ASSEMBLY AND EXECUTIVE REVIEW COMMITTEE

OFFICIAL REPORT
(Hansard)

Devolution of Policing & Justice

15 December 2008

Members present for all or part of the proceedings:
Mr Jimmy Spratt (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Simon Hamilton
Mrs Carmel Hanna
Mr Danny Kennedy
Mr Alex Maskey
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Ian Paisley Jnr

The Chairperson:
We move on to the devolution of policing and justice. I ask members to declare any interests. I declare that I am a member of the Northern Ireland Policing Board.

Mr Paisley Jnr:
I am also a member of the Policing Board.

Mr McCausland:
I am a member of Belfast District Policing Partnership.

Mr A Maskey:
I am a member of the Policing Board.

The Chairperson:
The first issue that we must deal with is at paragraph 6.1:

“What would be the status of the Minister’s position in, and relationship with, the Executive Committee; and would the Minister be required to bring significant, or controversial, matters to the Executive Committee.?”

I will follow the usual format of asking each party for its view before opening up the discussion.

Mr Hamilton:
There has been a significant amount of discussion on that matter by the Committee. The DUP’s position has been stated before. I understand that there are ongoing discussions on ironing out the outstanding matters, and, therefore, I propose that the Committee does not take any decision on the issue at this stage, but does so, perhaps, at a later date.

Mr A Maskey:
Sinn Féin is happy enough to support that. There are some ongoing discussions, and I am happy enough to let those take their course over the next short period.

Mr McFarland:
The Ulster Unionist Party believes that the Minister should have the normal relationship with the Executive under the normal rules.

Mrs Hanna:
The SDLP’s view is that the Minister should have the normal relationship with the Executive as under d’Hondt.

The Chairperson:
There is obviously no agreement on that. Is the Committee content to allow the discussions to continue?

Members indicated assent.

The Chairperson:
We move on to issue G, which mostly relates to recommendation 24 of the previous report:

“What would be the structure of the Policing and Justice Department and what functions should be placed there and/or OFMDFM?”

Mr Hamilton:
I simply wish to restate the DUP’s position that the Public Prosecution Service (PPS) should be as per recommendation 24 of the Committee’s original report; the PPS should be a non-ministerial Department. The remaining organisations, with the exception of the Judicial Appointments Commission (JAC), should, as stated in recommendation 24, be under the new Department of justice. The JAC should be under the Office of the First Minister and deputy First Minister (OFMDFM).

Mr McFarland:
I would like clarification on what Simon said. Does the DUP consider that the PPS should come under the justice Department and the JAC should —

Mr Hamilton:
No, I said that the PPS should be a non-ministerial Department. At this stage, I do not wish to be prescriptive about what should be the sponsoring Department, for want of a better phrase, of the PPS, but it should be a non-ministerial Department.

Mr A Maskey:
Sinn Féin is happy enough for there to be further consideration of that matter. The PPS is clearly a non-ministerial Department, so we are happy enough to let the matter sit for now.

The Chairperson:
Are you happy enough with the other Departments?

Mr A Maskey:
Yes.

Mr McFarland:
The UUP is happy enough with either option that the two big parties may take. The matter is also subject to further discussion as part of the other issue. The UUP will, therefore, wait until it hears the outcome of that discussion.

Mrs Hanna:
If the matter is subject to further discussion, I would prefer to wait until Alex Attwood is present to be absolutely sure.

The Chairperson:
Alex is not here, and I am asking for the SDLP’s position.

Mrs Hanna:
That is fine. Sorry, I understood from the previous member who spoke that the matter would be discussed again anyway and has not yet been agreed.

The Chairperson:
It will not be agreed at this meeting.

Mr Hamilton:
The PPS is only one element of recommendation 24 anyway.

The Chairperson:
Mrs Hanna, are you happy enough to —

Mrs Hanna:
The SDLP is deferring a decision, and it is my understanding that that is permitted.

The Chairperson:
No, we are not deferring it.

Mrs Hanna:
That is fine. If the matter is not being deferred —

The Chairperson:
My understanding of what has been stated so far is that discussion is ongoing about where the PPS will lie. It has been agreed that it is a non-ministerial Department. The Committee has agreed that all other organisations, with the exception of the JAC, should come under the justice Department.

Mrs Hanna:
My understanding is that the SDLP believes that the JAC should be contained within the justice Ministry. We have agreed to the placement of the other organisations; the only outstanding issue being the Public Prosecution Service.

The Chairperson:
The DUP and Sinn Féin have agreed that the JAC should remain part of OFMDFM. Mr McFarland, will you reiterate your party’s position on that issue?

Mr McFarland:
We are happy for the JAC to remain part of OFMDFM.

The Chairperson:
Mrs Hanna, what is your party’s position?

Mrs Hanna:
We want the JAC to be part of the Department of justice.

The Chairperson:
The JAC is the only issue on which there is not full agreement. There is majority agreement that it should be part of OFMDFM, and the SDLP wants it to be part of the Department of justice. Do Committee members agree that there is majority consensus?

Members indicated assent .

The Chairperson:
Issue H was resolved at the last meeting. However, there is revised wording, which I will read into the record:

“What arrangements need to be in place at the point of devolution, and beyond, to ensure that Members of the Statutory Committee for any new department should not sit, simultaneously, on the Policing Board or any District Policing Partnership?”

It was agreed that that should be done by convention and that the matter will be referred to the Committee on Procedures. Do Committee member agree on that and the revised wording?

Members indicated assent.

Mr Kennedy:
Would it be possible to put a timescale on that so that it is resolved as quickly as possible?

Mr Hamilton:
That is fair enough.

The Chairperson:
There are no objections to that.

Item 6·2 on the agenda is the letter from the First Minister and the deputy First Minister.

Mr McCartney:
Will you inform Alex Attwood about the meeting on 5 January 2009?

The Chairperson:
Alex, a meeting of the subcommittee was agreed for 5 January 2009 at 12.00 noon, so note that in your diary.

Committee members should take a few minutes to read the letter and let me know whether they have any points to raise.

The Chairperson:
Ian Paisley Jnr has indicated that he wishes to speak.

Mr Paisley Jnr:
I welcome the fact that we have the letter. It has opened up some issues and closed down others very well. I welcome the comments made about the independence of the judiciary in the penultimate paragraph, and that strong statement of clarity should be noted for the record.

The paragraph before that opens up some of the issues that deal with finance. It recognises that there are significant pressures on the policing and justice budgets. It alarms me that over a period, we have a fairly good handle and idea of the policing side of the house — it takes about £1 billion to run policing — and yet there are significant historical pressures on that £1 billion. However, in my view, there is very little clarity on the justice side of the house. We need to identify those pressures on funding. The letter states:

“to reconcile the identified pressures with the funding for the current Comprehensive Spending Review period (2008/11) and beyond. It is hoped that this process will be completed before the end of the financial year.”

In parallel, OFMDFM is holding:

“a series of direct meetings with significant stakeholder organisations in the policing and justice field, including the Chief Constable and Bar Council, to discuss funding pressures, as seen from the perspective of those with executive responsibility.”

We should try to be factored in on whatever information OFMDFM pick up in that regard. It is essential that we get a clear understanding of the costs involved. It would be an injustice if we take decisions, in good faith, on the budgetary requirements of any future policing and justice Department, only to discover some time downstream — whether short term, medium term or long term — that we were given a jaundiced view of the finances.

I take the view that there will be an attempt to tell us that it will cost considerably less than it actually will. We must have a clear understanding from the various stakeholders as to how much each section of the Department will cost, and it is important to get that information from the horse’s mouth. If people are brought to the Committee to give us that information, we must point out that they must tell us the truth, the whole truth and nothing but the truth about the costs; otherwise, in two, three or four years’ time, when they are being held to account by any future Committee, those words will be held against them for scrutiny. If they have misled the Committee in the early stages about the budgetary requirements of each section of the Department, they will be held to account as the Committee rolls on and does its work.

It is important for the Committee to have a clear understanding, early on, from those significant stakeholders about how much each section costs. We must ask OFMDFM to factor us into any information that it receives, and the Committee must do whatever work is necessary to get a clear understanding of the costs — particularly on the justice side of the house.

Mr A Maskey:
I do not disagree with that sentiment. The Committee has agreed that it will undertake whatever work is necessary in examining the finances in the future. It is wise to seek to be kept in the loop by OFMDFM because it is important. However, we should also try to ensure that we deal with it in a way that will not create a parallel process or cause any additional confusion. I reaffirm that Sinn Féin members on the Committee will be intent to do their damnedest to ensure that they do a thorough job without straying into matters that they would not need to be involved in at this stage. The Committee must balance its work programme.

Mr McFarland:
Ian has a point; one could argue that it is the duty of the Committee and the Assembly to monitor such matters. However, I get a real sense from the letter — and, indeed, from the previous letters from the NIO, in which the Secretary of State asked us not to create a parallel process — that the First Minister and deputy First Minister are dealing with the issue and that it is not envisaged that the Committee will play a significant part in considering it. I am slightly worried that there may be a tension between the Committee’s duties and how the First Minister and deputy First Minister see the matter going.

Mr Paisley Jnr:
I draw the member’s attention to the final line of the fifth paragraph of the letter of 12 December from the First Minister and deputy First Minister:

“We are aware that finance has been identified among the non-modality issues which the Committee will be considering and on which it will report next year.”

Thus, there is an expectation that the Committee will consider and report on the matter. That is why I am very enthusiastic about what is said in the letter — it gives the Committee a way in.

Mr Attwood:
First, I apologise for being a wee bit late.

I welcome the fact that we have received the letter, although it does not move us very far forward on the issues on which we asked the First Minister and deputy First Minister to comment. My comments are based on my first reading of the letter.

The second paragraph of the letter deals with the public consultation process when a Minister of justice is identified and/or determining the level of public confidence in the devolution of justice powers. In OFMDFM’s process paper, which was sent to the Committee on 18 November, group 5 includes the objective to commence a:

“process of building confidence to achieve cross-community buy-in”.

The buy-in is to the principle of the devolution of policing and justice. Given that that is a policy — and a very significant one — public consultation should mean a full 12-week exercise under the established procedures. I sought clarification on that point, but the letter from Peter Robinson and Martin McGuinness provides no clarity whatsoever. We must be clear about what is going to happen, when it will happen and what it will mean when the First Minister and deputy First Minister ultimately propose the devolution of policing and justice. Unfortunately, the second paragraph of the letter adds nothing to our understanding: it does not clarify what public consultation will or will not mean, nor does it clarify when the public consultation process will begin.

Given that it is four weeks since Peter Robinson and Martin McGuinness issued their earlier letter, and that the Committee made a number of attempts to get a reply, we should have received a reply that outlines precisely what the Ministers envisage will happen. Perhaps they think that the public can be consulted in another way, as suggested by their vague assertion in the letter of 12 December 2008, which states:

“We welcome views from any organisation and from members of the public generally.”

If that is what they mean, they should say so. However, I do not think that they can get away with that, because it is stated at group 5 of their process paper that there will be consultation with party organisations and external stakeholders. The public consultation mentioned in the letter is a different process. Therefore, in my view, there must be certainty about what is or is not meant by consultation.

We also asked about the group of actions set out in the process paper. We need to know which of those matters the First Minister and deputy First Minister consider to be concurrent and which they consider to be sequential. Once again, four weeks after it outlined its proposals, OFMDFM has not provided any clarity about which matters will be concurrent and which will be consequential. OFMDFM has reiterated that there will be different processes for different elements, but it does not say what those are.

The third paragraph of the letter is also a mystery to me. In the process paper produced by Peter Robinson and Martin McGuinness — these are their words, not mine — the third action point of group 3 says:

“FM/dFM to set out a process to identify a candidate for the post of Minister for Justice”.

We have asked what that process might be, but we have not received an answer. We are told, curiously, that Members of the Assembly will be asked to nominate a person, but that is a nomination process. It is not the process to identify a candidate for the post of justice Minister.

In their letter, Peter Robinson and Martin McGuinness say:

“You also asked specifically about the process which we envisaged for the identification of a candidate and election of a Minister of Justice.”

They have outlined what they envisage is the process for the election; namely, that nominations will be invited from the Members of the Assembly, but is that the height of what is going to happen in respect of identifying a candidate? At a previous meeting, Ian Paisley Jnr told me that conversations were going on between Mark Durkan and Peter Robinson about identifying a candidate, which came as news to me. I checked with Mark Durkan, who confirmed that no such conversations took place between Peter Robinson —

Mr Paisley Jnr:
I do not think that the record says that I said that.

Mr Attwood:
Sorry?

Mr Paisley Jnr:
I think that the record says that I said that there had been conversations about that issue. You said that there had been conversations.

Mr Attwood:
Fine. There have been no conversations at all about any issue.

Mr Paisley Jnr:
I do not know whether that is right.

Mr Attwood:
Sorry?

Mr Paisley Jnr:
I do not know whether that is right.

Mr Attwood:
I am saying on the record that it is right.

Mr Paisley Jnr:
I am saying that you should check the record.

Mr Attwood:
I am saying that I did check.

Mr Paisley Jnr:
Check again.

Mr Attwood:
I am saying that there were no conversations since Peter Robinson and Martin McGuinness produced a letter four weeks ago. I am not clear: are we now being told that OFMDFM’s process to identify a candidate for the post of justice Minister is by nominations for elections that will be invited from Members of the Assembly? Is that the height of it? We must have clarification about that.

I concur with the points that have been made about budgetary issues. Although I thought that the height of our role would be as cheerleaders, it does appear that OFMDFM envisages a somewhat enhanced role in respect of that matter, which sits uneasily with the position set out in Shaun Woodward’s letter, in which he said that he did not want a parallel process. It is also interesting that the height of what OFMDFM is hoping for, at this stage in the process, is that the financial issues will be completed before the end of the financial year. That raises questions about when we might envisage Peter Robinson and Martin McGuinness coming to the Assembly and proposing that the devolution of justice should arise. On the basis of the letter of 12 December, they do not see that happening before the end of the financial year, because the financial matters may not be resolved by that stage. Therefore, we will be in April, and as members are aware, our view is that we will be into a date beyond that.

I welcome the confirmation that OFMDFM accepts the independence of the judiciary as outlined in the Justice ( Northern Ireland) Act 2002.

Mr McFarland:
I cannot understand why Alex Attwood is confused at all about the second paragraph of the OFMDFM letter, which deals with public consultation. There is no process for public consultation, and confidence for the devolution for policing and justice will exist when Peter and Martin say it exists. It is very simple.

Mr A Maskey:
Taking the letter in the round, and in conjunction with what has previously been said and written, it is self-explanatory. I do not see any confusion in it at all. A great deal of work has been done, and there is much yet to do. I am confident that we are on the right track, and the Committee is a very important part of that.

I have no further comment to make in relation to the letter other than to say that we have noted it and we are grateful for it.

The Chairperson:
Are members content to accept the clarification contained in the letter?

Mr Attwood:
I propose that we write back to the First Minister and deputy First Minister. I acknowledge what Alan said: in the real political world, the devolution of justice will happen when Martin McGuinness and Peter Robinson decide that it will be so. However, I have stated somewhat differently — [Interruption.]

The Chairperson:
What is your proposal?

Mr Attwood:
I propose that we write to the First Minister and deputy First Minister to ask three questions. First: is the public consultation that is identified in group 5 of their process paper consistent with section 75 of the Northern Ireland Act 1998?

Mr McCartney:
That is already answered.

Mr Attwood:
It is not answered.

Mr McCartney:
If it is, they would have stated that that was the case, I assume.

The Chairperson:
Mr Attwood, go ahead and state your proposals, and I will put them to members.

Mr Attwood:
I want confirmation on whether the public consultation will consist of a fully fledged 12-week consultation period with the public, as required under section 75 of the Northern Ireland Act 1998. Secondly, I want the First Minister and deputy First Minister to identify which actions in their process paper are sequential and concurrent. Thirdly, will there be a process of identifying a candidate for the Minister of justice, beyond the process of nominations by Members of the Assembly? Clarity is required on those three questions.

The Chairperson:
The Committee Clerk will read those questions back to the Committee.

The Committee Clerk:
Mr Attwood proposes that we write to the First Minister and deputy First Minister with the following questions: is the public consultation consistent with section 75 of the Northern Ireland Act, and will it involve the normal 12-week period for consultation? What actions contained in the process paper are sequential, and which are concurrent? Is there any process for the identification of a candidate for Minister of justice?

Mr Attwood:
— beyond nominations from Members of the Assembly.

The Chairperson:
Are members clear on that?

Members indicated assent.

The Chairperson:
Question put, That this Committee writes to the First Minister and deputy First Minister with three questions:

• Is the public consultation consistent with section 75 of the Northern Ireland Act 1998, and will it involve the normal 12-week period for consultation?
• What actions contained in the process paper are sequential, and which are concurrent?
• Is there any process for the identification of a candidate for Minister of justice?

The Committee divided: Ayes 3; Noes 7.

Ayes

Mr Attwood, Mrs Hanna, Mr McFarland.

Noes

Mr Hamilton, Mr McCartney, Mr McCausland, Mr A Maskey, Mr O’Dowd, Mr Paisley Jnr, Mr Spratt.

Question accordingly negatived.

The Chairperson:
Before I suspend proceedings until 2.00 pm, when the draft report will be discussed in closed session, I thank the Committee Clerk and the staff for the assistance that they have given to the Committee over the past number of weeks. They have done a lot of work.

Furthermore, I wish the visitors in the public gallery, some of whom have attended every week, a happy Christmas and a prosperous and peaceful new year.