ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE

OFFICIAL REPORT

(Hansard)

Inquiry into Devolution of Policing and Justice Matters

 Tuesday 3 July 2007

Members present for all or part of the proceedings:

Mr Jeffrey Donaldson (Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Mr John O’Dowd
Mr George Robinson

Witnesses:

Mr Peter May ( Northern Ireland Office)
Ms Clare Salters ( Northern Ireland Office)

The Chairperson (Mr Donaldson):
I welcome Peter May and Clare Salters to this meeting of the Assembly and Executive Review Committee. I apologise for keeping you waiting, but we had some issues that we needed to discuss in detail. Before we proceed, I draw members’ attention to the paper that has been provided by the Northern Ireland Office (NIO). Members will have received copies of that paper, which were circulated yesterday.

I also remind members that this briefing session is being recorded by Hansard with a view to the official report of these proceedings being reproduced in any report that the Committee might ultimately publish.

I declare an interest as a member of the Privy Council and as a member of the Northern Ireland Policing Board. Have members any relevant interests to declare?

Mr O’Dowd:
None.

Mr Attwood:
None.

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

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

The Chairperson:
We have asked the officials from the Northern Ireland Office to provide the Committee with an assessment of the Secretary of State’s expectations regarding the report that he wishes to receive from the Assembly. Furthermore, the officials will be able to report on the practical arrangements that are being made for the transfer of policing, security and criminal justice matters.

Peter and Clare have already advised the Committee of their respective roles in the Northern Ireland Office, and I invite them now to address the Committee.

Mr Peter May ( Northern Ireland Office):
We will rehearse the two areas set out in the paper that the Committee received. We see this meeting as the start of a dialogue between the Committee and the NIO, and we are happy to help the Committee to meet its remit and to make its report by March 2008. If we are unable to answer any questions today, we will send the Committee a written response following today’s meeting. Clare will address the first of the two questions.

Ms Clare Salters ( Northern Ireland Office):
The first question concerned what the Secretary of State expects to be contained in the report from the Assembly at the end of March 2008. The purpose of the report is to provide information on the outstanding issues that will enable the transfer legislation to be drawn up and the practical arrangements to be made. There is nothing particularly complex or detailed in what is required, and we have set out the key elements in our paper. The report should indicate the Assembly’s views on the likelihood and timing of a request for the transfer of policing and justice functions.

The NIO discussion document published in February 2006 stated clearly that if policing and justice functions are to be devolved, then the critical mass of those functions will have to be transferred together or the system will not work as a coherent whole. Therefore our working assumption is that if the Assembly wishes to have responsibility for policing and justice, it will want the glut of those functions to be transferred.

The discussion document also flagged up a number of issues that could be transferred or could remain under the responsibility of the Northern Ireland Office, as the Assembly sees fit. It would be useful to know the Assembly’s emerging thinking on the status of those “optional extras”. I do not mean to sound as though I am trivialising them, but it would be useful to have the Assembly’s thoughts on areas that do not require to be transferred for the system to work properly.

For the purpose of legislative planning, we need to know the Assembly’s thoughts on departmental structures and ministerial oversight. That will enable us to ensure the proper order of provisions in the new legislation. We need to be guided by the Committee’s thinking on that.

The NIO will also need to know whether the Assembly is likely to request that the Secretary of State make an order to increase the number of Departments or ministerial offices from 10, which is the current restriction.

In conclusion, the NIO will need to be made aware of matters that will allow it to draw up the legislation and make the practical arrangements needed. As Peter said, we are more than happy to provide the Committee and the Assembly with any information that they may require to help in the decision-making process.

Mr May:
The second half of the paper provides information about the preparations that have been made. We aim to be ready for the devolution of policing and justice powers by May 2008, while recognising that the date on which such a request will be made is a matter for the Assembly. Therefore, our efforts across the wide range of administrative and organisational changes required to give effect to devolution of policing and justice are focused on being ready for that date, to enable devolution at the point that the Assembly requests it.

The paper sets out in detail some of the areas that are being explored. However, we do not believe that the Committee will want to concern itself with those areas, because — for the most part — they are organisational and administrative.

The Chairperson:
Thank you, Peter and Clare. I shall open up the meeting to members for questions or comments on the paper.

Clare, you referred to the question of the number of Departments. Does the NIO expect the report to include the Assembly’s view on whether the number of Departments should be reduced to accommodate a new Department of policing and justice? Am I correct in thinking that the current legislation states that the number of Departments will not be increased by the creation of a new Department of policing and justice?

Ms Salters:
Section 17(4) of the Northern Ireland Act 1998 places a limit on the number of ministerial offices: it states that the number will not exceed 10 unless the Secretary of State provides differently by order.

If the Assembly wishes to increase the number of Departments, the Secretary of State must consider that request and make an order. Therefore, it would be helpful to know if that request were coming. How the Assembly wishes to structure things within the limit of 10 is its own business, but if we know how the Assembly wishes to structure the policing and justice element, it will enable us to make the practical arrangements for transfer.

Mr McFarland:
The legislation, as I understand it, states that if the Assembly has not indicated its position by 28 March, the Secretary of State intends to nominate Ministers and to devolve responsibility for policing and justice by May 2008. Secretary of State Hain was challenged on that and said that that was not what the legislation meant and that we should all work together. Why was that in the legislation other than as a clear threat or, indeed, a promise to Sinn Féin that, regardless of what everyone else did, the Secretary of State or the NIO was determined that responsibility for policing and justice would be devolved by May next year? What is the position now?

Ms Salters:
The position has not changed from that which is set out in section 4(2)(a) of the Northern Ireland Act 1998. The Secretary of State cannot transfer functions unless the Assembly votes to have them transferred to it. However, the Secretary of State was trying to avoid a situation in which there was stalemate over a decision about ministerial oversight or the departmental structure for policing and justice. That, in itself, should not be a barrier to the devolution of policing and justice, but should it become the only one, it gives the Secretary of State the power to impose the model, but not the Ministers, and is intended simply to provide a means of getting over that hump.

Mr McFarland:
I thought that it was stated somewhere in the legislation that if the Assembly did not make a decision on the election of Ministers, the Secretary of State would select them.

The Chairperson:
It is not for me to respond, but, in fairness, the Secretary of State subsequently withdrew that.

Mr McFarland:
I am aware that he subsequently said that that was not what he meant, but my understanding is that it is in the legislation. Is that correct?

Ms Salters:
I do not have a copy of the Act with me, but I can provide you with detailed clarification in writing.

The Chairperson:
From my own recollection, the Secretary of State said that he would impose a model but would not appoint Ministers. That is a summary of it.

Ms Salters:
That is my memory of the legislation.

Mr McFarland:
In the original legislation, it stated that if the Assembly had not identified Ministers by 28 March, the Secretary of State would then decide the model and powers would be devolved. I know that eventually he went round in circles and said that that was not what he meant, but why was it included in the first place? Was it simply a threat that would be removed when we all did the deal? The fact that the Secretary of State went to the media and said that was not what he meant does not change what is in the legislation.

Ms Salters:
We can write to the Committee with chapter and verse on the legislation, but, off the top of my head, it is an additional model that the Secretary of State has the power to impose. However, he does not have the power to impose Ministers on the Administration.

The Chairperson:
From my recollection, that is a fair summary, but can we possibly have written confirmation of that, please?

Mr Attwood:
I welcome what Peter May said at the start of the meeting about the NIO’s commitment to assist and report to the Committee, and I intend to rely on that. However, I have several questions on the principle of the Committee providing help, to which Clare Salters referred. Peter said that he thought that the development and agreement of protocols and memoranda is largely of an organisational and administrative nature. However, the hard detail is important. Who develops and agrees those protocols? Peter, are you saying that it is the responsibility of this Committee, working with the NIO, to develop and agree them and underpin the arrangements? I do not want you to go into any detail, but who is working on that, and are you inviting this Committee to work with you on it?

Mr May:
In most cases, the protocols will operate between the devolved Administration’s justice Ministry — if that is the model that is chosen — and the Secretary of State. Therefore, they will not be agreed until such time as there is a justice Minister to approve them. When policy issues on protocols or memoranda arise that the Secretary of State feels that the Committee should discuss, he will inform you in writing.

However, most protocols relate to matters such as respect for the independence of the judiciary, giving effect to the relevant section of the Justice ( Northern Ireland) Act 2002, the independence of the Public Prosecution Service for Northern Ireland, and so forth.

Mr Attwood:
Will you give written advice to the Committee on all protocols and memoranda that are being developed? Although the political responsibility of a justice Minister may ultimately be required to approve them, I am interested in the period between now and his or her appointment. Some 99% of the memoranda and protocols may be administrative and, therefore, of little interest to the Committee, but 1% or 10% may be of great interest. I do not want the situation to arise where the Secretary of State may decide to inform the Committee of some decisions but not others. If the NIO is to continue its dialogue with this Committee and provide it with any help that it can, it must be understood that we may need to probe into certain areas.

Before I ask you to comment on that, there is an issue about non-devolved institutions providing sufficient and appropriate information to devolved institutions on matters that include national security. There is not much time between now and February 2008. At this stage, can you map out what you mean, because there is a credibility gap between the proposals on national security and the Serious Organised Crime Agency (SOCA) and the authority of those institutions?

Is it the intention that all NIO staff will transfer en masse to the new justice Ministry? For example, what is your best assessment at this stage of whether all staff in the criminal justice branch, or any part of the NIO, will transfer to the new Ministry?

Mr May:
In answer to the first of your three questions, when we write to the Committee about the legislation, we will include details of our understanding of the protocols and memoranda. Your second question was specifically about the information that will pass between the devolved and non-devolved Administrations, particularly on national security.

Mr Attwood:
National security was just an example.

Mr May:
We want to devolve as many of the reserved policing and justice functions as possible, subject, obviously, to the will of the Assembly. We recognise the importance of very good, close interworking between the future justice Department and the arrangements in Whitehall, part of which will be a future Northern Ireland Office.

National security is an excepted matter that will not be transferred to the devolved Administration. Where the work of the devolved Administration touches on matters that are national security-related, it will be necessary to consider whether devolved Ministers require access to national security information and, if so, what level of that information they might receive, and by what means.

We anticipate producing a document that will explain how national security related issues will be handled and managed where they interface with responsibilities that fall within the portfolios of Ministers of the devolved Administration.

Mr Attwood:
Is that document going to be considered by the Review Committee, or will London decree how things are to be? Will there be dialogue about it, or will it be presented as a fait accompli?

Mr May:
I do not know the precise answer to that. I am happy to respond in writing with the details.

Mr Attwood:
From my perspective it is critical, and I would like to convince the Committee that it is critical. The Assembly, in the future, cannot be told what to do on issues of national security, and then seriously claim to have fulfilled its duty in preparing a report for the Secretary of State.

Mr May:
Clare has outlined the areas that we believe that report should address. National security will not be devolved, so there will be no dialogue.

Mr Attwood:
You have said that sufficient and appropriate information should be made available.

Mr May:
Yes, that is the objective.

Mr Attwood:
What does that mean and how will that be done? Will the information be sufficient and appropriate? That is one conversation — among many others — that we need to have with you, and I would like to know if we are going to be allowed to have it.

Mr May:
I acknowledge the points that you are making, and I will write to you in reply.

Your third point was on the transfer of staff from the Northern Ireland Office to the justice Department. In essence, the way in which transfers normally take place within the machinery of Government is that staff usually transfer with a function. The future Northern Ireland Office will deal with matters that are not transferred to the devolved Administration and will continue to have its own staff.

The majority of staff will transfer with the policing and justice functions that are transferred, and we will consider a range of staffing issues in that context, to ensure that individual special circumstances are taken into account, and we will try to be as responsive as possible. However, the broad principle is that people transfer with the functions being transferred.

Mr Attwood:
If there is time later, I should like to ask some further questions. I wish to put you on notice that I am not happy. I understand the principle of transfer, but I would like to know what that actually means for the management structure, especially the senior management structure. I am not interested in who will be transferred across so much as in what posts will be transferred across. How that works out over the next eight months could reflect upon the authority of the devolved institution.

The Chairperson:
We will invite the Secretary of State to give evidence to the Committee, and that will afford further opportunities to tease those issues out with him — if he agrees to come.

Do members have any other questions before we give Alex another bite of the cherry? Alex, do you wish to proceed?

Mr Attwood:
I wish to return to Mr McFarland’s point, mindful of the fact that the previous Secretary of State attempted to backtrack on previous statements. If there is no indication of intent from the Assembly on the transfer of policing and justice powers; if we do not have a satisfactory report by February — and public statements have been made that seem consistent with that time frame — and if, six months after next May, there is still no commitment from the Assembly on the transfer of powers, what is the British Government’s intention?

Ms Salters:
The legislation is clear.

Mr Attwood:
Did the Secretary of State not say that there would be further legislation? Does the NIO know whether the British Government have, as we speak, any intention of passing further legislation to impose the transfer of powers six months after next May, if there is no date for the transfer by then?

Ms Salters:
There is not, to my knowledge, any intention to amend section 4.

Mr Attwood:
I agree with Ms Salters about the legislation, but what about the political commitment? I am sure that Sinn Féin has an interest in this matter, as I certainly have. However, in the event that, six months after next May, no date for devolution is agreed, or if the triple lock has not been released, is there, or is there not, a political commitment to table further legislation?

The Chairperson:
In fairness, Mr Attwood, Committee members are asking questions of officials that should be answered by Ministers. I do not wish to curtail the discussion, and you are raising very serious issues — as Mr McFarland did earlier — but the purpose of today’s meeting is for officials to provide the Committee with a briefing. We are straying into issues on which it would be unfair to expect officials to give a political response — that is not the role of officials today, or at any other time, unless they have been authorised to do so.

I do not wish to curtail the discussion, but the issues that Mr Attwood and Mr McFarland have raised highlight the need for an early meeting with the Secretary of State to try to tease out the issues that have been identified. Those matters are important and require further exploration.

Mr McFarland:
The Serious Organised Crime Agency (SOCA) is reorganising and expanding, and the Assets Recovery Agency (ARA) is continuing its work. Clearly, those activities are not a matter of national security, so some oversight of that will be devolved — or will it?

I understand that SOCA is due to open a local office, which will be commanded from London — somewhat like a British FBI. Is that, technically, a matter of national security? Matters relating to organised crime involve us in Northern Ireland. How far will linkages go in relation to the devolution of oversight of SOCA to the Policing Board or to the criminal justice Department?

Ms Salters:
We will write to the Committee with more detail on that matter. The Serious Organised Crime Agency is a UK-wide body, and it operates under the law that is set in each jurisdiction. Therefore, whether it is the criminal law in England and Wales, Scotland or Northern Ireland, SOCA must operate within the legal frameworks that are set in those jurisdictions. The Assembly will set the framework for Northern Ireland, and SOCA will have to operate in that framework. We can provide the Committee with further details in writing.

Mr May:
You were correct that responsibility for the Organised Crime Task Force is among the powers that we envisage being devolved with justice and policing functions. SOCA is a UK-wide body, which will have a regional office in Northern Ireland, but its accountability will continue at national level. Arrangements are already in place in Scotland for managing the different arrangements there. As Clare said, we will write to the Committee with details, but we envisage a similar arrangement in Northern Ireland.

The Chairperson:
Mr McFarland raised a useful point, and, perhaps, the Committee will discuss it later. The Committee should examine the situation in Scotland, because there are parallels and lessons that could be learned. However, I do not know to what extent the Northern Ireland Office has examined that situation.

Mr Attwood:
Although it is not a matter on which the Committee must decide now, I want to know how you envisage the NIO engaging in dialogue with the Committee. Will it be occasional, or will you be prepared to bore into the issues with the Committee in a very dedicated way, if that were required? I want to know the extent of your offer and whether, for the sake of argument, you would be willing to bore into that work every week.

With regard to the devolution of policing and justice, can you provide a briefing on current North/South co-operation on policing-and-justice matters, and confirm whether that will continue to operate in the same way after the devolution of those matters, or whether the Executive will make decisions on North/South policing-and-justice matters?

Mr May:
On North/South co-operation, I will say briefly that co-operation on policing-and-justice matters between the two jurisdictions will continue until those matters have been devolved. After they are devolved, the accountability arrangements will change because the British-Irish Intergovernmental Conference is not responsible for devolved matters. Co-operation will then be taken forward under the auspices of the North/South Ministerial Council. The structures that were set up by the intergovernmental agreement on criminal justice co-operation could be maintained under the new accountability arrangements. However, that will be a matter for the Minister responsible for justice and the Northern Ireland Executive.

Mr Attwood:
So, on the day that those matters are devolved, there will be no North/South criminal justice co-operation, as there would have been on the previous day when the matter was reserved by the British Government?

Mr May:
Clearly, it falls under the auspices of the North/South Ministerial Council, not those of the British-Irish Intergovernmental Conference.

The NIO has already signalled a willingness to work with the Committee and to explore in more detail the issues that it has indicated, through the Secretary of State, to be those that it believes are part of the Assembly’s fundamental remit. The NIO is, therefore, happy to work with the Clerk and others to organise that work in the most appropriate way.

Mr McFarland:
Mr Attwood and I were members of the first Northern Ireland Policing Board. An event occurred around 18 months or two years ago. Mr Attwood will recall that, out of the blue, there came a criminal justice agreement between Dublin and London, and difficulty arose over how to take cross-border co-operation forward. As I recall, the parties were not given sight of it.

Some legislation was put in place, which, I believe, suggested that civil servants in both jurisdictions would develop a criminal justice cross-border co-operation agenda. In the letter that you will write to Mr Attwood or to the Committee, will you identify what good work has been done in the interim by the NIO’s group of civil servants who were set up to advance that agenda?

Mr May:
I am happy to do that.

The Chairperson:
There are no more questions. I thank you, Mr May and Ms Salters, for being present with your team. The Committee appreciates your willingness to co-operate with it and to assist it in its work. It would be useful if you were to indicate to the Secretary of State that, in due course, the Committee hopes to hear from him as well.