David Ford
South Antrim · Alliance Party · Northern Ireland
“All I can say is that I remember officials coming back into the Department and saying, "You wouldn't have been very pleased with what Trevor or Stewart said at the Committee yesterday, Minister".”
“<BR /> <BR />When I listened to the start of the debate, I welcomed the comments that Mr McGuigan made, but, as Alex Attwood said so forcibly, even when he intervened and asked what had changed, there was an inability on the part of the Sinn Féin representative to explain anything other than to say that there is an election in six weeks'…”
“<BR /> <BR />No doubt, what we saw from in/out Ministers not so long ago and the failure of the outgoing First Minister to accept her role when she was Minister in DETI to deal with the issue has further added to that.”
“There is an inability in all that we face at the moment to recognise the public disgust at the behaviour of certain people in this place and, most particularly, in the Executive.”
“On a point of order, Mr Speaker. In his question to the Minister on that statement, Mr Paul Girvan suggested that some judges spin out cases inappropriately in their own financial interests.”
“Less than the full truth emerged and facts were eventually slowly dragged out from the bunker, sorry, from Stormont Castle. It is a classic example of why people have lost trust in the way that this place operates; it is a classic example of why the ministerial code needs to be enforced at least as rigorously as we enforce procedures agai…”
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“On that basis, I am delighted to recommend the Bill as drafted and ask the House to oppose the amendments suggested.”
“In light of the access to justice review and of what we are proposing for legislative change, on each of those I have taken the initial decision and left it to the director of the Legal Services Commission — effectively the future director of legal aid casework — to take the decision on the merits of granting further funding. That is not grabbing power or looking for a "puppet on a string", or whatever airy-fairy language Jim Allister may choose to use. That is putting the responsibility where it lies, which is on an independent official acting on the merits of a case and removing the political influence from it.”
“<BR /> <BR />However, notwithstanding the change of approach reflected in this new provision, it may be considered appropriate, in order to fully discharge, for example, the state's obligations under article 2 of the European Convention on Human Rights, for my Department to give a direction to the director of legal aid casework. Such a direction would be in broadly similar terms to the current 'Direction 1' which I have already referred to. Moreover, as I stated earlier, any such direction would be subject to consultation with relevant stakeholders and scrutiny by the Justice Committee. <BR /> <BR />I will add a further point on the issue of inquests and the current ministerial role. In a number of cases recently, I have received submissions relating to the granting of exceptional funding for inquests for preliminary stages.”
“It inserts a new article 12A into the Access to Justice (Northern Ireland) Order 2003. <BR /> <BR />The current statutory provision from 1981 is supplemented by a direction, 'Direction 1 — Representation at Inquests'. That direction was issued by the Lord Chancellor in 2005 and remains in operation today. In brief, it requires the Legal Services Commission to fund representation on behalf of the immediate family of the deceased at an inquest concerning a death occurring in police or prison custody or during the course of a police or other security services arrest, search, pursuit or shooting. To date, it has been utilised in particular to secure the funding of next-of-kin at certain legacy inquests.”
“Yes, I can confirm to Mr McCartney that it would not merely have to come to the Justice Committee. Because it is subject to draft affirmative procedure, it would have to come to the Floor of the Assembly and not just to the Committee. That is a double safeguard in that respect. <BR /> <BR />It may be helpful to give Members an example of where I might want to consider a direction under these powers. Under the current arrangements, the Department has a role in decision-making on applications for exceptional legal aid in individual cases. The relevant statutory provision is article 10A of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. As Members will recall, the Bill includes provision to give effect to a recommendation of the access to justice review that Ministers should no longer have such a role.”
“Let us be clear: applications for civil legal aid will be considered on their merits and dealt with individually.”
“Secondly, any directions and guidance must be published and will be subject to consultation with relevant stakeholders and scrutiny by the Justice Committee, which is the position under the current arrangements. Thirdly, if the director refuses an application for funding or further funding, he or she will be required to set out clearly the reasons why the application has been refused. Fourthly, any such funding decision by the director will be subject to appeal to an independent panel. <BR /> <BR />As noted in the Justice Committee’s report, any direction or guidance issued by me or my Department cannot overrule the provisions that I have highlighted in relevant other primary or secondary legislation. I believe that the effect of accepting Mr Elliott’s amendments would be to compromise those safeguards as they are constructed.”
“That makes it absolutely clear. Indeed, it is something of the interplay between Mr Elliott's amendment Nos 3 and 5 that makes that point. The Bill was carefully drafted to ensure that we kept matters clear on that and to ensure that the provisions work in harmony with existing and more general statutory provisions in the 1999 order. It is in line with existing powers to give directions and guidance to the Legal Services Commission. <BR /> <BR />As it is drafted, the Bill has a number of safeguards for specific points that I want to raise on the power of giving directions. First, the Bill expressly prohibits me or my Department from giving a direction or guidance in relation to an individual case.”
“We then have it clearly set out that individual decisions on the grant of legal aid are not affected by that.”
“Article 46(5) of the order provides that any regulations made under article 12(6) are subject to Assembly control by way of draft affirmative procedure. So, it would not be possible for the Department to give the kind of direction or guidance reflecting the scope of cases that may be funded in the way that Mr Maginness politely and Mr Allister in slightly different language highlighted as possible changes without the approval of the Assembly. I trust that Assembly Members regard Assembly powers as being a reasonably clear way of ensuring that those matters are carried out properly. We have the general case of directions from the Department — or from the Minister, if others wish to say it — and the normal rule that Ministers can direct civil servants in any respects, subject to the law.”
“So that is an open process that is clear and transparent, and it ensures that the general guidance and direction powers do not apply to a specific individual case. <BR /> <BR />Mr Maginness and then Mr Allister, who used rather more flowery language and is no longer in his place, raised the potential for directions about a class of cases as opposed to an individual case. Article 12(5) of the 2003 order proscribes, in schedule 2, the services that the director of legal aid casework may not fund as civil legal services. Article 12(6) provides:”
“So, the power that Mr Elliott seeks to remove from clause 3(1) is in fact there in statute anyway and cannot be removed by that measure. <BR /> <BR />The important thing, I believe, is that we need to read clause 3 as one single unit. While subsection 1 says that the director must comply with general directions and "have regard to guidance", subsection 2 of the same clause makes it absolutely clear that there must be no guidance or direction about an individual case and that the Department must ensure that "the Director acts independently". <BR /> <BR />Subsection 3 states:”
“<BR /> <BR />The second set of amendments — amendment Nos 3 to 12 — is all about limiting the Department's responsibilities and abilities to guide rather than direct the director of legal aid casework on the carrying out of those functions. Whilst I understand entirely the intent to ensure independence, I believe that the amendments would compromise the measures that were carefully constructed to prevent any interference in individual decisions. This has already been mentioned, but I just want to be very specific. Article 4(1) of the Departments (Northern Ireland) Order 1999, which established working devolution, states:”
“I take the Chair's point. I am reluctant to suggest that I could give a definitive opinion, which might, some day, have to be given by a judicial ruling, but it is my understanding that the words do not necessarily guarantee external appointment but merely create confusion about the process. <BR /> <BR />The designation of somebody who either has already been a civil servant or is recruited to the Civil Service with a view to being designated to that post is a much clearer and less confusing way of making the appointment. <BR /> <BR />On that basis, whilst I accept Mr Elliott's wish to have openness, I do not believe that what he is proposing is beneficial in doing that and that it adds anything to what is in the Bill as it stands. I urge the House to reject those amendments on that basis.”
“The last thing that I want to do is see us fall foul of the Civil Service Commissioners' rules on the recruitment of civil servants. So, I believe that the amendments are unnecessary and would lead into uncertain territory without providing any specific benefit.”
“I believe that the current wording will avoid the difficulties that will arise from the use of the word "appoint" in terms of bringing that person into the Department, because there is the danger that it suggests that you are going outside the normal Civil Service recruitment procedures when, in fact, it is somebody who is to be a civil servant.”
“If it is common ground in the Assembly that the person would be a civil servant whilst they are the director of legal aid casework, there can be an open recruitment competition, which will be open to people internally as well as externally. We could not run it to exclude internal applications. It would be completely open on the basis that the person would be appointed to the Senior Civil Service, and, once they were a civil servant, they would be appointed to the director's post. It would ensure that the Department looked to see about the right blend of skills and experience for that post, regardless of whether they came from internal or external.”
“Each time the post falls vacant, consideration will be given to the best way to fill the post, and the provisions that are in the Bill would facilitate that open competition, regardless of how it is. <BR /> <BR />I am not sure that there is any difference, in effect, between whether I "appoint" or "designate" a director of legal aid casework. Either way, they will have the same safeguards regarding their independence, which are written into the Bill; either way, the Department will have to ensure —”
“It has to be on the basis of recruitment to the Civil Service and, then, a civil servant, regardless of whether they have been appointed five minutes ago or 30 years ago, becomes the person in that particular post. If the amendments were passed, they would do nothing to introduce any greater opportunities. I fear that they would create a degree of uncertainty and confusion that would have to be addressed elsewhere and which would run contrary to the normal procedures for appointing civil servants. There is nothing in the Bill that precludes the post being offered to somebody from outside the Civil Service on the basis of that open competition.”
“There is a real potential that, if these amendments are accepted, there will be the opportunity for confusion and uncertainty. <BR /> <BR />As it stands, the Bill makes power for me as Minister to designate a civil servant as director of legal aid casework. I think that there is common cause amongst the House, including with Tom Elliott, that, once in place, the director should be a civil servant. If, however, we accepted the four amendments I highlighted — amendment Nos 1, 2, 13 and 19 — and if I appointed a non-civil servant who then became a civil servant, there is no clear way to do that under normal Civil Service appointment procedures.”
“<BR /> <BR />All being well, things will be fine So, normal practice in the Civil Service is widening up in that respect, generally by generic competitions rather than by going to the expense of running individual competitions. However, I have to highlight one appointment that predates the establishment of the Department of Justice. A few years ago, the appointment of a director to the Youth Justice Agency was run on the basis of a competition by the Civil Service Commissioners to appoint somebody to the Civil Service who would then be appointed as director of the Youth Justice Agency. The problem is that the amendments would run counter to that because they do it the other way round or back to front. So, I believe that there are better ways to achieve Mr Elliott's aim.”
“Looking at amendment Nos 1, 2, 13 and 19, it is clear to see that the intent is to open up the Senior Civil Service by requiring that the post of director of legal aid casework be filled by an open competition. If I understand his point, however, such a competition will be open to internal candidates as well as to external candidates. However, as has been highlighted, I think, first, by Mr Maginness, steps are already being taken to widen the recruitment to the Senior Civil Service generally. Already this year, there has been a competition for grade 3 entrants and a competition for grade 5. Those were open to external as well as internal candidates. A point was also made about a permanent secretary post that has been subject to open competition.”
“I certainly appreciate the fact that Tom Elliott has given us the opportunity for more debate at Consideration Stage than looked likely last week, when we merely had some agreements between the Minister and the Committee for the amendments that will appear in our second group. I trust, however, that that does not mean that Members are going to think up awkward points to raise on the second group. <BR /> <BR />I listened carefully to Tom Elliott's comments and, indeed, to the comments of a number of Members. It is clear that the two issues are almost the same. It is about opening up the appointment process and ensuring the independence of the director.”
“Let us be absolutely clear; it is a major difficulty to resource the issues of the past, whether it be the work of the police in the Historical Enquiries Team and other matters, whether it be the work of the Office of the Police Ombudsman on its historical issues, or whether it be the work of the Coroners' Courts in this jurisdiction. We have significant financial problems in dealing with that with a budget that is only for today and which is being cut at this stage whilst some of those issues are enormously expensive. So, we need to be realistic about the expectation as to what a Minister in this jurisdiction could do to enforce anything on a police service in a different jurisdiction.”
“There are a number of points in Mr Allister's comments. First of all, I do not operationally direct the PSNI, and I need to be very careful about suggesting that I might operationally direct an Garda Síochána in those circumstances —”
“It will be the task of the new Garda Commissioner, as opposed to the acting Garda Commissioner, to see how that works in the future, but from what I see in the reports that I receive from the PSNI and from my discussions with Frances Fitzgerald I believe that we have very high levels of cooperation. Very significant work is being done, particularly as far as we are concerned, in the Southern jurisdiction, and that is aiding the fight that the PSNI is leading against the kind of terrorist crime that the Member referred to, which, sadly, could still happen today and not just 40 years ago.”
“Mr Dallat brings us back to some of the very serious points that confront us even on this day, never mind looking back 40 years. I cannot give any assurance about what happened 40 years ago, but he asks about seeking to ensure that work is being done to protect Irishmen whichever side of the border they happen to be on, and I believe that, from the reports that we receive, as Ministers, from the Garda Commissioner and the PSNI Chief Constable, we have an extremely good set of cooperative arrangements North/South at the moment. <BR /> <BR />We can always make cooperation better, but I believe that we have it at a high level.”
“The key issue is the cooperation that is being carried through by officials and the work that is being done to ensure that people learn lessons from others' achievements and that we share best practice across the island.”
“Whilst I thank Mr McCarthy for the question that he has asked, I will say that the precise detail of how matters are carried out in the Republic is clearly not something for me. However, I do believe that there is significant work being done. Of course, the European directive affects all of us, and there is work going on to ensure that both jurisdictions are in line with that. I believe that, in terms of the victim and witness strategy in Northern Ireland, we are well ahead of it, but it is certainly an issue that, as I understand it, is of significant concern to the DJE. Perhaps the fact that Frances Fitzgerald is, like me, a social worker means that we have an interest in the needs of victims across both jurisdictions.”
“<BR /> <BR />There was a very useful meeting between officials from the Northern Ireland Environment Agency (NIEA) and the Organised Crime Task Force, which is merely a coordinating body, not an operational one. That gave the opportunity for a range of agencies to hear from the NIEA on that issue. We cannot set up a subgroup of the OCTF for everything, but what we can ensure is that we get the maximum possible cooperation between the agencies. I believe that we have now got that, perhaps as a result of that discovery.”
“Mr Attwood correctly raises the point that waste crime is one of the significant issues of organised crime. Sadly, some of the follow-up work on and part of the investigations into that particular waste dump had to cease when NCA officers were unable to continue on the basis of the change in status from SOCA to NCA last year. That is one of the reasons why I want to see the NCA fully operational. However, we also clearly need to get intelligence and ensure that it is properly shared North/South, because many of the waste dumps have had a cross-border element. We need to ensure that we get that sharing. We also need to depend on public information.”
“I hope that the British Government, having made their opt-out plans clear, will ensure that they tidy up the loose ends on opting back in so that we do not have a gap in our arrangements later this year.”
“Members seem to be very good at getting nearly any justice matter that they want to talk about into questions on these statements. I can happily say back to Mr Anderson that the specific issue of the European arrest warrant is one of those that was discussed as part of our general summing-up of cooperation. I have concerns that we have not yet seen full clarity between the UK and the European Union on the opt-back-in measure for the European arrest warrant, which no doubt is more significant for Northern Ireland than it is for other regions of the UK and is particularly significant between Northern Ireland and the Republic. It is important that we have the EAW back in operation, not just for sex offenders but for a range of criminals.”
“It really is important that the good work being done by the agencies be matched by good work between the agencies and the general public in both jurisdictions.”
“I take Ms McCorley's point about getting the maximum possible cooperation. Of course, the precise mechanisms for things like support are not exactly the same. We have, however, a good system of support for victims in Northern Ireland. We have very good cross-border cooperation on that, as we do on a much wider front. <BR /> <BR />It is important that we ensure that we get the best possible information so that, if people are being trafficked across the border, across the North Channel and into mainland Europe, as we know they are, we ensure that people report their suspicions, tell the police, the Garda, Crimestoppers or whomever so that action can be taken to rescue those who are vulnerable and are being trafficked and ensure proper protection for them.”
“Mr Humphrey may point across the Chamber, but we need to ensure that we have agreement around the Chamber.”
“I am not sure whether Mr Humphrey was in the Chamber when I answered the first question, which was from Mr Givan. I made it clear that discussions are ongoing: indeed, I have a discussion with his party in my diary for this afternoon. I am keen to have discussions with all parties to see what progress can be made on the basis of the letter that I issued last week. <BR /> <BR />I hope that we will be able to reach agreement on the basis of the significant mechanisms for answerability and accountability in Northern Ireland, which do not exist in other parts of the UK, so that we can get the benefit of the NCA in the fight against crime.”
“There is not necessarily any more benefit in having a single register rather than the two that we have, which fully cooperate and engage in information sharing with the registers in GB.”
“I thank Mr Lynch for giving me the opportunity to point out the level of cooperation. There is a clear and significant benefit to both jurisdictions from information sharing because of the ease of travel between the two jurisdictions. The Member talks specifically about a single register, but we also need to look at the fact that it is equally easy to travel between this island and Great Britain and then into Europe. The important issue is that we have ensured that sex offenders who travel notify the police or the Garda of the details. In that context, we have good arrangements. <BR /> <BR />I will look at whether anything can be done to ensure that the border is not used to allow people to escape justice.”
“Yes, it was. I thank Mr Wells for giving me the opportunity to point out that, alongside the issue of human trafficking, the issue of sexual offences in general was raised. Frances Fitzgerald is considering the evidence that has been put to her before she considers the way forward for her jurisdiction in the same way that I will consider the evidence from the research that is being commissioned in Northern Ireland before I consider the best possible way forward in this jurisdiction.”
“The forensics cooperation has been ongoing for some time. I signed an agreement shortly after I came into office with Alan Shatter as the Irish Justice Minister, but the three forensic science services have been cooperating for a number of years looking at how they can promote cooperation and provide resilience between them. <BR /> <BR />There is now in place not just a bilateral agreement between Northern Ireland and the Republic but a trilateral agreement involving Scotland. What is clear is that changes to the forensic science services in England and Wales have made it more important that we cooperate across the public sector with the agencies on either side of us, regardless of constitutional status. It is clear that significant help is being given between the three jurisdictions.”
“Given the way that smuggling can tend to operate across Europe and further afield, we need the widest possible international reach, which is, of course, another point where the National Crime Agency may come in as well as the good work that is being done by agencies cross-border.”
“I thank Mr Elliott for the question. The key issue around fuel fraud is more the issue of laundering than anything else. Work is ongoing, led by the Revenue Commissioners in Dublin and HMRC in London. I am expecting to receive an update shortly from HMRC in the context of the Organised Crime Task Force, which brings together local and UK-wide agencies in Northern Ireland, where a number of subgroups have cross-border cooperation. <BR /> <BR />Work is ongoing about developing a different marker, which, it is hoped, will make laundering if not impossible then potentially uneconomic. Tobacco smuggling is a classic smuggling operation, and we need the best possible cooperation across a number of agencies, and not just on this island.”
“I appreciate Mr Maginness's point. The specific way the IGA was set up was a matter for the UK and Irish Governments; we operate it as best we can in the devolved sphere. When the Member raises the issue of paramilitary concerns, issues of concern relating to paramilitary terrorist activity are discussed in a general way but are not the primary responsibility of this. There are also clear indications of the involvement of some paramilitary organisations in crimes such as fuel laundering, tobacco smuggling and potentially even human trafficking. <BR /> <BR />That is where there is a clear crossover between what would be seen as terrorist activity and what is seen as organised crime. It is important that we see the agencies on both sides of the border cooperating across that range of issues and not producing artificial separations.”
“I thank the Deputy Chair for his question. The issue of new psychoactive substances, which are more simply called legal highs, is of concern on both sides of the border. I have certainly discussed the approach taken in the Republic, but the reality is that the issue is not currently devolved here and we are bound by changes that are happening at Westminster. We are expecting the review from the Home Office sometime this autumn, and I hope that that will enable us to make progress in Northern Ireland, because it is clear that we need to see the most robust action taken against those who are seeking to promote legal highs in a way that is seriously damaging to public health.”
“I thank the Chair for his question. Certainly, the non-operational status of the NCA in the devolved sphere was mentioned in the meeting. However, his wider questions go a bit beyond the meeting's remit. I can confirm that I have meetings arranged over the next few days with most of, if not all, the other Executive parties, and I certainly hope that they will enable us to make progress on the basis of the document that I circulated last week. It is absolutely clear that we are losing out because of not having the NCA to deal with major issues such as environmental crime and civil recovery. However, I cannot give any specific information at my level on the question of cross-border activities that exploit the opportunities that are presented by the absence of civil recovery powers at this stage in Northern Ireland.”
“I also relayed my appreciation to an Garda Síochána in supporting the work to tackle ongoing security challenges. <BR /> <BR />Finally, the intergovernmental agreement provides an extremely helpful framework for supporting North/South cooperation on criminal justice matters, but we are seeing the true benefits of cooperation when individuals in the criminal justice agencies have developed good working relationships with their respective counterparts. It is that real type of practical cooperation that the new Irish Justice Minister, Frances Fitzgerald, and I are both committed to further enhancing.”
“<BR /> <BR />There continues to be excellent cooperation at an operational level between the PSNI and an Garda Síochána on the management of sex offenders. I am pleased to report that there remains good progress in supporting and promoting North/South cooperation to make the whole island a safer and more prosperous place for everyone. <BR /> <BR />As the House will be aware, the IGA is not purposely intended to provide for discussion of cross-border security issues. However, I used the opportunity on 27 June to briefly discuss with Frances Fitzgerald some general wider cross-border security-related issues. Those included the work being done in the areas of tackling organised crime, fuel and tobacco fraud, human trafficking and rural crime.”
“<BR /> <BR />Examples of cross-border cooperation that will be taken forward include work on the further development of a forensic partnership strategy and action plan covering the forensic science services of Northern Ireland, Ireland and Scotland; delivery of seminars by the police services on this island to marginalised groups of people, building on the seminars with the Roma communities in the South; ongoing discussion on the European victims directive in the support for victims project advisory group following the joint presentation by senior DOJ and Department of Justice and Equality (DJE) officials during the meeting; and the further development of staff exchanges and information sharing between the juvenile detention facilities in Northern Ireland and Ireland.”
“I intend to give a brief progress report in December following our next IGA meeting, which is scheduled to coincide with the fifth annual seminar on public protection issues on the island of Ireland. In the interim, progress against the actions will be monitored by the working group of officials. <BR /> <BR />Six project advisory groups provide the mechanism by which work is taken forward. They focus on the areas of public protection, registered offenders, youth justice, forensic science, support for victims of crime, and social diversity. Each of the project advisory groups has continued to promote and support cooperation across the broad spectrum of criminal justice agencies on both sides of the border.”