Official Report: Minutes of Evidence

The Chairperson (Mr Ross): We will now undertake the formal clause-by-clause consideration of the Justice Bill and the proposed amendments. For ease of reference, the text of the proposed amendments that have been considered by the Committee are included in Committee members' tabled pack. A further letter has been received from the Director of Public Prosecutions on Part 2 of the Bill, which covers committal for trial, and on the Attorney General’s proposed legislative provision for rights of audience for staff in his office, as well as further information supporting the inclusion of Public Prosecution Service (PPS) staff in the amendment. The letter was circulated electronically to members yesterday and is included in the tabled pack. The Department has also provided additional information on exemptions to jury service, as was requested at yesterday's meeting. It is also in the tabled pack.

We will proceed through the clauses in and schedules to the Bill in order and put the Questions formally. Where there are amendments proposed, I will put the Question on the amendment first. Where no amendments have been proposed and no issues highlighted, we will seek the agreement of the Committee to group clauses when putting the Question.

We begin with Part 1, which deals with single jurisdiction for County Courts and Magistrates' Courts and covers clauses 1 to 6. At yesterday's meeting, no issues were raised, and the Committee indicated that it was generally content with the clauses and the proposed amendments by the Department to schedules 1 and 6.

Do I have the agreement of the Committee to group clauses 1 to 6 for the purpose of putting the Question?

The Chairperson (Mr Ross): Part 2 deals with committal for trial and covers clauses 7 to 16. At yesterday's meeting, no issues were raised, and the Committee indicated that it was generally content with clauses 7 to 16, schedules 2 and 3, and the proposed amendments by the Department to enable the direct transfer of a co-defendant who has been charged with a non-specified offence.

Do I have the agreement of the Committee to group clauses 7 to 12 and clauses 15 and 16 for the purpose of putting the Questions?

The Chairperson (Mr Ross): I know that there is great enthusiasm, but can we speak a little bit louder, in aid of clarity?

The Chairperson (Mr Ross): We move on to Part 3, which deals with prosecutorial fines. I remind members that, at the meeting yesterday, the Committee noted additional information provided by the Department of Justice. No issues were raised, and the Committee indicated that it was generally content with clauses 17 to 27.

Do I have the agreement of the Committee to group clauses 17 to 27 for the purpose of putting the Question?

The Chairperson (Mr Ross): Keep your voices up, folks.

Part 4 deals with victims and witnesses. At the meeting yesterday, the Committee noted additional information provided by the Department and the revised text of one of the two amendments that it intends to bring forward. No issues were raised, and the Committee indicated that it was generally content with clauses 28 to 35 and the two proposed departmental amendments to enhance victim statements and create information-sharing powers.

Do I have the agreement of the Committee to group clauses 28 to 32 and clauses 34 and 35 for the purpose of putting the Questions?

The Chairperson (Mr Ross): We move on to Part 5, which deals with criminal records. At yesterday's meeting, the Committee noted additional information provided by the Department of Justice. No issues were raised, and the Committee indicated that it was generally content with clauses 36 to 43, schedule 4 and the five proposed departmental amendments.

Do I have the agreement of the Committee to group clauses 36 to 38 and clauses 41 and 42 for the purpose of putting the Questions?

The Chairperson (Mr Ross): Can we get our voices back again, folks?

The Chairperson (Mr Ross): We move on to Part 6, which deals with live links in criminal proceedings. No issues were raised at yesterday's meeting, and the Committee indicated that it was generally content with clauses 44 to 46 and the text of a proposed amendment by the Department of Justice that the same safeguard should apply as is provided for in clauses 44 and 45, which places a responsibility on the court to adjourn proceedings where it appears to it that the accused is not able to see and hear the court and to be seen and heard by it, and where that cannot be immediately corrected.

Do I have the agreement of the Committee to group clauses 44 and 45 and clauses 47 to 49 for the purpose of putting the Questions?

The Chairperson (Mr Ross): We move on to Part 7, and I remind members to speak up when we are taking decisions. No issues were raised with Part 7 at the meeting yesterday, and the Committee indicated that it was generally content with clauses 50 to 71 and the proposed amendments by the Department to reflect comments and improvements suggested by the Attorney General.

Do I have the agreement of the Committee to group clauses 50 to 64 and clauses 66 and 67 for the purpose of putting the Questions?

The Chairperson (Mr Ross): Stick with it, folks. We are nearly there.

The Chairperson (Mr Ross): Please speak up, folks.

The Chairperson (Mr Ross): We move on to Part 8, which deals with miscellaneous provisions. Clauses 72 to 76 deal with jury service. At yesterday's meeting, no particular issues were raised. The Committee indicated that it was generally content with clauses 72 to 76 but further information was requested on who is currently exempt from jury service. Further information on exemptions from jury service, as provided by the Department, is in the tabled pack.

Do I have the agreement of the Committee to group clauses 72 to 76 for the purpose of putting the Question?

The Chairperson (Mr Ross): We move on to clause 77 and 78, which deal with early guilty pleas. At yesterday's meeting, a number of members indicated that they had concerns over clause 78 and the duty that it places on solicitors. I presume that members still have those concerns.

The Department has previously provided the text of an amendment to clause 78, following advice from the Attorney General. Therefore, the Question on the amendment will be put before the Question on clause 78.

The Chairperson (Mr Ross): Is the Committee content with clause 78, subject to the proposed departmental amendment?

Mr A Maginness: No.

The Chairperson (Mr Ross): Would you like us to take a vote, or shall I just note that you are not content?

Mr A Maginness: I just wish to express our reservations; it is not an absolute position.

The Chairperson (Mr Ross): We will reflect that in the Committee report.

The Chairperson (Mr Ross): Clauses 79 and 80 deal with avoiding delay in criminal proceedings. I remind members that, at yesterday's meeting, no particular issues were raised. The Committee indicated that it was generally content with clauses 79 and 80 and the proposed amendments by the Department to reflect comments and advice from the Assembly Examiner of Statutory Rules.

The Chairperson (Mr Ross): At yesterday's meeting, no particular issues were raised, and the Committee was generally content with clause 81, which deals with a public prosecutor's summons.

The Chairperson (Mr Ross): Clause 82 deals with defence access to premises. At yesterday's meeting, no particular issues were raised, and the Committee was generally content with clause 82 and the proposed amendment by the Department, at the suggestion of the Attorney General, to adjust the threshold for an order.

The Chairperson (Mr Ross): At yesterday's meeting, no particular issues were raised, and the Committee was generally content with clause 83, which deals with powers of court security officers.

The Chairperson (Mr Ross): At yesterday's meeting, no particular issues were raised, and the Committee was generally content with clauses 84 and 85, which deal with youth justice.

The Chairperson (Mr Ross): We move on to new provisions and issues that are not currently included in the Bill. I will put the Question on a range of new provisions from the Department that the Committee has considered that cover issues that are not currently in the Bill before putting the Questions on the schedules and Part 9, as there are some consequential amendments to the schedules and Part 9.

First, on sexual offences against children, I remind members that, at the meeting on 14 January 2015, the Committee considered proposals by the Department to bring forward two amendments at Consideration Stage to provide for a new offence of communicating with a child for sexual purposes and an amendment to make an adjustment to the existing offence of meeting a child following sexual grooming. The proposed amendments aim to close what is seen as a gap in the law relating to sexting and to reduce the evidence threshold for the existing offence of meeting a child following sexual grooming.

The Committee agreed that it was content with both proposals and subsequently noted the text of the proposed amendments at the meeting on 18 February and the revised wording, to correct a typographical error at the meeting yesterday, of the amendment relating to the enhancement of the existing offence of meeting a child following sexual grooming.

The Chairperson (Mr Ross): I move on to the offence of causing or allowing serious physical harm to a child or vulnerable adult. At the meeting on 21 January 2015, the Committee considered a proposal by the Department to create a new offence of causing or allowing serious physical harm to a child or vulnerable adult. The new offence will close a loophole that prevents the PPS from being able to prosecute in circumstances in which injuries must have been sustained at the hands of a limited number of members of a household but there is insufficient evidence to point to the particular person responsible.

The Committee agreed that it was content with the proposal and subsequently noted the text of a proposed amendment at the meeting on 18 February.

The Chairperson (Mr Ross): I move on to Lands Tribunal salaries. At the meeting on 18 February, the Committee considered information and the text of a new provision developed by the Department, at the request of the Committee, to change the affirmative resolution procedure for the annual determination of Lands Tribunal salaries. No particular issues were raised, and the Committee was content with the proposed amendment.

The Chairperson (Mr Ross): I move on to new policy amendments relating to the Police and Criminal Evidence (Northern Ireland) Order 1989 — PACE — on fingerprint and DNA retention. I remind members that the Department wrote to the Committee on 11 February 2015 advising that it intended to bring forward a number of amendments at Consideration Stage to the biometric provisions in the 1989 order. Departmental officials subsequently attended the meeting on 18 February to outline the purpose of the amendments and to answer members’ questions.

Four of the five amendments are to address shortcomings identified through early experience of operating the corresponding provisions in England and Wales, while the other amendment will add a new article to PACE to reflect the introduction in Northern Ireland of prosecutorial fines by Part 3 of the Justice Bill. At yesterday’s meeting, the Committee noted the text of the proposed amendments. No particular issues were raised, and the Committee indicated that it was generally content to support the amendments.

The Chairperson (Mr Ross): We now move on to the schedules to the Bill. I will put the Questions on the schedules before Part 9, as Part 9 contains the commencement provision that relates to the schedules.

The Chairperson (Mr Ross): I remind members that the Committee indicated that it was generally content with the consequential amendments proposed by the Department of Justice for inclusion in schedule 1, which are primarily to remove references to "petty sessions district" and "county court division" in existing legislation.

The Chairperson (Mr Ross): We move on to schedule 2, which is titled "Amendments: abolition of preliminary investigations and mixed committals". No issues were raised, and the Committee indicated that it was generally content with schedule 2.

The Chairperson (Mr Ross): The Committee indicated that it was generally content with the consequential amendments proposed by the Department of Justice for inclusion in schedule 3 as a result of proposed new clause 12A.

The Chairperson (Mr Ross): We move on to schedule 4, which is titled "Amendments: criminal records". No issues were raised.

The Chairperson (Mr Ross): No issues were raised, and the Committee indicated that it was generally content with the consequential amendments proposed by the Department as a result of proposed new clauses 76D, 78A and 83A, and new schedule 4A.

The Chairperson (Mr Ross): I remind members that the Committee indicated that it was generally content with the amendments proposed by the Department, which are consequential to the proposed amendments to schedule 1.

The Chairperson (Mr Ross): We move to Part 9, which deals with supplementary provisions. At yesterday's meeting, advice was provided on clause 86 — members will remember the discussion on that — its purpose and whether it was necessary or could be amended to restrict the power provided to the Department. A number of members indicated that they were of the view that the power provided by clause 86 was unnecessary and should therefore be opposed. No issues were raised with clauses 87 to 92 and the consequential amendments proposed by the Department to clause 91.

Are members still of the view that we should oppose clause 86?

Mr McGlone: I am sorry that I was not here yesterday, but maybe we can get some sort of indication as to the rationale for opposing it, please?

The Chairperson (Mr Ross): Do you mean the rationale for clause 86?

Mr McGlone: Did I not say for opposing it?

The Chairperson (Mr Ross): Are you asking what the rationale is for opposing it?

Mr McGlone: Yes.

The Chairperson (Mr Ross): Clause 86 is that sort of very broad clause stuck in at the end of Bills that pretty much allows the Department to do whatever it likes. We have discussed it for a few weeks. I do not know whether you were present.

Mr McGlone: I was, yes. OK, Chair, thank you.

The Chairperson (Mr Ross): I seek the agreement of the Committee to group clauses 87 to 90 for the purposes of putting the Question.

The Chairperson (Mr Ross): The first Question that I will put is on clause 86. Is the Committee content with clause 86?

Mr Frew: Sorry, is clause 86 the Henry VIII clause?

The Chairperson (Mr Ross): Yes, when I put the Question, members who want to remove it should say that they are not content.

Is the Committee content with clause 86?

Some Members: Not content.

The Chairperson (Mr Ross): Is the general view that members are not content?

Some Members: Not content.

The Chairperson (Mr Ross): Would you like a vote?

Mr Dickson: No doubt the Assembly will vote on the matter — if it is still in existence.

The Chairperson (Mr Ross): I noted Patsy's earlier optimism about welfare reform.

Mr Elliott: It is up to the Minister to make the point in the House if he wants to include the clause.

The Chairperson (Mr Ross): It is a useful debate to have.

The Chairperson (Mr Ross): We come to the long title of the Bill, which is fairly straightforward.

The Chairperson (Mr Ross): There will now be an opportunity to discuss the proposed amendment by the Attorney General and the amendment that we are referring to as the "Jim Wells amendment".

First, we will discuss the Attorney General’s proposal for rights of audience for lawyers working in his office. The Committee discussed the Attorney General’s proposal for legislative provision for rights of audience for the lawyers working in his office and similar requests by the PPS and the Departmental Solicitor's Office (DSO) at the meeting on 25 February 2015. Those were discussed again at yesterday’s meeting, when Members noted further information provided by the Department on the provision of a review mechanism, if the proposal was to be adopted, to enable the impact to be assessed and provision to be enacted for other organisations, such as the PPS or the DSO, if considered appropriate at that time.

The Director of Public Prosecutions has written again asking that, in the event of the Attorney General's request for rights of audience for lawyers in his office being accepted, the PPS also be included in the limited way asked for: three lawyers holding the position of higher court advocate. The Director of Public Prosecutions is of the view that it would be odd for the only public legal office where court advocacy is a core function to be excluded from any statutory change to the normal regulations on rights of audience.

At yesterday’s meeting, some members indicated that they supported the request by the Attorney General on the grounds that it was a modest change and would provide rights of audience for a small, discrete number of lawyers in his office working in a fairly restrictive area of law, primarily judicial review, which would lead to a more cost-effective system. Other members had some concerns regarding whether it would create a precedent or a situation where it would be difficult to refuse requests from other organisations, as has been the case. They felt that the best way forward was through the mechanism provided in the Justice Act (Northern Ireland) 2011, although the considerable delay in the production of the Law Society regulations was noted.

The Committee agreed to return to the issue today. Do members wish to support the proposal by the Attorney General for legislative provision to be made to provide rights of audience for lawyers in his office? Do members wish to highlight any comments for inclusion in the Committee report? Any views?

Mr A Maginness: Could we say, "Maybe"?

The Chairperson (Mr Ross): To many of the questions we can answer "Maybe": this is not one of them.

Mr Dickson: There is a fence about somewhere.

The Chairperson (Mr Ross): Do members have views?

Mr A Maginness: I reiterate what I said yesterday: if the provision was simply confined to the Attorney General's office, it would be different. However, there are implications for other organisations in government and the public service that would want to avail of a similar proposition. Therefore, the amendment has a wider effect. That is the problem. If it was confined to the Attorney General's office, the answer would be yes. That is why I said, "Maybe".

Mr Dickson: On the basis of the representations that we have received, this is potentially a barn door to be opened, which is why I suggest that the answer be no.

The Chairperson (Mr Ross): We need a decision. I propose a show of hands. We have discussed it on a number of occasions.

Mr McCartney: Is there a way of tabling two proposals? There may be people who are against the proposal in total, but there may be some who are in favour of the power going to the Attorney General's office and others who are in favour of the power for the PPS. Going back to the last clause on which we were having a debate on the Floor for, it might be hard for the Committee to come up with an agreed amendment.

The Chairperson (Mr Ross): The Committee will have to make a decision on whether that is what we want to do. If the Committee decides that that is what we want to do —

Mr A Maginness: If the Committee agrees, the clause goes forward. You can still revisit it on the Floor.

The Committee Clerk: If there are a number of options, the Committee has to decide the option it wants to go with, because that is what the Committee would table as its amendment. There is nothing to prevent any other Member from amending that amendment once it was tabled in the Bill Office or tabling a new amendment that could encompass more than the Attorney General's office. If the Committee was to go with the option of supporting the Attorney General's proposal only, the amendment would simply provide for that. However, there would be nothing to prevent another Member from submitting a different amendment to widen things or amend the Committee's amendment.

The Committee would not be able to put in options. The Committee needs to reach one position, and it is then open for other people to either amend that position or propose an alternative position by way of other amendments.

Mr Elliott: I have a question that is relevant to the other amendment from the Attorney General. If this amendment is not accepted today, I assume that a member can bring forward whatever amendment they so wish to either add or take away from it. Is that correct?

The Committee Clerk: Yes. This amendment is not in the Bill; there is no amendment in this one. There is a draft amendment to the Coroner's Act from the Attorney General, but there is no amendment provided on this provision. We would draft one if that is what the Committee wanted.

The Committee report will reflect your discussion on the issue and any views submitted to the Committee on it. That will be available to all Members prior to the debate at Consideration Stage. Therefore if the Committee decides today that it does not wish to support the proposal from the Attorney General, the report will simply reflect the evidence that we have received, the discussions that have taken place, and the conclusion that the Committee has reached. However, that does not prevent any other Member from tabling such an amendment if they so wish, having read the information.

Mr Frew: I reiterate that we can only assess what is in front of us, which is the right of audience for the Attorney General's staff. As that looks favourable, we see others coming in, which has a bearing on our thinking. I am not content to agree to this amendment because of the potential for all and sundry to come in. My issue is as much a principle as anything: if you allow one, what reason have you deny to others? That is where I am coming from.

Mr A Maginness: Maybe the best way is to reject the amendment at this stage and allow any party that wants to table an amendment on the Floor of the Assembly to do so. That might be the best way.

The Chairperson (Mr Ross): Are members content with that approach?

Mr McCartney: We are in favour of it going forward, but you do not want to create a vote. It could be recorded that we did not reach consensus and that is why there is no Committee amendment. There might be reluctance on the part of the Attorney General, the PPS or the DSO to ask an individual party to table an amendment. They might come to a couple of parties and come to an agreement, which is fine, but you can understand the reluctance of one party to support an amendment in case it looked political.

The Chairperson (Mr Ross): That is a fair point. So, the Committee notes that we have no agreement and therefore are not going to support the amendment.

The Chairperson (Mr Ross): Moving on to the Attorney General's proposed amendment to the Coroners Act. The Committee discussed the Attorney General’s proposed amendment to the Coroners Act at the meeting on 4 March and considered further information provided by the Health Minister regarding the look-back exercise on serious adverse incidents and a number of initiatives the Department of Health, Social Services and Public Safety is taking forward to strengthen and enhance public assurance and scrutiny of the death certification process. Some members indicated that they were inclined to support the proposed amendment, while others indicated they still had concerns. The Committee agreed to request advice on building a review mechanism or sunset clause into the amendment. The Bill Clerk attended yesterday’s meeting to discuss the matter and agreed to consider several issues and to provide further advice today. If members are in agreement, we will move into closed session to receive that advice. We will then go back into public session to make our decision.

The Chairperson (Mr Ross): OK, members. I will seek views from members on whether they wish to support the proposed amendment by the Attorney General to the Coroners Act either as drafted or with amendments. The view previously was that some were inclined to support it and some were not. That is still the view.

Mr McCartney: Can we table a proposal to support it?

Mr Elliott: I want to put on record that I am probably inclined to support it to let it go, but it is subject to us as a party making more amendments to it. I would like it to go forward, subject to the amendment that has come forward today if that is reasonable.

The Chairperson (Mr Ross): Do members support the proposal as amended?

The Chairperson (Mr Ross): We will put it into the report that there was a difference of view on it, and it is open to other parties if they wish to bring it forward.

We move on to the proposed amendment by Mr Jim Wells. I remind members that the Committee discussed the proposed amendment by Mr Wells at the meeting on 4 March and agreed to include the written and oral evidence received on it in the Committee Bill report. Some members indicated that they viewed the proposed amendment sympathetically but had not reached a final decision on it; others expressed support for the proposed amendment, whilst others indicated that they would not support it. Can I get members' views? Do we want to note in the report that there were different views?

Mr Poots: We are in an awkward situation, in that Mr Wells is no longer on the Committee. However, the Committee took the amendment on and had a consultation on it, to which some 20,000 people responded, in one way or another. A very similar amendment came before the House previously at, I think, Further Consideration Stage. At that time, a petition of concern was lodged against it by Sinn Féin and some others. As I recall, the argument at that stage was that there had been no public consultation and, therefore, it was not appropriate to bring it forward in that way. I think that that argument has now pretty much been dealt with, in that you have had a consultation and people will find another reason to object at this point.

It does not make any significant difference to abortion laws, other than that it reduces the sentence from life imprisonment to a period of not more than 10 years, so it is softer than what currently exists in law. The only aspect that makes a significant change is that it would be carried out exclusively in public health services as opposed to private clinics. I think that members across the way would be supportive of maintaining public services in a public place as opposed to having a private company carrying out services. I hope that the Committee can move forward in its entirety and support the amendment. Given the Committee's role, it is probably the best channel to deal with it.

The Chairperson (Mr Ross): I was not on the Committee at the time, so I want to clarify the point and make sure of it. I do not think that the Committee brought it forward with a mind to it being Committee amendment but because of the criticism that there had been no consultation. Is that correct?

Mr Poots: Jim has moved on and is not there to take it forward, so it will be left to another member.

The Chairperson (Mr Ross): I appreciate the point.

Mr McCartney: For the record, when Jim tabled it he used the same argument and one of the points that we made was about the lack of consultation. However, other points were made in the debate; it was not just a single-plank argument. When Jim tabled it recently, we laid out why we would be opposed to it, so that is why I would prefer a vote. I have no issue with people voting and it being carried by whatever the vote is; however, we would certainly oppose it going forward in our name as a Committee amendment.

The Chairperson (Mr Ross): There is a difference of views. If Mr Poots wants to put it to the —

Mr Douglas: I want to ask about the procedure. Edwin mentioned that Jim Wells put it forward, but he is not here any more. Is that a problem for us?

The Chairperson (Mr Ross): The Committee could adopt it as a Committee amendment or individual members from any party could table it as an individual amendment.

Mr Lynch: If the Committee takes it on, will there be a simple vote on it?

The Chairperson (Mr Ross): The Committee will decide whether they want to take it on as a Committee. If there is a vote on it and it is tabled as a Committee amendment, it will be reflected that there was not agreement. If I am speaking in my capacity as Chairperson, I will reflect the fact that there was no agreement on it, and it will be up to individual members to vote on it in the Assembly.

Mr Frew: Chair, if I could come in on the procedure. It is very similar to the amendments from the Attorney General that we have just debated. If that vote had been 4-5 in favour of the amendment, it would still be a Committee agreement, albeit not unanimous. I would prefer the Committee to take it forward, but I am also relaxed that everybody will not agree with that. That can be relayed and reflected in the Chamber. I am happy enough with that.

Mr Elliott: In fairness, it is slightly different from the amendments from the Attorney General. If Mr Wells cannot take it forward, I am sure that one of his colleagues will. I would personally be supportive of the amendment. I do not want to reflect the party view, because we have a free vote on the issue.

I would prefer if it was taken forward by an individual member, but I am quite happy if the Committee feels that it wants to vote on it and take it forward as a Committee amendment. I am easy either way. My preference would have been for the Committee to air its views — we have had our say on it throughout the process — but that a member would introduce it on the Floor. That person can relay the representation that was made in the consultation responses.

The Chairperson (Mr Ross): I am in the hands of the Committee. Edwin, do you want to see whether the Committee will take it on, or are you happy —

Mr Poots: Test it. If the Committee does not want it, that is fine. A vote will also reflect the fact that some members were unhappy.

The Chairperson (Mr Ross): Do you want to make a proposal?

Mr Poots: Yes, to that effect.

The Chairperson (Mr Ross): The proposal is that we take the amendment on as a Committee.

The Chairperson (Mr Ross): OK. Thank you very much for your cooperation. That ends the Committee's consideration of the Justice Bill and the proposed amendments. Thank you for getting through it relatively quickly.