ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE

OFFICIAL REPORT
(Hansard)

Devolution of Policing and Justice

8 January 2008

Members present for all or part of the proceedings:

Mr Jeffrey Donaldson (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr Ian McCrea
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr George Robinson

Witnesses:

Sir Hugh Orde ) The Chief Constable
Mr Paul Leighton ) The Deputy Chief Constable

The Chairperson (Mr Donaldson):

Members, it is now 11.15 am so we are ready to proceed with the oral evidence session with the Chief Constable, Sir Hugh Orde. I thank the Chief Constable and Mr Leighton for joining us; we very much appreciate your time. I refer members to their meeting’s folder, in particular the written submission that was made by the PSNI at the beginning of the inquiry. We may wish to explore some issues from that with the Chief Constable.

Chief Constable, I believe that this is a significant occasion, which might be regarded in the same light as the appearance of the Lord Chief Justice at an earlier oral evidence session. I am not aware that you as Chief Constable, or any of your immediate predecessors, have appeared before locally elected representatives at Stormont in this type of format. You are very welcome, and the Committee is glad to establish another precedent.

The normal format for the meeting is to invite you to make a short opening statement, which will be followed by questions from members. The Committee will normally proceed with questions in accordance with the terms of reference from the inquiry, which you have been provided with. Those questions are on the matters to be transferred under devolution, the ministerial models and the timing and preparation for devolution. We will try to take them in that order. The Committee is especially keen, Chief Constable, to hear of your assessment of the level of public confidence that exists in policing at present and how that might relate to the transfer of policing and justice matters from Westminster.

Before we proceed, I ask members to please declare relevant interests. I declare an interest as a member of the Northern Ireland Policing Board and of the Privy Council.

Mr I McCrea:

I am a member of the Cookstown District Policing Partnership.

Mr G Robinson:

I am no longer a member of the District Policing Partnership.

Mr Kennedy:

I am no longer a member of the Policing Board.

Sir Hugh Orde (The Chief Constable):

Thank you for the opportunity to meet the Committee today and to answer questions, which will hopefully assist you in preparing your report to the Secretary of State by March 2008. Some of the issues that you may wish to discuss are around timing and confidence for the devolution of policing and justice, and I am happy to give some views on those subjects in a brief opening statement.

Before that, I have some general comments and observations to make on policing. First, huge strides have been made in the past number of years in moving policing in Northern Ireland forward. The current structures in Northern Ireland are held in the highest regard internationally. The PSNI is, without doubt, one of the most accountable police services in the world, and that is a good thing. An independent ombudsman carries out investigations into complaints, and the Policing Board — with which I meet at least on a monthly basis to discuss performance and other issues — holds me to account. As the Committee has already taken evidence from that body, I will not go into detail about its role. I know that some members of the Committee have direct experience of the Policing Board.

Equally importantly, District Policing Partnerships (DPPs) achieve local accountability. They work at a local level with police to determine policing priorities and agree annual plans. A large number of other bodies hold the police to account and scrutinise our work, including the surveillance commissioner, the criminal justice inspectorate, Her Majesty's Inspectorate of Constabulary, human rights advisers to the board, NGOs, international visitors and independent reports such as the Blakey Report, the Stevens Report and the Crompton Report, which were commissioned by the board.

At some stage, greater confidence in policing will lead to a society in which continual reference to others for reassurance becomes less common. I hope that any move towards devolution of policing can be achieved with a minimum of additional bureaucracy. Currently, there is no doubt that such accountability is a positive thing. It increases confidence in policing, which this Committee is interested in, and is good for the police and the wider community.

The accountability structures that are in place, together with the determined and committed efforts of my officers and staff as well as members of the community, has resulted in the reduction in crime that we have today. Currently, crime is down by 14% on the year to date; it is at a five-year low. In November 2007 we recorded 8,500 offences; in November 2002 we recorded 13,500 offences. We are delivering on crime reduction, which feeds naturally into confidence in policing.

Clearance rates are beginning to improve, but there is much more work to do in that regard. It is important to note that we work closely with other forces to ensure the service benefits of shared knowledge with colleagues in other forces. Such contacts are important now and will be ever more important as we consider the current international terrorist threat as well as ordinary organised — and disorganised — crime. I do not want our service to be isolated from any other force in England, Scotland or Wales in any way, shape or form.

Recent reports on people’s confidence in policing show that our competence in carrying out our work continues to grow. An Ipsos MORI poll commissioned by the Policing Board in May 2007 — not by the Police Service — showed that 84% of the public have confidence in our ability to deliver an ordinary day-to-day service for all the people of Northern Ireland. That figure exceeds the target set by the Policing Board in the latest policing plan. That is not to say that there will not be difficult days that impact negatively on the extremely challenging territory that we are charged with policing. This year is going to be a very difficult and challenging year for policing for all sorts of reasons. However, I believe that we will be judged on what we do on a daily basis in working with communities to serve all the people of Northern Ireland. We will be judged on how we deliver policing now — that is the feedback that I continually get from the people that we serve.

When the Committee wrote to me about the devolution of policing, it referred to issues of timing and confidence. I will touch on a couple of those issues. From our point of view, I have said consistently that there is no reason why devolution of policing and justice should not happen. We will work with whatever decision the Assembly reaches over the structure of a justice Department and the timing of devolution of policing and justice. My officers are serving the community today and will do so tomorrow, next month and next year, no matter what decisions are made about the devolution of policing.

The structures of a policing and justice Department are a matter for this Committee, but I ask members to consider the following matters. When devolution of policing and justice occurs, it should not impact on my operational responsibility as the Chief Constable. That is a critical factor and a unique feature of policing in the United Kingdom. On a day-to-day basis, I am accountable to the Policing Board, which is also very important. As I mentioned earlier, the accountability structure is a key factor in building community confidence. For that reason it is vital that when devolution occurs, the relationship between the Policing Board and the devolved structures is clearly defined and understood. There is a continuing need for a good level of interaction with broader United Kingdom policing, which includes the two-way transfer of officers between services. That is also very important; as I said earlier, I do not want our service to be isolated. In addition, it is essential that there is clarity between the PSNI, the Policing Board and the Assembly on the question of finance.

Given the events that have taken place at Stormont since May 2007, it is clear that Northern Ireland is taking control of its future. However, there is a question over whether it needs to take control of its past. The past is a critical issue for policing and confidence in current policing, not just for us, but for Northern Ireland society as a whole.

In conclusion, Chairperson, I say to you and the members of the Committee that people in Northern Ireland want policing to move forward. Many people want to see local politicians take responsibility for policing. Whatever decision is reached by the Assembly on the structure of a justice Department and the timing of devolution, my senior team and I are more than ready to work with the politicians in any way that is helpful.

Whether we like it or not, policing has been in the eye of political developments in Northern Ireland. It has been the critical issue. I put on record my thanks to all members of my service who have delivered a huge change programme over the past five years, have reduced crime, and have increased confidence in the service. Their commitment has contributed substantially to the reasons why today’s debate at the Assembly and Executive Review Committee is taking place. I am happy to assist the Committee in any way that I can.

The Chairperson:

Thank you Chief Constable. The Committee appreciates your opening comments and the attention that you have paid, in particular, to some of the issues that concern the Committee, not least of which are the issues of timing and confidence. Two Committee members have to leave before the end of the meeting. I will take their questions first.

Mr Kennedy:

I welcome the Chief Constable and Deputy Chief Constable to the meeting and thank them for attending. It is on public record that the Chief Constable said, last year, that he thought that the devolution of policing and justice powers would be more possible in autumn 2008 rather than by the Government’s deadline of May 2008. What insight on the matter led him to reach that conclusion?

The PSNI has already moved to change and redefine divisional policing boundaries. In any new situation in which policing is devolved, would the Chief Constable envisage changes to those boundaries and would he be open to those changes, even under the RPA?

As regards to operational responsibilities — which the Chief Constable has, rightly, sought to protect — would he prefer to be accountable to the Northern Ireland Policing Board rather than the Assembly’s policing and justice Committee?

Would the Chief Constable like to share any views that he may have on the Consultative Group on the Past, which deals with the past and the suggestion of amnesties, and so forth?

Sir Hugh Orde:

In answer to Mr Kennedy’s first question on the timing of the devolution of policing and justice powers, it was a wide ranging interview. I was asked for a general observation. The answer that I gave was what I had heard from all sorts of people. Some people were keen on the devolution of policing and justice powers while others were more reticent, and I reflected on that. It seemed to me that the devolution of those powers was more likely to occur in October. I had no particular insight on the matter. It was a general discussion on how I saw the matter and what I had heard about it, on the ground. I am happy for the Committee to have a transcript of the exact words that I used so that there is absolute clarity on what I said. I said that from a police perspective, I had no difficulty whatsoever with the devolution of policing and justice powers. That seemed to be the will of Parliament. Those recommendations were made some time ago and they make sense.

Deputy Chief Constable Paul Leighton (Police Service of Northern Ireland):
The short answer to the question as to whether the PSNI is open to further changes is ‘yes’. The important thing to note is that we moved because we felt we could create a more manageable and better structured organisation that would be more efficient in the delivery of policing across Northern Ireland. It would bring us into line with many other police services that have divisional command units (DCUs) or basic command units (BCUs) of approximately 600 officers. Therefore, it brought us into a structure that fits well with our comparator forces. With regard to the future, coterminosity is an important concept. I am a great fan of it. I worked in a police service that had coterminosity and I see it as a huge benefit. Therefore, we would work towards a situation of coterminosity. However, we would have to work within the budget that we had and, of course, scale brings certain savings for us. We hope that we will achieve some savings, in the interim, with our current structure.

The Chairperson:

I refer to the question that Mr Kennedy asked about the Consultative Group on the Past. The Chief Constable and Deputy Chief Constable will be aware of some controversy that arose out of last night’s public meeting and the suggestion that the term “war” be used to describe the events of the past 35 years as a means of offering people the opportunity to come forward to tell the truth about what happened. Presumably that would include perpetrators from both sides of the paramilitary divide. In return for doing so, they would be offered an amnesty for their crimes.

Your first point that devolution must proceed in order to maintain confidence is valid, because it will show that Northern Ireland is confident enough to manage its own affairs. We will be ready for that by May 2008, but timing is not an issue for the Police Service. It is not our decision, and few in the Police Service have a view on it.

The Chairperson:

I want to follow up on Danny Kennedy’s point about accountability. If you continue to be accountable to the Policing Board, should the Policing Board in turn be accountable through the Minister or Ministers to the Assembly? I understand that the Policing Board has a relationship with the Ministers in the Northern Ireland Office. Should that continue to be the case through Ministers in the Assembly?

Sir Hugh Orde:

The main strength of the Policing Board is its independence. As was the case following recent events, the board can require me to attend. However, it has never had to require me to do so because that would be awful. I always attend because the board asks me to do so. I can have robust debates with the Policing Board on all sorts of subjects at short notice and to varying degrees of effectiveness, depending on people’s personal views. The board is a powerful structure.

My relationship with the Minister is more at arm’s length. The Minister’s relationship with the Policing Board is also more at arm’s length than direct, except when it comes to money, because the income stream comes from central Government. I have no problem with either model, but there must be clarity.

We cannot have a situation in which I answer to the Policing Board, which then reports to the Committee while, at the same time, the Committee bypasses the board by summonsing me to attend its meeting here. Of course, I would turn up, as I do to meetings of the Northern Ireland Affairs Select Committee when asked.

I would turn up at the Public Accounts Committee if I was asked, although that it not optional and I would have to attend. The two can work in parallel, but there must be clarity. It is a matter to be decided by the Policing Board and the Committee, rather than me, and I will work with whatever model is selected.

Mr I McCrea:

I thank the Chief Constable and the Deputy Chief Constable for coming today. Many people are concerned about when — or even if — policing should be devolved. We have touched on the timing but from some people’s perspective the question is whether it should be devolved at all.

I disagree with Paul Leighton’s point that policing and justice must be devolved to maintain confidence. Many issues, such as terrorism, must be addressed before that can happen. Confidence is based on whether the police are doing a good job. However, the terrorist attacks on police officers over the past few months do not inspire confidence in the community that I represent. Simply to devolve policing and justice will not address the problem of confidence. Many other issues, such as the IRA army council, must be addressed before the devolution of policing and justice can even be considered. I suppose that those were comments rather than questions.

The RPA also raises issues. As someone who sits on Cookstown District Policing Partnership, I believe that, in that largely rural area I represent, confidence in policing has been lost.

For example, Cookstown’s senior officer is based in Enniskillen, which has very few links with Cookstown. I am aware that that is a stopgap until Omagh is sorted, but a lot of problems exist.

I believe that the police jumped first. Whether that was because of a belief that there were going to be seven councils is another argument. It is a wrong move and the changes that have been made in the local areas of having an inspector as the chief officer — I am not saying that he cannot do the job — sends the wrong message. Places such as Cookstown and Magherafelt previously had superintendents. However, the duty officers at weekends are now based in Dungannon and do not have any base in Cookstown. Issues such as that cause problems with confidence for the local communities.

The Chief Constable mentioned the “arm’s-length” element. When giving evidence to this Committee, the Lord Chief Justice talked about being at arm’s length from the Ministers. It is interesting to note that that is similar to what you have said.

Sir Hugh Orde:

Although I was not present, I think that the Lord Chief Justice’s point was slightly different. He talked about judicial independence and he felt that something chaired by him regarding appointments was more appropriate. That is not the case with policing; we can be far closer in that sense. We do not have the legislation that enshrines our independence in the same way as the judiciary do. We are different in that respect, and I am happy with that relationship. What I am saying is that we need clarity regarding what that relationship is. Frankly, it would be a little tiresome if I had to go to the Policing Board and then had to repeat the same experience here. That would be confusing to people outside; they want clarity.

Regarding the reform that Paul touched on, five years ago when I came in from a different service — as Paul did — I was staggered by the level of senior officers that I had in this police service. That was a transitional stage, and I think that Patten saw 29 districts as a transitional stage. I know that people have different perceptions and that some feel that we now have fewer officers, which we do — at the height of the Troubles there were 13,500 and there are now 7,500. That is all that we can afford. Coming from where I do, I recognise that there are far more officers here than elsewhere. The trick was to make sure we maximised their effectiveness and their commitment to the front end of policing.

Frankly, I would far rather have an extra mobile patrol than a superintendent in a place that its size cannot justify. I have absolute confidence in the people who are now looking after what were the 29 districts. They have access to senior management whenever they need it. I have visited many of them and they will continue to do a good job.

The critical relationship is between the DPPs and individual officers. That a DPP is liaising with a chief inspector rather than a chief superintendent does not mean that it will get a different service. In fact it will get a more personalised service, because that relationship would be the sole responsibility of that officer. I understand the concerns. Maybe Paul would like to touch on this issue.

The Deputy Chief Constable:

What I said was that the ultimate test of confidence will be that devolution of policing powers has to take place. I went on to say that the timing is not our concern. That is a matter for this Committee and other politicians. Eventually, what will be a sign of true public confidence will be the devolution of policing. As I have said, the timing is not an issue for us; that is the Committee’s concern.

Mr McFarland:

I thank the Chief Constable and the Deputy Chief Constable for attending today. There is clearly a debate to be had about the relationship between the Policing Board and any Committee that is set up. We will have a Committee consisting of 11 MLAs because that is how we operate. There are 10 MLAs on the Policing Board, and there is an issue over whether this organisation can afford 21 MLAs dealing with policing and justice. There is reluctance because one of the successes of the Policing Board is that its members have had direct political input. There is an issue, purely in our own timing, as to whether we can afford to keep them there.

We still need a political influence on the Policing Board, because it relates directly to the Assembly. Whether we can have political appointees, rather than elected representatives, is another debate. However, it is a key debate as to how the devolution of policing functions, and we must have it. No doubt Sir Hugh Orde and the Policing Board will have views on that.

If I may move on, money is probably the biggest issue. As you know, I spent four years on the Policing Board when the police were getting £720 million — I understand that that amount has gone up. That is an enormous sum for such a small place. There are plans to cut the police budget back. If there is devolution of policing and justice, there will be enormous pressure on the Administration to put money into health and other services rather than policing. Have you had discussions with the NIO to properly assess that you will get the full package that you are entitled to after the transfer of powers? Have you established that the NIO and the Government in London will not try to short-change the PSNI and the board on the allocation of new funding that will come into our block grant when the transfer occurs? What discussions have you had to try to ensure that you will not be short-changed amid smoke and mirrors during the changeover?

Sir Hugh Orde:

I have not had any specific discussions, because that is a matter for the politicians and for debate between the Minister of Finance and Personnel and the Executive. I assume that the Assembly would be reluctant to take responsibility for policing if it felt that it was not getting adequate money to deliver the service. We will deliver the service with whatever moneys we get. The question will be how effective we can be.

Over the last five years, we have delivered substantial evidence that we can deliver value for money. We have delivered on efficiency savings, the Gershon savings and additional savings. We have reduced costs substantially through reducing the number of our colleagues in the full-time reserve force, which will eventually be reduced to zero. We can prove that we can deliver an ever more effective service with fewer resources. However, there will be a bottom line where something has to give, and that will mean losing people, because so much of our budget goes towards paying people.

In reality, up until 2011, no one will want to move away from having 7,500 police officers. That is too important for too many reasons. However, after 2011 there will be debate about the numbers of police officers, because, as Mr McFarland rightly said, we have far more officers than there would be in a normal policing environment. The important point is that we have not achieved a normal environment yet.

As the Committee will know, we submit our annual request for money through the Policing Board, where it is subject to rigorous debate, and the Government make their decision. We have just received that decision, and we must cut our cloth to deliver the service within the allocation. I imagine that the process would be no different if the money was held here. We would make the same approach, and the Assembly would decide what it would give us to deliver an effective police service.

The Deputy Chief Constable:

The only future discussion on finance that has been supported in any way, as the Chief Constable has said, is the comprehensive spending review (CSR) settlement, which takes us to the end of the financial year 2010-11. We have just received a financial settlement from Treasury for those three years. Mr McFarland was correct; there is a considerable reduction in the amount available, and we will have to make substantial savings over the three-year period.

However, that is as far as discussion has gone about whether health, education or other Northern Ireland matters would have a call on money that has to date been going to PSNI. The Government will only ever commit to a three-year discussion on finance. As the Chief Constable said, it is likely that we will not have an establishment figure after 2011. At present, we have an establishment figure of 7,500, but that will be history after March 2011. We will have a budget, within which we will have to work, and that will affect the number of police officers.

Mr McFarland:

Is there any recognition that, although the PSNI was initially asked to deal with the past through its current budget and to see how that went, it is now clear that the Police Ombudsman’s office is starting to look at about 67 cases, and large inquiries, such as the Corry Inquiry, will be coming through?

With so many people off, do you expect to be given additional funds to employ others in order to alleviate the present policing drama?

Sir Hugh Orde:

We will reach a point where the situation becomes critical.

The Historical Enquiries Team is separately funded, and after a long and challenging debate that has been clarified. I am confident that it can carry on its business, which is important, because it is actually delivering outcomes to families. I read the latest report last weekend, and the process is coming through with some people getting some form of comfort and satisfaction from the discussions that they have had with members of that team.

The public inquiries are funded from current expenditure, which also pays for police officers. In essence that is an opportunity cost where officers are moved from operational, investigative work and some of the more complicated intelligence work into dealing with public inquiries, but there is a substantial increase, for example, in costs and legal fees — paying for counsel’s advice, additional lawyers and, indeed, appointing an additional Assistant Chief Constable, who does nothing but deal with issues that arise from the past. If Government appoints public inquiries it is absolutely right that institutions, such as the police, service those inquiries. However, the cost impacts on the here and now, which is why it is important that Stormont consider that as a whole, because it will be a very real issue in the future as inquiries are not cheap.

The Chairperson:

You said that in 2010-11 you will be moving from an establishment-based budget to a budget that determines what the establishment might be, rather than the other way around. Who will make that decision? Is it already made, or are we working on an assumption? Where does that originate from?

The Deputy Chief Constable:

That is my assumption, and I am basing it on the fact that a Treasury-commissioned review of our numbers, the value for money report, reported to the Northern Ireland Policing Board some time back and recommended a number much below 7,500.

However, I am also basing it on general practice in policing within the UK where there is a budget and not an establishment. Northern Ireland is probably one of the last, if not the last, organisation that has an establishment. Policing used to be run by having an establishment, and then achieving the budget to match it and pay wages, etc. In England and Wales that is gone. They receive a budget and then it is up to them whether they can supplement that budget in some way and employ more police officers, and that is why pre-setting has become very important in finance. That does not exist in Northern Ireland at the moment, but whatever financial arrangements exist after 2010-11, they will probably be budget based — although that is purely my reading of the situation.

Sir Hugh Orde:

I believe Paul is right. While the figure of 7,500 came from the Patten Report and is not enshrined in legislation, everyone quite rightly stuck to that principle, and it has played a critical part in getting us to where we are. Flexibility in these issues is quite difficult. Efficiencies around civilianisation are very difficult when you have to maintain 7,500 people, because you cannot replace police officers with support staff in order to save money to deliver a more effective service. Paul is right — that is probably where it will go.

Mr McCausland:

You mentioned earlier that your comments regarding the month of October for devolution of policing and justice were based on conversations with a wide range of people. What reasons did they give for October being a better time than the spring?

Sir Hugh Orde:

I did not say October was the best time, I just did not think that devolution was achievable in May. Some people said, and I do not know if they were being amusing or not, that they thought that any date set by the British Government was not going to happen as a matter of principle, and others thought that by the time this had worked through and people had more confidence it would be later than May. It was as simple as that.

I am not keen to speculate on the situation in Northern Ireland in 2010-11. If this were an entirely normal society with no residual effects from the so-called troubles, one could deliver an effective policing service with that number of police officers. For example, that is more than Northumbria currently has, and our geography is substantially larger. That figure is potentially there or thereabouts. Having said that, I do not wish to second-guess the situation, and it would be a high-risk strategy to move too quickly. We have got to where we have got to because we have managed to deliver an evermore effective service against the backdrop of a challenging budget and challenging demands for more efficiency, less waste and more dynamic ways to do things. However, we have managed to deliver that in spite of the dissident republican threat, the terrorist threat and all the other things that, sadly, do not make us entirely normal yet.

I am very worried about a sudden cut in numbers. There is also the issue of the logistics involved in physically reducing personnel from 7,500 to 6,200, with no sign of a Patten severance package — for want of a better description — which is not realistic and would take a huge amount of time. I do not want to alarm people by stating suddenly that I think that that is where police numbers are going. If we had an utterly normal society, with no residual concerns, which includes dealing with the past, a reasonably effective service could probably be delivered with 6,200 officers.

Mr Attwood:

That is a forthcoming statement because the police have not said that before. The figure of 6,200 was based on flawed evidence and the real figure is higher than that.

If people are prepared to accept and share policing responsibility on the Policing Board, they are capable of sharing legislative responsibility in this Building on policing and justice matters. Therefore, policing and justice should be devolved as quickly as possible. The real question is one of how people live up to their policing and justice responsibilities. Just as some cases can define the worst of the past, they can define the best of the present.

On 4 October 2007 at a Policing Board meeting, Assistant Chief Constable Sheridan, in relation to the murder of Robert McCartney, said:
“I can confirm that the Senior Investigating Officer did have a number of working meetings with representatives of Sinn Fein at their request. At the last meeting, Sinn Fein members agreed to look at encouraging members of their party and witnesses to come forward. I can say that as of this date, no new witnesses have come forward.”
Without prejudicing the ongoing investigation and prosecutions, is it still the case that in January 2008, no new witnesses have come forward?

Sir Hugh Orde:

Yes; to the best of my knowledge. However, I caveat that answer by saying that I have not been updated and need to check with Assistant Chief Constable Sheridan.

Regarding the figure of 6,200, I will deliver policing with whatever resources I am given. If I am to have 6,200 officers, I was making the point that I can deliver a service with that number of people. A normal society means having full community support. That is how it works; it is not police policing communities, but rather police and communities working together to reduce crime. The caveat is that total support and a normal society mean that engagement takes place across the community. That is important.

Mr Attwood:

I agree, and there is growing evidence of people across communities co-operating more with the police. However, there is also evidence of grave matters from the past that still exist, an example of which is the Chief Constable’s confirmation — to the best of his knowledge — that no new witnesses have come forward in the McCartney case.

I thank you for your time this morning and for the open and full replies that you have provided to the Committee. We might return to you with issues that arise in the Committee’s proceedings. I ask you to convey to all your officers our best wishes for the coming year.

We were due at this stage to have a session with officials from the Office of the First Minister and deputy First Minister (OFMDFM). A letter arrived yesterday, and that has been circulated to members by email and, this morning, in hard copy. At this stage, I do not propose to have a discussion on what we do next in relation to OFMDFM. The NIO officials are waiting outside, so I would prefer to proceed with that evidence session and follow that with a discussion on the next steps with OFMDFM.

I welcome Peter May and Clare Salters to the meeting. The Committee appreciates the time that they have taken to attend. Before we proceed, I ask members to declare any relevant interests that they might have. I declare an interest as a member of the Northern Ireland Policing Board and the Privy Council.

Mr I McCrea:

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

The Chairperson:

There are no further interests to be declared. The Committee thanks the NIO for the responses that it received recently from Simon Marsh on several issues that it had raised. I am sure that those responses will prove helpful in the final stages of the Committee’s inquiry into the devolution of policing and justice powers.

Do you want to make any opening comments? Are you happy for the meeting to proceed with Committee members raising their issues of concern and points on which they seek further clarification?

Mr Peter May (Northern Ireland Office):
The NIO understands that one of the key areas that the Committee wants to explore is how the NIO is proceeding with the programme. It might be helpful if we were to make some introductory remarks about that progress.

The Chairperson:

Yes, thank you.

Mr May:

It might be useful to highlight the nature of machinery of Government changes in order to inform the discussion and to highlight the key areas as the NIO sees them.

The number of required actions to make machinery of Government changes work is quite small. Consequently, in Whitehall or elsewhere, machinery of Government changes can typically take place at short notice and with limited prior planning. One example of that is the decision to transfer responsibility for prisons and probation in the UK Government from the Home Office to the Ministry of Justice in 2007. That decision was announced six weeks prior to its taking effect. It is notable because the change was far more significant with regard to the staffing numbers and budgets that were affected than the devolution of policing and justice would be. Although, clearly, there were not the same political issues associated with it.

It is, however, a feature of all machinery of Government changes that certain organisational aspects are dealt with after the changes have taken effect. Therefore, although more of those changes must be included in the programme, because it involves a transfer of powers from the UK Government to a devolved Administration, it is not the case that every matter must be resolved in advance of devolution.

Therefore, with regard to what is essential for the delivery of devolution — what is on the critical path — the key requirement is political agreement in the three areas that the Committee addresses in its work: which powers are devolved to which Department, within what timescale, and with what ministerial responsibility. Flowing from that are three aspects of the programme that the NIO is running that are critical to delivery. It may be useful to discuss each of those in more detail. In summary, they are the legislative, administrative and organisational steps that are necessary for devolution. It is clear that devolution cannot happen if the legislation that transfers the functions and creates the new justice Department is not in place. After my remarks, Ms Salters will say a little more about where the NIO is on legislation.

The second area relates to administrative arrangements. They are the necessary underpinning of the legislative changes, which will be made — if they have not been made already. They cover such matters as governance arrangements and protocols. For example, the creation of the Courts Service as a Next Steps agency, which is one of NIO’s working assumptions, means that it would be proper and appropriate to implement a framework document that sets out how that would work from the point of devolution onwards. A draft of that framework is in preparation. There is a standard template for such things. Similarly, the working assumption is that the Public Prosecution Service will become a non-ministerial Department. A framework document would be the appropriate governance mechanism to put in place there.

We are considering developing protocols in four main areas: judicial independence; prosecutorial independence; policing arrangements; and national security arrangements. In each case, the protocols will build upon the agreed principles and legal framework that is already in place. They will be public documents that will set out how things will work in practice. We plan to share the drafts initially with the officials in the Office of the First Minister and deputy First Minister with whom we are working. It is important that those protocols are in place from day one.

Finally, there are the organisational aspects to the change. They need to be fully functioning organisations capable of delivering the functions allocated to them and of responding to ministerial priorities from day one. Those organisations must be staffed and funded to an appropriate level, and work is ongoing to deliver that.

Before Christmas, the Secretary of State announced the comprehensive spending review settlement for the Northern Ireland Office. He said that it is a good settlement that provides a sound basis upon which to enable the devolution of justice and policing.

The next step is to separate that budget between the proposed Department of justice and the NIO. We will take that process forward in the coming months. The Department of Finance and Personnel in Northern Ireland and the Ministry of Justice in Whitehall will be involved to ensure that it is done in a way that is understood and accepted.

The Secretary of State is committed to the Northern Ireland Office’s being ready to meet the target of enabling the devolution of justice and policing by May 2008. Against each of the three critical path areas that I have outlined, we are on target. In addition, we are making good progress in a range of other areas where change is necessary. In short, the programme is on course to deliver by May if necessary, based on a series of working assumptions. Those assumptions must be reviewed when political agreement has been achieved. The target of May 2008 takes account of the end-March Assembly report. It will also provide time for any adjustments to be made if an agreement is reached in that time frame.

There is a range of other useful, important activities for preparing the ground for devolution and for ensuring that there is a clear strategy for how those aspects that do not need to be resolved from day one will be resolved thereafter. Those include a range of personnel, IT and other matters. We can address those issues during questions if the Committee wishes. Clare will say a little more about the legislation, which is one of the critical aspects.

Ms Clare Salters (NIO):

The Secretary of State has explained in writing to the Committee that it is our intention to share an indicative draft of the two main pieces of legislation with members at the beginning of February. It will not be possible to have the legislation in final form at that stage, not least because we cannot finalise the legislation until the Assembly has decided on the matters that it wants to have devolved to it. However, we are working on the assumption that powers will transfer broadly along the lines set out in the February 2006 discussion document. We thought that it would be helpful to the Committee in finalising its deliberations to see an illustration of what the legislation would look like.

Thank you for that clarification, because there was a bit of a muddle about that issue. So, if there is devolution on 1 May, can the Assembly, if it so chooses, have in place a new justice agreement that is modelled on the old or an advance on the old?

Mr May:

I do not see why not, but that may well be a matter that the Minister of justice — or whatever the title of the new Minister will be — would need to take the lead on. It would be an agreement between two Ministers, rather than an agreement between the Assembly and the Minister in the South. That was my understanding of the situation.

Mr Attwood:

We can work on that in the Committee.

My second question is about finance. I note that a conversation is currently ongoing between the NIO and those involved in justice issues as to how the budget might be split following the CSR. That would be very interesting. Will the Department of justice’s budget — whatever number of millions that may be — be transferred in the Exchequer block grant to the Northern Ireland Assembly? Could the Assembly then rework the justice element of that budget in the CSR in a way of its choosing? For example, if it decided that it wanted to subvent £5 million to health, it could do that, could it not?

Mr May:

Yes, the budget for justice will be added to the Northern Ireland block grant, and it will be for the Executive and the Assembly to decide how best to spend that money.

Mr Attwood:

The third question goes back to the Chairperson’s question about where funding for the Public Prosecution Service will be sourced. In written evidence to the Committee, the chief inspector of the Criminal Justice Inspection said that he felt that the budget should fall within the remit of the Ministry of justice, not within OFMDFM’s remit. I was unable to attend the Committee meeting at which Sir Alasdair Fraser gave evidence, but I vaguely recall that he said that the budget should fall within the remit of OFMDFM. Why should it be within OFMDFM rather than within the justice Ministry itself, as the CJI recommends?

Mr May:

Hillsborough. It was stated, at the bottom of the agreement document — in very small print — that civil servants in both jurisdictions would work together to carry forward the development of criminal justice co-operation between the two states. It caused a row at the time because it looked as if it was a cross-border body in the making and that an attempt was being made by the Governments to fire up a load of bits and pieces in advance of Northern Ireland’s politicians getting anywhere near criminal justice. We would then have — when taking over responsibility for criminal justice matters — a whole raft of initiatives and agreements in place in which we, as politicians, had no say.

It caused a row at that time and it was supposedly put on hold. Then, we discovered that it was ongoing. However, when the board reported on it a year later we discovered that nothing significant had come out of it. My question is where have we got to now with regard to the significance of the material that is coming out of the two jurisdictions’ Civil Service working group in taking forward criminal justice co-operation?

Mr May:

There is an intergovernmental agreement on co-operation on criminal justice matters. That was signed by the Northern Ireland Justice Minister, David Hanson, and his counterpart in the Republic of Ireland, Michael McDowell on 26 July 2005. It sets out that there will be regular meetings of Ministers and of officials under the auspices of the British-Irish Intergovernmental Conference. That work has been ongoing since that time, examples of which include probation arrangements whereby prisoners are released in one jurisdiction but reside in another, and the development of notification systems should registered sex offenders move from one jurisdiction to the other. In response to an earlier question I want to make it clear that the intergovernmental agreement falls at the point of devolution of policing and justice powers to the Assembly.

It is then a matter for any incoming Minister with responsibility for policing and justice to take decisions about how best to proceed with criminal justice co-operation in the future.

Mr McFarland:

We are aware of what has been made public; those issues that you have just mentioned have all been made public and no one has a problem with that sort of co-operation. Therefore, is it correct to say that there is nothing else and no other discussions or cunning plans that we are unaware of that have been agreed privately by the two jurisdictions and that have taken place under the auspices of this co-operation between the civil servants?

Mr May:

Not to our knowledge.

Mr McFarland:

That is fine. I simply wanted assurances. I want it on the record of Hansard that we are not expecting any surprises.

“The Ministers remain of the view that this is a matter for party political engagement and agreement and, as you know, they consider it would be appropriate for them as holders of ministerial office, to offer views to the inquiry at this stage. On this basis, the Ministers are agreed that it would also be inappropriate for officials to attend the Committee to discuss what are undetermined policy matters. Therefore we must decline the invitation to appear at this time.”

At the last meeting, the Committee explored the options for how we can conclude our report without those key elements being available. What preparatory work has been done on the role that the First Minister and deputy First Minister will have in respect of: the appointment of the Attorney General, or on the issue of the public prosecution service being funded by the Department? Issues relating to the appointment of senior judges also fall to OFMDFM. Then there is the issue of the Ministers themselves: will there be one Minister or two? How will they be appointed? Can they be accommodated within the Executive? Will they be a part of it? Will the Department have to be replaced, or do we need to approach the Northern Ireland Office for approval for an additional Department to be created? Those are major issues for the Committee.

As things stand, OFMDFM says that those are political matters, not departmental issues and they must be decided between the political parties. Until there is agreement between the parties on those issues, OFMDFM will not engage further with the Committee on them.

That is my summary of the position: that is where we stand at the moment as I understand it. In the light of that, the Committee must decide how to proceed. We must prepare a report fairly soon. We are due to report to the Assembly by 29 February. We have six or seven weeks to look at those issues. The question is: do we revert to the political parties and ask them to engage on those issues and let us have the outcome in due course, or are there alternative options?

Mr McFarland:

Committees should not start into internal politics. Have you and the deputy Chairperson —

The Chairperson:

Alan, before you proceed, there is an issue that I want to clear with the Committee. We are still in public session and therefore we are still on the Hansard record. Does the Committee want to continue this discussion in public, or does it want to go into private session to deal with this?

Mr McFarland:

We should go into private session. There are issues of Committee integrity and how the Committee should operate to be settled. We should have a serious discussion in private without having to worry about the public record.

The Chairperson:

Is the consensus that the Committee proceeds in private session?

Members indicated assent.

The Chairperson:

The Committee Clerk:

The discussion would be on the papers, because, by and large, the Committee has a position on virtually all the matters to be transferred, which comprise the first of the three components of the terms of reference. The Committee wanted to park its decision on a couple of matters, but we might come to those now and, perhaps, move them on. The Committee can then set that component aside, and it will be gathered up when members review the draft report.

Therefore, the Committee must be concerned with structures and timing. Structures seem quite complicated, whereas timing is more to do with the outcome of party political considerations and whether there is consensus in the Committee about a particular date. There is a complexity around the structures and the Government’s accountability, which the Committee has focused on in all the oral evidence sessions. Members face that hurdle now and must resolve how the structures will look. That might lead to the discussion of issues such as where the Public Prosecution Service might be, whether there will be an arms-length court service, and the number of Ministers that there will be.

The Chairperson:

Over the past couple of weeks, I have been involved in discussions on these issues. The difficulty that I have with submitting a party position paper now is that there might be subsequent negotiations on issues that we had not anticipated and further engagement after we have met with our advisers. Therefore, what is the point of stating our position if the nature of the engagement could change? That problem has been exercising me for the past 24 hours — if we put down a position on paper but, find that the changed position of OFMDFM means a different form of political engagement, I am not sure whether that engagement will take place across the Committee table or elsewhere. If it happens elsewhere, in what structure will it take place?

I am reluctant to have the type of discussion that we envisage having next week without clarity about the direction that we need. Clerk, subject to the agreement of members, we need a wee bit more time to be absolutely clear about our position on the new correspondence from OFMDFM. I want the Committee to deal with, and try to sign off on, matters to be transferred so that that business is finished because the discussion over structures will be more complex than was initially thought — I fear that the implications of the new correspondence from OFMDFM have created an added difficulty for us.

Mr McFarland:

From our experience of the past 10 years, I am not an advocate of position papers because the moment that they are produced, they have to be defended. Listening to an argument and modifying one’s position is the essence of all negotiation and agreement, but position papers make it difficult to do that. For example, Raymond might make a very good point, of which I had not thought. However, that point might contradict what my party has put down in its position paper. Consequently, I would have to ask my party colleagues, who will growl when they hear that it is a point put forward by Sinn Féin, whether they want to change the party position,. We must provide clarity for the team because they cannot write the report without it. However, the four key parties are represented on the Committee, which provides an opportunity for us to discuss where we stand. My guess is that a lot of this is quite simple because we heard that the Secretary of State is going to leave the business of creating the model for the Lord Chief Justice’s office to us. Therefore, the confusion over whether we need to recommend that Westminster puts through primary legislation is not a factor anymore.

The situation that we have is devolving powers according to David Lavery’s amended model, which does not seem like a contentious issue. There is an issue of accountability of that organisation and who runs it, which needs major discussion, particularly if we recommend moving to the Lord Chief Justice’s model. There must be a serious discussion on accountability. The structures, the number of Ministers and how to create a Department will have to be parked.

That will be a political discussion somewhere down the line, when everyone is comfortable. The options are limited, but, at that stage, it will be a negotiation. Other matters must be tweaked, and let us tweak what we can tweak. In this Committee, we should lay to rest the bits and pieces that are relatively easy and deal with what we can. We can work out the political stuff as best as we can towards the end.

The Chairperson:

Members should be clear about what I am saying. If there is to be political engagement and agreement on a range of issues, we must know whether this Committee is expected to engage in that process, or will that happen elsewhere. If it does happen elsewhere, we are entitled to ask about how that will happen and who will take such discussions forward. It is clear to me that thrashing out decisions about the timing of the devolution of policing and justice will come down to the two main parties.

The other issues must be matters for the four parties because, in theory, the Minister, or Ministers, responsible for policing and justice will be drawn from any of those parties, which will have ongoing scrutinising roles. Therefore, the four-party structure of this Committee should be reflected in the negotiations about future structures — but how will that happen? In the first instance, as your Chairperson and Deputy Chairperson, Raymond McCartney and I must seek clarity from OFMDFM because many of the structural issues relate to it. We will report back to the Committee next week when we will be in a better position to take a view on how, at a practical level, we might take our discussions forward, what our role will be in those discussions, and what role, if any, will be played by others.

In addition, if this Committee is to negotiate on some of the structural issues, it would be useful if Alan McFarland and Alex Attwood consulted their colleagues to ascertain whether they have a mandate to do so because, obviously, such discussions would also have party implications.

Raymond and I must explore the matter further and see where we get to. I appreciate that that will create a difficulty for the Committee Clerk; however, we have identified a major difficulty today, and I would be happier to go forward having clarified the situation rather than spending another couple of weeks in discussions only to discover that we should not have been undertaking those discussions or that other discussions are underway elsewhere.

I want the Committee’s role in this matter to be clarified in order that we can move forward and do what is expected of us in the knowledge that either discussions on other aspects of our work or discussions that might impact on our work are taking place elsewhere and will be fed back to us in due course, or that we are expected to undertake that work. That is not clear from the information that we have.

I, too, would like some clarity on what I must do, particularly with regard to next week’s agenda. Matters to be transferred can be included on next week’s agenda. On reflection, I believe that those issues can be resolved quickly. There are only a couple to be dealt with. The parties will take their positions, whatever those might be.

With regard to structure, the NIO letter dated 15 October 2007 included, in Annex B, the working assumption of what the structure would be like. It states that the Public Prosecution Service would be funded through OFMDFM. There is an opportunity for discussion on that.

In so far as clarity about political considerations is concerned, I understand why the Committee has reached that particular conclusion. The Assembly placed an obligation on the Committee to prepare a report on the terms of reference that were originally developed by the Assembly and Executive Review Committee. The Committee volunteered to undertake that piece of work when it recognised that it must be done.

It seems to me that, in those terms of reference, it was the Committee’s responsibility to decide what matters should be transferred, the departmental structure into which they should be transferred, and the ministerial arrangement that would head that structure. It was also the Committee’s responsibility to make a recommendation, if it could, on timing. Therefore, it seems that the Assembly has determined that that is what the Committee should be doing. I understand that what Committee members are saying is that they may wish to ask their political parties for direction on their positions in relation to those matters. I am certain that it is the responsibility of the Committee to prepare a report for debate in a plenary session about all those issues.

The Chairperson:

Absolutely, there is no doubt about that. We will see which papers come in from the parties by next week. Assuming that we move quickly through the outstanding issues on the matters to be transferred — and then park those — we can set one third of the Committee’s remit to one side. It is good to put that work behind us so that we know that, at least — from the point of view of morale — we have hit that milestone.

We could then have a useful without prejudice discussion about the structures. Our previous discussions, for example, on the matters to be transferred were useful and brought us to the point whereby we had a broad consensus. It would be useful to have, next week, a without prejudice discussion on the structures. I hope that Mr McCartney and I can then report back on where we have got to on the political side of things. We can follow that with a without prejudice discussion on the structures. That may help to inform our thinking on the development of our party-political positions. By then, I hope that we will understand the context in which that discussion is taking place and where the political engagement/discussion is going over the next few weeks.

I now refer to the NIO response, dated 15 October 2007, to the Committee’s letters. Annex B — Chart of the Organisations in the Criminal Justice and Policing Fields — outlines the kind of structures that are envisaged by the NIO. I do not know whether it is possible to form an agenda, using that chart, which the Committee might work through and might, at least, allow a broad discussion on each of those areas. We may be able to establish quickly that there is a consensus on a number of those areas, which would allow us to focus on those areas in which we do not have a consensus. That would then be the subject of further political discussion, whether in Committee or otherwise.

Are members content that we proceed on that basis next week and that we ask the Committee Clerk to draw up an agenda based on, first of all, resolving the outstanding issues on matters to be transferred and, secondly — after Mr McCartney and I have reported to the Committee on the political developments — that we have a discussion on an agenda that is based on the NIO’s chart. We will proceed on that basis at next week’s meeting of the Committee. I will leave it to the parties to decide what they want to do with their papers. Mt Attwood has indicated what he is likely to do.

Mr Attwood:

If I leave the room now, will the Committee be inquorate?

The Chairperson:

Yes, the Committee would be inquorate. However, we have almost finished the meeting.

Mr McFarland:

Would next week’s meeting of the Assembly and Executive Review Committee be held in public, as has been the convention until now, particularly with regard to discussions on matters to be transferred? I need an answer to that question, for logistical reasons.

The Chairperson:

Yes. Would members prefer to go into private session when we are dealing with the structures and the report back on the political side, after we have dealt with the matters to be transferred?

Mr McFarland:

I am an advocate of open discussion — especially for non-contentious issues. However, it is easier to speak freely on contentious issues if one is not worried about one’s remarks being reported in the press. Committee evidence sessions can be made public at some stage, but it is important that contentious issues are discussed and decided in private.

The Committee Clerk:

Can I clarify whether the Committee wants the private session to be reported by Hansard, because it might form part of the Committee’s report that is due before the Assembly by 29 February. Although parts of the sessions will be private, I will have to arrange for Hansard to be present to cover those discussions. The reports on the sessions will not be broadcast or available to the media, but members will eventually have a transcript that will be published.

The Chairperson:

Members, it is now 2.00 pm and time is marching on. Are members happy to push the debate on the paper on the judiciary of England and Wales and accountability into next week’s meeting?

Mr McFarland:

Those are both useful papers, particularly the one to do with how the administration of the Lord Chief Justice and his responsibilities work.

ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE

OFFICIAL REPORT (Hansard)

Devolution of Policing and Justice

8 January 2008

Members present for all or part of the proceedings:

Witnesses:

The Chairperson (Mr Donaldson):

Mr I McCrea:

Mr G Robinson:

Mr Kennedy:

Sir Hugh Orde (The Chief Constable):

The Chairperson:

Mr Kennedy:

Sir Hugh Orde:

The Chairperson:

Sir Hugh Orde:

Mr Kennedy:

Sir Hugh Orde:

The Deputy Chief Constable:

Ms Ní Chuilín:

Sir Hugh Orde:

The Deputy Chief Constable:

The Chairperson:

Sir Hugh Orde:

Mr I McCrea:

Sir Hugh Orde:

The Deputy Chief Constable:

Mr McFarland:

Sir Hugh Orde:

The Deputy Chief Constable:

Mr McFarland:

Sir Hugh Orde:

The Chairperson:

The Deputy Chief Constable:

Sir Hugh Orde:

Mr McCausland:

Sir Hugh Orde:

Mr McCausland:

Sir Hugh Orde:

Mr McCausland:

Sir Hugh Orde:

Mr McCausland:

Sir Hugh Orde:

Mr Attwood:

Sir Hugh Orde:

Mr Attwood:

Sir Hugh Orde:

Mr Attwood:

Sir Hugh Orde:

Mr McCartney:

Sir Hugh Orde:

Mr McCartney:

Sir Hugh Orde:

Mr McCartney:

Sir Hugh Orde:

The Deputy Chief Constable:

Mr McCartney:

The Deputy Chief Constable:

Mr G Robinson:

Sir Hugh Orde:

The Chairperson:

Sir Hugh Orde:

The Chairperson:

Sir Hugh Orde:

The Deputy Chief Constable:

The Chairperson:

Mr I McCrea:

The Chairperson:

The Chairperson:

Mr May:

Ms Clare Salters (NIO):

The Chairperson:

Ms Salters:

The Chairperson:

Ms Salters:

The Chairperson:

Ms Salters:

Mr May:

The Chairperson:

Mr Attwood:

OFFICIAL REPORT
(Hansard)