condition is that the Secretary of State has to be of the view that there is no possibility of the Assembly’s passing legislation. The sort of legislation that would be relevant to that is this Bill: should this Bill be passed, our view is that the possibility of imposing a solution would fall, because the condition could not be met.

312. The Chairperson: You would then, presumably, rely on the Secretary of State to intervene?

313. Mr Canavan: In what sense?

314. The Chairperson: Who would fix it? If there was deadlock, and it was clear that the Assembly might not renew the legislation or pass similar legislation, would it be up to the Secretary of State to deal with it? Is that what you are saying?

315. Mr Canavan: It would not be the task of the Secretary of State to impose the solution that was created in 2007. The Secretary of State may have other policies and plans; the First Minister said words to that effect in the Second Stage debate. In our view there is no secret fallback position or a hidden default clause in the legislation.

316. The Chairperson: If it falls, it falls.

317. Mr Canavan: Yes.

318. The Chairperson: What would be the consequence of that?

319. Mr Canavan: The consequence would be that the Department of justice would be dissolved on 1 May 2012.

320. The Chairperson: And revert where?

321. Mr Canavan: It would not revert anywhere. It would dissolve.

322. Mr Elliott: Where would the powers revert to?

323. The Chairperson: Through the Chair — I am the Chairperson, sorry. [Laughter.] In your view, where would the powers revert to at that stage?

324. Mr Canavan: There is no provision in the legislation for a reversion of the powers.

325. Mr Elliott: What are the consequences of that? Do the powers stay with the Executive — if there is a functioning Executive — or do they revert to the Northern Ireland Office or Westminster?

326. The Chairperson: Do they simply disappear?

327. Mr Canavan: They would disappear in the sense that the responsibility for carrying out those functions would be with the Department that had ceased to exist and had dissolved. It creates a constitutional conundrum, but the theory is that that imposes on the Assembly the requirement to do something about it before that.

328. Mr Attwood: In our interpretation, one of the consequences would be —

329. Mr Spratt: On a point of order, Chairperson. By asking those questions, I think that you are putting the officials into a position that they should not be put into. You are asking “what if" questions about 2012. It is totally unreasonable to put the officials in that position at this stage.

330. Mr Elliott: We are only asking questions. The officials are here to try to answer them, and if they cannot answer them, so be it. We are trying to get answers today.

331. The Chairperson: The officials do not appear to be either unwilling or incapable of answering. That is important. The questions that have been asked so far have been reasonable; they have been about the Bill and its consequences and even its potential. We could say that we are in a “what if" situation. It is possible for such circumstances to prevail.

332. Mr Attwood: In the note which I sent the Committee Clerk, I said that I would share my party’s legal advice with members of the Committee and the witnesses. I will now do so, so that you can assess whether the critical part of our legal advice is stronger, given that there are a number of interpretations. I can distribute it now or later in the meeting; it is up to you.

333. I was going to come back to this after clause-by-clause scrutiny of the Bill but, now that the matter has arisen, these are the points I want to make. I am firmer in my view than I was two or three weeks ago in relation to the legal interpretation of this. The reason for that is that we can take a number of the commentaries on the SDLP view of the legislation. In the debate on 22 September, to which you have referred, it is clear that the First Minister acknowledged that there may be another interpretation. For example, on page 244 of the Hansard report, he says:

“I am aware of the section that he is referring to, and I am aware that it is possible to put on it the construction that he puts on it."

Then, later, he adds:

“in some legal sense, the Member may be able to construct an argument that that is what might happen",

meaning our view about the default position being election by parallel consent.

334. What you have said in your evidence to the Committee is that the view that the SDLP has was “never the intention" of the legislation. However, it might be the intention of the legislation. Whether it was designed that way or somehow people fell into it, nonetheless our view is that the First Minister perceives a bit of doubt on that matter, and the fact that you are prepared to say to the Committee that it was never the intention of the legislation to lead to those consequences both suggest that the views that the SDLP has on the matter are correct.

335. The reason I am so convinced that we are correct is that Westminster does not legislate for a vacuum. You know the parliamentary draftsmen better than I do, but I worked very closely with the parliamentary draftsmen on various pieces of legislation over the last 10 years, including difficult legislation such as the two Police Acts and the two Criminal Justice Acts, and they got neuralgic about legislating for a vacuum. One has to have certainty. Whatever about the political situation in 2012, one has to have legal certainty in 2009 or at any previous time. So the entire convention of the parliamentary draftsmen in legislating at Westminster is to create certainty. That is why I believe that there is a legal answer to what happens after 2012. Given that this matter is open now, I ask you to consider my party’s legal advice and see whether it enlightens you and others as to what happens.

336. Let me read into the record our view. The Northern Ireland Act 2009, schedule 1, paragraph 5(2)(b) states that paragraphs 6 to 8 are:

“not to apply at all if an Order in Council has been made under section 21A(7C) of the 1998 Act."

The consequence of section 21A(7C), and the Justice and Security (Northern Ireland) Act 2007, allows the Secretary of State to impose the model of senior and junior Ministers acting by parallel consent. That is our view and I ask you to consider it, for all the reasons that I have outlined. There is marginal doubt in the First Minister’s mind; it may not have been the intention of the legislation but, in my view, it is the effect; Westminster does not legislate for a vacuum; and the nature of the parliamentary draftsman’s office at Westminster is very demanding.

337. There is not a vacuum, there is a fallback. The fallback position is that parallel consent from a junior Minister and a senior Minister will come into effect at the same time the sunset clause comes into effect, in 2012. Moreover, parallel consent can be used as a veto by either party, which is the political point that the SDLP has always made.

338. The Chairperson: Do you wish to comment on that?

339. Mr Canavan: My initial response is the same as before: subsection 7A, the imposed solution, is conditional on the following words: “If it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described in subsection (1)(a) and (b), he may".

At that point, the Order in Council process is brought into play. An Act of the kind that is described in subsection (1)(a) and (b) is one that establishes a new Northern Ireland Department to exercise policing and justice functions, which is precisely what the proposed Bill will do.

340. Mr Attwood: Until 2012.

341. Mr Canavan: Our view is that that condition will be fulfilled until 2012, in which case the condition that would be required to apply subsection 7A would not be valid.

342. Mr Attwood: Except in 2012, when it becomes valid and consequences arise. You are applying a judgement about what will transpire between now and 2012, and we are saying that we do not disagree with you. However, in law, and given the volatility of politics in this part of the world — and although I hope that it will not be the case — in 2012 the Secretary of State may determine that there is no prospect for agreement and impose a model, otherwise the situation may arise where the Department is dissolved and the civil servants that make up the entire justice family will not be able to act as such. Some people may think it desirable that some civil servants are not able to act as such, but the more fundamental point is that one cannot have the civil servants in the Department of justice and all the Next Steps agencies not having the authority to conduct their business. It would be chaos. What would happen to the prison system, the courts and the police? Legislators do not legislate for chaos.

343. Mr Canavan: Our understanding is that, not simply up to but beyond 2012, subsection 7A cannot be applied, because, in effect, it is spent. The condition will be met from the point at which the Bill is enacted.

344. The Chairperson: Therefore, in spite of hearing Mr Attwood’s alternative legal advice, you are content with the legal view that you have expressed.

345. Mr Canavan: Yes.

346. Mr Attwood: I will share this advice with officials and members to see whether any further light can be thrown on the matter.

347. Mr Spratt: In the last paragraph of Mr Attwood’s e-mail to Cathie White today, he states:

“I have in confidence shared with Eilis Haughey our legal advice on the issue of a sunset clause. I will table an abridged version of the legal advice at Committee."

So, if the Committee is getting an abridged version, where does sharing a party’s legal advice leave Assembly officials? I just want to protect the Committee’s officials. Perhaps we could hear what the Bill Clerk intends to do with that piece of advice.

348. The Chairperson: Earlier, Eilis indicated that her office is available to clarify legal aspects of the Bill for individual members or political parties. Is that correct?

349. The Clerk of Bills: It is entirely in order for Members in their own capacity or as a party to approach the Bill Office to seek to pave the way or prepare for amendments that are to be tabled by a party or an individual MLA. At last week’s meeting, members anticipated that the Committee might seek some advice from the Bill Office and that other advice would be available to individuals or to parties, should that be sought. Unless I am otherwise instructed, I presume something that I receive from a Member has come from them in their capacity as a Member. I presume that anything that I receive from the Committee comes in its capacity as the Committee.

350. Mr Spratt: I am not questioning your integrity; my question is to do with the fact that Committee will be given an abridged version. Why is there a difference? Perhaps Mr Attwood will be good enough to tell us why.

351. Mr Attwood: To be very honest with you, the last three lines —

352. The Chairperson: Please address the Chair.

353. Mr Attwood: Sorry. The last three lines of the legal advice have been deleted because they stray into issues of politics, not issues of law. If the Chairperson and Deputy Chairperson of the Committee wish to review the document that I gave to the Bill Office, I have no difficulty with that. I am sure that they will be in a position to confirm that the last three lines of the document are not issues of law but of politics. That is why I abridged the advice. Other than that, it is the exact same piece of paper.

354. Mr Spratt: I am happy with that.

355. The Chairperson: That presents an issue for the Committee as to whether it wishes not only to review the legal advice that is being offered by Mr Attwood or anyone else but to refer that legal advice or opinion for further consideration.

356. Ms Anderson: If the last three lines of the legal advice give some kind of political opinion, I question the impartiality of the legal advice that has been put forward. I know that we could get legal advice that is contrary to that, depending on who was asked. We could be opening up something that is not necessary.

357. Mr Elliott: Mr Attwood has done quite a bit of work on what is an important issue and something that I also have a concern about. Is it not reasonable for the Committee to get its own legal advice on the matter? I think that that would be more useful. I am not discounting Mr Attwood’s legal advice, which I am happy also to look at. However, it might be also be useful for the Committee to get our own legal advice.

358. The Chairperson: You mean the Committee’s own legal advice on the issue, rather than legal advice on Mr Attwood’s legal advice? Independent legal advice.

359. Mr Attwood: I agree. I thought that Mr Canavan’s information was useful, and I certainly took a note of the comment that the condition’s having been met changes things. That is not our view, but I will get our people to reflect upon that, just as you might want to reflect on our comments.

360. I will not comment on Martina’s point. People should get legal advice and be prepared to share it, rather than trying to rely on it in secret. People should be up front and say that there is an issue.

361. Ms Anderson: That is only if they think that there is an issue.

362. Mr Attwood: Mr Canavan said that there are ways of interpreting this, and the First Minister has also said so. You may think that there is no other way of interpreting it, but I think differently, and the First Minister thinks differently. Mr Canavan said that there is, at least, room for argument on the matter. In those circumstances, the balance should be on seeking independent advice, and that is what we should do.

363. The Chairperson: It is not yet a proposal, but the suggestion is that the Committee take its own legal advice on clause 2, particularly on the sunset clause.

364. Mr Elliott: We should also take advice on the mechanisms for what happens following that.

365. The Chairperson: Is there a consequence to taking that advice?

366. The Committee Clerk: Yes: delay. The Committee may want to table a motion to extend the Committee Stage just in case.

367. The Chairperson: Would there necessarily be delay? Can the Committee not get legal advice within a prescribed period?

368. Mr Spratt: We might need more legal advice.

369. The Committee Clerk: We would have to pass that to Legal Services and, as I said, we only have until 10 November to complete the Committee Stage of the Bill. Hopefully, we would get that legal advice before next week’s meeting. However, if the Committee agrees to seek legal advice, I advise that it should table a motion to extend the Committee Stage, in case there is any hiccup and we cannot meet that 10 November deadline.

370. The Chairperson: Surely it is not unreasonable for the Committee to expect to get legal advice within a prescribed period of time.

371. Mr Elliott: I assume that even if we tabled a motion to extend the Committee Stage, that would not mean that it had to be extended.

372. The Committee Clerk: Exactly; it would be a contingency.

373. The Chairperson: A precaution.

374. The Committee Clerk: Bear in mind that if the Committee tables an extension motion, that motion has to go before the Business Committee to get onto the Order Paper.

375. The Chairperson: So, the Committee understands, that voting either for or against what it is being asked to vote on comes with that consequence.

376. Mr Attwood: A potential consequence; I do not think that an extension will be necessary.

377. The Chairperson: So are we in favour of Mr Elliott’s proposal?

Members indicated dissent.

378. The Chairperson: That is the issue of precise legal advice. Mr Attwood is pressing his amendment to clause 2, which, effectively, wipes out that clause.

Question put.

The Committee divided: Ayes 3; Noes 7.

AYES

Mr Attwood, Mr Elliott, Mr Kennedy.

NOES

Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Question accordingly negatived.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 7; Noes 3.

AYES

Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

NOES

Mr Attwood, Mr Elliott, Mr Kennedy.

Question accordingly agreed to.

Clause 2 agreed to.

Clause 3 (Short title and commencement)

379. The Chairperson: Subsection 1 gives the short title of the Bill as the “Department of Justice Act (Northern Ireland) 2009"; subsection 2 provides for the commencement of the Bill. Mr Attwood has proposed an amendment.

380. Mr Attwood: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: In page 2, line 6, replace “such day or days as the First Minister and deputy First Minister, acting jointly, may by order appoint" with “7 December 2009".

381. The impact of the amendment is self-evident. Rather than create further delay and doubt around the devolution of justice, the Committee, and, subsequently, the Assembly, would agree that on Monday 7 December, the last Monday of term before Christmas, the transfer of powers as outlined in the legislation would occur. The purpose of the amendment is to create certainty; to avoid further delay, doubt and mischief-making; and to empower the Assembly to do that which it should always have been doing in respect of justice and policing obligations.

382. The Chairperson: Do members have any comments on Mr Attwood’s amendment? Does anyone second that? If not, the amendment falls.

383. Mr Attwood: On a point of order, Chairperson. When Mr Spratt and I were on the Committee for Employment and Learning, I understood that as long as there was a proposer, there could be a vote.

384. Mr Spratt: That is my understanding. The proposal does not need to be seconded in any Committee.

385. The Chairperson: Will the Committee Clerk confirm that?

386. The Committee Clerk: Yes, the Committee can take a vote.

387. The Chairperson: I am keen to obey the law. We can take a vote.

Question put.

The Committee divided: Ayes 1; Noes 9.

AYES

Mr Attwood.

NOES

Ms Anderson, Mr Elliott, Mr Kennedy, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

Question accordingly negatived.

388. Mr Shannon: Alex, you are the Lone Ranger.

389. The Chairperson: It is getting worse for you, Alex.

390. Mr Shannon: All you need is for your horse to run away.

391. The Chairperson: The darkest hour is always before the dawn.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 7; Noes 2.

AYES

Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

NOES

Mr Attwood, Mr Elliott.

Question accordingly agreed to.

Clause 3 agreed to.

Question put, That the Committee is content with the long title of the Bill.

The Committee divided: Ayes 7; Noes 2.

AYES

Ms Anderson, Mr McElduff, Mr Molloy, Mr Moutray, Mr Robinson, Mr Shannon, Mr Spratt.

NOES

Mr Attwood, Mr Elliott.

Question accordingly agreed to.

Long title agreed to.

392. The Chairperson: To aid with the timescale for the Committee’s reporting back to the Assembly, there will be a two-day turnaround for members and officials on the Hansard report of today’s meeting. I thank the officials for attending the meetings and for the advice that they were asked to give.

393. Mr Attwood: I said last week that other amendments might be tabled today. I have indicated to the Clerk that further amendments on different matters will be proposed to the Assembly in due course.

394. There was another issue of uncertainty over the Executive status of the justice Minister. Our view is that — and this goes back to Jim’s Committee — the justice Minister will have full authority, status and equality in the Executive. That is provided for in sections 20 and 21 of the Northern Ireland Act 1998; to change the status of the justice Minister to be something less than that would require Westminster legislation, which is clearly not going to arise in the situation that we face.

395. Mr Spratt: I do not want the business of my Committee discussed at this Committee.

396. The Chairperson: Thank you for your input. That appears not to be the remit of this Committee.

397. Mr Attwood: It is just for completeness. I raised the point last week.

398. Mr Spratt: It is really a political point.

399. Mr Attwood: It is only as a matter of courtesy; I would report back at the earliest possible moment.

400. The Chairperson: Order, please. I remind members that the discussions, debate, and votes that we have had today do not preclude the possibility of Members or parties bringing forward amendments at the Further Consideration Stage of the Bill.

401. Thank you. The draft report will be prepared for Committee consideration on 21 October, and the Committee is required to report to the Assembly by 10 November. That concludes the business; thank you for your attendance.

21 October 2009

Members present for all or part of the proceedings:
Mr Danny Kennedy (Chairperson)
Ms Martina Anderson
Mr Alex Attwood
Mr Tom Elliott
Mr Barry McElduff
Mr Francie Molloy
Mr George Robinson
Mr Jim Shannon
Mr Jimmy Spratt

402. The Acting Chairperson (Mr Spratt): We come to our consideration of the Committee’s draft report on the Department of Justice Bill, and I remind members that we need to consider and agree each paragraph. We will start with the first section, “Introduction".

Paragraphs 1 to 10 agreed to.

[Interruption.]

403. The Acting Chairperson: Before we move to the second section of the report, “Committee Stage Scrutiny of the Department of Justice Bill", I remind members that mobile phones must be switched off.

404. Paragraphs 11 and 12 agreed to.

405. The Acting Chairperson: We move to the third section of the report, “Consideration of the Bill".

Paragraphs 13 and 14 agreed to.

[Interruption.]

406. The Acting Chairperson: I must again ask members to switch off mobile phones completely, as they cause serious disruption to the Hansard recording system.

407. The fourth section of the report is “The Department of Justice (Clause 1)".

Paragraphs 15 and 16 agreed to.

408. The Acting Chairperson: The fifth section of the report is “The Department of Justice (Schedule 1)".

Paragraph 17 agreed to.

409. The Acting Chairperson: The sixth section of the report is “Minister in charge of Department of Justice (Clause 2)".

Paragraph 18 agreed to.

410. The Acting Chairperson: Do members agree paragraph 19?

411. Mr Attwood: No.

412. Mr Elliott: I assume that we are agreeing that paragraph 19 accurately reflects that the Committee was content with clause 2.

413. The Acting Chairperson: Yes.

414. Mr Attwood: Paragraph 19 says that the Committee was “content" with clause 2 as drafted.

415. The Acting Chairperson: The Committee will vote on paragraph 19.

Question put, That the Committee is content with the paragraph.

The Committee divided: Ayes 6; Noes 1.

AYES

Ms Anderson, Mr McElduff, Mr Molloy, Mr G Robinson, Mr Shannon, Mr Spratt.

NOES

Mr Attwood.

Question accordingly agreed to.

Paragraph 19 agreed to.

416. The Acting Chairperson: I note that Mr Elliott and Mr Kennedy abstained.

417. Mr Kennedy: I came to abstain in person.

418. Mr Elliott: I note that the minutes of proceedings will be attached to the report, but will the Hansard report also be included?

419. The Acting Chairperson: Yes.

420. The seventh section of the report is “Short title and commencement (Clause 3)".

Paragraphs 20 and 21 agreed to.

421. The Acting Chairperson: Do members agree paragraph 22?

422. Mr Attwood: No.

423. The Acting Chairperson: The Committee will vote on paragraph 22.

Question put, That the Committee is content with the paragraph.

The Committee divided: Ayes 6; Noes 1.

AYES

Ms Anderson, Mr McElduff, Mr Molloy, Mr G Robinson, Mr Shannon, Mr Spratt.

NOES

Mr Attwood.

424. Question accordingly agreed to.

Paragraph 22 agreed to.

425. The Acting Chairperson: I note that Mr Elliott and Mr Kennedy abstained.

426. We move to the final section, “Long title".

Paragraphs 23 and 24 agreed to.

427. The Acting Chairperson: This is an ideal opportunity for me to vacate the Chair to allow the proper Chairperson to take over.

428. The Chairperson (Mr Kennedy): Thank you very much. I apologise for my lateness. I am concerned at the Acting Chairperson’s use of the word “proper".

429. Are members content that appendix 1, “Minutes of Proceedings", appendix 2, “Minutes of Evidence", and appendix 3, “Written Submissions" be included in the report?

Members indicated assent.

430. The Chairperson: I understand that there will be a two-day turnaround for the Hansard report. Members should note that the date of publication is the date on which the Committee orders the report to be printed. Do members agree that we ask for the report to be printed today?

Members indicated assent.

431. The Chairperson: Do members also agree that an extract of today’s proceedings be included in appendix 1 of the report and that the Chairperson agree the minutes to allow them to be included in the printed report?

Members indicated assent.

Appendix 3

Written Submissions

Mr Jimmy Spratt MLA
Chairman to Assembly and
Executive Review Committee
c/o Room 428
Parliament Buildings
Stormont Estate
Belfast BT4 3XX

29 September 2009

Mr Danny Kennedy
Chairperson
Committee for OFMDFM
Room 404
Parliament Buildings
Stormont
BELFAST
BT4 3XX

Dear Danny,

Department of Justice Bill

I refer to the Clerk of the OFMDFM Committee’s letter of 17 September 2009, seeking the views of the Assembly and Executive Review Committee on the Department of Justice Bill.

When it met yesterday, the Assembly and Executive Review Committee discussed your request and agreed that the document (attached as Table 1), might be of assistance to your Committee. The table includes reference to the particular aspects of this Committee’s Reports which relate to the Bill.

If there is anything else you need help with please let me know.

I wish you, and your Committee, well with the detailed scrutiny of the Bill.

Yours sincerely

Jimmy Spratt

Chairman

Assembly & Executive Review Committee Report January 2009

The appointment of a Minister

35. The Committee considered the arrangements for appointing a Minister, having particular regard to proposed interim arrangements from the First Minister and deputy First Minister, and which are contained in letters dated 28 July and 18 November 2008, respectively, and which can be summarised as follows

Any Member elected as the Minister of Justice, up until May 2012, would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. In circumstances where a vacancy was to occur, during this period, the vacancy would be filled in the same way
These arrangements would be subject to a sunset clause which would bring them to an end not later than May 2012
Following a period of operation, the arrangements would be reviewed
Permanent arrangements would be put in place by May 2012, and there would be no fall back arrangements. This will require the political parties to agree a way forward, by this time
For the duration of the interim arrangements, the DUP and Sinn Féin will not nominate any Member from their respective parties as the Minister of Justice

36. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 9

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of a Minister of Justice:-

Any Member elected as the Minister of Justice, up until May 2012, would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists
These arrangements would be subject to a sunset clause which would bring them to an end not later than May 2012
Following a period of operation, and prior to May 2012, the arrangements would be reviewed
Permanent arrangements would be put in place by May 2012, and there would be no fall back arrangements. This will require the political parties to agree a way forward, by this time
For the duration of the interim arrangements, i.e. up until May 2012, the DUP and Sinn Féin will not nominate any Member, from their respective parties, as the Minister of Justice

37. The Committee also considered the arrangements for appointing, removing and/or replacing the Minister of Justice, including circumstances which might arise and the incumbent did not stand, or failed to be re-elected, in any Assembly election up until May 2012.

38. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 10

The Committee recommends that the following, interim, arrangements should apply in relation to the appointment of the Minister of Justice, up until May 2012:-

The appointment of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

39. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 11

The Committee recommends that the following, interim, arrangements should apply in relation to the removal of the Minister of Justice, up until May 2012:-

removal of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

40. The Committee discussed, and agreed, by a majority vote, the following recommendation:

Recommendation 12

The Committee recommends that the following, interim, arrangements should apply in relation to the replacement of a Minister of Justice, up until May 2012:-

The replacement of the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists.

The Minister’s role in, and relationship with, the Northern Ireland Executive

Correspondence from Jim Allister

Ref: JA/SM/Gen/4456

Mr Stephen Graham
Committee Clerk
Assembly and Executive Review Committee
Room 428
Parliament Buildings
Stormont
Belfast
BT4 3XX 7th October 2009

Dear Mr Graham,

By way of response to the Department of Justice Bill, Traditional Unionist Voice (TUV) makes it clear that we reject the devolution of policing and justice powers to an Executive and Assembly in which IRA/Sinn Fein holds sway. Sinn Fein’s IRA murdered hundreds of policemen and several members of the judiciary. Sinn Fein has yet to repudiate or denounce any of those murders, or assist in bringing the perpetrators to justice; rather it regularly wallows in the glorification of such brutal terrorism. Thus devolving policing and justice powers to an Executive and Assembly in which the party of the IRA, which still retains the wicked Army Council which sanctioned those murders, is obscene.

Given that every cross-cutting issue requires Executive approval Sinn Fein will exercise a veto on every key policing and justice decision of that nature, which includes every decision with financial implications. Thus, de facto, Sinn Fein will have the capacity to meddle in policing and justice issues. This falls far short of the promise of the DUP that such powers would be perpetually ring fenced from the malevolent reach of IRA/Sinn Fein.

In consequence TUV rejects this Bill, recognising it as the product of a shabby deal between the DUP and Sinn Fein which advances the key republican objective of wrenching policing and justice from British control.

Moreover, the 2012 sunset clause arising from the Northern Ireland Act 2009 both imbues the interim department with instability and proffers IRA/Sinn Fein another opportunity to extract more concessions on this vital subject. In consequence this is ‘sticky plaster’ legislation motivated to ease the crisis of the moment but with no contribution to the stability of the future.

Finally, given the utter failure and non-delivery of the dysfunctional Executive, bestowing more powers on such a failed entity as Belfast Agreement devolution is utter folly, particularly powers as sensitive and significant as control over policing and justice.

Yours sincerely,

Jim Allister signature

James H Allister QC, TUV leader

139 Holywood Road Belfast BT43 BET: (028) 9065 5011 F: (028) 9065 4314 E: info@tuv.org.uk

Appendix 4

List of Witnesses

Office of the First Minister and deputy First Minister Mr Tony Canavan
Mr Geoffrey Simpson

Session 2009/2010

First Report

COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER AND DEPUTY FIRST MINISTER

Report on theDepartment of Justice Bill(NIA 1/09)

TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT, WRITTEN SUBMISSIONS, MEMORANDA AND THE MINUTES OF EVIDENCE

Ordered by The Committee for the Office of the First Minister and deputy First Ministerto be printed 21 October 2009Report: NIA 18/09/10R (The Committee for the Office of the First Minister and deputy First Minister)

Membership and Powers

Powers

Membership

Table of Contents

Report

Appendix 1

Appendix 2

Appendix 3

Appendix 4

List of Abbreviations

Introduction

Committee Stage Scrutiny of the Department of Justice Bill

Consideration of the Bill

The Department of Justice (Clause 1)

The Department of Justice (Schedule 1)

Minister in charge of Department of Justice (Clause 2)

Short title and commencement (Clause 3)

Long title

Minutes of Proceedings

Wednesday 9 September 2009Room 144, Parliament Buildings

4. Department of Justice Bill

Wednesday 7 October 2009Room 144, Parliament Buildings

5. Department of Justice Bill

Wednesday 14 October 2009Room 30, Parliament Buildings

2. Department of Justice Bill

9. Department of Justice Bill

Clause 1 – The Department of Justice

Schedule – Amendments

Clause 2 – Minister in charge of the Department of Justice

Clause 3 – Short title and commencement

Long Title

Wednesday 21 October 2009Room 30, Parliament Buildings

2. Department of Justice Bill

Minutes of Evidence

9 September 2009

7 October 2009

14 October 2009

Clause 1 (The Department of Justice)

Clause 2 (Minister in charge of Department of Justice)

Clause 3 (Short title and commencement)

21 October 2009

Written Submissions

Department of Justice Bill

Jimmy Spratt

Assembly & Executive Review Committee Report January 2009

The appointment of a Minister

Recommendation 9

Recommendation 10

Recommendation 11

Recommendation 12

The Minister’s role in, and relationship with, the Northern Ireland Executive

Correspondence from Jim Allister

List of Witnesses

List of Witnesses

COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER
AND DEPUTY FIRST MINISTER

Report on the
Department of Justice Bill
(NIA 1/09)

TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT, WRITTEN SUBMISSIONS, MEMORANDA
AND THE MINUTES OF EVIDENCE

Ordered by The Committee for the Office of the First Minister and deputy First Minister
to be printed 21 October 2009
Report: NIA 18/09/10R
(The Committee for the Office of the First Minister and deputy First Minister)

Committee Stage Scrutiny of the
Department of Justice Bill

Wednesday 9 September 2009
Room 144, Parliament Buildings

Wednesday 7 October 2009
Room 144, Parliament Buildings

Wednesday 14 October 2009
Room 30, Parliament Buildings

Wednesday 21 October 2009
Room 30, Parliament Buildings