Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Karen to the Committee. Thank you for coming along. As you are aware, the meeting will be recorded by Hansard, and the report will appear on our web page in due course. If you have any comments to make, please do so, and then we will open up the meeting for questions.

Ms Karen Pearson (Department of Justice): Thank you, Chair, for the opportunity to talk to the Committee further about clause 86. The Department's policy position is that provisions of this type are there to manage a risk in the process, and it is a risk that we think needs to be managed in the context of this Bill for reasons that I can expand on.

It is a smaller and particular risk. I ask the Committee to note that the Justice Bill, as it stands, has 85 substantive clauses running across 61 pages; but it also has pages 62 to 126 with amendments and repeals, which makes it very complex, covering a very wide range of old and complex legislative procedures. I think the earliest statute amended by the Bill dates back to 1842, so the risk that we think may be present — it is a small risk — is that we could have missed something when preparing the Bill that would be important to the policy contained in the Bill.

I also note that not all of the Bills that the DOJ has advanced in this mandate have had such provisions. We think this is about the context of the Bill rather than saying that we want one of these provisions every time. We do not think that that would be right. We note that the Justice Act (Northern Ireland) 2011 had such a provision, whereas the Criminal Justice Act (Northern Ireland) 2013 did not. Our Legal Aid and Coroners' Courts Act (Northern Ireland) 2014 had one, and this Bill, obviously, proposes an arrangement in clause 86.

We believe that clause 86, in the context of this Bill, is proportionate and necessary to manage the risks for the reasons I have outlined. If it would be helpful, I have also looked at the Bills that have progressed during this mandate, and if you want me to reference those that have such a provision I can do that.

I take your point that, on the face of it, this provision may look very wide-ranging, but we think it is very narrow, when you look at the totality of clause 86. All it can be used for is to make an offering to the Assembly to fix a problem. That has to pass through the gateway of clause 86, particularly that the provisions have to be relevant to the policy. The Minister has no plans to use the provision. It is there as a safeguard, just in case we have missed something in the Bill. We continue to believe that clauses of this sort have a utility if used in the right way.

The Chairperson (Mr Ross): OK, thank you. I think that, even in your opening comments, we got a little bit more detail than we did previously. The Committee was right to ask the Department exactly what the use of this clause would be and in what circumstances it would be used. You have outlined the fact that the Minister does not intend to use the clause but believes it is important as a safety net. The wording "Supplementary, incidental, consequential and transitional" seems very broad. Can you give us an example of the circumstances in which the clause would be used?

Ms Pearson: If, for instance, we had missed the first reference in schedule 1, the 1842 Act, and had to come back to the Committee and the Assembly to have it inserted, we would have to wait on the next primary vehicle to do so. It is in and around that area and whether we have picked up all the consequential issues in other statutes. Almost half of the Bill is taken up with this. Given the effort that has gone into this, we should not rely on clause 86 to cover any deficiency in the policy-making process; we should not set out to do that. If, with the best will and human effort engaged in this Bill, we have missed something, then this is something we might offer back to the Committee. We certainly would not come back — I do not think that we could do so under clause 86 — and say that we have changed our mind about the policy or that we do not like some of the policy that is in there. That is not what the clause is there for.

The Chairperson (Mr Ross): The Committee's concern is that this is a very wide-reaching clause and that when the Minister responded we would seek to amend it. If we amend it and seek to restrict clause 86 to read "consequential and transitional provision", would that be something that the Department would be comfortable with?

Ms Pearson: I think that all of these words, as I understand them, have particular meanings — I am not a lawyer; I am from the policy field. If you wish to table an amendment to that effect, then my next job would be to seek advice on exactly what these words mean and offer the Minister advice on whether the amendment would disturb or dilute the risk mitigation that we get from clause 86 and whether it would perhaps go further than you intended by taking some words out.

Mr Lynch: Karen, you said again that there are no plans to use the clause: why do they need such wide regulation-making powers?

Ms Pearson: If you look just below clause 86(1)(b) you will see that it says:

That is really quite limiting. I know that it looks quite wide when you look at paragraphs (a) and (b) on their own, but there is a gateway there. Any order made under clause 86 would have to be to give full effect to the policy intent. If you look at clause 87, you see that any order can only be an offering and would be subject to affirmative resolution.

Mr Lynch: Secondly, can the words "or for giving full effect to" be removed from the provision?

Ms Pearson: That is pretty crucial. It is stating that we have a policy aim and have missed something that would dilute the policy effect. I would say that those words are crucial, but I would have to take further legal advice if that was what you were minded to do.

Mr Frew: This is an intriguing debate. It is historical, when you think that this goes back to 1842. It is quite fascinating, or perhaps I am just an anorak. What examples can you give of such a provision having been used previously?

Ms Pearson: We believe that it has not been used in the justice field since the DOJ was created. We would have to go through every order and look at the powers under which it was made. My colleagues have had a quick look for me, and we do not think that we have used any of the two other provisions that we have taken of this sort in the justice field. I could not speak for other Departments. I can say that a number of Bills currently before the Assembly have provisions of this sort and that a number of Acts passed during this mandate have provisions of this sort. It tends to be similar wording or a similar effect achieved by slightly different wording. While I would not say that it is common — not every Bill has it by any means — where a Bill needs such a provision due to its complexity it is in there. Could I reference one for you, Mr Frew?

Mr Frew: Certainly, yes.

Ms Pearson: The Education Act (Northern Ireland) 2014, which, on the face of it, was a very short Act with only five clauses, has one of these provisions. If you turn to the schedule, you can look at the complexity of the amendments made there. From memory, I think the earliest statute amended by that Act was in 1928, so you can see why, even in a short Bill, a clause of this sort might be necessary to give effect to the policy.

Mr Frew: Is there anything in the Bill that worries you? Can you provide examples of when the provision could be used in the context of this Bill? Obviously, the Bill is very wide-ranging. Are there any areas of concern in it, or can you give any examples of where this could be used in the future?

Ms Pearson: I would not say "concern", but the area that is perhaps most risky is single jurisdiction, given the variety and longevity of the statutes involved. This is contained in a fairly small number of clauses, so there is more by way of amendment to other statutes than there is in the Bill. That is probably an area where I would continue to advocate clause 86 on a safety blanket basis.

Mr Frew: Why, then, can the clause allow a more specific remit in that regard? Would it not be fair to say, "Well, look, although we don't have a crystal ball, we have concerns about A, B and C"? How would you feel about naming parts of a Bill in the clause? At the minute, with the wording used, it looks very wide. Basically, you could do anything with the clause.

Ms Pearson: With respect, I do not agree that we could do anything with it. It is quite narrow and would be subject to approval by the Assembly. I mentioned single jurisdiction because it is so complex, but the other areas would have an element of risk. I have not analysed all the amendments that we have made for today — forgive me — but I looked at single jurisdiction as being particularly complex.

Mr Frew: Does the provision enable the Department to amend any legislation, even that not related to justice?

Ms Pearson: I believe it does, if that were necessary to give effect to the policy.

Mr Frew: Wow.

Ms Pearson: But, had we not missed them, they would be in the Bill anyway.

Mr Frew: But they would have been through all the rigours of process and accountability.

Ms Pearson: You are absolutely right. With the affirmative process, all we can do is make an offering. If we have done something wrong or if the Assembly does not believe that something is in line with the powers in clause 86 or does not wish to accept the order, we would have to wait for the next primary legislation opportunity and have the full scrutiny that we should, of course, have.

Mr Frew: Which can be done.

Ms Pearson: It can be done, but it may mean waiting for 18 months or two years to correct something that is quite small and easily fixed.

The Chairperson (Mr Ross): If you use the provision, then, in terms of the control that the Assembly or Committee has, we can either accept or oppose it, but there is no opportunity to amend it. The delay would come if the Committee or Assembly does not agree with whatever changes you want to make, and we would then force you to bring through a new Bill or use another vehicle for that. Is that right? The safety net we have is that we can oppose any changes that come forward. However, we do not have the opportunity to amend them. Is that right?

Ms Pearson: The order would be subject to the affirmative procedure. If we, collectively, felt that the order is insufficient, a further order could be tabled.

The Chairperson (Mr Ross): Yes, but we cannot amend the order that comes forward, is that right?

Ms Pearson: That is my understanding.

Mr Elliott: Just to confirm: is subsection (3A) an extra subsection being proposed by the Department?

Ms Pearson: We have offered the Committee, for its consideration, an amendment, should you be so minded, that would make it absolutely clear. It is already in the Bill; it would not give a substantive change to the Bill as currently drafted because clause 87 already provides that an order under clause 86 would have to be subject to affirmative resolution. The amendment would assist the reader. Somebody who picks up the Bill and sees clause 86 would have absolute clarity on the process. They would not have to look elsewhere in the Bill.

The Chairperson (Mr Ross): Nothing additional would be subject to affirmative resolution, is that right?

Ms Pearson: That is correct.

Mr Elliott: Sorry, Chair?

The Chairperson (Mr Ross): Nothing additional would be moved into affirmative resolution, so it does not really change anything. It is a cosmetic change more than anything else.

Mr Frew: Just on that, surely the word "supplementary" picks up any additional —

Ms Pearson: "Supplementary"?

Mr Frew: Yes. I know that this is a simple question, but what does the word "supplementary" mean in the clause? I know that you were going to consult the lawyers, but what is your reading of the word "supplementary" there?

Ms Pearson: My plain policy reading of it would be that it means something that is additional. It will have a legal meaning.

The Chairperson (Mr Ross): OK; there are no other questions. Thank you very much.

OK, members, we need to make a decision on whether we still wish to oppose clause 86 or amend it. The Bill Clerk is here to assist us if we wish to do the latter. I think I understand the point the Department makes. When you look at pieces of law as far back as 1842, there are probably examples where you may have missed something. Nevertheless, it was important that the Committee challenged the inclusion of clause 86, and I do not think we were given a satisfactory answer the first time we asked about it.

Today, I think there was perhaps a bit more clarity. It is over to members as to whether we wish to oppose the clause and ask the Department to come back with something at Further Consideration Stage, or perhaps we can look at amending it now in order to tighten it up a little bit. We can make the point in the Chamber about why we were initially going to oppose the clause and explain our concerns about the use of such clauses. It is up to members.

Mr Elliott: I think there is a reasonable explanation why they might need to use the clause. While I take your point that the proposed subsection (3A) will not do anything additional, it gives clarity to the clause. I am slightly more content now than I was.

The Chairperson (Mr Ross): We have a suggested amendment that reads as follows:

That would tighten it up a little bit. It allows us to make the point in the Chamber, but I think it also allows the Department the flexibility that it argues it requires. Are there any views?

Mr Frew: The only problem is that they still get the power, and it all depends on the real determination and meaning of the four words. Are we sure we have lifted out the correct two, if you know what I mean? That is the only thing that would worry me. It just seems a wee bit messier to amend the clause rather than either oppose it or be content with it. I struggle to see how we could amend it. It all falls on the four words and their actual meanings in legal terms.

The Chairperson (Mr Ross): The Bill Clerk is here and may want to comment on that.

The Bill Clerk: I have brought down my definitions, and the words "consequential" and "transitional" are the more direct results of the Bill. So, they are things that happen as a consequence or they are things that need to happen in the immediate changeover from the old regime to the implementation of the new legislation. The words "incidental", "supplementary" and "transitory" give a little more scope to add on. Essentially, these are the ones that are isolated in the advice that we have had through Politics Plus as the core remit for the Department to need to amend afterwards. That is why those two are isolated as opposed to the others, but I suppose you are right: if the Committee is going to oppose the clause, that will create an opportunity for the Department to come back with something narrower and with the benefit of legislative drafting advice.

The Committee has several options. Obviously, you do not have to oppose the clause at all; you could stick by your decision to oppose the clause and allow the Department an opportunity to come back with something new; or you could oppose the clause and instruct me to come back with something for you along the lines of this. I can add to it, amend it or take away from it.

The Chairperson (Mr Ross): Presumably, if we were to table this as a Committee amendment and we wanted support for it, the Department could propose a further amendment or amend our amendment at Further Consideration Stage if it felt it required something different, is that right?

The Bill Clerk: Yes. I suppose the thing about opposing a clause and then having Further Consideration Stage is that the Assembly needs not to be asked to make the same decision repeatedly. That makes it a bit more complicated at Consideration Stage: you cannot remake exactly the same decision as you made or go back on exactly the same decision as you made at Committee Stage.

Mr Elliott: I wonder what difference the Bill Clerk's amendment makes to the outworkings of the clause, compared with what is there from the Department.

The Bill Clerk: It is about the message that the Committee wants to put across in terms of how the regulation-making powers are drafted. The Committee felt that this clause was exceedingly wide in terms of the range of things that could be changed, the range of purposes and the range of options for the Department or what the Department

The Committee's understanding was that, in the primary legislation process, all the details should be in the Bill and that the Department should have accounted for unforeseen consequences, because this is when the Bill gets full legislative scrutiny. When the provision is used — if it is used — as the Chair rehearsed with the witness, the Committee will just be offered a yes or no about the amendment; it will not have a chance to read back in and amend the proposal from the Department. It is preferable to do it, if you can, at the primary legislation stage.

Mr Elliott: How would the amendment that you are —

The Bill Clerk: It would mean that it was a narrower power that the Committee was allowing to the Department. The Committee would be saying to the Department, "You can make some amendment, if there is some little detail left out, but, really, we do not want you to have a lot of sweeping powers because you should have brought the detail to us the first place". I think that is the argument.

Mr Frew: Let us play devil's advocate. If an amendment comes in at Further Consideration Stage — if some honourable Member tables it and it gains approval — but the Minister is totally and utterly opposed to it, could he use a provision like this to change, amend or tamper with it? Again, it would need to come back for affirmative resolution, but you can understand how something like this could well be used.

The Bill Clerk: I am not sure. I do not think it could be used like that. The problem, I suppose, is that certain provisions in the Bill are highlighted as those that come back under draft affirmative procedure. Draft affirmative procedure means that the Committee will always be notified that the Department is thinking of making a change by order. The Department would have to lay a draft before the Assembly, and the Assembly would have to be happy with it. In this case, it would be your Committee. If it is negative resolution, it would be among your very considerable pack of Committee papers and may not be something that is highlighted in your workload. It is kind of about the resource implications as well. A negative resolution change can slip under the radar; draft affirmative means that it is brought to your attention more explicitly.

Mr Frew: So, affirmative resolution is better than negative resolution in that regard.

The Bill Clerk: It is. It is a higher level of Assembly control, yes.

Mr Frew: You can imagine that, if someone gets something passed that has not been scrutinised by a Committee at the later stages of a Bill and the Minister is loath to have it as part of his Bill, he could argue that you have not had the scrutiny of a certain amendment. That amendment could have major implications and repercussions somewhere else in day-to-day living.

The Bill Clerk: If the will of the House has been expressed in the Assembly Chamber and an amendment has been passed, it is part of the primary legislative process and the Minister would need to come back to the Assembly with a new legislative vehicle to make a change as explicit as that.

Mr Lynch: Karen said that there were "no plans to use". That was one of her key phrases.

The Chairperson (Mr Ross): I do not want to speak for them, but, in their defence, they are making the assumption that their legislation is sound and that they have not missed anything. If they knew that they had missed something, presumably they would have corrected it. When you are bringing together or potentially conflicting with legislation as far back as 1842, minor things may be missed. It is whether the Committee wishes to allow the Department the mechanism to fix those things without having to have primary legislation — a Bill — or some other piece of primary legislation.

Mr Lynch: So therefore we —

The Chairperson (Mr Ross): It is a question of whether we give them flexibility. It is about how much flexibility we give them. If the suggested draft amendment tightens it up a little bit, I think we can be comfortable that we have still given the Department flexibility to correct things that, potentially, it has missed but are not giving it a power that is so wide that it can pretty much include anything in it.

Mr Frew: The legislation dates back to 1842. Who actually reviews legislation that dates back that far? Again, is that not further legislation?

The Chairperson (Mr Ross): It only takes one person to find it, I suppose.

Mr Frew: Somebody could put forward the argument that legislation dated that long ago should have to be reviewed anyway in its entirety.

The Chairperson (Mr Ross): I do not see any great repeal Bills coming forward. It would be a great idea, potentially.

Are there any views on how we want to progress this? Are we generally supportive of a Committee amendment to allow flexibility and tighten up the clause? Is that the general view, or do people wish to oppose the clause and make the Department do it? It would give this an element of Committee control if we were to table our own amendment.

Mr Elliott: It would be better if we put something definitive on the table. I am reluctant to oppose the clause at this stage and have the Department come back. I assume that it could still come back with something anyway after we put in our own amendment. I would prefer us to be proactive in that sense.

The Chairperson (Mr Ross): Are we happy with the suggested draft amendment that has been tabled? Have you had sight of it, Tom? You have. Are we content with that?

The Bill Clerk: If the Committee will give me a bit of leeway with this, I can come back to you tomorrow, think through the implications and look at the terminology again to be sure.

The Chairperson (Mr Ross): We can agree the amendment and circulate, via email, the final wording tomorrow, hopefully. Is the Committee happy enough?

The Bill Clerk: Is the Committee still opposing the clause and suggesting this instead?

The Chairperson (Mr Ross): Yes. OK. Thank you for coming along.