Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome the Minister, David Ford, to the Committee, as well as Karen Pearson and Graham Walker, with whom we are all very familiar. In your own time, Minister, talk us through the issues. If there are any questions, we will open up the meeting to Committee members.

Mr Ford (The Minister of Justice): OK. Thank you very much, Chair, for the opportunity to discuss with the Committee some of the specific issues that arose at Consideration Stage and to look to see how we should deal with them at Further Consideration Stage.

First, I want to talk about clause 86 or, more accurately, what is no longer clause 86. I will then talk about the issue around some of Jim Allister's amendments on preliminary investigations (PIs). Other officials and the PSNI are here to look at Paul Frew's amendments and Dolores Kelly's amendment.

I do not need to rehash the reasons why the Department thought that we needed clause 86. I accept that the decision was dealt with at Consideration Stage. However, I believe that, in the context of the complexities of the Bill, we need to do something to mitigate the risk that losing clause 86 has created for us. It is a case of whether we can find agreement on how we do that. A lot of work has been done between officials and the Office of the Legislative Counsel (OLC) in recent days that I hope will produce something useful in the context of the amendment that was sent to the Committee on Friday. Compared with the original clause 86, that amendment does two things. First, it simply deals with Part 1 of the Bill; that is, the single jurisdiction and the vast number of pieces of legislation, which, as we saw, date back to the 1840s. We are looking at doing something similar, albeit reduced in scope, around the Part 1 provisions so that, if we discover further bits of primary legislation that require attention, we can deal with them. The precise wording of the amendment is also significantly limited in scope. I am happy to hear the Committee's views on that and then see whether we can agree that I should table the amendment to insert the proposed new clause 6, which is in members' papers. It might be helpful if we check that out before moving on to Jim Allister's amendments.

The Chairperson (Mr Ross): Sure. Members, do you have any comments or questions? Raymond and I met the Minister and were generally content with that approach. We felt that it narrowed the issue down somewhat to an area in which we all acknowledged, even during the debate, that there may be some need to do some mopping up afterwards. We were generally content.

Mr Frew: I acknowledge the Minister taking the time to come to the Committee. I thank you for that, Minister.

At Consideration Stage, I raised the issue of having a wide scope, so it is beneficial that the clauses in question can be narrowed down to specific Parts of any Bill, not necessarily the Justice Bill, although we are here to talk about that today. That reassures me and makes me a wee bit more comfortable.

If there were to be changes made, even under the proposed new clause, you would still have to come to the Assembly to seek affirmative resolution. What would the differences be, even to timescales and mechanics, if, instead of using the affirmative resolution procedure, you were able to bring forward emergency legislation that did the same thing, albeit much quicker than we are used to? We would still have the legislative stages and the greater debate in the Chamber.

Mr Ford: The key question around timing would be whether it was possible to have what you call "emergency legislation", because it would still be a primary Bill and require going through all the usual stages. The ironic bit is that, if you did it by urgent procedure, you would miss out Committee Stage, which is the one point at which the Committee has input.

Mr Frew: You would still be able to amend the legislation in the Chamber.

Mr Ford: You would still be able to amend, but what would there be to amend? It is merely a matter of tidying up bits of legislation that require tidying up. I teased out that point with the Chair and Deputy Chair last week. I risk making it sound as though the response was, "It's OK as long as you are Minister and as long as you promised that you will come to the Committee in the first place". There was an element of that, but, frankly, I cannot see circumstances in which any Minister would not want to have the Committee on board. Therefore, by having the discussion with the Committee and seeing whether it was content as far back as SL1 stage, you would not be able to deal with it just as easily through that provision. The alternative is that you potentially have to wait for a legislative vehicle; otherwise, you create all the difficulties of having to draft primary legislation for something that could be done by a simple order.

Mr Frew: OK. I am content with that, Chair.

The Chairperson (Mr Ross): Minister, I know that you were not particularly impressed by the Committee's position during the debate, but it has served a purpose.

Mr Ford: That is a very mild statement, Chair.

The Chairperson (Mr Ross): Yes. I think that it has served a purpose, though, in that Departments will perhaps look at tightening regulations or clauses to ensure that they get only what they need rather than look at a wider clause. I hope that, at least in that sense, the debate that the Committee initiated has proved to be useful.

Mr Ford: From the perspective of the officials who did the work on the Bill, I have to be a little defensive, Chair. I am not going to fall out with you on it, but the issue was not that people did not do the work that was necessary; rather, the issue was that there was no guarantee that everything would be got right by Further Consideration Stage. That is the problem. You saw that schedule 1 started off with 20 pages of amendments to primary legislation, with three or four pages added at Consideration Stage, yet we still cannot be 100% certain that everything is right. There is a legitimate case to be made on that point. I also accept that the Committee expressed its views and that we have had a sensible accommodation as to how we get past the problem at this stage.

There will be complex legislation that could have wider ramifications for other bits of legislation. This Bill was relatively easy, in that it was Part 1 in which we felt that we needed the wide scope, because so much primary legislation could have been affected. That having been said, we have not required that with previous complex Bills, although, ironically, the Department is proposing an amendment to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 at Further Consideration Stage of the Justice Bill for something that was not picked up by the Committee. There was a similar provision at that stage that the Committee did not object to. If we had not had this Bill before the House, we would have been happy to make use of that order-making power in the Human Trafficking Act, where the best efforts of Lord Morrow and his colleagues, the Committee and the Department failed to pick up one particular point.

The Chairperson (Mr Ross): OK. There are no other comments from members on that point. Minister, do you want to move on to the other points?

Mr Ford: If the Committee is content, I will table that amendment in the near future.

The Chairperson (Mr Ross): Yes.

Mr Ford: Turning to the Jim Allister amendments on PIs, I must say that I was a bit surprised to hear the level of objection around the Chamber to what the Bill was proposing, given that we had not seen the clauses on PIs as being a problem when the Committee completed its detailed consideration of the Bill. We have looked at it in some detail with the OLC and have a draft that we are still discussing internally in the Department. The draft in front of me states "9th June 7.00 am", which is an indication of the work that is currently being done on it. I am not really in a position to share the draft with the Committee at this point, although I hope that we will be able to share the formal wording pretty speedily. It is literally the nature of things: that work was being done earlier this morning.

The advice that I have from the OLC is that the amendments proposed by Jim Allister have problems in their process, because they do not take account of how they would apply with existing law. There is a problem with ensuring that that approach would work in practice. The second point is the point that I highlighted, which is my concern about victims being put through a two-stage process, and there was clearly a degree of sympathy for that position around the Chamber, even from those who ultimately voted for Jim Allister's amendment No 2. In that sense, the question is how we ensure that the phrase "interests of justice" is taken to include the needs of vulnerable victims and witnesses, particularly in the context of being required to give evidence twice in a difficult case.

I refer you to the specific issue that we are looking at. At the moment, the proposed amendments to clauses 7 and 8 and to the schedules run over three pages, so I will not read out the whole text. The key point is that they will define that committal proceedings will be conducted, if a court directs, as a preliminary investigation but, in all other cases, will be conducted by a preliminary inquiry. That is effectively where we are at the moment. The accused may apply for a preliminary investigation, and the court should have regard to the nature of the offence and the interests of persons who are likely to be witnesses. In other words, it is about seeking to ensure that that is weighed up to determine what the interests of justice require and that the Bill emphasises that they also have to be taken account of. The amendments could further specify, although I gather that there are some drafting issues, something about vulnerable witnesses or whether they would be subjected to having to give evidence twice. There are possible wordings that we are working on, but the key issue is whether the Committee is satisfied with that as a general principle so that we can continue to work that up, literally today, and get something finalised that the Committee can see on Thursday.

Mr McCartney: We have not seen your proposed amendments, so we are a wee bit blind, but, out of the debate last week, we would want a presumption of exemption for, say, victims of rape or violent sexual crimes, who could be called only if exceptional circumstances prevailed. That is the type of amendment that we are looking for. That would ensure that the two-stage approach is avoided, a suggestion that very much came from the victims sector throughout our inquiry. There should be a presumption of exemption for rape victims, vulnerable witnesses or persons who have been subjected to violent sexual crimes.

Mr Ford: I do not think that my view is any different from that. I am seeking to establish that the issue of vulnerability is somewhat wider than that. Frankly, someone can be a witness to a crime and be sufficiently vulnerable to make it difficult for that person; for example, the person standing outside the bank when it is robbed. It is not a crime of violence directed against that person, but he or she could feel intimidated at having to give evidence twice. Although I am not disagreeing with your points, I am looking at something a fair bit wider.

Mr McCartney: Yes, but you would have a definition of a "vulnerable witness", and that would be one of the exemptions.

Mr Ford: I think that there are some difficulties with that. Karen can perhaps talk about those issues as she has been speaking to counsel.

Ms Karen Pearson (Department of Justice): We have not got it in there at the minute, but "vulnerability" has a specific meaning already, so how we draft it for this purpose needs quite a bit of thought, and we are obviously against the clock. The Minister has given a very broad interpretation of the interests of justice. The Assembly has passed the interests of justice test, so that has a meaning as well. We are kind of caught, but we will be spending the rest of the day thinking about it. We will talk to counsel about any ideas that come up today to see whether we can make them work.

Mr McCartney: Further to that, the presiding judge would have some discretion. You are right, in that the person standing outside the bank might feel uncomfortable about giving evidence. Another person might make the case, but it would be up to the Public Prosecution Service to say to the magistrate, "This is a vulnerable witness, and here are the circumstances in which they are vulnerable". The judge might make a decision and say, "That person is not being called. We will proceed on the strength of the witness's statement".

Mr Ford: Yes, but Karen's point is that it may be difficult for us to put the word "vulnerable" into the legislation. Even though a prosecutor might say to the district judge that the person is vulnerable, it would not necessarily have the precise meaning that we would have to have in the legislation.

Mr McCartney: Yes, but if it is not in it, someone could be left out. If you are the victim of rape or a violent sexual assault, it is easy to define in that case. A parent of a child who has been killed would be vulnerable in the circumstances of having to go through a two-stage process.

Mr Ford: To some extent, I have a bit of a difficulty with defining any individual crime. If you produce anything, it is not just a case of me standing in the Chamber reading off a "for instance" or two. If a definition is in the legislation, it almost implies that other things are not in the legislation. At the moment, we are trying to work through how we get across that vulnerability point.

Mr McCartney: At this stage, I would say that we will table an amendment, because we will not see your amendment until after the deadline for amendments, which is on Thursday at 9.30 am. We might not see your amendment to have enough time to decide whether it covers that. I am sure that it is the same for everybody else. You might see a number of amendments from us. I will not presume that they will pass, but we certainly have a view to tabling an amendment to cover vulnerability.

Mr Ford: I take it that, when you say "we", you mean your party and not the Committee.

Mr McCartney: Yes, the party. However, once we read your amendment, we may find ourselves in the position of not moving ours.

The Chairperson (Mr Ross): My personal view is that it is regrettable that we are here. Although we talked about a halfway house during the debate, I am not sure that we really are at a halfway house. We would probably have been better either doing it or not doing it altogether. We are probably in the same position as we were in. Are there any other comments on the issue? No? Thank you.

Mr Ford: In that case, thank you, Chair, and I shall leave.