ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE

OFFICIAL REPORT
(Hansard)

Inquiry into the Devolution of Policing and Justice

23 October 2007

Members present for all or part of the proceedings:
Mr Jeffrey Donaldson (Chairperson)
Mr Alex Attwood
Mrs Carmel Hanna
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr George Robinson

The Chairperson (Mr Donaldson):
We will now move to the inquiry into the devolution of policing and justice matters. I remind members that the session is being recorded for Hansard. I refer members to the briefing paper in your folders. We have received replies from the Serious Organised Crime Agency (SOCA) and from the cabinet secretary for justice in the Scottish Government, and those may be relevant to the Committee’s considerations today. Copies of those letters were sent out to members yesterday, but if anyone has not yet seen those items of correspondence, we will circulate copies to them. The agenda suggests that there are four broad headings under which we might proceed with our discussion this morning, namely: the ministerial model; the departmental structure; the governance and accountability mechanisms; and the internal and external relationships.

I refer members to the relevant papers that are contained in your folders. I will try to bring some structure to the discussion. I am happy for parties to express their views under each heading in turn. I recognise that there will be considerable overlap between those four headings, but if members are content, we will proceed on the basis that we will have a brief discussion under each heading, giving each party the opportunity to express its views. We will explore to what extent there is consensus on the ministerial model, on departmental structure, on governance and accountability mechanisms and on the nature of the internal and external relationships — by that, I mean the Northern Ireland Court Service, the Public Prosecution Service and the Attorney General, etc. Are members content to proceed on that basis?

Members indicated assent.

I invite members to declare relevant interest before we proceed with the discussion.

I declare an interest as a member of the Privy Council and of the Northern Ireland Policing Board.

Mr G Robinson:
I declare an interest as a member of the Limavady District Policing Partnership.

Mr I McCrea:
I declare an interest as a member of Cookstown District Policing Partnership.

The Chairperson:
During the Preparation for Government proceedings in the Transitional Assembly, there was consensus among the parties for a single Department for policing and justice.

The main parties agreed that the basis for devolution would be a single Department for policing and justice. To date, there has been no evidence from the inquiry that that matter should be revisited. For the record, am I safe to assume that there remains consensus on that matter, and that members are agreed in principle that policing and justice should be in a single Department?

Members indicated assent.

We had considered a briefing paper that described the options for ministerial models that the NIO has legislated for, and the procedures that would be used for filling the ministerial posts. Is any member unclear about the different models that are contained in the NIO’s legislation?

To remind Members of the options: the first option under section 21A(3) is a single Northern Ireland Minister; the second option under section 21A(4) is two Northern Ireland Ministers acting jointly, in other words in a similar arrangement to the First Minister and deputy First Minister; the third option is for a Northern Ireland Minister to be appointed, supported by a junior Minister, and for those positions to rotate at intervals specified by Act of the Assembly; and the fourth option states that:
“There must not, at any time, be more than one department in relation to which provision of the kind mentioned in any of the previous subsections (3), (4), and (5) is made by Act of the Assembly.”
That confirms that there should be one Department. The legislation provides for three options, namely: a single Minister; two Ministers acting jointly; or a single Minister supported by a junior Minister on a rotational basis.

I will open up the floor for discussion, and I remind Members that the Justice and Security (Northern Ireland) Act 2007 subsequently amended section 21 of the Northern Ireland Act 1998. The new provisions provided for:
“the Department of Policing and Justice to be in the charge of a Northern Ireland Minister elected by the Assembly, and for that Minister to be supported by a deputy Minister elected by the Assembly.”
Therefore there was a slight amendment made to the options. The act also introduced the option of using an Order in Council in order to establish a new Northern Ireland Department. Furthermore it introduced:
“An option to be used in circumstances where, if it appears to the Secretary of State that there is no reasonable prospect of the Assembly passing an act to establish a Department of Policing and Justice, he may use the power conferred by section 21A(6) to lay before Parliament the draft of an Order in Council in order to establish a new Department of Policing and Justice.”
It further provided that the Department would be in the charge of a Northern Ireland Minister elected by the Assembly and supported by a deputy Minister elected by the Assembly.

That is the legislative basis upon which we will base our discussion. The floor is now open for any contributions on the ministerial model.

Mr O’Dowd:
A lot of our debate will repeat discussions from last year’s Committee for the Preparation for Government. Sinn Féin’s view remains that the option allowing for two Ministers of equal status to act jointly is the preferable ministerial model.

The Chairperson:
Does a Member of another party wish to venture a view?

Mr McFarland:
Can we afford two Ministers? There is a line of logic that ran through the discussions of last year, which it may help to revisit. It is clear, particularly from discussions in this Committee, that we cannot devolve policing and justice until there is public confidence to do so.

There is an argument that if there is public confidence in the devolution of policing and justice powers and we are all completely comfortable with the situation, there should be no problem with the idea of a Minister being appointed under d’Hondt. If there is confidence that one party or another will not abuse its position and so on, what is the problem? That might be an argument for having one Minister, because those powers will not be devolved here until there is public confidence.

Last year, we discussed a model that involved a Minister and what was termed as a “super junior Minister”. I see that that option is no longer in the paper, which is unfortunate. Such an arrangement would save the expense of having two Ministers. There is a fairly serious issue about who runs the show and makes the decisions. The idea was that a “super junior Minister” would be shown all the papers and that there had to be broad agreement between the two Ministers, and it saved the cost of a full Minister. That proposal seems to be completely off the paper now.

The model of the rotating Minister and junior Minister also raises some questions. How long would each rotational period last? Would they rotate every six months? Could the new incoming Minister change a position taken by the previous Minister? All those issues were cantered through; all the models have drawbacks and some have advantages.

The Chairperson:
I want to clarify a matter. As I understand it, the amendment made by the Justice and Security (Northern Ireland) Act 2007 effectively introduces a fourth option, which is the concept of a First Minister and deputy First Minister of justice, for want of a better way of putting it. We have the model of Ministers acting jointly, but it seems that that would effectively mean having two Ministers — in other words, rather than them being a First Minister and a deputy, they would both be Ministers of equal standing in the Department.

Thus, it now seems that another option has been introduced, whereby two Ministers act jointly, but one is known as a First Minister and the other as a deputy Minister. I would like this point clarified. Is the model of a Minister and a deputy Minister different from the model of a full Minister and a junior Minister? The First Minister and deputy First Minister are Ministers acting jointly; they are not Minister and junior Minister. Therefore, is the model proposed in the Justice and Security (Northern Ireland) Act 2007 under which one Minister would be known as the Minister and other as the deputy Minister, even though the two Ministers would be acting jointly and would therefore be equal, in a sense? If that is the case, that represents a fourth option, rather than simply being another way of expressing the concept of two Ministers acting jointly. Thus, the third option would be to have the Minister and junior Minister rotating, and the fourth option would be to have one single Minister. Is that correct?

The Committee Clerk:
Yes.

The Chairperson:
So, in effect, we have four options. Option one is to have two Ministers acting equally and jointly; option two is to have a Minister and a deputy Minister acting jointly; option three is to have a Minister and a junior Minister rotating; and option four is to have a single Minister.

Mr O’Dowd:
In discussing any matter, we cannot ignore costs. However, at this stage, the primary concern must be the need to have safeguards built into the system to allow for community confidence. As Alan said, the community must have confidence in the system and its operation — and I am glad that he used the term “community confidence” rather than simply “confidence within the unionist community”. Our party’s primary concern is the need for safeguards, and it believes that a joint Ministry would allow for those safeguards. The party believes that at the end of the four-year term, appointments to the justice Ministry should be run under the d’Hondt system, as would be the case with any other Ministry. That would bring to an end the jointery of the post and also allay some of the concerns about finance.

The Chairperson mentioned the idea of a First Minister and a deputy First Minster for justice, and, if I heard him correctly, he is correct that it is a joint office. The titles are really a play on words; it is a joint office, in that sense.

Mr G Robinson:
How will he or she be elected under the d’Hondt system?

The Chairperson:
I understand that a provision was made stating that the Minister or Ministers will be elected on a cross-community vote in the Assembly. Members or the Clerk might be able to help me with that. I am not sure whether that provision applies to the initial appointments only, because if d’Hondt is run for the policing and justice Ministers, it will have to be rerun for the ten departmental ministerial positions, but probably not the First Minister and deputy First Minister. Therefore, if the Minister with responsibility for policing and justice is appointed by the d’Hondt system, it will have to be run alongside the rerunning of the other ten Departments. To overcome that problem and to avoid disrupting the Executive, the Government proposed that the new Ministers be appointed through a cross-community vote in the Assembly. Nominations for a Minister or Ministers, therefore, will be made in the Assembly, and the appointment will be made by cross-community vote as legislated for in the Northern Ireland (Miscellaneous Provisions) Act 2006. That is the arrangement for the remainder of the current mandate, but I assume that if details around the devolution of policing and justice powers are finalised during the present mandate for full devolution in the next, the relevant Ministers will be appointed alongside the others under the d’Hondt system.

Mr McFarland:
Tab 2 of the members’ pack explains the process for making a ministerial appointment. Schedule 5 of the Justice and Security (Northern Ireland) Act 2007 amends schedule 2 of the Northern Ireland (Miscellaneous Provisions) Act 2006 so that only the appointment of a Minister will carry a position in the Executive Committee and count in the calculation of the d’Hondt running order. Therefore the appointment of a deputy Minister does not count in either the calculation for the d’Hondt running order or the Executive. It might be worth getting clarification on the meaning of the fifth paragraph in the section entitled ‘Process for making a Ministerial Appointment’: is it relevant now? Will it be relevant in a future mandate? It states that Members standing for election to the post of Minister of policing and justice must belong to one of the two largest designations. That means that only the DUP Ministers can decide on the Minister and Sinn Féin decide on the deputy Minister.

The Chairperson:
Designation means unionist or nationalist. The Minister might, therefore, come from the DUP, UUP, or PUP on the unionist side and the SDLP or Sinn Féin on the nationalist side.

Mr McFarland:
It states that it must belong to one of the two largest political designations.

The Chairperson:
That is unionist or nationalist: it is not parties.

Mr McFarland:

So they must come from different designations — I am trying to make sense of this. Will d’Hondt be rerun? If, for example, the great decision is taken next year sometime, will the entire system be rerun?

The Chairperson:
If the decision was to appoint by d’Hondt, that system would be used. I do not think that the process would be run to appoint the First Minister and the deputy First Minister, but it would be rerun for the other ministerial positions.

Mr McFarland:
Is it correct that the current legislation states that the new Ministers will have to be appointed by d’Hondt?

The Chairperson:
No. There is provision in the Northern Ireland (Miscellaneous Provisions) Act 2006 for an alternative method, which will be to appoint one Minister from each of the two main designations — if two Ministers are required.

Mr McFarland:
Will they be nominated by the Office of the First Minister and the deputy First Minister?

The Chairperson:
The nomination will be brought forward and decided on by a cross-community vote in the Chamber.

Mr McFarland:
Has that been overtaken by the Justice and Security (Northern Ireland) Act 2007?

The Chairperson:
No. My understanding is that following devolution and on the establishment of a new department and Minister — or Ministers — this Committee must complete a report on the operation of the ministerial arrangements in a policing and justice Department.

Therefore, after the initial phase, and before the expiry of the first mandate, we must report to the Assembly again on the arrangements for ministerial appointments. Therefore, this Committee —
Mr McFarland:
Ministerial appointments will be made during the second mandate, will they not?

The Chairperson:
That is correct. We must report before the next Assembly elections, and the Assembly would have to agree, prior to the second mandate, the method of appointing the justice and policing Minister or Ministers to the next Assembly. As I understand it, Alan, and I am open to correction, there are two options for appointing a Minister or Ministers to the Department under the current mandate. The first option is to rerun d’Hondt and incorporate the policing and justice Department. That may involve the existing 10 Departments plus the additional policing and justice Department, or 10 Departments, with room having been made for the new Department.

Alternatively, the Assembly could appoint the Minister, or Ministers, by a cross-community vote ensuring that, if there are to be two new Ministers, one must be drawn from each of the main designations. The d’Hondt option is included in the Justice and Security (Northern Ireland) Act 2007, and the option for an election by a cross-community vote is contained in the Northern Ireland (Miscellaneous Provisions) Act 2006.

Mr McFarland:
The question is whether we want to disrupt the current Ministries. How will a further Department be created? Unless an additional Department is created, Departments will have to merge, and that will interfere with the current ministerial posts in any case.

The Chairperson:
It is the responsibility of the Efficiency Review Panel to deliberate about the number of Departments.

Mr McFarland:
That panel was established by OFMDFM. Therefore, it could be argued that it is hard for us to get a steer on the issue until the panel decides whether to opt for the creation of an additional Department.

Chair, perhaps you and John may be able to help the Committee on a different issue. At one stage, there was a rumour that the junior Ministers’ urgent requirement for additional staff was due to a cunning plan, at First Minister and deputy First Minister level, for the two junior Ministers to absorb the new Ministries.

Perhaps you have already heard that rumour. Perhaps the posts were initially to be absorbed in shadow form, but moving on to the autumn of 2008, at which stage the Secretary of State has suggested that the devolution of policing and justice may be ready to happen, those two would morph into the two Ministers in OFMDFM. Are you aware of any such plan?

Mr O’Dowd:
I never listen to rumours or rely on cunning plans.

The Chairperson:
I am afraid that Baldrick has been at work, Alan. No, there is no —

Mr McFarland:
If it were true, it would save having to create an extra Department or interference with —

The Chairperson:
The Preparation for Government Committee discussed whether the powers on policing and justice should be absorbed into OFMDFM. By consensus, the parties firmly rejected that option and felt that there had to be a single Department. I have not heard any suggestion that junior Ministers would become joint Ministers of the new Department, or of whatever ministerial model that may be agreed, and that is certainly not my understanding.

Mr McFarland:
If the First Minister and deputy First Minister were reluctant, unable, or felt that the time was not right, to make a decision on creating an extra Department or amalgamating existing Departments and the February 2008 deadline was rapidly approaching, one way out of the problem — in an emergency and for a short period of time — would be to do just what the parties agreed not to do. That is even more reason for OFMDFM to tell us what they intend to do.

The Chairperson:
Alternatively, we must report any failure to agree to the Assembly, which, in turn, must report it to the Secretary of State. The decision is for the Executive, not only OFMDFM. The Executive will have to decide whether there is to be a change to the number of Departments and Ministers, and we must await their decision.

However, that does not prevent us from reaching a view on how the ministerial model would operate — subject to a decision on whether there will be a new Department in addition to the existing Departments, or whether room will be made for the Department to become one of the existing 10. Nor does it necessarily require the Committee to take a view on whether d’Hondt or the cross-community voting mechanism should be used for the appointment of the Ministers. We must deal with whether there should be one Minister, two Ministers who act jointly or a Minister and a junior Minster.

The Committee will move on from consideration of that issue to the question of how the Ministers are appointed, either by d’Hondt or by cross-community voting. So far, I have only received Sinn Féin’s view. The party prefers the model of two Ministers who act jointly. John, do you have a view about whether there should be should be a Minister and a deputy Minister or two joint Ministers?

Mr O’Dowd:
There should be two Ministers of equal status; Minister and Minister.

The Chairperson:
Does any other party have a view on the suggested models, for which there has been legislation? If the Committee so wished, it could bring forward an alternative suggestion, for which the Assembly could legislate, or it could be legislated for by Order in Council at Westminster. The Committee is not restricted to those models, but I am not sure what other models it would want to consider.

Alex, does the SDLP have a view, one way or the other, on the options that are before the Committee?

Mr Attwood:
There are several points for consideration. The general question about the number of Departments is being taken forward by the Executive. Can you clarify what stage that matter is at, Chairman?

The Chairperson:
The matter is with the Office of the First Minister and the deputy First Minister, which will establish an efficiency review panel. Under its remit, the panel will examine the number of Departments, among other issues. When the Deputy Chairperson, Mr McCartney, and I met the special advisers, we impressed upon them the need to give that issue priority in the efficiency review panel’s work. Clearly, before it reports, the Committee must have a view about whether the Executive is minded to reconfigure the Departments or whether the Committee should report to the Secretary of State to seek his approval for the creation of a new Department, in addition to those that already exist. Therefore, we impressed upon them the need to report on that matter at an early stage.

Mr Attwood:
Is the intention for the panel to have, at least, reported by March 2008?

The Chairperson:
I do not know that yet. That is one reason that we have asked for the meeting — to get a feel for when the panel will be appointed and the timeframe within which it will report.

Mr Attwood:
It is quite proper that you and the Deputy Chairperson have raised that issue and that it will be referred to in any letter as well. I concur with what Mr McFarland said; that views that might be expressed at present could be subject to radical reshaping depending on what OFMDFM comes back with, and given that the Minister of Finance and Personnel has voiced his views in recent days. I suspect that he was putting down a clear marker to OFMDFM as to what he wishes to see as the outcome. I have not seen his script. It might, therefore, be useful —

The Chairperson:
For the benefit of the Committee and the public who are present, can you summarise those views?

Mr Attwood:
I can only go by what I have heard in media reports. I want to ask the Clerk to acquire a copy of the script that was used by the Minister of Finance and Personnel, who, I suspect, was moving early in order to tell all his fellow Executive Ministers how he wants the matter to progress. His words came out of the blue. Peter Robinson does not speak out of the blue on most matters. That is important and worrying because it was calculated. The issue of the number of Ministers is upon the Committee and plays into its work in an intimate way, so I would like a copy of the script — if he had a script, and I presume he did. Perhaps we should ask for the script.

If we were looking at this — as we are at the moment — in strictly objective terms, we would probably conclude that having a sole Minister is the most efficient and effective way to go forward, because the vast majority of policing powers have already been devolved to the policing institutions. The role of any future justice Minister, in respect of policing responsibility, if he or she honours the limits of statutory responsibility, will be quite limited. Many of the justice functions are at arms length, one way or the other, from the justice Ministry. They will operate through various agencies and so on. If the Lord Chief Justice gets his way, arms length will be maximised. So, if one considers this without reference to the politics of the North, the functions of that office should go into a single Ministry, because the functions are such as justify a single Ministry and a single Minister. In the North, however, we do not work in a political vacuum.

Furthermore, I echo Alan’s concerns regarding the issue about reducing the number of Departments — let us say, to five or six — creates a balance of argument such that, if it were to transpire, the justice function should be located in the Office of the First Minister and deputy First Minister. I must put down a very strong marker — and I think Alan did likewise — that my party will oppose the location of justice powers in the Office of the First Minister and deputy First Minister. We think that that is centralising power; it has a potential for abuse; and it does not give much clarity to the justice function, whatever the limitations. The SDLP will strongly oppose that.

I am surprised by John’s comment about having a model of shared Ministry, but he then added that it was initially for the current mandate. Again, I put down a marker — once a joint Ministry is established and then announced as time-limited, there are people in other parties who will take that point and use it as an argument to unpick the joint Ministry of the Office of the First Minister and deputy First Minister. Therefore, if, as at the moment, there is a joint First Minister and deputy First Minister, and there is an argument, as there is, to have a shared and independent justice Ministry, the SDLP will not be vulnerable to putting a time limit on it. We think that there would be elements — especially in the DUP — who will consider remodelling the Office of the First Minister and deputy First Minister or remodelling the form of coalition Government that we have.

If there is to be a joint Ministry — whatever the issue about effectiveness and efficiency — joint and equal, and independent of the Office of the First Minister and deputy First Minister, makes most sense. Who would want to be a junior Minister in a justice Ministry where the junior Minister is not picked through the d’Hondt system; will not be sitting at the Cabinet table; and his or her functions exist by grace and favour of the First Minister? Whatever way negotiations about the division of responsibility between the primary Minister and the junior Minister in the justice Department might end up, you would end up as “junior” in lower case, and in all ways, and it would be an invidious position to be in. Therefore, there is an argument for any joint ministry to be joint and equal.

Considering this without reference to the politics of the North, a single Minister in an independent Department makes a lot more sense. However, if there is to be a joint ministry — and there are arguments for that, too, in the context of the North — then joint and equal is preferable to senior and junior. Those are the views of the SDLP, subject to all those matters I mentioned. [Laughter.]

The Chairperson:
As I understand it, Alex, and to summarise, the SDLP reserves its position at the moment on being definitive about the preferred ministerial model, pending clarification as to where the Executive and the Office of the First Minister and deputy First Minister is going with the reconfiguration of Departments and also whether Ministers should be appointed by the d’Hondt system or by a cross-community vote in the Assembly. However, you have indicated, in respect of each of the options before us, your view on that. You have ruled out a Minister-and-junior-Minister model; you say that in an ideal world you would have a single Minister, but, you suspect, it will be joint Ministers acting jointly and equally, and not as Minister and junior Minister.

Mr Attwood:
To avoid any doubts, part of your characterisation is correct. On balance, a single Ministry would be our preferred option. There are arguments, given the politics of Northern Ireland, that a shared model should be joint and equal, but in any circumstances a justice Ministry should not be part of OFMDFM nor should justice Ministers exist within OFMDFM.

The Chairperson:
Just to be clear, Alex. Although your preference would be for a single Minister, you are saying that if the outcome is two Ministers acting jointly, that should be the perpetual position rather than a single mandate position that is reviewed thereafter. You did make the point that to unpick that raises questions about the unpicking the joint nature —

Mr Attwood:
I do not think that anything is ever in perpetuity in politics. If devolution of justice is achieved in October 2008, the mandate for the Assembly runs out two and a half years thereafter, and I would not want to create a hostage to fortune by saying that the joint Ministry would run out at that time. That would create a rush towards the argument as to why we have a joint Ministry for OFMFDM.

The Chairperson:
Presumably you would articulate that view in this Committee when it reports, as it is statutorily required, on the ministerial appointments in advance of the elections to the second mandate.

Mr Attwood:
Yes.

The Chairperson:
OK.

Mr I McCrea:
May I also seek some clarification? Is it not the work of this Committee to consider some type of mandatory or voluntary coalition, or a change to the system and type of government, at which time we will have the opportunity to deal with those issues?

The Chairperson:
Yes. We must report by 2016 on the major structural issues in relation to the Assembly.

Mr I McCrea:
If the efficiency review panel decides to reduce the number of Ministers, how will a joint Ministry work, given, as Alan McFarland said, that only one Minister can serve on the Executive? Our briefing papers mentioned the Northern Ireland (Miscellaneous Provisions) Act 2006; under the heading ‘Process for making a Ministerial Appointment’ the paper states that:
“Only the appointment of the Minister will carry a position in the Executive Committee and count in the calculation of the d’Hondt running order.”

If there is to be a joint ministry in which both ministers are equal, how can only one Minister be on the Executive?

The Chairperson:
I understand that that is only one option of several that are available.

Mr I McCrea:
If the number of Ministers has been reduced by the time that the confidence exists to devolve policing and justice, the question is whether d’Hondt would have to be run in any case; some one or some party will lose out.

The Chairperson:
Again, the difficulty arises around which party is entitled to appoint the Minister, if that is done under d’Hondt.

If the appointment is done by d’Hondt, a party that has the option of appointing a Minister to the Department of policing and justice might make that choice. It may have made that choice if d’Hondt had run again, and, instead of choosing Finance and Personnel or Education, the party might have chosen policing and justice.

If we use the current system of d’Hondt, the parties will automatically say that they have appointed 10 Ministers, so which party is eligible to choose next —

Mr I McCrea:
We must use cross-community voting to make the decision.

The Chairperson:
My understanding of the law is that we would have to run d’Hondt again. If we were to remove a Ministry — for example, the Department of Employment and Learning — would the party that holds that Department automatically get policing and justice? Would that be that party’s choice? Or, if we were to add an extra Department to the existing 10, would it simply be given to the next party that would be eligible? Is that what everybody wants? It throws up several issues.

According to the research paper, schedule 5 to the Justice and Security (Northern Ireland) Act 2007:
“provides that the appointment process for the Minister and deputy Minister must take place after the appointment of the FM/dFM, but before the running of d’Hondt for the remaining Ministerial positions and before the procedures for appointing junior Ministers are applied.”
That further complicates the issue, because it seems that, under the Justice and Security Act, policing and justice is given preferential treatment. In addition to appointing the First Minister and deputy First Minister outside of d’Hondt, the suggestion is that we should appoint two Ministers of policing and justice, also outside of d’Hondt, and then run d’Hondt for the other Departments. Ian has opened a can of worms.

Mr McFarland:
I am struggling with this. Surely the Justice and Security Act 2007 overtakes the Northern Ireland (Miscellaneous Provisions) Act 2006? Normally, new legislation replaces the old. My understanding is that the 2006 Act gave several suggested models. The way in which the Justice and Security Act 2007 is phrased suggests that it is the plan — in other words that it lays out the options for real. It would be useful to get a clearer picture of everything.

The Chairperson:
Yes. I accept that. Our interpretation is that the 2007 Act does not actually replace the options in the Miscellaneous Provisions Act. In the end, the Assembly must decide on the preferred model. If that model differs from those already provided for in the legislation, the Assembly must legislate for it, or Westminster will legislate for it by an Order in Council. The legislation provides for the Assembly to legislate for a different model.

I think that what you are asking, and I can understand it, is what are the options available to us? For example, do we run d’Hondt, or use the cross-community vote, or do we have a kind of hybrid version, which would use d’Hondt but would leave out policing and justice, if you see what I mean?

Mr McFarland:
It worries me that we are trying to make decisions in the middle of —

Mr McCausland:
Chaos?

Mr McFarland:
— a game, where the rules are not clear. I can see what the options are. However, I sense that some of the options have overtaken others, because they were in the 2006 Act, when the Government was trying to apply leverage to parties and so on. Those options still exist, but I am not clear about the status of the Justice and Security Act 2007. Is that a result of an updated plan for devolving policing and justice?

Perhaps we need clarity on the status of all this from the NIO.

The Chairperson:
Someone is going to have a lot of material for their Assembly sketch next week.

I take your point about the need for clarity. My understanding of the Justice and Security Act 2007 is that it is the latest, post-St Andrews thinking on how the Assembly might proceed on that. However, the Assembly is not bound by it, nor does it rule out the other options that were already provided for in the Northern Ireland (Miscellaneous Provisions) Act 2006. The NIO is simply making known its latest thinking on how that might be handled, so that if the Assembly expresses a preference the legislation is already there. However, as I understand it, the Assembly would still have the option to pick a new model completely, or to revert to one of the models and methods outlined in the Northern Ireland (Miscellaneous Provisions) Act 2006.

Mr McFarland:
There are also party political factors to be taken into account when knocking Departments on the head, because of the effect on the numbers that different parties get. If OFMDFM remain sacrosanct and the other Departments have been chopped back — the UUP would lose one, and I cannot remember the figures but I think the SDLP would lose one — but if the Departments were dropped down to eight and amalgamated, the parties would lose out. You are then into the business of having a separate vote initially for the two security Ministers. There are big choices if we and the SDLP have only one go at this. You would have to hold off policing and justice, and hope for something further.

What I am saying is that there are political considerations that are not clear to us yet, because we do not know how many Departments there will be, and that could affect all sorts of decisions.

The Chairperson:
At the risk of further complicating the position I will clarify what the Justice and Security (Northern Ireland) Act 2007 says:

“Regarding the calculation of “M””
Alex will be glad to know that “M” is not an agent acting on behalf of the security services. [Laughter.]

Mr Attwood:
He is called “N”.
[Laughter.]

The Chairperson:
“M”, for the purposes of d’Hondt, is the letter used in the legislation to calculate the number of Ministers allocated to each party:

“Regarding the calculation of “M” in the d’Hondt process (the number of Ministerial offices held by a party), a party which is entitled to two or more seats in the Executive Committee and that has had a member successfully elected to the position of a Minister in charge of a Policing and Justice Department”.
In other words, the Minister or Ministers should be appointed to the Policing and Justice Department before d’Hondt is run. If:

“a party which is entitled to two or more seats in the Executive Committee has had a member successfully elected to the position of a Minister in charge of a Policing and Justice Department”
then
“that Ministerial position will be taken into account only after at least one other Ministerial position is held.”
by that party in the Executive.
“Effectively, this means that the Minister for Policing and Justice position is taken into account in the second round of calculations.”

I hope that is clear. What that means is, for the purposes of calculating “M”, or deciding which party gets first choice and which gets second, the fact that a party has already taken a ministerial post in the Policing and Justice Department prior to running d’Hondt is not taken into account in the first round. It only becomes a factor in the second round — in the second round of allocations under d’Hondt.

This is rocket science.

Mr McFarland:
The SDLP and the Ulster Unionists are punished in that it only affects the DUP and Sinn Féin.

The Chairperson:
That is correct.

Mr McFarland:
Therefore, only Members from those parties can become security Ministers. Is that correct?

The Chairperson:
As the research paper says:
“Should a party which is entitled to only one seat in the Executive Committee have a member successfully elected to the position of Minister, then that Minister will fill their single ministerial entitlement.”

In other words, if the SDLP were entitled to a single Minister, and he or she was successfully appointed as a Minister in the Department of policing and justice, he or she would have no further ministerial entitlement. It is only a party that has two or more ministries that —

Mr McFarland:
If the number drops to six, it only affects the two parties.

The Chairperson:
Yes — if you drop to six.

Ms Ní Chuilín:
Actually, by 2016, God knows who will be here.

Mr Attwood:
None of that is prescriptive. It is the British Government that want blue-sky thinking but, instead, were thinking in the shadows when all of that emerged. It is not prescriptive. The Committee and the Assembly are free to make whatever choice they want. The British Government will devolve justice and policing, but the shape of it will be in our gift.

The Chairperson:
As it will be for us to appoint the Minister, or Ministers.

Mr Attwood:
Everything is in our gift. The British Government have said that in the absence of agreement between us they might impose a departmental structure. However, that does not mean that they will impose Ministers. That stills fall under the St Andrew’s Agreement’s triple-lock requirements that were negotiated by the DUP.

The Chairperson:
Carál, did you want add anything beyond 2016?

Ms Ní Chuilín:
No. The principle is that it is still our decision. Until we get clarity from OFMDFM, it is an argument that is confusing the confused.

The Chairperson:
It would help the Committee if the team could prepare a paper that was in tabular form and set out each option, and the steps involved, in making the appointment. That would bring a little bit of clarity to the matter. Sinn Féin has been clear about its preferred model. I suspect that, around the Committee table, other parties are reserving their position, pending clarification of: where we are going; the number of Departments; and how that is going to be handled. They may also be awaiting clarity on the confusing picture that arises from two separate pieces of legislation: the Northern Ireland (Miscellaneous Provisions) Act 2006 — and the options that it presents — and the Justice and Security (Northern Ireland) Act 2007.

Will the Committee Clerk check on Alan’s point as to whether the Justice and Security (Northern Ireland) Act 2007 supersedes the Northern Ireland (Miscellaneous Provisions) Act 2006? Are the options in the Northern Ireland (Miscellaneous Provisions) Act still available for us and, if so, what are the appointment mechanisms relating to those options? How do they differ from the appointment option that is set out in the Justice and Security (Northern Ireland) Act 2006? We want an illustration — that we can set in front of us — of the available options and the appointment processes for each of those options. Secondly, we seek clarification as to whether all of those options are still available to us, as a result of the Justice and Security (Northern Ireland) Act 2006. We will park that matter at present. I hope that when we return to it we will have some clarity from OFMDFM on the issue of how it intends to proceed on the number of Departments.

Mrs Hanna:
They have not yet set up the efficiency review panel. Therefore, the issue is a way down the road.

The Chairperson:
We have also to be consulted before it is established.

Members, we will park that issue for the moment. The discussion has been useful and has highlighted the degree to which the picture is confused.

Mr McFarland:
It strikes me that when we get around to discussing the Court Service, several discussions will be necessary if we are to get our heads clear as to what the options are. It is complicated. We might as well get it right.

Mr McCausland:
At least we have clarified the confusion.

The Chairperson:
Absolutely. Clarification has been an oft-used word in this process, and now we are seeking clarification of the confusion.

Mr O’Dowd:
To confuse matters even more, we could set up a ministry that would then be scrutinised by the efficiency review panel in 2016 or earlier. We could introduce an interim arrangement that could be changed again by future Administrations.

Mr McFarland:
We are settling down well here. There will probably not be much of an appetite in the next three years for chucking a load of Departments in the air and organising them, especially with the whole issue of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). If we were to get a steer from the First Minister and deputy First Minister that we should leave the Departments static during this mandate, at least that would guide us. We could potentially create an extra Department for this mandate, which would get us out of all the trouble of messing with other Departments. It would be useful if we could pin down the First Minister and deputy First Minister, because my sense is that we will not get a review up and running in the short term.

The Chairperson:
In effect, you are saying that we need a political decision on the matter. While that decision will come from the First Minister and deputy First Minister, it must also come from all the parties. That is a fair point. Unless the efficiency review panel is established immediately and prioritises and focuses on the issue and reports by Christmas, or January at the latest, it will be difficult for us to bring forward a report, with a degree of clarity, in February.

Mr McFarland:
We may not even bring forward a report in 2009. Let us suppose that, with a fair wind, the Secretary of State’s ambitions for next autumn were realised, we would not manage to turn around all the Departments, get everyone resettled and change all the roles between now and next autumn. It would be useful if the First Minister and the deputy First Minister could meet with the parties and the Executive to focus on where this is going and to give us some ground rules. Otherwise, we will be in difficulties.

The Chairperson:
The Committee Clerk has just pointed out that there is no timeframe for the efficiency review panel. That is something that OFMDFM will have to establish. At the moment, we have no framework to point to, so we are looking for a steer, and we will reflect that in our discussions with officials from OFMDFM.

We have a response from the NIO that will help to clarify aspects of the departmental structure and, in particular, there are annexes to the NIO’s letter that might be helpful as a guide. There are additional papers in your packs from the Northern Ireland Court Service and from the office of the Lord Chief Justice. There is also a briefing paper on the Court Service in England and Wales. We are examining some of the issues that we touched on in our oral evidence session last week, for example, the extent to which the Public Prosecution Service and the courts service would be at arms length from the Department. Would they be non-ministerial Departments? How does that impact on accountability of the Public Prosecution Service and the Court Service to the Assembly? How does that impact on the Department and the capacity of the Minister to answer questions in the House on matters relating to, for example, the Court Service or the Public Prosecution Service? This is a complex issue, and it goes to the heart of the evidence that we have received from the Court Service, the Public Prosecution Service and the Lord Chief Justice that they wish to argue for arm’s length departmental structures.

That is in contrast to the evidence, legislation and proposals from the NIO, which indicate that those matters should be under the direct control of the Department, as in England and Wales. The Committee has heard reference to the Scottish model, which is emerging and evolving, and to the model in the Republic of Ireland.

[Assembly Research and Library Service briefed the Committee.]

The Chairperson:
Time is marching on. I do not know whether parties want to give an initial view, but I am not sure that we will get far today in coming to a consensus on departmental structure, particularly in reference to the Public Prosecution Service (PPS) and the Court Service, accountability issues and ministerial accountability in the Assembly. I would like time to consider the research paper in more detail.

Mr McFarland:
Can we have answers to the questions in section 4 of the research paper?

The Chairperson:
Those are questions for the Committee to consider. The content of the research paper is heavy and serious stuff because it is part of the debate that has been raised by the Court Service and the PPS about their views on the Department of justice and policing. I do not feel that I am yet in a position to give any informed view and I would like to do justice to the excellent research paper and take time to consider its implications.

Mr McFarland:
It will take several meetings to do that.

The Chairperson:
I know that it may seem that we are not making much progress, but we are, in that we are identifying the key decisions to be considered. The research paper will help to focus our minds on what is a major aspect of the report that we must prepare.

Mr Attwood:
First, the Committee has received a weighty letter from the NIO, which I will come back to. I only read it this morning.

Secondly, one of the matters that we discussed before was the sensitive power of the Chief Constable to appeal against decisions made by the Parades Commission. To complete the circle, perhaps we could ask Lord Ashdown the anticipated date of his report into the review of parading. He might have a view on the matter, and given that it crowds into the working of the Committee, that would be useful.

Thirdly, given the transfer of primacy for national security to the security service, is the NIO in a position to share with the Committee what those new arrangements are and what the relationship is between the Police Service and the Policing Board?

It is referred to in a letter from the NIO, which says that the Minister for justice would get the same information as the Policing Board. In anticipation of that, should we not get the information the Policing Board got in respect of what the new arrangements will be?

The Chairperson:
You will note that the minutes from the previous meeting stated that an interim report is expected on the strategic review of parading, with the final recommendation to follow in the spring. We will, therefore, seek clarity on what is meant by the spring. Is it likely to come before the Committee reports in February?

I can report that the security services have indicated that they will not be responding directly to the Committee; that is implicit in the letter that we received from the NIO, which has responded on behalf of the security services.

Alex, I would be happy if there was a note of issues that you feel have not been covered — in fact, that goes for any member. Members should look at the NIO response regarding the security services or any other aspect of the responses that we have had. If members feel that there is a deficiency or shortfall, or that something that we have asked for has not been adequately addressed, please give us a note of it. We will then do a follow up with the NIO.

As regards the research paper, the subject arose of the Courts Service in England and Wales and its relationship to the Department, which is similar to what the NIO has proposed for Northern Ireland. There is a note at the back of the folder on England and Wales, which the Clerk has provided. Do you want any further research on the England and Wales model, or are we clear on that?

Mr Attwood:
There is one question that I am not clear on. The NIO is proposing an agency model, and that is different from what we currently have. The NIO is saying, and the Lord Chief Justice accepts, that any model other than a justice agency would have to be legislated for in the future by the Assembly. Does that mean that the British Government are legislating now for the agency approach before devolution of justice?

Mr I McCrea:
Did the Secretary of State not refer to that when he was here? Is he not going ahead with their proposals, and we would make any changes regardless?

Mr Attwood:
That is what I heard. However, is that legislation or simply an executive decision?

The Committee Clerk:
I will have to check. Annex B of the NIO letter describes the Courts Service as falling under the Department of the Lord Chancellor and not having a current sponsor. It describes the future status as it being an agency, and its future sponsor would be a “Fraser figure” in the proposed Department of Justice. However, it does not go on to articulate whether legislation would be required. My impression is — from what the Secretary of State said — probably not. However, if the Committee did want to go for the non-ministerial model advocated, legislation would be needed. However, that point can be checked.

The Chairperson:
That point arose in the oral evidence from the Court Service, whom we specifically pressed on that point. It said that legislation would be required for its model, but not necessarily — I think — for the agency model.

Mr Attwood:
Why?

The Chairperson:
We can seek clarification on that, Alex.

Do members have a view on whether we should ask our colleague from Research and Library Services to do further research on the England and Wales model?

Mr O’Dowd:
It might be useful. Questions may arise as we go through the issues, and then we would have to go back. It would be useful to have the work done.

The Chairperson:
Are members content that we ask Research and Library Services to have a look at the England and Wales model? Perhaps in doing so, it could draw a comparison between that and what the NIO is proposing in its current proposals for the agency status.

Members indicated assent.

The governance and accountability mechanisms again touch on the issue of PPS and the Northern Ireland Court Service et cetera. I do not feel that the Committee is in a position to start drawing a consensus on that because we need clarity in our own thinking. Similarly, internal and external relationships go to the heart of how the Northern Ireland Court Service relates to the Department et cetera. Are Members content that we take time to examine the briefing paper as parties and individuals?

Members indicated assent

Research and Library Services are going to prepare some more work for the Committee on the England and Wales model. The Committee will return to these issues. In the meantime, hopefully we will bring more clarity to the table on the position of OFMDFM, the options for Ministerial appointments et cetera. At least the discussions helped the Committee focus on the areas that require further discussion.