ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE
OFFICIAL REPORT
(Hansard)
Devolution of Policing & Justice
16 October 2007
Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson
Witnesses:
Ms Dawn Purvis ) Leader of the Progressive Unionist Party
Stewart Finn ) Progressive Unionist Party
David Rose )
David Ford ) Leader of the Allliance Party
Dr Stephen Farry ) Alliance Party
Sir Alastair Fraser ) Public Prosecution Service
Ian Hearst )
Raymond Kitson )
The Chairperson (Mr Donaldson):
Good morning. I welcome Dawn Purvis, leader, and executive members David Rose and Stewart Finn, of the Progressive Unionist Party. You are very welcome to this Committee meeting. As you will be aware, the Committee is conducting an inquiry into the devolution of policing and justice matters. You have kindly provided the Committee with a written submission, and we look forward to hearing more from you this morning.
I now invite Members to declare any relevant interests before we proceed with the oral evidence session. I declare an interest as a member of the Privy Council and a member of the Northern Ireland Policing Board.
Mr G Robinson:
I am a member of the Limavady District Policing Partnership.
The Chairperson:
Given that no further interests have been declared, I shall proceed.
Dawn, we would like you to make a short opening statement, if you wish to do so, after which members will have the opportunity to ask questions. I should explain that previous witnesses who have appeared before the Committee as part of this inquiry have explored three particular components of the Committee’s terms of reference. The first is the matters to be transferred, and we welcome any views that you may have on the policing and justice matters that you believe should be transferred. The second component is ministerial models. Do you have any views on proposed models? In other words, do you think that there should be one or two Ministers or one or two Departments? The third component is the timing and preparations for devolution. Do you have a view on the timetable set out by the Government in the St Andrews Agreement? Do you have any views on the preparations that need to be made for the devolution of policing and justice powers?
Ms Purvis, I invite you to make your opening statement.
Ms Purvis (Leader of the Progressive Unionist Party):
Thank you. I thank the Committee for inviting us to give evidence today. We hope that the work of the Committee will inform the public of the machinations involved in the devolution of policing and justice powers. I do not intend to make a long-winded statement as I hope that more details can be drawn out in the question-and-answer session.
Further to our submission to the Committee, it is the Progressive Unionist Party’s belief that all policing and justice matters should be devolved fully to the Northern Ireland Assembly, with the exception of those matters concerning national security and some of the more contentious issues. Although we would like devolution to occur as smoothly and as quickly as possible, we believe that sufficient confidence must be built within the community before that can happen. We therefore believe that the conditions for devolution are more important than the date for devolution. However, I must add that I believe that where there is a will, there is a way. If sufficient consensus can be reached — not only among the parties, but among the public — we believe that that devolution can happen sooner rather than later.
We were not overly struck by any of the departmental models that the NIO proposed in its consultation paper. We believe that, in the longer term, there should be a single Department with a single Minister. However, given the lack of public confidence at the moment, and in order to increase cross-community confidence and accountability in the Department, we believe that, at this point, there should be a single Department headed by two Ministers, one nationalist and one unionist. The posts should be allocated under the d’Hondt system, with ministerial positions being deemed filled once Ministers have been selected by both unionists and nationalists. I hope that that clarifies my party’s position on the matter, and I hope that we can explore some of the issues in greater detail during the question-and-answer session.
The Chairperson:
Thank you very much, Dawn.
You said that your party’s preference was for the devolution of most policing and justice matters, and you mentioned contentious issues and national security. The national security issue is obviously very clear.
Do you have examples of what you think may be contentious issues, or have you done any work on identifying what contentious issues that you feel should not be transferred?
Ms Purvis:
Although the PUP would like to see 50:50 recruitment to the PSNI coming to an end in 2010-11, as Patten envisaged in his report, given the lack of consensus amongst the parties over that issue, we believe that it would probably be better for that to remain a reserved matter.
We know that the parades review body is considering the whole issue of parading, and the need for a Parades Commission. We are of the firm belief that the Parades Commission should be scrapped. However, again, given that there is little consensus amongst the parties as to whether the Parades Commission should continue to exist, it is probably better that that also remains a reserved matter until such times as the parades review body publish their report and make recommendations that people can buy in to.
The Chairperson:
You also touched on the departmental model and your preference in the long term for a single Department and Minister to oversee policing and justice matters, but that initially there should be a single Department with two Ministers who would be appointed by the D’Hondt system. Is it your view that those two Ministers would be co-equals, or that there should be a Minister and a junior Minister? Do you have any preference for the initial departmental/ministerial model?
Ms Purvis:
Yes, we believe that they should be co-equals, and should share responsibility for the Department and make joint decisions.
The Chairperson:
In the longer term, if there is to be a single Department with a single Minister, do you think that that Minister should continue to be appointed by the D’Hondt system, or by another method?
Ms Purvis:
Yes, we believe that a Minister should be appointed by the D’Hondt system, in keeping with the normal pick of Departments when that method is used.
Mr O’Dowd:
Thank you for your presentation and written submission, Dawn. An area of interest to me — and it is an area that we, as republicans, have to examine — is the remarks made or the stance taken by some unionist politicians that there needs to be sufficient confidence in the unionist community before policing and justice matters can be devolved. At times, some unionist politicians do their community a great disservice because they almost portray them as having no vision or confidence in their own position. I am not being patronising when I say that; that is not the image or the view that I have of unionism, certainly when their history and their present position is considered.
What is your view of the position that has been taken by some unionist politicians? I know that you have said that where there is a will, there is a way.
That is an interesting comment. As a grassroots based politician, and a grassroots based political party, what do you believe the mood to be in the unionist community? Furthermore, what measures can we, as republicans, and the wider political base, take to ensure that confidence in the unionist community and the wider community in general is enhanced?
Ms Purvis:
As I said, where there is a will, there is a way. You probably do not get to hear the comments that I get to hear from the loyalist working-class community or the wider unionist community. The epitome of the comments that I hear is that Sinn Féin are fifth-columnists who want to destroy the Ministry, policing, and the criminal justice system.
We have all heard the comments about Gerry Kelly becoming the Minister for policing —quite frankly, that frightens people. There are lots of measures that can be taken to try to alleviate those fears. The work of this Committee is one way to do that because people do not understand how policing functions in Northern Ireland, and they do not understand how the criminal justice system functions in Northern Ireland.
For example, a Minister with responsibility policing will be purely in charge of the budget; the Chief Constable will continue to have operational independence and to be in charge of what happens daily with the PSNI. Not a lot of people in the public understand how policing actually works, how a Minister would function regarding policing, or how a Minister would function regarding the criminal justice system.
There must be more clarity, and more information must be put into in the public domain to reassure people about how the system operates. As I mentioned at my party conference on Saturday, people must have confidence in the structures of state and the Assembly.
Although the media portray corporate agreement in the Executive at almost every turn, the public must see parties falling out, making up and moving on. People need to see a sign of maturity, because although there may be disagreements about ministerial decisions, that is the cut and thrust of politics. As parties agree to move on, that will be a sign of Northern Ireland moving on to a more peaceful and stable future.
Mr O’Dowd:
There may, in fact, be a disagreement in the Chamber now about a ministerial statement.
I agree with that interesting point that parties should be able to fall out, apportion blame and move on in a mature way. To summarise, parties must start to consider what policing means to our local communities and what the devolution of policing and justice will mean for us. Is the unionist community, or society in general, having that debate?
Ms Purvis:
No, but the debate must happen.
Mr G Robinson:
You indicated in your submission that the conditions for the devolution of policing and justice are more important than the date. Should powers be devolved by the May deadline? Is there sufficient community confidence for that to happen?
Ms Purvis:
If there is the will and sufficient confidence, it can happen by 8 May 2008. It remains to be seen whether there is the political will to ensure that it does. The work of this Committee, more public information, and a demonstration of maturity by the Executive can all help to create the conditions whereby there is sufficient confidence.
There will never be total confidence in the devolution of policing and justice, but we must go some way to allaying the fears of the community to ensure that it happens.
Mr McFarland:
You mentioned the operational independence of the Chief Constable. Traditionally, the Northern Ireland Court Service has been at arm’s length and the prison service has operated as an agency. I do not know whether you read the transcript but when the Lord Chief Justice appeared before this Committee, he advocated a model that had no connection with the Minister. Therefore, the Court Service would not merely be at arm’s length, but completely separate. Should it be that far distanced from ministerial control or should it stay roughly where it is now?
Ms Purvis:
To be honest, I have not examined how the Scottish or Irish models work, with their court services being the control of the Lord Chief Justice. However, I have some initial concerns about how the victims of, and witnesses to, crime are treated by the judiciary and the Northern Ireland Court Service.
Recently, a 5-year strategy was published, which is designed to give the victims and witnesses a greater voice in the Court Service. However, the traditional view is that judges are aloof and separated from reality. To remove the Court Service even further away from the functions of society and political influence causes me some concern. The Lord Chief Justice has made great strides during his term in office in an attempt to reach out and relate more with what happens in society. Although I have concerns, the model that he suggests should be examined in more detail.
Mr Attwood:
I want to develop Alan’s point. Objectively, you are right that the judiciary has been too removed from the rest of society and that there must be a much more appropriate relationship.
If that is what you are indicating, I would certainly concur with that in objective terms. However, I have a concern — and maybe it goes back to some of the comments you made to John O’Dowd — that there will be a tendency among one or two parties to try to interfere a bit too much with the proper administration of policing and justice, and that they will try to interfere inappropriately.
Are you concerned that there might be one or two parties that might assume too much power and authority if they were to assume a justice ministry? Given that you were a member of the Policing Board until recently, would you be concerned that in those circumstances the independence of the Policing Board, the policing institutions, etc, could be compromised in a way that would undermine the confidence that has been developed over the past five or six years, which includes PUP membership on the Policing Board.
Ms Purvis:
Are you referring to Ministers influencing politically the Courts Service or the Probation Board?
Mr Attwood:
Or Police Service.
Ms Purvis:
Or the Police Service? It remains to be seen how they could have any influence. Taking policing and justice as one side of the issue, there is the Chief Constable, who has operational independence and there is the Policing Board, which has oversight and accountability of the Chief Constable and his top team. What is a Minister’s role in policing? Is it purely to fulfil the role that the NIO and the Secretary of State currently have? If that is the case, it would be legislative and it would look after the financial budget.
However, I think that the Policing Board must remain in place as the organisation with ultimate oversight of the PSNI. The Policing Board could then inform the work of the Minister — as a tool of the Department, if you like — and, therefore, the PSNI would remain operationally independent from the Department. Similarly, the agencies that function within the criminal justice system, as they do now — and I know that Alan said that they function at arm’s length —would come in again within a Department. Ultimately, the Department has responsibility for those agencies, the budgets of those agencies and how they function, but there is a certain degree of independence within those agencies and how they run, and that should be protected.
Mr Attwood:
I agree, and I think that they should be protected. However, I do not think that the Policing Board should be a tool of the Minister or Ministers — whoever they might be.
You say that you support the principle of a shared ministry. What model of shared ministry would the PUP support? Should there be two equal Ministers with equal authority, or should there be a senior Minister and a junior Minister — as proposed by the British Government? What model, or variation of those models, would the PUP be minded to support?
Ms Purvis:
I have already answered that question. The PUP would support two Ministers of equal stature.
Mr Attwood:
I am sorry; my mind must have been elsewhere. I apologise.
The Chairperson:
Dawn, I want to return again to the contentious issues we referred to earlier. The Committee is looking at whether there could be sufficient safeguards built into the system — be it in the Department, the Assembly or the Executive — for example, by providing the cross-community voting requirements in the Executive, the Assembly, etc. In the event of such safeguards being provided, contentious issues such as 50:50 recruitment and the parading issue could be devolved. Would you have a view as to whether it would be appropriate if safeguards were built in that devolution of those matters should take place, or do you feel that they are so contentious that, at least in the short term, they should remain reserved matters?
Ms Purvis:
Too many safeguards restrict people in their ability to do their jobs. I would be better if the parties could reach consensus around the issues. The PUP wants rid of the parades commission; it is not seen as providing the way forward for parades in Northern Ireland. If the parades review body has anything to do with it, the death knell of the Parades Commission is on its way, and it is right that that should happen. In the absence of that, the Parades Commission should remain a reserved matter.
The Chairperson:
In your opening statement and written submission, you mentioned the importance of bringing along public confidence. Do you have any views on what indicators could be used to measure public confidence? For instance, do the Independent Monitoring Commission’s reporting processes establish public confidence on policing and justice?
Ms Purvis:
The IMC has played a role in achieving political agreement through its reports on paramilitary activity and normalisation. However, its future role remains to be seen. Benchmarks of public confidence have been established through various polls in which the public have been asked questions, and their responses examined to establish if sufficient confidence is being built. Those polls should continue to be used. An August Ipsos MORI poll asked questions of the public to establish if there was sufficient confidence around the devolution of policing and justice. The results of such polls should be used as a benchmark and built on, and the public should continue to be asked those questions. However the polls should be conducted in a political atmosphere in which other things are happening. As I said previously, the Government must be mature enough to make decisions, fall out and move on. It is also important that the Government inform the public of what is happening, because there is not a lot of information available on what the devolution of policing and justice will involve and how it will work out. I know that the Assembly and Executive Review Committee is exploring those issues, but the access to that information could go a long way towards alleviating the fears of the unionist community.
The Chairperson:
The poll that you referred to indicated in its responses that about 19% of unionist respondents felt that the May 2008 deadline was appropriate and would be met. You stated that political will can help to influence public confidence. Setting that aside — and using your experience and contact within the unionist community — do you sense that there is sufficient confidence to support devolution by May next year?
Ms Purvis:
There is not. Polls must ask different questions. Rather than asking if an individual believes that the devolution of policing and justice can be achieved by May 2008, polls should ask individuals what fears they might have about the devolution of policing and justice by May 2008, or what he or she understands by the devolution of policing and justice. A more detailed explanation should be provided so that the public can understand exactly what is involved.
The Chairperson:
Would David or Stewart like to add anything to what Dawn has said?
Mr David Rose (Progessive Unionist Party):
No.
Mr Stewart Finn (Progressive Unionist Party):
No.
Mr O’Dowd:
I want to make some comments on the public confidence that is being discussed. We must prove to people that we can run Government — and you have talked about Members falling out and joining up again — but that also applies to policing and justice. The main topic of debate on most of our morning radio shows and among the public relates to concerns that people have about their safety in situations ranging from antisocial behaviour to murder and high-profile crime in their communities. A local control system that reflects the views of the local communities should be in place, because the courts seem to have a revolving door principle — and I am not advocating that everybody who goes into court should be locked up: it should be a last resort. The best way to take control of those issues is through the devolution of policing and justice, but if that does not happen and such crimes against society continue, is there a danger of a collapse in confidence in the system?
Ms Purvis:
I do not think so, because the PSNI is operating now as it has operated for a long time. People are beginning to see improvements in policing, although that is sometimes difficult to see in the community from which I come, due to the increase in antisocial behaviour and criminal damage.
That is about getting policing right, making operational, day-to-day decisions and building relationships between the community and the PSNI to tackle those issues.
You mentioned a revolving-door policy. I want a criminal justice system that tackles and reduces, rather than develops, recidivism. However, that is about lobbying and people power proving the aspects of the criminal justice system that work. There is a greater tendency to use restorative justice principles, not only by the PSNI but throughout the criminal justice system. However, the public will not blame the lack of local control if that does not work, because they do not understand how it works.
Mr Attwood:
Although the transfer of policing powers will be important, the vast majority of policing powers have already been transferred. Therefore, the formal transfer of those powers from the Minister there to the Minister here will not be the magic wand that will greatly enhance levels of confidence in communities. Over the last five or six years, as all the parties on the Policing Board are beginning to appreciate, most of the power and authority has moved to the Policing Board.
The review of the Parades Commission will make its recommendations soon. I am worried that a recommendation might emerge that gives responsibility for parading matters to politicians. The Chief Constable or the community in general should not be faced with a situation where responsibility for parading matters rests with politicians: certainly not without community safeguards. Given that you want the Parades Commission abolished, and given that one proposal may be that politicians at district council level would have responsibility for parades, what is the PUP’s alternative for how to manage contentious parades, if it is not the Parades Commission or politicians?
Ms Purvis:
The whole set-up of the Parades Commission goes against the principles of natural justice. If you want to have a parade, you fill in a form and go to the Parades Commission — if you happen to engage with it — and tell it why you wish to have that parade. Those who protest against the parade go to the Parades Commission and tell it why they do not want the parade. However, the organisers of the parade are not allowed to have sight of any of the evidence that is presented to the Parades Commission about why the protesters object to the parade. That goes against the principles of natural justice.
Ultimately, the Parades Commission is the arbiter of what happens around a contentious parade. By the same token, it sees itself as the mediator. You cannot fulfil the dual roles of a mediator and an arbiter at the same time; you must be one or the other. Admittedly, the current chair of the Parades Commission has made great strides to try to use mediation more, but ultimately the Parades Commission is the arbiter.
Local resolution of parade disputes has been successful. That process could involve local politicians, and I know of instances where local councillors have been involved. Local forums, made up of all interested groups and stakeholders, including community representatives, representatives from the Loyal Orders, band representatives, police representatives and others of community influence, can get together and resolve the issues locally. Therefore, I believe the Parades Commission should be scrapped.
The Chairperson:
I thank Dawn Purvis and her colleagues for their evidence. The Committee appreciates it and will keep you informed of the Committee’s work on the enquiry.
The Chairperson:
I welcome Mr David Ford, leader of the Alliance Party, and his colleague, Dr Stephen Farry. You are both welcome to give evidence on the Committee’s inquiry into the devolution of policing and justice powers to the Northern Ireland Assembly. Before proceeding, I invite Committee members to declare relevant interests. I declare an interest as a member of the Privy Council and the Northern Ireland Policing Board.
Mr I McCrea:
I am a member of Cookstown district policing partnership.
Mr G Robinson:
I am a member of Limavady district policing partnership.
Mr Kennedy:
I have nothing to declare.
The Chairperson:
Thank you, members. I will explain to David that the Committee has been exploring three components of the terms of reference for the inquiry, which comprise: the matters to be transferred; the ministerial models; and the timing and preparations for devolution. I invite you to make a short, opening statement on behalf of your party. I will then invite members to ask questions or explore further issues with you.
Mr David Ford (Leader of the Alliance Party):
I thank the Chairperson for that introduction and for the Committee’s invitation to give evidence. I would like to place on record our appreciation of that. However, at the same time, it is appropriate that I also place on record my party’s disappointment that none of its members are included in the Committee. There are issues about inclusivity that need to be addressed by the Assembly, on a wider basis. Nevertheless, I appreciate today’s invitation to the Committee meeting.
The Committee has already received papers from the Alliance Party. I will refer, briefly, to the three key sections that you have outlined. I will address each issue in the order in which we have dealt with it in our paper. First of all, I will deal with the issue of timing. We had a rule of thumb some time ago that, whilst we saw matters being more condition-led than calendar-led, a working, fully functioning Executive over a period of a little more than a year — which we expressed, at that stage, in terms of two marching sessions — might perhaps be an indication that the Executive was capable of dealing with other issues. At that point, the question of transferring justice powers would become appropriate.
However, it is not just a matter of a simple calendar and looking towards a date next summer. It is a matter of issues being shown as leadership and delivery by those who constitute the Executive, to demonstrate that there is progress that can be built on as regards to the important power of justice matters. As far as the individual powers and responsibilities to be transferred are concerned, we are broadly happy with that which was set out in the NIO document, ‘Devolving Policing and Justice in Northern Ireland: a Discussion Paper’. We understand that there has been further agreement with the Committee.
We are concerned that there should be suitable checks and balances to ensure that there is no question of interference with the operational decisions of the Chief Constable, or other officers, and to ensure that there is a balance between ministerial responsibility, accountability and the operational duties. Perhaps the NIO has not spelt that out as well as it might have.
Our principle concern lies on the issue of appropriate levels for structures. As participants in the early part of last year’s discussion, in the Preparation for Government Committee, we supported and endorsed the concept of a single Department of justice and policing — which now seems to be broadly accepted.
However, we have reservations about all the proposed models, regardless of whether they are in favour of a single Minister, dual Ministers, or senior or junior Ministers, because, fundamentally, the structures in other Departments seem to provide insufficient guarantee of the necessity for consensus and collectivity that justice requires. Justice cannot be dealt with in the same way as other Departments are, whose Ministers operate within their own field of responsibility without a great deal of collectivity around the Executive table. There are huge issues for our party about what could go wrong if the Department were to become excessively politicised, and if there were no collectivity across all those serving in the Executive, as they deal with the difficult issues relating to justice.
The models that have been suggested by the NIO have not dealt with that need. It is no great secret for those who sat on the Committee on the Programme for Government last year that we would like to see greater collectivity in the Executive as a whole. However, justice is one key area where the structures need to facilitate that full level of collectivity. There must be that assurance. There will be confidence in the entire community if full collective responsibility operates in the field of justice, but otherwise major difficulties will lie ahead. Undoubtedly, difficulties will arise in a field as intense and complex as devolution of justice, and if we do not have that collectivity, it could destabilise the Executive as a whole.
The Chairperson:
You touched on your preference for a single Department of policing and justice, but you have avoided giving a preference for one Minister, co-equal Ministers, or a Minister and a junior Minister on the basis that you feel that there should be collective responsibility. If there were a single Minister, should they have additional reporting mechanisms to the Executive, with collective responsibility being exercised in the Executive and the Minister being the Executive’s representative in the Department? Are you suggesting that the Executive collectively runs the Department with perhaps a Minister as its consul or representative?
Mr Ford:
Dr Farry will provide the detail of that point, but the issue that must be addressed is the way in which collective responsibility Government operates in other places, such as London, Dublin, or even Edinburgh or Cardiff. That does not mean that each individual Department is run collectively by everyone, but that there are suitable protocols and established procedures to ensure that those matters are covered. It is preferable for everything to operate on a collective basis. We may be unable to attain that, but there will be major problems if justice is not handled on a collective basis.
Dr Farry:
A single Department headed by a single Minister is the most logical and efficient way forward, but the emphasis must be on how the Executive operate collectively across the whole range of Government functions. If we have an Executive working to the similar norms of collective responsibility, which is the case in London, Cardiff, Edinburgh and Dublin, the fears about the consequences of having a single Minister would be addressed to a large extent. Therefore, the emphasis does not need to be on the precise governance arrangements for a single Minister and a single Department — it lies in how the Executive do their business. If the Executive were to do their business in a collective manner, that would add to the community confidence which would facilitate the early devolution of policing and justice.
With reference to a single Department headed by a single Minister, the Alliance Party is concerned that the British Government have passed legislation saying that the head of that Department can only come from one or other of the two largest designations, which effectively means that only a unionist or nationalist can head up that Department.
A situation might arise in which the Alliance Party or any other party that is neither unionist nor nationalist would qualify under d’Hondt for a place in Government. However, under that legislation our party representative would be prevented from becoming the head of a Department of justice and policing. That situation raises serious equality considerations.
Mr Kennedy:
I welcome Stephen and David. The Lord Chief Justice gave oral and written evidence to the Committee, in which he stated that he would prefer that the Court Service should be administered by a non-ministerial Department. Does the Alliance Party have any opinion on that?
Mr Ford:
We have not formed any specific opinion on that, but having expressed our preference for a single Department, we do not believe that there is virtue in splitting up the functions of justice among several different Departments. We believe that it should be entirely possible for the Court Service to be handled as other agencies are within that Department.
Mr Kennedy:
The issue of community confidence has been raised. In your view, is there enough confidence to enable the transfer of policing and justice powers at an earlier stage?
Mr Ford:
It would be difficult to state that there is sufficient community confidence at this point. As I said in my opening remarks, much will lie with the work that the Executive will do over the coming months to demonstrate that they are a coherent body. The early presentation of an agreed Programme for Government would be a sign that the Executive was assuming their responsibilities and would enhance community confidence.
We are living through a period in which people are not sure whether they believe what is happening. Most people appear to me to want to believe what they think is happening, but there is a certain amount of suspended disbelief. That is where the obligations lie with the members of the Executive to show collectivity, to show that they are governing Northern Ireland well and to live up to their responsibilities. It is entirely reasonable, if that were to move forward rapidly in the coming months, that the timetable for next summer becomes feasible.
Dr Farry:
Our primary view is that confidence is no longer defined by the bona fides of any particular individual or party that may hold the policing and justice portfolio. Those issues have been addressed by the political events of the past 12 months. The question is whether the Executive are capable of operating collectively, and whether the wider community can have confidence that policing and justice will be handled in a professional manner, and without the interference of political factors from either side in the impartial delivery of justice and the rule of law.
Mrs Hanna:
David and Stephen have expressed concern that the office could become politicised and that the model did not demonstrate sufficient protocols and procedures to obtain consensus and collectivity. I would like to tease that idea out a little; what model would ensure the degree of consensus and collectivity that is required, not only to demonstrate confidence, but to ensure that the office is not over-politicised?
Mr Ford:
The difficulty in answering that question is that we would seek to have a considerably greater level of collectivity in the Executive as a whole. We believe that what we have already witnessed in recent weeks shows that the appropriate level of collectivity is not there. We want to find a way to build that essential collectivity into the matters surrounding the devolution of justice.
Mrs Hanna:
I agree with what you are saying.
Mr Ford:
In the present circumstances, in which that collectivity does not exist across other Departments, it is difficult to see how it would operate. Clearly, protocols must be established for the discussion of significant issues in the Executive as a whole, and on a rather greater scale than appears to be happening on some other matters that impinge on justice at the moment. Those protocols must specify ways of ensuring a sufficient degree of consensus.
Similarly, there must be a sufficient degree of accountability that allows a Minister to respond when urgent decisions have to be taken. It is not easy to draft such protocols from outside the Executive or — dare I say it — from outside this Committee, but we are saying that setting that type of back-up in train is essential. The alternative is a serious destabilisation to the whole process of devolution if matters go wrong in the field of justice. Such destabilisation would not occur if matters went wrong in the Department for Employment and Learning for example.
Dr Farry:
The current arrangements for the Executive are based on the concept of collectivity, as far as it can exist, with mutual vetoes. Therefore, decisions are taken by the Executive either when a Minister forces the discussion of an issue, or when another point of view is taken into account due to a fear that a Minister from a different party will use their veto. That is a negative way of trying to engender the co-operation that the community wants to see.
We want a situation where Ministers have the confidence to go the Executive and hammer out common positions with their ministerial colleagues, irrespective of party allegiance. Then in turn, when Ministers take stands on extremely difficult issues, their ministerial colleagues will fall in behind them to support the collective view of the Executive. There is a very difficult issue coming up relating to the wider issue of criminal justice, which is being considered by a Minister. However, there is no evidence that the Executive are uniting behind that Minister on the approach that they may take over the next few days or weeks.
Mr I McCrea:
I thank David and Steven for coming. I am sure that you have read — if not in Hansard then in the newspapers — about the Lord Chief Justice’s preference for a non-ministerial Department to govern the Northern Ireland Court Service in order to eliminate political interference. What is your view on that opinion on that type of judicial set-up? I read in your submission that you are happy about the proposed transfer of matters — do you feel that there are any excepted matters that should also be transferred, or are you happy that they stay in the remit of Westminster?
Dr Farry:
First, regarding the issue of the Lord Chief Justice’s views, we want a set of arrangements that are as normal as anywhere else on these islands. If the norm is that the court system is governed by a Department and headed by a Minister, then that should be aspired to in Northern Ireland. The Lord Chief Justice’s comments reflect the existing concerns over individuals seeking to influence decision making, which is something that we want to avoid. However, despite that being the current public perception, many criminal-justice and policing matters are already effectively devolved. Those powers are not devolved to the Assembly for policy-making decisions, but instead at the operational end with bodies like the Policing Board, where locally elected representatives take decisions on policing and criminal-justice matters.
It is important to stress that devolution means that a Minister and a Committee from the Assembly make decisions about policy and resources, rather than directly interfering in operational decisions. That is the accepted norm elsewhere, but we may want to create further checks and balances — which we alluded to in the paper — to ensure that that type of interference cannot happen. Therefore, the fears that have been expressed should prove to be unfounded.
In answer to the second question, again the Alliance Party wants a relatively normalised situation where the powers that usually reside with a regional assembly are transferred.
However, we accept that there are issues of national security that need to be exercised on a UK-wide level. The terrorist threat has moved from a local stage to an international one that affects all of the UK. Therefore there is a need for that type of structure to be put in place. It must be stressed that in most international examples policing is rarely either a national function, or entirely a local and regional function. The usual pattern is that functions are split between the regional and the national tier — for example France and the United States — and in the UK that is also the logical way.
Concern has been expressed on the accountability of national agencies doing business in Northern Ireland, and the answer to that lies in ensuring that there are proper accountability structures in place in all of the UK, rather than trying to have a different arrangement in the Province.
The Chairperson:
Scotland is moving towards a model that is similar to that proposed by the Lord Chief Justice, and the Republic of Ireland has a model for its court service similar to that proposed by the Lord Chief Justice. When you refer to the norm do you mean the norm of England and Wales i.e. the courts service comes under the Department of justice?
Dr Farry:
Yes, that is the basis of the comment being made. However, it is not an issue either way how things are done, and we are prepared to be flexible in responding to that, because it is not the most fundamental issue for us, or for the public.
Mr McFarland:
I want to tease out the ministerial model a little more.
You have said that you are after a collectivity with the Executive, but we are in a limbo situation at the moment, because one of the problems is that we do not have a Programme for Government. Therefore, none of the Ministers are signed up for anything, although we will have the programme soon.
Mr Ford:
We have taken the Pledge of Office.
Mr McFarland:
Yes, but we will have a Programme for Government, and all the Ministers will be agreed on what has to be done in the following year. That has more chance of collectivity.
If we could get an agreement that power will devolve sometime next year, the general opinion is that there should be a Minister and a super junior with equal powers, which is more cost effective than having two Ministers, and would incorporate cross-community safeguards.
Are you saying that the Alliance Party would not support the devolution of policing and justice on a model similar to that until you get whatever collectivity levels you want in the Executive? Would you hold back the devolution of policing and justice if there was a Minister and super junior on the grounds that the Executive was not fully collective?
Mr Ford:
We do not yet have the example of, what you described as, Minister and super junior, but we do have the example of OFMDFM. There appears to have been significant problems in the operation of the first Assembly, when difficult decisions arose when there was a difference between FM and DFM, and each had a veto on any decision to be taken. Some have suggested that that is the current position around the appointment of a Victims Commissioner, which may not be accurate, but is the way it is perceived. The danger is that collectivity is not achieved merely by having two Ministers in the Department, whatever the precise nature of the arrangement between them is. Potentially, all there will be is a veto between them, as opposed to the concept of collectivity, which is significantly more embracing than merely two individuals and the two parties that they represent.
Mr McFarland:
You may not get that, because there may not be agreement on changing the system dramatically from what has been agreed already with the Pledge of Office and the ministerial code, etc, and that is what the whole Executive, and everything else, is predicated on. I know that is not where you want to be.
Mr Ford:
You are asking us to give an opinion on a hypothetical situation.
The honest answer is that I doubt whether our opinion would hold much sway with members of the other four parties or the sovereign Government, judging by the experience that we have had over the last couple of years. The Alliance Party will judge what emerges from the Committee and take a decision on it. However, a fundamental point is that there must be significantly more collectivity than is merely shown by two people having vetoes in the Department.
Dr Farry:
Outside the context of changes and structures, the issue of collectivity becomes an issue of how individual Ministers relate to one another. I do not think that issue is overly buffered by whether or not there is a Programme for Government in place. In the last Assembly, which had Programmes for Government, there were problems with collective responsibility in the Executive. There is still potential for that sort of problem, even though the new Programme for Government is imminent.
The Alliance Party wants to see how the Ministers relate to one another and whether they are prepared to support their colleagues in making difficult decisions, rather than leaving them to go solo and take the flack, or leaving them to their own devices. If we can see that Ministers are serious about pulling together, and even ducking opportunities for short-term political game, we and the wider community would have more confidence in them. Perhaps that would open up opportunities for devolution sooner than has been anticipated by some.
Mr McCausland:
Thank you, David and Stephen, for your contributions. You mentioned that the timing of devolution should be determined by the correct conditions existing in society. You talked about the conditions in the Assembly. What do you think are the right conditions and indications in the wider society?
Mr Ford:
I said earlier that Alliance had initially been talking about two marching seasons. If society could go through the most difficult period of the year in reasonable harmony twice in a row, that would indicate that attitudes were changing. It would also indicate that the Executive was able to deal with issues over that sort of timescale. That is still, broadly, the sort of structure that we are looking at. However, we do not have, and will not have for some years, a completely harmonious, normal society.
We are seeking to transfer justice powers to this place in a way that would enhance movement towards normality, not create difficulties for it. That means that devolution should be part of the incentive for moving forward, not something that should come prematurely and create difficulties.
Dr Farry:
To add to that, it is fair to say that the balance of what constitutes community confidence has changed in recent years. For the past two or three years we have supported something along the lines of what is, in effect, the quadruple lock on decision-making. Two or three years ago it was fair to say that issues relating to who takes control of sensitive offices was a major concern for many in the community. In saying that, I am not pointing a finger at any section; it applies to different sections of the community about different parties, and that is worth stressing.
Given the events of the past year, we have seen a revolution in many aspects of Northern Ireland society, and public opinion has shifted as a result. The primary issue for the public now is delivery and how people relate to one another. The balance has shifted from the bona fides of people’s commitment to the rule of law, democracy and human rights to whether people are capable of acting responsibly for the good of society as a whole, rather than trying to serve narrow political agendas.
Mr McCausland:
The other part of my question picked up on a point that David made a couple of times about using the parading seasons as a measure of how things are progressing. You obviously believe that that is an important issue, which would merit serious consideration in the determination of timescales. How do you see the Parades Commission’s role in devolution of policing and justice, because many parading disputes have not been resolved, and there is effectively deadlock, for example, in places such as Dunloy and Drumcree?
Dr Farry:
The Alliance Party supports the current strategic review of parading chaired by Paddy Ashdown, and we await —
Mr McCausland:
Will you declare an interest in that?
Dr Farry:
Indeed. [Laughter.] We have nothing to do with the chairman of that review body.
We await the outcome of that review with great interest.
Subject to the conclusions of that review, the Alliance Party envisages a continuation of some type of arbitration and decision-making body or bodies, even in the context of the devolution of policing and justice. It is right to identify the situations that remain contentious, and, indeed, others that may arise in the near future. Unfortunately, decisions may have to be taken on what should happen. My party does not want a situation in which a Minster or the Assembly takes an operational view of what decisions are made.
It is worth reiterating that the reason that my party has stressed that the Executive must prove themselves throughout two marching seasons is that the community would suspect that the situations in which there are disputes over parades are the most extreme example of when there could be abuse of power by a Minister who may try to interfere or indirectly put pressure on either the Chief Constable or the Parades Commission towards a particular outcome. The fear is that that pressure would serve a narrow, partisan or communal point of view as opposed to the greater interests of society.
However, we must be careful what we wish for. This year’s marching season went extremely well. A situation in which the Assembly could be tested to see how cohesively it would respond to events did not arise. It is, therefore, difficult in practice to see how it would pursue that approach to its full conclusion. However, it is worth reiterating that the marching and parading season is when the situation becomes most tense and when there is the greatest pressure and requirement on the Assembly and any potential Minister to act for the greater good of society. That is why my party has stressed that there should be that type of approach.
Mr McCartney:
The Alliance Party has expressed its views about public confidence and collectivity. If those were established, would the party’s preference then be for a single Minister or for two Minsters who are equals as a safeguard?
Dr Farry:
My party’s preference is for a single Minister. However, that comes with an extremely heavy proviso that the Minister operates as a member of the wider Executive and on the basis of collectivity. The nature of that collectivity, rather than the nature of the Department, is probably the main consideration with regard to community confidence.
Mr McCartney:
If the benchmark of public confidence were met, would the party still insist that devolution of those matters be held back until the second benchmark is met? For instance, if a survey were carried out, and the public were confident that its reservations had been addressed and that policing and justice should be transferred, does the party believe that those matters should not be transferred until Ministers have proved their collectivity?
Dr Farry:
It is my party’s view that public confidence is fundamentally linked the Executive’s ability to function collectively. The two issues are inseparable.
The Chairperson:
Thank you, Mr Ford and Dr Farry, for your evidence. The Committee will endeavour to keep you informed of its progress of its enquiry.
The Chairperson:
I welcome to the Committee Sir Alastair Fraser, Director of the Public Prosecution Service; Mr Raymond Kitson, Senior Assistant Director; and Mr Ian Hearst, the Assistant Director. As you are aware, the Committee is conducting an inquiry on the devolution of policing and justice matters. The Public Prosecution Service (PPS) is an important part of the machinery of justice in Northern Ireland and it is also linked to policing. We appreciate the written submission that you have made previously and your willingness to assist us with oral evidence.
The format for the witness sessions has been that witnesses make a short opening statement and then Members may ask questions. The Committee has been exploring three particular components of its terms of reference: the matters to be transferred under devolution; the ministerial models; and the timing and preparations for devolution.
Before I invite Sir Alastair to make a short opening statement, I invite members to declare relevant interests. I declare interests as a member of both the Privy Council and the Northern Ireland Policing Board.
Mr I McCrea:
I am a member of Cookstown District Policing Partnership.
Mr G Robinson:
I am a member of Limavady District Policing Partnership.
The Chairperson:
If no other interests are to be declared, I invite Sir Alastair to make an opening statement to the Committee.
Sir Alastair Fraser (Director, Public Prosecution Service):
I thank the Committee for its invitation for us to speak to it. I hope that the various oral submissions will be helpful to it. As director, I am mindful that I must not stray into areas that are political in nature. If I were to do so, you would remind me of that. Nonetheless it is appropriate for me, as the director, to offer my views on matters concerning devolution of justice and policing.
At the heart of the letter which we sent are two concerns: independence and accountability. It is an important principle that public confidence in the criminal justice system is enhanced, I suggest, by the independence and clear separation of three component parts: investigation, prosecution and adjudication. That provides an assurance of objective, dispassionate decision making, and of checks and balances.
The Committee will not be surprised that I emphasise independence. It is exemplified in the Justice ( Northern Ireland) Act 2002 in two particular sections: section 42 provides for the independence of the director in a statutory declaration; section 32(A) provides for a new offence, should a person with the intention of perverting the course of justice seek to influence the director. That is a unique offence, which I have not come across or seen replicated in other jurisdictions. I do not anticipate that it will be widely used, but it clearly sends out an unambiguous message.
While the director and the deputy director will be appointed by the Attorney General, the relationship between the director and the Attorney General — which I suggest is seminal — will be different. The Attorney will not have any power to superintend the director, not will he have power to direct the director in any matter. I have had the privilege of being director for 18 years, and I have worked with six Attorneys General. Although these powers exist, I have never received a direction from any Attorney General.
The other matters upon which I wish to touch is the legal status of the Public Prosecution Service and the manner in which it is funded, both of which are important to me and to the service. The legal status — which is, of course, a matter for the Committee — might best be served by designating the service as a non-ministerial Department. Matters would flow from such a designation, and I am happy to discuss those with the Committee. That arrangement, together with an appropriate arrangement for funding, would best serve what I wish to protect —independence and accountability.
Funding is a difficult issue, and I am glad that it is not my responsibility to make these funding decisions. I note that the Attorney General will be appointed by the First Minister and the deputy First Minister, and that their office will publish his report and provide his funding, office and staff. I ask the Committee to consider whether there is a symmetry in those arrangements that could perhaps happily place the Public Prosecution Service together with the First Minister and deputy First Minister for funding purposes.
Again, the Criminal Justice Review, which has become quite properly almost the handle on our move towards devolution, indicated that the guiding principle would be to avoid a line of accountability with a Minister who has departmental operational responsibilities. I offer that to the Committee as another indication of the issue at stake.
On a positive note, this is my first appearance in front of the Committee, and I am determined that my colleagues and I will make every effort to ensure that the new relationship with the Attorney General — which will be one of consultation alone — will be workable. I am very determined that that relationship, and the relationship with the Assembly and Ministers, will be as constructive and helpful as possible.
Chairperson, I am happy to take questions.
The Chairperson:
Sir Alastair, I thank you very much for the detail that you provided this morning on those specific issues.
You stated in your written submission that:
“Upon devolution, it will be necessary to devolve some or all of the matters set out”
in the Northern Ireland Act 1998.
Do you have an opinion on the extent of the devolution of those matters?
Sir Alastair Fraser:
I look at this matter from the position of the prosecuting authority. In my estimation, as much as can be devolved should be devolved, and responsibility for those matters should rest with the director of the Public Prosecution Service, in consultation with the Attorney General. Clearly, under the Northern Ireland Act 1998, there are excepted matters that cannot be transferred, and the Committee may also decide that it does not want to seek the transfer of certain reserved matters. However, I am quite happy that paragraph 9 of schedule 3 of the Northern Ireland Act 1998 sets out the matters that the Committee should examine.
The Chairperson:
As regards the departmental and ministerial model, you said in your written submission — and you reiterated this view this morning — that you do not:
“consider it appropriate for the prosecution of offences to be placed in that Department which has operational responsibilities for other areas of criminal justice.”
So, you do not feel that the Public Prosecution Service should be located within a Department of justice, should one be created. You also mentioned that the funding of the service should nevertheless be a matter for the Office of the First Minister and deputy First Minister, which would produce a symmetry with the Attorney General’s office. Do you have a preferred departmental structure that would take account of the concerns that you have raised and the need for the independence of the service, not only in theory, but in practice, too?
Sir Alastair Fraser:
Your question goes to the root of the issue. I am not making any suggestion that a Minister or a Department would not be capable of acting in a fair manner. However, the independence of the Director of Public Prosecutions must be seen as essential in any society that is democratic and that supports the rule of law. In that context, I look at what has occurred in England and Wales. The Crown Prosecution Service and its director are not placed in the Ministry of Justice. That is an unusual position for a service which has such direct operational responsibilities for the criminal justice system as a whole. The ongoing relationship that the Office of the First Minister and deputy First Minister has with the Attorney General perhaps presents a signal to where one should be.
It is not unusual, in the model that you described, for the officeholder to negotiate directly over funds, which include pay, counsels’ fees, etc. I do not contend that. The new service, which will have 609 people and a substantial budget of close to £40 million, would require a Minister to make the funding applications. That would also permit those funding matters to be raised in the Executive, when funding matters become a live issue. Although I suggest that the non-ministerial arrangement is best, I do not contend for an arrangement that would place the director as the principal negotiator.
The Chairperson:
Sir Alastair, I want to tease out the funding issue a little further. You may be aware that the Lord Chief Justice’s evidence was supportive of a non-ministerial departmental model for the Court Service. I suspect that you are proposing a similar non-ministerial departmental model for the Public Prosecution Service. The Lord Chief Justice envisaged that funding for the Courts Service would nevertheless be dealt with by a Minister for justice, through a justice Department. However, you suggest that the funding issue for the PPS might sit better in the Office of the First Minister and deputy First Minister, and you use the precedent of the funding of the Attorney General’s office as a model that might be followed. Do you have a view on the proposals that were made by the Lord Chief Justice, either on the funding arrangement or on the non-ministerial departmental model that he favours for the Court Service?
Sir Alastair Fraser:
I always have to be careful in responding to matters that concern the judiciary. I do not want to be drawn into a comment on the proposals that were made by the Lord Chief Justice; although I have no doubt that they were carefully thought through.
On a broad basis, the position that the Lord Chief Justice seeks is broadly similar to the one in England, where the Courts Service remains in the Ministry of Justice. In England, as I have said, the prosecuting authority does not. I am seeking to advance my own position, which is that the PPS should avail of the Office of the First Minister and deputy First Minister to provide lines of funding, which will best serve the service and the community.
Mr McFarland:
I thank Sir Alastair for his briefing. As politicians, we have become fairly familiar with policing issues over the last year or two through participation on the Policing Board. However, judicial matters are still slightly a foreign country for us all.
If powers are eventually devolved, the Assembly will have a new Minister and Department; the Assembly will legislate; and it will have a Committee that will look at all the issues, as this Committee is doing now. The Lord Chief Justice has given his view that he wants to chair an arm’s length body. The Northern Ireland Court Service will judge matters, and the DPP will decide who should end up in court.
Currently, as I understand it, one Attorney General covers the United Kingdom. What will be the role of the new Northern Ireland Attorney General? I presume that he or she will not come cheap to the Department, given the requirement for staff, offices, and so forth. How will the Attorney General fit in with all the bodies that I have described, which are all technically involved at some level with the criminal justice system?
Sir Alastair Fraser:
That is a difficult question, which, to an extent, touches on my function and, to an extent, does not and, therefore, I must be careful.
I envisage that the Northern Ireland Attorney General will have three roles. As a prosecuting authority, he or she will appear from time to time before the Assembly and may be questioned on certain matters, the nature of which is open to debate. That would be one of the primary responsibilities.
A recent consultation paper that was published in England and Wales sought views on the reform of the Attorney General’s Office. I mentioned the paper to Committee researchers, who, I am sure, are aware of it. The paper sets out two further roles, the first of which is to provide legal advice to Ministers and, where appropriate, to the Parliament and the Queen. We may wish to explore whether the Attorney General will fulfil that particular responsibility.
In the third role, the Attorney General acts as the guardian of public interest and would, for example, stop any vexatious litigation and have responsibility for [Inaudible.] matters. He would have a raft of specific criminal justice responsibilities, such as giving consent to prosecutions. Putting to one side that I hope to have a consultative relationship with the Attorney General, there are other areas that you may wish to consider as appropriate. He or she will probably be a fairly senior figure, and I think what you say mirrors the Criminal Justice Review which noted that the Attorney General will be drawn from a senior branch of the profession and would, perhaps, be akin to a High Court judge in standing and salary level.
Those are matters for the Committee and the First Minister and the deputy First Minister, who will appoint the Attorney General, to consider. I do not want to place myself between you and either the First Minister or the deputy First Minister.
Mr McCartney:
Thank you for your presentation. In the fourth paragraph on page 2, you state that:
“The Director agrees with the view of the Criminal Justice Review (2000) that public confidence in the criminal justice system is enhanced by the independence and clear separation of the functions of the key components of the criminal justice process, namely investigation, prosecution and adjudication. This provides an assurance of objective, dispassionate decision making and of check and balances.”
What mechanisms and procedures are, or should be, in place to allow for public confidence and public reassurance that that will be the case and remain the case?
Sir Alastair Fraser:
Under devolution, the Attorney General will be able to address the Assembly. I believe that the Justice ( Northern Ireland) Act 2002 says, “on the process of prosecution”, which is somewhat different from individual cases, so that is a mechanism. The director will have to continue to publish an annual report, with resource accounting being included, together with a statement of ethics that applies to all prosecutors, whether members of the service or in independent private practice, so that is another check and balance.
The director will increasingly be required to provide reasons for decisions, and that is an on-going development that I have taken forward over the past 18 years. The director himself will have to gird his loins to appear before Assembly Committees on matters of finance and administration. There are a number of areas outside the function of the courts to whom the director can be judicially reviewed about what he has done, and that also provides for checks and balances.
The final check and balance I would draw to the Committee’s attention is the ongoing work of the criminal inspector. We have just come through a very thorough and rigorous inspection that lasted over eight months and touched on almost every aspect of the work of the service, which I lead.
Mr McCartney:
The Committee has taken evidence about public confidence and how it is measured. Do you believe that there should be some mechanism in place, in a high-profile case where a prosecution is not advanced, for some explanation to be given to the public to enhance their confidence of the structures?
Sir Alastair Fraser:
Looking to the future, we have already given an undertaking that in cases involving a fatality committed by agents of the state that, in order to reassure a concerned public, as much information as is possible will be given. Your question relates to a mechanism. I do not suppose that there could be a mechanism unless it were a statutory mechanism — I doubt if it is beyond the wit of legislators to devise a statutory mechanism that would protect not only the prosecution service but all the component parts of a prosecution, including witnesses in relation to whom some unpalatable conclusions may have been drawn.
There has been movement over the last 18 years as to the extent to which the director is willing to give reasons. At the moment, in significant and difficult cases where there is a request for reasons, those reasons will be provided where possible. However, that is not always possible.
Mr McCartney:
Would a new Minister have some function in that? Do you envisage that the person to ask that question on behalf of the public should be the Minister?
Sir Alastair Fraser:
The public is very well served by public representatives and by others who raise issues, not on a daily basis but on a weekly basis, with me. They are addressed by me to ensure that if we provide an answer it is an actual answer and not an economic answer, and that it is as complete an answer as we can provide.
The Chairperson:
I can testify to that, Sir Alastair.
Mr Kennedy:
I welcome you all to the Committee. I want to tease out a bit more on the relationship that would emerge from your proposal regarding accountability. We have an Assembly elected by the people and an Executive formed as a result of that. Included in that at some stage will be a Minister or a junior Minister for policing and justice.
It seems to me that, on one level, the Public Prosecution Service is happy enough to have public money to pay for the excellent facilities and the service that is provided, but the issue of accountability is not as clearly defined.
Is there not an argument that a Minister, responding on behalf of his or her Department on the floor of any assembly, should have some recourse to feel that their input is significant? Furthermore, it should not be the case that the issue of accountability is none of politicians’ business, and that somehow we are not directly involved with the oversight and overall responsibility of the decisions taken by the Public Prosecution Service.
Sir Alastair Fraser:
I understand the gravity of what you are saying; it is a very serious point. Regarding the funding of the Public Prosecution Service, I am very aware that it is public money and that I, as Director of Public Prosecutions, am accountable for the discharge of what is a considerable amount of money.
The issue as to whether a Minister should be answerable for prosecutorial decisions is difficult. Ministers should, as a broad precept, be held accountable for the matters that they are responsible for.
The architecture of the Justice ( Northern Ireland) Act 2002 provides the Director of Public Prosecutions with the responsibility for decisions in individual cases. That is not dissimilar to the arrangements in the rest of Ireland, where my colleague James Hamilton has a relationship of consultation with the Attorney General of Ireland, and no Minister in the Dáil will speak on decisions that he has taken. That is the architecture that Parliament has laid down.
Much will depend on the First Minister and the deputy First Minister, the Attorney General for Northern Ireland, and the Director of Public Prosecutions as to how this matter will work. However, as a general principle, the Director of Public Prosecutions is responsible for his decisions, and it is difficult for a Minister who does not carry that burden, to have that responsibility or accountability.
The Chairperson:
What you are saying is that for example, the Attorney General for Northern Ireland, under section 25 of the Justice ( Northern Ireland) Act 2002, may participate in the proceedings of the Assembly, as though he were a Member of the Assembly.
You are saying that you envisage a consultation process between the Attorney General for Northern Ireland and the Director of Public Prosecutions that would then enable the Attorney General for Northern Ireland, if facing questions on the Floor of the Assembly, to perhaps respond in an informed and appropriate way, having regard to any questions of sub judice and so on in particular cases. Also, you are saying that the Attorney General for Northern Ireland would be able to respond authoritatively and in an informed way on matters pertaining to the Public Prosecution Service?
Sir Alastair Fraser:
Regarding the work of the Public Prosecution Service, I accept what you have said in the round. However, in that particular analysis, individual cases will not be discussed in the Assembly. The Attorney General for Northern Ireland will speak through the Assembly about the process of prosecution, which I take to be the work of the Public Prosecution Service. However, Standing Orders, of course, will have to be prepared for that particular function.
The scheme of the Justice ( Northern Ireland) Act 2002 is clear. The scheme is set to limit the questioning of the Director of Public Prosecutions by the Assembly to issues of finance and administration. It would be strange if that were not fulfilled by reason of seeking to transfer responsibility for individual cases, following directions to an Attorney General, who bears no responsibility for those decisions. The present arrangements, as seen by Parliament, are the arrangements to which I must address my service.
Mrs Hanna:
What stage are your preparations at, in anticipation of the devolution of policing and justice powers — if, for example, the Assembly decided to go ahead with that next year?
Sir Alastair Fraser:
In my estimation, we are well prepared for devolution. My particular service is, at present, largely ring-fenced. It is essentially a funding issue and a determination of the status of the service as a non-ministerial Department. As a service, which is required to take over all prosecutions, I can say that from the 1 October 2007, we have fulfilled that responsibility. We are now in a position of taking forward all criminal prosecutions, which heretofore were prosecuted by police and, perhaps, others.
All of our regional offices have not yet been completed. We have some very good regional offices in Belfast, Lisburn, Omagh and Ballymena. However, that does not stop there. We are seeking to open offices in Londonderry and Newry. It is my intention, as Director of the Public Prosecution Service, to take that forward as best as I can. Those have been part of our plans for three or four years. We have succeeded in quite a bit, but we have not yet succeeded in having a prosecutor on the ground, who is accessible to the community in Newry and Derry.
Mr McFarland:
I want to ask a question on the more detailed business of your role. There are times when your judgement about whether to prosecute, or not, is questioned. Presumably, you have guidelines as regards to whether a prosecution is cost-effective. I understand that a prosecution is based on the likelihood of successful prosecution. How do you view the move to trial by jury — which I understand we are doing here? Presumably, in the past, your judgement was on whether the judges would be likely to judge. We are now in the area of jury trials. Juries are fickle and can be swayed in a way that judges, traditionally, have not been. Judges have judged on the law. However, a good barrister can swing a jury. How do view your judgement on whether a prosecution may or may not succeed, and the guidelines relating to that matter? Do you see them changing in the new political climate?
Sir Alastair Fraser:
Possibly, not as quickly. There are two points that I will make. We publish a code for prosecutors that is the most detailed code in these islands. A code is published in England that, with respect, is not a code for prosecutors. It is a very short handout. Our code is very detailed, and by reference to it, one can see the business of which decisions are reached and — if one is concerned about decisions — how they can be challenged and how they can be reviewed. That is a public document and will be kept fresh and renewed each year.
The Chairman:
I apologise for interrupting. That code is prepared internally by the Department. Is there consultation about its preparation, outside the Department?
Sir Alastair Fraser:
Yes. We consulted widely on that document, and we continue to consult about policy documents.
The second aspect of your question relates to jury trials. As you know, from the beginning of October the Diplock courts system stopped and we moved to a different system under the Justice and Security ( Northern Ireland) Act 2007. In that system, I, as director, can issue a certificate, so that an individual will be prosecuted not before a jury but before a judge sitting alone. I have done so in a number of cases and I have declined to issue such a certificate in a number of cases. The facility for a non-jury trial remains part of our legal jurisdiction. The reasons why juries were withdrawn, as the finders of fact, are historical. They go back to Lord Diplock’s report, which was concerned about the intimidation of juries or the risk of there being a partisan jury that did not fulfil its function. For those two reasons, we had for 30 years what were called the Diplock courts. That has now gone; and, for the first time, the focus is on the director to take these decisions in a limited number of cases. I hope the numbers of those cases will not be as high as in the 1970s, 1980s or 1990s, but in a small number of cases there will still be trial before a judge.
Our accountability can be challenged by a judicial review application to a High Court judge or, as part of the trial process, in an abuse of process application claiming that it was wrong, and that it was an abuse of the court, for the director to act in a particular manner. That is only from 1 October.
The Chairperson:
I thank you, Sir Alastair, Mr Kitson and Mr Hearst, for coming along to the Committee this morning and giving us your evidence. We appreciate it, and we will endeavour to keep you informed of the progress of our inquiry. We now know that there are matters which are of particular interest to you.
Sir Alastair Fraser:
Thank you for the opportunity.
The Chairperson:
Members, let us continue with our work.
Danny asked a question which the Committee needs to consider carefully in the context of its inquiry. That is, to what extent the Public Prosecution Service and the Courts Service are removed at arms length from the devolved system; to what extent there is accountability; and whether the Assembly has any power to call the Director of the Public Prosecution Service or head of Courts Service to the Assembly or its Committees to give evidence. Those are matters which the Committee should consider carefully.
We are all keen to see the independence of the judicial process and that it is clear in the public mind that there is no direct political interference in the day-to-day workings of the judicial process. There are, however, issues that relate to good governance. There are two non-ministerial Departments: the Courts Service and the Public Prosecution Service. In the public mind, the Assembly is the local Government in Northern Ireland; and, in the event of devolution, it will have responsibility for policing and justice matters. The public will not make great distinctions. It will expect that, since the Assembly Members have power, they can do something.
The Committee will need to consider carefully how to handle the issue, to ensure the maximum degree of independence for those Departments, but also accountability through the public representatives and the elected body which comprises the manifest will of the people. That is an important issue which has arisen out of the evidence sessions with the Lord Chief Justice and the Public Prosecution Service. We will need to consider them carefully in preparing our report. That is my observation.
Mr Kennedy:
That strikes to the heart of accountability. If a controversial case arises after the Assembly assumes responsibility for policing and justice, the public will expect the relevant Minister to address the House or publicly comment about that matter. No doubt, the ‘Nolan Show’ would also be interested in hearing Ministers’ views.
Although separations ought to be clearly defined, the relevant Minister must have a role in the matter of accountability — which is an issue — and due consideration must be given to that as part of the inquiry.
Mr McFarland:
In operational policing, the Chief Constable’s responsibility for what happens day to day on cases must be the same as for the judiciary — his independence must not be messed with. The idea that, afterwards, people cannot be questioned as to why certain things happened seems slightly strange. For example, in England and Wales, the appointment of the Attorney General is a political consideration. The previous Attorney General was a colleague of the Prime Minister, although that caused trouble in the matter of Iraq and things. In Northern Ireland, is the political decision to appoint the Attorney General taken jointly by the First Minister and the deputy First Minister; do the two parties decide; or do all the parties in the Executive decide? The Committee must tease out issues, such as relationships and responsibilities, that are emerging from our evidence sessions.
The Chairperson:
My understanding is that there is a line of responsibility: the First Minister and deputy First Minister appoint the Attorney General, and the Attorney General appoints the director. Therefore, it is right to explore the implications of such matters. We should have an opportunity to look at those matters in detail when we come to consider the departmental and ministerial models. Other minds must also be brought to bear.
In the interim, in order to prepare for our discussions and to get a feel for how issues are handled elsewhere, including the lines of accountability and the roles of an Executive and the legislature when interfacing with the Court Service and the Public Prosecution Service, I suggest that we instruct the Committee Clerk to have research conducted into the models in England and Wales, Scotland and the Republic of Ireland.
Mr McCartney:
Superintendence of the Public Prosecution Service should be included in that research, because that is also a big issue.
The Chairperson:
Yes, Members must give their attention to all of those areas.
Concerning our ongoing inquiry into the devolution of policing and justice, last week, we touched on the possibility of introducing safeguard mechanisms that might enable the transfer of certain powers that are currently envisaged to be reserved powers or on which there is no consensus as to whether they should be devolved. In particular, I am referring to the 50:50 recruitment policy to the PSNI and the parades issue, on which, this morning, we heard evidence from Dawn Purvis and the Progressive Unionist Party.
The Committee Clerk has prepared briefing papers, which set out current arrangements for: ministerial accountability, according to the ministerial code; the role of the Assembly, according to Standing Orders; provisions for petitions of concern; the referral of ministerial decisions to the Executive Review Committee; and a section, on which, perhaps, we should concentrate, on additional safeguards relating to policing and justice that could be invoked in relation to decisions around the Parades Commission and 50:50 recruitment to the PSNI.
Those safeguards are: the agreement of the statutory Committee, on the basis of full consensus; the requirement for decisions to be made by approval of the Assembly; the provision for a cross-community vote in the Assembly on any proposed changes; the provision for a vote by parallel consent in the Assembly on any proposed changes; the provision for cross-community agreement in the Executive Review Committee and then referral to the Assembly; and provision for motions for change to be jointly brought by the First Minister and deputy First Minister,.
A range of safeguard mechanisms has been listed. If those mechanisms were invoked or in place, would the Committee believe that that provided the grounds for safely devolving the decisions around the Parades Commission and around 50:50 recruitment?
Mr McFarland:
The 50:50 recruitment policy relates to policing, and it is due to expire in 2010. It is apparent from discussions last year, and from meetings of the Policing Board, that the SDLP in particular and, I am sure, Sinn Féin are not prepared to remove it before 2010. Therefore, if the issue was brought to the Assembly, it would be blocked. Unionists broadly want the policy to be removed now, so it is clear that there will be no agreement on the matter. A petition of concern would stop it anyway. If the policy expires in 2010 anyway, do we really want to exercise ourselves with the matter and create a potential battleground?
Parading was a political battleground, and was being used as such for years, but the issue is now in no one’s interest. One gets a sense that the parties that have used the issue as a battleground have now decided to move away from it. Hopefully, the review of parading will produce a system that will allow people who wish to parade to do so in peace, and for no one to be offended by it. Perhaps such issues should be left where they are until the outcome of the Westminster review of parading.
With regard to the 50:50 policy on recruitment, we have enough to exercise ourselves with over the next while without taking on additional matters, to which there will probably be no solution across the Floor of the House.
The Chairperson:
Indeed. We heard evidence from the Progressive Unionist Party to the effect that if the parading issue were resolved and agreed mechanisms were in place, you may want to devolve the responsibilities when the situation has settled and a consensus is operating at a political level. What you are saying Alan is that it could be problematic to introduce such contentious issues during the initial period of devolution, because there is unlikely to be consensus initially, pending a resolution of both issues. Therefore, it could only have a negative impact at this stage. Does the Ulster Unionist Party not agree to the devolution of those powers at this stage?
Mr McFarland:
Both of those issues should disappear, because they are anti-unionist issues — and it seems that they may disappear. Taking such issues to the Floor of the House would only give Members one more thing to scrap about, and I suspect that we will have enough to row about. We will not find a solution to those issues on the Floor of the House, as we cannot have an impact on them because one side will block them, and we will not find a resolution to them. Other mechanisms can be used to solve those issues.
The Chairperson:
I am clear that it is also the view of the Democratic Unionist Party that, for the time being, those matters should not be devolved. What is Sinn Féin’s position?
Mr McCartney:
Notwithstanding the review, Sinn Féin feels that the powers should be devolved.
Mrs Hanna:
That is the SDLP’s view, but Alan’s views are reasonable too.
The Chairperson:
Would it be in order for members to report, or, at least, to take the matter forward on the basis that, at the moment, there is no consensus in the Committee that those powers should be devolved, reflecting the respective positions of the political parties?
Members indicated assent.
As was touched on earlier in the oral evidence sessions, and as was mentioned in the Committee last week, there is no formal timetable for the strategic review of parading to report. However, it is my understanding that an interim report will be made available by the end of the year, followed by final recommendations in spring 2008. I understand that Lord Ashdown, the chair of the review, has briefed OFMDFM on the review’s progress. Members may wish to ask suitable questions at the appropriate time to see if they can tease out any information on that. Alex Attwood mentioned earlier that there are indications as to the shape of the interim report.
Members requested clarification on the following point in relation to public order; namely, whether future powers of the Army to support the police are part of the Public Order ( Northern Ireland) Order 1987 or the Terrorism Act 2000, and that it would therefore be unlikely that those powers would be devolved. It is my understanding that the Government are considering what powers may be required, post-normalisation, to enable the military to carry out specialist support to the police such as public order or work on explosive ordnance disposal.
I can confirm that the Clerk has since written to the NIO to ask for clarification on this matter, with a request that any reply be included in the composite response awaited by the Committee in relation to a range of other queries that it has lodged. That is how we are dealing with the matter at the moment. We have asked for the NIO to clarify the position and to give us an update on their work on the role of the Army post-normalisation, specifically in relation to supporting the police in public order situations and dealing with explosive ordnance. Are members content that we await the response from the NIO?
Members indicated assent.
Last week we discussed co-operation between the PSNI and the gardaí under the Northern Ireland (Miscellaneous Provisions) Act 2006. Members will recall that Alex Attwood raised a concern that in the event of devolution, some of the existing arrangements, protocols and agreements that are in place between the PSNI and the gardaí would fall, because they are international agreements between the UK Government and the Irish Government. In the event of devolution, we would need to consider what steps would have to be taken by the Executive and the Assembly to renew any agreements on matters of practical co-operation between the PSNI and the gardaí.
Members will find a note from the Committee Clerk at tab 3 of today’s meeting pack, confirming that at schedule 4 (3) (13) of the Northern Ireland (Miscellaneous Provisions) Act 2006 there is provision for:
“Co-operation between the Police Service of Northern Ireland and the Garda Síochána with respect to any of the following matters —
(a) transfers, secondments, exchanges or training of officers;
(b) communications (including liaison and information technology);
(c) joint investigations;
(d) disaster planning.”
The Committee Clerk confirms that the matters that would transfer to the Assembly are those listed in (a) to (d).
Given that information, members, is there a consensus on the matters of co-operation that are to be transferred? Are we content as a Committee that the matters to be transferred are the matters that would amend schedule 3 of the Northern Ireland (Miscellaneous Provisions) Act 2006?
Mr McFarland:
I was a member of the Policing Board when those matters came up on the radar, and the Board was happy that it would be dealing with them on a daily basis. There are many rules and protocols surrounding who can come, and what they can do, but these are matters that can be sensibly dealt with by the Policing Board, and have been for some time now. The transfer is less neuralgic than it might be if they had not been previously addressed by the Board.
The Chairperson:
Indeed. That is notwithstanding the right of the Department, the Policing Board and the PSNI to propose further areas of co-operation in future between the PSNI and the gardaí. As most of those matters are operational, I am not sure if it is the Committee’s responsibility to set out areas for future co-operation, save to say that the power is there to make provision for future areas of co-operation. Is the Committee content that, for the time being, the matters of co-operation to be transferred are those listed in schedule 4, paragraph 13, (a) to (d) of the Northern Ireland (Miscellaneous Provisions) Act 2006.
Mr McCartney:
For the time being, yes. The list is not exhaustive.
Mrs Hanna:
I hope that that covers Alex’s concerns, as he is absent.
The Chairperson:
OK. The Committee will proceed on the basis that there is consensus. The final report will revisit those issues. However, for the time being, to enable the Committee Clerk to prepare for the report there is a consensus that the matters for continuing co-operation are those matters listed in the Northern Ireland (Miscellaneous Provisions) Act 2006.
Turning to firearms and explosives, members will recall that last week the DUP and UUP position on legislative and administrative responsibility for firearms was touched upon. It was agreed that both parties would reflect on their respective positions on the devolution of legislative and administrative responsibility for firearms.
I consulted within the DUP on the party’s position. As members will recall, the DUP’s position in the Preparation for Government Committee was that full responsibility for firearms should be devolved save for:
“Responsibility for legislation, policy and general oversight”,
and the:
“Power to grant authority to possess, purchase, acquire, manufacture, sell”
prohibited weapons and ammunition.
In other words, powers relating to prohibited weapons and ammunition should not be devolved, but that all other responsibilities, legislation, policy and general oversight of firearms should be devolved.
The DUP’s motivation for that position was to keep Northern Ireland in line with the accepted position in other parts of the United Kingdom. However, I note that under the Scottish model, the power to grant authority to possess, purchase, acquire, manufacture and sell prohibited firearms and ammunition is a devolved matter. Therefore, Scotland varies from the rest of the UK.
The question for the DUP is whether it wants to follow the model for England and Wales or that for Scotland. In respect of responsibility for legislation, policy and general oversight, the DUP’s position would remain that of the Scottish model, that that power should not be devolved, but the party would be willing to look at whether the Scottish model on the power to grant authority to possess, purchase, acquire, manufacture and sell firearms — which is the practical, day-to-day power — should be transferred or should remain with the Northern Ireland Office.
Mr McFarland:
The UUP’s position is that powers relating to shotguns and normal legal firearms should be transferred. As members know, there have been recent discussions about whether people can or cannot take their children clay-pigeon shooting. We have a long history of clay-pigeon shooting competitions, so such powers would be useful.
As for prohibited weapons, we should stick with the rest of the UK. That power has remained at Westminster. I am not too exercised about the matter. If the Committee can reach a consensus on it, I will go along with it. However, the issue of prohibited weapons can be strange, and it seems better that it should be dealt with centrally. Otherwise, we might find weird variations in the law about whether a person can or cannot have a machine gun at home, for example.
The Chairperson:
Yes. Therefore, you have concerns about a partial devolution taking place as in the Scottish model, which has the power and authority to authorise possession, but the power to create the policy and legislation remains at Westminster. Westminster retains responsibility for legislation policy and general oversight —
Mr McFarland:
For prohibited weapons?
The Chairperson:
Yes. But in Scotland the power to grant authority to possess, purchase, acquire, manufacture and sell prohibited weapons is a devolved matter, so there is a separation.
Mr McFarland:
If, for example, one of our industrial companies decided to start manufacturing machine guns, and providing they were selling them overseas, would we want them to be manufacturing things that bring money into Northern Ireland? There is a moral issue about involvement in the international firearms trade, but the point is that we do not want local people having Vickers machine guns in their houses.
Mr I McCrea:
It would not be the first time that that has happened.
The Chairperson:
I assume the SDLP and Sinn Féin’s position remains that all those powers should be devolved, both the power to make the policy, the legislation and the power to authorise people to manufacture and sell.
Mrs Hanna:
While it is not for this Committee to limit the number of firearms in circulation, we need to move away from the gun culture.
Mr McFarland:
It is possible that we could bring in power over legal weapons, while remaining in disagreement on prohibited ones.
The Chairperson:
I think that we have a consensus on the transfer of powers and full responsibility for all non-prohibited firearms, i.e. legislation, policy and general oversight. All four parties agree that, at the very least, those powers should be transferred. Do we have consensus on that?
Members indicated assent.
Should we then proceed on the basis that there were diverse opinions about the transfer of those matters that are excepted and reserved, i.e. prohibited weapons and ammunitions?
Mr McFarland:
I am not clear in my own mind, and I have looked at the issue several times now, so can I ask the team to go back and produce a paper on the Scottish model that sets out all the detail on prohibited weapons, because there may be reasons why it might be useful to have the power over them here, for example, if we had an arms company that we wanted to manufacture successful weapons for sale legally to armies abroad, although they might be prohibited in Northern Ireland. I would like that to be looked at again, because it would be unfortunate to lose —
The Chairperson:
I am happy for the issue to be parked for another week, if the Committee Clerk would kindly arrange for a paper to be prepared that examines, particularly, the Scottish model versus the model in England and Wales.
Mr McFarland:
And why those models were introduced.
The Chairperson:
Exactly. Why the Scots have taken responsibility for one aspect of devolution but not the other, and what is the rationale behind that. Without asking the Committee Clerk to be political in any way, he could list the perceived advantages and disadvantages? We have three options: no devolution on prohibited weapons and ammunition; the Scottish model that is part devolution; or, our own model, which is full devolution.
So, that is what we are asking the Committee Clerk to look at, and to bring forward a paper next week. In the meantime, we will park the issue on the understanding that there is a consensus that on all other matters pertaining to firearms the Committee supports full transfer of powers.
hat was very helpful Members.