Official Report: Minutes of Evidence

The Chairperson (Mr Ross): The Committee agreed to hold a meeting today to complete the informal consideration of the Justice Bill and proposed amendments, including the consideration of additional information that was requested from the Department in relation to Parts 3, 4 and 5, the Attorney General's proposal for legislative provision to provide for rights of audience for lawyers in his office, and a final opportunity for members to raise any issues or outline their views on the Bill and proposed amendments prior to the formal clause-by-clause consideration, which we will do during tomorrow's Committee meeting. I refer you to the further information from the Department that was circulated electronically to members yesterday, and to the letter received today from the Attorney General regarding his proposed amendment to the Coroners Act (Northern Ireland) 1959.

Part 1 and schedule 1 deal with the single jurisdiction for county courts and magistrates' courts. I remind the Committee that we considered Part 1 and schedule 1, which provide for a single jurisdiction of county courts and magistrates' courts, and the related proposed departmental amendments during our meeting of 4 March. No further information was requested, but some members indicated that they have some issues with this Part of the Bill. Responses from the office of the Lord Chief Justice on the nature of the consultation that will be carried out on the directions and who will be consulted, and from the association of county court judges on its views or comments on the provisions, have not yet arrived in the Committee office.

I ask members for their views on clauses 1 to 6 and schedule 1. Are we generally content, or does anyone wish to propose a Committee amendment or suggest that the Committee should oppose it? If I do not hear anything, I will take it that the Committee is generally content.

The Chairperson (Mr Ross): We move on to Part 2 and schedules 2 and 3, which deal with committal for trial. The Committee considered Part 2 and schedules 2 and 3, which cover committal for trial, at the meeting of 4 March. No further information was requested, and Mr Maginness indicated that he had concerns regarding these clauses. The Committee noted the Public Prosecution Service's (PPS) suggestion that clause 12 could usefully be amended to enable the direct transfer of a co-defendant who has been charged with a non-specified offence, and agreed that it was content for the Department to table such an amendment at Consideration Stage. In its letter of 6 March, the Department provided the text of the proposed amendment and indicated that it will allow for the direct committal of any co-defendants who are charged with an offence that is not a specified offence so that all defendants can be tried at the same time, in the interests of justice.

I ask members for their views on clauses 7 to 16 and schedules 2 and 3 and the proposed amendment by the Department. If nobody says anything, I will take it we are generally content unless anybody has any specific amendments or proposals to make.

The Chairperson (Mr Ross): Part 3 deals with prosecutorial fines. I remind the Committee that we considered Part 3, which provides for prosecutorial fines, at the meeting of 25 February. A number of issues were raised. The Committee agreed to request further information from the Department on the benefit of including a safeguard in the Bill to limit the number of prosecutorial fines that can be issued by the PPS, rather than leaving it to be covered in PPS guidance; on the use of prosecutorial fines for low-level offences, such as the verbal abuse of health-care staff; on whether there could be a fast-track system whereby such incidents could be referred to the PPS directly by health trusts; on the timescale for the Fines and Enforcement Bill and how that will assist in addressing the current difficulties affecting fines; and on whether the term "prosecutorial fine" is appropriate and accurate, or whether a different name should be used.

A response was received from the Department on 9 March. In relation to including a safeguard in the Bill to limit the number of prosecutorial fines that can be issued by the PPS, the Department has confirmed that it will be dealt with in the PPS guidance. While the Department anticipates that the guidance will not fetter a prosecutor’s discretion in how the power is exercised in an individual case, it expects that repeat fines should not be offered, except in the most exceptional and meritorious circumstances. The Department considers that dealing with repeat use of prosecutorial fines by way of PPS guidance rather than in the Bill offers a more flexible approach and is consistent with the principle of prosecutorial independence. Regarding the use of prosecutorial fines for low-level offences, such as verbal abuse to health-care staff and whether there could be a fast-track system whereby such incidents could be referred to PPS directly by health trusts, the Department has indicated that it is concerned that circumventing the role of the police in a criminal investigation by fast-tracking referrals to the PPS directly by health trusts may make it more difficult to ensure that evidential matters are properly dealt with. There could also be significant issues in asking a health professional to make a judgement in relation to an incident and to liaise with the PPS during the progress of an individual case.

The Department also indicated that, in relation to the term "prosecutorial fine", although the disposal is not court-imposed, the underpinning arrangements on default mirror those of a court-imposed fine, and it considers that the alternative use of the word "penalty" could lead to confusion with fixed penalties, which do not involve a legal assessment of the evidence. The Department has also confirmed that the Fines and Enforcement Bill will contain provisions to allow unpaid financial penalties to be deducted directly from income — whether that be benefits or wages — and, in certain circumstances, from bank accounts. The intention is to seek Executive approval to introduce the Bill in June.

I ask members to note the additional information that has been provided by the Department and ask whether anyone has any views on clauses 17 to 27 of the Bill. If no one has anything to say, I will take it that we are generally supportive.

The Chairperson (Mr Ross): I move on to Part 4, which deals with victims and witnesses. I remind the Committee that we considered Part 4, which covers victims and witnesses, and two proposed amendments by the Department relating to victim statements and the creation of new information-sharing powers at the meeting on 25 February. The Committee discussed the need for consistency in the terminology used when referring to victim personal statements in the legislation and the guidance documents, and whether there is any specific reason not to use the term "victim personal statement" in the legislation instead of "victim statement". It also agreed to request further clarification from the Department on that issue.

The Department has repeated that legislative counsel is of the view that the term "victim personal statement", as used in all the guidance etc, is not an appropriate term for use in the Bill, as a statement may be made by someone other than the direct victim. The response does not, therefore, propose to address the need for consistency and clarity in the terminology that is used.

The Department has also provided the revised wording of the amendment that it intends to table in relation to information-sharing powers for victims and witnesses information schemes, which can be found in the letter dated 6 March. The minor changes relate to paragraphs 3(1) and 3(2) of the new schedule 3A and designate the PPS, rather than the PSNI, as data controllers.

I ask Members to note the additional information and the revised text provided by the Department. Again, I ask for any views on clauses 28 to 35 and the two amendments proposed by the Department. If no one has any comments to make, I will take it that we are generally content.

The Chairperson (Mr Ross): The Committee considered Part 5 and schedule 4, which cover criminal records, and five amendments proposed by the Department, at the meeting on 25 February. The issue of what types of offences remain on a criminal record and for how long was raised, and the Committee agreed to request further information from the Department on the retention schedule and arrangements. In its response, dated 9 March, the Department provided information on the types of offences retained on criminal records and the filtering arrangements that will apply.

I ask members to note the additional information and indicate their views on clauses 36 to 43 and the five amendments proposed by the Department. If no one has any comments to make, I will take it that we are generally content with the proposals.

The Chairperson (Mr Ross): The Committee considered Part 6 of the Bill, which covers live links in criminal proceedings, at the meeting on 4 March, and noted the Department’s intention to table an amendment to clause 46 so that the same safeguard applies as is provided for in clauses 44 and 45, which places a responsibility on the court to adjourn proceedings where it appears that the accused is not able to see and hear the court and be seen and heard by it, and where that cannot be immediately corrected. No further information was requested, and members raised no issues on this Part of the Bill.

In its letter dated 6 March, the Department provided the text of the proposed amendment to clause 46 to ensure a consistency of approach with respect to the safeguarding arrangements that are provided for in the other live link provisions in the Bill. I ask the Committee to note the text of the amendment proposed by the Department and ask for any views on clauses 44 to 49. If there are no specific comments, I will take it that we are generally content.

The Chairperson (Mr Ross): I remind the Committee that we considered Part 7 of the Bill, which provides for violent offences prevention orders, and related proposed amendments by the Department of Justice at the meeting on 4 March. No further information was requested, and members had no issues to raise in relation to this Part of the Bill. Again, I ask the Committee for its views on clauses 50 to 71 of the Justice Bill and the amendments proposed by the Department. If no one has any specific comments, I will take it that members are generally content.

The Chairperson (Mr Ross): I move on, then, to Part 8, which covers miscellaneous provisions. The Committee considered clauses 72 to 76, which relate to jury service, at its meeting on 4 March. No further information was requested, and members had no issues to raise in relation to these clauses. I therefore ask the Committee for its views on clauses 72 to 76. If no one has any specific points to make, I will take it that the Committee is generally content.

Mr Elliott: Chair, I am not objecting to it, but it might be useful to find out who is exempt from jury service at present, just as a matter of interest.

The Chairperson (Mr Ross): We will try to get that for you before tomorrow's formal stuff.

Mr Douglas: That is a good point. A young fellow contacted me, or rather his parents did, a couple of weeks ago. He was asked to go on jury service when he was doing exams, and they just refused to let him off. I contacted them, and they got it sorted out. It would be good to find out who is eligible.

The Chairperson (Mr Ross): Sure. We will try to do that for tomorrow.

We move on, then, to clauses 77 and 78. The Committee considered Part 8, clauses 77 and 78, which cover early guilty pleas, and a related amendment proposed by the Department, at its meeting on 4 March. No further information was requested, and one member expressed concerns regarding clause 78 and the duty it places on solicitors.

I open up and ask Committee members for their views on clauses 77 and 78 of the Justice Bill.

Mr A Maginness: I have a concern about clause 78.

The Chairperson (Mr Ross): Ok.

Mr Lynch: I have the same concern.

The Chairperson (Mr Ross): On the same issue? Because of the duty it places on solicitors?

Mr A Maginness: I think that it is unnecessary, Chair.

Mr Elliott: I know that I have not raised too many issues on this. I have been following the comments. From Alban's point of view, what would be a better idea, or should nothing go in there at all?

Mr A Maginness: Just nothing. It is unnecessary, because any solicitor worth his salt is going to advise his client in any event. Placing the duty on the solicitor could create problems and conflicts between solicitor and client further down the line. A client might say: "I was not properly advised", make a point of law and go to the courts on the basis that they were misled. It is problematic and unnecessary.

Mr Elliott: I am trying to think of a better way of doing it, as opposed to putting nothing in. Surely there has to be a responsibility somewhere to inform clients of the issue. You cannot leave it so that there is no duty to inform them

Mr A Maginness: In practice they are informed, and I would have thought that, although there is not a statutory duty, there would be a duty on a defence solicitor to inform the client. Anyway, we can come back to it.

Mr Elliott: I am just interested.

Mr A Maginness: It is an interesting situation, but it is something that we can debate further.

The Chairperson (Mr Ross): That is fine. We have noted that down, and we will come back to that tomorrow.

The Committee considered Part 8, clauses 79 and 80, which cover avoiding delay in criminal proceedings, and related amendments proposed by the Department, at the meeting on 4 March. No further information was requested, and members had no issues to raise in relation to these clauses. I open it up to members to express their views on clauses 79 and 80. If there are no specific comments, I will take that as general agreement.

The Chairperson (Mr Ross): I remind the Committee that we considered Part 8, clauses 81 to 85, which cover public prosecutor’s summons, defence access to premises, court security officers and youth justice, as well as a proposed amendment to clause 82 by the Department, at the meeting on 4 March. No further information was requested, and members had no issues to raise in relation to these clauses. I ask for views on clauses 81 to 85. If there are no specific comments, I will take it that the Committee is generally content.

The Chairperson (Mr Ross): Part 9 deals with supplementary provisions. The Committee considered Part 9 at its meeting on 4 March. Additional information was provided by the Department regarding the purpose of clause 86 and the power provided to the Department. The wide-ranging scope of clause 86 and the power it provides to the Department to change the Bill and, indeed, any piece of legislation was discussed, and the necessity to provide such wide-ranging powers to the Department was questioned. The Committee agreed to discuss whether clause 86 should be opposed or, at the least, amended to limit the powers being provided to the Department.

The Bill Clerk, Aoibhinn Treanor, will be here to provide advice if necessary. This will be provided in closed session, so we will return to it at the end, rather than go in and out of closed session. We will decide whether that is necessary, if members are content with that approach.

The Chairperson (Mr Ross): OK. I move on, then, to the new policy amendments relating to the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) and fingerprint and DNA retention. The Department wrote to the Committee on 11 February advising that it intends to bring forward a number of new policy amendments at Consideration Stage to the biometric provisions in PACE. At that stage, the Department provided the text of four amendments, and it subsequently provided the text of another amendment in its letter dated 6 March.

Departmental officials attended the meeting on 18 February to outline the purpose of the proposed amendments and answer members’ questions. The officials indicated that four of the five amendments are to address shortcomings identified through early experience of operating the corresponding provisions in England and Wales. 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 Bill. The Hansard report of the evidence session is in your folders.

Are members generally content to support the amendments that the Department intends to bring forward at Consideration Stage? Do you have any views?

The Chairperson (Mr Ross): I will take it that you are generally content, and we move on to the Attorney General's proposals for legislative provision for rights of audience for lawyers in his office.

The Committee discussed the Attorney General’s proposal for legislative provision for rights of audience, and similar requests by the PPS and the Departmental Solicitor's Office (DSO) at its meeting on 25 February. Some members indicated that they had sympathy with the request of the Attorney General on the grounds that it was a modest change that would provide rights of audience for a small, discrete number of lawyers in his office working in a fairly restricted area of law, primarily judicial review, and would lead to a more cost-effective system. There were concerns, however, that it might create a precedent or be widened to include rights of audience for lawyers in other offices, which could diminish the rights of counsel to act independently in the courts, which the Bar Council would have serious objections to.

The Committee agreed to request further information from the Department regarding whether, if the proposal is taken forward, it could be adapted to provide for a review mechanism after a period to assess the impact and whether other organisations such as the PPS and/or DSO should be provided with similar rights and a mechanism to exercise those rights, if considered appropriate.

The Department, in its response dated 9 March, indicated that it is still of the view that the best way to progress this issue is through the Law Society regulations provided for in the Justice (Northern Ireland) Act 2011; it understands that the Law Society expects to issue an impact assessment of the regulations for consultation in the next few weeks. The Department believes that, if the Attorney General’s amendment is made, the operation of those arrangements will be best monitored on an administrative basis, with further legislative provision made as necessary. In its view, legislating on a prospective and contingent basis would be an unusual and unnecessarily complicated approach.

I ask members whether they wish to support the proposal by the Attorney General for rights of audience for lawyers in his office. From my point of view, I have some concerns about this. I think that the best way of dealing with it would be to allow the Law Society to come forward with its regulations, although I note that there has been considerable delay, given that it had the power to do so in 2011. I do think, however, that it would be preferable. Again, I will open it up to members. Seán?

The Chairperson (Mr Ross): OK. Any other views at this stage?

Mr Douglas: Chair, just to check, does this create a precedent? That is one of my concerns.

The Chairperson (Mr Ross): We know that the PPS has said that — Christine will keep me right — if this power is granted to the Attorney General's office, it will look for a similar power. Is that right?

The Committee Clerk: Yes. The PPS and the Departmental Solicitor's Office indicated that they would wish some of their staff to be accorded rights of audience as well.

The Chairperson (Mr Ross): Any other views?

Mr A Maginness: I share your concern, Chair. If it was simply the Attorney General's office, it would probably be acceptable, but once you create this exception, it is very hard not to allow others. I do not know how to regulate this.

Mr Elliott: Chair, is there a built-in mechanism to regulate it for certain lawyers? How is that worded? I cannot remember.

The Chairperson (Mr Ross): The piece of work that the Law Society is doing will bring in regulations around who has rights of audience in court, and things like that. As I said, my only concern is that it has taken so long to get this, although the indication seems to be that it will bring forward the proposals in the next few weeks, which would allow this to be brought through together, rather than a piecemeal approach, which I know there have been concerns about before. Again, I have noted that Sinn Féin members are generally supportive; other members are perhaps less favourable. We will return to it tomorrow, and, if necessary, we can take a vote on it. If anyone wants any further information, we will see whether we can get it by tomorrow for you. I think we have aired it quite a bit.

Mr A Maginness: You have.

The Chairperson (Mr Ross): I move on to the Attorney General's proposed amendment to the Coroners Act (Northern Ireland) 1959. The Committee initially discussed the Attorney General’s proposed amendment to the Act at its meeting on 28 February. I advised members that the Minister of Health would provide further information on the handling of serious adverse incident reports, and the Committee agreed to give further consideration to the proposed amendment on 4 March.

The Health Minister subsequently wrote on 25 February providing information regarding the look-back exercise on serious adverse incidents and a number of initiatives that the Department of Health is taking forward to strengthen and enhance public assurance and scrutiny of the death certification process. The Committee noted the additional information and discussed the proposed amendment at its meeting on 4 March. Some members indicated that they were inclined to support the proposed amendment, while others indicated that they still had some concerns. The Committee agreed to request advice on building a review mechanism or sunset clause into the amendment and to discuss the issue further at the meeting today.

A further letter has been received today from the Attorney General setting out further information in support of his proposed amendment. The Bill Clerk is here to provide advice and, if members are content, we will move into closed session to receive that advice.

The Chairperson (Mr Ross): We will look, then, as a Committee, at Part 9, which covers supplementary provisions. We will deal with Part 9, including clause 86, first. I ask members for their views. Are we still minded to oppose clause 86 or do we want to bring forward an amendment to tighten its use? I am still of the view that this is a bad habit and that, if we want better legislation from the Department, we should not give them the opportunity to mop up afterwards. It might keep them on their toes; I think that was the phrase you used, Paul.

Mr Frew: Absolutely. This is fundamental. You sort of think to yourself: "What has been passed without being scrutinised?" There is no time like the present, so let us put the marker down and see where it takes us. I do not think there will be any negative repercussions. I do not think that is a risk in that regard.

The Chairperson (Mr Ross): OK. I ask for views on clauses 87 to 92. Are members generally content with those? I will take it that no comment means generally content.

The Chairperson (Mr Ross): We now deal with the Attorney General's proposed amendment to the Coroners Act (Northern Ireland) 1959. We are returning to this now that we are in public session. Again, I ask for comments on whether we are minded to support the Attorney General's proposed amendment or whether we wish to amend or oppose it. Paul and Tom made some comments earlier.

Mr Frew: Whilst I understand the logic of the Attorney General's proposal, there is fear about a change to the practices in any service, in this case the health service. This is about serious adverse incidents and the usefulness of that, investigating and looking back on issues that do not always result in death. There are certain issues where people's lives and health can be affected without leading to death. This may well hamper things or have an indirect bearing in that it could change practices. At the very least, it could scare practitioners into not reporting or noting down information that could be vital to an inquiry or investigation. If that mindset was to be instilled in the Health Department, there could be serious problems down the line for loved ones and people who have cause to seek investigation and redress. Therefore, while I understand the rationale of this amendment, I am worried about the indirect consequences for the health service.

The Chairperson (Mr Ross): I take comfort from the fact that the Department of Health has indicated that it is looking to improve the accountability mechanism and things like that. There is some comfort there. Are there any other views?

Mr McCartney: We are generally supportive but we certainly want to protect people's personal and private materials.

The Chairperson (Mr Ross): We will take a note of the views and we will return to this tomorrow during the formal scrutiny.

We move on then to the amendment proposed by Mr Wells. The Committee discussed the proposed amendment at its meeting on 4 March, and the Committee agreed to include the written and oral evidence received on the amendment proposed by Mr Wells in the Committee Bill report. Some members indicated that they were sympathetic to the proposed amendment, but had not reached a final decision; others expressed their support; and others indicated that they would not support it. Again, we had agreed to return to this issue today. I will open up to members. Do you want to include the evidence that we took in our Bill report, or does the Committee want to take a formal position on it?

Mr Poots: A fair bit of work has been done on this to establish a lot of the facts around it. I think it would be useful to take it forward as a Committee Bill, since it is not associated with an individual person or party. That would be to the benefit of the debate, whether it is accepted or not by the House.

The Chairperson (Mr Ross): Are there any other views?

Mr McCartney: We will not be lending our names to that. It can be a formal proposal; we have no issue with that.

The Chairperson (Mr Ross): OK. I noted that, and we will return to that tomorrow.

Mr A Maginness: Will there be a formal decision on this tomorrow?

The Chairperson (Mr Ross): Yes.

Mr A Maginness: We are supportive of the amendment but we will wait until tomorrow.

The Chairperson (Mr Ross): We have division on a few issues, so we can decide all of those tomorrow during the formal clause by clause, and maybe get a bit more time to clarify.

Mr Frew: I want to ask about the procedural point that Alban made. We will go through the clause-by-clause scrutiny, proposing and supporting clauses and amendments, but Jim Wells, now that he is a Minister, will not be able to pursue this proposed amendment, so there will have to be a secondary mechanism to decide whether the Committee takes it on. The first logical question is whether members support or oppose the amendment, and the second is whether the Committee proposes to take it forward. The fact that Jim Wells will not be able to take this forward presents the Committee with the opportunity to consider adopting the amendment.

The Chairperson (Mr Ross): There are a few of these, and the Committee will have to take a view on whether to bring them forward. Obviously, Mr Wells is not able to, and the Attorney General is not either. We can discuss that tomorrow and take a formal view on it. Some of these things can be taken forward by individual members if necessary, but we will discuss that in the formal clause by clause tomorrow, if members are happy with that approach.

I move on, then, to new policy amendments relating to sexual offences against children. I remind members that, at its meeting on 14 January, the Committee considered proposals from the Department to bring forward two amendment 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 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 its meeting on 18 February 2015. The Department has now provided a revised wording of the amendment relating to the enhancement of the existing offence of meeting a child following sexual grooming to correct a typographical error in the original draft amendment. I ask members first to note the revised text of the proposed amendment, and, secondly, to note that the formal Questions will be put on the clauses and schedules of the Bill and proposed amendments that relate to the Bill at the meeting tomorrow.

The Chairperson (Mr Ross): If everyone is happy enough with that, the meeting tomorrow will take place in this room at 2:00 pm, and we will go through the Bill, clause by clause.